<< Master Table of Contents


TABLE OF CONTENTS

TITLE 5

BUSINESS TAXES, LICENSES AND REGULATIONS

Chapters:

5-03 Partial Assignment of Electricity Franchise

I.  Definitions

5-03-010  Definitions

II.  Grant of Franchise

5-03-020  Grant of franchise

5-03-030  Conditions and limitations

5-03-040  Effective date and term

III.  City Police Powers

5-03-050  Police powers

5-03-060  Regulation of streets or other city property

5-03-070  Compliance with laws

IV.  Franchise Fee

5-03-080  Franchise fee

5-03-090  Remittance of franchise fees

5-03-100  Franchise fee payment not in lieu of permit or other fees

5-03-110  Change of franchise fee or consideration

V.  Administration of Franchise

5-03-120  City designee

5-03-130  Company designee

5-03-140  Coordination of work

VI.  Supply, Construction, and Design

5-03-150  Purpose

5-03-160  Supply

5-03-170  Service to city facilities

5-03-180  Restoration of service

5-03-190  Obligations regarding company facilities

5-03-200  Excavation and construction

5-03-210  Restoration

5-03-220  Relocation of company facilities

5-03-230  New or modified service requested by city

5-03-240  Service to new areas

5-03-250  City not required to advance funds

VII.  Reliability

5-03-260  Reliability

5-03-270  Franchise performance obligations

VIII.  Company Performance Obligations

5-03-280  New or modified service to city facilities

5-03-290  Third-party damage recovery

5-03-300  Utility locates

IX.  Use of Company Facilities

5-03-310  City use of company facilities

5-03-320  Third-party use of company facilities

5-03-330  City use of company transmission rights-of-way

5-03-340  Emergencies

X.  Undergrounding of Overhead Facilities

5-03-350  Underground electrical lines in new areas

5-03-360  Underground conversion at expense of company

5-03-370  Undergrounding performance

5-03-380  Audit of underground fund

5-03-390  Cooperation with other utilities

5-03-400  Planning and coordination of undergrounding projects

XI.  Purchase or Condemnation

5-03-410  Municipal right to purchase or condemn

XII.  Transfer of Franchise

5-03-420  Consent of city required

5-03-430  Transfer fee

XIII.  Continuation of Utility Service

5-03-440  Continuation of utility service

XIV.  Indemnification and Immunity

5-03-450  City held harmless

5-03-460  Immunity

XV.  Breach

5-03-470  Noncontestability

5-03-480  Breach

XVI.  Amendments

5-03-490  Proposed amendments

5-03-500  Effective amendments

XVII.  Equal Opportunity

5-03-510  Economic development

5-03-520  Employment

5-03-530  Contracting

XVIII.  Environment and Conservation

5-03-540  Environmental leadership

5-03-550  Energy conservation and efficiency

5-03-560  Continuing commitment

XIX.  Miscellaneous

5-03-570  No waiver

5-03-580  Successors and assigns

5-03-590  Third parties

5-03-600  Notice

5-03-610  Examination of records

5-03-620  Payment of taxes and fees

5-03-630  Conflict of interest

5-03-640  Certificate of convenience and necessity

5-03-650  Authority

5-03-660  Severability

5-03-670  Force majeure

5-03-680  Earlier franchises superseded

5-03-690  Titles not controlling

5-03-700  Applicable law

5-04 Gas and Electric Franchise

I.  Definitions

5-04-010  Definitions

II.  Grant of Franchise

5-04-020  Grant of franchise

5-04-030  Conditions and limitations

5-04-040  Effective date and term

III.  City Police Powers

5-04-050  Police powers

5-04-060  Regulation of streets or other city property

5-04-070  Compliance with laws

IV.  Franchise Fee

5-04-080  Franchise fee

5-04-090  Remittance of franchise fee

5-04-100  Franchise fee payment not in lieu of permit or other fees

5-04-110  Change of franchise fee

V.  Administration of Franchise

5-04-120  City designee

5-04-130  Company designee

5-04-140  Coordination of work

VI.  Supply, Construction, and Design

5-04-150  Purpose

5-04-160  Supply

5-04-170  Service to city facilities

5-04-180  Restoration of service

5-04-190  Obligations regarding company facilities

5-04-200  Excavation and construction

5-04-210  Restoration

5-04-220  Relocation of company facilities

5-04-230  New or modified service requested by city

5-04-240  Service to new areas

5-04-250  City not required to advance funds

VII.  Reliability

5-04-260  Reliability

5-04-270  Franchise performance obligations

VIII.  Company Performance Obligations

5-04-280  New or modified service to city facilities

5-04-290  Third-party damage recovery

IX.  Use of Company Facilities

5-04-300  City use of company facilities

5-04-310  5-04-310 Third-party use of company facilities

5-04-320  City use of company transmission rights-of-way

5-04-330  Emergencies

X.  Undergrounding of Overhead Facilities

5-04-340  Underground electrical lines in new areas

5-04-350  Underground conversion at expense of company

5-04-360  Undergrounding performance

5-04-370  Audit of underground fund

5-04-380  Cooperation with other utilities

5-04-390  Planning and coordination of undergrounding projects

XI.  Purchase or Condemnation

5-04-400  Municipal right to purchase or condemn

XII.  Transfer of Franchise

5-04-410  Consent of city required

5-04-420  Transfer fee

XIII.  Continuity of Utility Service

5-04-430  Continuation of utility service

XIV.  Indemnification and Immunity

5-04-440  City held harmless

5-04-450  Immunity

XV.  Breach

5-04-460  Noncontestability

5-04-470  Breach

XVI.  Amendments

5-04-480  Proposed amendments

5-04-490  Effective amendments

XVII.  Equal Opportunity

5-04-500  Economic development

5-04-510  Employment

5-04-520  Contracting

XVIII.  Environment and Conservation

5-04-530  Environmental leadership

5-04-540  Energy conservation and efficiency

5-04-550  Continuing commitment

5-04-560  PUC approval

XIX.  Miscellaneous

5-04-570  No waiver

5-04-580  Successors and assigns

5-04-590  Third parties

5-04-600  Notice

5-04-610  Examination of records

5-04-620  Payment of taxes and fees

5-04-630  Conflict of interest

5-04-640  Certificate of convenience and necessity

5-04-650  Authority

5-04-660  Severability

5-04-670  Force majeure

5-04-680  Earlier franchises superseded

5-04-690  Titles not controlling

5-04-700  Applicable law

5-05 Business Occupation Tax on Telephone Companies

5-05-010  Levy of tax

5-05-020  Effective date

5-05-030  Filing statement and payment of tax

5-05-040  Failure to pay

5-05-050  Penalty

5-05-060  Inspection of records

5-05-070  Exclusions

5-05-080  Nonwaiver

5-05-090  Validity of existing ordinances

5-12 Community Antenna Television System

5-12-010  Permit; required

5-12-020  Community antenna television system defined

5-12-030  Permit; application; contents

5-12-040  Permit; granting; conditions

5-12-050  Construction requirements generally

5-12-060  Operation without permit deemed nuisance; penalty for violations

5-14 Cable Television System

5-14-010  Franchise; required

5-14-020  Definitions

5-14-030  Franchise; application; contents

5-14-040  Franchise; granting; conditions

5-14-050  Construction requirements

5-14-060  Technical performance

5-14-080  Franchise; use of streets, etc.

5-14-090  Franchise; nonexclusive; nontransferable; revocable

5-14-100  Services and rates

5-14-110  Free distribution of services

5-14-130  Emergency use of facilities

5-14-150  Business occupation tax

5-14-160  Time for commencement and completion and area to be served

5-14-170  Foreclosures

5-14-180  Receivership

5-14-190  Other law

5-14-200  Responsibility

5-14-210  Insurance

5-14-220  Penalties

5-20 Peddlers, Solicitors, and Itinerant Merchants

5-20-010  License; required; exceptions

5-20-020  Definitions

5-20-030  License; application; contents

5-20-040  Investigation; issuance or disapproval

5-20-050  Badge; issuance; contents; display required

5-20-060  License; exceptions; registration required

5-20-070  License; deemed nontransferable

5-20-080  License; revocation

5-20-090  License; appeal

5-20-100  License; expiration

5-20-110  License; fee

5-20-120  Police; enforcement

5-20-130  Violation; recordkeeping

5-20-140  Trespassing; notice; violation

5-20-150  Civil action; city rights designated

5-20-160  Penalty for violation

5-24 Residential Route Deliveries Tax

5-24-010  Person defined

5-24-020  Purpose

5-24-030  Levied; business subject to tax; payment and compliance required

5-24-040  Levied; amount; exceptions

5-24-050  Payment; due date; license sticker issuance; display

5-24-060  Refund when

2-24-070  Civil action; not deemed waiver of penalty

5-24-080  Penalty for violation

5-28 Alcoholic Liquor

5-28-010  Short title

5-28-020  Legislative declaration

5-28-030  Definitions

5-28-040  License required

5-28-050  Local licensing authority; established; powers

5-28-060  Licensing authority; rule and regulation promulgation

5-28-070  City clerk; powers and duties

5-28-080  Investigator; powers and duties

5-28-090  Application for new license or permit; generally

5-28-100  Application for new license or bed and breakfast permit; investigation; fingerprinting of applicant

5-28-110  Hotel and restaurant license; optional premises

5-28-120  Application fees

5-28-130  Collection of fees generally

5-28-140  License renewal

5-28-150  Change of manager

5-28-160  Special event permit

5-28-170  Hearing; procedure

5-28-180  Hearing; authority

5-28-190  License suspension; alternative penalty; adoption

5-28-200  License display required

5-28-210  Warning sign to be displayed

5-28-220  Bed and breakfast permit

5-28-230  Tastings

5-32 Fermented Malt Beverages

5-32-010  Short title

5-32-020  Legislative declaration

5-32-030  Definitions

5-32-040  License required

5-32-050  Local licensing authority; established; powers

5-32-060  Licensing authority; rule and regulation promulgation

5-32-070  City clerk; powers and duties

5-32-080  Investigator; powers and duties

5-32-090  Application for new license; generally

5-32-100  Application for new license; investigation; fingerprinting of applicant

5-32-110  License; distance restrictions

5-32-120  Application fees

5-32-130  Collection of fees generally

5-32-140  License renewal

5-32-150  Change of manager

5-32-160  Special event permit

5-32-170  Hearing; procedure

5-32-180  Hearing; authority

5-32-190  License suspension; alternate penalty; adoption

5-32-200  License display required

5-32-210  Warning sign to be displayed

5-36 Sexually Oriented Businesses

5-36-010  Legislative declaration

5-36-020  Definitions

5-36-030  License required

5-36-040  Application requirements

5-36-050  Issuance of license

5-36-060  Manager registration

5-36-070  Employee registration

5-36-080  Inspection

5-36-090  Expiration of license

5-36-100  License suspension or revocation

5-36-110  Mandatory license revocation

5-36-120  Setback requirements

5-36-130  Minimum age

5-36-140  Hours of operation

5-36-150  Peep booth regulations

5-36-160  Lighting regulations

5-36-170  Adult theaters and adult cabarets; regulations

5-36-180  Conduct for sexually oriented businesses

5-36-190  Sexually oriented businesses; employee tips

5-36-200  Adult motel; regulations

5-36-210  Nude model studios; exemptions

5-36-220  Injunction

5-36-230  Fees

5-36-240  Penalty for violation

5-38 Secondhand Dealers and Pawnbrokers

5-38-010  Definitions

5-38-020  Secondhand articles to be held ten days before sale

5-38-030  Dealer to exhibit goods to police

5-38-040  Inspection of dealers

5-38-050  Sales tax license

5-38-060  Sale of secondhand property; record; inspection; crime

5-38-070  Notice to be posted

5-38-080  Secondhand dealers not to operate pawnshops

5-38-090  Pawnbrokers to obey regulations

5-38-100  Violation

5-40 Ambulance Services

5-40-010  Definitions

5-40-020  Regulations

5-40-030  Licenses

5-40-040  Revocation, suspension, and hearings

5-40-050  Alleged negligence

5-40-060  Applicability

5-40-070  Penalty for violation


Chapter 5-03

Partial Assignment of Electricity Franchise

I. Definitions

5-03-010  Definitions. Go to the top

For the purpose of this franchise, the following words and phrases shall have the meanings given in this article. When not inconsistent with context, words used in the present tense include the future tense, words in the plural include the singular, and words in the singular include the plural. The word shall is mandatory, and may is permissive. Words not defined in this article shall be given their common and ordinary meanings.

(A)  City refers to the City and County of Broomfield, a municipal corporation of the State of Colorado.

(B)  City council or council refers to the legislative body of the city.

(C)  Company refers to United Power, Inc., ("United") and its successors and assigns, including affiliates or subsidiaries that undertake to perform any of the obligations under this franchise.

(D)  Company facilities refer to all facilities of the company reasonably necessary to provide electric service into, within, and through the city, including but not limited to plants, works, systems, substations, transmission and distribution structures, lines, equipment, pipes, mains, conduit, transformers, underground lines, meters, meter-reading devices, communication and data transfer equipment, control equipment, street lights, wire, cables, and poles.

(E)  Gross revenues refers to those amounts of money which the company receives from the sale of electricity within the city under the company's rates as adjusted for refunds, net write-offs of uncollectible accounts, corrections, or regulatory adjustments. Regulatory adjustments include, but are not limited to, credits, surcharges, refunds, and pro-forma adjustments pursuant to federal or state regulation. Gross revenues shall exclude any revenues from the sale of electricity to the city.

(F)  Private project refers to any project which is not covered by the definition of public project.

(G)  Public project refers to:

(1)  Any public work or improvement within the city that is wholly owned or wholly funded by the city, or that is required by the city in the reasonable exercise of its police power; or

(2)  Any public work or improvement within the city where 50% or more of the funding is provided by any combination of government entities, including the city, the federal government, the State of Colorado, the Regional Transportation District, the Broomfield Urban Renew-al Authority, any special district, local improvement district, metropolitan district, or any Colorado county.

(H)  Public utility easement refers to any easement over, under, or above public or private property, lawfully acquired by or dedicated to the use of the company, its predecessors in interest, or other public utility companies for the placement of public utility facilities, including but not limited to company facilities.

(I)  Residents refers to all persons, businesses, industries, governmental agencies, including the city and any other entity whatsoever presently located or to be hereinafter located, in whole or in part, within the territorial boundaries of the city.

(J)  Streets or city streets refers to the surface, the air space above the surface, and the area below the surface of any city-dedicated streets, alleys, bridges, roads, lanes, public easements, and other public rights-of-way within the city. Streets shall also include other public places within the city that are suitable locations for the placement of company facilities as specifically approved in writing by the city in its sole discretion. Streets shall not include public utility easements.

(K)  Supporting documentation refers to all information reasonably required in order to allow the company to design and construct any work performed under the provisions of this franchise. Supporting documentation may include, but is not limited to, construction plans, a description of known environmental issues, the identification of critical right-of-way or easement issues, the final recorded plat for the property, the date the site will be ready for the company to begin construction, the date electric service and meter set are needed, and the name and contact information of the city's project manager.

(L)  Tariffs refers to those tariffs of the company on file and in effect with the PUC.

(M) Utility service refers to the sale of electricity to residents by the company under its rates. (Ord. 1874 §§1.1-1.13, 2007)

II. Grant of Franchise

5-03-020  Grant of franchise. Go to the top

(A)  Grant. The city hereby grants to the company, subject to all conditions, limitations, terms, and provisions contained in this franchise, the nonexclusive right to make reasonable use of city streets:

(1)  To provide utility service to the city and to its residents under the company's tariffs; and

(2)  To acquire, purchase, construct, install, locate, maintain, operate, and extend into, within, and through the city all company facilities reasonably necessary for the generation, production, manufacture, sale, storage, purchase, exchange, transmission, transportation, and distribution of utility service within and through the city.

(B)  Street lighting and traffic signal lighting service. The rights granted by this franchise encompass the nonexclusive right to provide street lighting service and traffic signal lighting service as directed by the city, and the provisions of this franchise shall apply with full and equal force to street lighting service and traffic signal lighting service provided by the company. Wherever reference is made in this franchise to the sale or provision of utility service, these references shall be deemed to include the provision of street lighting service and traffic signal lighting service. Street lighting service and traffic signal lighting service within the city shall be governed by the company's tariffs. (Ord. 1874 §2.1, 2007)

5-03-030  Conditions and limitations. Go to the top

(A)  Scope of franchise. The grant of this franchise shall extend to all areas of the city as it is now or hereafter constituted; however, nothing contained in this franchise shall be construed to authorize the company to engage in activities other than the provision of utility service within those areas it has permission to do so under this agreement and as granted by the Colorado Public Utilities Commission.

(B)  Subject to city usage. The right to make reasonable use of city streets under this franchise is subject to and subordinate to any city usage of said streets.

(C)  Prior grants not revoked. This grant is not intended to revoke any prior license, grant, or right to use the streets, and such licenses, grants, or rights of use are hereby affirmed. Such rights shall, however, be governed by the terms of this franchise, the city Charter, and other applicable provisions of the Broomfield Municipal Code, including but not limited to chapter 14-10, Use of Public Rights-of-Way.

(D)  Franchise not exclusive. The rights granted by this franchise are not, and shall not be deemed to be, granted exclusively to the company, and the city reserves the right to make or grant a franchise to any other person, firm, or corporation. (Ord. 1874 §2.2, 2007)

5-03-040  Effective date and term. Go to the top

Term. This franchise shall take effect on January 1, 2008, and shall supersede any prior franchise grants to the company by the city. This franchise shall terminate on December 31, 2027, unless extended by mutual consent. (Ord. 1874 §2.3, 2007)

III. City Police Powers

5-03-050  Police powers. Go to the top

The company expressly acknowledges the city's right to adopt, from time to time, in addition to the provisions contained herein, such laws, including ordinances and regulations, as it may deem necessary in the exercise of its governmental powers. (Ord. 1874 §3.1, 2007)

5-03-060  Regulation of streets or other city property. Go to the top

The company expressly acknowledges the city's right to enforce regulations concerning the company's access to or use of the streets, including requirements for permits, requirements under chapter 14-10, Use of Public Rights-of-Way, B.M.C. and requirements for the company to relocate its facilities when required to by the city in the reasonable exercise of its police powers. (Ord. 1874 §3.2, 2007)

5-03-070  Compliance with laws. Go to the top

The company shall promptly and fully comply with all laws, regulations, permits, and orders enacted by the city that are applicable to the company's provision of utility service within the city. (Ord. 1874 §3.2, 2007)

IV. Franchise Fee

5-03-080  Franchise fee. Go to the top

(A)  Fee. In consideration for this franchise, which provides for the company's use of city streets, which are valuable public properties acquired and maintained by the city at great expense to its residents, and in recognition that the grant to the company of the use of city streets is a valuable right, the company shall pay the city a sum equal to 3% of all gross revenues.

(B)  Obligation in lieu of fee. In the event that the franchise fee specified herein is declared void for any reason by a court of competent jurisdiction, unless prohibited by law, the company shall be obligated to pay the city, at the same times and in the same manner as provided in this franchise, an aggregate amount equal to the amount which the company would have paid as a franchise fee as consideration for use of the city streets.

(C)  Changes in utility service industries. The city and the company recognize that utility service industries are the subject of restructuring initiatives by legislative and regulatory authorities and are also experiencing other changes as a result of mergers, acquisitions, and reorganizations. Some of such initiatives and changes have, or may have, an adverse impact upon the franchise fee revenues provided for herein. In recognition of the length of the term of this franchise, the company agrees that in the event of any such initiatives or changes and to the extent permitted by law, upon receiving a written request from the city, the company will cooperate with and assist the city in modifying this franchise to assure that the city receives an amount in franchise fees or some other form of compensation that is the same amount of franchise fees paid to the city as of the date that such initiatives and changes adversely impact franchise fee revenues, provided, however, that the company shall be entitled to collect such amounts from city residents in conjunction with the provision of utility service.

(D)  Utility service provided to the city. No franchise fee shall be charged to the city for utility service provided to the city for its own consumption, including street lighting service and traffic signal lighting service. (Ord. 1874 §4.1, 2007)

5-03-090  Remittance of franchise fee. Go to the top

(A)  Remittance schedule. Franchise fee revenues shall be remitted by the company to the city as directed by the city in monthly installments not more than thirty days following the close of each month.

(B)  Correction of franchise fee payments. In the event that either the city or the company discovers that there has been an error in the calculation of the franchise fee payment to the city, it shall provide written notice to the other party of the error. If the party receiving written notice of error does not agree with the written notice of error, that party may challenge the written notice of error pursuant to subsection (C) below; otherwise, the error shall be corrected in the next monthly payment. However, if the error results in an overpayment of the franchise fee to the city, and said overpayment is in excess of $5,000.00, credit for the overpayment shall be spread over the same period the error was undiscovered. All franchise fee underpayments shall be corrected in the next monthly payment, together with interest computed at the rate set by the company for customer security deposits held by the company, from the date when due until the date paid. In no event shall either party be required to fund or refund any overpayment or underpayment made as a result of a company error which occurred more than three years prior to the discovery of the company error.

(C)  Fee disputes. Either party may challenge any written notification of error as provided for in subsection (B) above, by filing a written notice to the other party within thirty days of receipt of the written notification of error. The written notice shall contain a summary of the facts and reasons for the party's notice. The parties shall make good faith efforts to resolve any such notice of error before initiating any formal legal proceedings for the resolution of such error.

(D)  Reports. Upon written request by the city, but not more than once per year, the company shall supply the city with reports, in such formats and providing such details as reasonably requested by the city, of all suppliers of utility service that utilize company facilities to sell or distribute utility service to residents and the names and addresses of each such supplier. (Ord. 1874 §4.2, 2007)

5-03-100  Franchise fee payment not in lieu of permit or other fees. Go to the top

Payment of the franchise fee does not exempt the company from any other lawful tax or fee imposed generally upon persons doing business within the city, including any fee for a street closure permit, an excavation permit, a street cut permit, or other lawful permits hereafter required by the city, except that the franchise fee provided for herein shall be in lieu of any occupancy tax, occupation tax, or other fee for the use of city streets. (Ord. 1874 §4.3, 2007)

5-03-110  Change of franchise fee or consideration. Go to the top

(A)  Once each year the city council may, by ordinance, change the consideration under this franchise to that paid by the company under any municipal franchise in Colorado, after thirty days' notice to the company.

