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AGENDA
CITY COUNCIL REGULAR MEETING
May 26, 2020
5:00 PM, City Council Chambers
130 S Galena Street, Aspen
I.CALL TO ORDER
II.ROLL CALL
III.SCHEDULED PUBLIC APPEARANCES
IV.CITIZENS COMMENTS & PETITIONS
(Time for any citizen to address Council on issues NOT scheduled for a public hearing. Please
limit your comments to 3 minutes)
City of Aspen invites you to join this Webex meeting.
+1-720-650-7664 United States Toll (Denver)
Meeting number (access code): 126 188 8819
Meeting password: 81611
V.SPECIAL ORDERS OF THE DAY
a) Councilmembers' and Mayor's Comments
b) Agenda Amendments
c) City Manager's Comments
d) Board Reports
VI.CONSENT CALENDAR
(These matters may be adopted together by a single motion)
VI.A.Resolution #042, Series of 2020 - Ice Garden Sanitary Sewer Replacement Project,
Project # 2020-50355
VI.B.Draft Minutes of May 12th, 2020
VII.NOTICE OF CALL-UP
VIII.FIRST READING OF ORDINANCES 1
2
IX.PUBLIC HEARINGS
IX.A.Ordinance #02, Series of 2020 - CONTINUATION - 949 W. Smuggler Lot Split
IX.B.Ordinance #07, Series of 2020 - Spring Supplemental Second Reading
IX.C.Ordinance #08, Series of 2020 - Comcast Franchise
X.ACTION ITEMS
X.A.Resolution #043, Series of 2020 - Mandatory Face Covering Extension
X.B.Resolution #044, Series of 2020 - ACRA Loan
X.C.Local Economic Stimulus Program
XI.ADJOURNMENT
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MEMORANDUM
TO:Mayor and City Council
FROM:PJ Murray, Project Manager
THROUGH:Pete Rice, PE, Senior Project Manager
Trish Aragon, PE, City Engineer
MEMO DATE:May 18, 2020
MEETING DATE:May 26, 2020
RE:Aspen Ice Garden Sanitary Sewer Replacement Project
Resolution #042, Series of 2020
REQUEST OF COUNCIL: Staff recommends Council approve the Aspen Ice Garden
Sanitary Sewer Replacement Project Contract with Dream Builders, Inc. in the amount of
$81,821.00 and a 20% contingency of $16,364.20.
BACKGROUND: The sanitary sewer service connection to the Aspen Ice Garden has
been identified as critical for replacement by staff. The goal of this project is to replace
approximately 60 linear feet of sanitary sewer service pipe serving the building. During
the investigation phase of the project, staff camera-ed the line to investigate issues
relating to discharge. The camera footage indicated that the service line is in poor
condition that could lead to a failure soon. If failure occurs, the facility would require an
unanticipated shut down and would impact staff and users of the facility. The scope of
work also includes replacing the delivery and access concrete pad to the east of the
building as this area will be disturbed for the instillation of the sanitary sewer service line.
DISCUSSION:The Aspen Ice Garden Sanitary Sewer Replacement Project is a
collaboration between the Capital Assets Department, Engineering Department and Ice
Garden Facility Managers. Engineering is the acting project manager for the service line
replacement. The work is proposed for June 2020 while the facility is temporarily closed
which will minimize disruptions to the staff and community members using the Ice Garden.
RECOMMENDED CONTRACTOR: The Aspen Ice Garden Sanitary Sewer Replacement
Project was advertised for bid on March 10, 2020. Three (3) bids were received and
opened on April 14, 2020.
Bids were received from three (3) Contractors are summarized below:
Dream Builders, Inc. $ 81,821.00
Phoenix Industries $ 198,065.73
The Aspen Digger $ 154,541.56
3
Dream Builders, Inc. was identified by staff as the lowest qualified bidder for the project.
FINANCIAL IMPACTS: Requested budget authority is included in the Spring
Supplemental packet for this project. The requested resources in the packet equal
$134,000 as a placeholder estimate until bids were received. The amount of the contract
below, plus contingency, is within the requested authority and any unused appropriation
will return to fund balance.
Expenditures
Dream Builders, Inc.$ 81,821.00
Contingency (000.327.81200.52199.50355)$ 16,364.20
TOTAL $ 98,185.20
PUBLIC OUTREACH: The sanitary sewer service line replacement is essential to the Ice
Garden’s operations. Public outreach will not be necessary until construction begins. At
that time, construction notices will be distributed to the neighborhood.
RECOMMENDATIONS:Staff recommends Council approve the Aspen Ice Garden
Sanitary Sewer Replacement Project contract with Dream Builders, Inc. in the amount of
$81,821.00.
PROPOSED MOTION: “I move to approve Resolution No. 42, Series of 2020”
CITY MANAGER COMMENTS: ____________________________________________
______________________________________________________________________
______________________________________________________________________
ATTACHMENT - Resolution #042, Series of 2020
ATTACHMENT A - Contract with Dream Builders, Inc.
ATTACHMENT B - Aspen Ice Garden Sanitary Sewer Replacement Project Design by
Roaring Fork Engineering
4
5
RESOLUTION #042
(Series of 2020)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CONTRACT BETWEEN THE CITY OF ASPEN
AND DREAM BUILDERS INC. AUTHORIZING THE CITY MANAGER TO
EXECUTE SAID CONTRACT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council a contract for the
Aspen Ice Garden Sanitary Sewer Replacement Project between the City of Aspen
and Dream Builders Inc., a true and accurate copy of which is attached hereto as
Attachment “A”;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves the contract for
the Aspen Ice Garden Sanitary Sewer Replacement Project, between the City of
Aspen and Dream Builders Inc., a copy of which is annexed hereto and
incorporated herein, and does hereby authorize the City Manager to execute said
agreement on behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City of
Aspen on the 26h day of May 2020.
Torre, Mayor
I, Nicole Henning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City Council
of the City of Aspen, Colorado, at a meeting held, May 26, 2020.
Nicole Henning, City Clerk
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OSWWVCOCOCOASPEN ICE GARDENSANITARY SEWER SERVICEREPLACEMENTC-001COVER PAGEROARING FORK ENGINEERING
592 HIGHWAY 133
CARBONDALE COLORADO, 81623
PH: (970)340-4130 F:(866)876-5873CHECKED BY:#DESCRIPTION DATE DRAWN BYCONSTRUCTION DRAWN BY:JOB #:OF 7ASPEN ICE GARDEN
ASPEN, COLORADO 2018-17NOT FORSWWAMR1 REVIEW SET 01.30.2019 SWW
2 REVIEW SET #2 03.13.2019 SWW
97
C-002GENERAL NOTESROARING FORK ENGINEERING
592 HIGHWAY 133
CARBONDALE COLORADO, 81623
PH: (970)340-4130 F:(866)876-5873CHECKED BY:#DESCRIPTION DATE DRAWN BYCONSTRUCTION DRAWN BY:JOB #:OF 7ASPEN ICE GARDEN
ASPEN, COLORADO 2018-17NOT FORSWWAMR1 REVIEW SET 01.30.2019 SWW
2 REVIEW SET #2 03.13.2019 SWW
98
SSOSWWVCOCOC-101EXISTING CONDTIONSROARING FORK ENGINEERING
592 HIGHWAY 133
CARBONDALE COLORADO, 81623
PH: (970)340-4130 F:(866)876-5873CHECKED BY:#DESCRIPTION DATE DRAWN BYCONSTRUCTION DRAWN BY:JOB #:OF 7ASPEN ICE GARDEN
ASPEN, COLORADO 2018-17NOT FORSWWAMR1 REVIEW SET 01.30.2019 SWW
2 REVIEW SET #2 03.13.2019 SWW
99
OSWCOC-102SEWER P&PROARING FORK ENGINEERING
592 HIGHWAY 133
CARBONDALE COLORADO, 81623
PH: (970)340-4130 F:(866)876-5873CHECKED BY:#DESCRIPTION DATE DRAWN BYCONSTRUCTION DRAWN BY:JOB #:OF 7ASPEN ICE GARDEN
ASPEN, COLORADO 2018-17NOT FORSWWAMR1 REVIEW SET 01.30.2019 SWW
2 REVIEW SET #2 03.13.2019 SWW
100
COCOC-103PAVING PLANROARING FORK ENGINEERING
592 HIGHWAY 133
CARBONDALE COLORADO, 81623
PH: (970)340-4130 F:(866)876-5873CHECKED BY:#DESCRIPTION DATE DRAWN BYCONSTRUCTION DRAWN BY:JOB #:OF 7ASPEN ICE GARDEN
ASPEN, COLORADO 2018-17NOT FORSWWAMR1 REVIEW SET 01.30.2019 SWW
2 REVIEW SET #2 03.13.2019 SWW
101
OSWWVCOCOC-104EROSION CONTROLROARING FORK ENGINEERING
592 HIGHWAY 133
CARBONDALE COLORADO, 81623
PH: (970)340-4130 F:(866)876-5873CHECKED BY:#DESCRIPTION DATE DRAWN BYCONSTRUCTION DRAWN BY:JOB #:OF 7ASPEN ICE GARDEN
ASPEN, COLORADO 2018-17NOT FORSWWAMR1 REVIEW SET 01.30.2019 SWW
2 REVIEW SET #2 03.13.2019 SWW
102
C-501DETAILSROARING FORK ENGINEERING
592 HIGHWAY 133
CARBONDALE COLORADO, 81623
PH: (970)340-4130 F:(866)876-5873CHECKED BY:#DESCRIPTION DATE DRAWN BYCONSTRUCTION DRAWN BY:JOB #:OF 7ASPEN ICE GARDEN
ASPEN, COLORADO 2018-17NOT FORSWWAMR1 REVIEW SET 01.30.2019 SWW
2 REVIEW SET #2 03.13.2019 SWW
103
1
REGULAR MEETING ASPEN CITY COUNCIL MAY 12TH, 2020
At 5:00 p.m. Mayor Torre called the regular meeting to order with Councilmembers Richards, Mesirow,
Mullins and Hauenstein joining via video conference.
PUBLIC COMMENT:
Elizabeth Milias – Ms. Milias said she wants to address the elephant in the room regarding the new city
hall building. You continue to build and you’re about 10 million in. She asked if the 23 million will be
enough to complete it and rumor is its over budget. She asked why council doesn’t know anything about
it and not one of you can speak to the project. We are in no position to pay the costs to complete this.
it’s an irresponsible use of public dollars. She asked what the projected cost is and the completion date
and what the agreement is with the bond holders. You can’t ignore the elephant in the room. She asked
if the city discussed an extension with the bond council.
Lee Mulcahy - Mr. Mulcahy said he seconds everything Elizabeth said on the city building. Mr. Mulcahy
said that if you’re not a democrat, you don’t get to ask a question at town hall. Kerry Donovan wouldn’t
take any questions from Republics on the call he just got off of. APCHA is just like the democrats and
you can’t get through to them. They don’t include the homeowner in the executive sessions and they
need to open these meetings to the public.
Shawn Cox - Ms. Cox said she would like APCHA and the council to work something out that is amicable
for both before the corruption is exposed.
Kay Anderson- Ms. Anderson said she stands with Lee and his mother. You don’t want a reputation of
throwing people out because it will make people cautious of purchasing in your town.
Toni Kronberg – Mayor Torre read the email with Ms. Kronberg’s concerns on the new Rio Grande
building and when the public can expect a work session on this. She has concerns about parking.
COUNCIL COMMENTS:
Councilman Hauenstein said his concern is opening things back up safely. It’s up to us to impress on the
BOA a phased plan and timing. He thinks this is missing from their current plan. We need a method to
contact air and land guests at the airport or hotels. Maybe symptom tracking for visitors would be ideal.
He doesn’t understand how we can have a prohibition on short term rentals if we have no quarantine
requirement, etc.
Councilwoman Richards said the future is unknown and this quarantine is growing weary on all of us.
We are still trying to flatten the curve and she is concerned about guests coming from all over the
country and restarting the virus spread. It’s not a promise we can make to guests that we are COVID
free.
Councilman Mesirow said this has been a long slog and is wearing on all of us. We aren’t out of the
woods yet and have a long way to go. Care for our health is number 1. We are foolhardy to end up right
back in the same place. Calls into mental health facilities are on the rise. There are models that are
working in other countries and we should look to Sweden as an example.
Mayor Torre said this is a team effort. There has been a lot of talk about reopening efforts and timing.
There is a lot of trepidation and caution. Some of the dates that have been thrown out are changing
every day. Stay calm and please be patient.
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REGULAR MEETING ASPEN CITY COUNCIL MAY 12TH, 2020
CITY MANAGER COMMENTS:
Sara Ott said she has no comments tonight.
BOARD REPORTS:
Councilwoman Mullins said she will give more details at the work session on the RFTA meeting, but they
have moved into phase 4. There are back up buses due to the limited number of riders. On their
website you can see all the information about ridership, etc.
CONSENT CALENDAR:
Councilwoman Mullins has questions on both resolution #36 and #38. She’s been very supportive of #38
and asked if we know how effective the program has been and if there are any metrics. She hasn’t seen
any recent data. Ms. Ott said she is happy to pass along some info and said Mind Springs is required to
do quarterly reporting. She asks for their patience as the reporting has probably not been at the top of
their list.
Councilwoman Mullins asked about the payment of Resolution #36 and Raquel Flinker said that they are
paying a total of 300,000 for both phases. Councilwoman Mullins asked Tyler Christoff to speak to the
expense. Mr. Christoff said this is a massive scope of work and forecasts out to 2065, which involves a
considerable amount of public outreach. These consultants have the expertise and have worked on
cities like Los Angeles. We feel like this is a reasonable expense to plan for the next 50-70 years. He is
very pleased with Corrolo Engineering on Phase 1 and Phase 2 is about working on that plan.
Councilwoman Mullins motioned; Councilwoman Richards seconded. Roll call vote: Hauenstein, yes;
Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
NOTICE OF CALL UP: 134 E. Bleeker
Sarah Yoon
Ms. Yoon said this is a single-family home and in the R6 zone district on a 4,500 square foot lot. There
was a 4-0 vote of approval by HPC on April 22nd. There are two historic structures on this property. There
will be no moving of the structures, just underpinning the historic resource. Unless council calls this up,
resolution #11 stands as approved.
Councilwoman Mullins asked about attendance. Sarah said two people had to recuse themselves. She
said it’s always concerning to see 4 out of 9 votes, and that is her only concern. She also asked why all of
the new projects are all white, and if we could go back to having some colors. She has no interest calling
this up.
Councilman Hauenstein asked about what they are going to do with the fence. Ms. Yoon said the
wrought iron fence isn’t historic to the site and there’s no way we can ask the applicant to keep that
fence.
Sara Adams said they discussed the fence after the meeting and they really want a white picket fence.
The architect is taking the wrought iron fence to reuse. Councilman Hauenstein has no reason to callthis
up.
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REGULAR MEETING ASPEN CITY COUNCIL MAY 12TH, 2020
Mayor Torre said this is preservation but he doesn’t know what it’s preserving. Part of a historic
structure, but is a definite change to what was there. A color change modernizes it so he starts to not
see the connection to the past. He doesn’t see any desire for call up, however.
Councilwoman Richards said she’s not interested in calling this up. We all have diff perspectives on
preservation and there’s a living story here. She doesn’t like it but is a little more accepting of it over
time.
Councilwoman Mullins said its historic projects but also new construction that is making things bigger all
over town.
ORDINANCE #06, SERIES OF 2020 – First Reading – 920 East Hyman Avenue – Establishment of TDR
Councilwoman Richards motioned to read.
Sarah Yoon gave a summary of this project. It’s a single-family historic property. In January, HPC
approved a minor development approval. This got approval with a 6-0 vote and HPC was in favor of
establishing one TDR.
Councilwoman Richards asked where the TDR’s are allowed to land in the city limits and Ms. Yoon gave
specific zone districts in the land use code. Councilwoman Richards asked if this is exceeding the
underlying FAR and Ms. Yoon said yes.
Councilman Hauenstein asked if any HPC bonus was granted and Ms. Yoon said there was no floor area
bonus was granted.
Councilwoman Mullins seconded. Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards,
yes; Torre, yes. 5-0, motion carried.
Ms. Henning read the ordinance.
Councilwoman Richards motioned to approve, changing the hearing date to June 9th; Councilwoman
Mullins seconded. Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-
0, motion carried.
ORDINANCE #07, SERIES OF 2020 - First Reading of 2020 Spring Supplemental
Pete Strecker
Mr. Strecker said this is a follow up to the work session from last week. This is a repackaging on screen
of last week’s presentation. Pete summarized and presented the revised budget which includes the
COVID reductions.
Councilman Hauensteinsaid there is a lot of information on financialsout there on the city website. He
doesn’t think it’s a secret like some people in the public are assuming. He wanted to bring forth the
transparent nature of where this can be found.
Mayor Torre said he wants more information on what’s already been done on the new city hall building
and the Armory building on second reading. We should share those changes with the public.
Councilwoman Richards motioned to read, Councilman Hauenstein seconded. Roll call vote: Hauenstein,
yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
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REGULAR MEETING ASPEN CITY COUNCIL MAY 12TH, 2020
Councilman Hauenstein motioned to approve Ordinance #07, Series of 2020; Councilwoman Mullins
seconded. Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0,
motion carried.
RESOLUTION #041, SERIES OF 2020 - Extension of Vested Rights for Aspen Valley Hospital
Kevin Rayes
Mr. Rayes said the master plan was approved in 2009 and has been built in four phases. Phase 4 has yet
to be built, and additional fund raising is needed to complete this phase. They are requesting a 5-year
extension. The 7-year vesting period expires on May 23
rd. He summarized phase 4 and explained the
criteria for council to consider. He said that staff finds all criteria are met for this request and are
recommending approval.
Councilwoman Richards asked about any significant code changes and Mr. Rayes said there are none.
Councilwoman Mullins said she supports the extension and said the hospital has done a fantastic job in
this COVID crisis and she wants to support them.
Councilwoman Richards said she is happy to approve the request.
Chris Bendon of Bendon Adams gave his presentation to the council. He asked for some amendments to
the language in the resolution.
Phillip Supino said that staff does not support all of these changes which Mr. Bendon proposed. We
don’t have full clarity at this time on the affordable housing credits. In the interest of moving forward,
staff suggests that the language be amended to tie the extension to the resolution from 2009. Any
remaining mitigation requirements will be in accordance to this resolution.
Councilwoman Richards said she is willing to let this go, but suggested having a work session this.
Mayor Torre supports the staff recommendation.
Mayor Torre opened the public hearing.
The public hearingwas closed.
Mr. Rayes outlined two options for council to choose between. The first option is the most broad asking
that all requirements including housing mitigation shall comply with the land use code at the time of
submission. Option 2 offers the requirements to comply with the 2009 approvals (Resolution #03, Series
of 2009).
Councilman Hauensteinmoved to approve option 1 and include other changes which Jim True made,
replacing paragraph B; Councilman Mesirow seconded.
Councilwoman Mullins said she supports option 2.
Mr. Bendon encouraged council to support option 2.
Mr. Supino shared a proposed resolution.
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REGULAR MEETING ASPEN CITY COUNCIL MAY 12TH, 2020
Councilman Hauensteinsaid this all is much ado about nothing and accepted this as a friendly
amendment. Councilman Mesirow accepted the amendment.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
Mayor Torre thanked everyone.
Councilman Mesirow motioned to adjourn.
Ms. Ott notified the council that last Friday she made a $250,000 disbursement from the city’s response
efforts to the Aspen Community Foundation.
Councilman Hauenstein seconded to adjourn.
Roll call vote: Hauenstein, yes; Mesirow, yes; Mullins, yes; Richards, yes; Torre, yes. 5-0, motion carried.
______________________
Nicole Henning, City Clerk
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Page 1 of 2
MEMORANDUM
TO:Mayor Torre and Aspen City Council
FROM:Phillip Supino, Community Development Director
MEMO DATE:May 21, 2020
MEETING DATE:May 26, 2020
RE:CONTINUATION -Minor Subdivision - Lot Split –949 West
Smuggler Street, Ordinance No. 002, Series of 2020.
APPLICANT:949 West Smuggler Street,
LLC
REPRESENTATIVE:Chris Bendon,
BendonAdams, LLC
LOCATION:949 West Smuggler Street
CURRENT ZONING:Split Zoning;
Residential - 6 (R-6) on eastern portion
of the lot and Residential – 30 (R-30) on
the western portion of the lot.
SUMMARY OF REQUEST: The Applicant
requests Minor Subdivision – Lot Split
approval to subdivide the subject
property into Lot 1 and Lot 2. No
development is proposed at this time
and Lot Split approval is only
requested. Power Plant Road
traverses the subject property and its
ownership is unclear. The Applicant
proposes to dedicate a Power Plant
Road right of way (ROW) to the City
during this subdivision process.
STAFF RECOMMENDATION:In light of current events
and at the request of the applicant and staff, staff
recommends City Council continue the public
hearing to June 23, 2020.
Figure 1. Aerial photo of subject property
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Page 2 of 2
REQUEST OF CITY COUNCIL:The Applicant requests a Minor Subdivision - Lot Split review
pursuant to draft Ordinance 002, Series of 2020 to create two (2) separate and distinct
parcels. This request will be reviewed in accordance with Land Use Code Section
26.480.060.A and Land Use Code Section 26.480.040. First and Second Reading is
required of this request. City Council is the final review authority.
STAFF RECOMMENDATION:
Staff recommends Council continue the public hearing of Ordinance No. 2, Series of 2020
to June 23, 2020, to prevent expiration of the public notice and allow for Council action at
a future meeting.
PROPOSED MOTION (WORDED IN THE AFFIRMATIVE):“I move to continue consideration of
Ordinance No. 2, Series of 2020 granting Minor Subdivision – Lot Split approval to June
23, 2020.”
Attachments:
None.
110
MEMORANDUM
TO: City Council
FROM: Sara Ott, City Manager
Pete Strecker, Finance Director
MEETING DATE: May 26, 2020
RE: Second Reading – 2020 Spring Supplemental
Request of Council: Staff is requesting Council consideration of needed budgetary adjustments
to address a combination of events including: (1) the lapse of annual appropriations at the end
of 2019 for which there is still capital and operational project work to complete; (2) unforeseen
changes that have occurred since the original 2020 Budget was adopted in November last year;
and (3) technical actions to address internal transfers, one-time grant supported items, and
equipment replacement funding. In total, the Spring Suppl emental requests an increase of
$44,317,003.
Changes from First Reading: In alignment with possible revisions documented during first
reading, the 2020 Spring Supplemental now reflects the following adjustments:
• a reduction to the Council operating budget equal to $12,000;
• adjustments to three capital carryforward budgets that net to an increase of $54,315; and
• a new appropriation of $300,000 for tourism promotion (services provided by ACRA).
Previous Actions: Council adopted the original 2020 Budget in November 2019, when there
was a different economic environment than the present. With the COVID pandemic reaching
the mountain communities in early March and severely limited economic activity in the Valley
and beyond, City Council took emergency action and adopted two ordinances (Ord. #4 and #5,
Series 2020) to appropriate $6 million in relief and recovery funding. The Council also adopted
Resolution #34, Series 2020 to soften the immediate impact to the General Fund of carrying
$3.5 million of this $6 million relief and recovery package, allowing for an interfund advance from
the City’s Wheeler Opera House Fund with repayment terms for a 10 year period and at a rate
equal to the current Treasury rate for the same duration.
Summary and Background: Staff held a work session with Council on May 4, 2020 to walk
through the combined “routine” Spring Supplemental items as well as the impact of COVID on
both revenue expectations and recommended cost cutting measures proposed by the
Administration to limit the impact to the financial health of the organization. The attached
documents reflect the summarized Spring Supplemental package, separated by type of request.
Given that the Council already took action within Ordinances #4 and #5, those impacts have
been shown separately from the proposed supplemental request presented today, leaving a
revised supplemental request of $44,317,003.
To support the increased authority within the Spring Supplemental request, note the opening
balance change for 2020 equal to $89.3M - this is predominately a reflection of the unspent
appropriation authority for 2019 capital projects that extended beyond the one fiscal year. 111
Additionally, it does reflect 2019 revenue collections above initial conservative projections when
the budget was developed and includes savings from underspent operational budgets.
The proposed revised annual spending plan results in an ending fund balance across City funds
equal to $144.0M – this is greater than the original $127.4M anticipated and allows for some
additional buffer in the event that current actions are not sufficient in this uncertain economy.
Original
Budget
Ord #4 & Ord #5
(Series 2020)
Spring
Supplemental
Revised
Budget
Proj. Opening Balance $123,305,817 $0 $89,290,241 $212,596,058
Original Revenues $151,495,585 $0 $0 $151,495,585
New Revenues $0 $0 $617,380 $617,380
Transfers $0 $0 $199,590 $199,590
COVID Reductions (Exh G) $0 $0 ($25,016,960) ($25,016,960)
COVID Increases $0 $3,500,000 $0 $3,500,000
Revenues $151,495,585 $3,500,000 ($24,199,990) $130,795,595
Base $74,897,470 $0 $0 $74,897,470
New Requests (Exh B) $1,979,440 $0 $198,270 $2,177,710
Savings Program (Exh C) $0 $0 $3,826,330 $3,826,330
Carry Forwards (Exh D) $0 $0 $1,049,930 $1,049,930
Technical (Exh F) $0 $0 $468,980 $468,980
COVID Increases $0 $6,000,000 $0 $6,000,000
COVID Net Reduction (Exh H) $0 $0 ($8,848,060) ($8,848,060)
Operating Budget $76,876,910 $6,000,000 ($3,304,550) $79,572,360
Original $28,660,750 $0 N/A $28,660,750
New Requests (Exh B) $0 $0 $1,050,980 $1,050,980
Carry Forwards (Exh E) $0 $0 $51,378,513 $51,378,513
Technical (Exh F) $0 $0 $101,760 $101,760
COVID Net Reduction (Exh H) $0 $0 ($4,909,700) ($4,909,700)
Capital Outlay $28,660,750 $0 $47,621,553 $76,282,303
Debt Service $7,408,320 $0 $0 $7,408,320
Net Appropriations $112,945,980 $6,000,000 $44,317,003 $163,262,983
Original Transfers $34,501,270 $0 $0 $34,501,270
Technical (Exh F) $0 $0 $199,590 $199,590
COVID Reductions (Exh H) $0 $0 ($2,107,520) ($2,107,520)
COVID Increases $0 $3,500,000 $0 $3,500,000
Transfers $34,501,270 $3,500,000 ($1,907,930) $36,093,340
Total Appropriations $147,447,250 $9,500,000 $42,409,073 $199,356,323
Proj. Ending Balance $127,354,152 ($6,000,000) $22,681,178 $144,035,330
112
Additional Staff Comments: Responding to questions that arose during first reading:
• Municipal office construction at Rio Grande Place is on budget at this time. Estimated
completion of the project is being assessed as project work has been delayed due to the
impacts of public health orders on construction. Note that the threshold for the project
completion was set in the official borrowing documents a June 6, 2022.
• Other municipal office space renovation planned for the Armory building was anticipated
to commence once the new office space was completed and staff could move in. This
project was to be paid with cash in the City’s Asset Management Plan Fund. With the
current economic environment, staff has recommended a carryforward appropriation of
just $200,000 of the unspent funds from 2019, to allow for existing invoices to be paid.
The project otherwise recommended to be put on hold until a future date and $1,177,182
from past authority is recommended to be returned to fund balance.
• Excluding the proposed 50% reduction to the departmental savings program, cuts to
employee housing transfers, and more general reductions to supplies or training budgets
applied across the organizations, some other notable areas of impact tied to budget
reduction measures include:
2019 Reductions (Increases 2020 Opening Fund Balance):
o ComDev – File and plan set scanning ($31,160); Uphill Economy – City
Contribution ($36,010)
o Asset – Old Powerhouse preservation project funding ($709,999)
o Streets – Routine Paving ($875,000)
o Engineering – Paving 4th St Design and Construction ($107,510)
o Parks – Cozy Point ($209,100); Parks Campus Drainage & Paving ($147,899);
Tiehack / Maroon Creek Bridges Concrete Repairs ($60,000); Oklahoma Flats
Trail Railing Replacement ($36,333)
o Transportation – Rubey Park Bus Terminal Maintenance ($30,000)
o Stormwater – Park Avenue Conveyance Project ($100,000)
o Water – Reclaimed Waterline ($100,000)
o Parking – 30 Additional Parking Spaces in Garage Design ($89,135)
o Employee Housing –Water Place II Design ($2,978,616)
2020 Reductions:
o Asset – Armory Renovation ($740,000)
o Streets – General Fund Fleet Replacements ($204,000)
o Conservation – EV Charging Station ($70,000)
o Engineering – Galena & Main ($70,000); Ute Ave. Traffic Calming and Trail
Connection ($100,000 – partial reduction)
o Env. Health – Rio Grande Recycling Cardboard Compactor ($125,000)
o Parks – Galena Plaza Corridor ($500,000); Glory Hole Park ($200,000); Maroon
Creek Trail Improvements ($160,000); Snowmaking ($150,000); John Denver
Sanctuary Interpretation ($90,000 – partial reduction); Herron Park Playground
($65,000 – partial reduction)
o Wheeler Opera House – Loading Dock & Landscaping ($291,000); Pavers &
Snowmelt ($255,000); Lighting & Audio Equipme nt ($137,000 – partial reduction)
o Kids First – Childcare Capacity Planning & Design ($150,000) 113
• Finally, with regards to staffing, the proposed budget reductions reflect the following
actions around personnel:
o All merit increases were suspended beginning April 1;
o All goals and outcome bonuses were eliminated for 2020;
o 55 part-time positions at the Wheeler Opera House, Recreation and Red Brick
Center for the Arts were laid off as of April 1, 2020 (paid through March 31);
o Rehiring of the following full-time positions has been frozen:
▪ Accountant
▪ Communication Specialist II (shared with EHS / Comms)
▪ Communication Specialist II (shared with Police / Comms)
▪ Field Inspection Manager
▪ Kids First Resource Teacher Intern
▪ Open Space and Natural Resources Manager
▪ Operations Manager (Recreation – Ice)
▪ Community Development Planner
▪ Community Development Sr. Planner
▪ Systems Analyst – Parks, Recreation, Golf
▪ Operations Assistant – Wheeler Opera House
▪ Recreation Specialist II
o 24 seasonal positions at Parks and Open Space and Golf have been filled using
full-time staff from the Wheeler, Clerks, Kids First, Parking, Special Events and
Recreation departments to maintain employment for these staff members and
allowing for a quick reassignment to their home departments when faci lities are
able to re-open and programs can commence.
Recommendations: Staff recommends approval of the revised spending plan for 2020, allowing
for the re-appropriation of one-time capital and operational project budgets that lapsed at the
end of 2019, approval of new requested funding, and to also reduce spending in other areas to
respond to a new economic environment.