(B)  The company shall report to the city, within sixty days, the execution or change of any franchise under which a municipality receives greater consideration than is provided for herein. For purposes of this section, consideration means the franchise fee established in section 5-03-080 above, the undergrounding fee established in section 5-03-360 herein, and any other provision of significant financial benefit to the municipality. (Ord. 1874 §4.4, 2007)

V. Administration of Franchise

5-03-120  City designee. Go to the top

The city shall designate in writing to the company an official having full power and authority to administer this franchise. The city may also designate one or more city representatives to act as the primary liaison with the company as to particular matters addressed by this franchise and shall provide the company with the names and telephone numbers of said city representatives. The city may change these designations by providing written notice to the company. The city's designee shall have the right, at all reasonable times, to inspect any company facilities in city streets. (Ord. 1874 §5.1, 2007)

5-03-130  Company designee. Go to the top

The company shall designate a representative to act as the primary liaison with the city and shall provide the city with the name, address, and telephone number for the company's representative under this franchise. The company may change its designation by providing written notice to the city. The city shall use this liaison to communicate with the company regarding utility service and related service needs for city facilities. (Ord. 1874 §5.2, 2007)

5-03-140  Coordination of work. Go to the top

(A)  The company agrees to meet with the city's designee, upon written request, for the purpose of reviewing, implementing, or modifying mutually beneficial procedures for the efficient processing of company bills, invoices, and other requests for payment.

(B)  The company agrees to coordinate its activities in city streets with the city. The city and the company will meet annually, upon the written request of the city designee, to exchange their respective short-term and long-term forecasts or work plans for construction and other similar work which may affect city streets. The city and company shall hold such meetings as either deems necessary to exchange additional information with a view towards coordinating their respective activities in those areas where such coordination may prove beneficial, and so that the city will be assured that all provisions of this franchise, building and zoning codes, and air and water pollution regulations are complied with, and that aesthetic and other relevant planning principles have been given due consideration. (Ord. 1874 §5.3, 2007)

VI. Supply, Construction, and Design

5-03-150  Purpose. Go to the top

The company acknowledges the critical nature of the municipal services performed or provided by the city to the residents which require the company to provide prompt and reliable utility service and the performance of related services for city facilities. The city and the company wish to provide for certain terms and conditions under which the company will provide utility service and perform related services for the city, in order to facilitate and enhance the operation of city facilities. They also wish to provide for other processes and procedures related to the provision of utility service to the city. (Ord. 1874 §6.1, 2007)

5-03-160  Supply. Go to the top

The company shall take all reasonable and necessary steps to provide a sufficient supply of electricity to residents at the lowest reasonable cost consistent with reliable supplies. (Ord. 1874 §6.2, 2007)

5-03-170  Service to city facilities. Go to the top

Charges to the city. No charges to the city by the company for utility service shall exceed the lowest charge for similar service or supplies provided by the company to any other similarly situated customer of the company. (Ord. 1874 §6.3, 2007)

5-03-180  Restoration of service. Go to the top

(A)  Notification. The company shall provide to the city daytime and nighttime telephone numbers of a designated company representative from whom the city designee may obtain status information from the company on a twenty-four-hour basis concerning interruptions of utility service in any part of the city.

(B)  Restoration. In the event the company's electric system, or any part thereof, is partially or wholly destroyed or incapacitated, the company shall use due diligence to restore such system to satisfactory service within the shortest practicable time, or provide a reasonable alternative to such system, if the company elects not to restore such system. (Ord. 1874 §6.4, 2007)

5-03-190  Obligations regarding company facilities. Go to the top

(A)  Company facilities. All company facilities within city streets shall be maintained in good repair and condition.

(B)  Company work within the city. All work within city streets performed, or caused to be performed, by the company shall be done:

(1)  In a high-quality manner;

(2)  In a timely and expeditious manner;

(3)  In a manner which minimizes inconvenience to the public;

(4)  In a cost-effective manner, which may include the use of qualified contractors; and

(5)  In accordance with all applicable laws, ordinances, and regulations.

(C)  No interference with city facilities. Company facilities shall not interfere with any city facilities, including water facilities, sanitary or storm sewer facilities, communications facilities, or other city uses of the streets. Company facilities shall be installed and maintained in city streets so as to minimize interference with other property, trees, and other improvements and natural features in and adjoining the streets.

(D)  Permit and inspection. The installation, renovation, and replacement of any company facilities in the city streets by, or on behalf of, the company shall be subject to permit, inspection, and approval by the city. Such inspection and approval may include, but not be limited to, the following matters: location of company facilities, cutting and trimming of trees and shrubs, and disturbance of pavement, sidewalks, and surfaces of city streets. The company agrees to cooperate with the city in conducting inspections and shall promptly perform any remedial action lawfully required by the city pursuant to any such inspection.

(E)  Compliance. The company and all of its contractors shall comply with the requirements of all municipal laws, ordinances, regulations, permits, and standards, including but not limited to requirements of all building and zoning codes, Use of Public Rights-of-Way ordinances, and requirements regarding curb and pavement cuts, excavating, digging, and other construction activities. The company shall assure that its contractors working in city streets hold the necessary licenses and permits required by law.

(F)  As-built drawings. Upon reasonable written request of the city designee, if available, the company shall provide, on a project-by-project basis, as-built drawings of any company facility installed within the city streets or contiguous to the city streets. (Ord. 1874 §6.5, 2007)

5-03-200  Excavation and construction. Go to the top

The company shall be responsible for obtaining, paying for, and complying with all applicable permits, including but not limited to excavation, street closure, and street cut permits, in the manner required by the laws, ordinances, and regulations of the city. Although the company shall be responsible for obtaining and complying with the terms of such permits when performing relocations requested by the city under section 5-03-220 below, and undergrounding requested by the city under article X herein, the city will not require the company to pay the fees charged for such permits. (Ord. 1874 §6.6, 2007)

5-03-210  Restoration. Go to the top

To the extent practicable, when the company does any work in, or affecting, the city streets or other public or private property, it shall, at its own expense, promptly remove any obstructions therefrom and restore such city streets, or other public or private property, to their former condition or a condition that meets applicable city standards. If weather or other conditions do not permit the complete restoration required by this section, the company may, with the approval of the city, temporarily restore the affected city streets or other public or private property, provided that such temporary restoration is at the company's sole expense, and provided further that the company promptly undertakes and completes the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. If the company fails to promptly restore the city streets or other public or private property, as required by this section, the city may, upon giving fourteen days' written notice to the company, restore such property or remove the obstruction therefrom; provided, however, that city actions do not interfere with company facilities. The company shall be responsible for the actual cost incurred by the city to restore such city streets or other public or private property or to remove any obstructions therefrom. The city shall not perform work on company facilities. (Ord. 1874 §6.7, 2007)

5-03-220  Relocation of company facilities. Go to the top

(A)  Relocation obligation. The company shall, at its sole cost and expense, temporarily or permanently remove, relocate, change, or alter the position of any company facility in city streets, whenever such removal, relocation, change, or alteration is necessary for the completion of any public project. For all relocations, the company and the city agree to cooperate on the location and relocation of the company facilities in the city streets, in order to achieve relocation in the most efficient and cost-effective manner possible. Notwithstanding the foregoing, once the company has relocated any company facility at the city's direction, if the city requests that the same company facility be relocated within three years, the subsequent relocation shall not be at the company's expense.

(B)  Private projects. The company shall not be responsible for the expenses of any relocation required by any private projects, and the company has the right to require the payment of estimated relocation expenses from the affected private party, before undertaking such relocation.

(C)  Relocation performance. The relocations set forth in subsection (A) above, shall be completed within a reasonable time, not to exceed ninety days from the later of the date on which the city designee requests in writing that the relocation commence or the date when the company is provided all supporting documentation. The company shall be entitled to an extension of time to complete a relocation, where the company's performance was delayed due to a cause that could not be reasonably anticipated by the company or is beyond its reasonable control, after exercise of best efforts to perform, including without limitation: fire, strike, war, riots, acts of governmental authority, acts of God, forces of nature, judicial action, unavailability or shortages of labor, materials or equipment, and failures or delays in delivery of materials. Upon request of the company, the city may also grant the company reasonable extensions of time for good cause shown, and the city shall not unreasonably withhold any such extension.

(D)  City revision of supporting documentation. Any revision by the city of supporting documentation provided to the company that causes the company to substantially redesign or change its plans regarding facility relocation shall be deemed good cause for a reasonable extension of time to complete the relocation under this franchise.

(E)  Completion. Each such relocation shall be deemed complete only when the company actually relocates the company facilities, restores the relocation site in accordance with section 5-03-210 above, or as otherwise agreed with the city, and removes from the site, or properly abandons on site, all unused facilities, equipment, material, and other impediments.

(F)  Scope of obligation. The relocation obligation set forth in this section shall only apply to company facilities located in city streets or public utility easements. The obligation shall not apply to company facilities located on property owned by the company in fee, or to company facilities located in privately owned easements.

(G)  Underground relocation. Underground facilities shall be relocated underground. Aboveground facilities shall be placed above ground, unless the company is paid for the incremental amount by which the underground cost would exceed the aboveground cost of relocation or the city requests that such additional incremental cost be paid out of available funds under article X herein.

(H)  Coordination. When requested in writing by the city designee or the company, representatives of the city and the company shall meet to share information regarding anticipated projects which will require relocation of company facilities in city streets. Such meetings shall be for the purpose of minimizing conflicts where possible and to facilitate coordination with any timetable established by the city for any public project.

(I)  Proposed alternatives or modifications. Upon receipt of written notice of a required relocation, the company may propose an alternative to, or modification of, the public project requiring the relocation, in an effort to mitigate or avoid the impact of the required relocation of company facilities. The city shall in good faith review the proposed alternative or modification. The city shall not unreasonably withhold its approval of the proposed alternative or modification. In the event the city designee accepts the proposed alternative or modification, the company agrees to promptly compensate the city for all additional costs, expenses, or delay that resulted from the implementation of the proposed alternative. (Ord. 1874 §6.8, 2007)

5-03-230  New or modified service requested by city. Go to the top

The conditions under which the company shall install new or modified utility service to the city as a customer shall be governed by this franchise and the company's tariffs. (Ord. 1874 §6.9, 2007)

5-03-240  Service to new areas. Go to the top

If the territorial boundaries of the city are expanded during the term of this franchise, the company shall, to the extent permitted by law, extend service to residents in the expanded area at the earliest practicable time. Service to the expanded area shall be in accordance with the terms of the company's tariffs and this franchise, including the payment of franchise fees. (Ord. 1874 §6.10, 2007)

5-03-250  City not required to advance funds. Go to the top

Upon receipt of the city's authorization for billing and construction, the company shall extend company facilities to provide utility service to the city as a customer, without requiring the city to advance funds prior to construction. The city shall pay for the extension of company facilities, once completed, in accordance with the company's extension policy. (Ord. 1874 §6.11, 2007)

VII. Reliability

5-03-260  Reliability. Go to the top

The company shall operate and maintain company facilities efficiently, economically, and in accordance with the standards, systems, methods, and skills consistent with the provision of adequate, safe, and reliable utility service. (Ord. 1874 §7.1, 2007)

5-03-270  Franchise performance obligations. Go to the top

The company recognizes that, as part of its obligations and commitments under this franchise, the company shall carry out each of its performance obligations in a timely, expeditious, efficient, economical, and workmanlike manner. (Ord. 1874 §7.2, 2007)

VIII. Company Performance Obligations

5-03-280  New or modified service to city facilities. Go to the top

In providing new or modified utility service to city facilities, the company agrees to perform as follows:

(A)  Performance. The company shall complete each project requested by the city within a reasonable time. The parties agree that a reasonable time shall not exceed 180 days from the date upon which the city designee makes a written request and provides the required supporting documentation as described in this section. The company shall be entitled to an extension of time to complete a project where the company's performance was delayed due to a cause that could not be reasonably anticipated by the company or is beyond its reasonable control, after exercise of best efforts to perform, including but not limited to fire, strike, war, riots, acts of governmental authority, acts of God, forces of nature, judicial action, unavailability or shortages of materials or equipment, and failures or delays in delivery of materials. Upon request of the company, the city designee may also grant the company reasonable extensions of time for good cause shown, and the city shall not unreasonably withhold any such extension.

(B)  City revision of supporting documentation. Any revision by the city of supporting documentation provided to the company that causes the company to substantially redesign or change its plans regarding new or modified service to city facilities shall be deemed good cause for a reasonable extension of time to complete the relocation under this franchise.

(C)  Completion/restoration. Each such project shall be complete only when the company actually provides the service installation or modification required, restores the project site in accordance with the terms of this franchise or as otherwise agreed with the city, and removes from the site, or properly abandons on site, any unused facilities, equipment, material, and other impediments. (Ord. 1874 §8.1, 2007)

5-03-290  Third-party damage recovery. Go to the top

(A)  Damage to company interests. If, by violation of any traffic or other ordinance of the city or in any other unlawful manner, any individual or entity damages any company facilities that the company is responsible to repair or replace, the city will notify the company of any such incident and will provide to the company, within a reasonable time, all pertinent information within its possession regarding the incident and the damage, including the identity of the responsible individual or entity, to the extent allowed by law.

(B)  Damage to city interests. If, by violation of any traffic or other ordinance of the city or in any other unlawful manner, any individual or entity damages any company facilities for which the city is obligated to reimburse the company for the cost of the repair or replacement of the damaged facility, the company will notify the city of any such incident and will provide to the city, within a reasonable time, all pertinent information within its possession regarding the incident and the damage, including the identity of the responsible individual or entity, to the extent allowed by law.

(C)  Meeting. The company and the city agree to meet periodically, upon written request of either party, for the purpose of developing, implementing, reviewing, improving, or modifying mutually beneficial procedures and methods for the efficient gathering and transmittal of information useful in recovery efforts against third parties for damaging company facilities. (Ord. 1874 §8.2, 2007)

5-03-300  Utility locates. Go to the top

The company recognizes that the city provides water and sanitary sewer services to its residents and customers. In order to maintain and repair water and sewer service facilities, the city has occasion to need emergency utility locates from the company, so that city workers can safely excavate to conduct repair or replacement work. The company understands that such work needs to be conducted as expeditiously as possible in order to protect the public health and safety. The company agrees that, when contacted by the city and requested to perform an emergency utility locate, the company shall have sufficient crew on the scene within two hours of receiving the request from the city. For each hour, or portion thereof, that the company is late in performing the emergency locate, the company shall contribute $250.00 to the Undergrounding Fund. The late fee shall be adjusted after each five-year period of this franchise, in accordance with the change in the Consumer Price Index for the Denver metropolitan area. (Ord. 1874 §8.3, 2007)

IX. Use of Company Facilities

5-03-310  City use of company facilities. Go to the top

The city shall be permitted to make use of company facilities in the city, at no cost to the city, for the placement of city equipment or facilities necessary to serve a legitimate police, fire, emergency, public safety, or traffic control, or other public purpose. The city will notify the company, in writing, in advance of its intent to use company facilities and the nature of such use. The city shall be responsible for costs associated with modifications to company facilities to accommodate the city's use of such company facilities and for any electricity used. No such use of company facilities shall be required, if it would constitute a safety hazard or would interfere with the company's use of company facilities. Any such city use must comply with the National Electric Safety Code and all other applicable laws, rules, and regulations. (Ord. 1874 §9.1, 2007)

5-03-320  Third-party use of company facilities. Go to the top

If requested in writing by the city, the company may allow other companies who hold franchises, or otherwise have obtained consent from the city to use the streets, to utilize company facilities for the placement of their facilities, upon approval by the company and agreement upon reasonable terms and conditions, including payment of fees established by the company. No such use shall be permitted if it would constitute a safety hazard or would interfere with the company's use of company facilities. The company shall not be required to permit the use of company facilities for the provision of utility service by the city or by third parties. (Ord. 1874 §9.2, 2007)

5-03-330  City use of company transmission rights-of-way. Go to the top

The company shall offer to grant to the city use of transmission rights-of-way, which it now or in the future owns in fee within the city, for parks and open space; provided, however, that the company shall not be required to make such an offer in any circumstance where such offer would constitute a safety hazard or would interfere with the company's use of the transmission right-of-way. (Ord. 1874 §9.3, 2007)

5-03-340  Emergencies. Go to the top

Upon written request, the company shall assist the city in developing an emergency management plan. In the case of any emergency or disaster, the company shall, upon verbal request of the city, make available company facilities for emergency use without charge during the emergency or the disaster period. Such use of company facilities shall be of a limited duration and will only be allowed if the use does not interfere with the company's own use of company facilities. (Ord. 1874 §9.4, 2007)

X. Undergrounding of Overhead Facilities

5-03-350  Underground electrical lines in new areas. Go to the top

The company shall, upon payment to the company of the charges provided in its tariffs or their equivalent, place all newly constructed electrical distribution lines in newly developed areas underground, in accordance with applicable laws, regulations, and orders. (Ord. 1874 §10.1, 2007)

5-03-360  Underground conversion at expense of company. Go to the top

(A)  Underground fund. The company shall budget and allocate an annual amount, equivalent to 1.5% of the preceding year's gross revenues (the "fund"), for the purpose of undergrounding existing overhead distribution facilities in the city, as may be requested by the city, provided that the undergrounding shall extend for a minimum distance of one block or 750 feet, whichever is less, or as may be mutually agreed by the parties. Except as provided in subsection 5-03-220(F) herein, no relocation expenses, which the company would be required to expend pursuant to article VI herein, shall be charged to this allocation.

(B)  Unexpended portion and advances. Any unexpended portion of the fund shall be carried over to succeeding years, and, in addition, upon request by the city designee, the company agrees to expend amounts anticipated to be available under the preceding subsection (A) above, for up to three years in advance. Any amounts so expended shall be credited against amounts to be expended in succeeding years. Any funds accumulated under any prior franchise shall be carried over to this fund balance. The city shall have no vested interest in the fund and any monies in the fund, not expended at the expiration or termination of this agreement shall remain the property of the company.

(C)  System-wide undergrounding. If, during the term of this franchise, the company should undertake a system-wide program or programs of undergrounding its electric distribution facilities, the company will budget and allocate to the program of undergrounding in the city such amount as may be determined by the company, but in no case shall such amount be less than the 1.5% of annual gross revenues provided above.

(D)  City requirement to underground. In addition to the provisions of this article, the city may require any aboveground company facilities to be moved underground at the city's expense. (Ord. 1874 §10.2, 2007)

5-03-370  Undergrounding performance. Go to the top

Upon receipt of a written request from the city, the company shall, to the extent of monies available in the fund and as otherwise provided herein, underground company facilities in accordance with the procedures set forth in this section.

(A)  Performance. The company shall complete each undergrounding project requested by the city within a reasonable time, not to exceed 180 days from the later of the date upon which the city designee makes a written request and the date the city provides to the company all supporting documentation. The company shall be entitled to an extension of time to complete each undergrounding project where the company's performance was delayed due to a cause that could not be reasonably anticipated by the company or is beyond its reasonable control, after exercise of best efforts to perform, including but not limited to fire, strike, war, riots, acts of governmental authority, acts of God, forces of nature, judicial action, unavailability or shortages of materials or equipment, and failures or delays in delivery of materials. Upon request of the company, the city may also grant the company reasonable extensions of time for good cause shown, and the city shall not unreasonably withhold any such extension.

(B)  City revision of supporting documentation. Any revision by the city of supporting documentation provided to the company, that causes the company to substantially redesign or change its plans regarding an undergrounding project, shall be deemed good cause for a reasonable extension of time to complete the undergrounding project under this franchise.

(C)  Completion/restoration. Each such undergrounding project shall be deemed complete only when the company actually undergrounds the designated company facilities, restores the undergrounding site in accordance with section 5-03-210 herein, or as otherwise agreed with the city designee, and removes from the site, or properly abandons on site, any unused facilities, equipment, material, and other impediments.

(D)  Estimates. Promptly upon receipt of an undergrounding request from the city and the supporting documentation necessary for the company to design the undergrounding project, the company shall prepare a detailed, good-faith cost estimate of the anticipated actual cost of the requested project for the city to review and, if acceptable, issue a project authorization. The company will not proceed with any requested project until the city has provided a written acceptance of the company estimate.

(E)  Report of actual costs. Upon completion of each undergrounding project, the company shall submit to the city a detailed report of the company's actual cost to complete the project, and the company shall reconcile this total actual cost with the accepted cost estimate.

(F)  Audit of underground projects. The city may require that the company undertake, at its own expense, an independent audit of any undergrounding project for $500,000.00 or greater. The company shall cooperate fully with any audit, and the independent auditor shall prepare and provide to the city and the company a final audit report showing the actual costs associated with completion of the project. If a project audit is required by the city, only those actual project costs, confirmed and verified by the independent auditor as incurred by the company to complete the particular city undergrounding project, shall reduce the fund. (Ord. 1874 §10.3, 2007)

5-03-380  Audit of underground fund. Go to the top

Upon written request of the city, but no more frequently than once every three years, the company shall audit the fund for the city. Such audits shall be limited to the previous three calendar years. The company shall provide the audit report to the city and shall reconcile the fund consistent with the findings contained in the audit report. (Ord. 1874 §10.4, 2007)

5-03-390  Cooperation with other utilities. Go to the top

When undertaking an undergrounding project, the city and the company shall coordinate with other utilities or companies that have their facilities above ground, to attempt to have all facilities undergrounded as part of the same project and shall comply in all respects with the city's Use of Public Rights-of-Way ordinance by either notifying the city of the date of commencement or working directly with other affected utilities to coordinate the undergrounding project. When other utilities or companies are placing their facilities underground, the city shall provide the company written notice of the specific undergrounding project. The company shall cooperate with these utilities and companies and undertake to underground company facilities as part of the same project where financially, technically, and operationally feasible. Thecompany shall not be required to pay for the cost of undergrounding the facilities of other companies or the city. (Ord. 1874 §10.5, 2007)

5-03-400  Planning and coordination of undergrounding projects. Go to the top

The city and the company shall mutually plan, in advance, the scheduling of undergrounding projects to be undertaken according to this article, as a part of the review and planning for other city and company construction projects. In addition, the city and the company agree to meet, as required, to review the progress of then-current undergrounding projects and to review planned future undergrounding projects. The purpose of such meetings shall be to further cooperation between the city and the company to achieve the orderly undergrounding of company facilities. At such meetings, the parties shall review:

(A)  Undergrounding, including conversions, public projects, and replacements which have been accomplished or are underway, together with the company's plans for additional undergrounding; and

(B)  Public projects anticipated by the city. (Ord. 1874 §10.6, 2007)

XI. Purchase or Condemnation

5-03-410  Municipal right to purchase or condemn. Go to the top

(A)  Right and privilege of city. The right and privilege of the city to construct, purchase, or condemn any company facilities located within the territorial boundaries of the city, and the company's rights in connection therewith, as set forth in applicable provisions of the constitution and statutes of the State of Colorado relating to the acquisition of public utilities, are expressly recognized. The city shall have the right, within the time frames and using the procedures set forth in such provisions, to purchase company facilities, land, rights-of-way, and easements, now owned or to be owned by the company, located within the territorial boundaries of the city. In the event of any such purchase, no value shall be ascribed or given to the rights granted under this franchise in the valuation of the property thus taken.