City Manager Comments:
114
CITY OF ASPEN 2020 APPROPRIATIONS BY FUNDExhibit AFund NameProjected Opening Balance2020 Adopted RevenueOrdinances #4 & #52020 Spring Supplemental2020 Amended Revenue Budget2020 Adopted ExpenseOrdinances #4 & #52020 Spring Supplemental2020 Amended Expense Budget2020 Ending BalanceGeneral Governmental Fund 001 ‐ General Fund$21,738,324$36,091,050 $3,500,000 ($3,493,260) $36,097,790$36,709,130 $3,500,000 ($493,000) $39,716,130$18,119,984Subtotal General Gov't Funds$21,738,324$36,091,050 $3,500,000 ($3,493,260) $36,097,790 $36,709,130 $3,500,000 ($493,000) $39,716,130$18,119,984Special Revenue Governmental Funds100 ‐ Parks and Open Space Fund$7,722,372$13,692,910 $0 ($4,214,700) $9,478,210$14,180,960 $0 ($1,202,628) $12,978,332$4,222,250120 ‐ Wheeler Opera House Fund$32,616,443$5,865,220 $0 ($1,972,000) $3,893,220 $5,459,320 $3,500,000 $1,084,691 $10,044,011$26,465,652130 ‐ Tourism Promotion Fund$103,630$2,993,610 $0 ($1,240,900) $1,752,710$2,991,800 $0 ($940,900) $2,050,900($194,560)131 ‐ Public Education Fund$0$2,920,000 $0 ($823,000) $2,097,000$2,920,000 $0 ($823,000) $2,097,000$0132 ‐ REMP Fund$5,238,857$914,010 $0 $0 $914,010 $1,945,400 $0 $0 $1,945,400$4,207,467141 ‐ Transportation Fund$7,714,320$5,404,090 $0 ($1,325,100) $4,078,990$6,809,520 $0 ($1,157,860) $5,651,660$6,141,650150 ‐ Housing Development Fund$48,525,279$21,687,160 $0 ($4,359,000) $17,328,160 $16,488,840 $1,000,000 $13,695,697 $31,184,537$34,668,902152 ‐ Kids First Fund$6,279,775$2,334,325 $0 ($679,000) $1,655,325 $2,709,290 $1,500,000 ($432,440) $3,776,850$4,158,250160 ‐ Stormwater Fund$1,673,013$1,436,490 $0 $0 $1,436,490 $1,364,030 $0 $75,507 $1,439,537$1,669,966Subtotal Special Revenue Funds$109,873,689$57,247,815 $0 ($14,613,700) $42,634,115 $54,869,160 $6,000,000 $10,299,067 $71,168,227$81,339,577Debt Service Governmental Fund250 ‐ Debt Service Fund$1,026,470$6,244,110 $0 $0 $6,244,110 $6,238,030 $0 $0 $6,238,030$1,032,550Subtotal Debt Service Fund$1,026,470$6,244,110 $0 $0 $6,244,110 $6,238,030 $0 $0 $6,238,030$1,032,550Capital Projects Governmental Funds000 ‐ Asset Management Plan Fund$47,271,740$9,723,680 $0 ($111,000) $9,612,680$3,502,700 $0 $28,615,536 $32,118,236$24,766,184Subtotal Capital Fund$47,271,740$9,723,680 $0 ($111,000) $9,612,680 $3,502,700 $0 $28,615,536 $32,118,236$24,766,184Enterprise Proprietary Funds421 ‐ Water Utility Fund$8,189,182$10,162,120 $0 ($699,300) $9,462,820$11,973,150 $0 $1,266,455 $13,239,605$4,412,397431 ‐ Electric Utility Fund$5,161,141$10,169,550 $0 ($1,106,600) $9,062,950$10,083,450 $0 $1,746,775 $11,830,225$2,393,866451 ‐ Parking Fund$7,082,783$4,939,030 $0 ($1,522,500) $3,416,530$8,429,050 $0 ($145,137) $8,283,913$2,215,400471 ‐ Golf Course Fund$576,062$2,578,450 $0 ($856,110) $1,722,340$2,341,270 $0 ($312,535) $2,028,735$269,667491 ‐ Truscott I Housing Fund$894,922$2,401,400 $0 $0 $2,401,400 $2,268,290 $0 $323,467 $2,591,757$704,565492 ‐ Marolt Housing Fund$2,041,095$1,453,120 $0 $0 $1,453,120 $2,457,590 $0 $266,680 $2,724,270$769,945Subtotal Enterprise Funds$23,945,185$31,703,670 $0 ($4,184,510) $27,519,160 $37,552,800 $0 $3,145,705 $40,698,505$10,765,840Internal Proprietary Funds501 ‐ Employee Benefits Fund$3,867,693$5,538,880 $0 $0 $5,538,880 $5,806,600 $0 $0 $5,806,600$3,599,973505 ‐ Employee Housing Fund$3,902,169$2,576,640 $0 ($1,797,520) $779,120 $421,410 $0 $666,775 $1,088,185$3,593,104510 ‐ Information Technology Fund$970,788$2,369,740 $0 $0 $2,369,740 $2,347,420 $0 $174,990 $2,522,410$818,118Subtotal Internal Service Funds$8,740,650$10,485,260 $0 ($1,797,520) $8,687,740 $8,575,430 $0 $841,765 $9,417,195$8,011,195ALL FUNDS$212,596,058$151,495,585 $3,500,000 ($24,199,990) $130,795,595 $147,447,250 $9,500,000 $42,409,073 $199,356,323$144,035,330Less Interfund Transfers$34,501,270 $3,500,000 ($1,907,930) $36,093,340$34,501,270 $3,500,000 ($1,907,930) $36,093,340NET APPROPRIATIONS$116,994,315 $0 ($22,292,060) $94,702,255 $112,945,980 $6,000,000 $44,317,003 $163,262,983Revenues Expenses
115
Revenue
Department/Description New Revenue Transfer
Asset Management Plan Fund: Because of CDOT grant funding requirements, the timeline for completion
of the Garmisch Bus Stop and Pedestrian Improvements project was advanced one year. The grant
redistributed cost sharing between the Transportation fund and the Asset Management fund, reducing the
original transfer amount of $156,000 from Transportation to $45,000.
$0 ($111,000)
000 ‐ Asset Management Fund Total: $0 ($111,000)
Transfer from Wheeler Opera House Fund: Transfer from the Wheeler Fund to cover a portion of the grant
review process assessment and overhaul, managed by the Quality Office within the Manager's Office. See
"New Requests" for further specifics around this ask.
$0 $9,000
Transfer from Multiple Funds: Transfers from non‐General Fund departments associated with the Central
Savings program per City Financial Policies, equal to 10% of operational savings in the preceding year.
$0 $93,590
City Manager Subtotal: $0 $102,590
Net Zero Impact ‐ 100% Grant funded Food Safety Program: The Environmental Health and Sustainability
Department was awarded two grants for a total of $6,000 to enhance the food safety program in the City of
Aspen. The first provides $3,000 to go towards providing food safety trainings for restaurants which can
cover costs such as language translation services, materials and supplies, and refreshments for the
trainings. The second, also for $3,000, goes to cover travel and lodging expenses plus registration for the
Food Program Manager to attend two conferences on food protection. One is put on by the FDA and the
other by the state of Colorado. This request is to extend spending authority in the lines listed to allow for
the use of the awarded grant dollars
$6,000 $0
Net Zero Impact ‐ 100% Grant funded Radon Program: EH&S requests the budget authority for a Radon
Reimbursement Grant budget of $4,880. With this grant, staff provides radon test kits and education to
residents in Aspen. Staff will provide training to the public on radon awareness in real estate transactions.
As part of the City's Radon Program staff will assistant homeowners with high radon by providing
information on how they can lower their lung cancer risk by installing radon mitigation and lowering radon
levels below the EPA action level of 4 pCi/L. Radon grant dollars also cover the cost of the department's
multi‐media outreach campaign on radon, including social media, newspaper ads, banners on Main Stand
informational post cards and posters posted throughout the community.
$4,880 $0
Environmental Health Subtotal: $10,880 $0
001 ‐ General Fund Total: $10,880 $102,590
Wheeler: Aspen Public House Pipe Repair & On Going Maintenance: An unexpected repair to the pipe
that carries grease from the restaurant floor drains and dishwashing stations was required in order for the
restaurant to continue running efficiently and safely. This pipe must be maintained and pumped monthly in
order to abide with the required building code. In order to ensure that the tenant properly maintains this
item, Wheeler will schedule and oversee vendor in the monthly process ($750/month) and will charge the
cost back to the tenant in the monthly rent bill.
$9,000 $0
120 ‐ Wheeler Opera House Fund Total: $9,000 $0
2020 SPRING SUPPLEMENTAL REVENUE DETAIL
116
Revenue
Department/Description New Revenue Transfer
Updated revenue projection: Based on current trends revenue projections for Fire Charge ($25,500) and
Raw Water ($54,000) were increased.
$79,500 $0
Grant Funded: The Bureau of Reclamation grant will be used to implement water AMI and meter
replacement projects.
$500,000 $0
421 ‐ Water Utility Fund Total: $579,500 $0
Updated revenue projection: Based on current trends revenue projections for Electric Development Fee
($18,000) were increased.
$18,000 $0
Transfer from Water Utility Fund: Revised apportionment of the automated metering (AIM) project
between the two utility funds based on the benefits provided to each fund. A corresponding expense is
shown in the "Technical" section of this Spring Supplemental, with the result being a slightly smaller cost
burden to the Electric Utility.
$0 $208,000
431 ‐ Electric Utility Fund Total: $18,000 $208,000
Total Revenue / Transfers In:$617,380 $199,590
117
Exhibit B ‐ New Requests
Department/Description Operating Capital
50486 Garmisch Bus Stop and Pedestrian Improvements: CDOT awarded the City of Aspen a $600,000 grant
for the Garmisch Bus Stop and Pedestrian Improvements project. This is a reimbursement grant that
requires the project be completed by the end of 2021. The design work needs to be completed by fall of
2020, in order to solicit bids, conduct public outreach, and start construction in 2021. Funding and project
timelines need to be accelerated in order to meet the grant deadline. $156,000 was planned to be spent in
2021; however, this will need to be moved up to 2020 and the planned construction ($939,000) will be
moved to 2021. The current funding requirement from the Transportation fund and the AMP fund will be
reduced by $300,000 each. One‐time
$0 $156,000
Ice Garden Sanitary Sewer Replacement: The discharging sanitary sewer on the north east corner of the Ice
Garden Center is in poor condition and could shut down the center if a break occurs. Funds would replace
approximately one block of pipe. Roots and age have minimized the current capacity of discharge and staff
anticipates this section of pipe to have remaining limited life. The project originally started under the Asset
group to finalize design and was transferred to Engineering for construction in the summer of 2019. One‐
time
$0 $134,000
Airport Signal Repair: City Council approved the placement of a foundation and replacement of the light
pole that was damaged by a City vehicle on April 14, 2020 by Resolution #027. CDOT requested the City
proceed with the contracting and management of the project to reduce the cost by up to 25% and decrease
the time needed for placement of the signal. An insurance claim will be potentially required to cover cost
after placement is complete. One‐time
$0 $75,980
000 ‐ Asset Management Fund Total: $0 $365,980
City Manager Administrative Assistant (0.7 FTE): The City Manager’s Office previously shared a position
with the Finance Department to perform two full time functions, that of an Administrative Assistant for the
Manager’s Office as well as the City’s Procurement Officer. With the departure of this tenured individual,
the City has evaluated the needs of the organization and requests that these two roles be separated and
funded at a higher level to allow for a net increase of 1.0 FTE across the organization. Given the City's
volume of procurement and the needs of the Manager’s Office (including Council support), broadening the
expectations of these two positions to match the demands associated with both roles necessitates two full
time staff. On‐going
$61,640 $0
Arts, Nonprofit, HHS Grant Program Evaluation: Based on feedback through previous award cycles, City
Staff has initiated a RFQ to seek out an organization to help administer an evaluation of the City’s grant
application and award process. This evaluation will include all grant awarding, including health and human
services (HHS), parks, recreation and the arts. The cost of the evaluation is estimated at $18,000 and is
proposed to be split between the General Fund and the Wheeler Opera House Fund. One‐time
$18,000 $0
City Manager Subtotal $79,640 $0
2020 SPRING SUPPLEMENTAL NEW REQUESTS
118
Exhibit B ‐ New Requests
Department/Description Operating Capital
Procurement Officer (0.3 FTE): The City Manager’s Office previously shared a position with the Finance
Department to perform two full time functions, that of an Administrative Assistant for the Manager’s Office
as well as the City’s Procurement Officer. With the departure of this tenured individual, the City has
evaluated the needs of the organization and requests that these two roles be separated and funded at a
higher level to allow for a net increase of 1.0 FTE across the organization. Given the City's volume of
procurement and the needs of the Manager’s Office (including Council support), broadening the
expectations of these two positions to match the demands associated with both roles necessitates two full
time staff.
The Procurement Officer role has changed to require a much higher level of engagement, including
increased audit and compliance, legal, and award disclosure requirements. Because of these changes and of
the separation from the administrative roles previous layered on this position, the cost of this FTE is higher
than previously budgeted. On‐going
$32,830 $0
Software Hosting Costs: Due to the delay in implementing new sales and lodging tax software, the Finance
Department is covering the maintenance and hosting costs for the legacy system longer than expected. The
additional cost for the year is slightly less than $9,000 and provides for technical assistance with the system
that continues to be "temperamental". Ultimately, Finance would like to turn on the new system in Oct/Nov
to take advantage of the functionality of the new system, but understands that the current environment is
not the right moment to make the system live. One‐time.
$8,800 $0
Finance Subtotal:$41,630 $0
Fee‐in‐Lieu Study Extension: In August of 2019, City Council approved a professional services contract with
White and Smith, in partnership with TischlerBise, for a study of Aspen's Fee‐in‐Lieu (FIL) for affordable
housing mitigation. The study is evaluating the calculation, updates methods, legal sufficiency of related
code language and methodology, and relationship of the FIL to the Affordable Housing Credits Program. The
report will make recommendations for improvements to the program. Per Council direction following
discussion of the report, a new contract with the consultant team would provide direction on any additional
requested analysis. One‐time
$25,000 $0
Planning Subtotal:$25,000 $0
001 ‐ General Fund Total: $146,270 $0
Theater Project Study Phase II ‐ Organizational Assessment: Following input from City Council in Fall 2019,
the Wheeler Opera House staff increased the scope of work for the Theatre Projects 2019 contract (Phase I
Feasibility Study). Phase II will include conducting an organizational/departmental review of the Wheeler
Opera House to determine the Wheeler's success in meeting its strategic goals over the last five years as well
as a review and recommendations for the long‐term sustainability and organization of the department. This
additional scope of work will include operations analysis, staff interviews and final recommendations. The
study beings on March 29 and will be completed by July 1, 2020. One‐time
$35,000 $0
119
Exhibit B ‐ New Requests
Department/Description Operating Capital
Aspen Public House Pipe Repair and Maintenance: An unexpected repair ($9,000) to the pipe that carries
grease from the restaurant floor drains and dishwashing stations was required in order for the restaurant to
continue running efficiently and safely. This pipe must be maintained and pumped monthly in order to abide
with the required building code. In order to ensure that the tenant properly maintains this item, Wheeler
will schedule and oversee vendor in the monthly process ($750/month) and will charge the cost back to the
tenant in the monthly rent bill.
$17,000 $0
120 ‐ Wheeler Fund Total: $52,000 $0
Yellow Brick Entrance Concrete Repair: The entrance landings and stairs have been deteriorating for a
number of years. The plan calls for removing the existing paint, patching, and cleaning the concrete stairs
and landings at east and west main entrances, repairing and encapsulating the steel stair nosing’s in an
epoxy paint, and adding a clear protective coating to the concrete surfaces. With a focus on historic
sensitivity, this process will improve the aesthetics at the entrances and protect the stairs from further
deterioration. This work is expected to last for ten years with minor touch ups. One‐time
$0 $45,000
152 ‐ Kid's First Fund Total: $0 $45,000
50745 Drying Bed Maintenance and Rebuild: The backwash pond for the clarifier residuals needs to have
the materials removed and taken to the landfill. The second piece of the project is to rebuild the drying bed
for placement of the new materials stored from the plant. One‐time
$0 $160,000
421 ‐ Water Utility Fund Total: $0 $160,000
Renovations of Existing Employee Housing Units: Units within the current City of Aspen inventory have
been occupied for decades without significant improvements. As these units turnover, the City needs to
perform renovations to make them livable for new tenants. The prior City Manager unit on Cemetery Lane
will be renovated and converted into two units, providing additional housing in the city. Units at Water
Place need carpet, paint, and countertop replacements, plus one unit needs changes to plumbing for kitchen
and laundry locations. The proposed renovations will give these units new or extended useful life and help
the City to ensure an appropriate level of housing for its staff. One‐time.
$0 $480,000
505 ‐ Employee Housing Fund Total: $0 $480,000
Total New Requests ‐ Operating / Capital:$198,270 $1,050,980
120
Exhibit C ‐ Savings
2020 DEPARTMENTAL SAVINGS
Fund/Department Central Savings "10%" Department Savings "50%"
City Clerk (113)$20 $27,290
City Manager (114)$455,550 $285,650
Human Resources (115)$8,920 $44,120
City Attorney (116)$3,530 $80,380
Finance (117)$12,910 $321,960
Asset Management (119)$8,420 $41,580
Planning (122)$6,050 $144,800
Building (123)$2,430 $32,520
Police (221)$8,920 $44,120
Streets (321)$4,180 $290,080
Engineering (327)$7,210 $35,070
Environmental Health (431)$5,230 $102,210
Special Events (532)$6,220 $133,070
Recreation / ARC / AIG (Based on Subsidy) ‐ 542 $10,680 $109,500
Red Brick Center for the Arts (552)$7,290 $78,150
001 ‐ General Fund $547,560 $1,770,500
100 ‐ Parks and Open Space Fund $960 $104,970
120 ‐ Wheeler Opera House Fund $0 $0
141 ‐ Transportation Fund $6,410 $161,980
152 ‐ Kids First Fund $5,950 $127,460
160 ‐ Stormwater Fund $24,110 $122,790
421 ‐ Water Utility Fund $0 $252,830
431 ‐ Electric Utility Fund $42,950 $356,870
451 ‐ Parking Fund $0 $55,550
471 ‐ Golf Fund $5,210 $73,210
510 ‐ Information Technology Fund $0 $167,020
Total Savings to Be Appropriated $633,150 $3,193,180
Total Central / Departmental Savings: $3,826,330
The purpose of allowing carryforward savings is to provide an additional incentive for frugality by operating departments.
Unlike traditional governments, which have a “use it or lose it” approach to annual operating budgets, Aspen’s policy
encourages departments to create savings in their annual operating budgets. Savings in annual operating budgets are
distributed as follows:
50% of the savings are carried forward into the appropriate department’s savings account.
10% is allocated to a Central Savings account.
40% is returned to the appropriate fund balance.
Carryforward Savings represent 50% of the previous year’s operating budget savings from individual Departments or Funds.
Departments and Funds are allocated these amounts as a reward for finding efficiencies in their operations that meet their
operating goals while spending less than their appropriations. Prior year savings that are not expended are maintained in
full and appropriated every year unless directed otherwise by the City Manager. These appropriations can be spent on
items related to the Department’s or Fund’s mission but may not be used for ongoing expenditures. If a particular
expenditure was denied as part of the budget process, departmental savings may not be used for this purpose without City
Manager approval. Expenditures of $10,000 or more must be approved by the City Manager. Departments and Funds can
accrue these savings to a maximum of 15% of their operating budgets.
*City of Aspen financial policies, adopted December 11, 2017.
Note: Financial constraints related to the COVID19 pandemic mean that the 2020 departmental carryforward amount
ill b ddb50%121
Exhibit D ‐ Operation Carry Forwards
2020 OPERATIONAL CARRY FORWARDS
Department/Description Amount
ERP ‐ Support Contract ‐ Funds will be used to support benefits/payroll configuration, benefits self‐service,
open enrollment, and other Human Resources related systems.
$15,000
Human Resources Subtotal: $15,000
ERP ‐ Support Contract ‐ Funds will be used to support payroll, procurement, reporting, and configuration
of various finance related systems.
$41,700
Finance Subtotal: $41,700
Historic Preservation Review Sheets ‐ Approved by Council on November 27, 2017. In 2017, Community
Development Staff undertook enforcement on a historic preservation project where work was taking place
contrary to HPC approvals and building permits. The enforcement action resulted in a $30,000 financial
assurance the owner was required to post during construction that would not be refunded. Council
approved moving the forfeited funds into ComDev's operating budget to create new processes to prevent
future violations. Phase 1 of this project was completed in 2018, and resulted in a number of suggested
Phase 2 implementation steps. Progress was made in 2019, but other workload, in particular Council
directed amendments to preservation benefits, took priority. One‐quarter of the original budget remains
and will be used to conclude the project in 2020.
$6,980
Historic Preservation Benefits Outreach ‐ Approved by Council May 29, 2018. City Council identified
amendments to historic preservation benefits as a priority in 2018, and authorized staff to conduct public
outreach. Although outreach, such as an online survey, was completed, staff did the work in‐house and
funding was not used. Adoption of the requested amendments took until summer 2019 to complete. Staff
would like to focus the unspent funds, plus additional savings in the Community Development Department
budget, promoting remaining benefits. This could include developing a technical assistance program on the
care of historic buildings and public education tools about Aspen's designated properties, such as creating
a book, brochures, or marker program.
$35,000
Electronic Permit System Training ‐ Council approved funds for the design, build, and implementation of a
new permits management system for the City. All development permits are live in the system, and land
use applications are just starting to be put into the system. These funds will be used to train both staff and
stakeholders in the system's operation. In addition, we need to invest funds to train staff involved with
system administration to increase internal capacity to address ongoing maintenance and system issues.
$30,870
Wireless Facilities Design Guidelines and Public Outreach ‐ Approved August 8, 2019. Staff request funds
be carried forward to complete the final work on the Wireless Communications Facilities Design Guidelines
to ensure the City has robust requirements related to wireless facilities, particularly in the right‐of‐way.
Funds have thus far enabled staff to provide information to the community about the changed local
regulations in response to state and federal rules, as well as provided an opportunity for the community to
weigh in on other changes they desire. Council passed Ordinance #3 Series 2020 on April 28, 2020.
$30,260
122
Exhibit D ‐ Operation Carry Forwards
Department/Description Amount
Census Organizing Project ‐ Approved on April 9, 2019. In 2018, Council approved the Census Organizing
Project to develop and execute a plan for the City of Aspen to assist with the 2020 U.S. Census. These funds
need to be carried forward in order to complete the project and support the City's collaborative efforts
with Census project partners valley‐wide.
$16,190
Affordable Housing Fee‐in‐Lieu Update ‐ Approved on August 26, 2019. The land use code requires an
update to the cash‐in‐lieu charged for affordable housing mitigation every five years. City Council
requested this study be accelerated by a year and completed in 2019. The project focuses on more Aspen‐
specific costs, rather than national or statewide averages as the current fee does. Additionally, the fee will
be updated to reflect the elimination of categories 6 and 7 in the Housing Guidelines. The rollover of these
funds from 2019 will allow the contract for White and Smith, in partnership with TischlerBise, to complete
the FIL report.
$33,450
Lift 1A Planning ‐ Approved by Council in 2019 as a supplemental funding request. Staff requests carryover
of the supplemental funding to address potential additional review and partnership needs that may arise
as part of the ongoing Lift 1 process. All stakeholders are working together in moving forward with final
development applications for the project. As the City is heavily involved in this effort, funds will assist the
City in covering miscellaneous additional expenses that may arise, including any costs related to seeking a
tramway board variance, community outreach, and additional work that may be needed as the proposal is
revised and finalized.
$15,000
Community Development Subtotal: $167,750
001 ‐ General Fund Total: $224,450
Aggregate Equipment/Maintenance/Repair Carry Forwards $466,780
Aggregate PC Replacement Carry Forwards $339,480
Aggregate Workstation Replacement Carry Forwards $19,220
Other Operational Carry Forward Requests Total: $825,480
Total Operational Carry Forward Requests:$1,049,930
123
Exhibit E ‐ Capital Carry Forwards
2020 CAPITAL CARRY FORWARDS
Project Title
Lifetime
Budget
2019 Carry
Forward
Completion
Estimate
50922 HWY 82 Roundabout Evaluation $128,000 $128,000 Fall 2020
50486 Garmisch Bus Stop and Pedestrian Improvements $1,416,000 $111,365 Fall 2022
50473 Paving 4th Street Design and Construction $110,000 $0 Fall 2020
50903 Summer Road Improvements ‐ 2019 $70,000 $22,000 Fall 2020
50488 Ute Avenue Traffic Calming and Trail Connection $240,000 $52,500 Spring 2021
50844 Phase 1 Main St Improvements to signals with CDOT Coordination $40,000 $40,000 Spring 2021
50842 City Survey Monument Maintenance $20,000 $8,961 Summer 2020
Engineering Subtotal: $362,826
50952 ARC Downstairs Remodel $450,000 $100,000 12/1/2020
50360 AIG Cooling Tower replacement $85,000 $84,728 11/1/2020
50956 Water Feature Replacement $95,000 $44,277 12/1/2020
50945 Sound Baffling $90,000 $34,617 10/1/2020
50797 ARC Siding $15,000 $10,522 10/31/2020
Recreation Subtotal: $274,144
50064_APD Project $22,861,668 $9,758 9/1/2020
50074_Pedestrian Mall ‐ Planning and Design (ONLY) $1,942,000 $979,782 12/31/2020
50060_Old Powerhouse Preservation Project $3,551,700 $0 12/31/2024
51112 City Offices ‐ 425 Rio Grande $33,040,260 $26,307,409 12/31/2021
51113 City Offices ‐ Armory Renovation $13,911,660 $200,000 12/31/2024
51114 City Offices ‐ Existing Rio Grande Building $1,200,000 $1,200,000 12/31/2021
51120 Rio Grande Place Road Base Improvements $379,300 $24,380 12/31/2020
Asset Management Subtotal: $28,721,329
51059 Core City Network ‐ AMP ‐ 2019 $195,700 $195,700 7/1/2021
Information Technology Subtotal: $195,700
50259_Electronic Permitting System $719,350 $19,262 6/1/2020
Community Development ‐ Planning Subtotal: $19,262
50829 Electrical Restraint Device and Cameras $89,000 $31,055 12/31/2020
51012 Dispatch Center Equipment ‐ 2019 $113,200 $113,200 12/31/2020
Police Subtotal: $144,255
51014 Fleet ‐ 2019 $585,800 $237,600 2/29/2020
51016 Electrical ‐ Streets Facilities ‐ 2019 $54,200 $0 11/30/2020
50834 Exterior Streets Facilities 2018 $48,200 $0 11/30/2020
Streets Subtotal: $237,600
000 ‐ Asset Management Fund Total:$29,955,116
50309_Castle Creek Music School Trail $1,109,000 $1,109,000 9/30/2020
51186 Galena Plaza and Pedestrian Corridor $1,226,120 $163,598 10/31/2021
50974 Parks Campus Drainage and Paving $150,000 $0 10/31/2020
50285_Cozy Point Grading/Drainage Improvements $180,000 $0 10/31/2020
50977 Cozy Point Ranch Management Plan Implementation* $250,000 $0 10/31/2020
51001 Tiehack / Maroon Creek Bridges Concrete Repairs $60,000 $0 10/31/2020
50971 Fleet ‐ Parks ‐ 2019 $349,000 $47,721 6/30/2020 124
Exhibit E ‐ Capital Carry Forwards
Project Title
Lifetime
Budget
2019 Carry
Forward
Completion
Estimate
50779 Oklahoma Flat Trail Railing Replacement $55,000 $0 8/31/2020
50872 John Denver Sanctuary $94,579 $30,834 8/31/2020
50078_Hunter/Smuggler Co‐Op Implementation ‐ Recreation $125,000 $0 11/30/2020
50322 Glory Hole Park $225,000 $0 10/31/2020
51111 Lift 1A/Dolinsek Planning $30,000 $5,000 10/31/2021
50986 Irrigation Efficiency Improvements $200,000 $17,839 10/31/2020
50772 Archery Range Improvements $15,000 $0 10/31/2020
100 ‐ Parks and Open Space Fund Total:$1,373,992
51036 Production Improvements ‐ 2019 $166,550 $106,577 5/1/2020
51030 Interior ‐ Wheeler Opera House ‐ 2019 $57,000 $15,277 6/1/2020
51042 Core City Network ‐ Wheeler ‐ 2019 $6,000 $6,000 12/31/2020
51041 Wheeler Building and Site Improvements $2,283,420 $1,775,415 11/1/2020
51031 Electrical ‐ Wheeler Opera House ‐ 2019 $124,000 $103,722 12/31/2020
120 ‐ Wheeler Opera House Fund Total:$2,006,991
51109 CMAQ Grant for WE‐Cycle Stations and Equipment $180,000 $180,000 12/31/2020
51085 Rubey Park Maintenance ‐ 2019 $138,400 $0 12/31/2020
141 ‐ Transportation Fund Total:$180,000
50542_PPP Development Rental Housing $25,650,000 $13,595,215 12/31/2020
51225 Lumber Yard Housing Development $76,675,000 $61,960 12/31/2028
51088 Burlingame Phase 3 ‐ Public Outreach and Design $500,000 $38,102 12/31/2024
150 ‐ Housing Development Fund Total:$13,695,277
51020 Park Avenue Stormwater Conveyance ‐ 2019 $100,000 $0 12/1/2020
50849 Master Planning ‐ River Management Plan Phase II $60,000 $60,000 12/1/2020
51021 Mud and Debris Flow Alert System ‐ 2019 $50,000 $50,000 12/1/2020
50129_Aspen Mtn Drainage Basin Improvements $250,506 $30,896 4/1/2020
50126_SW Master Planning 2016 $225,000 $31,637 12/1/2020
50850 Master Planning ‐ Riparian Area Master Plan $60,000 $19,134 6/1/2020
160 ‐ Stormwater Fund Total:$191,667
50135_Reclaimed Waterline Completion at ACSD $1,742,910 $0 2022 ‐ 2023
50132_New Equipment Storage Building $880,000 $312,733 12/31/2020
50565 Castle Creek Headgate/Pipeline $160,000 $124,950 12/31/2020
50568 Reservoir and Water Treatment Plant and Improvements $120,000 $119,915 12/31/2020
50745 Backwash Pond ‐ Master Plan & Solids Mitigation $1,110,000 $81,778 12/31/2020
50566 Maroon Creek Headgate/Pipeline $160,000 $67,401 12/31/2020
50939 Maroon Creek Hydro Building Repairs $60,000 $59,024 12/31/2020
50942 Integrated Resource Plan $275,000 $51,895 2020‐2021
50573 Altitude Valve at Tiehack Tank $50,000 $50,000 12/31/2020
50937 WTP Campus ‐ Exterior Building Improvements $645,000 $47,600 12/31/2022
50927 Fleet ‐ Water ‐ 2019 $45,000 $45,000 12/31/2020
50755 USGS Gaging Stations ‐ 2018 $40,000 $40,000 12/31/2020
50556_Water Site Maintenance $125,000 $34,872 12/31/2020
51079 Core City Network ‐ Water ‐ 2019 $12,700 $12,700 12/31/2021
50571 12 Inch Line to Tiehack Tank Feed $1,835,000 $12,614 12/31/2020
50933 Kayak Course Improvements ‐ 2019 $10,000 $10,000 12/31/2020
50265_Core City Network ‐ Water ‐ 2016 $8,240 $1,163 12/31/2021
421 ‐ Water Utility Fund Total:$1,071,645
125
Exhibit E ‐ Capital Carry Forwards
Project Title
Lifetime
Budget
2019 Carry
Forward
Completion
Estimate
50594 Electric AMI ‐ Mesh Network $1,800,000 $1,776,620 2021‐2022
50891 Electric System Replacement ‐ 2019 $200,000 $35,000 12/31/2020
50595 Other Renewable Opportunities ‐ 2018 $50,000 $0 2021‐2022
50897 Core City Network ‐ Electric ‐ 2019 $3,500 $3,500 12/31/2021
50266_Core City Network ‐ Electric ‐ 2016 $2,580 $1,395 12/31/2021
431 ‐ Electric Utility Fund Total:$1,816,515
51119 30 Additional Parking Spaces $95,000 $0 12/31/2020
50605 Kiosk ‐ Airport $110,000 $16,673 7/20/2020
51026 Core City Network ‐ Parking ‐ 2019 $6,000 $6,000 12/31/2020
50267_Core City Network ‐ Parking ‐ 2016 $5,600 $5,600 12/31/2020
451 ‐ Parking Fund Total:$28,273
50783 Fleet ‐ Golf ‐ 2018 $154,000 $0 12/31/2020
50203_Fleet ‐ Golf ‐ 2016 $135,250 $0 12/31/2020
51008 Core City Network ‐ Golf ‐ 2019 $10,350 $10,350 12/31/2020
50198_Exterior ‐ Golf and Nordic Clubhouse $7,400 $0 12/31/2020
51007 Golf Course Annual Improvements ‐ 2019 $10,000 $0 12/31/2020
50784 Facility Work ‐ Golf and Nordic Clubhouse $104,400 $0 12/31/2020
50271_Core City Network ‐ Golf ‐ 2016 $5,600 $2,045 12/31/2020
471 ‐ Golf Course Fund Total:$12,395
51072 Truscott Phase I ‐ 400‐1000 Roof and Gutter Replacement $657,427 $319,057 12/31/2020
50624 Truscott Asphalt Overlay $40,000 $0 12/31/2020
51073 Truscott Boiler in Clubhouse $25,000 $0 12/31/2020
51074 Truscott Clubhouse Deck Replacement $25,000 $0 12/31/2020
50854 Truscott Snow Removal Equipment Replacement $10,000 $0 12/31/2020
491 ‐ Truscott I Housing Fund Total:$319,057
51066 Marolt ‐ Full Exterior Paint & Repair $275,000 $275,000 11/1/2020
492 ‐ Marolt Housing Fund Total:$275,000
50231_540 Employee Housing ‐ Construction $5,426,830 $124,775 12/31/2020
50681_Water Place Phase II ‐ Design $3,350,000 $62,000 12/31/2021
505 ‐ Employee Housing Fund Total:$186,775
50237_Galena Plaza Fiber $125,000 $80,177 7/1/2021
51055 Small Cell ‐ 2019 $60,000 $60,000 12/31/2020
51043 Fiber Investments ‐ 2019 $115,000 $55,736 12/31/2020
51044 Network Services ‐ 2019 $86,000 $50,000 12/31/2020
50819 Microsoft Active Directory Upgrade $18,150 $11,635 12/31/2020
51048 CitySource Refresh ‐ 2019 $8,000 $0 12/31/2020
50879 Community Broadband – Create Aspen MeetMe Center $86,000 $4,193 12/31/2020
51107 Streets Generator $30,000 $4,069 9/1/2020
510 ‐ Information Technology Fund Total:$265,810
Total Capital Carry Forward: $51,378,513
126
Exhibit F ‐ Technical Adjustments
2020 TECHNICAL ADJUSTMENTS
Department/Description Operating Capital Transfer
Net Zero Impact ‐ The GIS flyover project (51252 GIS Aerial Photography ‐ 2020) update came in under
budget. The unspent authority (plus additional departmental savings) is requested within the Engineering
operational budget to pay for temporary labor costs to incorporate the updated data into the GIS layers.