(B)  Notice of intent to purchase or condemn. The city shall provide the company no less than 180 days' prior written notice of its intent to purchase or condemn company facilities. Nothing in this section shall be deemed or construed to constitute a consent by the company to the city's purchase or condemnation of company facilities.

(C)  Right of first purchase. In the event the company, at any time during the term of this franchise, proposes to sell or dispose of any of its real property located within the city, it shall grant to the city the right of first purchase of same. The company shall obtain a qualified appraisal on any such property, and the city shall have sixty days in which to exercise the right of first purchase by giving written notice to the company. Should the city not provide the required written notice, the company may proceed to negotiate with others for the sale of such property, provided that, the company may not sell such property for an amount less than 95% of the appraised value without first providing the city an opportunity to purchase such property at such lesser price; in which event, the city must notify the company in writing within thirty days, if it wishes to purchase such property. It is understood that nothing in this subsection shall preclude the company from transferring real property to a subsidiary or affiliate without first according the city the rights referred to above, provided that, if the transferee proposes to sell or dispose of such property within one year, it shall not do so without first affording the city the rights referred to above. (Ord. 1874 §11.1, 2007)

XII. Transfer of Franchise

5-03-420  Consent of city required. Go to the top

The company shall not transfer or assign any rights under this franchise to an unaffiliated third party, except by merger with such third party, or, except when the transfer is made in response to legislation or regulatory requirements, unless the city approves such transfer or assignment in writing. Approval of the transfer or assignment shall not be unreasonably withheld. (Ord. 1874 §12.1, 2007)

5-03-430  Transfer fee. Go to the top

In order that the city may share in the value this franchise adds to the company's operations, any transfer or assignment of rights granted under this franchise requiring the city's approval, as set forth herein, shall be subject to the condition that the company shall promptly pay to the city a transfer fee in an amount equal to the proportion of the city's "then-population provided" utility service by the company to the "then-population of the City and County of Denver" multiplied by $1,000,000.00. Except as otherwise required by law, such transfer fee shall not be recovered from a surcharge placed on the rates of residents. (Ord. 1874 §12.2, 2007)

XIII. Continuation of Utility Service

5-03-440  Continuation of utility service. Go to the top

In the event this franchise is not renewed at the expiration of its term or is terminated for any reason, and the city has not provided for alternative utility service, the company shall continue to provide utility service within the city until the city arranges for utility service from another provider. The company further agrees that it will not withhold any temporary utility services necessary to protect the public. The city agrees that, in the circumstances of this article, the company shall be entitled to monetary compensation as provided in the company's tariffs, and the company shall be entitled to collect from residents and shall be obligated to pay the city, at the same times and in the same manner as provided in this franchise, an aggregate amount equal to the amount which the company would have paid as a franchise fee as consideration for use of the city's streets. Only upon receipt of written notice from the city stating that the city has adequate alternative utility service for residents shall the company be allowed to discontinue the provision of utility service to the city and its residents. (Ord. 1874 §13.1, 2007)

XIV. Indemnification and Immunity

5-03-450  City held harmless. Go to the top

The company shall indemnify, defend, and hold the city harmless from and against claims, demands, liens, and all liability or damage of whatsoever kind on account of or arising from the grant of this franchise, the exercise by the company of the related rights, or from the operations of the company within the city and shall pay the costs of defense plus reasonable attorneys' fees. The city shall:

(1)  Give prompt written notice to the company of any claim, demand, or lien with respect to which the city seeks indemnification; hereunder and

(2)  Unless, in the city's judgment, a conflict of interest may exist between the city and the company with respect to such claim, demand, or lien, shall permit the company to assume the defense of such claim, demand, or lien with counsel satisfactory to the city.

If such defense is assumed by the company, the company shall not be subject to any liability for any settlement made without its consent. If such defense is not assumed by the company, or if the city determines that a conflict of interest exists, the parties reserve all rights to seek all remedies available in this franchise against each other. Notwithstanding any provision hereof to the contrary, the company shall not be obligated to indemnify, defend, or hold the city harmless to the extent any claim, demand, or lien arises out of, or in connection with, any negligent or intentional act, or failure to act, of the city or any of its officers, employees, or agents. (Ord. 1874 §14.1, 2007)

5-03-460  Immunity. Go to the top

Nothing in this section or any other provision of this agreement shall be construed as a waiver of the notice requirements, defenses, immunities, and limitations the city may have under the Colorado Governmental Immunity Act (Section 4-10-101, C.R.S., et seq.) or of any other defenses, immunities, or limitations of liability available to the city by law. (Ord. 1874 §14.2, 2007)

XV. Breach

5-03-470  Noncontestability. Go to the top

The city and the company agree to take all reasonable and necessary actions to assure that the terms of this franchise are performed. (Ord. 1874 §15.1, 2007)

5-03-480  Breach. Go to the top

(A)  Notice/cure/remedies. Except as otherwise provided in this franchise, if a party (the "breaching party") to this franchise fails or refuses to perform any of the terms or conditions of this franchise (a "breach"), the other party (the "nonbreaching party") may provide written notice to the breaching party of such breach. Upon receipt of such notice, the breaching party shall be given a reasonable time, not to exceed thirty days, in which to remedy the breach. If the breaching party does not remedy the breach within the time allowed in the notice, the nonbreaching party may exercise the following remedies for such breach:

(1)  Specific performance of the applicable term or condition; and

(2)  Recovery of actual damages from the date of such breach incurred by the nonbreaching party in connection with the breach, but excluding any consequential damages.

(B)  Termination of franchise by city. In addition to the foregoing remedies, if the company fails or refuses to perform any material term or condition of this franchise (a "material breach"), the city may provide written notice to the company of such material breach. Upon receipt of such notice, the company shall be given a reasonable time, not to exceed ninety days, in which to remedy the material breach. If the company does not remedy the material breach within the time allowed in the notice, the city may, at its sole option, terminate this franchise. This remedy shall be in addition to the city's right to exercise any of the remedies provided for elsewhere in this franchise. Upon such termination, the company shall continue to provide utility service to the city and its residents until the city makes alternative arrangements for such service, and the company shall be entitled to collect from residents and shall be obligated to pay the city, at the same times and in the same manner as provided in this franchise, an aggregate amount equal to the amount which the company would have paid as a franchise fee as consideration for use of the city streets.

(C)  Termination of franchise by company. If the city fails or refuses to perform any material term or condition of this franchise (a "material breach"), the company may provide written notice to the city of such material breach. Upon receipt of such notice, the city shall be given a reasonable time, not to exceed ninety days, in which to remedy the material breach. If the city does not remedy the material breach within the time allowed in the notice, the company may, at its sole option, terminate this franchise. Upon such termination, the company shall be obligated to provide utility service to the city and its residents until the city makes alternative arrangements for such service, and the company shall be entitled to collect from residents and shall be obligated to pay the city, at the same times and in the same manner as provided in this franchise, an aggregate amount equal to the amount which the company would have paid as a franchise fee as consideration for use of the city streets.

(D)  No limitation. Except as provided herein, nothing in this franchise shall limit or restrict any legal rights or remedies that either party may possess arising from any alleged breach of this franchise. (Ord. 1874 §15.2, 2007)

XVI. Amendments

5-03-490  Proposed amendments. Go to the top

At any time during the term of this franchise, the city or the company may propose amendments to this franchise by giving thirty days' written notice to the other of the proposed amendments. (Ord. 1874 §16.1, 2007)

5-03-500  Effective amendments. Go to the top

No alterations, amendments, or modifications to this franchise shall be valid, unless executed by an instrument in writing by the parties, adopted with the same formality used in adopting this franchise. Neither this franchise, nor any term hereof, may be changed, modified, or abandoned, in whole or in part, except by an instrument in writing, and no subsequent oral agreement shall have any validity whatsoever. (Ord. 1874 §16.2, 2007)

XVII. Equal Opportunity

5-03-510  Economic development. Go to the top

The company is committed to the principle of stimulating, cultivating, and strengthening the participation and representation of persons of color, women, and members of other under-represented groups within the company and in the local business community. The company believes that increased participation and representation of under-represented groups will lead to mutual and sustainable benefits for the local economy. The company is also committed to the principle that the success and economic well-being of the company is closely tied to the economic strength and vitality of the diverse communities and people it serves. The company believes that contributing to the development of a viable and sustainable economic base among all company customers is in the best interests of the company and its shareholders. (Ord. 1874 §17.1, 2007)

5-03-520  Employment. Go to the top

(A)  The company is committed to undertaking programs that identify, consider, and develop persons of color, women, and members of other under-represented groups for positions at all skill and management levels within the company.

(B)  The company recognizes that the city and the business community in the city, including women- and minority-owned businesses, provide a valuable resource in assisting the company to develop programs to promote persons of color, women, and members of under-represented communities into management positions and agrees to keep the city regularly advised of the company's progress by providing the city a copy of the company's annual affirmative action report, upon the city's written request.

(C)  In order to enhance the diversity of the employees of the company, the company is committed to recruiting diverse employees by strategies such as partnering with colleges, universities, and technical schools with diverse student populations, utilizing diversity-specific media to advertise employment opportunities and internships, and engaging recruiting firms with diversity-specific expertise.

(D)  The company is committed to developing a world-class workforce through the advancement of its employees, including persons of color, women, and members of under-represented groups. In order to enhance opportunities for advancement, the company will offer training and development opportunities for its employees. Such programs may include mentoring programs, training programs, classroom training, and leadership programs.

(E)  The company is committed to a workplace free of discrimination based on race, color, religion, national origin, gender, age, military status, sexual orientation, marital status, physical or mental disability, or any other protected status, in accordance with all federal, state, or local laws. The company shall not, solely because of race, creed, color, religion, sex, age, national origin or ancestry, or handicap, refuse to hire, discharge, promote, demote, or discriminate in matters of compensation against any person otherwise qualified, and further agrees to insert the foregoing provision, or its equivalent, in all agreements the company enters into in connection with this franchise.

(F)  The company shall identify and consider women, persons of color, and other under-represented groups to recommend for its board of directors, consistent with the responsibility of boards to represent the interests of the shareholders, customers, and employees of the company. (Ord. 1874 §17.2, 2007)

5-03-530  Contracting. Go to the top

(A)  It is the company's policy to make available to minority- and women-owned business enterprises, and other small or disadvantaged business enterprises, the maximum practical opportunity to compete with other service providers, contractors, vendors, and suppliers in the marketplace. The company is committed to increasing the proportion of company contracts awarded to minority- and women-owned business enterprises, and other small or disadvantaged business enterprises, for services, construction, equipment, and supplies, to the maximum extent consistent with the efficient and economical operation of the company.

(B)  The company agrees to maintain and continuously develop contracting and community outreach programs calculated to enhance opportunity and increase the participation of minority- and women-owned business enterprises, and other small or disadvantaged business enterprises, to encourage economic vitality. The company agrees to keep the city advised of the company's programs upon the city's reasonable request.

(C)  The company shall maintain and support partnerships with local chambers of commerce and business organizations, including those representing predominately minority-owned, women-owned, and disadvantaged businesses, to preserve and strengthen open communication channels and enhance opportunities for minority-owned, women-owned, and disadvantaged businesses to contract with the company. (Ord. 1874 §17.3, 2007)

XVIII. Environment and Conservation

5-03-540  Environmental leadership. Go to the top

United Power is committed to using the earth's resources wisely, supporting the advancement of emerging technologies, and helping its customers use energy as efficiently as possible. The company shall strive to conduct its operations in a way that avoids adverse environmental impacts where feasible, subject to constraints faced by a cooperative utility. In doing so, the company shall consider environmental issues in its planning and decision making and shall invest in environmentally sound technologies, when such technologies are deemed prudent and feasible. The company shall continue with its voluntary carbon-reduction program to reduce greenhouse gas emissions and shall continue to explore ways to reduce water consumption at its facilities and to use recycled water where feasible. The company shall continue to work with the U.S. Fish and Wildlife Service to develop and implement avian protection plans to reduce electrocution and collision risks by eagles, raptors, and other migratory birds with transmission and distribution lines. (Ord. 1874 §18.1, 2007)

5-03-550  Energy conservation and efficiency. Go to the top

(A)  Energy efficiency programs. The city and the company recognize and agree that energy conservation and efficiency programs offer opportunities for the efficient use of energy and reduction of customers' energy consumption and costs. The company recognizes and shares the city's desire to advance the implementation of cost-effective energy conservation and efficiency programs which direct opportunities to the company's customers to manage more efficiently their use of energy and thereby create the opportunity to reduce their energy consumption, costs, and impact on the environment. The company shall seek to develop and offer energy efficiency programs to its customers. The company commits to offer demand side management (DSM) programs and succeeding programs, which provide customers the opportunity to reduce their energy usage. In doing so, the company recognizes the importance of:

(1)  Implementing cost-effective programs, the benefits of which could otherwise be lost if not pursued in a timely fashion; and

(2)  Developing cost-effective energy management programs for the various classes of the company's customers.

The company shall advise the city and the company's customers of the availability of assistance that the company makes available for investments in energy conservation, and may do so through dissemination of such information through its account managers, area manager, newspaper advertisements, bill inserts, and energy efficiency workshops and by maintaining information of these programs on the company's website.

(B)  Renewable resource programs. The company agrees to invest in clean, renewable electric power and include renewable resource programs as an integral part of the company's provision of utility service to its customers. The company will continue to promote existing or new programs in its service territory and take the following steps to encourage participation by the city and the company's customers in available renewable resource programs:

(1)  Notify the city regarding eligible renewable resource programs;

(2)  Provide the city with support regarding how the city may participate in eligible renewable resource programs; and

(3)  Advise customers regarding participation in eligible renewable resource programs. (Ord. 1874 §18.2, 2007)

5-03-560  Continuing commitment. Go to the top

The company agrees to maintain its commitment to sustainable development and energy conservation for the term of this agreement by continuing to provide leadership, support, and assistance to identify, develop, implement, and maintain new and creative programs similar to the programs identified in this agreement. (Ord. 1874 §18.3, 2007)

XIX. Miscellaneous

5-03-570  No waiver. Go to the top

Neither the city nor the company shall be excused from complying with any of the terms and conditions of this franchise by any failure of the other, or any of its officers, employees, or agents, upon any one or more occasions, to insist upon or to seek compliance with any such terms and conditions. (Ord. 1874 §19.1, 2007)

5-03-580  Successors and assigns. Go to the top

The rights, privileges, and obligations, in whole or in part, granted and contained in this franchise shall inure to the benefit of, and be binding upon, the company, its successors, and assigns, to the extent that such successors or assigns have succeeded to, or been assigned, the rights of the company pursuant to article XIII herein. (Ord. 1874 §19.2, 2007)

5-03-590  Third parties. Go to the top

Nothing contained in this franchise shall be construed to provide rights to third parties. (Ord. 1874 §19.3, 2007)

5-03-600  Notice. Go to the top

Both parties shall designate, from time to time, in writing, representatives for the company and the city, who will be the persons to whom notices shall be sent regarding any action to be taken under this franchise. Notice shall be in writing and forwarded by certified mail or hand delivery to the persons and addresses as hereinafter stated, unless the persons and addresses are changed at the written request of either party, delivered in person or by certified mail. Until any such change shall hereafter be made, notices shall be sent as follows:

To the city:
Mayor of Broomfield
One DesCombes Drive
Broomfield, Colorado 80020
City and County Manager
One DesCombes Drive
Broomfield, Colorado 80020

With a copy to:
City and County Attorney
City and County of Broomfield
One DesCombes Drive
Broomfield, Colorado 80020

To the company:
Chief Executive Officer
United Power, Inc.
500 Cooperative Way
Brighton, CO 80603

With a copy to:
Mark W. Williams, Esq. (or successor)
General Counsel
United Power
c/o 633 17th Street, Suite 3000
Denver, Colorado 80202

(Ord. 1874 §19.4, 2007)

5-03-610  Examination of records. Go to the top

The parties agree that any duly authorized representative of the city and the company shall have access to, and the right to examine, any directly pertinent nonconfidential books, documents, papers, and records of the other party involving any activities related to this franchise. All such records must be kept for a minimum of four years. (Ord. 1874 §19.5, 2007)

5-03-620  Payment of taxes and fees. Go to the top

(A)  The company shall pay and discharge as they become due, promptly and before delinquency, all taxes, assessments, rates, charges, license fees, municipal liens, levies, excises, or imposts, whether general or special, or ordinary or extraordinary, of every name, nature, and kind whatsoever, including all governmental charges of whatsoever name, nature, or kind, which may be levied, assessed, charged, or imposed, or which may become a lien or charge against this agreement ("impositions,"), provided that the company shall have the right to contest any such impositions and shall not be in breach of this section, so long as it is actively contesting such impositions.

(B)  The city shall not be liable for the payment of taxes, late charges, interest, or penalties of any nature other than pursuant to applicable tariffs on file. (Ord. 1874 §19.6, 2007)

5-03-630  Conflict of interest. Go to the top

The parties agree that no official, officer, or employee of the city shall have any personal or beneficial interest, whatsoever, in the services or property described herein, except as a customer of the company, and the company further agrees not to hire or contract for services any official, officer, or employee of the city, to the extent prohibited by law, including ordinances and regulations of the city. (Ord. 1874 §19.7, 2007)

5-03-640  Certificate of convenience and necessity. Go to the top

The city agrees to support any application the company may file with the PUC to obtain a certificate of public convenience and necessity to exercise the rights and obligations granted under this franchise. (Ord. 1874 §19.8, 2007)

5-03-650  Authority. Go to the top

Each party represents and warrants that, except as set forth below, it has taken all actions that are necessary or that are required by its ordinances, regulations, procedures, bylaws, or applicable law, to legally authorize the undersigned signatories to execute this agreement on behalf of the parties and to bind the parties to its terms. The persons executing this agreement on behalf of each of the parties warrant that they have full authorization to execute this agreement. The city acknowledges that, notwithstanding the foregoing, the company requires a certificate of public convenience and necessity from the PUC in order to operate under the terms of this franchise. (Ord. 1874 §19.9, 2007)

5-03-660  Severability. Go to the top

Should any one or more provisions of this franchise be determined to be unconstitutional, illegal, unenforceable, or otherwise void, all other provisions, nevertheless, shall remain effective; provided, however, that the parties shall forthwith enter into good-faith negotiations and proceed with due diligence to draft one or more substitute provisions that will achieve the original intent of the parties hereunder. (Ord. 1874 §19.10, 2007)

5-03-670  Force majeure. Go to the top

Neither the city nor the company shall be in breach of this franchise, if a failure to perform any of the duties under this franchise is due to uncontrollable forces, which shall include, but not be limited to: accidents, breakdown of equipment, shortage of materials, shortage of labor, acts of God, floods, storms, fires, sabotage, terrorist attack, strikes, riots, war, labor disputes, forces of nature, the authority and orders of government, and other causes or contingencies of whatever nature beyond the reasonable control of the party affected, which could not reasonably have been anticipated and avoided. (Ord. 1874 §19.11, 2007)

5-03-680  Earlier franchises superseded. Go to the top

This franchise shall constitute the only franchise between the city and the company for the furnishing of utility service, street lighting service, and traffic signal lighting service, and it supersedes and cancels all former franchises between the parties hereto. (Ord. 1874 §19.12, 2007)

5-03-690  Titles not controlling. Go to the top

Titles of the paragraphs herein are for reference only and shall not be used to construe the language of this franchise. (Ord. 1874 §19.13, 2007)

5-03-700  Applicable law. Go to the top

Colorado law shall apply to the construction and enforcement of this franchise. The parties agree that venue for any litigation arising out of this franchise shall be in the District Court for Broomfield County, State of Colorado. (Ord. 1874 §19.14, 2007)


Chapter 5-04

Gas and Electric Franchise

I. Definitions

5-04-010  Definitions. Go to the top

For the purpose of this franchise, the following words and phrases shall have the meanings given in this article. When not inconsistent with context, words used in the present tense include the future tense, words in the plural include the singular, and words in the singular include the plural. The word shall is mandatory, and may is permissive. Words not defined in this article shall be given their common and ordinary meaning.

(A)  City refers to the City and County of Broomfield, a municipal corporation of the State of Colorado.

(B)  City council or council refers to the legislative body of the city.

(C)  Company refers to Public Service Company of Colorado, d/b/a, Xcel Energy, and its successors and assigns, including affiliates or subsidiaries that undertake to perform any of the obligations under this franchise.

(D)  Company facilities refers to all facilities of the company reasonably necessary to provide gas and electric service into, within, and through the city, including but not limited to plants, works, systems, substations, transmission and distribution structures, lines, equipment, pipes, mains, conduit, transformers, underground lines, gas compressors, meters, meter-reading devices, communication and data transfer equipment, control equipment, gas regulator stations, street lights, wire, cables, and poles.