$0 ($29,560) $0
000 ‐ Asset Management Fund Total:$0 ($29,560) $0
Tobacco Tax for Human Services: Revenues collected from the City's tobacco tax will be used to pay for a
portion of an intergovernmental agreement for the provision of mental health services in Pitkin County. The
adopted 2020 budget included $74,078 in funding for this IGA. The total cost to the City of the IGA is
$107,550. The resolution to adopt the agreement is scheduled to go before Council on May 12, 2020.
$33,420 $0 $0
Mayor and Council Subtotal: $33,420 $0 $0
Net Zero Impact ‐ 100% Grant funded Food Safety Program: The Environmental Health and Sustainability
Department was awarded two grants for a total of $6,000 to enhance the food safety program in the City of
Aspen. The first provides $3,000 to go towards providing food safety trainings for restaurants which can
cover costs such as language translation services, materials and supplies, and refreshments for the trainings.
The second, also for $3,000, goes to cover travel and lodging expenses plus registration for the Food
Program Manager to attend two conferences on food protection. One is put on by the FDA and the other by
the state of Colorado. This request is to extend spending authority in the lines listed to allow for the use of
the awarded grant dollars
$6,000 $0 $0
Net Zero Impact ‐ 100% Grant funded Radon Program: EH&S requests the budget authority for a Radon
Reimbursement Grant budget of $4,880. With this grant, staff provides radon test kits and education to
residents in Aspen. Staff will provide training to the public on radon awareness in real estate transactions.
As part of the City's Radon Program staff will assistant homeowners with high radon by providing
information on how they can lower their lung cancer risk by installing radon mitigation and lowering radon
levels below the EPA action level of 4 pCi/L. Radon grant dollars also cover the cost of the department's
multi‐media outreach campaign on radon, including social media, newspaper ads, banners on Main Stand
informational post cards and posters posted throughout the community.
$4,880 $0 $0
Net Zero Impact ‐ 100% Grant Funded: In late 2019, the Colorado Department of Local Affairs (DOLA)
awarded a $24,740 grant to the City of Aspen in support of ComDev's Uphill Economy initiative. The
Department requests that Council increase the Community Development Department's appropriation in the
amount of the grant to enable the Department to further the goals of the Uphill Economy program.
$24,740 $0 $0
Environmental Health Subtotal: $35,620 $0 $0
Net Zero Impact ‐ GIS Flyover Temporary Labor Support: In order to incorporate the scheduled 2020
flyover data, the City needs to bring in temporary labor to update the multiple GIS layers. Each
department's savings were reduced, as was project 51252 GIS Aerial Photography ‐ 2020 for the unneeded
authority that remained once the bids were collected.
$47,840 $0 $0
Engineering Subtotal: $47,840 $0 $0
001 ‐ General Fund Total:$116,880 $0 $0
127
Exhibit F ‐ Technical Adjustments
Department/Description Operating Capital Transfer
Transfer ‐ Arts, Non‐Profit, & HHS City of Aspen Grant Program Evaluation (50% Contribution)The City of
Aspen, led by the Quality Office, is completing an assessment of the overall grants program and has
completed vendor selection. The allocated amount needed to cover the cost of administering this evaluation
is estimated at $18,000 to be split between the City of Aspen General Fund and the Wheeler Opera House
Fund. The Wheeler's 50% project contribution ($9,000) was authorized but not budgeted for in the 2020
planning cycle. The Wheeler Arts Grants account for approximately 25% of the overall grant pool.
$0 $0 $9,000
120 ‐ Wheeler Opera House Fund Total:$0 $0 $9,000
Transfer ‐ Reduced the transfer to the Asset Management fund based on the timing and grant funding of
the 50486 Garmisch Bus Stop and Pedestrian Improvements project. See new requests for additional
details.
$0 $0 ($111,000)
141 ‐ Transportation Fund Total:$0 $0 ($111,000)
50568 Reservoir and Water Treatment Plant and Improvements: (Resolution #29 Apr 14, 2020)
Replacement of slide gates, overflow piping at reservoir, chara weed removal, East WTP flocculator rebuild,
replacing two filter inlet valves, and concrete repair work.
$0 $131,320 $0
Transfer ‐ Revised apportionment of the automated metering (AIM) project between the two utility funds
based on the benefits provided to each fund resulting in a slightly smaller cost burden to the Electric Utility.
$0 $0 $208,000
421 Water Utility Fund Total:$0 $131,320 $208,000
Workers' Compensation was not loaded in the system when the 2020 Budget Resolution was calculated for
adoption. This action corrects this oversight.
001 ‐ General Fund $185,760 $0 $0
100 ‐ Parks and Open Space Fund $70,260 $0 $0
120 ‐ Wheeler Opera House Fund $14,130 $0 $0
141 ‐ Transportation Fund $1,940 $0 $0
150 ‐ Housing Development Fund $1,330 $0 $0
152 ‐ Kids First Fund $2,170 $0 $0
160 ‐ Stormwater Fund $6,900 $0 $0
421 ‐ Water Utility Fund $27,200 $0 $0
431 ‐ Electric Utility Fund $13,880 $0 $0
451 ‐ Parking Fund $15,850 $0 $0
471 ‐ Golf Course Fund $9,610 $0 $0
491 ‐ Truscott I Housing Fund $1,220 $0 $0
492 ‐ Marolt Housing Fund $1,130 $0 $0
510 ‐ Information Technology Fund $720 $0 $0
Transfer: The City is updating its GIS maps with an updated flyover and costs are being distributed to
various user departments.
572 ‐ Parks and Open Space $0 $0 $1,000
132 ‐ Transportation $0 $0 $1,000
421 ‐ Kids First $0 $0 $500
328 ‐ Stormwater $0 $0 $1,000
322 ‐ Water $0 $0 $1,000
323 ‐ Electric $0 $0 $1,000
136 ‐ Parking $0 $0 $1,000
582 ‐ Golf Course $0 $0 $500
118 ‐ Information Technology $0 $0 $1,000
128
Exhibit F ‐ Technical Adjustments
Department/Description Operating Capital Transfer
Transfer: To Central Savings.
100 ‐ Parks and Open Space Fund $0 $0 $960
141 ‐ Transportation Fund $0 $0 $6,410
152 ‐ Kids First Fund $0 $0 $5,950
160 ‐ Stormwater Fund $0 $0 $24,110
431 ‐ Electric Utility Fund $0 $0 $42,950
471 ‐ Golf Fund $0 $0 $5,210
Total Technical Adjustments ‐ Operating / Capital / Transfers: $468,980 $101,760 $199,590
129
Exhibit G ‐ COVID Revenue Adjustments
2020 COVID REVENUE ADJUSTMENTS
Fund Taxes Fees Transfers Total Reductions
001 ‐ General Fund ($2,331,000) ($1,275,730) $0 ($3,606,730)
100 ‐ Parks and Open Space Fund ($4,114,700) $0 ($100,000)($4,214,700)
120 ‐ Wheeler Opera House Fund ($1,981,000) $0 $0 ($1,981,000)
130 ‐ Tourism Promotion Fund ($1,240,900) $0 $0 ($1,240,900)
131 ‐ Public Education Fund ($823,000) $0 $0 ($823,000)
141 ‐ Transportation Fund ($1,325,100) $0 $0 ($1,325,100)
150 ‐ Housing Development Fund ($4,359,000) $0 $0 ($4,359,000)
152 ‐ Kids First Fund ($679,000) $0 $0 ($679,000)
421 ‐ Water Utility Fund $0 ($1,278,800) $0 ($1,278,800)
431 ‐ Electric Utility Fund $0 ($1,332,600) $0 ($1,332,600)
451 ‐ Parking Fund $0 ($1,522,500) $0 ($1,522,500)
471 ‐ Golf Course Fund $0 ($646,110) ($210,000)($856,110)
505 ‐ Employee Housing Fund $0 $0 ($1,797,520)($1,797,520)
Total Across Funds (16,853,700) (6,055,740) (2,107,520) (25,016,960)
130
Exhibit H ‐ COVID Expense Adjustments
2020 COVID EXPENSE ADJUSTMENTS
Fund Labor Other Operating Capital Transfers Total
000 ‐ Asset Management Plan Fund $0 $0 ($1,676,000) $0 ($1,676,000)
001 ‐ General Fund ($1,478,410) ($1,824,270) $0 ($892,910)($4,195,590)
100 ‐ Parks and Open Space Fund ($245,480) ($233,200) ($1,835,300) ($443,250)($2,757,230)
120 ‐ Wheeler Opera House Fund ($33,080) ($181,000) ($703,000) ($86,180)($1,003,260)
130 ‐ Tourism Promotion Fund $0 ($940,900) $0 $0 ($940,900)
131 ‐ Public Education Fund $0 ($823,000) $0 $0 ($823,000)
141 ‐ Transportation Fund ($8,280) ($1,367,880) $0 ($33,150)($1,409,310)
150 ‐ Housing Development Fund ($1,650) $0 $0 $0 ($1,650)
152 ‐ Kids First Fund ($89,230) ($83,730) ($406,700) ($50,400)($630,060)
160 ‐ Stormwater Fund ($34,190) ($101,610) $0 ($138,480)($274,280)
421 ‐ Water Utility Fund ($19,490) ($451,870) $0 ($165,450)($636,810)
431 ‐ Electric Utility Fund ($58,140) ($345,280) $0 ($87,830)($491,250)
451 ‐ Parking Fund ($23,140) ($184,970) $0 ($95,930)($304,040)
471 ‐ Golf Course Fund ($39,340) ($137,670) ($198,700) ($48,750)($424,460)
491 ‐ Truscott I Housing Fund ($2,140) $0 $0 ($8,930)($11,070)
492 ‐ Marolt Housing Fund ($2,010) $0 $0 ($8,330)($10,340)
510 ‐ Information Technology Fund ($11,580) ($126,520) ($90,000) ($47,930)($276,030)
Total ($2,046,160) ($6,801,900) ($4,909,700) ($2,107,520) ($15,865,280)
Total Labor + Other Operating:($8,848,060)
131
ORDINANCE No. 7
(Series of 2020)
AN ORDINANCE APPROPRIATING AN INCREASE IN THE
ASSET MANAGEMENT PLAN FUND EXPENDITURES OF $28,615,536;
WHEELER OPERA HOUSE FUND OF $1,084,691;
HOUSING DEVELOPMENT FUND OF $13,695,697;
STORMWATER FUND OF $75,507;
WATER UTILITY FUND OF $1,266,455;
ELECTRIC UTILITY FUND OF $1,746,775;
TRUSCOTT I HOUSING FUND OF $323,467;
MAROLT HOUSING FUND OF $266,680;
EMPLOYEE HOUSING FUND $666,775;
INFORMATION TECHNOLOGY FUND OF $174,990.
AN ORDINANCE DECREASING AN APPROPRIATION IN THE
GENERAL FUND OF $493,000;
PARKS AND OPEN SPACE FUND OF $1,202,628;
TOURISM PROMOTION FUND OF $940,900;
PUBLIC EDUCATION FUND OF $823,000
KIDS FIRST FUND OF $432,440;
TRANSPORTATION FUND OF $1,157,860;
PARKING FUND OF $145,137;
GOLF COURSE FUND OF $312,535.
WHEREAS, by virtue of Section 9.12 of the Home Rule Charter, the City Council may make
supplemental appropriations; and
WHEREAS, the City Manager has certified that the City has unappropriated current year revenues
and/or unappropriated prior year fund balance available for appropriations in the following
funds: Asset Management Plan Fund, General Fund, Parks And Open Space Fund, Wheeler Opera
House Fund, Tourism Promotion Fund, Public Education Fund, Transportation Fund, Housing
Development Fund, Kids First Fund, Stormwater Fund, Water Utility Fund, Electric Utility Fund,
Parking Fund, Golf Course Fund, Truscott Housing Fund, Marolt Housing Fund, Employee Housing
Fund, Information Technology Fund.
WHEREAS, the City Council is advised that certain expenditures, revenue and transfers must be
approved.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO:
132
Section 1
Upon the City Manager’s certification that there are current year revenues and/or prior year fund
balances available for appropriation in the above‐mentioned funds, the City Council hereby
makes supplemental appropriations as itemized in the Exhibit A.
Section 2
If any section, subdivision, sentence, clause, phrase, or portion of this ordinance is for any reason
invalid or unconstitutional by any court or competent jurisdiction, such portion shall be deemed
a separate, distinct and independent provision and such holding shall not affect the validity of
the remaining portion thereof.
INTRODUCED, READ, APPROVED AND ORDERED PUBLISHED AND/OR POSTED ON FIRST
READING on the 12th day of May 2020.
A public hearing on the ordinance shall be held on the 26th day of May 2020, in the City
Council Chambers, City Hall, Aspen, Colorado.
ATTEST:
________________________ ________________________
Nicole Henning, City Clerk Torre, Mayor
FINALLY ADOPTED AFTER PUBLIC HEARING on the 26th day of May 2020.
ATTEST:
________________________ ________________________
Nicole Henning, City Clerk Torre, Mayor
Approved as to Form:
________________________
Jim True, City Attorney
133
MEMORANDUM
TO:MAYOR and COUNCIL MEMBERS
FROM:JAMES R. TRUE
DATE:May 21, 2020
MEETING DATE:May 26, 2020
RE:Comcast Cable Franchise Agreement
══════════════════════════════════════════════════════════════════
Request of Council: To consider the adoption of Ordinance #8, Series of 2020, which would adopt
the Comcast Cable Franchise Agreement, which is attached. This is presented for first reading on
May 26, 2020, with a public hearing to be held on June 9, 2020.
Background:
City staff and outside counsel Ken Fellman, a Denver attorney specializing in municipal franchises,
have been involved in negotiations with Comcast for a franchise renewal agreement since 2017. The
City worked collaboratively,sharing resources in these negotiations with Pitkin County, Snowmass
Village and Basalt. We began the negotiations using the model franchise agreement developed
between Comcast and the Colorado Communications and Utility Alliance (CCUA)1, making
modifications in that document to address City-specific needs. While the franchise and the customer
service standards are technically two separate documents with no requirements to be addressed at the
same time, we have also worked with Comcast to update the City’s cable customer service standards.
We have concluded negotiations on both the franchise renewal and the customer service standards.
Snowmass Village, Basalt and Pitkin County have adopted their versions of the agreement.
The City’s adoption has been delayed while the City considered the requirement set forth in Section
11.1. of its Home Rule Charter. This provision requires all franchise agreement to obtain approval
by the voters. It has been the position of Comcast that such Charter Requirement is pre-empted by
Federal Law. Although outside Council and the City Attorney’s office has attempted to determine if
there were ways to approve the matter by a vote, without implicating pre-emptive powers or amend
the Charter itself, no acceptable alternative has been found. Thus, it is the suggestion of the City
Attorney’s Office that we proceed with adoption of the agreement by Ordinance approved by Council.
1 The CCUA is a consortium of Colorado local governments who collaboratively work on telecommunications and utility
issues. The CCUA has approximately 65 members, including Aspen and Pitkin County.
134
2
It should be noted that in 2009, the prior agreement was adopted by Council with no discussion of the
Charter provision. Neither the former Finance Director nor the former City Attorney raised the issue.
Discussion:
I.INTRODUCTION
This memo will first advise you of some general background on the law governing cable franchising
and then will address what staff and I believe are the most significant issues addressed in the franchise
renewal agreement and customer service standards with Comcast.
II.FRANCHISE RENEWAL PROCESS
A cable franchise is a contract between the cable operator and the local government that the cable
operator serves. In consideration for a cable operator’s right to locate its facilities in the public rights
of way, the City requires the cable operator to enter into a franchise agreement. Federal law places
limitations on what issues can be addressed in that contract.
Under federal law, a cable operator is entitled to a franchise renewal if it offers and has the
legal, technical, and financial ability to comply with a franchise agreement that meets the future cable-
related needs of the community. Since Comcast clearly has the legal, technical and financial
capability to comply with almost any franchise condition, the foundational question becomes whether
Comcast will agree to a franchise document that will meet the City’s future cable-related needs.
Through discussion with City staff and various City departments we developed a number of
negotiating goals related to public, educational and governmental (PEG) access channels, City control
of its rights-of-ways, video streaming capability for PEG programming, and other Comcast
compliance obligations with the franchise, particularly its financial obligations.
Federal law provides for two types of franchise renewals. The more common is an informal renewal
process, which is the process we have engaged in with Comcast. If the parties are unable to informally
negotiate an acceptable franchise, under the federal Cable Act, either party may pursue a formal
franchise renewal. The formal process is more rigidly structured and must strictly follow a number
of regulatory requirements. As a result, it is also far more costly to pursue. At the end of that process,
if the City chose not accept Comcast’s final proposed franchise, the end result, in all likelihood, would
be federal court litigation.
III.CUSTOMER SERVICE STANDARDS
The City’s authority to adopt customer service standards is a police power, and these standards can
be adopted and enforced without Comcast’s consent. However, Comcast has the legal authority to
pass through to subscribers the costs of complying with local regulations. While customer service
standards may be adopted without discussion with the cable operator, it has been our practice to
discuss and negotiate the standards with Comcast, in the hopes of reaching consensus. In this
franchise negotiation, it was decided that the model customer service standards developed by the
CCUA would be used. The CCUA model customer service standards have been continuously
updated to reflect the changing nature of Comcast’s operations, are a negotiated compromise with
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Comcast, and have served most of the local governments in Colorado well. We believe that the
CCUA model customer service standards will also be a good fit for Aspen.
IV.KEY PROVISIONS OF NEW FRANCHISE
As noted above, we started with the model agreement negotiated with Comcast and the
CCUA, and factored City-specific needs into the process of developing a franchise proposal to present
to Comcast. That proposal attempted to (1) maintain existing benefits, (2) eliminate regulatory
provisions from the existing franchise that are no longer relevant, (3) upgrade PEG benefits to City
residents, particularly with the ability to make PEG content available in high definition, and (4)
upgrade language related to the City’s oversight of Comcast’s franchise obligations. The new
franchise includes a fee that Comcast will pay to support the cost of PEG related equipment, and this
issue is described in more detail below. Finally, the new franchise also addresses issues of changing
technology and changing regulations in a manner that benefits City and its citizens. While we did not
get everything we’d hoped for, City staff is very pleased with the franchise document. While there
are many issues that are addressed in the franchise agreement, there are five categories of significant
issues which we wish to bring to your attention.
1.Definition of Gross Revenues (Franchise Section 1.29). As you know, Comcast pays
a fee to the City in an amount equal to 5% of the gross revenues generated from the provision of cable
services in the City. As a result of other CCUA members working with a financial firm that has
particular expertise in cable system accounting (and whose principal was formerly a cable company
supervisor in this area), we have successfully amended our prior definition ofgross revenues to ensure
that the 5% fee generates the greatest possible revenue for the City that is permitted under federal law.
2.Audit/Financial Review (Franchise Section 3.6). Recent franchise fee audits in other
communities have disclosed problems with Comcast’s record keeping regarding how it allocates its
“bundled” revenues from subscribers for service packages that include cable, internet and telephone
service. By law, the City is only allowed to collect fees on cable service revenues. Comcast was not
always retaining documentation to demonstrate how it allocated bundled revenues to cable services
for purposes of calculating franchise fees. Again, as a result of the CCUA negotiations for the model
agreement, we have agreed to language that an expert financial consultant advises will meet the City’s
needs to accurately monitor and audit future franchise fee payments.
3.Competitive Equity (Franchise Section 2.6). This is the franchise language that used
to be referred to as “level playing field.” Level playing field language in older franchises said that if
a new cable company sought a franchise in order to compete with the incumbent, the governmental
entity was required to impose comparable terms and conditions on the new entrant to the market. In
2006, the Federal Communications Commission (FCC) determined that level playing field
requirements inhibited competition, and the FCC preempted these kinds of requirements in franchise
agreements. However, the FCC has permitted cable operators to come up with what has become
known as “competitive equity” provisions, which in a way is simply reverse level playing field
language. The competitive equity provisions generally provide that the City can offer a new franchise
to any other operator on any terms and conditions it chooses, but if those provisions are more
favorable than the incumbent cable operator’s franchise, that incumbent has the ability to force the
City to change the terms of its franchise to match the terms offered to the new competitor.
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Prior to development of the CCUA model franchise, Comcast had proposed very one-sided
language which would have given it unilateral authority to determine when a new franchise had better
terms, and to require amendments to incorporate those terms into its agreement. CCUA members
were able to negotiate language that is truly equitable and meets their legitimate needs. The new
Aspen franchise will now state that if a new cable operator is given a franchise that Comcast believes
is a better deal, Comcast will be obligated to demonstrate in writing why it believes the new operator
has a better deal, and must provide specific language that it deems appropriate for a franchise
amendment. The parties are required to negotiate, and there is no obligation that the City accept
Comcast’s position. If there is a dispute that cannot be resolved, either party can seek a determination
in Court on whether new terms for the existing franchise are required. There was one issue that we
modified in the competitive equity language, which is different than the model CCUA agreement,
related to how we define the kind of company that would need City permission to provide video
services, in order to trigger the competitive equity provisions of the franchise. Given changing
technology and innovation in how video programming is provided and sold to subscribers, it was
important to get the language right in this section.
4.Public, Educational and Government Access Issues (Franchise Section 9). This is
one area where it is important to address changing technology, namely, high definition channels for
PEG. These are also issues that Comcast has not generally addressed in franchise language
previously. The franchise provides the ability of the Aspen, Pitkin County, Snowmass Village and
Basalt to obtain up to 5 access channels. It will maintain the existing channels in use for City
programming, GrassrootsTV programming and the channel at the airport.
A.High Definition (HD) Channels. The franchise also provides that within 120
days of the franchise effective date, Comcast will provide bandwidth for a high definition channel,
which will be used by Grassroots TV. In addition to this high definition channel, after the second
anniversary of the franchise, the City will be able to require a second high definition channel which
would be utilized by the City for government access programming. After activating the high
definition channels, the Grassroots TV and the City’s government programming content will be
available to Aspen subscribers on both a standard definition channel and high definition channel.
B.High Definition Equipment Grant in Lieu of Video on Demand for PEG
Programming. Comcast does not provide on demand availability for PEG programming and has not
been willing to provide video on demand capacity to allow PEG to be carried on its Colorado cable
systems. In its franchise negotiations a few years ago, Aurora was able to work out an alternative,
whereby Comcast provided a grant for web-based programming equipment, in order to help facilitate
putting more PEG programming online, so it can be viewed by anyone with a broadband connection.
We have agreed with Comcast for a grant to be made in the amount of $20,000, that can be used
jointly by the 4 jurisdictions in the County.
C.PEG Fees. Most jurisdictions in Colorado receive a fee to support capital
expenditures for PEG in addition to their franchise fees. In the vast majority of Comcast’s Colorado
communities including Pitkin County and Aspen, the PEG fee is 50 cents per subscriber per month.
Snowmass Village and Basalt have not imposed a PEG fee in the past but will likely do so in their
new franchise agreements, so that each jurisdiction is collecting the same amount per subscriber.
Going forward, each jurisdiction will have money available that it can use either for its own PEG
capital needs or for equipment that will be used to benefit the larger community. Under federal law, 137
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Comcast has the right (but not the obligation) to pass government imposed fees through to subscribers,
and in fact, Comcast does pass this charge through to its subscribers in the City (and everywhere else
it is obligated to remit a PEG fee to the local government.
5.Complimentary Cable Service. In prior cable franchises, cable companies
traditionally provided free service to public buildings located on streets passed by the cable system –
schools, county administration buildings, public works buildings, fire stations, libraries and similar
facilities. A decision by the FCC about 9 years ago gave a cable company the right to deduct the
value of the free service provided from its obligation to pay franchise fees. Through last year,
Comcast was still willing, despite the FCC ruling, to provide the free service and not deduct the value
of that service from franchise fees. Their position then changed, and they have been insisting on
language in all new franchises providing that (1) they will continue to provide free service to schools,
(2) while they will continue to provide free service to other public buildings, they are doing it on a
voluntary basis and they reserve the right to charge for it (or deduct the value of the service from
franchise fees) in the future. After asserting this position, a federal court struck down the FCC order,
not due to substantive errors, but rather due to a lack of evidence in the record upon which to base the
order. That means that for now, Comcast cannot deduct the value of free service to public buildings.
But it also means that the FCC may reopen this proceeding and attempt to get the kind of evidence in
the record to support the conclusion they reached in their earlier order. So the new franchise says
there will be no set off against franchise fees, but allows for the possibility that this will change, if
federal law changes once again to allow the set off. Pursuant to a separate letter, Comcast has
indicated that it is something they may pursue in the future although they are not doing it at this time.
6.Other Issues. City staff is pleased that we were able to preserve many of the benefits of the
existing agreement with Comcast. These issues include preservation of Aspen’s police powers,
indemnification of the City for any damages caused by Comcast’s operations, reporting obligations,
extensions of service to newly developed areas, an effective procedure for addressing franchise
violations and preservation of the City’s rights to address proposed franchise transfers.
Recommendation: The City Attorney’s Office recommends adoption of Ordinance #8, Series of
2020 on first reading and set the public hearing for June 9, 2020.
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ORDINANCE NO. 8
(SERIES OF 2020)
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A CABLE SYSTEM FRANCHISE AGREEMENT BETWEEN
THE CITY OF ASPEN AND COMCAST OF COLORADO IX, LLC AND AUTHORIZING
AND DIRECTING THE MAYOR TO EXECUTE THE SAME ON BEHALF OF THE CITY
OF ASPEN.
WHEREAS, the City Council of the City of Aspen (“City”) desires to enter into an agreement
with Comcast of Colorado IX, LLC (“Comcast”) to allow use of City right of way for the purpose of
providing cable services to the citizens of the City of Aspen; and
WHEREAS, the parties have agreed to avail themselves of their respective rights as set
forth in Section 626 of the Cable Communications Policy Act of 1984, as amended, relating to
the procedures for negotiating franchise agreements.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO, THAT:
Section 1.
The terms and conditions of the Cable Franchise Agreement between the City and Comcast, annexed
hereto and incorporated herein, are hereby approved, and the Mayor is hereby authorized and directed to
execute the same on behalf of the City of Aspen.
Section 2.
If any section, subsection, sentence, clause, phrase or portion of this ordinance is for
any reason held invalid or unconstitutional in a court of competent jurisdiction, such portion
shall be deemed a separate, distinct and independent provision and shall not affect the validity of
the remaining portions thereof.
Section 3.
This ordinance shall not have any effect on existing litigation and shall not operate as
an abatement of any action or proceeding now pending under or by virtue of the ordinances
amended as herein provided, and the same shall be construed and concluded under such prior
ordinances.
Section 4.
A public hearing on this ordinance will be held Tuesday, June 9, 2020, at 5:00 p.m., in the City Council
Chambers, Aspen City Hall, Aspen, Colorado.
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INTRODUCED, READ, AND ORDERED PUBLISHED as provided by law by the City Council
of the City of Aspen on the 26
th day of May 2020.
ATTEST:
___________________________________________________________________
Nicole Henning, City Clerk Torre, Mayor
FINALLY adopted, passed and ordered published this 9th day of June 2020.