(E)  Electric gross revenues refers to those amounts of money which the company receives from the sale or delivery of electricity in the city, after adjusting for refunds, net write-offs of uncollectible accounts, corrections, or regulatory adjustments. Regulatory adjustments include, but are not limited to, credits, surcharges, refunds, and pro-forma adjustments pursuant to federal or state regulation. Electric gross revenues shall exclude any revenue for the sale or delivery of electricity to the city.

(F)  Gross revenues refers to those amounts of money which the company receives from the sale of gas and electricity within the city under rates authorized by the Public Utilities Commission, as well as from the transportation of gas to its customers within the city (unless otherwise preempted by applicable federal or state law), as adjusted for refunds, net write-offs of uncollectible accounts, corrections, or regulatory adjustments. Regulatory adjustments include, but are not limited to, credits, surcharges, refunds, and pro-forma adjustments pursuant to federal or state regulation. Gross revenues shall exclude any revenues from the sale of gas or electricity to the city or the transportation of gas to the city.

(G)  Private project refers to any project which is not covered by the definition of public project.

(H)  Public project refers to:

(1)  Any public work or improvement within the city that is wholly owned or wholly funded by the city; or

(2)  Any public work or improvement within the city where 50% or more of the funding is provided by any combination of the city, the federal government, the State of Colorado, the Regional Transportation District, or any Colorado county.

(I)  Public Utilities Commission or PUC refers to the Public Utilities Commission of the State of Colorado or other state agency succeeding to the regulatory powers of the Public Utilities Commission.

(J)  Public utility easement refers to any easement over, under, or above public or private property, lawfully acquired by, or dedicated to the use of, the company, its predecessors in interest, or other public utility companies for the placement of public utility facilities, including but not limited to company facilities.

(K)  Residents refers to all persons, businesses, industries, governmental agencies, including the city, and any other entity whatsoever, presently located or to be hereinafter located, in whole or in part, within the territorial boundaries of the city.

(L)  Streets or city streets refers to the surface, the air space above the surface, and the area below the surface, of any city dedicated streets, alleys, bridges, roads, lanes, public easements, and other public rights-of-way within the city. Streets shall also include other public places within the city that are suitable locations for the placement of company facilities, as specifically approved in writing by the city, in its sole discretion. Streets shall not include public utility easements, unless such public utility easements result from a reservation by the city at the time that a city street has been vacated.

(M) Supporting documentation refers to all information reasonably required in order to allow the company to design and construct any work performed under the provisions of this franchise. Supporting documentation may include, but is not limited to, construction plans, a description of known environmental issues, the identification of critical right-of-way or easement issues, the final recorded plat for the property, the date the site will be ready for the company to begin construction, the date electric service and meter set are needed, the date gas service and meter set are needed, and the name and contact information for the city's project manager.

(N)  Tariffs refers to those tariffs of the company on file and in effect with the PUC.

(O)  Utility service refers to the sale of gas or electricity to residents by the company, under rates approved by the PUC, as well as the delivery of gas to residents by the company. (Ord. 1872 §§1.1-1.15, 2007)

II. Grant of Franchise

5-04-020  Grant of franchise. Go to the top

(A)  Grant. The city hereby grants to the company, subject to all conditions, limitations, terms, and provisions contained in this franchise, the nonexclusive right to make reasonable use of city streets:

(1)  To provide utility service to the city and to its residents under tariffs on file with the PUC; and

(2)  To acquire, purchase, construct, install, locate, maintain, operate, and extend into, within and through the city, all company facilities reasonably necessary for the generation, production, manufacture, sale, storage, purchase, exchange, transmission, transportation, and distribution of utility service within and through the city.

(B)  Street lighting and traffic signal lighting service. The rights granted by this franchise encompass the nonexclusive right to provide street lighting service and traffic signal lighting service, as directed by the city, and the provisions of this franchise shall apply with full and equal force to street lighting service and traffic signal lighting service provided by the company. Wherever reference is made in this franchise to the sale or provision of utility service, these references shall be deemed to include the provision of street lighting service and traffic signal lighting service. Street lighting service and traffic signal lighting service within the city shall be governed by tariffs on file with the Colorado PUC. (Ord. 1872 §2.1, 2007)

5-04-030  Conditions and limitations. Go to the top

(A)  Scope of franchise. The grant of this franchise shall extend to all areas of the city as it is now or hereafter constituted; however, nothing contained in this franchise shall be construed to authorize the company to engage in activities other than the provision of utility service within those areas of the city where it is authorized to provide utility service by the Public Utilities Commission.

(B)  Subject to city usage. The right to make reasonable use of city streets under this franchise is subject to, and subordinate to, any city usage of said streets.

(C)  Prior grants not revoked. This grant is not intended to revoke any prior license, grant, or right to use the streets, and such licenses, grants, or rights of use are hereby affirmed. Such rights shall, however, be governed by the terms of this franchise, the city charter, and other applicable provisions of the Broomfield Municipal Code, except as otherwise provided herein.

(D)  Franchise not exclusive. The rights granted by this franchise are not, and shall not be deemed to be, granted exclusively to the company, and the city reserves the right to make or grant a franchise to any other person, firm, or corporation. (Ord. 1872 §2.2, 2007)

5-04-040  Effective date and term. Go to the top

Term. This franchise shall take effect on January 1, 2008, and shall supersede any prior franchise grants to the company by the city. This franchise shall terminate on December 31, 2027, unless extended by mutual consent. (Ord. 1872 §2.3, 2007)

III. City Police Powers

5-04-050  Police powers. Go to the top

The company expressly acknowledges the city's right to adopt, from time to time, in addition to the provisions contained herein, such laws, including ordinances and regulations, as it may deem necessary in the exercise of its governmental powers. If the city considers making any substantive changes in its local codes or regulations that, in the city's reasonable opinion, will significantly impact the company's operations in the city's streets, it will make a good-faith effort to advise the company of such consideration; provided, however, that lack of notice shall not be justification of the company's noncompliance with any applicable local requirements. (Ord. 1872 §3.1, 2007)

5-04-060  Regulation of streets or other city property. Go to the top

The company expressly acknowledges the city's right to enforce regulations concerning the company's access to, or use of, the streets, including requirements for permits. (Ord. 1872 §3.2, 2007)

5-04-070  Compliance with laws. Go to the top

The company shall promptly and fully comply with all laws, regulations, permits, and orders enacted by the city that are applicable to the company's provision of utility service within the city. The parties agree that compliance with the terms of this franchise shall be deemed to constitute compliance with terms and requirements of the city's Use of Public Rights-of-Way ordinance, which is currently codified as chapter 14-10, B.M.C., which addresses similar topics. (Ord. 1872 §3.3, 2007)

IV. Franchise Fee

5-04-080  Franchise fee. Go to the top

(A)  Fee. In consideration for this franchise, which provides for the company's use of city streets, which are valuable public properties acquired and maintained by the city at great expense to its residents, and in recognition that the grant to the company of the use of city streets is a valuable right, the company shall pay the city a sum equal to 3% of all gross revenues.

(B)  Obligation in lieu of fee. In the event that the franchise fee specified herein is declared void for any reason by a court of competent jurisdiction, unless prohibited by law, the company shall be obligated to pay the city, at the same times and in the same manner as provided in this franchise, an aggregate amount equal to the amount which the company would have paid as a franchise fee as consideration for use of the city streets.

(C)  Changes in utility service industries. The city and the company recognize that utility service industries are the subject of restructuring initiatives by legislative and regulatory authorities, and are also experiencing other changes as a result of mergers, acquisitions, and reorganizations. Some of such initiatives and changes have, or may have, an adverse impact upon the franchise fee revenues provided for herein. In recognition of the length of the term of this franchise, the company agrees that, in the event of any such initiatives or changes and to the extent permitted by law, upon receiving a written request from the city, the company will cooperate with and assist the city in modifying this franchise to assure that the city receives an amount in franchise fees or some other form of compensation that is the same amount of franchise fees paid to the city as of the date that such initiatives and changes adversely impact franchise fee revenues; provided, however, that the company shall be entitled to collect such amounts from city residents in conjunction with the provision of utility service.

(D)  Utility service provided to the city. No franchise fee shall be charged to the city for utility service provided to the city for its own consumption, including street lighting service and traffic signal lighting service. (Ord. 1872 §4.1, 2007)

5-04-090  Remittance of franchise fee. Go to the top

(A)  Remittance schedule. Franchise fee revenues shall be remitted by the company to the city, as directed by the city, in monthly installments not more than thirty days following the close of each month.

(B)  Correction of franchise fee payments. In the event that either the city or the company discovers that there has been an error in the calculation of the franchise fee payment to the city, it shall provide written notice to the other party of the error. If the party receiving written notice of error does not agree with the written notice of error, that party may challenge the written notice of error pursuant to subsection (C) below; otherwise, the error shall be corrected in the next monthly payment. However, if the error results in an overpayment of the franchise fee to the city, and said overpayment is in excess of $5,000.00, credit for the overpayment shall be spread over the same period the error was undiscovered. All franchise fee underpayments shall be corrected in the next monthly payment, together with interest computed at the rate set by the PUC for customer security deposits held by the company, from the date when due until the date paid. In no event shall either party be required to fund or refund any overpayment or underpayment made as a result of a company error which occurred more than three years prior to the discovery of the company error.

(C)  Fee disputes. Either party may challenge any written notification of error as provided for in subsection (B) above, by filing a written notice to the other party within thirty days of receipt of the written notification of error. The written notice shall contain a summary of the facts and reasons for the party's notice. The parties shall make good-faith efforts to resolve any such notice of error, before initiating any formal legal proceedings for the resolution of such error.

(D)  Reports. Upon written request by the city, but not more than once per year, the company shall supply the city with reports, in such formats and providing such details as reasonably requested by the city, of all suppliers of utility service that utilize company facilities to sell or distribute utility service to residents and the name and address of each such supplier. (Ord. 1872 §4.2, 2007)

5-04-100  Franchise fee payment not in lieu of permit or other fees. Go to the top

Payment of the franchise fee does not exempt the company from any other lawful tax or fee imposed generally upon persons doing business within the city, including any fee for a street closure permit, an excavation permit, a street cut permit, or other lawful permits hereafter required by the city, except that the franchise fee provided for herein shall be in lieu of any occupancy tax, occupation tax, or other fee for the use of city streets. (Ord. 1872 §4.3, 2007)

5-04-110  Change of franchise fee. Go to the top

(A)  Once each year the city council may, by ordinance, change the franchise fee and the undergrounding fund to that provided under any municipal franchise entered into by the company in Colorado, after first giving thirty days' notice to the company.

(B)  The company shall report to the city, within sixty days, the execution or change of any franchise under which a municipality receives a franchise fee greater than is provided for herein or in which the undergrounding fund is greater than established in section 5-04-350, herein. (Ord. 1872 §4.4, 2007)

V. Administration of Franchise

5-04-120  City designee. Go to the top

The city shall designate in writing to the company an official having full power and authority to administer this franchise. The city may also designate one or more city representatives to act as the primary liaison with the company as to particular matters addressed by this franchise and shall provide the company with the names and telephone numbers of said city representatives. The city may change these designations by providing written notice to the company. The city's designee shall have the right, at all reasonable times, to inspect any company facilities in city streets. (Ord. 1872 §5.1, 2007)

5-04-130  Company designee. Go to the top

The company shall designate a representative to act as the primary liaison with the city and shall provide the city with the name, address, and telephone number for the company's representative under this franchise. The company may change its designation by providing written notice to the city. The city shall use this liaison to communicate with the company regarding utility service and related service needs for city facilities. (Ord. 1872 §5.2, 2007)

5-04-140  Coordination of work. Go to the top

(A)  The company agrees to meet with the city's designee, upon written request, for the purpose of reviewing, implementing, or modifying mutually beneficial procedures for the efficient processing of company bills, invoices, and other requests for payment.

(B)  The company agrees to coordinate its activities in city streets with the city. The city and the company will meet annually, upon the written request of the city designee, to exchange their respective short-term and long-term forecasts, or work plans for construction, and other similar work which may affect city streets. The city and company shall hold such meetings as either deems necessary to exchange additional information with a view towards coordinating their respective activities in those areas where such coordination may prove beneficial, and so that the city will be assured that all provisions of this franchise, building and zoning codes, and air and water pollution regulations are complied with, and that aesthetic and other relevant planning principles have been given due consideration. (Ord. 1872 §5.3, 2007)

VI. Supply, Construction, and Design

5-04-150  Purpose. Go to the top

The company acknowledges the critical nature of the municipal services performed or provided by the city to the residents which require the company to provide prompt and reliable utility service and the performance of related services for city facilities. The city and the company wish to provide for certain terms and conditions under which the company will provide utility service and perform related services for the city, in order to facilitate and enhance the operation of city facilities. They also wish to provide for other processes and procedures related to the provision of utility service to the city. (Ord. 1872 §6.1, 2007)

5-04-160  Supply. Go to the top

The company shall take all reasonable and necessary steps to provide a sufficient supply of gas and electricity to residents at the lowest reasonable cost consistent with reliable supplies. (Ord. 1872 §6.2, 2007)

5-04-170  Service to city facilities. Go to the top

(A)  Transport gas. To the extent the city is, or elects to become a gas transport customer of the company, the company shall transport natural gas purchased by the city for use in city facilities pursuant to separate contracts with the city.

(B)  Charges to the city. No charges to the city by the company for utility service (other than gas transportation which shall be subject to negotiated contracts) shall exceed the lowest charge for similar service or supplies provided by the company to any other similarly situated customer of the company. The parties acknowledge the jurisdiction of the Colorado PUC over the company's regulated intrastate electric and gas rates. (Ord. 1872 §6.3, 2007)

5-04-180  Restoration of service. Go to the top

(A)  Notification. The company shall provide to the city daytime and nighttime telephone numbers of a designated company representative from whom the city designee may obtain status information from the company on a twenty-four-hour basis concerning interruptions of utility service in any part of the city.

(B)  Restoration. In the event the company's gas system or electric system, or any part thereof, is partially or wholly destroyed or incapacitated, the company shall use due diligence to restore such systems to satisfactory service within the shortest practicable time, or provide a reasonable alternative to such system, if the company elects not to restore such system. (Ord. 1872 §6.4, 2007)

5-04-190  Obligations regarding company facilities. Go to the top

(A)  Company facilities. All company facilities within city streets shall be maintained in good repair and condition.

(B)  Company work within the city. All work within city streets performed, or caused to be performed, by the company shall be done:

(1)  In a high-quality manner;

(2)  In a timely and expeditious manner;

(3)  In a manner which minimizes inconvenience to the public;

(4)  In a cost-effective manner, which may include the use of qualified contractors; and

(5)  In accordance with all applicable laws, ordinances, and regulations.

(C)  No interference with city facilities. Company facilities shall not interfere with any city facilities, including water facilities, sanitary or storm sewer facilities, communications facilities, or other city uses of the streets. Company facilities shall be installed and maintained in city streets so as to minimize interference with other property, trees, and other improvements and natural features in and adjoining the streets.

(D)  Permit and inspection. The installation, renovation, and replacement of any company facilities in the city streets by, or on behalf of, the company shall be subject to permit, inspection, and approval by the city. Such inspection and approval may include, but not be limited to, the following matters: location of company facilities, cutting and trimming of trees and shrubs, and disturbance of pavement, sidewalks, and surfaces of city streets. The company agrees to cooperate with the city in conducting inspections and shall promptly perform any remedial action lawfully required by the city pursuant to any such inspection.

(E)  Compliance. The company and all of its contractors shall comply with the requirements of all city laws, ordinances, regulations, permits, and standards, including but not limited to requirements of all building and zoning codes, Use of Public Rights-of-Way ordinances, and requirements regarding curb and pavement cuts, excavating, digging, and other construction activities. The company shall assure that its contractors working in city streets hold the necessary licenses and permits required by law.

(F)  As-built drawings. Upon reasonable written request of the city designee, if available, the company shall provide, on a project-by-project basis, as-built drawings of any company facility installed within the city streets or contiguous to the city streets. (Ord. 1872 §6.5, 2007)

5-04-200  Excavation and construction. Go to the top

The company shall be responsible for obtaining, paying for, and complying with all applicable permits, including but not limited to, excavation, street closure, and street cut permits, in the manner required by the laws, ordinances, and regulations of the city. Although the company shall be responsible for obtaining and complying with the terms of such permits when performing relocations requested by the city under section 5-04-220 below, and undergrounding requested by the city under article X herein, the city will not require the company to pay the fees charged for such permits. (Ord. 1872 §6.6, 2007)

5-04-210  Restoration. Go to the top

To the extent practicable, the work of the company affecting the city streets or other public or private property shall be performed with care, and the surface along any streets and any lawfully installed improvements on private property that are disturbed by company work shall be restored to substantially their original level and condition at the company's own expense. If weather or other conditions do not permit the complete restoration required by this section, the company may, with the approval of the city, temporarily restore the affected city streets or other public or private property, provided that such temporary restoration is at the company's sole expense, and provided further that the company promptly undertakes and completes the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. If the company fails to promptly restore the city streets or other public or private property as required by this section, the city may, upon giving fourteen days' written notice to the company, restore such property or remove the obstruction therefrom; provided, however, that city actions do not interfere with company facilities. The company shall be responsible for the actual cost incurred by the city to restore such city streets or other public or private property, or to remove any obstructions therefrom. The city shall not perform work on company facilities. (Ord. 1872 §6.7, 2007)

5-04-220  Relocation of company facilities. Go to the top

(A)  Relocation obligation. The company shall, at its sole cost and expense, temporarily or permanently remove, relocate, change, or alter the position of any company facility in city streets, whenever such removal, relocation, change, or alteration is necessary for the completion of any public project. For all relocations, the company and the city agree to cooperate on the location and relocation of the company facilities in the city streets, in order to achieve relocation in the most efficient and cost-effective manner possible. Notwithstanding the foregoing, once the company has relocated any company facility at the city's direction, if the city requests that the same company facility be relocated within two years, the subsequent relocation shall not be at the company's expense.

(B)  Private projects. The company shall not be responsible for the expenses of any relocation required by any private projects or for the expenses of any required relocation where the city has directly or indirectly assisted any private projects, and the company has the right to require the payment of estimated relocation expenses from the affected private party before undertaking such relocation.

(C)  Relocation performance. The relocations set forth in subsection (A) above shall be completed within a reasonable time, not to exceed ninety days from the later of the date on which the city designee requests in writing that the relocation commence or the date when the company is provided all supporting documentation. The company shall be entitled to an extension of time to complete a relocation where the company's performance was delayed due to a cause that could not be reasonably anticipated by the company or is beyond its reasonable control, after exercise of best efforts to perform, including, without limitation, fire, strike, war, riots, acts of governmental authority, acts of God, forces of nature, judicial action, unavailability or shortages of labor, materials, or equipment, and failures or delays in delivery of materials. Upon request of the company, the city may also grant the company reasonable extensions of time for good cause shown, and the city shall not unreasonably withhold any such extension.

(D)  City revision of supporting documentation. Any revision by the city of supporting documentation provided to the company that causes the company to substantially redesign or change its plans regarding facility relocation, shall be deemed good cause for a reasonable extension of time to complete the relocation under this franchise.

(E)  Completion. Each such relocation shall be deemed complete only when the company actually relocates the company facilities, restores the relocation site in accordance with section 5-04-210 above, or as otherwise agreed with the city, and removes from the site, or properly abandons on site, all unused facilities, equipment, material, and other impediments.

(F)  Scope of obligation. The relocation obligation set forth in this section shall only apply to company facilities located in city streets. The obligation shall not apply to company facilities located on property owned by the company in fee, or to company facilities located in privately owned easements or public utility easements.

(G)  Underground relocation. Underground facilities shall be relocated underground. Aboveground facilities shall be placed above ground, unless the company is paid for the incremental amount by which the underground cost would exceed the aboveground cost of relocation or the city requests that such additional incremental cost be paid out of available funds under article X herein.

(H)  Coordination. When requested in writing by the city designee or the company, representatives of the city and the company shall meet to share information regarding anticipated projects which will require relocation of company facilities in city streets. Such meetings shall be for the purpose of minimizing conflicts, where possible, and to facilitate coordination with any timetable established by the city for any public project.

(I)  Proposed alternatives or modifications. Upon receipt of written notice of a required relocation, the company may propose an alternative to, or modification of, the public project requiring the relocation, in an effort to mitigate or avoid the impact of the required relocation of company facilities. The city shall, in good faith, review the proposed alternative or modification. The city shall not unreasonably withhold its approval of the proposed alternative or modification. In the event the city designee accepts the proposed alternative or modification, the company agrees to promptly compensate the city for all additional costs, expenses, or delay that resulted from the implementation of the proposed alternative. (Ord. 1872 §6.8, 2007)

5-04-230  New or modified service requested by city. Go to the top

The conditions under which the company shall install new or modified utility service to the city as a customer shall be governed by this franchise and the company's PUC tariffs. (Ord. 1872 §6.9, 2007)

5-04-240  Service to new areas. Go to the top

If the territorial boundaries of the city are expanded during the term of this franchise, the company shall, to the extent permitted by law, extend service to residents in the expanded area at the earliest practicable time. Service to the expanded area shall be in accordance with the terms of the company's PUC tariffs and this franchise, including the payment of franchise fees. (Ord. 1872 §6.10, 2007)

5-04-250  City not required to advance funds. Go to the top

Upon receipt of the city's authorization for billing and construction, the company shall extend company facilities to provide utility service to the city as a customer, without requiring the city to advance funds prior to construction. The city shall pay for the extension of company facilities, once completed, in accordance with the company's extension policy on file with the PUC. (Ord. 1872 §6.11, 2007)

VII. Reliability

5-04-260  Reliability. Go to the top

The company shall operate and maintain company facilities efficiently and economically and in accordance with the standards, systems, methods, and skills consistent with the provision of adequate, safe, and reliable utility service. (Ord. 1872 §7.1, 2007)

5-04-270  Franchise performance obligations. Go to the top

The company recognizes that, as part of its obligations and commitments under this franchise, the company shall carry out each of its performance obligations in a timely, expeditious, efficient, economical, and workmanlike manner. (Ord. 1872 §7.2, 2007)

VIII. Company Performance Obligations

5-04-280  New or modified service to city facilities. Go to the top

In providing new or modified utility service to city facilities, the company agrees to perform as follows:

(A)  Performance. The company shall complete each project requested by the city within a reasonable time. The parties agree that a reasonable time shall not exceed 180 days from the date upon which the city designee makes a written request and provides the required supporting documentation as described in this section. The company shall be entitled to an extension of time to complete a project, where the company's performance was delayed due to a cause that could not be reasonably anticipated by the company or is beyond its reasonable control, after exercise of best efforts to perform, including but not limited to fire, strike, war, riots, acts of governmental authority, acts of God, forces of nature, judicial action, unavailability or shortages of materials or equipment, and failures or delays in delivery of materials. Upon request of the company, the city designee may also grant the company reasonable extensions of time for good cause shown, and the city shall not unreasonably withhold any such extension.

(B)  City revision of supporting documentation. Any revision by the city of supporting documentation provided to the company that causes the company to substantially redesign or change its plans regarding new or modified service to city facilities shall be deemed good cause for a reasonable extension of time to complete the relocation under this franchise.

(C)  Completion of restoration. Each such project shall be complete only when the company actually provides the service installation or modification required, restores the project site in accordance with the terms of this franchise or as otherwise agreed with the city, and removes from the site, or properly abandons on site, any unused facilities, equipment, material, and other impediments. (Ord. 1872 §8.1, 2007)

5-04-290  Third-party damage recovery. Go to the top

(A)  Damage to company interests. If, by violation of any traffic or other ordinance of the city, or in any other unlawful manner, any individual or entity damages any company facilities that the company is responsible to repair or replace, the city will notify the company of any such incident and will provide to the company, within a reasonable time, all pertinent information within its possession regarding the incident and the damage, including the identity of the responsible individual or entity, to the extent allowed by law.

(B)  Damage to city interests. If, by violation of any traffic or other ordinance of the city, or in any other unlawful manner, any individual or entity damages any company facilities for which the city is obligated to reimburse the company for the cost of the repair or replacement of the damaged facility, the company will notify the city of any such incident and will provide to the city, within a reasonable time, all pertinent information within its possession regarding the incident and the damage, including the identity of the responsible individual or entity, to the extent allowed by law.

(C)  Meeting. The company and the city agree to meet periodically, upon written request of either party, for the purpose of developing, implementing, reviewing, improving, or modifying mutually beneficial procedures and methods for the efficient gathering and transmittal of information useful in recovery efforts against third parties for damaging company facilities. (Ord. 1872 §8.2, 2007)

IX. Use of Company Facilities

5-04-300  City use of company facilities. Go to the top

The city shall be permitted to make use of company facilities in the city, at no cost to the city, for the placement of city equipment or facilities necessary to serve a legitimate police, fire, emergency, public safety, or traffic control purpose. The city will notify the company, in writing, in advance of its intent to use company facilities and the nature of such use. The city shall be responsible for costs associated with modifications to company facilities to accommodate the city's use of such company facilities and for any electricity used. No such use of company facilities shall be required, if it would constitute a safety hazard or would interfere with the company's use of company facilities. Any such city use must comply with the National Electric Safety Code and all other applicable laws, rules, and regulations. (Ord. 1872 §9.1, 2007)

5-04-310  Third-party use of company facilities. Go to the top

If requested in writing by the city, the company may allow other companies who hold franchises, or otherwise have obtained consent from the city to use the streets, to utilize company facilities for the placement of their facilities, upon approval by the company and agreement upon reasonable terms and conditions, including payment of fees established by the company. No such use shall be permitted, if it would constitute a safety hazard or would interfere with the company's use of company facilities. The company shall not be required to permit the use of company facilities for the provision of utility service by the city or by third parties. (Ord. 1872 §9.2, 2007)

5-04-320  City use of company transmission rights-of-way. Go to the top

The company shall offer to grant to the city use of transmission rights-of-way which it now, or in the future, owns in fee within the city for parks and open space; provided, however, that the company shall not be required to make such an offer in any circumstance where such offer would constitute a safety hazard or would interfere with the company's use of the transmission right-of-way. (Ord. 1872 §9.3, 2007)

5-04-330  Emergencies. Go to the top

Upon written request, the company shall assist the city in developing an emergency management plan. In the case of any emergency or disaster, the company shall, upon verbal request of the city, make available company facilities for emergency use during the emergency or the disaster period. Such use of company facilities shall be of a limited duration and will only be allowed if the use does not interfere with the company's own use of company facilities. (Ord. 1872 §9.4, 2007)

X. Undergrounding of Overhead Facilities

5-04-340  Underground electrical lines in new areas. Go to the top

The company shall, upon payment to the company of the charges provided in its tariffs or their equivalent, place all newly constructed electrical distribution lines in newly developed areas underground, in accordance with applicable laws, regulations and orders. (Ord. 1872 §10.1, 2007)

5-04-350  Underground conversion at expense of company. Go to the top

(A)  Underground fund. The company shall budget and allocate an annual amount, equivalent to 1% of the preceding year's electric gross revenues (the "fund"), for the purpose of undergrounding existing overhead distribution facilities in the city, as may be requested by the city, provided that the undergrounding shall extend for a minimum distance of one block or 750 feet, whichever is less, or as may be mutually agreed by the parties. Except as provided in subsection 5-04-220(F) herein, no relocation expenses which the company would be required to expend pursuant to article VI herein, shall be charged to this allocation.

(B)  Unexpended portion and advances. Any unexpended portion of the fund shall be carried over to succeeding years, and, in addition, upon request by the city designee, the company agrees to expend amounts anticipated to be available under the preceding paragraph for up to three years in advance. Any amounts so expended shall be credited against amounts to be expended in succeeding years. Any funds accumulated under any prior franchise shall be carried over to this fund balance. The city shall have no vested interest in the fund, and any monies in the fund not expended at the expiration or termination of this agreement shall remain the property of the company.

(C)  System-wide undergrounding. If, during the term of this franchise, the company should receive authority from the PUC to undertake a system-wide program or programs of undergrounding its electric distribution facilities, the company will budget and allocate to the program of undergrounding in the city such amount as may be determined and approved by the PUC, but in no case shall such amount be less than the 1% of annual electric gross revenues provided above.

(D)  City requirement to underground. In addition to the provisions of this article, the city may require any aboveground company facilities to be moved underground at the city's expense. (Ord. 1872 §10.2, 2007)

5-04-360  Undergrounding performance. Go to the top

Upon receipt of a written request from the city, the company shall, to the extent of monies available in the fund and as otherwise provided herein, underground company facilities in accordance with the procedures set forth in this section.

(A)  Performance. The company shall complete each undergrounding project requested by the city within a reasonable time, not to exceed 180 days from the later of the date upon which the city designee makes a written request and the date the city provides to the company all supporting documentation. The company shall be entitled to an extension of time to complete each undergrounding project, where the company's performance was delayed due to a cause that could not be reasonably anticipated by the company or is beyond its reasonable control, after exercise of best efforts to perform, including but not limited to fire, strike, war, riots, acts of governmental authority, acts of God, forces of nature, judicial action, unavailability or shortages of materials or equipment, and failures or delays in delivery of materials. Upon request of the company, the city may also grant the company reasonable extensions of time for good cause shown, and the city shall not unreasonably withhold any such extension.

(B)  City revision of supporting documentation. Any revision by the city of supporting documentation provided to the company that causes the company to substantially redesign or change its plans regarding an undergrounding project shall be deemed good cause for a reasonable extension of time to complete the undergrounding project under this franchise.

(C)  Completion/restoration. Each such undergrounding project shall be deemed complete only when the company actually undergrounds the designated company facilities, restores the undergrounding site in accordance with section 5-04-210 herein or as otherwise agreed with the city designee, and removes from the site, or properly abandons on site, any unused facilities, equipment, material, and other impediments.

(D)  Estimates. Promptly upon receipt of an undergrounding request from the city and the supporting documentation necessary for the company to design the undergrounding project, the company shall prepare a detailed, good-faith cost estimate of the anticipated actual cost of the requested project for the city to review and, if acceptable, issue a project authorization. The company will not proceed with any requested project until the city has provided a written acceptance of the company estimate.

(E)  Report of actual costs. Upon completion of each undergrounding project, the company shall submit to the city a detailed report of the company's actual cost to complete the project, and the company shall reconcile this total actual cost with the accepted cost estimate.

(F)  Audit of underground projects. The city may require that the company undertake, at its own expense, an independent audit of any undergrounding project for $500,000.00 or greater. The cost of any such independent audit shall reduce the amount of the fund. The company shall cooperate fully with any audit, and the independent auditor shall prepare and provide to the city and the company a final audit report showing the actual costs associated with completion of the project. If a project audit is required by the city, only those actual project costs confirmed and verified by the independent auditor as incurred by the company to complete the particular city undergrounding project shall reduce the fund. (Ord. 1872 §10.3, 2007)

5-04-370  Audit of underground fund. Go to the top

Upon written request of the city, but no more frequently than once every three years, the company shall audit the fund for the city. Such audits shall be limited to the previous three calendar years. The company shall provide the audit report to the city and shall reconcile the fund consistent with the findings contained in the audit report. (Ord. 1872 §10.4, 2007)

5-04-380  Cooperation with other utilities. Go to the top

When undertaking an undergrounding project, the city and the company shall coordinate with other utilities or companies that have their facilities above ground, to attempt to have all facilities undergrounded as part of the same project. When other utilities or companies are placing their facilities underground, the city shall provide the company written notice of the specific undergrounding project. The company shall cooperate with these utilities and companies and undertake to underground company facilities as part of the same project, where financially, technically, and operationally feasible. The company shall not be required to pay for the cost of undergrounding the facilities of other companies or the city. (Ord. 1872 §10.5, 2007)

5-04-390  Planning and coordination of undergrounding projects. Go to the top

The city and the company shall mutually plan, in advance, the scheduling of undergrounding projects to be undertaken according to this article, as a part of the review and planning for other city and company construction projects. In addition, the city and the company agree to meet, as required, to review the progress of then-current undergrounding projects and to review planned future undergrounding projects. The purpose of such meetings shall be to further cooperation between the city and the company to achieve the orderly undergrounding of company facilities. At such meetings, the parties shall review:

(A)  Undergrounding, including conversions, public projects, and replacements which have been accomplished or are underway, together with the company's plans for additional undergrounding; and

(B)  Public projects anticipated by the city. (Ord. 1872 §10.6, 2007)

XI. Purchase or Condemnation

5-04-400  Municipal right to purchase or condemn. Go to the top

(A)  Right and privilege of city. The right and privilege of the city to construct, purchase, or condemn any company facilities located within the territorial boundaries of the city and the company's rights in connection therewith, as set forth in applicable provisions of the Constitution and statutes of the State of Colorado relating to the acquisition of public utilities, are expressly recognized. The city shall have the right, within the time frames and using the procedures set forth in such provisions, to purchase company facilities, land, rights-of-way, and easements, now owned or to be owned by the company, located within the territorial boundaries of the city. In the event of any such purchase, no value shall be ascribed or given to the rights granted under this franchise in the valuation of the property thus taken.

(B)  Notice of intent to purchase or condemn. The city shall provide the company no less than one year's prior written notice of its intent to purchase or condemn company facilities. Nothing in this section shall be deemed or construed to constitute a consent by the company to the city's purchase or condemnation of company facilities. (Ord. 1872 §11.1, 2007)

XII. Transfer of Franchise

5-04-410  Consent of city required. Go to the top

The company shall not transfer or assign any rights under this franchise to an unaffiliated third party, except by merger with such third party, or except when the transfer is made in response to legislation or regulatory requirements, unless the city approves such transfer or assignment in writing. Approval of the transfer or assignment shall not be unreasonably withheld. (Ord. 1872 §12.1, 2007)

5-04-420  Transfer fee. Go to the top

In order that the city may share in the value this franchise adds to the company's operations, any transfer or assignment of rights granted under this franchise requiring city approval, as set forth herein, shall be subject to the condition that the company shall promptly pay to the city a transfer fee, in an amount equal to the proportion of the city's "then-population provided" utility service by the company to the "then-population of the City and County of Denver provided" utility service by the company multiplied by $1,000,000.00. Except as otherwise required by law, such transfer fee shall not be recovered from a surcharge placed only on the rates of residents. (Ord. 1872 ยง12.2, 2007)

XIII. Continuation of Utility Service

5-04-430  Continuation of utility service. Go to the top

In the event this franchise is not renewed at the expiration of its term or is terminated for any reason, and the city has not provided for alternative utility service, the company shall continue to provide utility service within the city until the city arranges for utility service from another provider. The company further agrees that it will not withhold any temporary utility services necessary to protect the public. The city agrees that, in the circumstances of this article, the company shall be entitled to monetary compensation as provided in the company's tariffs on file with the Public Utilities Commission, and the company shall be entitled to collect from residents and shall be obligated to pay the city, at the same times and in the same manner as provided in this franchise, an aggregate amount equal to the amount which the company would have paid as a franchise fee as consideration for use of the city's streets. Only upon receipt of written notice from the city stating that the city has adequate alternative utility service for residents and upon order of the PUC shall the company be allowed to discontinue the provision of utility service to the city and its residents. (Ord. 1872 §13.1, 2007)

XIV. Indemnification and Immunity

5-04-440  City held harmless. Go to the top

The company shall indemnify, defend, and hold the city harmless from and against claims, demands, liens, and all liability or damage of whatsoever kind, on account of, or arising from, the grant of this franchise, the exercise by the company of the related rights, or from the operations of the company within the city and shall pay the costs of defense plus reasonable attorneys' fees. The city shall:

(A)  Give prompt written notice to the company of any claim, demand, or lien with respect to which the city seeks indemnification hereunder; and

(B)  Unless, in the city's judgment, a conflict of interest may exist between the city and the company with respect to such claim, demand, or lien, shall permit the company to assume the defense of such claim, demand, or lien with counsel satisfactory to the city.

If such defense is assumed by the company, the company shall not be subject to any liability for any settlement made without its consent. If such defense is not assumed by the company, or if the city determines that a conflict of interest exists, the parties reserve all rights to seek all remedies available in this franchise against each other. Notwithstanding any provision hereof to the contrary, the company shall not be obligated to indemnify, defend, or hold the city harmless, to the extent any claim, demand, or lien arises out of, or in connection with, any negligent or intentional act or failure to act, of the city or any of its officers or employees. (Ord. 1872 §14.1, 2007)

5-04-450  Immunity. Go to the top

Nothing in this section or any other provision of this agreement shall be construed as a waiver of the notice requirements, defenses, immunities, and limitations the city may have under the Colorado Governmental Immunity Act (Section 4-10-101, C.R.S., et seq.) or of any other defenses, immunities, or limitations of liability available to the city by law. (Ord. 1872 §14.2, 2007)

XV. Breach

5-04-460  Noncontestability. Go to the top

The city and the company agree to take all reasonable and necessary actions to assure that the terms of this franchise are performed. (Ord. 1872 §15.1, 2007)

5-04-470  Breach. Go to the top

(A)  Notice/cure/remedies. Except as otherwise provided in this franchise, if a party (the "breaching party") to this franchise fails or refuses to perform any of the terms or conditions of this franchise (a "breach"), the other party (the "nonbreaching party") may provide written notice to the breaching party of such breach. Upon receipt of such notice, the breaching party shall be given a reasonable time, not to exceed thirty days, in which to remedy the breach. If the breaching party does not remedy the breach within the time allowed in the notice, the nonbreaching party may exercise the following remedies for such breach:

(1)  Specific performance of the applicable term or condition; and

(2)  Recovery of actual damages from the date of such breach incurred by the nonbreaching party in connection with the breach, but excluding any consequential damages.

(B)  Termination of franchise by city. In addition to the foregoing remedies, if the company fails or refuses to perform any material term or condition of this franchise (a "material breach"), the city may provide written notice to the company of such material breach. Upon receipt of such notice, the company shall be given a reasonable time, not to exceed ninety days, in which to remedy the material breach. If the company does not remedy the material breach within the time allowed in the notice, the city may, at its sole option, terminate this franchise. This remedy shall be in addition to the city's right to exercise any of the remedies provided for elsewhere in this franchise. Upon such termination, the company shall continue to provide utility service to the city and its residents until the city makes alternative arrangements for such service and until otherwise ordered by the PUC, and the company shall be entitled to collect from residents and shall be obligated to pay the city, at the same times and in the same manner as provided in this franchise, an aggregate amount equal to the amount which the company would have paid as a franchise fee as consideration for use of the city streets.

(C)  No limitation. Except as provided herein, nothing in this franchise shall limit or restrict any legal rights or remedies that either party may possess arising from any alleged breach of this franchise. (Ord. 1872 §15.2, 2007)

XVI. Amendments

5-04-480  Proposed amendments. Go to the top

At any time during the term of this franchise, the city or the company may propose amendments to this franchise by giving thirty days' written notice to the other of the proposed amendments. (Ord. 1872 §16.1, 2007)

5-04-490  Effective amendments. Go to the top

No alterations, amendments, or modifications to this franchise shall be valid, unless executed by an instrument in writing by the parties, adopted with the same formality used in adopting this franchise. Neither this franchise, nor any term hereof, may be changed, modified, or abandoned, in whole or in part, except by an instrument in writing, and no subsequent oral agreement shall have any validity whatsoever. (Ord. 1872 §16.2, 2007)

XVII. Equal Opportunity

5-04-500  Economic development. Go to the top

The company is committed to the principle of stimulating, cultivating, and strengthening the participation and representation of persons of color, women, and members of other under-represented groups within the company and in the local business community. The company believes that increased participation and representation of under-represented groups will lead to mutual and sustainable benefits for the local economy. The company is also committed to the principle that the success and economic well-being of the company is closely tied to the economic strength and vitality of the diverse communities and people it serves. The company believes that contributing to the development of a viable and sustainable economic base among all company customers is in the best interests of the company and its shareholders. (Ord. 1872 §17.1, 2007)

5-04-510  Employment. Go to the top

(A)  The company is committed to undertaking programs that identify, consider, and develop persons of color, women, and members of other under-represented groups for positions at all skill and management levels within the company.

(B)  The company recognizes that the city and the business community in the city, including women- and minority-owned businesses, provide a valuable resource in assisting the company to develop programs to promote persons of color, women, and members of under-represented communities into management positions and agrees to keep the city regularly advised of the company's progress by providing the city a copy of the company's annual affirmative action report, upon the city's written request.

(C)  In order to enhance the diversity of the employees of the company, the company is committed to recruiting diverse employees by strategies such as partnering with colleges, universities, and technical schools with diverse student populations, utilizing diversity-specific media to advertise employment opportunities, and internships, and engaging recruiting firms with diversity-specific expertise.

(D)  The company is committed to developing a world-class workforce through the advancement of its employees, including persons of color, women, and members of under-represented groups. In order to enhance opportunities for advancement, the company will offer training and development opportunities for its employees. Such programs may include mentoring programs, training programs, classroom training, and leadership programs.

(E)  The company is committed to a workplace free of discrimination based on race, color, religion, national origin, gender, age, military status, sexual orientation, marital status, physical or mental disability, or any other protected status, in accordance with all federal, state, or local laws. The company shall not, solely because of race, creed, color, religion, sex, age, national origin or ancestry, or handicap, refuse to hire, discharge, promote, demote, or discriminate in matters of compensation against any person otherwise qualified and further agrees to insert the foregoing provision, or its equivalent, in all agreements the company enters into in connection with this franchise.

(F)  The company shall identify and consider women, persons of color, and other under-represented groups to recommend for its board of directors, consistent with the responsibility of boards to represent the interests of the shareholders, customers, and employees of the company. (Ord. 1872 §17.2, 2007)

5-04-520  Contracting. Go to the top

(A)  It is the company's policy to make available to minority- and women-owned business enterprises and other small or disadvantaged business enterprises the maximum practical opportunity to compete with other service providers, contractors, vendors, and suppliers in the marketplace. The company is committed to increasing the proportion of company contracts awarded to minority- and women-owned business enterprises and other small or disadvantaged business enterprises for services, construction, equipment, and supplies, to the maximum extent consistent with the efficient and economical operation of the company.

(B)  The company agrees to maintain and continuously develop contracting and community outreach programs calculated to enhance opportunity and increase the participation of minority- and women-owned business enterprises and other small or disadvantaged business enterprises to encourage economic vitality. The company agrees to keep the city regularly advised of the company's programs.

(C)  The company shall maintain and support partnerships with local chambers of commerce and business organizations, including those representing predominately minority-owned, women-owned, and disadvantaged businesses, to preserve and strengthen open communication channels and enhance opportunities for minority-owned, women-owned, and disadvantaged businesses to contract with the company. (Ord. 1872 §17.3, 2007)

XVIII. Environment and Conservation

5-04-530  Environmental leadership. Go to the top

The company is committed to sustainable development and energy conservation for the term of this agreement by continuing to provide leadership, support, and assistance, in collaboration with the city, to identify, develop, implement, and maintain new and creative programs. The company shall strive to conduct its operations in a way that avoids adverse environmental impacts, where feasible, subject to the ongoing regulatory oversight of the Colorado PUC. In doing so, the company shall consider environmental issues in its planning and decision-making and shall invest in environmentally sound technologies when such technologies are deemed prudent and feasible. The company shall continue with its voluntary carbon-reduction program to reduce greenhouse gas emissions and shall continue to explore ways to reduce water consumption at its facilities and to use recycled water, where feasible. The company shall continue to work with the U.S. Fish and Wildlife Service to develop and implement avian protection plans to reduce electrocution and collision risks by eagles, raptors, and other migratory birds with transmission and distribution lines. (Ord. 1872 §18.1, 2007)

5-04-540  Energy conservation and efficiency. Go to the top

(A)  Energy efficiency programs. The city and the company recognize and agree that energy conservation and efficiency programs offer opportunities for the efficient use of energy and reduction of customers' energy consumption and costs. The company recognizes and shares the city's desire to advance the implementation of cost-effective energy conservation and efficiency programs, which direct opportunities to the company's customers to manage more efficiently their use of energy and thereby create the opportunity to reduce their energy consumption, costs, and impact on the environment. The company shall seek authority from the PUC to develop and offer energy efficiency programs to its customers. Subject to PUC approval, the company commits to offer demand side management (DSM) programs and succeeding programs, which provide customers the opportunity to reduce their energy usage. In doing so, the company recognizes the importance of:

(1)  Implementing cost-effective programs, the benefits of which could otherwise be lost if not pursued in a timely fashion; and

(2)  Developing cost-effective energy management programs for the various classes of the company's customers.