ATTEST:
____________________________________________________________________
Nicole Henning, City Clerk Torre, Mayor
APPROVED AS TO FORM:
_____________________________________
James R. True, City Attorney
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COMCAST OF COLORADO IX, LLC
AND
CITY OF ASPEN, COLORADO
____________________________________________
CABLE FRANCHISE AGREEMENT
Table of Contents
SECTION 1. DEFINITIONS ................................................................................................................................. 1
SECTION 2. GRANT OF FRANCHISE .............................................................................................................. 7
2.1 Grant ................................................................................................................................................................ 7
2.2 Use of Right-of-Way ....................................................................................................................................... 8
2.3 Term of Franchise ........................................................................................................................................... 9
2.4 Franchise Nonexclusive .................................................................................................................................. 9
2.5 Police Powers .................................................................................................................................................. 9
2.6 Competitive Equity ....................................................................................................................................... 10
2.7 Familiarity with Franchise ............................................................................................................................. 11
2.8 Effect of Acceptance ..................................................................................................................................... 11
SECTION 3. FRANCHISE FEE PAYMENT AND FINANCIAL CONTROLS ............................................ 12
3.1 Franchise Fee................................................................................................................................................. 12
3.2 Payments ....................................................................................................................................................... 12
3.3 Acceptance of Payment and Recomputation ................................................................................................. 12
3.4 Quarterly Franchise Fee Reports ................................................................................................................... 12
3.5 Annual Franchise Fee Reports....................................................................................................................... 12
3.6 Franchise Fees Subject to Audit .................................................................................................................... 12
3.7 Late Payments ............................................................................................................................................... 13
3.8 Underpayments.............................................................................................................................................. 13
3.9 Alternative Compensation ............................................................................................................................. 13
3.10 Maximum Legal Compensation .................................................................................................................... 13
3.11 Additional Commitments Not Franchise Fee Payments ................................................................................ 14
3.12 Tax Liability .................................................................................................................................................. 14
3.13 Financial Records .......................................................................................................................................... 14
3.14 Payment on Termination ............................................................................................................................... 14
SECTION 4. ADMINISTRATION AND REGULATION ................................................................................ 15
4.1 Authority ....................................................................................................................................................... 15
4.2 Rates and Charges ......................................................................................................................................... 15
4.3 Rate Discrimination ....................................................................................................................................... 15
4.4 Filing of Rates and Charges .......................................................................................................................... 16
4.5 Cross Subsidization ....................................................................................................................................... 16
4.6 Reserved Authority ....................................................................................................................................... 16
4.7 Franchise Amendment Procedure .................................................................................................................. 16
4.8 Performance Evaluations ............................................................................................................................... 16
4.9 Late Fees ....................................................................................................................................................... 17
4.10 Force Majeure ............................................................................................................................................... 17
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SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS ............................................................... 18
5.1 Indemnification ............................................................................................................................................. 18
5.2 Insurance ....................................................................................................................................................... 19
SECTION 6. CUSTOMER SERVICE ................................................................................................................ 21
6.1 Customer Service Standards .......................................................................................................................... 21
6.2 Subscriber Privacy ......................................................................................................................................... 21
SECTION 7. BOOKS AND RECORDS ............................................................................................................. 21
7.1 Open Records ................................................................................................................................................ 21
7.2 Confidentiality ............................................................................................................................................... 22
7.3 Records Required .......................................................................................................................................... 22
7.4 Annual Reports .............................................................................................................................................. 23
7.5 Copies of Federal and State Reports ............................................................................................................. 23
7.6 Complaint File and Reports ........................................................................................................................... 24
7.7 Failure to Report ............................................................................................................................................ 24
7.8 False Statements ............................................................................................................................................ 24
SECTION 8. PROGRAMMING ......................................................................................................................... 24
8.1 Broad Programming Categories .................................................................................................................... 24
8.2 Deletion or Reduction of Broad Programming Categories ............................................................................ 25
8.3 Obscenity ....................................................................................................................................................... 25
8.4 Parental Control Device ................................................................................................................................ 26
8.5 Continuity of Service Mandatory .................................................................................................................. 26
8.6 Services for the Disabled ............................................................................................................................... 26
SECTION 9. ACCESS .......................................................................................................................................... 26
9.1 Designated Access Providers ........................................................................................................................ 26
9.2 Channel Capacity and Use ............................................................................................................................ 27
9.3 Access Channel Assignments and Relocation .............................................................................................. 30
9.4 Web-Based Video On Demand and Streaming ............................................................................................. 30
9.5 Support for Access Costs .............................................................................................................................. 31
9.6 Access Support Not Franchise Fees .............................................................................................................. 32
9.7 Access Channels On Basic Service or Lowest Priced HD Service Tier ........................................................ 32
9.8 Change In Technology .................................................................................................................................. 32
9.9 Technical Quality .......................................................................................................................................... 32
9.10 Access Cooperation ....................................................................................................................................... 33
9.11 Return Lines ................................................................................................................................................ 33
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION ................................................ 34
10.1 Right to Construct ......................................................................................................................................... 34
10.2 Right-of-Way Meetings ................................................................................................................................. 34
10.3 Joint Trenching/Boring Meetings .................................................................................................................. 34
10.4 General Standard ........................................................................................................................................... 34
10.5 Permits Required for Construction ................................................................................................................ 34
10.6 Emergency Permits ....................................................................................................................................... 35
10.7 Compliance with Applicable Codes .............................................................................................................. 35
10.8 GIS Mapping ................................................................................................................................................. 35
10.9 Minimal Interference ..................................................................................................................................... 35
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10.10 Prevent Injury/Safety ..................................................................................................................................... 36
10.11 Hazardous Substances ................................................................................................................................... 36
10.12 Locates .......................................................................................................................................................... 36
10.13 Notice to Private Property Owners ................................................................................................................ 37
10.14 Underground Construction and Use of Poles ................................................................................................ 37
10.15 Undergrounding of Multiple Dwelling Unit Drops ....................................................................................... 37
10.16 Burial Standards ............................................................................................................................................ 38
10.17 Cable Drop Bonding ...................................................................................................................................... 38
10.18 Prewiring ....................................................................................................................................................... 38
10.19 Repair and Restoration of Property ............................................................................................................... 38
10.20 Acquisition of Facilities ................................................................................................................................ 39
10.21 Discontinuing Use/Abandonment of Cable System Facilities ....................................................................... 39
10.22 Movement of Cable System Facilities For City Purposes ............................................................................. 40
10.23 Reimbursement of Grantee Costs .................................................................................................................. 40
10.24 Movement of Cable System Facilities for Other Franchise Holders ............................................................. 40
10.25 Temporary Changes for Other Permittees ..................................................................................................... 41
10.26 Reservation of City Use of Right-of-Way ..................................................................................................... 41
10.27 Tree Trimming .............................................................................................................................................. 41
10.28 Inspection of Construction and Facilities ...................................................................................................... 41
10.29 Stop Work ..................................................................................................................................................... 42
10.30 Work of Contractors and Subcontractors ...................................................................................................... 42
SECTION 11. CABLE SYSTEM, TECHNICAL STANDARDS AND TESTING ......................................... 42
11.1 Subscriber Network ....................................................................................................................................... 42
11.2 Technology Assessment ................................................................................................................................ 43
11.3 Standby Power............................................................................................................................................... 43
11.4 Emergency Alert Capability .......................................................................................................................... 44
11.5 Technical Performance .................................................................................................................................. 44
11.6 Cable System Performance Testing ............................................................................................................... 44
11.7 Additional Tests ............................................................................................................................................ 45
SECTION 12. SERVICE AVAILABILITY, INTERCONNECTION AND SERVICE TO
SCHOOLS AND PUBLIC BUILDINGS ................................................................................... 46
12.1 Service Availability ....................................................................................................................................... 46
12.2 Connection of Public Facilities ..................................................................................................................... 47
SECTION 13. FRANCHISE VIOLATIONS ...................................................................................................... 48
13.1 Procedure for Remedying Franchise Violations ............................................................................................ 48
13.2 Revocation ..................................................................................................................................................... 49
13.3 Procedures in the Event of Termination or Revocation ................................................................................. 50
13.4 Purchase of Cable System ............................................................................................................................. 51
13.5 Receivership and Foreclosure........................................................................................................................ 51
13.6 No Monetary Recourse Against the City ....................................................................................................... 52
13.7 Alternative Remedies .................................................................................................................................... 52
13.8 Assessment of Monetary Damages ............................................................................................................... 52
13.9 Effect of Abandonment ................................................................................................................................. 53
13.9 What Constitutes Abandonment .................................................................................................................... 53
SECTION 14. FRANCHISE RENEWAL AND TRANSFER ........................................................................... 53
14.1 Renewal ......................................................................................................................................................... 53
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14.2 Transfer of Ownership or Control ................................................................................................................. 54
SECTION 15. SEVERABILITY .......................................................................................................................... 55
SECTION 16. MISCELLANEOUS PROVISIONS ........................................................................................... 55
16.1 Preferential or Discriminatory Practices Prohibited ...................................................................................... 55
16.2 Reservation of Rights .................................................................................................................................... 56
16.3 Notices........................................................................................................................................................... 56
16.4 Descriptive Headings .................................................................................................................................... 56
16.5 Publication Costs to be Borne by Grantee ..................................................................................................... 56
16.6 Binding Effect ............................................................................................................................................... 57
16.7 No Joint Venture ........................................................................................................................................... 57
16.8 Waiver ........................................................................................................................................................... 57
16.9 Reasonableness of Consent or Approval ....................................................................................................... 57
16.10 Entire Agreement .......................................................................................................................................... 57
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COMCAST OF COLORADO IX, LLC
AND
CITY OF ASPEN, COLORADO
____________________________________________
CABLE FRANCHISE AGREEMENT
SECTION 1. DEFINITIONS
For the purposes of this Franchise, the following terms, phrases, words and their
derivations shall have the meaning given herein. When not inconsistent with the context, words
used in the present tense include the future, words in the plural include the singular, and words in
the singular include the plural. Words not defined shall be given their common and ordinary
meaning. The word "shall" is always mandatory and not merely directory.
1.1 “Access” means the availability for noncommercial use by various agencies, institutions,
organizations, groups and individuals in the community, including the City and its designees, of
the Cable System to acquire, create, receive, and distribute video Cable Services and other
services and signals as permitted under Applicable Law including, but not limited to:
(A) “Public Access” means Access where community-based, noncommercial
organizations, groups or individual members of the general public, on a nondiscriminatory basis,
are the primary users.
(B) “Educational Access” means Access where schools are the primary users having
editorial control over programming and services. For purposes of this definition, “school” means
any State-accredited educational institution, public or private, including, for example, primary
and secondary schools, colleges and universities.
(C) “Government Access” means Access where governmental institutions or their
designees are the primary users having editorial control over programming and services.
1.2 “Access Channel” means any Channel, or portion thereof, designated for Access
purposes or otherwise made available to facilitate or transmit Access programming or services.
1.3 “Activated” means the status of any capacity or part of the Cable System in which any
Cable Service requiring the use of that capacity or part is available without further installation of
system equipment, whether hardware or software.
1.4 “Affiliate,” when used in connection with Grantee, means any Person who owns or
controls, is owned or controlled by, or is under common ownership or control with, Grantee.
1.5 “Applicable Law” means any statute, ordinance, judicial decision, executive order or
regulation having the force and effect of law that determines the legal standing of a case or issue.
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1.6 “Bad Debt” means amounts lawfully billed to a Subscriber and owed by the Subscriber
for Cable Service and accrued as revenues on the books of Grantee, but not collected after
reasonable efforts have been made by Grantee to collect the charges.
1.7 “Basic Service” is the level of programming service which includes, at a minimum, all
Broadcast Channels, all PEG SD Access Channels required in this Franchise, and any additional
Programming added by the Grantee, and is made available to all Cable Services Subscribers in
the Franchise Area.
1.8 “Broadcast Channel” means local commercial television stations, qualified low power
stations and qualified local noncommercial educational television stations, as referenced under
47 USC § 534 and 535.
1.9 “Broadcast Signal” means a television or radio signal transmitted over the air to a wide
geographic audience, and received by a Cable System by antenna, microwave, satellite dishes or
any other means.
1.10 “Cable Act” means the Title VI of the Communications Act of 1934, as amended.
1.11 “Cable Operator” means any Person or groups of Persons, including Grantee, who
provide(s) Cable Service over a Cable System and directly or through one or more affiliates
owns a significant interest in such Cable System or who otherwise control(s) or is (are)
responsible for, through any arrangement, the management and operation of such a Cable
System.
1.12 “Cable Service” means the one-way transmission to Subscribers of video programming
or other programming service, and Subscriber interaction, if any, which is required for the
selection or use of such video programming or other programming service.
1.13 “Cable System” means any facility, including Grantee’s, consisting of a set of closed
transmissions paths and associated signal generation, reception, and control equipment that is
designed to provide Cable Service which includes video programming and which is provided to
multiple Subscribers within a community, but such term does not include (A) a facility that
serves only to retransmit the television signals of one or more television broadcast stations; (B) a
facility that serves Subscribers without using any Right-of-Way; (C) a facility of a common
carrier which is subject, in whole or in part, to the provisions of Title II of the federal
Communications Act (47 U.S.C. 201 et seq.), except that such facility shall be considered a
Cable System (other than for purposes of Section 621(c) (47 U.S.C. 541(c)) to the extent such
facility is used in the transmission of video programming directly to Subscribers, unless the
extent of such use is solely to provide interactive on-demand services; (D) an open video system
that complies with federal statutes; or (E) any facilities of any electric utility used solely for
operating its electric utility systems.
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1.14 “Channel” means a portion of the electromagnetic frequency spectrum which is used in
the Cable System and which is capable of delivering a television channel (as television channel
is defined by the FCC by regulation).
1.15 “City” is the City of Aspen, Colorado, a home rule municipality and body politic and
corporate under the laws of the State of Colorado.
1.16 “City Council” means the Aspen City Council, or its successor, the governing body of
Aspen, Colorado.
1.17 “Commercial Subscribers” means any Subscribers other than Residential Subscribers.
1.18 “Designated Access Provider” means the entity or entities designated now or in the future
by the City to manage or co-manage Access Channels and facilities. The City may be a
Designated Access Provider.
1.19 “Digital Starter Service” means the Tier of optional video programming services, which
is the level of Cable Service received by most Subscribers above Basic Service, and does not
include Premium Services.
1.20 “Downstream” means carrying a transmission from the Headend to remote points on the
Cable System or to Interconnection points on the Cable System.
1.21 “Dwelling Unit” means any building, or portion thereof, that has independent living
facilities, including provisions for cooking, sanitation and sleeping, and that is designed for
residential occupancy. Buildings with more than one set of facilities for cooking shall be
considered Multiple Dwelling Units unless the additional facilities are clearly accessory.
1.22 “Effective Date” means the date on which all persons necessary to sign this Agreement in
order for it to be binding on both parties have executed this Agreement as indicated on the
signature page(s), unless a specific date is otherwise provided in the “Term” section herein.
1.23 “FCC” means the Federal Communications Commission.
1.24 “Fiber Optic” means a transmission medium of optical fiber cable, along with all
associated electronics and equipment, capable of carrying Cable Service by means of electric
lightwave impulses.
1.25 “Franchise” means the document in which this definition appears, i.e., the contractual
agreement, executed between the City of Basalt and Grantee, containing the specific provisions
of the authorization granted, including references, specifications, requirements and other related
matters.
1.26 “Franchise Area” means the area within the jurisdictional boundaries of the City of
Aspen, Colorado.
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1.27 “Franchise Fee” means that fee payable to the City described in subsection 3.1.
1.28 “Grantee” means Comcast of Colorado IX, LLC or its lawful successor, transferee or
assignee.
1.29 “Gross Revenues” means, and shall be construed broadly to include all revenues derived
directly or indirectly by Grantee and/or an Affiliated Entity that is the cable operator of the Cable
System, from the operation of Grantee’s Cable System to provide Cable Services within the
Village. Gross revenues include, by way of illustration and not limitation:
• monthly fees for Cable Services, regardless of whether such Cable Services are
provided to residential or commercial customers, including revenues derived from
the provision of all Cable Services (including but not limited to pay or premium
Cable Services, digital Cable Services, pay-per-view, pay-per-event and video-on-
demand Cable Services);
• installation, reconnection, downgrade, upgrade or similar charges associated with
changes in subscriber Cable Service levels;
• fees paid to Grantee for channels designated for commercial/Leased Access use
and shall be allocated on a pro rata basis using total Cable Service subscribers
within the City;
• converter, remote control, and other Cable Service equipment rentals, leases, or
sales;
• Advertising Revenues as defined herein;
• late fees, convenience fees and administrative fees which shall be allocated on a
pro rata basis using Cable Services revenue as a percentage of total subscriber
revenues within the Village;
• revenues from program guides;
• Franchise Fees;
• FCC Regulatory Fees; and,
• commissions from home shopping channels and other Cable Service revenue
sharing arrangements which shall be allocated on a pro rata basis using total
Cable Service subscribers within the City.
(A) “Advertising Revenues” shall mean revenues derived from sales of advertising
that are made available to Grantee’s Cable System subscribers within the City and shall be
allocated on a pro rata basis using total Cable Service subscribers reached by the advertising.
Additionally, Grantee agrees that Gross Revenues subject to franchise fees shall include all
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commissions, rep fees, Affiliated Entity fees, or rebates paid to National Cable Communications
(“NCC”) and Comcast Spotlight (“Spotlight”) or their successors associated with sales of
advertising on the Cable System within the City allocated according to this paragraph using total
Cable Service subscribers reached by the advertising.
(B) “Gross Revenues” shall not include:
• actual bad debt write-offs, except any portion which is subsequently collected
which shall be allocated on a pro rata basis using Cable Services revenue as a
percentage of total subscriber revenues within the City;
• any taxes and/or fees on services furnished by Grantee imposed by any
municipality, state or other governmental unit, provided that Franchise Fees and
the FCC regulatory fee shall not be regarded as such a tax or fee;
• fees imposed by any municipality, state or other governmental unit on Grantee
including but not limited to Public, Educational and Governmental (PEG) Fees;
• launch fees and marketing co-op fees; and,
• unaffiliated third party advertising sales agency fees which are reflected as a
deduction from revenues.
(C) To the extent revenues are received by Grantee for the provision of a discounted
bundle of services which includes Cable Services and non-Cable Services, Grantee shall
calculate revenues to be included in Gross Revenues using a methodology that allocates revenue
on a pro rata basis when comparing the bundled service price and its components to the sum of
the published rate card, except as required by specific federal, state or local law, it is expressly
understood that equipment may be subject to inclusion in the bundled price at full rate card
value. This calculation shall be applied to every bundled service package containing Cable
Service from which Grantee derives revenues in the City. The City reserves its right to review
and to challenge Grantee’s calculations.
(D) Grantee reserves the right to change the allocation methodologies set forth in this
Section 1.29 in order to meet the standards required by governing accounting principles as
promulgated and defined by the Financial Accounting Standards Board (“FASB”), Emerging
Issues Task Force (“EITF”) and/or the U.S. Securities and Exchange Commission (“SEC”).
Grantee will explain and document the required changes to the Village as part of any audit or
review of franchise fee payments, and any such changes shall be subject to 1.29(E) below.
(E) Resolution of any disputes over the classification of revenue should first be
attempted by agreement of the Parties, but should no resolution be reached, the Parties agree that
reference shall be made to generally accepted accounting principles (“GAAP”) as promulgated
and defined by the Financial Accounting Standards Board (“FASB”), Emerging Issues Task
Force (“EITF”) and/or the U.S. Securities and Exchange Commission (“SEC”). Notwithstanding
the forgoing, the City reserves its right to challenge Grantee’s calculation of Gross Revenues,
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including the interpretation of GAAP as promulgated and defined by the FASB, EITF and/or the
SEC.
1.30 “Headend” means any facility for signal reception and dissemination on a Cable System,
including cables, antennas, wires, satellite dishes, monitors, switchers, modulators, processors
for Broadcast Signals, equipment for the Interconnection of the Cable System with adjacent
Cable Systems and Interconnection of any networks which are part of the Cable System, and all
other related equipment and facilities.
1.31 “Leased Access Channel” means any Channel or portion of a Channel commercially
available for video programming by Persons other than Grantee, for a fee or charge.
1.32 “Manager” means the City Manager of the City or designee.
1.33 “Person” means any individual, sole proprietorship, partnership, association, or
corporation, or any other form of entity or organization.
1.34 “Premium Service” means programming choices (such as movie Channels, pay-per-view
programs, or video on demand) offered to Subscribers on a per-Channel, per-program or per-
event basis.
1.35 “Residential Subscriber” means any Person who receives Cable Service delivered to
Dwelling Units or Multiple Dwelling Units, excluding such Multiple Dwelling Units billed on a
bulk-billing basis.
1.36 “Right-of-Way” means each of the following which have been dedicated to the public or
are hereafter dedicated to the public and maintained under public authority or by others and
located within the City: streets, roadways, highways, avenues, lanes, alleys, bridges, sidewalks,
easements, right-of-way and similar public property and areas.
1.37 “State” means the State of Colorado.
1.38 “Subscriber” means any Person who or which elects to subscribe to, for any purpose,
Cable Service provided by Grantee by means of or in connection with the Cable System and
whose premises are physically wired and lawfully Activated to receive Cable Service from
Grantee's Cable System, and who is in compliance with Grantee’s regular and nondiscriminatory
terms and conditions for receipt of service.
1.39 “Subscriber Network” means that portion of the Cable System used primarily by Grantee
in the transmission of Cable Services to Residential Subscribers.
1.40 “Telecommunications” means the transmission, between or among points specified by
the user, of information of the user's choosing, without change in the form or content of the
information as sent and received (as provided in 47 U.S.C. Section 153(43)).
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1.41 “Telecommunications Service” means the offering of Telecommunications for a fee
directly to the public, or to such classes of users as to be effectively available directly to the
public, regardless of the facilities used (as provided in 47 U.S.C. Section 153(46)).
1.42 “Tier” means a group of Channels for which a single periodic subscription fee is charged.
1.43 “Two-Way” means that the Cable System is capable of providing both Upstream and
Downstream transmissions.
1.44 “Upstream” means carrying a transmission to the Headend from remote points on the
Cable System or from Interconnection points on the Cable System.
(B) EXHIBITS
The following documents, which are occasionally referred to in this Franchise, are formally
incorporated and made a part of this Franchise by this reference:
1) Exhibit A, Entitled Customer Service Standards.
2) Exhibit B, Entitled Report Form.
SECTION 2. GRANT OF FRANCHISE
2.1 Grant
(A) The City hereby grants to Grantee a nonexclusive authorization to make
reasonable and lawful use of the Right-of-Way within the City to construct, operate, maintain,
reconstruct and rebuild a Cable System for the purpose of providing Cable Service subject to the
terms and conditions set forth in this Franchise and in any prior utility or use agreements entered
into by Grantee with regard to any individual property.
(B) Nothing in this Franchise shall be deemed to waive the lawful requirements of
any generally applicable City ordinance existing as of the Effective Date, as defined in
subsection 1.22.
(C) Each and every term, provision or condition herein is subject to the provisions of
State law, federal law, the Charter of the City, and the ordinances and regulations enacted
pursuant thereto. The Charter and Municipal Code of the City, as the same may be amended
from time to time, are hereby expressly incorporated into this Franchise as if fully set out herein
by this reference. Notwithstanding the foregoing, the City may not unilaterally alter the material
rights and obligations of Grantee under this Franchise.
(D) This Franchise shall not be interpreted to prevent the City from imposing
additional lawful conditions, including additional compensation conditions for use of the Right-
of-Way, should Grantee provide service other than Cable Service.
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(E) Grantee promises and guarantees, as a condition of exercising the privileges
granted by this Franchise, that any Affiliate of the Grantee directly involved in the offering of
Cable Service in the Franchise Area, or directly involved in the management or operation of the
Cable System in the Franchise Area, will also comply with the obligations of this Franchise.
(F) No rights shall pass to Grantee by implication. Without limiting the foregoing, by
way of example and not limitation, this Franchise shall not include or be a substitute for:
(1) Any other permit or authorization required for the privilege of transacting
and carrying on a business within the City that may be required by the ordinances and
laws of the City;
(2) Any permit, agreement, or authorization required by the City for Right-of-
Way users in connection with operations on or in Right-of-Way or public property
including, by way of example and not limitation, street cut permits; or
(3) Any permits or agreements for occupying any other property of the City or
private entities to which access is not specifically granted by this Franchise including,
without limitation, permits and agreements for placing devices on poles, in conduits or in
or on other structures.
(G) This Franchise is intended to convey limited rights and interests only as to those
Right-of-Way in which the City has an actual interest. It is not a warranty of title or interest in
any Right-of-Way; it does not provide the Grantee with any interest in any particular location
within the Right-of-Way; and it does not confer rights other than as expressly provided in the
grant hereof.
(H) This Franchise does not authorize Grantee to provide Telecommunications
Service, or to construct, operate or maintain Telecommunications facilities. This Franchise is not
a bar to the provision of non-Cable Services, or to the imposition of any lawful conditions on
Grantee with respect to Telecommunications, whether similar, different or the same as the
conditions specified herein. This Franchise does not relieve Grantee of any obligation it may
have to obtain from the City an authorization to provide Telecommunications Services, or to
construct, operate or maintain Telecommunications facilities, or relieve Grantee of its obligation
to comply with any such authorizations that may be lawfully required.
2.2 Use of Right-of-Way
(A) Subject to the City's supervision and control, Grantee may erect, install, construct,
repair, replace, reconstruct, and retain in, on, over, under, upon, across, and along the Right-of-
Way within the City such wires, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, pedestals, attachments and other property and equipment as are necessary and
appurtenant to the operation of a Cable System within the City. Grantee, through this Franchise,
is granted extensive and valuable rights to operate its Cable System for profit using the City's
Right-of-Way in compliance with all applicable City construction codes and procedures. As
trustee for the public, the City is entitled to fair compensation as provided for in Section 3 of this
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Franchise to be paid for these valuable rights throughout the term of the Franchise.
(B) Grantee must follow City established nondiscriminatory requirements for
placement of Cable System facilities in Right-of-Way, including the specific location of facilities
in the Right-of-Way, and must in any event install Cable System facilities in a manner that
minimizes interference with the use of the Right-of-Way by others, including others that may be
installing communications facilities. Within limits reasonably related to the City’s role in
protecting public health, safety and welfare, the City may require that Cable System facilities be
installed at a particular time, at a specific place or in a particular manner as a condition of access
to a particular Right-of-Way; may deny access if Grantee is not willing to comply with City's
requirements; and may remove, or require removal of, any facility that is not installed by Grantee
in compliance with the requirements established by the City, or which is installed without prior
City approval of the time, place or manner of installation, and charge Grantee for all the costs
associated with removal; and may require Grantee to cooperate with others to minimize adverse
impacts on the Right-of-Way through joint trenching and other arrangements.
2.3 Term of Franchise
The term of the Franchise granted hereunder shall be eight (8) years, commencing upon
the Effective Date of the Franchise, unless the Franchise is renewed or is lawfully terminated in
accordance with the terms of this Franchise Agreement and the Cable Act, or is extended by
mutual agreement of the City and Grantee.
2.4 Franchise Nonexclusive
This Franchise shall be nonexclusive, and subject to all prior rights, interests, easements
or licenses granted by the City to any Person to use any property, Right-of-Way, right, interest or
license for any purpose whatsoever, including the right of the City to use same for any purpose it
deems fit, including the same or similar purposes allowed Grantee hereunder. The City may at
any time grant authorization to use the Right-of-Way for any purpose not incompatible with
Grantee's authority under this Franchise and for such additional franchises for Cable Systems as
the City deems appropriate.
2.5 Police Powers
Grantee’s rights hereunder are subject to the police powers of the City to adopt and
enforce ordinances necessary to the safety, health, and welfare of the public, and Grantee agrees
to comply with all laws and ordinances of general applicability enacted, or hereafter enacted, by
the City or any other legally constituted governmental unit having lawful jurisdiction over the
subject matter hereof. The City shall have the right to adopt, from time to time, such ordinances
as may be deemed necessary in the exercise of its police power; provided that such hereinafter
enacted ordinances shall be reasonable and not materially modify the terms of this Franchise.
Any conflict between the provisions of this Franchise and any other present or future lawful
exercise of the City's police powers shall be resolved in favor of the latter.
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2.6 Competitive Equity
(A) The Grantee acknowledges and agrees that the City reserves the right to grant one
(1) or more additional franchises or other similar lawful authorization to utilize the Rights-of-
Way in order to provide Cable Services or similar video programming service within the City. If
the City grants such an additional franchise or other similar lawful authorization that permits a
new entrant to utilize the Rights-of-Way for Cable Services or similar video programming
services containing material terms and conditions that differ from Grantee’s material obligations
under this Franchise, or declines to require such franchise or other similar lawful authorization
where it has the legal authority to do so, then the parties agree that the obligations in this
Franchise will, pursuant to the process set forth in this Section, be amended to include any
material terms or conditions that it imposes upon the new entrant, or provide relief from existing
material terms or conditions, so as to insure that the regulatory and financial burdens on each
entity are materially equivalent. “Material terms and conditions” include, but are not limited to:
Franchise Fees and Gross Revenues; complementary services; insurance; System build-out
requirements; security instruments; Public, Education and Government Access Channels and
support; customer service standards; required reports and related record keeping; competitive
equity (or its equivalent); audits; dispute resolution; remedies; and notice and opportunity to cure
breaches. The parties agree that this provision shall not require a word for word identical
franchise or authorization for a competitive entity so long as the regulatory and financial burdens
on each entity are materially equivalent.
(B) The modification process of this Franchise as provided for in Section 2.6 (A) shall
only be initiated by written notice by the Grantee to the City regarding specified franchise
obligations. Grantee’s notice shall address the following: (1) identifying the specific terms or
conditions in the competitive cable services franchise which are materially different from
Grantee’s obligations under this Franchise; (2) identifying the Franchise terms and conditions for
which Grantee is seeking amendments; (3) providing text for any proposed Franchise
amendments to the City, with a written explanation of why the proposed amendments are
necessary and consistent.
(C) Upon receipt of Grantee’s written notice as provided in Section 2.6 (B), the City
and Grantee agree that they will use best efforts in good faith to negotiate Grantee’s proposed
Franchise modifications, and that such negotiation will proceed and conclude within a ninety
(90) day time period, unless that time period is reduced or extended by mutual agreement of the
parties. If the City and Grantee reach agreement on the Franchise modifications pursuant to such
negotiations, then the City shall amend this Franchise to include the modifications.
(D) In the alternative to Franchise modification negotiations as provided for in
Section 2.6 (C), or if the City and Grantee fail to reach agreement in such negotiations, Grantee
may, at its option, elect to replace this Franchise by opting into the franchise or other similar
lawful authorization that the City grants to another multi-channel video programming provider
(with the understanding that Grantee will use its current system design and technology
infrastructure to meet any requirements of the new franchise), so as to insure that the regulatory
and financial burdens on each entity are equivalent. If Grantee so elects, the City shall
immediately commence proceedings to replace this Franchise with the franchise issued to the
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other multi-channel video programming provider.
(E) Notwithstanding anything contained in this Section 2.6(A) through (D) to the
contrary, the City shall not be obligated to amend or replace this Franchise unless the new
entrant makes Cable Services or similar video programming service available for purchase by
Subscribers or customers under its franchise agreement with the City.
(F) Notwithstanding any provision to the contrary, at any time that a wireline-based
entity with facilities used to deliver Cable Services or multiple Channels of video programming
located in the City’s Rights of Way makes available for purchase by Subscribers or customers
Cable Services or multiple Channels of video programming within the Franchise Area without a
franchise or other similar lawful authorization that permits a new entrant to utilize the Rights of
Way granted by the City, then:
(1) Grantee may negotiate with the City to seek Franchise modifications as
per Section 2.6(B)-(D) above; or
(a) the term of Grantee’s Franchise shall, upon ninety (90) days written notice
from Grantee, be shortened so that the Franchise shall be deemed to expire on
a date eighteen (18) months from the first day of the month following the date
of Grantee’s notice and Grantee shall be deemed to have timely invoked the
renewal process under 47 USC 546; or,
(b) Grantee may assert, at Grantee’s option, that this Franchise is rendered
“commercially impracticable,” and invoke the modification procedures set
forth in Section 625 of the Cable Act.