The company shall advise the city and the company's customers of the availability of assistance that the company makes available for investments in energy conservation through its account managers, area manager, newspaper advertisements, bill inserts, and energy efficiency workshops, and by maintaining information of these programs on the company's website.

(B)  Renewable resource programs. The company agrees to implement renewable resource programs as an integral part of the company's provision of utility service to its customers. The company agrees to comply with the mandates of Colorado House Bill 1281, which doubles the renewable energy standard established by voters with the 2004 passage of Amendment 37. Unless otherwise provided by law or PUC order, the company will obtain electricity from renewable sources equivalent to at least 20% of retail sales, by 2020. The company will promote a role for renewable resources in its future resource acquisitions, consistent with acceptable rate impacts, legislative requirements, and applicable provisions of law.

(C)  Continuing effort to promote programs. The company will continue to promote existing or new programs in its service territory to comply with applicable provisions of law relating to renewable resources. The city shall actively support the company's compliance with the renewable resource standards required by law. The company agrees that, in complying with this provision, it shall take the following steps to encourage participation by the city and the company's customers in available renewable resource programs:

(1)  Notify the city regarding eligible renewable resource programs;

(2)  Provide the city with support regarding how the city may participate in eligible renewable resource programs; and

(3)  Advise customers regarding participation in eligible renewable resource programs. (Ord. 1872 §18.2, 2007)

5-04-550  Continuing commitment. Go to the top

The company agrees to maintain its commitment to sustainable development and energy conservation for the term of this agreement, by continuing to provide leadership, support, and assistance to identify, develop, implement, and maintain new and creative programs similar to the programs identified in this agreement. (Ord. 1872 §18.3, 2007)

5-04-560  PUC approval. Go to the top

Nothing in this article shall be deemed to require the company to invest in technologies, or to incur costs, that it has a good-faith belief the PUC will not allow the company to recover through the ratemaking process. (Ord. 1872 §18.4, 2007)

XIX. Miscellaneous

5-04-570  No waiver. Go to the top

Neither the city nor the company shall be excused from complying with any of the terms and conditions of this franchise by any failure of the other, or any of its officers, employees, or agents, upon any one or more occasions, to insist upon or to seek compliance with any such terms and conditions. (Ord. 1872 §19.1, 2007)

5-04-580  Successors and assigns. Go to the top

The rights, privileges, and obligations, in whole or in part, granted and contained in this franchise shall inure to the benefit of and be binding upon the company, its successors, and assigns, to the extent that such successors or assigns have succeeded to or been assigned the rights of the company pursuant to article XIII herein. (Ord. 1872 §19.2, 2007)

5-04-590  Third parties. Go to the top

Nothing contained in this franchise shall be construed to provide rights to third parties. (Ord. 1872 §19.3, 2007)

5-04-600  Notice. Go to the top

Both parties shall designate from time to time in writing representatives for the company and the city who will be the persons to whom notices shall be sent regarding any action to be taken under this franchise. Notice shall be in writing and forwarded by certified mail or hand-delivery to the persons and addresses as hereinafter stated, unless the persons and addresses are changed at the written request of either party, delivered in person or by certified mail. Until any such change shall hereafter be made, notices shall be sent as follows:

To the city:
Mayor of Broomfield
One DesCombes Drive
Broomfield, Colorado 80020
City and County Manager
One DesCombes Drive
Broomfield, Colorado 80020

With a copy to:
City and County Attorney
City and County of Broomfield
One DesCombes Drive
Broomfield, Colorado 80020

To the company:
Vice President of Customer and Local Government Affairs
Public Service Company of Colorado
P.O. Box 840
Denver, Colorado 80201

With a copy to:
Legal Department
Public Service Company of Colorado
P.O. Box 840
Denver, Colorado 80201

(Ord. 1872 §19.4, 2007)

5-04-610  Examination of records. Go to the top

The parties agree that any duly authorized representative of the city and the company shall have access to, and the right to examine, any directly pertinent nonconfidential books, documents, papers, and records of the other party involving any activities related to this franchise. All such records must be kept for a minimum of four years. (Ord. 1872 §19.5, 2007)

5-04-620  Payment of taxes and fees. Go to the top

(A)  The company shall pay and discharge as they become due, promptly and before delinquency, all taxes, assessments, rates, charges, license fees, municipal liens, levies, excises, or imposts, whether general or special, or ordinary or extraordinary, of every name, nature, and kind whatsoever, including all governmental charges of whatsoever name, nature, or kind, which may be levied, assessed, charged, or imposed, or which may become a lien or charge against this agreement ("impositions"), provided that the company shall have the right to contest any such impositions and shall not be in breach of this section so long as it is actively contesting such impositions.

(B)  The city shall not be liable for the payment of taxes, late charges, interest, or penalties of any nature, other than pursuant to applicable tariffs on file and in effect, from time to time, with the PUC. (Ord. 1872 §19.6, 2007)

5-04-630  Conflict of interest. Go to the top

The parties agree that no official, officer, or employee of the city shall have any personal or beneficial interest whatsoever in the services or property described herein, except as a customer of the company, and the company further agrees not to hire or contract for services any official, officer, or employee of the city to the extent prohibited by law, including ordinances and regulations of the city. (Ord. 1872 §19.7, 2007)

5-04-640  Certificate of convenience and necessity. Go to the top

The city agrees to support any application the company may file with the PUC to obtain a certificate of public convenience and necessity to exercise the rights and obligations granted under this franchise. (Ord. 1872 §19.8, 2007)

5-04-650  Authority. Go to the top

Each party represents and warrants that, except as set forth below, it has taken all actions that are necessary or that are required by its ordinances, regulations, procedures, bylaws, or applicable law, to legally authorize the undersigned signatories to execute this agreement on behalf of the parties and to bind the parties to its terms. The persons executing this agreement on behalf of each of the parties warrant that they have full authorization to execute this agreement. The city acknowledges that, notwithstanding the foregoing, the company requires a certificate of public convenience and necessity from the PUC in order to operate under the terms of this franchise. (Ord. 1872 §19.9, 2007)

5-04-660  Severability. Go to the top

Should any one or more provisions of this franchise be determined to be unconstitutional, illegal, unenforceable, or otherwise void, all other provisions, nevertheless, shall remain effective; provided, however, that the parties shall forthwith enter into good-faith negotiations and proceed with due diligence to draft one or more substitute provisions that will achieve the original intent of the parties hereunder. (Ord. 1872 §19.10, 2007)

5-04-670  Force majeure. Go to the top

Neither the city nor the company shall be in breach of this franchise if a failure to perform any of the duties under this franchise is due to uncontrollable forces, which shall include, but not be limited to: accidents, breakdown of equipment, shortage of materials, shortage of labor, acts of God, floods, storms, fires, sabotage, terrorist attack, strikes, riots, war, labor disputes, forces of nature, the authority and orders of government, and other causes or contingencies of whatever nature beyond the reasonable control of the party affected, which could not reasonably have been anticipated and avoided. (Ord. 1872 §19.11, 2007)

5-04-680  Earlier franchises superseded. Go to the top

This franchise shall constitute the only franchise between the city and the company for the furnishing of utility service, street lighting service, and traffic signal lighting service, and it supersedes and cancels all former franchises between the parties hereto. (Ord. 1872 §19.12, 2007)

5-04-690  Titles not controlling. Go to the top

Titles of the paragraphs herein are for reference only and shall not be used to construe the language of this franchise. (Ord. 1872 §19.13, 2007)

5-04-700  Applicable law. Go to the top

Colorado law shall apply to the construction and enforcement of this franchise. The parties agree that venue for any litigation arising out of this franchise shall be in the District Court for Broomfield County, State of Colorado. (Ord. 1872 §19.14, 2007)


Chapter 5-05

Business Occupation Tax on Telephone Companies

5-05-010  Levy of tax. Go to the top

There is hereby levied on and against telephone companies operating within the city a tax on the business and occupation of maintaining a telephone exchange and lines connected therewith in the city, and of supplying local exchange telephone service to the inhabitants of the city. The amount of tax levied hereby shall be at the rate of $2.00 per telephone account in the city, per quarter, arising from the supplying, furnishing, distributing, and selling of local exchange telephone service within the corporate limits of the city, as now or hereafter established. (Ord. 498 §1, 1982)

5-05-020  Effective date. Go to the top

The tax levied by the ordinance codified herein shall commence on January 1, 1979, and shall be due and payable quarterly to the city clerk. (Ord. 323 §2, 1978)

5-05-030  Filing statement and payment of tax. Go to the top

Within thirty days after the end of each calendar quarter after the effective date of the tax herein levied, said telephone companies subject to the ordinance codified herein shall file with the city clerk, in such form as the clerk may require, a statement showing the total number of telephone accounts in the city during the preceding calendar quarter. Such statement shall be accompanied by payment to the clerk of the tax due for the period covered by the statement. (Ord. 323 §3, 1978)

5-05-040  Failure to pay. Go to the top

If any telephone company subject to the provisions of the ordinance codified herein shall fail to pay the taxes as herein provided, the full amount thereof shall be due and collected from such company, and the same, together with an addition of 10% of the amount of taxes due, shall be and hereby is declared to be a debt due and owing from such company to the city. The city attorney, upon the direction of the city council, shall commence and prosecute to final judgment and determination in any court of competent jurisdiction, an action at law to collect the said debt in the name of the people of the State of Colorado, City of Broomfield. (Ord. 323 §4, 1978)

5-05-050  Penalty. Go to the top

If any officer, agent, or manager of a telephone company which is subject to the provisions of this chapter shall fail, neglect, or refuse to make or file any quarterly statement in the manner therein prescribed, said officer, agent, manager, or person shall, on conviction thereof, be punished as provided in chapter 1-12, B.M.C.; provided that each day after said quarterly statement shall become delinquent during which said officer, agent, manager, or person shall so fail, neglect, or refuse to make and file such statement shall be considered a separate and distinct offense. (Ord. 323 §5, 1978; Ord. 1013 §1, 1993)

5-05-060  Inspection of records. Go to the top

The city, its officers, agent, or representatives shall have the right at all reasonable hours and times to examine the books and records of the telephone companies which are subject to the provisions of this chapter and to make copies of the entries or contents thereof. (Ord. 323 §6, 1978)

5-05-070  Exclusions. Go to the top

The provisions of this chapter shall not apply to any telephone system owned and operated by the city. (Ord. 323 §7, 1978)

5-05-080  Nonwaiver. Go to the top

This chapter shall not be construed as granting a franchise or franchise rights to any telephone company, and it is understood the city does not hereby waive its right to amend this chapter or to negotiate with any telephone company regarding any franchise or franchise payments subject to the city's authority. (Ord. 323 §8, 1978)

5-05-090  Validity of existing ordinances. Go to the top

All ordinances of the city which may be in conflict with the provisions of the ordinance are hereby declared to be null and void. (Ord. 323 §9, 1978)


Chapter 5-12

Community Antenna Television System

5-12-010  Permit; required. Go to the top

No person, firm, corporation, or organization shall install, operate, and maintain a community television system, within all or any portion of the city without first obtaining a permit therefor from the city council. (Ord. 121 §1(part), 1971)

5-12-020  Community antenna television system defined. Go to the top

Community antenna television system, as used in this chapter, means any facility which receives directly over the air, and amplifies or otherwise modifies, the signals transmitting programs broadcast by one or more television stations, and distributes such signals by wire or cable to subscribing members of the public who pay for such service, but such term shall not include any facility which services only the residents of one or more apartment dwellings or office buildings, under common ownership, control, or management. (Ord. 121 §1(part), 1971)

5-12-030  Permit; application; contents. Go to the top

Application to install, operate, and maintain a community antenna television system shall be made by the person, firm, corporation, or organization, or their duly designated agent, to the city council. Such application shall contain the following information:

(A)  The name and address of the applicant, and, should the applicant be a corporation, the names and addresses of all officers and directors of such corporation;

(B)  An outline of the general construction and operating plans of the applicant;

(C)  A schedule of rates and charges for all services; and

(D)  A proposed schedule for the construction of the system and the commencement of service. (Ord. 121 §2, 1971)

5-12-040  Permit; granting; conditions. Go to the top

The city council, upon finding that application is consistent with the public interest, safety, and welfare, may grant by ordinance a revocable permit for such application, in whole or in part, subject to such agreements, conditions, charges, assessment, and taxes as the city council may impose upon the applicant; provided that the right to revoke the permit without cause at any time, whether or not the right is expressly reserved in the permit, shall be retained by the city council. (Ord. 121 §3, 1971)

5-12-050  Construction requirements generally. Go to the top

All construction of lines, cables, or other apparatus in the streets, alleys, or public places of the city, pursuant to the grant of a permit, shall be under the supervision and in accordance with the specifications and regulations provided for such work by the city engineer. (Ord. 121 §4, 1971)

5-12-060  Operation without permit deemed nuisance; penalty for violation. Go to the top

The installation, operation, or maintenance of a community antenna television system without a permit therefor, as provided in this chapter, is declared to be a nuisance and a trespass upon the public property. Additionally, any person, firm, corporation, or organization who is convicted of a violation of any provisions of this chapter, shall, for each offense, be punished as provided in chapter 1-12, B.M.C. (Ord. 121 §5, 1971)


Chapter 5-14

Cable Television System

5-14-010  Franchise; required. Go to the top

After the effective date of the ordinance codified herein, no person, firm, corporation, or organization shall install, operate, or maintain a cable television system within all or any portion of the city, without first obtaining a franchise therefor from the city which shall only be granted by city council after approval by a majority of the electors voting thereon. All franchises or permits heretofore granted for such installation, operation, or maintenance of a cable television system shall remain in full force and effect, in accordance with their terms, until the expiration or other termination thereof. Upon such expiration or other termination, all matters pertaining to renewal or reapplication shall be governed by this chapter. Any franchisee shall be required to execute an agreement which shall bind the franchisee to the terms hereof, and contain such other provisions as may be agreed upon between the city and the franchisee. (Ord. 408 §1, 1980)

5-14-020  Definitions. Go to the top

(A)  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. To the extent consistent with applicable law, cable service shall include cable internet service and other interactive services such as, but not limited to, game channels, information services and enhanced services made available to subscribers.

(B)  Cable television system, as used in this chapter, means any facility consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves subscribers without using any right-of-way or city property; (3) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title 11 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; or (4) an open video system that complies with federal statutes. (Ord. 408 §1, 1980; Ord. 1445 §1, 2000)

5-14-030  Franchise; application; contents. Go to the top

All new applications to install, operate, or maintain a cable television system or provide cable service shall be made to the city council. Such application shall be accompanied by a nonrefundable $1,000.00 application fee, shall be on a form prescribed by the city manager, and shall contain the following information:

(A)  The name and address of the applicant, and, should the applicant be a corporation, the state of incorporation, the date of initial incorporation, the names and addresses of all officers and directors of such corporation, and a copy of the most recent annual report.

(B)  Specific design, engineering, and construction criteria, including a description of the area to be served, details of any connection to or with other cable television or cable service systems, the number and type of channels or programming to be offered, an estimated schedule for construction of the system and commencement of service, and an estimate of the construction cost of the system.

(C)  Specific funding plans, including details of any funding commitment that may exist.

(D)  All franchise grantees must comply with customer service standards adopted by the city by ordinance, and as amended by ordinance.

(E)  Disclosure of all individuals or entities who have or will have a direct financial interest in the franchise and the nature and extent of said interest.

(F)  Such other information as the city council may deem necessary to enable it to determine whether a permit should issue. (Ord. 408 §1, 1980; Ord. 1445 §2, 2000)

5-14-040  Franchise; granting; conditions. Go to the top

The city council shall grant a franchise by resolution upon the application if it finds:

(A)  That the proposed system is consistent with the public interest, safety, and welfare;

(B)  That the applicant has demonstrated financial and technical capability to complete the proposed system in a timely manner;

(C)  That the plans are technically adequate;

(D)  That the application and proposed system comply fully with the terms of this chapter;

(E)  That the question of granting the franchise has been submitted to the electorate, and approved by a majority of the electors voting thereon; and

(F)  That the franchisee has executed an agreement incorporating the provisions of this chapter, the terms of the franchisee's application, and such other provisions as may be mutually agreed upon between the city and the proposed franchisee. (Ord. 408 §1, 1980)

5-14-050  Construction requirements. Go to the top

All construction or installation of lines, cables, poles, or other apparatus in the streets, alleys, rights-of-way, easements, or other public places of the city in connection with a cable television system shall be under the supervision of, and in accordance with specifications and regulations provided by, or approved by, the city engineer. (Ord. 408 §1, 1980)

5-14-060  Technical performance. Go to the top

The technical performance of the cable system shall meet or exceed all applicable federal (including, but not limited to, the FCC), state and local 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 and impose the cost of any performance testing on the franchisee. (Ord. 408 §1, 1980; Ord. 1445 §3, 2000)

5-14-080  Franchise; use of streets, etc. Go to the top

Any franchise granted by the city shall include such right, as the city has the power to grant, to use the streets, alleys, rights-of-way, easements, and other public places within the city for erection, installation, repair, removal, and replacement of poles, lines, cables, and other equipment necessary to the operation and maintenance of a cable television or cable service system, provided that:

(A)  The franchisee shall be fully responsible for all work done and the consequences thereof; and

(B)  The franchisee must receive the specific written approval of the city engineer for all construction, erection, or installation of equipment on, in, under, through or over any street, alley, right-of-way, easement, or other public place within the city, and if required, pay the fee for and obtain a permit; and

(C)  The franchisee shall cause all equipment to be constructed, erected, installed, and maintained so that it does not obstruct or interfere with any other lawful use of the street, alley, right-of-way, easement, public place, or adjoining realty, including private or public landscaping and improvements, and shall promptly repair or replace any private or public landscaping or improvements which may be damaged or removed by the construction, erection, installation, or maintenance of equipment. All equipment locations in streets, alleys, rights-of-way, easements, or other public places shall be subject to the prior written approval of the city engineer, but such approval shall in no way relieve the franchisee from responsibility for the location of equipment; and

(D)  No fences, whether publicly or privately owned, shall be removed or taken down without the express written authorization of the owner thereof; and

(E)  A franchisee shall keep the city engineer and planning department fully advised as to timetables, schedules, and locations for the installation of equipment as such timetables and schedules are developed or revised by the franchisee. (Ord. 408 §1, 1980; Ord. 1445 §5, 2000)

5-14-090  Franchise; nonexclusive; nontransferable; revocable. Go to the top

(A)  Any franchise granted by the city shall be nonexclusive and the city may at any time grant additional franchises.

(B)  Any franchise shall be granted only to the applicant therefor, and shall not be transferable, unless the city council adopts a resolution specifically authorizing a transfer. Upon transfer, all franchises or permits heretofore granted for such installation, operation, or maintenance of a cable television or cable service system shall remain in full force and effect, in accordance with their terms, until the expiration or other termination thereof. Upon such expiration or other termination, all matters pertaining to renewal or reapplication shall be governed by this chapter. Any franchisee shall be required to execute an agreement which shall bind the franchisee to the terms hereof, and contain such other provisions as may be agreed upon between the city and the franchisee. In the event a corporate franchisee fails to maintain its good standing in the state where incorporated, such will be considered a material violation of the terms of this chapter.

(C)  Any franchisee shall enter into a franchise agreement with the city, which shall incorporate and make binding the information received in the application, and which shall bind the franchisee to the terms of this chapter.

(D)  There are hereby expressly reserved the rights to repeal or amend this chapter and to revoke any franchise granted hereunder, provided however, that no franchise may be revoked prior to a hearing before the city council. A franchise may be revoked if the city council finds any material noncompliance with the terms of this chapter or the franchise agreement.

(E)  If any franchise is revoked, the franchisee shall remove all of its equipment, buried cable excluded, within six months, and shall within the same six months repair and restore all streets, alleys, rights-of-way, easements, and other public places, and adjoining realty, to good condition at the franchisee's expense, and in a manner approved by the city engineer; provided, however, that the requirements of this subsection may be waived as to all or any part of the system by the city council, on recommendation of the city engineer.

(F)  If any franchise is revoked, the franchisee shall not again be eligible to apply for a franchise directly or indirectly, for a period of two years.

(G)  Not less than every five years, the city council may hold a public hearing as to each franchisee, and in conjunction therewith, shall review the franchisee's performance and compliance with the terms of this chapter.

(H)  Any franchise granted hereunder shall be valid for fifteen years, and may be renewed for additional periods not to exceed fifteen years if the city council finds:

(1)  That the continued operation of the system is consistent with the public interest, safety, and welfare;

(2)  That the applicant has demonstrated financial and technical capability to operate and maintain the system in a satisfactory manner;

(3)  That the system is technically adequate; and

(4)  That the system and franchisee are in compliance with the terms of this chapter, and the franchise agreement. If the city council determines that a new franchise agreement is necessary, the renewal of the franchise shall be subject to agreement between the franchisee and the city on a new franchise agreement. (Ord. 408 §1, 1980; Ord. 1445 §6, 2000)

5-14-100  Services and rates. Go to the top

(A)  The distribution services of any cable television or cable service system shall be available to every dwelling and commercial establishment within the boundaries of the city. The initial rates to be charged subscribers shall be at the discretion of the franchisee. However, all of the franchisee'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. The franchisee shall provide customers and the city with written notification of any changes in rates, programming, or channel positions, at least thirty days before the effective date of change. Prior to commencement of service, a rate schedule will be filed with the city clerk and the city manager. At all times a current rate schedule will have been filed by any franchisee with both the city clerk and the city manager.

(B)  There shall be no charge for the voluntary discontinuation of service by a customer. (Ord. 408 §1, 1980; Ord. 1445 §7, 2000)

5-14-110  Free distribution of services. Go to the top

Subject to subsection 5-14-160(A), any franchisee shall install, operate, and maintain, free of charge, lines and facilities for reception of all of its cable television and cable services, excluding premium pay service, on request of the city, through an outlet at each of the following:

(A)  At each public and private nonprofit elementary and secondary school within the city;

(B)  At each public library within the city;

(C)  At each police and fire station within the city;

(D)  At all city and city/county facilities within the city;

(E)  Any of the foregoing may request the installation of one or more additional outlets which shall be installed by the franchisee for an amount equal to the time and material costs of installation. No franchisee shall charge monthly service charges or converter rental charges to the foregoing, up to a maximum of four outlets, except that a franchisee may charge for other services at such locations. A franchisee shall install service at any new or changed location in the city of such facilities for an amount equal to the time and material costs of installation. (Ord. 408 §1, 1980; Ord. 1445 §8, 2000)

5-14-130  Emergency use of facilities. Go to the top

In case of any emergency or disaster, any franchisee shall, upon request of the city, make available its facilities for emergency use by the city during the emergency or disaster period. (Ord. 408 §1, 1980)

5-14-150  Business occupation tax. Go to the top

(A)  There is hereby levied on and against cable television system operators operating within the city, a tax on the business and occupation of maintaining a cable television system within the city, and of supplying cable television service to the inhabitants of or property within the city. The amount of tax levied hereby shall be $1.20 per cable television customer account in the city, per quarter, arising from the supplying, furnishing, distributing, and selling of cable television service within the city. This tax shall be in addition to any other taxes, fees, assessments, or charges required to be paid by ordinance or statute.

(B)  The tax levied by this section shall be due and payable quarterly to the city clerk, as follows: Within thirty days after the end of each calendar quarter, each cable television system operator subject to this tax shall file with the city clerk, in such form as the clerk may require, a statement showing the total number of cable television accounts in the city as of the end of the preceding calendar year. Such statement shall be accompanied by payment to the clerk of the tax due for the period covered by the statement.

(C)  The city, its officers, agents, or representatives, shall have the right at all reasonable hours and times to examine the books and records of cable television system operators which are subject to this tax and make copies thereof. (Ord. 408 §1, 1980)

5-14-160  Time for commencement and completion and area to be served. Go to the top

(A)  Within eighteen months after a franchise is granted pursuant to this chapter, a franchisee shall substantially complete its cable television system, except for new customers, except for new extensions, and shall offer proper and adequate service uniformly to all residents of the city living in areas with a density of fifty dwelling units per street mile, providing any utility poles necessary for providing service to those areas having been cleared, or permission has been granted to the franchisee to clear said poles at least six months prior thereto.

(B)  Within six months after a franchise is granted pursuant to this chapter, a franchisee shall initiate and maintain a rate of physical construction sufficient to assure the completion of the system in accordance with this section.

(C)  Immediately upon the granting of a franchise, a franchisee shall undertake efforts to obtain the clearance of utility poles necessary for service, and shall diligently pursue such efforts. In the event a franchisee encounters any difficulties in obtaining such clearance, or permission for such clearance, it shall at all times keep the city engineer fully advised as to the status and nature of any and all problems. (Ord. 408 §1, 1980)

5-14-170  Foreclosures. Go to the top

Upon the foreclosure or other judicial sale of all or a substantial part of a permit holder's cable television system, or upon the termination of any lease covering all or a substantial part of a cable television system, unless by the franchisee's exercise of an option to purchase, the permit holder shall notify the city of such fact in writing. Such notification shall be deemed notification of a transfer, and unless city council authorizes such transfer in accordance with subsection 5-14-090(B), the franchise shall be revoked, provided, however, that the city may provide waivers by council action as necessary to permit or accommodate long-term financing by a franchisee. (Ord. 408 §1, 1980)

5-14-180  Receivership. Go to the top

The city council shall have the right to revoke a franchise 120 days after the appointment of a receiver, or trustee, for its cable television system, to take over and conduct the business of a franchisee, whether in receivership, reorganization, bankruptcy, or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:

(A)  Within 120 days after his or her election or appointment, such receiver or trustee shall have fully complied with all the provisions of this chapter and remedied all defaults hereunder; and

(B)  Such receiver or trustee, within said 120 days, shall have executed an agreement, duly approved by the court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this chapter. (Ord. 408 §1, 1980)

5-14-190  Other law. Go to the top

In the installation, operation, and maintenance of a cable television system, any franchisee shall comply with all applicable federal and state statutes and municipal ordinances now or hereafter adopted. (Ord. 408 §1, 1980)

5-14-200  Responsibility. Go to the top

Any franchisee shall receive signals and transmit the same at its sole risk and responsibility, and shall be fully responsible for the installation, operation, or maintenance of a cable television system within the city. A franchisee shall maintain good signal quality. (Ord. 408 §1, 1980)

5-14-210  Insurance. Go to the top

Any franchisee shall carry insurance to protect itself and the city from and against all claims, demands, actions, judgments, costs, expenses, and liabilities which may arise or result, directly or indirectly, from or by reason of any loss, injury, or damage arising out of or in connection with its installations, operations, or maintenance of a cable television or cable service system. The amounts of insurance shall not be less than $5,000,000.00 per occurrence and $5,000,000.00 general aggregate. This insurance shall be maintained in full force and effect at all times, and on the request of the city manager, copies of insurance policies shall be submitted to the city. A franchisee shall deliver certificates of such insurance to the city manager prior to the commencement of construction. (Ord. 408 §1, 1980; Ord. 1445 §11, 2000)

5-14-220  Penalties. Go to the top

For violation of any of the provisions of this chapter, penalties shall be assessed as provided in chapter 1-12, B.M.C. (Ord. 408 §1, 1980)


Chapter 5-20

Peddlers, Solicitors, and Itinerant Merchants

5-20-010  License; required; exceptions. Go to the top

It shall be unlawful for any peddler, solicitor, canvasser, transient merchant, itinerant merchant, or itinerant vendor, as defined in section 5-20-020 of this chapter, to engage in business within the corporate limits of the city without first obtaining a license therefor as provided in this chapter; except that the provisions of this chapter shall not apply to established delivery routes, persons calling by appointment, or businesses subject to the provisions of any other ordinances of the city. (Ord. 35 §1, 1963)

5-20-020  Definitions. Go to the top

(A)  Canvasser or solicitor means any individual, whether a resident of the city or not, traveling either by foot, wagon, automobile, motor truck, or any other type of conveyance, from place to place, from house to house, or from street to street, taking or attempting to take orders for sale of goods, wares, and merchandise, or anything of value, or personal property of any nature whatsoever, for future delivery, or for services to by furnished or performed in the future, whether or not such individual has carried or exposed for sale a sample of the subject of such sale, or whether he or she is collecting advance payments on such sales or not; provided that such definition shall include any person who, for himself or herself or for another person hires, leases, uses, or occupies any building, structure, tent, railroad boxcar, hotel room, lodginghouse, apartment, shop, or any other place within the city, for the sole purpose of exhibiting any samples and taking orders for future delivery.

(B)  Peddler, as used in this chapter, means any person, whether a resident of the city or not, traveling by foot, wagon, automotive vehicle, or any other type of conveyance, from place to place, from house to house, or from street to street, carrying, conveying, or transporting goods, wares, merchandise, or anything of value in the person's possession, offering and exposing the same for sale, or making sales and delivering articles to purchasers, or who, without traveling from place to place, sells or offers the same for sale from a wagon, automotive vehicle, railroad car, or other vehicle or conveyance. The word peddler includes the words hawker and huckster.

(C)  Person, as used in this chapter, includes the singular and plural, and means and includes any person, firm, or corporation, association, club, co-partnership or society, or any other organization.

(D)  For the purpose of this chapter transient merchant, itinerant merchant, or itinerant vendor means any person, whether as an owner, agent, consignee, or employee, whether a resident of the city or not, who engages in a temporary business of selling and delivering goods, wares, and merchandise within the city, and who, in furtherance of such purpose, hires, leases, uses, or occupies any public room in hotels, lodginghouses, apartments, shops, or any street, alley, or other place within the city, for the exhibition and sale of such goods, wares, and merchandise, either privately or at public auction. The person so engaged shall not be relieved from complying with the provisions of this chapter merely by reason of associating temporarily with any local dealer, trader, merchant, or auctioneer, or by conducting such transient business in connection with, as a part of, or in the name of any local dealer, trader, merchant, or auctioneer. (Ord. 35 §2, 1963)

5-20-030  License; application; contents. Go to the top

Applicants for a permit and license under this chapter must file with the city clerk a sworn application, at least ten days prior to the time desired, in writing and in duplicate, on a form to be furnished by the city clerk, which shall give the following information:

(A)  Name and description of the applicant;

(B)  Address, legal and local;

(C)  A brief description of the nature of the business and the goods to be sold, solicited, or delivered;

(D)  The length of time for which the right to do business is desired;

(E)  If a vehicle is to be used, a description of the same, together with the license number or other means of identification;

(F)  A statement as to whether or not the applicant has been convicted of any crime, misdemeanor, or violation of any municipal ordinance, the nature of the offense, and the punishment or penalty assessed therefor;

(G)  A brief statement of the nature and character of the advertising, or otherwise, shall be attached to the application as exhibits thereto;

(H)  Credentials from the person, firm, or corporation for which the applicant proposes to do business, authorizing the applicant to act as a representative;

(I)  At the time of filing the application, a fee of $5.00 shall be paid to the clerk to cover the cost of investigation of facts stated therein;

(J)  The fingerprints and photograph of the applicant shall be taken by the police department at the time of application, and the names of at least two reliable property owners of the city, who will certify as to the applicant's good character and business respectability; or, in lieu of the names of references, other available evidence as to good character and business responsibility; and

(K)  Such other reasonable information as to the identity or character of the person having the management or supervision of the applicant's business, or the method or plan of doing such business, as the city clerk may deem proper to fulfill the purpose of this chapter in the protection of the public good. (Ord. 35 §3, 1963)

5-20-040  Investigation; issuance or disapproval. Go to the top

(A)  Upon receipt of the application required in section 5-20-030, the application shall be referred to the chief of police, who shall cause an investigation to be made of each and every statement contained in the application, and shall cause such further investigation of the applicant's business and moral character to be made as he or she deems necessary for the protection of the public good.

(B)  If, as a result of such investigation, the chief of police finds that any statement of the application is false, or that the applicant's character or business responsibility is unsatisfactory, the chief of police shall endorse on the application his or her disapproval and his or her reasons for the same, and return the application to the city clerk, who shall notify the applicant that his or her application has been disapproved and that no permit will be issued. Conviction of a felony or any crime involving moral turpitude may be considered sufficient grounds for disapproval of the application.

(C)  If, as a result of such investigation, the character and business responsibility of the applicant are found to be satisfactory, the chief of police shall endorse on the application his or her approval, execute a license addressed to the applicant for the carrying on of the business applied for, and return the license, together with the application, to the city clerk, who shall deliver to the applicant his or her license. The license shall contain the signature and seal of the city clerk, and shall show the name and address of the permittee, the date of issuance and the length of time the license shall be operative, as well as the registration number and other identifying description of any vehicle used in such soliciting or canvassing. The clerk shall keep a permanent record of all licenses issued. (Ord. 35 §4, 1963)

5-20-050  Badge; issuance; contents; display required. Go to the top

The city clerk shall issue to each licensee, at the time of the delivery of his or her license, a badge for each individual licensed under this chapter. The badge shall have on it the words "Licensed Seller" or "Licensed Canvasser," the period for which the license is issued, and the number of the license, in letters or figures plainly discernable. Such badges shall be worn constantly by the licensee on the front of his or her hat or outer garment in such a way as to be conspicuous during such times as the licensee is engaged in the business for which he or she is licensed. (Ord. 35 §5, 1963)

5-20-060  License; exceptions; registration required. Go to the top

Upon proper showing to the satisfaction of the city clerk that the applicant is acting for or employed by a nonprofit person, association, or organization, or that the applicant suffers from a physical handicap and sells products in connection with a rehabilitation program, such applicant shall be exempted from all fees. However, all such persons shall register with the city clerk, and may receive approval and a complimentary license. (Ord. 35 §6, 1963)

5-20-070  License; deemed nontransferable. Go to the top

Every individual who is a peddler, canvasser, solicitor, transient merchant, itinerant merchant, or itinerant vendor, as defined in section 5-20-020, B.M.C., shall be required to make an individual application and secure a license, which shall be issued in the individual's name. Any license applied for by a firm, association, or corporation shall include the name of the individual who the represents the firm, association, or corporation in the city, and the individual's name shall appear on the application, badge, and license. No license shall be transferable or used by any other person. (Ord. 35 §7, 1963)

5-20-080  License; revocation. Go to the top

(A)  Licenses issued under the provisions of this chapter may be revoked by the municipal judge of the city, after notice and hearing, for any of the following causes:

(1)  Fraud, misrepresentation, or false statement contained in the application for license;

(2)  Fraud, misrepresentation, or false statement made in the course of carrying on the business;

(3)  Any violation of this chapter;

(4)  Conviction of any crime involving moral turpitude; or

(5)  Conduct of business in an unlawful manner, or in such manner as to constitute a breach of the peace, or to constitute a menace to the health, safety, or general welfare of the public.

(B)  Notice of the hearing for revocation of a license shall be given in writing, setting forth specifically the grounds of complaint and the time and place of hearing. Such notice shall be mailed, postage prepaid, to the licensee at his or her last known address at least five days prior to the date set for hearing. (Ord. 35 §8, 1963)

5-20-090  License; appeal. Go to the top

Authority as used in this section means the local licensing authority. Any person aggrieved by the action of the chief of police or the city clerk in the denial of an application for license, as provided in section 5-20-030, or in the decision with reference to the revocation of a license, as provided in section 5-20-080, shall have the right to appeal to the authority. Such appeal shall be taken by filing with the authority, within ten days after such denial or revocation, a written statement setting forth fully the grounds for the appeal. The authority shall set a time and place for a hearing on such appeal, and notice of the hearing shall be given to the applicant in the same manner as is provided in section 5-20-080, B.M.C. for notice of hearing on revocation. The decision and order of the authority on such appeal shall be final and conclusive. (Ord. 35 §9, 1963; Ord. 1770 §1, 2004)

5-20-100  License; expiration. Go to the top

Licenses shall expire on the date specified in the license. (Ord. 35 §10, 1963)

5-20-110  License; fee. Go to the top

A license fee in the sum of $10.00 per year shall be charged and collected prior to the issuance of a license, as required by this chapter. (Ord. 35 §11, 1963)

5-20-120  Police; enforcement. Go to the top

It shall be the duty of every police officer of the city to require any person required to have a license, as provided in this chapter, and who is known by such officer not to be duly licensed, to produce his or her license. Every police officer of the city shall enforce the provisions of this chapter against any person found to be violating the same. (Ord. 35 §12, 1963)

5-20-130  Violation; recordkeeping. Go to the top

The chief of police shall report to the city clerk all convictions for violation of this chapter, and the city clerk shall maintain a record for each license issued and record the reports of violations therein. (Ord. 35 §13, 1963)

5-20-140  Trespassing; notice; violation. Go to the top

Every resident of the city shall have the right to post a notice or notices on his or her property to the effect that peddlers, canvassers, solicitors, and itinerant merchants shall not go in or upon said premises, or solicit or attempt to solicit orders or sales from the occupant thereof. Any peddler, solicitor, canvasser, transient merchant, itinerant merchant, or itinerant vendor, as defined in section 5-20-020, B.M.C., who violates the provisions of such notice, shall be deemed guilty of a misdemeanor, and on conviction thereof, shall be subject to a fine of not less than $10.00 nor more than $100.00. (Ord. 35 §14, 1963; Ord. 1013 §1, 1993; Ord 1103 §1, 1995; Ord. 1196 §18, 1996; Ord. 1568 §17, 2001)

5-20-150  Civil action; city rights designated. Go to the top

The city may, at its option, proceed by injunction, abatement, suit for collection, or any other legal action which it may deem advisable for the enforcement of this chapter and collection of the taxes provided for herein; provided that such election shall not in any way be deemed a waiver of or release of any person from the penalties provided for in this chapter. Conviction of a violation of this chapter shall not preclude the city from proceeding with any other legal action that it may deem advisable. (Ord. 35 §15, 1963)

5-20-160  Penalty for violation. Go to the top

Any person who willfully fails to comply with any of the provisions of this chapter, or any section herein, shall be deemed guilty of a misdemeanor and, upon conviction, shall be punishable as provided in chapter 1-12, B.M.C. (Ord. 35 §16, 1963)


Chapter 5-24

Residential Route Deliveries Tax

5-24-010  Person defined. Go to the top

Person, as used in this chapter, means domestic and foreign corporations, associations, syndicates, joint stock companies, firms, partnerships of every kind, trusts, societies, and individuals. (Ord. 12 Art. 1 §1, 1963)

5-24-020  Purpose. Go to the top

The object of the tax levied by this chapter is to defray the expenses of the city in maintaining the health, safety, morals, streets, and general welfare of the city. (Ord. 12 Art. 1 §6, 1963)

5-24-030  Levied; businesses subject to tax; payment and compliance required. Go to the top

A residential route deliveries tax is levied and assessed upon each and every person who exercises the privilege of carrying on or engaging in a business which maintains in the city a regularly established route. Such tax shall constitute a tax on the privilege of carrying on or engaging in any route-vehicle business for each twelve-month period, commencing on the effective date of the ordinance codified in this chapter. It shall be unlawful for any person to carry on or engage in any route-vehicle business within the city without having first paid the tax therefor, as provided in this chapter, and without having fully complied with all of the terms of this chapter. (Ord. 12 Art. 1 §2, 1963)

5-24-040  Levied; amount; exceptions. Go to the top

A tax is levied and assessed upon each retail business which maintains in the city a regularly established milk route, bread route, or other similar type of business selling or delivering goods or service, or both, except regular newspaper delivery routes. The tax shall be computed and paid on the basis of delivery vehicles used within the city. The first route vehicle operated within the city limits by any person is hereby taxed at $50.00 per year, and each additional vehicle shall be taxed at $25.00 a year. (Ord. 12 Art. 1 §3, 1963)

5-24-050  Payment; due date; license sticker issuance; display. Go to the top

All route businesses licensed under this chapter shall separately pay the tax to the city clerk on or before April 1, 1963, and on or before April 1 of each year thereafter. The city clerk shall issue a receipt for payment and shall deliver to the taxpayer a suitable license sticker to be placed in a conspicuous place on the route vehicle by the taxpayer, and shall at all times be displayed thereon. The cost of the sticker, not to exceed $1.00 per sticker, shall be collected by the clerk in addition to the tax. No certificate showing payment of the business occupation tax under the provisions of this chapter shall in any manner be assignable or transferable. (Ord. 12 Art. 1 §4, 1963)

5-24-060  Refund when. Go to the top

There shall be no refund of any tax paid under this chapter unless the city clerk shall determine that the tax or amount thereof was paid by mistake. (Ord. 12 Art. 1 §5, 1963)

5-24-070  Civil action; not deemed waiver of penalty. Go to the top

The city may, at its option, proceed by injunction, abatement, suit for collection, or any other legal action which it may deem advisable for the enforcement of this chapter and collection of the taxes provided for in this chapter; provided that such election shall not in any way be deemed a waiver of or release of any person from the penalties provided for in this chapter. Conviction of a violation of this chapter shall not preclude the city from proceeding with any other legal action that it may deem advisable. (Ord. 12 Art. 2 §1, 1963)

5-24-080  Penalty for violation. Go to the top

Any person who willfully fails to comply with any of the provisions of this chapter, or any sections of this chapter, shall be deemed guilty of a misdemeanor and, upon conviction, shall be punishable as provided in chapter 1-12, B.M.C. (Ord. 12 Art. 2 §2, 1963)


Chapter 5-28

Alcoholic Liquor

5-28-010  Short title. Go to the top

This chapter is known and may be cited as the "Broomfield Liquor Code." Reference to the Broomfield liquor code and the applicable section or sections thereof shall be sufficient when citing the provisions of this chapter in any legal document, including, but not limited to, summons, subpoena, pleading, summons and complaint, and memorandum. (Ord. 884 §1, 1990; Ord. 1013 §1, 1993)

5-28-020  Legislative declaration. Go to the top

The city council declares that the purpose of this chapter is to provide for the regulation, control, and licensing of the sale at retail of malt, vinous, and spirituous liquors within the city, and that such matters are in the interest of and are those in which the city has responsibility for the public health, safety, and welfare. (Ord. 884 §1, 1990)

5-28-030  Definitions. Go to the top

(A)  As used in this chapter, unless the context clearly requires otherwise, the following words and terms shall have the meanings set forth in this section:

(1)  Applicant means and includes:

a.  If an individual, that person making an application for a license under this chapter;

b.  If a partnership, all the partners of the partnership which is making application for a license under this chapter; or

c.  If a corporation, the president, vice president, secretary, treasurer, the directors, manager, and each stockholder owning more than 5% of the stock of the corporation making an application under this chapter.

(2)  City clerk means the city clerk of the city, or the clerk's designee.

(3)  City manager means the city manager of the city, or the manager's designee.

(4)  Investigator means the liquor license investigator, as set forth in section 5-28-080, B.M.C.

(5)  Manager includes that person or those persons who manage, direct, supervise, oversee, and administer the transactions and acts of servants of the establishments governed by this chapter.

(6)  Outdoor sports and recreational facility means a golf course, provided that a fee is charged for use of the golf course.

(B)  Other definitions not specifically enumerated in this section shall be as defined, as applicable, in the Colorado Liquor Code and in chapter 1-04 of this code. (Ord. 884 §1, 1990)

5-28-040  License required. Go to the top

Within the city, it is unlawful for any person to sell or to possess for sale any malt, vinous, or spirituous liquors unless licensed to do so, as provided for by both this chapter and the applicable provisions of Title 12, Articles 47 and 48, C.R.S., and unless the license required is in full force and effect, and all applicable fees and taxes have been paid in full. (Ord. 884 §1, 1990)

5-28-050  Local licensing authority; established; powers. Go to the top

(A)  There is established a local licensing authority, sometimes referred to as the "licensing authority" or as the "authority," which shall have and is vested with the authority to grant or to refuse for cause licenses for the sale at retail of malt, vinous, or spirituous liquors; to conduct investigations; and to suspend or revoke such licenses for cause. The local licensing authority shall have all the powers provided in this chapter, and shall have all the powers of the local licensing authority, as set forth in Title 12, Articles 47 and 48, C.R.S., and the regulations promulgated thereunder.