2.7 Familiarity with Franchise
The Grantee acknowledges and warrants by acceptance of the rights, privileges and
agreements granted herein, that it has carefully read and fully comprehends the terms and
conditions of this Franchise and is willing to and does accept all lawful and reasonable risks of
the meaning of the provisions, terms and conditions herein. The Grantee further acknowledges
and states that it has fully studied and considered the requirements and provisions of this
Franchise, and finds that the same are commercially practicable at this time, and consistent with
all local, State and federal laws and regulations currently in effect, including the Cable Act.
2.8 Effect of Acceptance
By accepting the Franchise, the Grantee: (1) acknowledges and accepts the City 's legal
right to issue and enforce the Franchise; (2) accepts and agrees to comply with each and every
provision of this Franchise subject to Applicable Law; and (3) agrees that the Franchise was
granted pursuant to processes and procedures consistent with Applicable Law, and that it will not
raise any claim to the contrary.
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SECTION 3. FRANCHISE FEE PAYMENT AND FINANCIAL CONTROLS
3.1 Franchise Fee
As compensation for the benefits and privileges granted under this Franchise and in
consideration of permission to use the City's Right-of-Way, Grantee shall within sixty (60) days
of the Effective Date of this agreement pay as a Franchise Fee to the City, throughout the
duration of and consistent with this Franchise, an amount equal to five percent (5%) of Grantee's
Gross Revenues.
3.2 Payments
Grantee's Franchise Fee payments to the City shall be computed quarterly for the
preceding calendar quarter ending March 31, June 30, September 30, and December 31. Each
quarterly payment shall be due and payable no later than forty-five (45) days after said dates.
3.3 Acceptance of Payment and Recomputation
No acceptance of any payment shall be construed as an accord by the City that the
amount paid is, in fact, the correct amount, nor shall any acceptance of payments be construed as
a release of any claim the City may have for further or additional sums payable or for the
performance of any other obligation of Grantee.
3.4 Quarterly Franchise Fee Reports
Each payment shall be accompanied by a written report to the City, or concurrently sent
under separate cover, verified by an authorized representative of Grantee, containing an accurate
statement in summarized form, as well as in detail, of Grantee's Gross Revenues and the
computation of the payment amount. Such reports shall detail all Gross Revenues of the Cable
System.
3.5 Annual Franchise Fee Reports
Grantee shall, within sixty (60) days after the end of each year, furnish to the City a
statement stating the total amount of Gross Revenues for the year and all payments, deductions
and computations for the period.
3.6 Franchise Fees Subject to Audit
On an annual basis, upon thirty (30) days prior written notice, the City, including the
City’s Auditor or his/her authorized representative, shall have the right to conduct an
independent audit/review of Grantee's records reasonably related to the administration or
enforcement of this Franchise. Pursuant to subsection 1.29, as part of the Franchise Fee
audit/review the City shall specifically have the right to review relevant data related to the
allocation of revenue to Cable Services in the event Grantee offers Cable Services bundled with
non-Cable Services. For purposes of this section, “relevant data” shall include, at a minimum,
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Grantee’s records, produced and maintained in the ordinary course of business, showing the
subscriber counts per package and the revenue allocation per package for each package that was
available for City subscribers during the audit period. To the extent that the City does not
believe that the relevant data supplied is sufficient for the City to complete its audit/review, the
City may require other relevant data. For purposes of this Section 3.6, the “other relevant data”
shall generally mean all: (1) billing reports, (2) financial reports (such as General Ledgers) and
(3) sample customer bills used by Grantee to determine Gross Revenues for the Franchise Area
that would allow the City to recompute the Gross Revenue determination. If the audit/review
shows that Franchise Fee payments have been underpaid by five percent (5%) or more (or such
other contract underpayment threshold as set forth in a generally applicable and enforceable
regulation or policy of the City related to audits), Grantee shall pay the total cost of the
audit/review, such cost not to exceed five thousand dollars ($5,000) for each year of the audit
period. The City’s right to audit/review and the Grantee’s obligation to retain records related to
this subsection shall expire three (3) years after each Franchise Fee payment has been made to
the City.
3.7 Late Payments
In the event any payment due quarterly is not received within forty-five (45) days from
the end of the calendar quarter, Grantee shall pay interest on the amount due (at the prime rate as
listed in the Wall Street Journal on the date the payment was due), compounded daily, calculated
from the date the payment was originally due until the date the City receives the payment.
3.8 Underpayments
If a net Franchise Fee underpayment is discovered as the result of an audit, Grantee shall
pay interest at the rate of the eight percent (8%) per annum, compounded quarterly, calculated
from the date each portion of the underpayment was originally due until the date Grantee remits
the underpayment to the City.
3.9 Alternative Compensation
In the event the obligation of Grantee to compensate the City through Franchise Fee
payments is lawfully suspended or eliminated, in whole or part, then Grantee shall pay to the
City compensation equivalent to the compensation paid to the City by other similarly situated
users of the City 's Right-of-Way for Grantee's use of the City 's Right-of-Way, provided that in
no event shall such payments exceed the equivalent of five percent (5%) of Grantee's Gross
Revenues (subject to the other provisions contained in this Franchise), to the extent consistent
with Applicable Law.
3.10 Maximum Legal Compensation
The parties acknowledge that, at present, applicable federal law limits the City to
collection of a maximum permissible Franchise Fee of five percent (5%) of Gross Revenues. In
the event that at any time during the duration of this Franchise, the City is authorized to collect
an amount in excess of five percent (5%) of Gross Revenues, then this Franchise may be
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amended unilaterally by the City to provide that such excess amount shall be added to the
Franchise Fee payments to be paid by Grantee to the City hereunder, provided that Grantee has
received at least ninety (90) days prior written notice from the City of such amendment, so long
as all cable operators in the City are paying the same Franchise Fee amount.
3.11 Additional Commitments Not Franchise Fee Payments
No term or condition in this Franchise shall in any way modify or affect Grantee's
obligation to pay Franchise Fees. Although the total sum of Franchise Fee payments and
additional commitments set forth elsewhere in this Franchise may total more than five percent
(5%) of Grantee's Gross Revenues in any twelve (12) month period, Grantee agrees that the
additional commitments herein are not Franchise Fees as defined under any federal law, nor are
they to be offset or credited against any Franchise Fee payments due to the City, nor do they
represent an increase in Franchise Fees; unless the additional commitments are authorized to be
offset in accordance with Applicable Law.
3.12 Tax Liability
The Franchise Fees shall be in addition to any and all taxes or other levies or assessments
which are now or hereafter required to be paid by businesses in general by any law of the City,
the State or the United States including, without limitation, sales, use and other taxes, business
license fees or other payments. Payment of the Franchise Fees under this Franchise shall not
exempt Grantee from the payment of any other license fee, permit fee, tax or charge on the
business, occupation, property or income of Grantee that may be lawfully imposed by the City.
Any other license fees, taxes or charges shall be of general applicability in nature and shall not
be levied against Grantee solely because of its status as a Cable Operator, or against Subscribers,
solely because of their status as such.
3.13 Financial Records
Grantee agrees to meet with a representative of the City upon request to review Grantee's
methodology of record-keeping, financial reporting, the computing of Franchise Fee obligations
and other procedures, the understanding of which the City deems necessary for reviewing reports
and records.
3.14 Payment on Termination
If this Franchise terminates for any reason, the Grantee shall file with the City within
ninety (90) calendar days of the date of the termination, a financial statement, certified by an
independent certified public accountant, showing the Gross Revenues received by the Grantee
since the end of the previous fiscal year. The City reserves the right to satisfy any remaining
financial obligations of the Grantee to the City by utilizing the funds available in any security
provided by the Grantee.
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SECTION 4. ADMINISTRATION AND REGULATION
4.1 Authority
(A) The City shall be vested with the power and right to reasonably regulate the
exercise of the privileges permitted by this Franchise in the public interest, or to delegate that
power and right, or any part thereof, to the extent permitted under Federal, State and local law, to
any agent, in its sole discretion, including without limitation, the Colorado Communications and
Utility Alliance.
(B) Nothing in this Franchise shall limit nor expand the City's right of eminent
domain under State law.
4.2 Rates and Charges
All of Grantee’s rates and charges related to or regarding Cable Services shall be subject
to regulation by the City to the full extent authorized by applicable federal, State and local laws.
4.3 Rate Discrimination
All of Grantee’s rates and charges shall be published (in the form of a publicly-available
rate card) and be non-discriminatory as to all Persons and organizations of similar classes, under
similar circumstances and conditions. Grantee shall apply its rates in accordance with
Applicable Law, with identical rates and charges for all Subscribers receiving identical Cable
Services, without regard to race, color, ethnic or national origin, religion, age, sex, sexual
orientation, marital, military or economic status, or physical or mental disability or geographic
location within the City. Grantee shall offer the same Cable Services to all Residential
Subscribers at identical rates to the extent required by Applicable Law and to Multiple Dwelling
Unit Subscribers to the extent authorized by FCC rules or applicable Federal law. Grantee shall
permit Subscribers to make any lawful in-residence connections the Subscriber chooses without
additional charge nor penalizing the Subscriber therefor. However, if any in-home connection
requires service from Grantee due to signal quality, signal leakage or other factors, caused by
improper installation of such in-home wiring or faulty materials of such in-home wiring, the
Subscriber may be charged reasonable service charges by Grantee. Nothing herein shall be
construed to prohibit:
(A) The temporary reduction or waiving of rates or charges in conjunction with valid
promotional campaigns; or,
(B) The offering of reasonable discounts to senior citizens or economically
disadvantaged citizens; or,
(C) The offering of rate discounts for Cable Service; or,
(D) The Grantee from establishing different and nondiscriminatory rates and charges
and classes of service for Commercial Subscribers, as allowable by federal law and regulations.
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4.4 Filing of Rates and Charges
(A) Throughout the term of this Franchise, Grantee shall maintain on file with the
City a complete schedule of applicable rates and charges for Cable Services provided under this
Franchise. Nothing in this subsection shall be construed to require Grantee to file rates and
charges under temporary reductions or waivers of rates and charges in conjunction with
promotional campaigns.
(B) Upon request of the City, Grantee shall provide a complete schedule of current
rates and charges for any and all Leased Access Channels, or portions of such Channels,
provided by Grantee. The schedule shall include a description of the price, terms, and conditions
established by Grantee for Leased Access Channels.
4.5 Cross Subsidization
Grantee shall comply with all Applicable Laws regarding rates for Cable Services and all
Applicable Laws covering issues of cross subsidization.
4.6 Reserved Authority
Both Grantee and the City reserve all rights they may have under the Cable Act and any
other relevant provisions of federal, State, or local law.
4.7 Franchise Amendment Procedure
Either party may at any time seek an amendment of this Franchise by so notifying the
other party in writing. Within thirty (30) days of receipt of notice, the City and Grantee shall
meet to discuss the proposed amendment(s). If the parties reach a mutual agreement upon the
suggested amendment(s), such amendment(s) shall be submitted to the City Council for its
approval. If so approved by the City Council and the Grantee, then such amendment(s) shall be
deemed part of this Franchise. If mutual agreement is not reached, there shall be no amendment.
4.8 Performance Evaluations
(A) The City may hold performance evaluation sessions upon ninety (90) days written
notice, provided that such evaluation sessions shall be held no more frequently than once every
two (2) years. All such evaluation sessions shall be conducted by the City.
(B) Special evaluation sessions may be held at any time by the City during the term of
this Franchise, upon ninety (90) days written notice to Grantee.
(C) All regular evaluation sessions shall be open to the public and announced at least
two (2) weeks in advance in any manner within the discretion of the City. Grantee shall also
include with or on the Subscriber billing statements for the billing period immediately preceding
the commencement of the session, written notification of the date, time, and place of the regular
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performance evaluation session, and any special evaluation session as required by the City,
provided Grantee receives appropriate advance notice.
(D) Topics which may be discussed at any evaluation session may include, but are not
limited to, Cable Service rate structures; Franchise Fee payments; liquidated damages; free or
discounted Cable Services; application of new technologies; Cable System performance; Cable
Services provided; programming offered; Subscriber complaints; privacy; amendments to this
Franchise; judicial and FCC rulings; line extension policies; and the City or Grantee's rules;
provided that nothing in this subsection shall be construed as requiring the renegotiation of this
Franchise.
(E) During evaluations under this subsection, Grantee shall fully cooperate with the
City and shall provide such information and documents maintained in the ordinary course of
business as the City may reasonably require to perform the evaluation.
4.9 Late Fees
(A) For purposes of this subsection, any assessment, charge, cost, fee or sum,
however characterized, that the Grantee imposes upon a Subscriber solely for late payment of a
bill is a late fee and shall be applied in accordance with the City’s Customer Service Standards,
as the same may be amended from time to time by the City Council acting by ordinance or
resolution, or as the same may be superseded by legislation or final court order.
(B) Nothing in this subsection shall be deemed to create, limit or otherwise affect the
ability of the Grantee, if any, to impose other assessments, charges, fees or sums other than those
permitted by this subsection, for the Grantee's other services or activities it performs in
compliance with Applicable Law, including FCC law, rule or regulation.
(C) The Grantee's late fee and disconnection policies and practices shall be
nondiscriminatory and such policies and practices, and any fees imposed pursuant to this
subsection, shall apply equally in all parts of the City without regard to the neighborhood or
income level of the Subscriber.
4.10 Force Majeure
In the event Grantee is prevented or delayed in the performance of any of its obligations
under this Franchise by reason beyond the control of Grantee, Grantee shall have a reasonable
time, under the circumstances, to perform the affected obligation under this Franchise or to
procure a substitute for such obligation which is satisfactory to the City. Those conditions which
are not within the control of Grantee include, but are not limited to, natural disasters, civil
disturbances, work stoppages or labor disputes, power outages, telephone network outages, and
severe or unusual weather conditions which have a direct and substantial impact on the Grantee’s
ability to provide Cable Services in the City and which was not caused and could not have been
avoided by the Grantee which used its best efforts in its operations to avoid such results.
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If Grantee believes that a reason beyond its control has prevented or delayed its
compliance with the terms of this Franchise, Grantee shall provide documentation as reasonably
required by the City to substantiate the Grantee’s claim. If Grantee has not yet cured the
deficiency, Grantee shall also provide the City with its proposed plan for remediation, including
the timing for such cure.
SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS
5.1 Indemnification
(A) General Indemnification. Grantee shall indemnify, defend and hold the City, its
officers, officials, boards, commissions, agents and employees, harmless from any action or
claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and
reasonable attorneys' fees or reasonable expenses, arising from any casualty or accident to Person
or property, including, without limitation, copyright infringement, defamation, and all other
damages in any way arising out of, or by reason of, any construction, excavation, operation,
maintenance, reconstruction, or any other act done under this Franchise, by or for Grantee, its
agents, or its employees, or by reason of any neglect or omission of Grantee. Grantee shall
consult and cooperate with the City while conducting its defense of the City. Grantee shall not be
obligated to indemnify the City to the extent of the City’s negligence or willful misconduct.
(B) Indemnification for Relocation. Grantee shall indemnify the City for any
damages, claims, additional costs or reasonable expenses assessed against, or payable by, the
City arising out of, or resulting from, directly or indirectly, Grantee's failure to remove, adjust or
relocate any of its facilities in the Rights-of-Way in a timely manner in accordance with any
relocation required by the City.
(C) Additional Circumstances. Grantee shall also indemnify, defend and hold the
City harmless for any claim for injury, damage, loss, liability, cost or expense, including court
and appeal costs and reasonable attorneys' fees or reasonable expenses in any way arising out of:
(1) The lawful actions of the City in granting this Franchise to the extent such
actions are consistent with this Franchise and Applicable Law.
(2) Damages arising out of any failure by Grantee to secure consents from the
owners, authorized distributors, or licensees/licensors of programs to be delivered by the
Cable System, whether or not any act or omission complained of is authorized, allowed
or prohibited by this Franchise.
(D) Procedures and Defense. If a claim or action arises, the City or any other
indemnified party shall promptly tender the defense of the claim to Grantee, which defense shall
be at Grantee’s expense. The City may participate in the defense of a claim, but if Grantee
provides a defense at Grantee’s expense then Grantee shall not be liable for any attorneys’ fees,
expenses or other costs that City may incur if it chooses to participate in the defense of a claim,
unless and until separate representation as described below in Paragraph 5.1(F) is required. In
that event the provisions of Paragraph 5.1(F) shall govern Grantee’s responsibility for City’s
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attorney’s fees, expenses or other costs. In any event, Grantee may not agree to any settlement
of claims affecting the City without the City 's approval.
(E) Non-waiver. The fact that Grantee carries out any activities under this Franchise
through independent contractors shall not constitute an avoidance of or defense to Grantee's duty
of defense and indemnification under this subsection.
(F) Expenses. If separate representation to fully protect the interests of both parties is
or becomes necessary, such as a conflict of interest between the City and the counsel selected by
Grantee to represent the City, Grantee shall pay, from the date such separate representation is
required forward, all reasonable expenses incurred by the City in defending itself with regard to
any action, suit or proceeding indemnified by Grantee. Provided, however, that in the event that
such separate representation is or becomes necessary, and City desires to hire counsel or any
other outside experts or consultants and desires Grantee to pay those expenses, then the City
shall be required to obtain Grantee’s consent to the engagement of such counsel, experts or
consultants, such consent not to be unreasonably withheld. The City's expenses shall include all
reasonable out-of-pocket expenses, such as consultants' fees, and shall also include the
reasonable value of any services rendered by the City Attorney or his/her assistants or any
employees of the City or its agents but shall not include outside attorneys’ fees for services that
are unnecessarily duplicative of services provided the City by Grantee.
5.2 Insurance
(A) Grantee shall maintain in full force and effect at its own cost and expense each of
the following policies of insurance:
(1) Commercial General Liability insurance with limits of no less than one
million dollars ($1,000,000.00) per occurrence and three million dollars ($3,000,000.00)
general aggregate. Coverage shall be at least as broad as that provided by ISO CG 00 01
1/96 or its equivalent and include severability of interests. Such insurance shall name the
City, its officers, officials and employees as additional insureds per ISO CG 2026 or its
equivalent. There shall be a waiver of subrogation and rights of recovery against the
City, its officers, officials and employees. Coverage shall apply as to claims between
insureds on the policy, if applicable.
(2) Commercial Automobile Liability insurance with minimum combined
single limits of one million dollars ($1,000,000.00) each occurrence with respect to each
of Grantee’s owned, hired and non-owned vehicles assigned to or used in the operation of
the Cable System in the City. The policy shall contain a severability of interests
provision.
(B) The insurance shall not be canceled or materially changed so as to be out of
compliance with these requirements without thirty (30) days' written notice first provided to the
City, via certified mail, and ten (10) days' notice for nonpayment of premium. If the insurance is
canceled or materially altered so as to be out of compliance with the requirements of this
subsection within the term of this Franchise, Grantee shall provide a replacement policy.
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Grantee agrees to maintain continuous uninterrupted insurance coverage, in at least the amounts
required, for the duration of this Franchise and, in the case of the Commercial General Liability,
for at least one (1) year after expiration of this Franchise.
5.4 Letter of Credit
(A) If there is a claim by the City of an uncured breach by Grantee of a material
provision of this Franchise or pattern of repeated violations of any provision(s) of this Franchise,
then the City may require and Grantee shall establish and provide within thirty (30) days from
receiving notice from the City, to the City as security for the faithful performance by Grantee of
all of the provisions of this Franchise, a letter of credit from a financial institution satisfactory to
the City in the amount of twenty-five thousand dollars ($25,000.00).
(B) In the event that Grantee establishes a letter of credit pursuant to the procedures of
this Section, then the letter of credit shall be maintained at twenty-five thousand dollars
($25,000) until the allegations of the uncured breach have been resolved.
(C) As an alternative to the provision of a Letter of Credit to the City as set forth in
Subsections 5.3 (A) and (B) above, if the City is a member of CCUA, and if Grantee provides a
Letter of Credit to CCUA in an amount agreed to between Grantee and CCUA for the benefit of
its members, in order to collectively address claims reference in 5.3 (A), Grantee shall not be
required to provide a separate Letter of Credit to the City.
(D) After completion of the procedures set forth in Section 13.1 or other applicable
provisions of this Franchise, the letter of credit may be drawn upon by the City for purposes
including, but not limited to, the following:
(1) Failure of Grantee to pay the City sums due under the terms of this
Franchise;
(2) Reimbursement of costs borne by the City to correct Franchise violations
not corrected by Grantee;
(3) Monetary remedies or damages assessed against Grantee due to default or
breach of Franchise requirements; and,
(4) Failure to comply with the Customer Service Standards of the City, as the
same may be amended from time to time by the City Council acting by ordinance or resolution.
(E) The City shall give Grantee written notice of any withdrawal under this
subsection upon such withdrawal. Within seven (7) days following receipt of such notice,
Grantee shall restore the letter of credit to the amount required under this Franchise.
(F) Grantee shall have the right to appeal to the City Council for reimbursement in the
event Grantee believes that the letter of credit was drawn upon improperly. Grantee shall also
have the right of judicial appeal if Grantee believes the letter of credit has not been properly
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drawn upon in accordance with this Franchise. Any funds the City erroneously or wrongfully
withdraws from the letter of credit shall be returned to Grantee with interest, from the date of
withdrawal at a rate equal to the prime rate of interest as quoted in the Wall Street Journal.
SECTION 6. CUSTOMER SERVICE
6.1 Customer Service Standards
Grantee shall comply with Customer Service Standards of the City, as the same may be amended
from time to time by the City Council in its sole discretion, acting by ordinance or resolution.
Any requirement in Customer Service Standards for a “local” telephone number may be met by
the provision of a toll-free number. The Customer Services Standards in effect as of the
Effective Date of this Franchise are attached as Exhibit A. Grantee reserves the right to
challenge any customer service ordinance which it believes is inconsistent with its contractual
rights under this Franchise.
6.2 Subscriber Privacy
The Grantee shall comply with all applicable federal, state, and local privacy laws,
including Section 631 of the Cable Act and regulations adopted pursuant thereto.
6.3 Subscriber Contracts
Grantee shall not enter into a contract with any Subscriber which is in any way
inconsistent with the terms of this Franchise, or any Exhibit hereto, or the requirements of any
applicable Customer Service Standard. Upon request, Grantee will provide to the City a sample
of the Subscriber contract or service agreement then in use.
6.4 Advance Notice to the City
The Grantee shall use reasonable efforts to furnish information provided to Subscribers or
the media in the normal course of business to the City in advance.
6.5 Identification of Local Franchise Authority on Subscriber Bills
Within sixty (60) days after written request from the City, Grantee shall place the City’s
phone number on its Subscriber bills, to identify where a Subscriber may call to address
escalated complaints.
SECTION 7. BOOKS AND RECORDS
7.1 Open Records
Grantee shall manage all of its operations in accordance with a policy of keeping its documents
and records open and accessible to the City. The City, including the City’s Auditor or his/her
authorized representative, shall have access to, and the right to inspect, any books and records of
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Grantee, its parent corporations and Affiliates which are reasonably related to the administration
or enforcement of the terms of this Franchise. Grantee shall not deny the City access to any of
Grantee's records on the basis that Grantee's records are under the control of any parent
corporation, Affiliate or a third party. The City may, in writing, request copies of any such
records or books and Grantee shall provide such copies within thirty (30) days of the transmittal
of such request. One (1) copy of all reports and records required under this or any other
subsection shall be furnished to the City, at the sole expense of Grantee. If the requested books
and records are too voluminous, or for security reasons cannot be copied or removed, then
Grantee may request, in writing within ten (10) days, that the City inspect them at Grantee's local
offices. If any books or records of Grantee are not kept in a local office and not made available
in copies to the City upon written request as set forth above, and if the City determines that an
examination of such records is necessary or appropriate for the performance of any of the City's
duties, administration or enforcement of this Franchise, then all reasonable travel and related
expenses incurred in making such examination shall be paid by Grantee.
7.2 Confidentiality
The City agrees to treat as confidential any books or records that constitute proprietary or
confidential information under federal or State law, to the extent Grantee makes the City aware
of such confidentiality. Grantee shall be responsible for clearly and conspicuously stamping the
word "Confidential" on each page that contains confidential or proprietary information, and shall
provide a brief written explanation as to why such information is confidential under State or
federal law. If the City believes it must release any such confidential books and records in the
course of enforcing this Franchise, or for any other reason, it shall advise Grantee in advance so
that Grantee may take appropriate steps to protect its interests. If the City receives a demand
from any Person for disclosure of any information designated by Grantee as confidential, the
City shall, so far as consistent with Applicable Law, advise Grantee and provide Grantee with a
copy of any written request by the party demanding access to such information within a
reasonable time. Until otherwise ordered by a court or agency of competent jurisdiction, the City
agrees that, to the extent permitted by State and federal law, it shall deny access to any of
Grantee's books and records marked confidential as set forth above to any Person. Grantee shall
reimburse the City for all reasonable costs and attorney’s fees incurred in any legal proceedings
pursued under this Section.
7.3 Records Required
(A) Grantee shall at all times maintain, and shall furnish to the City upon 30 days
written request and subject to Applicable Law:
(1) A complete set of maps showing the exact location of all Cable System
equipment and facilities in the Right-of-Way, but excluding detail on proprietary
electronics contained therein and Subscriber drops. As-built maps including proprietary
electronics shall be available at Grantee's offices for inspection by the City’s authorized
representative(s) or agent(s) and made available to such during the course of technical
inspections as reasonably conducted by the City. These maps shall be certified as
accurate by an appropriate representative of the Grantee;
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(2) A copy of all FCC filings on behalf of Grantee, its parent corporations or
Affiliates which relate to the operation of the Cable System in the City;
(3) A log of Cable Services added or dropped, Channel changes, number of
Subscribers added or terminated, all construction activity, and total homes passed for the
previous twelve (12) months; and
(4) A list of Cable Services, rates and Channel line-ups.
(B) Subject to subsection 7.2, all information furnished to the City is public
information, and shall be treated as such, except for information involving the privacy rights of
individual Subscribers.
7.4 Annual Reports
Within sixty (60) days of the City’s written request, Grantee shall submit to the City a
written report, in a form acceptable to the City, which shall include, but not necessarily be
limited to, the following information for the City:
(A) A Gross Revenue statement, as required by subsection 3.5 of this Franchise;
(B) A summary of the previous year's activities in the development of the Cable
System, including, but not limited to, Cable Services begun or discontinued during the reporting
year, and the number of Subscribers for each class of Cable Service (i.e., Basic, Digital Starter,
and Premium);
(C) The number of homes passed, beginning and ending plant miles, any services
added or dropped, and any technological changes occurring in the Cable System;
(D) A statement of planned construction, if any, for the next year; and,
(E) A copy of the most recent annual report Grantee filed with the SEC or other
governing body.
The parties agree that the City’s request for these annual reports shall remain effective, and need
only be made once. Such a request shall require the Grantee to continue to provide the reports
annually, until further written notice from the City to the contrary.
7.5 Copies of Federal and State Reports
Within thirty (30) days of a written request, Grantee shall submit to the City copies of all
pleadings, applications, notifications, communications and documents of any kind, submitted by
Grantee or its parent corporation(s), to any federal, State or local courts, regulatory agencies and
other government bodies if such documents directly relate to the operations of Grantee's Cable
System within the City. Grantee shall not claim confidential, privileged or proprietary rights to
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such documents unless under federal, State, or local law such documents have been determined
to be confidential by a court of competent jurisdiction, or a federal or State agency.
7.6 Complaint File and Reports
(A) Grantee shall keep an accurate and comprehensive file of any complaints
regarding the Cable System, in a manner consistent with the privacy rights of Subscribers, and
Grantee's actions in response to those complaints. These files shall remain available for viewing
to the City during normal business hours at Grantee’s local business office.
(B) Within thirty (30) days of a written request, Grantee shall provide the City a
quarterly executive summary in the form attached hereto as Exhibit B, which shall include the
following information from the preceding quarter:
(1) A summary of service calls, identifying the number and nature of the
requests and their disposition;
(2) A log of all service interruptions;
(3) A summary of customer complaints referred by the City to Grantee; and,
(4) Such other information as reasonably requested by the City.
The parties agree that the City’s request for these summary reports shall remain effective, and
need only be made once. Such a request shall require the Grantee to continue to provide the
reports quarterly, until further written notice from the City to the contrary.
7.7 Failure to Report
The failure or neglect of Grantee to file any of the reports or filings required under this
Franchise or such other reports as the City may reasonably request (not including clerical errors
or errors made in good faith), may, at the City's option, be deemed a breach of this Franchise.
7.8 False Statements
Any false or misleading statement or representation in any report required by this
Franchise (not including clerical errors or errors made in good faith) may be deemed a material
breach of this Franchise and may subject Grantee to all remedies, legal or equitable, which are
available to the City under this Franchise or otherwise.
SECTION 8. PROGRAMMING
8.1 Broad Programming Categories
Grantee shall provide or enable the provision of at least the following initial broad
categories of programming to the extent such categories are reasonably available:
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(A) Educational programming;
(B) Colorado news, weather & information;
(C) Sports;
(D) General entertainment (including movies);
(E) Children/family-oriented;
(F) Arts, culture and performing arts;
(G) Foreign language;
(H) Science/documentary;
(I) National news, weather and information; and,
(J) Public, Educational and Government Access, to the extent required by this
Franchise.
8.2 Deletion or Reduction of Broad Programming Categories
(A) Grantee shall not delete or so limit as to effectively delete any broad category of
programming within its control without the prior written consent of the City.
(B) In the event of a modification proceeding under federal law, the mix and quality
of Cable Services provided by Grantee on the Effective Date of this Franchise shall be deemed
the mix and quality of Cable Services required under this Franchise throughout its term.
8.3 Obscenity
Grantee shall not transmit, or permit to be transmitted over any Channel subject to its
editorial control, any programming which is obscene under, or violates any provision of,
Applicable Law relating to obscenity, and is not protected by the Constitution of the United
States. Grantee shall be deemed to have transmitted or permitted a transmission of obscene
programming only if a court of competent jurisdiction has found that any of Grantee's officers or
employees or agents have permitted programming which is obscene under, or violative of, any
provision of Applicable Law relating to obscenity, and is otherwise not protected by the
Constitution of the United States, to be transmitted over any Channel subject to Grantee's
editorial control. Grantee shall comply with all relevant provisions of federal law relating to
obscenity.
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8.4 Parental Control Device
Upon request by any Subscriber, Grantee shall make available a parental control or
lockout device, traps or filters to enable a Subscriber to control access to both the audio and
video portions of any or all Channels. Grantee shall inform its Subscribers of the availability of
the lockout device at the time of their initial subscription and periodically thereafter. Any device
offered shall be at a rate, if any, in compliance with Applicable Law.
8.5 Continuity of Service Mandatory
(A) It shall be the right of all Subscribers to continue to receive Cable Service from
Grantee insofar as their financial and other obligations to Grantee are honored and they are in
compliance with Grantee’s terms of services, residential service agreement or other such
provisions. The Grantee shall act so as to ensure that all Subscribers receive continuous,
uninterrupted Cable Service regardless of the circumstances. For the purposes of this subsection,
"uninterrupted" does not include short-term outages of the Cable System for maintenance or
testing.
(B) In the event of a change of grantee, or in the event a new Cable Operator acquires
the Cable System in accordance with this Franchise, Grantee shall cooperate with the City, new
franchisee or Cable Operator in maintaining continuity of Cable Service to all Subscribers.
During any transition period, Grantee shall be entitled to the revenues for any period during
which it operates the Cable System, and shall be entitled to reasonable costs for its services when
it no longer operates the Cable System.
(C) In the event Grantee fails to operate the Cable System for four (4) consecutive
days without prior approval of the Manager, or without just cause, the City may, at its option,
operate the Cable System itself or designate another Cable Operator until such time as Grantee
restores service under conditions acceptable to the City or a permanent Cable Operator is
selected. If the City is required to fulfill this obligation for Grantee, Grantee shall reimburse the
City for all reasonable costs or damages that are the result of Grantee's failure to perform.
8.6 Services for the Disabled
Grantee shall comply with the Americans with Disabilities Act and any amendments
thereto.
SECTION 9. ACCESS
9.1 Designated Access Providers
(A) The City shall have the sole and exclusive responsibility for identifying the
Designated Access Providers, including itself for Access purposes, to control and manage the use
of any or all Access Facilities provided by Grantee under this Franchise. As used in this Section,
such “Access Facilities” includes the Channels, services, facilities, equipment, technical
components and/or financial support provided under this Franchise, which is used or useable by
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and for Public Access, Educational Access, and Government Access (“PEG” or “PEG Access”).
(B) Grantee shall cooperate with City in City’s efforts to provide Access
programming but will not be responsible or liable for any damages resulting from a claim in
connection with the programming placed on the Access Channels by the Designated Access
Provider.
9.2 Channel Capacity and Use
(A) Grantee shall make available to the City up to five (5) Downstream Channels for
PEG use as provided for in this Section. The Downstream Channels allocated under this Section
are the same common channels that Grantee shall make available to the City, Pitkin County, and
the Town of Snowmass Village, and all five (5) of these Access Channels will continue to be
distributed on the local channel lineup within the Town of Basalt subject to financial and
technical feasibility of doing the same. Grantee further acknowledges that as of the Effective
Date of this Franchise Agreement, it is financially and technically feasible to distribute these
Channels on the local channel lineup in Basalt. It is intended that these five (5) common
Downstream Channels will be used for the provision of programming to subscribers of PEG
programming by the four communities, and the individual jurisdictions and educational
institutions therein. If, at any time during the term of this Franchise Agreement, the City no
longer shares in providing programming content on the Access Channels described in this
Section 9.2, Grantee shall have the right pursuant to 47 U.S.C. §545, to modify the number of
Access Channels made available to the City to better reflect the cable related needs of the City
individually, and not based upon shared access as contemplated in this Section.
(B) Grantee shall have the right to temporarily use any Channel, or portion thereof,
which is allocated under this Section for Public, Educational, or Governmental Access use,
within sixty (60) days after a written request for such use is submitted to the City, if such
Channel is not "fully utilized" as defined herein. A Channel shall be considered fully utilized if
substantially unduplicated programming is delivered over it more than an average of 38 hours
per week over a six (6) month period. Since the Access Channels are shared by multiple local
franchising authorities, the total amount of programming delivered by all such entities shall be
used in calculating whether a Channel is fully utilized as described herein. Programming that is
repeated on an Access Channel up to two times per day shall be considered “unduplicated
programming.” Character-generated programming shall be included for purposes of this
subsection, but may be counted towards the total average hours only with respect to two (2)
Channels provided to the City. If a Channel allocated for Public, Educational, or Governmental
Access use will be used by Grantee in accordance with the terms of this subsection, the
institution to which the Channel has been allocated shall have the right to require the return of
the Channel or portion thereof. The City shall request return of such Channel space by
delivering written notice to Grantee stating that the institution is prepared to fully utilize the
Channel, or portion thereof, in accordance with this subsection. In such event, the Channel or
portion thereof shall be returned to such institution within sixty (60) days after receipt by
Grantee of such written notice.
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(C) Standard Definition (“SD”) Digital Access Channels.
(1) Grantee shall provide three (3) Activated Downstream Channels for PEG
Access use in a standard definition (“SD”) digital format in Grantee’s Basic Service (“SD
Access Channel”). Grantee shall carry all components of the SD Access Channel Signals
provided by a Designated Access Provider including, but not limited to, closed
captioning, stereo audio and other elements associated with the Programming. A
Designated Access Provider shall be responsible for providing the SD Access Channel
Signal in an SD format to the demarcation point at the designated point of origination for
the SD Access Channel. Grantee shall transport and distribute the SD Access Channel
signal on its Cable System and shall not unreasonably discriminate against SD Access
Channels with respect to accessibility, functionality and to the application of any
applicable Federal Communications Commission Rules & Regulations, including without
limitation Subpart K Channel signal standards.
(2) With respect to signal quality, Grantee shall not be required to carry a SD
Access Channel in a higher quality format than that of the SD Access Channel signal
delivered to Grantee, but Grantee shall distribute the SD Access Channel signal without
degradation. Upon reasonable written request by a Designated Access Provider, Grantee
shall verify signal delivery to Subscribers with the Designated Access Provider,
consistent with the requirements of this Section 9.2(C).
(3) Grantee shall be responsible for costs associated with the transmission of
SD Access signals on its side of the demarcation point which for the purposes of this
Section 9.2 (C)(3), shall mean up to and including the modulator where the City signal is
converted into a format to be transmitted over a fiber connection to Grantee. The City or
Designated Access Provider shall be responsible for costs associated with SD Access
signal transmission on its side of the demarcation point.
(4) SD Access Channels may require Subscribers to buy or lease special
equipment, available to all Subscribers, and subscribe to those tiers of Cable Service,
upon which SD channels are made available. Grantee is not required to provide free SD
equipment to Subscribers, including complimentary government and educational
accounts, nor modify its equipment or pricing policies in any manner.
(D) High Definition (“HD”) Digital Access Channels.
(1) After the Effective Date and within one hundred twenty (120) days’
written notice, Grantee shall activate one (1) HD Access Channel to be shared by the
City, Pitkin County, and the Towns of Snowmass Village and Basalt, for which the City
may provide Access Channel signals in HD format to the demarcation point at the
designated point of origination for the Access Channel. Beginning two (2) years after the
Effective Date, and no later than one hundred twenty (120) days after written notice,
Grantee shall activate a second HD channel. For the purposes of this Section, all
references to HD channels acknowledge that such Access Channels are common channels
shared by the four jurisdictions.
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(a) The City shall, in its written notice to Grantee as provided for in
this Section, confirm that it, Pitkin County, the Towns of Snowmass Village and
Basalt, and/or its Designated Access Provider has the capabilities to produce, has
been producing and will produce programming in an HD format for the newly
activated HD Access Channel(s); and,
(b) There will be a minimum of five (5) hours per-day, five days per-
week of HD PEG programming available for each HD Access Channel. For the
purposes of this subsection, character-generated programming (i.e., community
bulletin boards) shall not satisfy, in whole or in part, this programming
requirement.
(2) The City shall be responsible for providing the HD Access Channel signal
in an HD digital format to the demarcation point at the designated point of origination for
the HD Access Channel. For purposes of this Franchise, an HD signal refers to a
television signal delivering picture resolution of either 720p or 1080i, or such other
resolution in this same range that Grantee utilizes for other similar non-sport, non-movie
programming channels on the Cable System, whichever is greater.
(3) Grantee shall transport and distribute the HD Access Channel signal on its
Cable System and shall not unreasonably discriminate against HD Access Channels with
respect to accessibility, functionality and to the application of any applicable Federal
Communications Commission Rules & Regulations, including without limitation Subpart
K Channel signal standards. With respect to signal quality, Grantee shall not be required
to carry a HD Access Channel in a higher quality format than that of the HD Access
Channel signal delivered to Grantee, but Grantee shall distribute the HD Access Channel
signal without degradation. Grantee shall carry all components of the HD Access
Channel signals provided by the Designated Access Provider including, but not limited
to, closed captioning, stereo audio and other elements associated with the Programming.
Upon reasonable written request by the City, Grantee shall verify signal delivery to
Subscribers with the City, consistent with the requirements of this Section 9.2(D).
(4) HD Access Channels may require Subscribers to buy or lease special
equipment, available to all Subscribers, and subscribe to those tiers of Cable Service,
upon which HD channels are made available. Grantee is not required to provide free HD
equipment to Subscribers, including complimentary government and educational
accounts, nor modify its equipment or pricing policies in any manner.
(5) The City or any Designated Access Provider is responsible for acquiring
all equipment necessary to produce programming in HD.
(6) Grantee shall cooperate with the City to procure and provide, at the City’s
cost, all necessary transmission equipment from the Designated Access Provider channel
origination point, at Grantee’s headend and through Grantee’s distribution system, in
order to deliver the HD Access Channels. The City shall be responsible for the costs of
all transmission equipment, including HD modulator and demodulator, and encoder or
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decoder equipment, and multiplex equipment, required in order for Grantee to receive
and distribute the HD Access Channel signal, or for the cost of any resulting upgrades to
the video return line. The City and Grantee agree that such expense of acquiring and
installing the transmission equipment or upgrades to the video return line qualifies as a
capital cost for PEG Facilities within the meaning of the Cable Act 47 U.S.C.A. Section
542(g)(20)(C), and therefore is an appropriate use of revenues derived from those PEG
Capital fees provided for in this Franchise.
(E) Grantee shall simultaneously carry the two (2) initial HD Access Channels
provided for in Section 9.2(D) in high definition format on the Cable System, in addition to
simultaneously carrying in standard definition format the SD Access Channels provided pursuant
to Subsection 9.2(C).
(F) There shall be no restriction on Grantee’s technology used to deploy and deliver
SD or HD signals so long as the requirements of the Franchise are otherwise met. Grantee may
implement HD carriage of the PEG channel in any manner (including selection of compression,
utilization of IP, and other processing characteristics) that produces a signal quality for the
consumer that is reasonably comparable and functionally equivalent to similar commercial HD
channels carried on the Cable System. In the event the City believes that Grantee fails to meet
this standard, the Town will notify Grantee of such concern, and Grantee will respond to any
complaints in a timely manner.
9.3 Access Channel Assignments and Relocation
Grantee shall use its best efforts to minimize the movement of SD and HD Access
Channel assignments. Grantee shall provide the City a minimum of sixty (60) days' notice, and
use its best efforts to provide one hundred and twenty (120) days’ notice, prior to the time
Public, Educational, and Governmental Access Channel designations are changed. In addition,
Grantee will make reasonable efforts to locate HD Access Channels provided pursuant to
Subsection 9.2(D) in a location on its HD Channel line-up that is easily accessible to
Subscribers.
9.4 Web-Based Video On Demand and Streaming
(A) After the Effective Date and within one hundred twenty (120) days’ written
notice, Grantee shall provide at no cost to the County Administration and Sheriff’s Office at 530
East Main Street, Aspen, CO 81611, a business class broadband connection, broadband service
and all necessary hardware, to enable the City, Pitkin County, and the Towns of Snowmass
Village and Basalt to deliver web-based PEG content. If, during the term of this Franchise, the
jurisdictions within Pitkin County move the location and such new location does not have the
capacity to connect and receive the broadband service described in this Section 9.4(A), the cost
of upgrading the network to enable such service shall be incurred by the City and the other
jurisdictions. The broadband connection provided herein shall be used exclusively for web-
based on demand Access programming and/or web-based video streaming of Access content.
Within ninety (90) days after written request of Pitkin County, Grantee shall additionally provide
a one-time grant of funding, which the City and the other jurisdictions in the County shall use to
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acquire and/or for replacement costs for a video on demand server for facilitating the web-based
Access programming described in this Section 9.4. The grant of funding allocated under this
Section is a collective grant that Grantee is providing in the franchise agreements of each
participating member community – Pitkin County, the City of Aspen, the Town of Snowmass
Village and the Town of Basalt. The total amount of this collective grant shall not exceed twenty
thousand dollars ($20,000).
(B) The City’s Designated Access Provider(s) may provide web-based video on
demand programming on line; provided however, that such Designated Access Provider(s) shall
be responsible for its own costs related to a video on demand server, broadband connection and
service and any other associated equipment.
(C) For all of the City’s and its Designated Access Provider’s web-based on demand
Access programming facilitated through the broadband connection and service described in this
Section 9.4, Grantee shall be permitted to provide its logo which shall be displayed on the main
web page for the web-based Access programming. Notwithstanding the foregoing, the size of
the City’s or Designated Access Provider’s logos may be as large as or larger than Grantee’s
logo, in the City’s or Designated Access Provider’s sole reasonable discretion.
(D) Any costs incurred by Grantee in facilitating the web-based on demand Access
programming described in this Section 9.4 may be recovered from Subscribers by Grantee in
accordance with Applicable Law.
9.5 Support for Access Costs
During the term of this Franchise Agreement, Grantee shall continue to provide fifty
cents ($0.50) per month per Residential Subscriber (the "PEG Contribution") to be used solely
for capital costs related to Public, Educational and Governmental Access and the web based on
demand Access programming described in Section 9.4, or as may be permitted by Applicable
Law. To address inflationary impacts on capital equipment or to evaluate whether the City’s
PEG Access capital costs have reduced with time, the City and Grantee may meet no more than
three times after the Effective Date to discuss whether to increase or to decrease the PEG
Contribution. The primary purpose of such meetings will be for the parties to review prior
expenditures and future capital plans to determine if the current PEG Contribution is reasonably
appropriate to meet future needs. The City and Grantee may suggest to each other, based upon
their own assessments of reasonable past practices and future anticipated needs, whether the
current level of PEG Contribution is appropriate. If either party believes that the PEG
Contribution should be modified in a reasonable amount to address such future needs the parties
shall share all relevant information supporting their positions and negotiate in good faith to
determine if the PEG Contribution should be increased or decreased, and if so, in what amount.
Such discussions regarding potential adjustment to the PEG Contribution will be conducted
pursuant to the Franchise amendment procedures in Section 4.8 of this Franchise. Grantee shall
make PEG Contribution payments quarterly, following the effective date of this Franchise
Agreement for the preceding quarter ending March 31, June 30, September 30, and December
31. Each payment shall be due and payable no later than forty-five (45) days following the end of
the quarter. The City shall have sole discretion to allocate the expenditure of such payments for
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any capital costs related to PEG Access. The parties agree that this Franchise shall provide the
City discretion to utilize Access payments for new internal network connections and
enhancements to the City’s existing network.
9.6 Access Support Not Franchise Fees
Grantee agrees that capital support for Access Costs arising from or relating to the
obligations set forth in this Section shall in no way modify or otherwise affect Grantee's
obligations to pay Franchise Fees to the City. Grantee agrees that although the sum of Franchise
Fees plus the payments set forth in this Section may total more than five percent (5%) of
Grantee's Gross Revenues in any 12-month period, the additional commitments shall not be
offset or otherwise credited in any way against any Franchise Fee payments under this Franchise
Agreement so long as such support is used for capital Access purposes consistent with this
Franchise and federal law.
9.7 Access Channels On Basic Service or Lowest Priced HD Service Tier
All SD Access Channels under this Franchise Agreement shall be included by Grantee,
without limitation, as part of Basic Service. All HD Access Channels under this Franchise
Agreement shall be included by Grantee, without limitation, as part of the lowest priced tier of
HD Cable Service upon which Grantee provides HD programming content.
9.8 Change In Technology
In the event Grantee makes any change in the Cable System and related equipment and
Facilities or in Grantee's signal delivery technology, which directly or indirectly affects the
signal quality or transmission of Access services or programming, Grantee shall at its own
expense take necessary technical steps or provide necessary technical assistance, including the
acquisition of all necessary equipment, and full training of the City’s Access personnel to ensure
that the capabilities of Access services are not diminished or adversely affected by such change.
If the City implements a new video delivery technology that is currently offered and can be
accommodated on the Grantee’s local Cable System then the same provisions above shall apply.
If the City implements a new video delivery technology that is not currently offered on and/or
that cannot be accommodated by the Grantee’s local Cable System, then the City shall be
responsible for acquiring all necessary equipment, facilities, technical assistance, and training to
deliver the signal to the Grantee’s headend for distribution to subscribers.
9.9 Technical Quality
Grantee shall maintain all upstream and downstream Access services and Channels on its
side of the demarcation point at the same level of technical quality and reliability required by this
Franchise Agreement and all other applicable laws, rules and regulations for Residential
Subscriber Channels. Grantee shall provide routine maintenance for all transmission equipment
on its side of the demarcation point, including modulators, decoders, multiplex equipment, and
associated cable and equipment necessary to carry a quality signal to and from the City’s
facilities for the Access Channels provided under this Franchise Agreement, including the
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business class broadband equipment and services necessary for the video on demand and
streaming service described in Section 9.4. Grantee shall also provide, if requested in advance by
the City, advice and technical expertise regarding the proper operation and maintenance of
transmission equipment on the City’s side of the demarcation point. The City shall be
responsible for all initial and replacement costs of all HD modulator and demodulator equipment,
web-based video on demand servers and web-based video streaming servers. The City shall also
be responsible, at its own expense, to replace any of the Grantee’s equipment that is damaged by
the gross negligence or intentional acts of City staff. The Grantee shall be responsible, at its own
expense, to replace any of the City’s equipment that is damaged by the gross negligence or
intentional acts of Grantee’s staff. The City will be responsible for the cost of repairing and/or
replacing any HD PEG Access and web-based video on demand transmission equipment that
Grantee maintains that is used exclusively for transmission of the City’s and/or its Designated
Access Providers’ HD Access programming.
9.10 Access Cooperation
The City may designate any other jurisdiction which has entered into an agreement with
Grantee or an Affiliate of Grantee based upon this Franchise Agreement, any CCUA member,
the CCUA, or any combination thereof to receive any Access benefit due the City hereunder, or
to share in the use of Access Facilities hereunder. The purpose of this subsection shall be to
allow cooperation in the use of Access and the application of any provision under this Section as
the City in its sole discretion deems appropriate, and Grantee shall cooperate fully with, and in,
any such arrangements by the City.
9.11 Return Lines
(A) Grantee shall, at its expense, maintain the existing operating return lines sufficient
to enable character generated, prerecorded and live cablecasts from Pitkin County
Administration and Sheriff’s Office building located at 530 East Main Street, Aspen, CO 81611;
Pitkin County Library, 120 North Mill Street, Aspen, CO 81611; Aspen City Hall located at 130
South Galena, Aspen, CO 81611; Pitkin County Airport, located at 233 East Airport Road, Suite
A, Aspen, CO 81612; Snowmass Village City Hall, 130 Kearns Road, Snowmass Village, CO
81615; and the Grass Roots TV studio located at 110 East Hallam Street in Aspen to the
Headend to enable the distribution of Access programming to Subscribers. Grantee shall not be
required to maintain return lines to the Grass Roots TV studio if the Town ceases to use Grass
Roots as a Designated Access Provider.
(B) Grantee shall construct and maintain new Fiber Optic return lines to the Headend
from production facilities of new or relocated Designated Access Providers delivering Access
programming to Residential Subscribers as requested in writing by the City. All actual
construction costs incurred by Grantee from the nearest interconnection point to the Designated
Access Provider shall be paid by the City or the Designated Access Provider. New return lines
shall be completed within one (1) year from the request of the City or its Designated Access
Provider, or as otherwise agreed to by the parties. If an emergency situation necessitates
movement of production facilities to a new location, the parties shall work together to complete
the new return line as soon as reasonably possible.
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(C) Return l ines shall be maintained by Grantee in the same manner as the rest of
the Cable System so that Access Channels may be viewed at the same quality that is provided
by the City or its Designated Access Provider.
SECTION 10. GENERAL RIGHT-OF-WAY USE AND CONSTRUCTION
10.1 Right to Construct
Subject to Applicable Law, regulations, rules, resolutions and ordinances of the City and
the provisions of this Franchise, Grantee may perform all construction in the Rights-of-Way for
any facility needed for the maintenance or extension of Grantee's Cable System.
10.2 Right-of-Way Meetings
Grantee will regularly attend and participate in meetings of the City, of which the
Grantee is made aware, regarding Right-of-Way issues that may impact the Cable System.
10.3 Joint Trenching/Boring Meetings
Grantee will regularly attend and participate in planning meetings of the City, of which
the Grantee is made aware, to anticipate joint trenching and boring. Whenever it is possible and
reasonably practicable to joint trench or share bores or cuts, Grantee shall work with other
providers, licensees, permittees, and franchisees so as to reduce so far as possible the number of
Right-of-Way cuts within the City.
10.4 General Standard
All work authorized and required hereunder shall be done in a safe, thorough and
workmanlike manner. All installations of equipment shall be permanent in nature, durable and
installed in accordance with good engineering practices.
10.5 Permits Required for Construction
Prior to doing any work in the Right-of Way or other public property, Grantee shall apply
for, and obtain, appropriate permits from the City. As part of the permitting process, the City
may impose such conditions and regulations as are necessary for the purpose of protecting any
structures in such Rights-of-Way, proper restoration of such Rights-of-Way and structures, the
protection of the public, and the continuity of pedestrian or vehicular traffic. Such conditions
may also include the provision of a construction schedule and maps showing the location of the
facilities to be installed in the Right-of-Way. Grantee shall pay all applicable fees for the
requisite City permits received by Grantee.
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10.6 Emergency Permits
In the event that emergency repairs are necessary, Grantee shall immediately notify the
City of the need for such repairs. Grantee may initiate such emergency repairs, and shall apply
for appropriate permits within forty-eight (48) hours after discovery of the emergency.
10.7 Compliance with Applicable Codes
(A) City Construction Codes. Grantee shall comply with all applicable City
construction codes, including, without limitation, the Uniform Building Code and other building
codes, the Uniform Fire Code, the Uniform Mechanical Code, the Electronic Industries
Association Standard for Physical Location and Protection of Below-Ground Fiber Optic Cable
Plant, and zoning codes and regulations.
(B) Tower Specifications. Antenna supporting structures (towers) shall be designed
for the proper loading as specified by the Electronics Industries Association (EIA), as those
specifications may be amended from time to time. Antenna supporting structures (towers) shall
be painted, lighted, erected and maintained in accordance with all applicable rules and
regulations of the Federal Aviation Administration and all other applicable federal, State, and
local codes or regulations.
(C) Safety Codes. Grantee shall comply with all federal, State and City safety
requirements, rules, regulations, laws and practices, and employ all necessary devices as required
by Applicable Law during construction, operation and repair of its Cable System. By way of
illustration and not limitation, Grantee shall comply with the National Electric Code, National
Electrical Safety Code and Occupational Safety and Health Administration (OSHA) Standards.
10.8 GIS Mapping
Grantee shall comply with any generally applicable ordinances, rules and regulations of
the City regarding geographic information mapping systems for users of the Rights-of-Way.
10.9 Minimal Interference
Work in the Right-of-Way, on other public property, near public property, or on or near
private property shall be done in a manner that causes the least interference with the rights and
reasonable convenience of property owners and residents. Grantee's Cable System shall be
constructed and maintained in such manner as not to interfere with sewers, water pipes, or any
other property of the City, or with any other pipes, wires, conduits, pedestals, structures, or other
facilities that may have been laid in the Rights-of-Way by, or under, the City’s authority. The
Grantee's Cable System shall be located, erected and maintained so as not to endanger or
interfere with the lives of Persons, or to interfere with new improvements the City may deem
proper to make or to unnecessarily hinder or obstruct the free use of the Rights-of-Way or other
public property, and shall not interfere with the travel and use of public places by the public
during the construction, repair, operation or removal thereof, and shall not obstruct or impede
traffic. In the event of such interference, the City may require the removal or relocation of
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Grantee’s lines, cables, equipment and other appurtenances from the property in question at
Grantee’s expense.
10.10 Prevent Injury/Safety
Grantee shall provide and use any equipment and facilities necessary to control and carry
Grantee's signals so as to prevent injury to the City's property or property belonging to any
Person. Grantee, at its own expense, shall repair, renew, change and improve its facilities to
keep them in good repair, and safe and presentable condition. All excavations made by Grantee
in the Rights-of-Way shall be properly safeguarded for the prevention of accidents by the
placement of adequate barriers, fences or boarding, the bounds of which, during periods of dusk
and darkness, shall be clearly designated by warning lights.
10.11 Hazardous Substances
(A) Grantee shall comply with any and all Applicable Laws, statutes, regulations and
orders concerning hazardous substances relating to Grantee's Cable System in the Rights-of-
Way.
(B) Upon reasonable notice to Grantee, the City may inspect Grantee's facilities in the
Rights-of-Way to determine if any release of hazardous substances has occurred, or may occur,
from or related to Grantee's Cable System. In removing or modifying Grantee's facilities as
provided in this Franchise, Grantee shall also remove all residue of hazardous substances related
thereto.
(C) Grantee agrees to indemnify the City against any claims, costs, and expenses, of
any kind, whether direct or indirect, incurred by the City arising out of a release of hazardous
substances caused by Grantee's Cable System.
10.12 Locates
Prior to doing any work in the Right-of-Way, Grantee shall give appropriate notices to
the City and to the notification association established in C.R.S. Section 9-1.5-105, as such may
be amended from time to time.
Within forty-eight (48) hours after any City bureau or franchisee, licensee or permittee
notifies Grantee of a proposed Right-of-Way excavation, Grantee shall, at Grantee's expense:
(A) Mark on the surface all of its located underground facilities within the area of the
proposed excavation;
(B) Notify the excavator of any unlocated underground facilities in the area of the
proposed excavation; or
(C) Notify the excavator that Grantee does not have any underground facilities in the
vicinity of the proposed excavation.
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10.13 Notice to Private Property Owners
Grantee shall give notice to private property owners of work on or adjacent to private
property in accordance with the City’s Customer Service Standards, as the same may be
amended from time to time by the City Council acting by Ordinance or resolution.
10.14 Underground Construction and Use of Poles
(A) When required by general ordinances, resolutions, regulations or rules of the City
or applicable State or federal law, Grantee's Cable System shall be placed underground at
Grantee's expense unless funding is generally available for such relocation to all users of the
Rights-of-Way. Placing facilities underground does not preclude the use of ground-mounted
appurtenances.
(B) Where electric, telephone, and other above-ground utilities are installed
underground at the time of Cable System construction, or when all such wiring is subsequently
placed underground, all Cable System lines shall also be placed underground with other wireline
service at no expense to the City or Subscribers unless funding is generally available for such
relocation to all users of the Rights-of-Way. Related Cable System equipment, such as
pedestals, must be placed in accordance with the City’s applicable code requirements and rules.
In areas where either electric or telephone utility wiring is aerial, the Grantee may install aerial
cable, except when a property owner or resident requests underground installation and agrees to
bear the additional cost in excess of aerial installation.
(C) The Grantee shall utilize existing poles and conduit wherever possible.
(D) In the event Grantee cannot obtain the necessary poles and related facilities
pursuant to a pole attachment agreement, and only in such event, then it shall be lawful for
Grantee to make all needed excavations in the Rights-of-Way for the purpose of placing,
erecting, laying, maintaining, repairing, and removing poles, supports for wires and conductors,
and any other facility needed for the maintenance or extension of Grantee's Cable System. All
poles of Grantee shall be located as designated by the proper City authorities.
(E) This Franchise does not grant, give or convey to the Grantee the right or privilege
to install its facilities in any manner on specific utility poles or equipment of the City or any
other Person. Copies of agreements for the use of poles, conduits or other utility facilities must
be provided upon request by the City.
10.15 Undergrounding of Multiple Dwelling Unit Drops
In cases of single site Multiple Dwelling Units, Grantee shall minimize the number of
individual aerial drop cables by installing multiple drop cables underground between the pole
and Multiple Dwelling Unit where determined to be technologically feasible in agreement with
the owners and/or owner's association of the Multiple Dwelling Units.
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10.16 Burial Standards
(A) Depths. Unless otherwise required by law, Grantee, and its contractors, shall
comply with the following burial depth standards. In no event shall Grantee be required to bury
its cable deeper than electric or gas facilities, or existing telephone facilities in the same portion
of the Right-of-Way, so long as those facilities have been buried in accordance with Applicable
Law:
Underground cable drops from the curb shall be buried at a
minimum depth of twelve (12) inches, unless a sprinkler system or
other construction concerns preclude it, in which case,
underground cable drops shall be buried at a depth of at least six
(6) inches.
Feeder lines shall be buried at a minimum depth of eighteen (18) inches.
Trunk lines shall be buried at a minimum depth of thirty-six (36) inches.
Fiber Optic cable shall be buried at a minimum depth of thirty-six (36) inches.
In the event of a conflict between this subsection and the provisions of any customer service
standard, this subsection shall control.
(B) Timeliness. Cable drops installed by Grantee to residences shall be buried
according to these standards within one calendar week of initial installation, or at a time
mutually-agreed upon between the Grantee and the Subscriber. When freezing surface
conditions prevent Grantee from achieving such timetable, Grantee shall apprise the Subscriber
of the circumstances and the revised schedule for burial, and shall provide the Subscriber with
Grantee's telephone number and instructions as to how and when to call Grantee to request burial
of the line if the revised schedule is not met.
10.17 Cable Drop Bonding
Grantee shall ensure that all cable drops are properly bonded at the home, consistent with
applicable code requirements.
10.18 Prewiring
Any ordinance or resolution of the City which requires prewiring of subdivisions or other
developments for electrical and telephone service shall be construed to include wiring for Cable
Systems.
10.19 Repair and Restoration of Property
(A) The Grantee shall protect public and private property from damage. If damage
occurs, the Grantee shall promptly notify the property owner within twenty-four (24) hours in
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writing.
(B) Whenever Grantee disturbs or damages any Right-of-Way, other public property
or any private property, Grantee shall promptly restore the Right-of-Way or property to at least
its prior condition, normal wear and tear excepted, at its own expense.
(C) Rights-of-Way and Other Public Property. Grantee shall warrant any restoration
work performed by or for Grantee in the Right-of-Way or on other public property in accordance
with Applicable Law. If restoration is not satisfactorily performed by the Grantee within a
reasonable time, the City may, after prior notice to the Grantee, or without notice where the
disturbance or damage may create a risk to public health or safety, cause the repairs to be made
and recover the cost of those repairs from the Grantee. Within thirty (30) days of receipt of an
itemized list of those costs, including the costs of labor, materials and equipment, the Grantee
shall pay the City.
(D) Private Property. Upon completion of the work which caused any disturbance or
damage, Grantee shall promptly commence restoration of private property, and will use best
efforts to complete the restoration within seventy-two (72) hours, considering the nature of the
work that must be performed. Grantee shall also perform such restoration in accordance with the
City’s Customer Service Standards, as the same may be amended from time to time by the City
Council acting by ordinance or resolution.
10.20 Acquisition of Facilities
Upon Grantee's acquisition of Cable System-related facilities in any City Right-of-Way,
or upon the addition to the City of any area in which Grantee owns or operates any such facility,
Grantee shall, at the City's request, submit to the City a statement describing all such facilities
involved, whether authorized by franchise, permit, license or other prior right, and specifying the
location of all such facilities to the extent Grantee has possession of such information. Such
Cable System-related facilities shall immediately be subject to the terms of this Franchise.
10.21 Discontinuing Use/Abandonment of Cable System Facilities
Whenever Grantee intends to discontinue using any facility within the Rights-of-Way,
Grantee shall submit for the City's approval a complete description of the facility and the date on
which Grantee intends to discontinue using the facility. Grantee may remove the facility or
request that the City permit it to remain in place. Notwithstanding Grantee's request that any
such facility remain in place, the City may require Grantee to remove the facility from the Right-
of-Way or modify the facility to protect the public health, welfare, safety, and convenience, or
otherwise serve the public interest. The City may require Grantee to perform a combination of
modification and removal of the facility. Grantee shall complete such removal or modification
in accordance with a schedule set by the City. Until such time as Grantee removes or modifies
the facility as directed by the City, or until the rights to and responsibility for the facility are
accepted by another Person having authority to construct and maintain such facility, Grantee
shall be responsible for all necessary repairs and relocations of the facility, as well as
maintenance of the Right-of-Way, in the same manner and degree as if the facility were in active
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use, and Grantee shall retain all liability for such facility. If Grantee abandons its facilities, the
City may choose to use such facilities for any purpose whatsoever including, but not limited to,
Access purposes.
10.22 Movement of Cable System Facilities For City Purposes
The City shall have the right to require Grantee to relocate, remove, replace, modify or
disconnect Grantee's facilities and equipment located in the Rights-of-Way or on any other
property of the City for public purposes, in the event of an emergency, or when the public health,
safety or welfare requires such change (for example, without limitation, by reason of traffic
conditions, public safety, Right-of-Way vacation, Right-of-Way construction, change or
establishment of Right-of-Way grade, installation of sewers, drains, gas or water pipes, or any
other types of structures or improvements by the City for public purposes). Such work shall be
performed at the Grantee’s expense. Except during an emergency, the City shall provide
reasonable notice to Grantee, not to be less than thirty (30) business days, and allow Grantee
with the opportunity to perform such action. In the event of any capital improvement project
exceeding $500,000 in expenditures by the City which requires the removal, replacement,
modification or disconnection of Grantee's facilities or equipment, the City shall provide at least
sixty (60) days' written notice to Grantee. Following notice by the City Grantee shall relocate,
remove, replace, modify or disconnect any of its facilities or equipment within any Right-of-
Way, or on any other property of the City. If the City requires Grantee to relocate its facilities
located within the Rights-of-Way, the City shall make a reasonable effort to provide Grantee
with an alternate location within the Rights-of-Way. If funds are generally made available to
users of the Rights-of-Way for such relocation, Grantee shall be entitled to its pro rata share of
such funds.
If the Grantee fails to complete this work within the time prescribed and to the City's
satisfaction, the City may cause such work to be done and bill the cost of the work to the
Grantee, including all costs and expenses incurred by the City due to Grantee’s delay. In such
event, the City shall not be liable for any damage to any portion of Grantee’s Cable System.
Within thirty (30) days of receipt of an itemized list of those costs, the Grantee shall pay the
City.
10.23 Reimbursement of Grantee Costs
Grantee specifically reserves any rights it may have under Applicable Law for
reimbursement of costs related to undergrounding or relocation of the Cable System and nothing
herein shall be construed as a waiver of such rights.
10.24 Movement of Cable System Facilities for Other Franchise Holders
If any removal, replacement, modification or disconnection of the Cable System is
required to accommodate the construction, operation or repair of the facilities or equipment of
another City franchise holder, Grantee shall, after at least thirty (30) days' advance written
notice, take action to effect the necessary changes requested by the responsible entity. Grantee
may require that the costs associated with the removal or relocation be paid by the benefited
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party.
10.25 Temporary Changes for Other Permittees
At the request of any Person holding a valid permit and upon reasonable advance notice,
Grantee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a
building, vehicle, equipment or other item. The expense of such temporary changes must be paid
by the permit holder, and Grantee may require a reasonable deposit of the estimated payment in
advance.
10.26 Reservation of City Use of Right-of-Way
Nothing in this Franchise shall prevent the City or public utilities owned, maintained or
operated by public entities other than the City from constructing sewers; grading, paving,
repairing or altering any Right-of-Way; laying down, repairing or removing water mains; or
constructing or establishing any other public work or improvement. All such work shall be done,
insofar as practicable, so as not to obstruct, injure or prevent the use and operation of Grantee's
Cable System.
10.27 Tree Trimming
Grantee may prune or cause to be pruned, using proper pruning practices, any tree in the
City's Rights-of-Way which interferes with Grantee's Cable System. Grantee shall comply with
any general ordinance or regulations of the City regarding tree trimming. Except in emergencies,
Grantee may not prune trees at a point below thirty (30) feet above sidewalk grade until one (1)
week written notice has been given to the owner or occupant of the premises abutting the Right-
of-Way in or over which the tree is growing. The owner or occupant of the abutting premises
may prune such tree at his or her own expense during this one (1) week period. If the owner or
occupant fails to do so, Grantee may prune such tree at its own expense. For purposes of this
subsection, emergencies exist when it is necessary to prune to protect the public or Grantee’s
facilities from imminent danger only.
10.28 Inspection of Construction and Facilities
The City may inspect any of Grantee's facilities, equipment or construction at any time
upon at least twenty-four (24) hours’ notice, or, in case of emergency, upon demand without
prior notice. The City shall have the right to charge generally applicable inspection fees
therefore. If an unsafe condition is found to exist, the City, in addition to taking any other action
permitted under Applicable Law, may order Grantee, in writing, to make the necessary repairs
and alterations specified therein forthwith to correct the unsafe condition by a time the City
establishes. The City has the right to correct, inspect, administer and repair the unsafe condition
if Grantee fails to do so, and to charge Grantee therefore.
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10.29 Stop Work
(A) On notice from the City that any work is being performed contrary to the
provisions of this Franchise, or in an unsafe or dangerous manner as determined by the City, or
in violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the
work may immediately be stopped by the City.
(B) The stop work order shall:
(1) Be in writing;
(2) Be given to the Person doing the work, or posted on the work site;
(3) Be sent to Grantee by overnight delivery at the address given herein;
(4) Indicate the nature of the alleged violation or unsafe condition; and
(5) Establish conditions under which work may be resumed.
10.30 Work of Contractors and Subcontractors
Grantee's contractors and subcontractors shall be licensed and bonded in accordance with
the City's ordinances, regulations and requirements. Work by contractors and subcontractors is
subject to the same restrictions, limitations and conditions as if the work were performed by
Grantee. Grantee shall be responsible for all work performed by its contractors and
subcontractors and others performing work on its behalf as if the work were performed by it, and
shall ensure that all such work is performed in compliance with this Franchise and other
Applicable Law, and shall be jointly and severally liable for all damages and correcting all
damage caused by them. It is Grantee's responsibility to ensure that contractors, subcontractors
or other Persons performing work on Grantee's behalf are familiar with the requirements of this
Franchise and other Applicable Law governing the work performed by them.
SECTION 11. CABLE SYSTEM, TECHNICAL STANDARDS AND TESTING
11.1 Subscriber Network
(A) Grantee’s Cable System shall be equivalent to or exceed technical characteristics
of a traditional HFC 750 MHz Cable System and provide Activated Two-Way capability. The
Cable System shall be capable of supporting video and audio. The Cable System shall deliver no
less than one hundred ten (110) Channels of digital video programming services to Subscribers,
provided that the Grantee reserves the right to use the bandwidth in the future for other uses
based on market factors.
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(B) Equipment must be installed so that all closed captioning programming received
by the Cable System shall include the closed caption signal so long as the closed caption signal is
provided consistent with FCC standards. Equipment must be installed so that all local signals
received in stereo or with secondary audio tracks are retransmitted in those same formats.
(C) All construction shall be subject to the City's permitting process.
(D) Grantee and City shall meet, at the City's request, to discuss the progress of the
design plan and construction.
(E) Grantee will take prompt corrective action if it finds that any facilities or
equipment on the Cable System are not operating as expected, or if it finds that facilities and
equipment do not comply with the requirements of this Franchise or Applicable Law.
(F) Grantee's construction decisions shall be based solely upon legitimate engineering
decisions and shall not take into consideration the income level of any particular community
within the Franchise Area.
11.2 Technology Assessment
(A) The City may notify Grantee on or after five (5) years after the Effective Date,
that the City will conduct a technology assessment of Grantee’s Cable System. The technology
assessment may include, but is not be limited to, determining whether Grantee's Cable System
technology and performance are consistent with current technical practices and range and level
of services existing in the fifteen (15) largest U.S. cable systems owned and operated by
Grantee’s Parent Corporation and/or Affiliates pursuant to franchises that have been renewed or
extended since the Effective Date.
(B) Grantee shall cooperate with the City to provide necessary non-confidential and
proprietary information upon the City’s reasonable request as part of the technology assessment.
(C) At the discretion of the City, findings from the technology assessment may be
included in any proceeding commenced for the purpose of identifying future cable-related
community needs and interests undertaken by the City pursuant to 47 U.S.C. §546.
11.3 Standby Power
Grantee’s Cable System Headend shall be capable of providing at least twelve (12) hours
of emergency operation. In addition, throughout the term of this Franchise, Grantee shall have a
plan in place, along with all resources necessary for implementing such plan, for dealing with
outages of more than four (4) hours. This outage plan and evidence of requisite implementation
resources shall be presented to the City no later than thirty (30) days following receipt of a
request.
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11.4 Emergency Alert Capability
Grantee shall provide an operating Emergency Alert System (“EAS”) throughout the
term of this Franchise in compliance with FCC standards. Grantee shall test the EAS as required
by the FCC. Upon request, the City shall be permitted to participate in and/or witness the EAS
testing up to twice a year on a schedule formed in consultation with Grantee. If the test indicates
that the EAS is not performing properly, Grantee shall make any necessary adjustment to the
EAS, and the EAS shall be retested.
11.5 Technical Performance
The technical performance of the Cable System shall meet or exceed all applicable
federal (including, but not limited to, the FCC), and State technical standards, as they may be
amended from time to time, regardless of the transmission technology utilized. The City shall
have the full authority permitted by Applicable Law to enforce compliance with these technical
standards.
11.6 Cable System Performance Testing
(A) Grantee shall, at Grantee's expense, perform the following tests on its Cable
System:
(1) All tests required by the FCC;
(2) All other tests reasonably necessary to determine compliance with
technical standards adopted by the FCC at any time during the term of this Franchise; and
(3) All other tests as otherwise specified in this Franchise.
(B) At a minimum, Grantee's tests shall include:
(1) Cumulative leakage index testing of any new construction;
(2) Semi-annual compliance and proof of performance tests in conformance
with generally accepted industry guidelines;
(3) Tests in response to Subscriber complaints;
(4) Periodic monitoring tests, at intervals not to exceed six (6) months, of
Subscriber (field) test points, the Headend, and the condition of standby power supplies;
and
(5) Cumulative leakage index tests, at least annually, designed to ensure that
one hundred percent (100%) of Grantee's Cable System has been ground or air tested for
signal leakage in accordance with FCC standards.
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(C) Grantee shall maintain written records of all results of its Cable System tests,
performed by or for Grantee. Copies of such test results will be provided to the City upon
reasonable request.
(D) If the FCC no longer requires proof of performance tests for Grantee's Cable
System during the term of this Franchise, Grantee agrees that it shall continue to conduct proof
of performance tests on the Cable System in accordance with the standards that were in place on
the Effective Date, or any generally applicable standards later adopted, at least once a year, and
provide written results of such tests to the City upon request.
(E) The FCC semi-annual testing is conducted in January/February and July/August
of each year. If the City contacts Grantee prior to the next test period (i.e., before December 15
and June 15 respectively of each year), Grantee shall provide City with no less than seven (7)
days prior written notice of the actual date(s) for FCC compliance testing. If City notifies
Grantee by the December 15th and June 15th dates that it wishes to have a representative present
during the next test(s), Grantee shall cooperate in scheduling its testing so that the representative
can be present. Notwithstanding the above, all technical performance tests may be witnessed by
representatives of the City.
(F) Grantee shall be required to promptly take such corrective measures as are
necessary to correct any performance deficiencies fully and to prevent their recurrence as far as
possible. Grantee's failure to correct deficiencies identified through this testing process shall be
a material violation of this Franchise. Sites shall be re-tested following correction.
11.7 Additional Tests
Where there exists other evidence which in the judgment of the City casts doubt upon the
reliability or technical quality of Cable Service, the City shall have the right and authority to
require Grantee to test, analyze and report on the performance of the Cable System. Grantee
shall fully cooperate with the City in performing such testing and shall prepare the results and a
report, if requested, within thirty (30) days after testing. Such report shall include the following
information:
(A) the nature of the complaint or problem which precipitated the special tests;
(B) the Cable System component tested;
(C) the equipment used and procedures employed in testing;
(D) the method, if any, in which such complaint or problem was resolved; and
(E) any other information pertinent to said tests and analysis which may be required.
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SECTION 12. SERVICE AVAILABILITY, INTERCONNECTION AND SERVICE
TO SCHOOLS AND PUBLIC BUILDINGS
12.1 Service Availability
(A) In General. Except as otherwise provided in herein, Grantee shall provide Cable
Service within seven (7) days of a request by any Person within the City. For purposes of this
Section, a request shall be deemed made on the date of signing a service agreement, receipt of
funds by Grantee, receipt of a written request by Grantee or receipt by Grantee of a verified
verbal request. Except as otherwise provided herein, Grantee shall provide such service:
(1) With no line extension charge except as specifically authorized elsewhere
in this Franchise Agreement.
(2) At a non-discriminatory installation charge for a standard installation,
consisting of a 125 foot drop connecting to an inside wall for Residential Subscribers, with
additional charges for non-standard installations computed according to a non-discriminatory
methodology for such installations, adopted by Grantee and provided in writing to the City;
(3) At non-discriminatory monthly rates for Residential Subscribers.
(B) Service to Multiple Dwelling Units. Consistent with this Section 12.1, the
Grantee shall offer the individual units of a Multiple Dwelling Unit all Cable Services offered to
other Dwelling Units in the City and shall individually wire units upon request of the property
owner or renter who has been given written authorization by the owner; provided, however, that
any such offering is conditioned upon the Grantee having legal access to said unit in the form of
an access and wiring agreement that is mutually satisfactory to the Grantee and the property
owner. The City acknowledges that the Grantee cannot control the dissemination of particular
Cable Services beyond the point of demarcation at a Multiple Dwelling Unit.
(C) Subscriber Charges for Extensions of Service. Grantee agrees to extend its Cable
System to all persons living in areas with a residential density of thirty (30) residences per mile
of Cable System plant and if the area is within 1,320 cable-bearing strand feet of Grantee’s
existing distribution plant. If the residential density is less than thirty (30) residences per 5,280
cable-bearing strand feet of trunk or distribution cable, service may be made available on the
basis of a capital contribution in aid of construction, including cost of material, labor and
easements. For the purpose of determining the amount of capital contribution in aid of
construction to be borne by the Grantee and Subscribers in the area in which service may be
expanded, the Grantee will contribute an amount equal to the construction and other costs per
mile, multiplied by a fraction whose numerator equals the actual number of residences per 5,280
cable-bearing strand feet of its trunk or distribution cable and whose denominator equals thirty
(30). Subscribers who request service hereunder will bear the remainder of the construction and
other costs on a pro rata basis. The Grantee may require that the payment of the capital
contribution in aid of construction borne by such potential Subscribers be paid in advance.
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12.2 Connection of Public Facilities
(A) Grantee shall, at no cost to the City, provide one outlet of Basic Service and
Digital Starter Service to all City owned and occupied buildings, schools and public libraries
located in areas where Grantee provides Cable Service, so long as these facilities are already
served or the interconnection point on these facilities is located within 150 feet from the
distribution point on the Cable System, from which cable service can be provided to these
facilities. For purposes of this subsection, “school” means all State-accredited K-12 public and
private schools. Such obligation to provide free Cable Service shall not extend to areas of City
buildings where the Grantee would normally enter into a commercial contract to provide such
Cable Service (e.g., golf courses, airport restaurants and concourses, and recreation center work
out facilities). Outlets of Basic and Digital Starter Service provided in accordance with this
subsection may be used to distribute Cable Services throughout such buildings, provided such
distribution can be accomplished without causing Cable System disruption and general technical
standards are maintained. Such Cable Service shall not be located in public waiting areas or
used to entertain the public nor shall they be used in a way that might violate copyright laws.
The outlets may only be used for lawful purposes. The Cable Service provided shall not be
distributed beyond the originally installed outlets without authorization from Grantee, which
shall not be unreasonably withheld. Grantee is not required to provide free reception equipment
for any complimentary account provided pursuant to this subsection. Grantee does not waive
any rights under applicable law regarding complimentary service. Should Grantee elect to begin
offsetting the value of complimentary service against franchise fees, Grantee shall first provide
City with ninety (90) days prior written notice.
(B) The City acknowledges that the provision of one outlet of Basic Service and Digital
Starter Service to all City owned and occupied buildings that are not schools and public libraries
may be terminated by Grantee if a competitive cable operator with a franchise granted by the
City does not have a comparable franchise obligation. Additionally, Grantee reserves whatever
rights it has under Applicable Law to deduct the value of the complementary Cable Service it
provides to City owned and occupied buildings from its payment of Franchise Fees. The City
likewise reserves all rights it has under Applicable Law to assert the maximum calculation of
Gross Revenues permitted under Section 1.27 of this Franchise consistent with Section 1.27(A),
but without regard to any further limitations set forth in Section 1.27(B), and the manner in
which the value of the complimentary Cable Services is calculated. Subject to Applicable Law,
should Grantee elect to offset complimentary Cable Services provided to City owned and
occupied buildings against Franchise Fees, Grantee shall first provide the City with ninety (90)
days’ prior written notice. To the extent that the parties are engaged in good faith negotiations to
determine the amount of an offset, if any, and such negotiations extend past ninety (90) days, no
such offset shall be taken until the parties reach agreement or alternatively, until the matter is
resolved through other legal means.
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SECTION 13. FRANCHISE VIOLATIONS
13.1 Procedure for Remedying Franchise Violations
(A) If the City reasonably believes that Grantee has failed to perform any obligation
under this Franchise or has failed to perform in a timely manner, the City shall notify Grantee in
writing, stating with reasonable specificity the nature of the alleged default. Grantee shall have
thirty (30) days from the receipt of such notice to:
(1) respond to the City, contesting the City's assertion that a default has
occurred, and requesting a meeting in accordance with subsection (B), below;
(2) cure the default; or,
(3) notify the City that Grantee cannot cure the default within the thirty (30)
days, because of the nature of the default. In the event the default cannot be cured within
thirty (30) days, Grantee shall promptly take all reasonable steps to cure the default and
notify the City in writing and in detail as to the exact steps that will be taken and the
projected completion date. In such case, the City may set a meeting in accordance with
subsection (B) below to determine whether additional time beyond the thirty (30) days
specified above is indeed needed, and whether Grantee's proposed completion schedule
and steps are reasonable.
(B) If Grantee does not cure the alleged default within the cure period stated above, or
by the projected completion date under subsection (A)(3), or denies the default and requests a
meeting in accordance with (A)(1), or the City orders a meeting in accordance with subsection
(A)(3), the City shall set a meeting to investigate said issues or the existence of the alleged
default. The City shall notify Grantee of the meeting in writing and such meeting shall take
place no less than thirty (30) days after Grantee's receipt of notice of the meeting. At the
meeting, Grantee shall be provided an opportunity to be heard and to present evidence in its
defense.
(C) If, after the meeting, the City determines that a default exists, the City shall order
Grantee to correct or remedy the default or breach within fifteen (15) days or within such other
reasonable time frame as the City shall determine. In the event Grantee does not cure within
such time to the City’s reasonable satisfaction, the City may:
(1) Withdraw an amount from the letter of credit as monetary damages;
(2) Recommend the revocation of this Franchise pursuant to the procedures in
subsection 13.2; or,
(3) Recommend any other legal or equitable remedy available under this
Franchise or any Applicable Law.
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(D) The determination as to whether a violation of this Franchise has occurred shall
be within the discretion of the City, provided that any such final determination may be subject to
appeal to a court of competent jurisdiction under Applicable Law.
13.2 Revocation
(A) In addition to revocation in accordance with other provisions of this Franchise,
the City may revoke this Franchise and rescind all rights and privileges associated with this
Franchise in the following circumstances, each of which represents a material breach of this
Franchise:
(1) If Grantee fails to perform any material obligation under this Franchise or
under any other agreement, ordinance or document regarding the City and Grantee;
(2) If Grantee willfully fails for more than forty-eight (48) hours to provide
continuous and uninterrupted Cable Service;
(3) If Grantee attempts to evade any material provision of this Franchise or to
practice any fraud or deceit upon the City or Subscribers; or
(4) If Grantee becomes insolvent, or if there is an assignment for the benefit
of Grantee's creditors;
(5) If Grantee makes a material misrepresentation of fact in the application for
or negotiation of this Franchise.
(B) Following the procedures set forth in subsection 13.1 and prior to forfeiture or
termination of the Franchise, the City shall give written notice to the Grantee of its intent to
revoke the Franchise and set a date for a revocation proceeding. The notice shall set forth the
exact nature of the noncompliance.
(C) Any proceeding under the paragraph above shall be conducted by the City
Council and open to the public. Grantee shall be afforded at least forty-five (45) days prior
written notice of such proceeding.
(1) At such proceeding, Grantee shall be provided a fair opportunity for full
participation, including the right to be represented by legal counsel, to introduce
evidence, and to question witnesses. A complete verbatim record and transcript shall be
made of such proceeding and the cost shall be shared equally between the parties. The
City Council shall hear any Persons interested in the revocation, and shall allow Grantee,
in particular, an opportunity to state its position on the matter.
(2) Within ninety (90) days after the hearing, the Council shall determine
whether to revoke the Franchise and declare that the Franchise is revoked; or if the
breach at issue is capable of being cured by Grantee, direct Grantee to take appropriate
remedial action within the time and in the manner and on the terms and conditions that
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the Council determines are reasonable under the circumstances. If the City determines
that the Franchise is to be revoked, the City shall set forth the reasons for such a decision
and shall transmit a copy of the decision to the Grantee. Grantee shall be bound by the
City’s decision to revoke the Franchise unless it appeals the decision to a court of
competent jurisdiction within fifteen (15) days of the date of the decision.
(3) Grantee shall be entitled to such relief as the Court may deem appropriate.
(4) The City Council may at its sole discretion take any lawful action which it
deems appropriate to enforce the City's rights under the Franchise in lieu of revocation of
the Franchise.
13.3 Procedures in the Event of Termination or Revocation
(A) If this Franchise expires without renewal after completion of all processes
available under this Franchise and federal law or is otherwise lawfully terminated or revoked, the
City may, subject to Applicable Law:
(1) Allow Grantee to maintain and operate its Cable System on a month-to-
month basis or short-term extension of this Franchise for not less than six (6) months,
unless a sale of the Cable System can be closed sooner or Grantee demonstrates to the
City's satisfaction that it needs additional time to complete the sale; or
(2) Purchase Grantee's Cable System in accordance with the procedures set
forth in subsection 13.4, below.
(B) In the event that a sale has not been completed in accordance with subsections
(A)(1) and/or (A)(2) above, the City may order the removal of the above-ground Cable System
facilities and such underground facilities from the City at Grantee's sole expense within a
reasonable period of time as determined by the City. In removing its plant, structures and
equipment, Grantee shall refill, at is own expense, any excavation that is made by it and shall
leave all Right-of-Way, public places and private property in as good condition as that prevailing
prior to Grantee's removal of its equipment without affecting the electrical or telephone cable
wires or attachments. The indemnification and insurance provisions shall remain in full force
and effect during the period of removal, and Grantee shall not be entitled to, and agrees not to
request, compensation of any sort therefore.
(C) If Grantee fails to complete any removal required by subsection 13.3 (B) to the
City’s satisfaction, after written notice to Grantee, the City may cause the work to be done and
Grantee shall reimburse the City for the costs incurred within thirty (30) days after receipt of an
itemized list of the costs.
(D) The City may seek legal and equitable relief to enforce the provisions of this
Franchise.
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13.4 Purchase of Cable System
(A) If at any time this Franchise is revoked, terminated, or not renewed upon
expiration in accordance with the provisions of federal law, the City shall have the option to
purchase the Cable System.
(B) The City may, at any time thereafter, offer in writing to purchase Grantee's Cable
System. Grantee shall have thirty (30) days from receipt of a written offer from the City within
which to accept or reject the offer.
(C) In any case where the City elects to purchase the Cable System, the purchase shall
be closed within one hundred twenty (120) days of the date of the City's audit of a current profit
and loss statement of Grantee. The City shall pay for the Cable System in cash or certified
funds, and Grantee shall deliver appropriate bills of sale and other instruments of conveyance.
(D) For the purposes of this subsection, the price for the Cable System shall be
determined as follows:
(1) In the case of the expiration of the Franchise without renewal, at fair
market value determined on the basis of Grantee's Cable System valued as a going
concern, but with no value allocated to the Franchise itself. In order to obtain the fair
market value, this valuation shall be reduced by the amount of any lien, encumbrance, or
other obligation of Grantee which the City would assume.
(2) In the case of revocation for cause, the equitable price of Grantee's Cable
System.
13.5 Receivership and Foreclosure
(A) At the option of the City, subject to Applicable Law, this Franchise may be
revoked one hundred twenty (120) days after the appointment of a receiver or trustee to take over
and conduct the business of Grantee whether in a receivership, reorganization, bankruptcy or
other action or proceeding, unless:
(1) The receivership or trusteeship is vacated within one hundred twenty (120)
days of appointment; or
(2) The receivers or trustees have, within one hundred twenty (120) days after
their election or appointment, fully complied with all the terms and provisions of this
Franchise, and have remedied all defaults under the Franchise. Additionally, the
receivers or trustees shall have executed an agreement duly approved by the court having
jurisdiction, by which the receivers or trustees assume and agree to be bound by each and
every term, provision and limitation of this Franchise.
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(B) If there is a foreclosure or other involuntary sale of the whole or any part of the
plant, property and equipment of Grantee, the City may serve notice of revocation on Grantee
and to the purchaser at the sale, and the rights and privileges of Grantee under this Franchise
shall be revoked thirty (30) days after service of such notice, unless:
(1) The City has approved the transfer of the Franchise, in accordance with
the procedures set forth in this Franchise and as provided by law; and
(2) The purchaser has covenanted and agreed with the City to assume and be
bound by all of the terms and conditions of this Franchise.
13.6 No Monetary Recourse Against the City
Grantee shall not have any monetary recourse against the City or its officers, officials,
boards, commissions, agents or employees for any loss, costs, expenses or damages arising out of
any provision or requirement of this Franchise or the enforcement thereof, in accordance with the
provisions of applicable federal, State and local law. The rights of the City under this Franchise
are in addition to, and shall not be read to limit, any immunities the City may enjoy under
federal, State or local law.
13.7 Alternative Remedies
No provision of this Franchise shall be deemed to bar the right of the City to seek or
obtain judicial relief from a violation of any provision of the Franchise or any rule, regulation,
requirement or directive promulgated thereunder. 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 to recover monetary damages for such violations by Grantee, or to seek and
obtain judicial enforcement of Grantee's obligations by means of specific performance,
injunctive relief or mandate, or any other remedy at law or in equity.
13.8 Assessment of Monetary Damages
(A) The City may assess against Grantee monetary damages (i) up to five hundred
dollars ($500.00) per day for general construction delays, violations of PEG obligations or
payment obligations, (ii) up to two hundred fifty dollars ($250.00) per day for any other material
breaches, or (iii) up to one hundred dollars ($100.00) per day for defaults, and withdraw the
assessment from the letter of credit or collect the assessment as specified in this Franchise.
Damages pursuant to this Section shall accrue for a period not to exceed one hundred twenty
(120) days per violation proceeding. To assess any amount from the letter of credit, the City
shall follow the procedures for withdrawals from the letter of credit set forth in the letter of credit
and in this Franchise. Such damages shall accrue beginning thirty (30) days following Grantee’s
receipt of the notice required by subsection 13.1(A), or such later date if approved by the City in
its sole discretion, but may not be assessed until after the procedures in subsection 13.1 have
been completed.
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(B) The assessment does not constitute a waiver by the City of any other right or
remedy it may have under the Franchise or Applicable Law, including its right to recover from
Grantee any additional damages, losses, costs and expenses that are incurred by the City by
reason of the breach of this Franchise.
13.9 Effect of Abandonment
If the Grantee abandons its Cable System during the Franchise term, or fails to operate its
Cable System in accordance with its duty to provide continuous service, the City, at its option,
may operate the Cable System; designate another entity to operate the Cable System temporarily
until the Grantee restores service under conditions acceptable to the City, or until the Franchise is
revoked and a new franchisee is selected by the City; or obtain an injunction requiring the
Grantee to continue operations. If the City is required to operate or designate another entity to
operate the Cable System, the Grantee shall reimburse the City or its designee for all reasonable
costs, expenses and damages incurred.
13.9 What Constitutes Abandonment
The City shall be entitled to exercise its options in subsection 13.9 if:
(A) The Grantee fails to provide Cable Service in accordance with this Franchise over
a substantial portion of the Franchise Area for four (4) consecutive days, unless the City
authorizes a longer interruption of service; or
(B) The Grantee, for any period, willfully and without cause refuses to provide Cable
Service in accordance with this Franchise.
SECTION 14. FRANCHISE RENEWAL AND TRANSFER
14.1 Renewal
(A) The City and Grantee agree that any proceedings undertaken by the City that
relate to the renewal of the Franchise shall be governed by and comply with the provisions of
Section 626 of the Cable Act, unless the procedures and substantive protections set forth therein
shall be deemed to be preempted and superseded by the provisions of any subsequent provision
of federal or State law.
(B) In addition to the procedures set forth in said Section 626(a), the City agrees to
notify Grantee of the completion of its assessments regarding the identification of future cable-
related community needs and interests, as well as the past performance of Grantee under the then
current Franchise term. Notwithstanding anything to the contrary set forth herein, Grantee and
the City agree that at any time during the term of the then current Franchise, while affording the
public adequate notice and opportunity for comment, the City and Grantee may agree to
undertake and finalize negotiations regarding renewal of the then current Franchise and the City
may grant a renewal thereof. Grantee and the City consider the terms set forth in this subsection
to be consistent with the express provisions of Section 626 of the Cable Act.
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(C) Should the Franchise expire without a mutually agreed upon renewed Franchise
Agreement and Grantee and the City are engaged in an informal or formal renewal process, the
Franchise shall continue on a month-to-month basis, with the same terms and conditions as
provided in the Franchise, and the Grantee and the City shall continue to comply with all
obligations and duties under the Franchise until final City action is taken to renew or terminate
the Franchise pursuant to this Franchise and Applicable Law.
14.2 Transfer of Ownership or Control
(A) The Cable System and this Franchise shall not be sold, assigned, transferred,
leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale,
merger or consolidation; nor shall title thereto, either legal or equitable, or any right, interest or
property therein pass to or vest in any Person or entity without the prior written consent of the
City, which consent shall be by the City Council, acting by ordinance or resolution.
(B) The Grantee shall promptly notify the City of any actual or proposed change in, or
transfer of, or acquisition by any other party of control of the Grantee. The word "control" as
used herein is not limited to majority stockholders but includes actual working control in
whatever manner exercised. Every change, transfer or acquisition of control of the Grantee shall
make this Franchise subject to cancellation unless and until the City shall have consented in
writing thereto.
(C) The parties to the sale or transfer shall make a written request to the City for its
approval of a sale or transfer and furnish all information required by law and the City
(D) In seeking the City's consent to any change in ownership or control, the proposed
transferee shall indicate whether it:
(1) Has ever been convicted or held liable for acts involving deceit including
any violation of federal, State or local law or regulations, or is currently under an
indictment, investigation or complaint charging such acts;
(2) Has ever had a judgment in an action for fraud, deceit, or
misrepresentation entered against the proposed transferee by any court of competent
jurisdiction;
(3) Has pending any material legal claim, lawsuit, or administrative
proceeding arising out of or involving a cable system or a broadband system;
(4) Is financially solvent, by submitting financial data including financial
statements that are audited by a certified public accountant who may also be an officer of
the transferee, along with any other data that the City may reasonably require; and
(5) Has the financial, legal and technical capability to enable it to maintain
and operate the Cable System for the remaining term of the Franchise.
198
55
(E) The City shall act by ordinance on the request within one hundred twenty (120)
days of the request, provided it has received all information required by this Franchise and/or by
Applicable Law. The City and the Grantee may by mutual agreement, at any time, extend the
120 day period. Subject to the foregoing, if the City fails to render a final decision on the request
within one hundred twenty (120) days, such request shall be deemed granted unless the
requesting party and the City agree to an extension of time.
(F) Within thirty (30) days of any transfer or sale, if approved or deemed granted by
the City, Grantee shall file with the City a copy of the deed, agreement, lease or other written
instrument evidencing such sale or transfer of ownership or control, certified and sworn to as
correct by Grantee and the transferee, and the transferee shall file its written acceptance agreeing
to be bound by all of the provisions of this Franchise, subject to Applicable Law. In the event of
a change in control, in which the Grantee is not replaced by another entity, the Grantee will
continue to be bound by all of the provisions of the Franchise, subject to Applicable Law, and
will not be required to file an additional written acceptance.
(G) In reviewing a request for sale or transfer, the City may inquire into the legal,
technical and financial qualifications of the prospective controlling party or transferee, and
Grantee shall assist the City in so inquiring. The City may condition said sale or transfer upon
such terms and conditions as it deems reasonably appropriate, in accordance with Applicable
Law.
(H) Notwithstanding anything to the contrary in this subsection, the prior approval of
the City shall not be required for any sale, assignment or transfer of the Franchise or Cable
System to an entity controlling, controlled by or under the same common control as Grantee,
provided that the proposed assignee or transferee must show financial responsibility as may be
determined necessary by the City and must agree in writing to comply with all of the provisions
of the Franchise. Further, Grantee may pledge the assets of the Cable System for the purpose of
financing without the consent of the City; provided that such pledge of assets shall not impair or
mitigate Grantee’s responsibilities and capabilities to meet all of its obligations under the
provisions of this Franchise.
SECTION 15. SEVERABILITY
If any Section, subsection, paragraph, term or provision of this Franchise is determined to
be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such
determination shall have no effect on the validity of any other Section, subsection, paragraph,
term or provision of this Franchise, all of which will remain in full force and effect for the term
of the Franchise.
SECTION 16. MISCELLANEOUS PROVISIONS
16.1 Preferential or Discriminatory Practices Prohibited
NO DISCRIMINATION IN EMPLOYMENT. In connection with the performance of
work under this Franchise, the Grantee agrees not to refuse to hire, discharge, promote or
199
56
demote, or discriminate in matters of compensation against any Person otherwise qualified,
solely because of race, color, religion, national origin, gender, age, military status, sexual
orientation, marital status, or physical or mental disability; and the Grantee further agrees to
insert the foregoing provision in all subcontracts hereunder. Throughout the term of this
Franchise, Grantee shall fully comply with all equal employment or non-discrimination
provisions and requirements of federal, State and local laws, and in particular, FCC rules and
regulations relating thereto.
16.2 Reservation of Rights
Notwithstanding any other provision of this Franchise, Grantee reserves the right to
challenge provisions of any ordinance, rule, regulation, or other enactment of the City that
conflicts with its contractual rights under this Franchise, either now or in the future.
16.3 Notices
Throughout the term of the Franchise, each party shall maintain and file with the other a
local address for the service of notices by mail. All notices shall be sent overnight delivery
postage prepaid to such respective address and such notices shall be effective upon the date of
mailing. These addresses may be changed by the City or the Grantee by written notice at any
time. At the Effective Date of this Franchise:
Grantee's address shall be:
COMCAST OF COLORADO IX, LLC
8000 E. Iliff Ave.
Denver, CO 80231
Attn: Government Affairs Dept.
The City's address shall be:
City of Aspen
130 South Galena Street
Aspen, CO 81611
Attn: City Manager
16.4 Descriptive Headings
The headings and titles of the Sections and subsections of this Franchise are for reference
purposes only, and shall not affect the meaning or interpretation of the text herein.
16.5 Publication Costs to be Borne by Grantee
Grantee shall reimburse the City for all costs incurred in publishing this Franchise, if
such publication is required.
200
57
16.6 Binding Effect
This Franchise shall be binding upon the parties hereto, their permitted successors and
assigns.
16.7 No Joint Venture
Nothing herein shall be deemed to create a joint venture or principal-agent relationship
between the parties, and neither party is authorized to, nor shall either party act toward third
Persons or the public in any manner which would indicate any such relationship with the other.
16.8 Waiver
The failure of the City at any time to require performance by the Grantee of any provision
hereof shall in no way affect the right of the City hereafter to enforce the same. Nor shall the
waiver by the City of any breach of any provision hereof be taken or held to be a waiver of any
succeeding breach of such provision, or as a waiver of the provision itself or any other provision.
16.9 Reasonableness of Consent or Approval
Whenever under this Franchise “reasonableness” is the standard for the granting or denial
of the consent or approval of either party hereto, such party shall be entitled to consider public
and governmental policy, moral and ethical standards as well as business and economic
considerations.
16.10 Entire Agreement
This Franchise and all Exhibits represent the entire understanding and agreement between
the parties hereto with respect to the subject matter hereof and supersede all prior oral
negotiations between the parties.
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58
IN WITNESS WHEREOF, this Franchise is signed in the name of Aspen, Colorado this day
of , 2020.
ATTEST: ASPEN, COLORADO:
City Clerk Mayor
APPROVED AS TO FORM: RECOMMENDED AND APPROVED:
City Attorney City Manager
Accepted and approved this _____ day of ____________, 2020.
COMCAST OF COLORADO IX, LLC
__________________________________
By: _______________________________
Its: _______________________________
202
1
EXHIBIT A:
CUSTOMER SERVICE STANDARDS
203
COMCAST OF COLORADO IX, LLC
ASPEN, COLORADO
1
EXHIBIT B
Report Form
Comcast
Quarterly Executive Summary - Escalated Complaints
Section 7.6 (B) of our Franchise Agreement
Quarter Ending ___________, Year
CITY OF ASPEN
Number of Calls
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
0
Type of Complaint
Accessibility
Billing, Credit and Refunds
Courtesy
Drop Bury
Installation
Notices/Easement Issues (Non-Rebuild)
Pedestal
Problem Resolution
Programming
Property Damage (Non-Rebuild)
Rates
Rebuild/Upgrade Damage
Rebuild/Upgrade Notices/Easement Issues
Reception/Signal Quality
Safety
Service and Install Appointments
Service Interruptions
Serviceability
TOTAL
Compliments
204
May 21, 2020
Mayor Torre
City of Aspen
130 South Galena Street
Aspen, CO 81611
Dear Mayor Torre:
We appreciate that the City has chosen to move forward on the Comcast Franchise Agreement, which was jointly
negotiated in 2018 with Pitkin County, the Town of Snowmass Village, and the Town of Basalt. We think this an
important step forward which enables Aspen residents to enjoy the same benefits of the new Agreement as
residents in the surrounding communities.
We must note, however, that two years have passed since the successful conclusion of those negotiations , and in
that intervening time, the Federal Communications Commission (FCC) has passed its 621 Order, which allows
wireline video providers to either discontinue the provision of the complimentary video services it provides to
municipal buildings, schools, and libraries or to deduct the value of those services from Franchise Fees.
As currently drafted, the Franchise between Comcast and the City of Aspen contemplated these previously p ending
FCC rule changes. Now that these changes to federal law are in effect, Comcast will need to come into compliance
in the coming months.
As the City is aware, Comcast currently provides certain complimentary video services to schools, libraries, and
municipal buildings, without charge. Should Comcast discontinue the provision of those services, Comcast will
provide the City with at least one hundred twenty (120) days’ prior written notice. This notice will document the
proposed offset or service charges so that the City can make an informed decision as to whether to keep the services.
Following this notice, the City will have a full one hundred twenty (120) days to review the list of outlets receiving
complimentary service, and it will have the right to discontinue receipt of all or a portion of the outlets receiving
complimentary service provided by Comcast. In the event applicable law is overturned in whole or in part by action
of the FCC or through judicial review, the City and Comcast will meet promptly to discuss what impact such action
has on the provision of the in-kind, cable-related contributions.
Again, we appreciate that the City is moving forward with the Franchise Agreemen t, and we thank you for your
collaborative and good faith efforts to complete the Franchise renewal process. We are grateful for the opportunity
to continue to serve the City and its residents, and we look forward to continuing the great relationship we have had
with the City for many years to come.
Sincerely,
Andy Davis
Director of Regulatory and Government Affairs
Comcast – Mountain West Region
Cc: Jim True, City Attorney, City of Aspen
1899 Wynkoop Street
Suite 550
Denver, CO 80202
205
MEMORANDUM
To:Mayor and City Council
From: James R. True, City Attorney
Date: May 21, 2020
RE:Resolution #43, Series of 2020 (Extension of Resolution #40 regarding Face Coverings)
Request of Council:To consider the adoption of Resolution #43, Series of 2020, which would
extend the City requirement,adopted in Resolution #40, Series of 2020, for individuals to wear
face coverings under certain circumstances and in certain places.
Background:At a Special Meeting held on April 27, 2020 City Council considered Resolution
#40, 2020 proposing a public health order requiring the use of face coverings within the City of
Aspen to help slow the spread of the COVID-19 virus. The Resolution was proposed and adopted
pursuant to the legal authority set forth in C.R.S. Section 31-15-401(b), as well as all other
applicable laws, rules, regulations, orders and declarations. Under this authority, the City of
Aspen has the police powers “[t]o do all acts and make all regulations which may be necessary or
expedient for the promotion of health or the suppression of disease” within the territorial limits
of the City of Aspen. At the time it was noted that the nearby City of Glenwood Spring recently
adopted a similar order.
Resolution #40, had a sunset provision stating that it “will remain in effect until May 27, 2020,
unless extended by Council.”
Discussion:Resolution #43, attached,proposes extending the requirement that individuals wear
face coverings in certain places within Aspen. At this point, the time frame for the extension is
left undetermined. Staff has no specific recommendation for the extension. Council may
determine the expiration date at its regular meeting set for May 26, 2020, when this item will be
presented. No changes to the regulations are proposed.
Recommendation:The City Attorney’s Office makes no recommendation regarding the adoption
of Resolution #43, Series of 2020.
206
RESOLUTION NO. 43
(Series of 2020)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO,
EXTENDING THE PUBLIC HEALTH ORDER OF THE CITY OF ASPEN, COLORADO FOR
THE PROMOTION OF HEALTH AND SUPPRESSION OF DISEASE TO REQUIRE FACE
COVERINGSWITHIN THE CITY OF ASPEN
WHEREAS, on April 27, 2020, pursuant to the Colorado Disaster Emergency Act, C.R.S.,
Section 24-33.5-701, et seq., the City of Aspen (“City”) adopted Resolution No. 40 (Series of
2020) which mandated Face Coverings under certain circumstances and in certain locations; and
WHEREAS, Resolution No. 40, Series of 2020, was effective as of 6:00 a.m. on April 29,
2020, and is to remain in effect until May 27, 2020, unless extended by Council; and
WHEREAS, this Public Health Order is being issued to limit the health impacts of
COVID-19. This Order sets forth requirements for the public to utilize face coverings inside of
public places, to slow the spread of the COVID-19 virus; and
WHEREAS, this Order is adopted pursuant to the legal authority set forth in C.R.S.
Section 31-15-401(b), as well as all other applicable laws, rules, regulations,orders and
declarations. Under this authority, the City of Aspen has the police powers “[t]o do all acts and
make all regulations which may be necessary or expedient for the promotion of health or the
suppression of disease” within the territorial limits of the City of Aspen. Immediate issuance
of this Order is deemed reasonable and necessary under the existing circumstances and
necessaryfor thepreservation ofthepublichealth,safetyand welfare; and
WHEREAS, the City’s authority to issue this Order is in addition to that exercised
by the Governor of Colorado,StateofColoradoDepartmentofPublicHealth andEnvironment,
and Pitkin County Department of Public Health; and
WHEREAS, the Centers for Disease Control and Prevention recommendation to wear face
coverings in public settings to prevent the spread of COVID-19 remains in effect; and
WHEREAS, the City finds that continuing the Public Health Order set forth in Resolution
No. 40, Series of 2020, will limit the cascading impacts on critical services by limiting spread of
COVID-19. This Order and actions will help hospitals, first responders, and other healthcare
services continue to provide services for those who need them (along with utilities, human
services, and businesses) in the coming weeks and months. Collective action can save lives and
is in support of the most vulnerable in our community; and
WHEREAS, the City of Aspen continues to make a best faith effort to educate its citizens
on the benefits of face coverings and will distribute face coverings free of charge to those in need
to the best of its ability; and
WHEREAS, the City Council finds that it is appropriate and in the interests of the public
health, safety, and welfare and would further protect property and civil order, for the City
Council to extend the Public Health Order set forth in Resolution No. 40, Series of 2020.207
2
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF ASPEN, COLORADO,
That the City Council hereby extends the Public Health Order issued in Resolution No. 40, Series
of 2020, requiring the use of face coverings, until ___________, unless extended further by City
Council. Pursuant to this extension, all terms, conditions and obligations set forth in Resolution
No. 40, Series of 2020 shall remain in full force and effect.
INTRODUCED, AND ADOPTED by the City Council of the City of Aspen on the 26
th day of
May 2020, at ____ p.m., Mountain Daylight Time.
Torre, Mayor
I, Nicole Henning, duly appointed and acting City Clerk do certify that the foregoing is a
true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held on May 26, 2020.
Nicole Henning, City Clerk
THE PUBLIC IS DISCOURAGED FROM ATTEMPTING TO ACQUIRE HEALTH CARE
AND INDUSTRIAL FACE COVERINGS THAT ARE NECESSARY TO PROTECT
HEALTH CARE WORKERS DURING THE COVID-19 PANDEMIC.
208
MEMORANDUM
To:Mayor and City Council
From: Pete Strecker, Finance Director
James R. True, City Attorney
Date: May 21, 2020
RE:Resolution #44, Series of 2020 (ACRA Loan)
Request of Council:To consider the adoption of Resolution #44, Series of 2020, which would
provide a loan to Aspen Chamber Resort Association (ACRA) and authorize the distribution of
funds from ACRA reserves for tourist promotion as recovery efforts from the fallout of the
COVID-19 disease continue.
Background:At a work session held on May 11, 2020 City Council heard a presentation from
ACRA regarding short-term, mid-term and long-term promotional plans for economic recovery
as businesses open following the impact of COVID-19. The staff memo and ACRA presentation
are attached.
Discussion:Following the discussion with ACRA representatives, Council directed staff to bring to
Council a Resolution for consideration at the next regular meeting approving such loan and
authorizing the use of reserve funds. Resolution #44 is attached.
Recommendation:Staff recommends approval of Resolution #44, Series of 2020.
209
RESOLUTON NO. 44
(SERIES OF 2020)
A RESOLUTION APPROVING A LOAN TO THE ASPEN CHAMBER RESORT
ASSOCIATION, INC. FROM THE CITY OF ASPEN’S GENERAL FUND FOR
EMERGENCY ASSISTANCE RELATED TO THE SPREAD OF COVID-19
WHEREAS, there have been proposals brought before City Council to fund relief and
recovery efforts related to the City of Aspen’s Local Disaster Emergency Declaration; and
WHEREAS, the City Council has evaluated these proposals and believe that funding
such proposals would be in the best interest of the City of Aspen to promote the economic
recovery from the devastation that has been caused by COVID-19; and
WHEREAS, the City’s economy is tourist-based, and it is essential to both the short term
and long-term economic vitality of the Town that tourism be revitalized as the City begins the
efforts to reopen.
WHEREAS, at a work session on May 11, 2020, the Aspen Chamber Resort, Inc.,
(ACRA) presented a plan for short-term, mid-term and long-term recovery efforts using
reserves in the amount of $300,000, that are held by the City of Aspen, as well as an additional
$200,000 in the form of a loan from the City’s previous authorized recovery appropriations.
WHEREAS,the City Council has determined that the proposed loan to ACRA is necessary
for further economic relief, recovery, and stimulus and in the best interest of the health, safety
and welfare of the community.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
ASPEN, COLORADO,
That the City Council hereby agrees to loan to Aspen Chamber Resort Association, Inc., (ACRA)
from the City of Aspen General Fund the amount of two hundred thousand dollars ($200,000) to
be repaid over the next two (2) years on such payment terms as the City Manager and the ACRA
Director shall reasonably agree, subject to the approval by the City’s Finance Director and the
City Attorney.
That the City Council hereby agrees to extend the use of the $300,000 held in the Tourism
Promotion Fund restricted reserve to the Aspen Chamber Resort Association, Inc. (ACRA) with
an agreement for said amount to be repaid within the three (3) year period subsequent to the
$200,000 loan repayment noted above.
210
INTRODUCED, AND ADOPTED by the City Council of the City of Aspen on the 26th day of
May 2020, at ____ p.m., Mountain Daylight Time.
Torre, Mayor
I, Nicole Henning, duly appointed and acting City Clerk do certify that the foregoing is a
true and accurate copy of that resolution adopted by the City Council of the City of Aspen,
Colorado, at a meeting held on May 26, 2020.
Nicole Henning, City Clerk
211
INFORMATION ONLY MEMORANDUM
To: Council Members
From: Pete Strecker, Finance Director
RE: ACRA Request for Funds
As context to the attached memorandum from the Aspen Chamber Resort Association (ACRA) around a
possible loan of $500,000 to spur economic activity as the public health orders are revised to allow more
commence in the future:
Accessing $300,000 Reserve:
The Chamber’s request of $500,000 would be partially achieved by accessing the $300,000 held in
reserve within the City’s 130 Tourism Promotion Fund. This Fund is fully supported by three quarters of
the 2.0% lodging tax and, under current forecasts, will see new revenues fall short of last year’s
collections by 40%.
Under the last signed and 5th agreement to the destination marketing contract with ACRA (Resolution
180, Series 2017), there is a provision to access the $300,000 reserve if “… actual tax revenues for the 12
months prior have paced at a decrease of at least 5 percent from the prior 12 months…”. While this
metric has not fully achieved at this date, based on the above projections, it is reasonable to assume that
this will occur and the Council could agree to provide this supplemental appropriation to the Spring
packet.
Additional $200,000 Request:
Noted in the Chamber request, an additional $200,000 is sought above the dedicated Tourism Promotion
reserve. These additional funds would be required to be appropriated from the General Fund, utilizing
discretionary resources within this fund, and would be appropriately allocated as part of the $6M relief
and recovery package.
Repayment Terms:
Regarding repayment for the combined $500,000 request, the Council would need to establish
repayment terms if it would like to proceed and would do this through a separate action from the Spring
Supplemental.
For context, there was a previous $480,000 loan made to the Chamber during the last recession (2009 -
2010). Terms around this previous loan included a no-interest, 5-year payback obligation (final
repayment due by 2014). A similar payback schedule to this previous structure, one that mirrors to the
City’s 3-year targeted reserve repayment per City Financial Policies, or some other option can be
considered.
2212
MEMORANDUM
To: City Council
From: Debbie Braun, President
Eliza Voss, Director of Marketing
Date: May 5, 2020
Re: 2020 COVID Tourism Recovery
Dear City Council,
Please find attached the ACRA’s Tourism Recovery Marketing Plan. This plan has been presented to the
Destination Marketing Advisory Committee on April 14th, the Arts & Cultural Non-Profits on April 16th
and the Board of Directors on April 28th. ACRA is activating $500,000 of our reserves towards budget
shortfalls as a result of COVID-19, and we are requesting the City of Aspen partner with us on recovery
efforts as economic stimulus to our community and match our reserves by granting us a $500,000 loan.
Per our contract, we have $300,000 in reserves held by the City of Aspen, which can be activated when
the tax revenues for the 12 months prior have paced at a decrease of at least 5% from the prior 12
months. While it has only been 2 months since the onset of COVID-19 in our community, the economic
ramifications are substantial and warrant action now, which is why we are asking to activate the
reserves as well as an additional $200,000 so we can begin this phased recovery plan immediately.
ACRA and the City have a history of working together to overcome economic downturns; and we hope
this partnership can continue to overcome this unprecedented event.
Please let us know if there are any questions.
Thank you for your continued partnership.
3213
Jeff Bay - Chair
Managing Director
Haymax Hotels
Allison Campbell
Aspen Lodging Association Chair
Manager
Aspen Mountain Lodge
Rose Abello
Tourism Director
Snowmass Tourism
Virginia McNellis
Marketing Director
Snowmass Tourism
Nancy Lesley
Director of Special Events
& Marketing
City of Aspen
Tracy Trulove
Director of Communications
City of Aspen
Katie Viola
Kissane Viola Design
Christian Knapp
VP Marketing
Aspen Skiing Company
Bill Tomcich
Tomcich Travel Consulting
Jeanette Darnauer
Darnauer Group, LLC
Laura Smith
Vice President for Marketing &
Communications
Aspen Music Festival & School
Connie Power
Director of Sales
Limelight Hotels
Nina Eisenstat
Owner
Aspen Marketing and
Communications
Andrea Beard
Senior Vice President
Jazz Aspen Snowmass
Rob Ittner
Taste Aspen
Lisa LeMay
General Manager
Aspen T-Shirt Company
Maureen Poschman
President
Promo Communications
Melissa Wisenbaker
Promo Communications
Alex de L’Abre
Marketing Director
Frias Properties
Jessica Boone
Assistant Director of Group Sales
Blazing Adventures
Debbie Braun
President & CEO
Aspen Chamber Resort Association
Jennifer Carney
VP Event Marketing
Aspen Chamber Resort Association
Sarah Reynolds-Lasser
Senior Director of
Business Development
Aspen Chamber Resort Association
Eliza Voss
Director of Marketing
Aspen Chamber Resort Association
Jessica Hite
Senior Marketing Manager
Aspen Chamber Resort Association
Bridget Crosby
Marketing Manager
Aspen Chamber Resort Association
Liz Cluley
Senior Sales Manager
Aspen Chamber Resort Association
Jack Orsi
Sales Coordinator
Aspen Chamber Resort Association
Tourism Recovery Task Force
Presented by Aspen Chamber Resort Association Marketing Advisory Committee
4214
SHORT-TERM
COMMUNITY VIBRANCY
Re-engage the local community,
to begin to create a sense of new
normalcy.
Summersköl
Marketing campaign to drive
business into town, promoting
shop/eat/play in Aspen: 7908
Ways to Spend Local.
Local promos for dining out, retail
revolution, arts & culture pop ups,
kids & family activations, a locals’
“lodging-out” night, etc.
Potential collaborations with
arts & culture organizations and/
or other nonprofits to celebrate
when appropriate.
Sustain Interest,
Engage Community & Recover
Aspen Chamber Resort Association believes our role as Destination Managers is as important as
ever following the effects of COVID-19 on our local economy. As marketers promoting Aspen, we
are embracing our role in the recovery of Aspen’s economy through the reactivation of visitors and
creating community vibrancy. Restorative Destination Marketing incorporates the themes of destination
management; sustainability, education, communication, dispersion, collaboration, and research, all of
which we were focused on prior to the crisis, alongside recovery efforts into our community.
ACRA’s strategic plan pillars provide a roadmap for phased recovery. As we wait for the green light,
we are preparing to execute measures that will aggressively assist our community to recover from this
unprecedented event. We are mindful of the interconnectivity of the entire community and believe this
phased recovery plan honors key sectors in tourism recovery and is designed so that each stage of the
plan (short-term, mid-term and long-term) builds upon the success of the previous step, eventually
bringing us back to an environment for Aspen to thrive. As we adapt to these dynamic changes in our
ecosystem, we look forward to engaging our community, providing support to our stakeholders and
once again welcoming our visitors back to enjoy our destination.
5215
MID-TERM
EDUCATION & COMMUNICATION
Demonstrating to our visitors why Aspen is a
leader in safety following recovery from COVID-19
as well as aggregating resources for our partners
to utilize in their communications to guests
indicating we are open for business. ACRA will
maintain our role as the best first point of contact
for all visitors and community partners.
Expansion of our “How To” campaign to include
“What travel to Aspen looks like post COVID.”
- Videos of what dining out, shopping, lodging,
recreating looks like in the “new normal.”
- What safety measures are in place at the
Airport and other.
Communication of Community Social Distancing
practices to guests.
Continued partnerships with Pledge for the Wild
and Aspen Pledge, protecting our wild places is
as important as ever.
ACRA to provide marketing assets for
stakeholders to use in their own marketing
executions in order to amplify the promotion
of Aspen.
ACRA to provide Resource Kit to all
stakeholders which includes information on:
- Businesses that are open and any alterations
in operating procedures.
- Links to “This week in Aspen” content which
displays all events virtual or in person.
- Social Distancing and Safety information.
- All “How to” COVID information.
LONG-TERM
VISITOR EXPERIENCE
Provide a welcoming experience to our visitors by
acknowledging they are an essential part of the
Aspen eco-system.
Providing an added value Aspen Defy Ordinary
Gift Card for guests checking into our local
lodging properties for use at local restaurants,
shops, and activities.
Connect local guide companies to hotel guests
to that our visitors can experience the outdoors
in a responsible and sustainable way.
ACRA has partnered with local company
Corbeaux to provide sustainable face coverings
to our guests.
ACRA will provide locally produced Woody
Creek Distillers hand sanitizers for our partners
throughout town.
6216
LONG-TERM
DESTINATION PROMOTION:
Restorative Marketing, PR &
Group Sales Initiatives
We want to welcome our visitors back “home”,
whether they are second homeowners, frequent
guests, or first timers.
Aspen is well positioned to leverage the healing
power of nature, as well as the consumer’s
heightened consciousness about what really
matters. Aspen’s community is unique and
connects the visitor with their intensified values
and inspires feelings of familiarity and joy.
WHO:
1. Welcome back second homeowners
2. Regional drive markets
3. Resilient travelers in our direct fly markets
4. Groups
WHAT:
1. Welcome back to our community
2. Restorative power of nature
3. Physically distancing possibilities in our
wide-open spaces
4. Planning the unplanned summer
5. Added value offerings
6. Aspen as a location to restore the mind,
body & spirit
WHEN:
TBD – Will follow Public Health Guidelines,
and Colorado Tourism Office’s lead.
HOW:
1. Paid targeted advertising
2. Website Content, SEO efforts
3. ACRA chat bot update – specific to post
COVID Safety concerns
4. Search engine marketing efforts
5. Social media activation – paid & organic
6. Local influencer collaborations
7. Public relations pitching & hosting efforts
8. Media “Recovery Kit”
9. Group sales tradeshows, sales missions
& familiarization trips
7217
MEMORANDUM
TO: Aspen City Council
FROM: Ron LeBlanc, Special Projects Manager
THROUGH: Sara Ott, City Manager
MEMO DATE: May 19, 2020
MEETING DATE: May 26, 2020
RE: Restaurant and Retail Gift Card Program Proposal
Request of Council: Staff seeks Council’s direction on whether to create and implement a short-
term stimulus program for restaurants and/or retailers within the city of Aspen.
Purpose: The purpose of the City of Aspen Restaurant and Retail Gift Card Program is to quickly
inject money into the local restaurant and retail economy.
Background: The State of Colorado and Pitkin County have issued public health orders that
have restricted the normal operation of restaurants and non-essential retail. While the impact
of this financial crisis has shaken the viability of a broad range of economic sectors, local retail
and local restaurants have experienced immediate and devastating economic impacts. Aspen
and all Colorado cities are dependent on sales and use tax revenues to fund most general fund
expenses. The Restaurant and Retail Stimulus Program is designed to stimulate the local Aspen
economy by injecting funds to address the economic needs of local restaurants and retail
establishments impacted by the COVID 19 economic crisis.
Proposed total budget:
The total amount needed to fund this program is $50,000 which is currently included in the
$6,000,000 previously appropriated by City Council through ordinances 4-2020 and 5-2020.
Evaluation Criteria:
Staff developed a set of criteria for developing the program, as follows:
1) Only City of Aspen residents who received 2020 food tax refunds are eligible.
2) Funds must be spent within the Aspen city limits.
3) Easy to understand, easy to implement, easy to use.
4) All restaurants and retail businesses within the City of Aspen are eligible; but are not
required to participate if they do not want to do so.
5) Minimal fraud risk.
6) Must have a minimal administrative work to carry out the program.
Program guidelines:
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The program guidelines would be as follows:
1. Employees of the City of Aspen or Pitkin County are not eligible.
2. Program valid through July 10, 2020.
3. Must be used one time at one location.
4. Cannot be used for marijuana or alcohol.
Amount designated per household:
Each household is entitled to one $25.00 gift card.
Eligibility:
Program eligibility will be determined primarily by those individuals who qualify for the food
sales tax refund program. Using the list of residents who received the food sales tax refund is
the most expedient method to identify residents who are eligible for the Restaurant and Retail
Stimulus Program.
At $25 per individual, using the food tax rebate criteria, 461 seniors would be eligible to receive
a $25.00 card ($11,525) and 1,082 for non-seniors ($27,050) for a combined total of $38,575.
An additional 450 cards would be distributed to local non -profit entities the Aspen Police
Department to distribute to individuals encountered by police officers who need assistance.
This amount equals $11,425, bringing the total for the program to $50,000. No additional
appropriation would be required.
This is what the City will do:
✓ City will announce program details and instructions.
✓ Restaurant and Retail Gift Cards will be designed and printed.
✓ Eligibility will be compared to the head of household filing the 2020 Food Tax Refund
Application
This is what Aspen residents should do:
✓ Residents should bring a proper ID to City Hall (the outside window open to the sidewalk
on Galena Street) to pick up their card.
✓ Window hours will be from 9:00 to 4:00 Monday through Friday.
✓ Last day for gift card distribution to participants is June 12.
✓ Gift cards must be used by July 6, 2020.
This is what Aspen businesses need to do:
✓ Sign up to acknowledge willingness to accept the gift cards through the City’s website.
✓ Collect the gift card from the customer.
✓ Create a file to substantiate the card application on the bill (keep receipts and cards for
proof of use).
✓ City staff will come to your business once a week, or every other week (TBD) to pick up
documentation and to remit payment for the aggregate value of the cards.
✓ If immediate payment is desired, it will occur via a credit card transaction: if a credit
card transaction is not possible, a paper check will be issued and mailed.
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The Council may wish to consider:
• Does the Council wish to create economic stimulus through a gift ca rd program?
• Does the Council agree with both retail and restaurant, or does the Council wish to
focus one type of business?
• Does the Council agree with the eligibility criteria to receive this benefit, the program
award levels, and the proposed approach to the program?
• Is there any additional information the Council would like to assist in evaluating the
proposed program?
Staff Recommendation: Staff recommends establishing a City of Aspen restaurant and retail
stimulus program using $25.oo gift cards with a spending cap not to exceed $50,000.
City Manager Comments: Staff is presenting this program during the regular meeting because
of no work session on the holiday. Only general direction is needed whether to go forward
with the program.
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