(B)  The authority shall consist of the mayor pro tem of the city, one other member of the city council selected by the entire city council, and three other residents of the city selected by the entire council. Authority members shall continue to serve after the expiration date of their term of office until a successor is duly qualified and appointed by the city council. The council may also select alternate members: one alternate city council member, and one alternate other city resident. If the regular city council member or regular other city resident member is absent from any meeting of the authority, the respective council member or other city resident alternate may serve in such member's place with all the powers and duties of the absent member.

(C)  The member of the city council shall serve a term of two years, which runs from the council meeting after each general municipal election until the council meeting after the next general municipal election.

(D)  The mayor pro tem shall serve a term of two years, coinciding with his or her term as mayor pro tem.

(E)  The three other residents of the city shall serve terms of two years each. Effective November 1, 2007, terms of the resident members then in office shall be extended three months so that all terms expire on the 31st of March of the following year and all subsequent terms of all members shall begin on April 1st and end on March 31st.

(F)  Members of the local licensing authority serve at the pleasure of the city council, and may be removed for just cause by a majority vote of the entire city council.

(G)  When any vacancy occurs on the authority for any reason, the city council shall select a city council member or city resident to complete the unexpired term.

(H)  No person shall serve or continue to serve as a member or alternate of the authority who has or obtains any financial interest in the operation of any business required to be issued a license pursuant to this chapter, or who has a member of his or her immediate family who has or obtains such an interest.

(I)  The authority shall, at the first meeting of each year, elect one of its members to serve as chairperson and one of its members to serve as vice chairperson.

(J)  A quorum shall consist of three members. In the absence of a quorum, a lesser number may adjourn any meeting or hearing to a later date or time. In the absence of all members, the city clerk may adjourn any meeting for not longer than one week.

(K)  A decision of the majority of the members of the authority present and voting shall control. (Ord. 884 §1, 1990; Ord. 1215 §1, 1997; Ord. 1302 §7, 1998; Ord. 1386 §3, 1998; Ord. 1882 §10, 2007)

5-28-060  Licensing authority; rule and regulation promulgation. Go to the top

The licensing authority may promulgate procedural rules and regulations for carrying out the provisions of this chapter; provided that the same are not in conflict with the Colorado Liquor Code, and the regulations promulgated thereunder, or any other provision in this chapter. (Ord. 884 §1, 1990)

5-28-070  City clerk; powers and duties. Go to the top

The city clerk shall receive all applications for licenses and permits and, upon receipt of full payment of such fees as are required by state law and by this chapter, shall issue all licenses and permits granted by the authority. The city clerk shall serve as the official secretary of the authority, and shall provide or cause to be provided the necessary secretarial and reporting services for the authority. The city clerk shall attend all meetings of the authority. All public notices required by this chapter and by the Colorado Liquor Code, as amended, and the regulations promulgated thereunder, shall be accomplished by the city clerk. (Ord. 884 §1, 1990; Ord. 1716 §1, 2003)

5-28-080  Investigator; powers and duties. Go to the top

Such person as the city manager designates shall be the liquor license investigator, who shall perform the investigative duties set forth in this chapter and such other duties as the authority may reasonably direct. (Ord. 884 §1, 1990)

5-28-090  Application for new license or permit; generally. Go to the top

(A)  All applications for new licenses and permits for the sale or serving of alcoholic liquors shall be on forms provided by the state licensing authority and may be obtained from and shall be filed with the city clerk. Each application shall be accompanied by such further information as may reasonably be required by the state or local licensing authority.

(B)  The city clerk shall cause the completed application to be placed on the agenda of the authority at a meeting to be held not less than seven nor more than forty days after the clerk has received the completed application.

(C)  The following persons shall be in attendance at the meeting at which the application is presented to the licensing authority:

(1)  If the applicant is an individual, that individual;

(2)  If the applicant is a partnership, any partner;

(3)  If the applicant is a corporation, any officer of the corporation; or

(4)  Counsel for the applicant.

(D)  The authority shall set the boundaries of the neighborhood considered affected by the proposed location. The applicant shall have the opportunity at this time to give any evidence as to the propriety of any proposed boundary or boundaries, and to give any objections thereto.

(E)  The licensing authority shall also set a date for public hearing on the application, which date shall be not less than thirty days from the date of the meeting at which the application is presented.

(F)  The following persons shall be in attendance at the public hearing on the application:

(1)  If the applicant is an individual, that individual;

(2)  If the applicant is a partnership, any partner;

(3)  If the applicant is a corporation, the president of the corporation, or the president's authorized representative; and

(4)  Irrespective of the identity of the applicant, the manager of the proposed establishment.

(G)  The authority may require the attendance of such other person or persons as it deems necessary or desirable and may, at its discretion, waive attendance by any one or more of the designated persons. (Ord. 884 §1, 1990; Ord. 1716 §2, 2003)

5-28-100  Application for new license or bed and breakfast permit; investigation, fingerprinting of applicant. Go to the top

(A)  Prior to the acceptance of applications for a new license, transfer of ownership, change of corporate structure, or bed and breakfast permit, the following individuals shall present themselves to the police department to be fingerprinted and shall pay the costs thereof:

(1)  If the applicant is a natural person, that person;

(2)  If the applicant is a partnership, all of the partners;

(3)  If the applicant is a corporation, both the officers and directors, together with any person owning more than 5% of the stock thereof; and

(4)  Irrespective of the identity of the applicant, the manager of the proposed establishment.

(B)  The police department shall make character and background investigations of the above-named individuals; and, for this purpose, such individuals shall provide all information necessary for the investigation.

(1)  Where a partner or a corporation officer, director, or stockholder lives at such a distance from the city that travel would impose undue expense or inconvenience, the police chief shall have the discretion to make other suitable arrangements in order to obtain the necessary fingerprints and information.

(2)  Where a character and background investigation has been previously made of any individuals enumerated in this section, either by the police department or another law enforcement agency or the state liquor authority within the twelve-month period previous to the date of the license application, the police chief shall have the discretion to employ such investigation, and may waive the fingerprinting required by this section.

(C)  The investigator shall acquire such information, either upon direction of the authority or on his or her own initiative, as necessary to properly carry out the provisions of Title 12, Articles 47 and 48, C.R.S., the regulations promulgated thereunder, the ordinances of the city, and the rules and regulations of the authority. (Ord. 884 §1, 1990; Ord. 1716 §3, 2003)

5-28-110  Hotel and restaurant license; optional premises. Go to the top

(A)  The local licensing authority may issue a hotel and restaurant license which includes optional premises upon which the licensee may sell and serve alcoholic beverages, provided that the optional premises are located upon an outdoor recreation facility which is located on or adjacent to the hotel and restaurant, and provided further that the requirements set forth in this chapter and the Colorado Liquor Code and the regulations promulgated thereunder, as amended, have been satisfied.

(B)  Application for optional premises shall be made to the city clerk and shall include the following information:

(1)  A detailed diagram or map of the outdoor sports and recreational facility indicating:

a.  The location and boundaries of the outdoor sports and recreational facility;

b.  The location of all proposed optional premises; and

c.  The location of all bars located within the optional premises.

(2)  A written description of the provisions which have been made for storing alcoholic beverages in a secured area on or off the optional premises for the future use on the optional premises.

(3)  A written description of the provisions which have been made for the operation and control of the optional premises.

(4)  Such other information as may reasonably be required by the local licensing authority and state licensing authority.

(C)  The number of optional premises that any one licensee may have on an outdoor sports and recreational facility shall be restricted by the local licensing authority as necessary to ensure the control of the premises and the ease of enforcement of all laws applicable to the sale and service of alcoholic beverages.

(D)  No alcoholic beverages may be served on the optional premises until the licensee has provided written notice to the state and local licensing authorities in accordance with Section 12-14-135(6), C.R.S. (Ord. 884 §1, 1990; Ord. 1400 §1, 1999)

5-28-120  Application fees. Go to the top

(A)  The following application fees shall be paid to the city clerk at the time the application is submitted:

Application Fee
New license $500.00
Transfer or change in location or ownership of existing license $500.00
Change in corporate structure $100.00
Modification of premises (including registration of optional premises) $50.00
Renewal of existing license $50.00
Registration or change of manager, hotel and restaurant and tavern licenses only $75.00
Special events permits $25.00
Bed and breakfast permit $25.00
Tastings permit $100.00

(B)  Application fees enumerated in this section shall be paid to the city to help defray actual and necessary expenses incurred by the city in conducting the processing, investigations, surveys, publishing and posting requirements, and public hearing related to the application. (Ord. 884 §1, 1990; Ord. 1323 §1, 1998; Ord. 1716 §4, 2003, Ord. 1774 §1, 2004)

5-28-130  Collection of fees generally. Go to the top

In addition to any other remedy provided by this chapter, the city shall have the right to recover all sums due and owing hereunder by any civil remedy available at law. (Ord. 884 §1, 1990)

5-28-140  License renewal. Go to the top

(A)  All renewal applications for malt, vinous, and spirituous liquor licenses shall be submitted to the city clerk on the prescribed forms no later than forty-five days prior to the date on which the license expires, except that the authority, for good cause, may waive the time requirement set forth in this subsection. The forms shall be accompanied by all the required fees and such additional materials as the authority deems necessary to carry out the provisions of the Colorado Liquor Code, as amended, this chapter, and all applicable regulations.

(B)  No renewal application shall be accepted by the city clerk which is not complete in every detail. Any application mailed to or deposited with the city clerk, which, upon examination is found to have some omission or error, shall be returned to the applicant for completion or correction without any action on the part of the city clerk or the authority.

(C)  The following persons, unless waived by the authority, shall be in attendance at the meeting at which the completed application is considered:

(1)  If the applicant is an individual, that individual;

(2)  If the applicant is a partnership, any partner;

(3)  If the applicant is a corporation, any officer of the corporation;

(4)  The manager of the establishment; or

(5)  Counsel for the applicant.

(D)  Should the authority determine a hearing is required, such hearing shall be held in accordance with the procedures provided in the Colorado Liquor Code, and the regulations promulgated thereunder. (Ord. 884 §1, 1990)

5-28-150  Change of manager. Go to the top

Within thirty days after a change in the manager of the establishment, such new manager shall report to the police department, as provided in section 5-28-100, B.M.C., for fingerprinting and character and background investigation. (Ord. 884 §1, 1990)

5-28-160  Special event permit. Go to the top

The liquor licensing authority shall establish a procedure to issue special event permits for sale by the drink only of malt, spirituous, or vinous liquors, as set forth in Title 12, article 48, C.R.S., and the regulations promulgated thereunder. (Ord. 884 §1, 1990)

5-28-170  Hearing; procedure. Go to the top

The licensing authority shall establish procedures for all of its public hearings in conformity with the laws of the state and the ordinances and resolutions of the city. (Ord. 884 §1, 1990)

5-28-180  Hearing; authority. Go to the top

The licensing authority shall have the power to administer oaths and issue subpoenas to require the presence of persons and the production of papers, books, and records necessary to the determination of any hearing which the licensing authority is authorized to conduct. It is unlawful for any person to fail to comply with any subpoena issued by the authority in the proper conduct of its hearings. The municipal court of the city shall enforce the subpoenas of the licensing authority and, upon good cause shown, shall enter its orders compelling witnesses to attend and testify or produce books, records, or other evidence, and shall impose penalties of punishment for contempt in case of failure to comply with such orders. (Ord. 884 §1, 1990)

5-28-190  License suspension, alternate penalty; adoption. Go to the top

The optional procedures set forth in the Colorado Liquor Code, Sections 12-47-601(3) to (6), C.R.S., are hereby accepted and adopted. (Ord. 884 §1, 1990; Ord. 1545 §4, 2001)

5-28-200  License display required. Go to the top

Once issued, the license shall be displayed in a prominent location in the vicinity of the bar of the establishment. (Ord. 884 §1, 1990)

5-28-210  Warning sign to be displayed. Go to the top

Each licensee shall post and keep visible at all times to the public in a conspicuous place on the licensed premises a sign furnished by the city clerk that reads as follows:

WARNING! BROOMFIELD POLICE MUST
BE NOTIFIED OF ALL DISTURBANCES IN
THIS ESTABLISHMENT AND OF ALL
DISTURBANCES ON THE GROUNDS THAT ARE
A PART OF THE ESTABLISHMENT.
SECTION 5-28-210,
BROOMFIELD MUNICIPAL CODE.

(Ord. 944 §2, 1992)

5-28-220  Bed and breakfast permit. Go to the top

The liquor licensing authority shall establish a procedure to issue bed and breakfast permits for serving malt, spirituous, or vinous liquors as set forth in Title 12, Article 47, C.R.S., and the regulations promulgated thereunder. (Ord. 1716 §5, 2003)

5-28-230  Tastings. Go to the top

(A)  Definitions. As used in this section, unless the context clearly requires otherwise, the following word and term shall have the meaning set forth in this section: Tastings means the sampling of malt, vinous, or spirituous liquors that may occur on the premises of a retail liquor store licensee or liquor-licensed drugstore licensee by adult patrons of the licensee pursuant to the provisions of section 5-28-230, B.M.C.

(B)  Permitting in general.

(1)  The city hereby authorizes tastings to be conducted by retail liquor store or liquor-licensed drugstore licensees in accordance with this section and pursuant to Section 12-47-301, C.R.S. Within the city, it is unlawful for any person or licensee to conduct tastings unless a permit has been obtained in accordance with this section. The local licensing authority is authorized to issue tasting permits in accordance with the requirement of this section.

(2)  A retail liquor store or liquor-licensed drugstore licensee that wishes to conduct tastings shall submit an application for a tastings permit to the local licensing authority. The local licensing authority may reject the application if the applicant fails to establish that the licensee is able to conduct tastings without violating the provisions of this section or creating a public safety risk to the neighborhood. The local licensing authority shall establish the application procedure.

(3)  Tastings shall be subject to the following limitations:

a.  Tastings shall be conducted only by a person who has completed a server training program that meets the standards established by the Liquor Enforcement Division of the Colorado Department of Revenue and who is either a retail liquor store licensee or a liquor-licensed drugstore licensee, or an employee of a licensee, and only on a licensee's licensed premises.

b.  The alcohol used in tastings shall be purchased through a licensed wholesaler, licensed brew pub, or winery licensed pursuant to this section in accordance with Section 12-47-301, C.R.S.

c.  The size of an individual alcohol sample shall not exceed one ounce of malt or vinous liquor or one-half of one ounce of spirituous liquor.

d.  Tastings shall not exceed a total of five consecutive hours in duration per day.

e.  Tastings shall be conducted only during the operating hours in which the licensee on whose premises the tastings occur is permitted to sell alcohol beverages, and in no case earlier than 11:00 a.m. or later than 7:00 p.m.

f.  The licensee shall prohibit patrons from leaving the licensed premises with an unconsumed sample.

g.  The licensee shall promptly remove all open and unconsumed alcohol beverage samples from the licensed premises or shall destroy the samples immediately following the completion of the tasting.

h.  The licensee shall not serve a person who is under twenty-one years of age or who is visibly intoxicated.

i.  The licensee shall not serve more than four individual samples to a patron during a tasting.

j.  Alcohol samples shall be in open containers and shall be provided to a patron free of charge.

k.  Tastings may occur on no more than four of the six days from a Monday to the following Saturday, not to exceed 104 days per year.

l.  No manufacturer of spirituous or vinous liquors shall induce a licensee through free goods or financial or in-kind assistance to favor the manufacturer's products being sampled at a tasting. The licensee shall bear the financial and all other responsibility for a tasting.

m.  The applicant for a tastings permit shall certify on the application that all persons serving alcohol at tastings have completed the Broomfield Police Department server training program that meets the standards established by the Liquor Enforcement Division of the Colorado Department of Revenue. The applicant for a tastings permit shall state on the application the days and times that tastings will occur. The applicant shall give at least twenty-four hours' prior notice to the Broomfield Police Department of any deviations in the tastings schedule as set forth in the application.

(4)  A violation of a limitation specified in this section or of Section 12-47-801, C.R.S., by a retail liquor store or liquor-licensed drugstore licensee, whether by his or her employees, agents, or otherwise, shall be the responsibility of the retail liquor store or liquor-licensed drugstore licensee who is conducting the tasting.

(5)  A retail liquor store or liquor-licensed drugstore licensee conducting a tasting shall be subject to the same revocation, suspension, and enforcement provisions as otherwise apply to the licensee and are imposed by the local licensing authority. The local licensing authority shall conduct a hearing with regard to any violations of this section in accordance with the requirements of chapter 5-28, B.M.C., and Section 12-47-601, C.R.S. (Ord. 1774 §2, 2004)


Chapter 5-32

Fermented Malt Beverages

5-32-010  Short title. Go to the top

This chapter is known and may be cited as the "Broomfield Beer Code." Reference to the Broomfield beer code and the applicable section or sections thereof shall be sufficient when citing the provisions of this chapter in any legal document, including, but not limited to, summons, subpoena, pleading, summons and complaint, and memorandum. (Ord. 885 §1, 1990)

5-32-020  Legislative declaration. Go to the top

The city council declares that the purpose of this chapter is to provide for the regulation, control, and licensing of the sale at retail of 3.2% fermented malt beverages within the city, and that such matters are in the interest of and are those in which the city has responsibility for the public health, safety, and welfare. (Ord. 885 §1, 1990)

5-32-030  Definitions. Go to the top

(A)  As used in this chapter, unless the context clearly requires otherwise, the following words and terms shall have the meanings set forth in this section:

(1)  Applicant means and includes:

a.  If an individual, that person making an application for a license under this chapter;

b.  If a partnership, all the partners of the partnership which is making application for a license under this chapter; or

c.  If a corporation, the president, vice president, secretary, treasurer, the directors, manager, and each stockholder owning more than 5% of the stock of the corporation making an application under this chapter.

(2)  City clerk means the city clerk of the city, or the clerk's designee.

(3)  City manager means the city manager of the city, or the manager's designee.

(4)  Investigator means the beer license investigator, as set forth in section 5-32-080.

(5)  Manager includes that person or those persons who manage, direct, supervise, oversee, and administer the transactions and acts of servants of the establishments governed by this chapter.

(B)  Other definitions not specifically enumerated in this section shall be as defined, as applicable, in the Colorado Beer Code and in chapter 1-04 of this code. (Ord. 885 §1, 1990)

5-32-040  License required. Go to the top

Within the city, it is unlawful for any person to sell or to possess for sale any fermented malt beverage unless licensed to do so, as provided for by both this chapter and the applicable provisions of Title 12, Articles 46 and 48, C.R.S., and unless the license required is in full force and effect, and all applicable fees and taxes have been paid in full. (Ord. 885 §1, 1990)

5-32-050  Local licensing authority; established; powers. Go to the top

(A)  There is established a local licensing authority, sometimes referred to as the licensing authority or as the authority, which shall have and is vested with the authority to grant or refuse for cause licenses for the sale at retail of fermented malt beverages; to conduct investigations; and to suspend or revoke such licenses for cause. The local licensing authority shall have all the powers provided in this chapter, and shall have all the powers of the local licensing authority, as set forth in Title 12, Articles 46 and 48, C.R.S., and the regulations promulgated thereunder.

(B)  The authority shall consist of the mayor pro tem of the city, one other member of the city council selected by the entire city council, and three other residents of the city selected by the entire council. Authority members shall continue to serve after the expiration date of their term of office until a successor is duly qualified and appointed by the city council. The council may also select alternate members: one alternate city council member; and one alternate other city resident. If the regular city council member or regular other city resident member is absent from any meeting of the authority, the respective council member or other city resident alternate may serve in such member's place with all the powers and duties of the absent member.

(C)  The member of the city council shall serve a term of two years, which runs from the council meeting after each general municipal election until the council meeting after the next general municipal election.

(D)  The mayor pro tem shall serve a term of two years, coinciding with his or her term as mayor pro tem.

(E)  The three other residents of the city shall serve terms of two years each. Effective November 1, 2007, terms of the resident members then in office shall be extended three months so that all terms expire on the 31st of March of the following year and all subsequent terms of all members shall begin on April 1st and end on March 31st.

(F)  Members of the local licensing authority serve at the pleasure of the city council, and may be removed for just cause by a majority vote of the entire city council.

(G)  When any vacancy occurs on the authority for any reason, the city council shall select a city council member or city resident to complete the unexpired term.

(H)  No person shall serve or continue to serve as a member or alternate of the authority who has or obtains any financial interest in the operation of any business required to be issued a license pursuant to this chapter, or who has a member of his or her immediate family who has or obtains such an interest.

(I)  The authority shall, at the first meeting of each year, elect one of its members to serve as chairperson and one of its members to serve as vice chairperson.

(J)  A quorum shall consist of three members. In the absence of a quorum, a lesser number may adjourn any meeting or hearing to a later date or time. In the absence of all members, the city clerk may adjourn any meeting for not longer than one week.

(K)  A decision of the majority of the members of the authority present and voting shall control. (Ord. 885 §1, 1990; Ord. 1215 §2, 1997; Ord. 1302 §8, 1998; Ord. 1386 §4, 1998; Ord. 1882 §10, 2007)

5-32-060  Licensing authority; rule and regulation promulgation. Go to the top

The licensing authority may promulgate procedural rules and regulations for carrying out the provisions of this chapter; provided that the same are not in conflict with the Colorado Beer Code, as amended, and the regulations promulgated thereunder, or any other provision in this chapter. (Ord. 885 §1, 1990)

5-32-070  City clerk; powers and duties. Go to the top

The city clerk shall receive all applications for licenses and, upon receipt of full payment of such fees as are required by state law and by this chapter, shall issue all licenses granted by the authority. The city clerk shall serve as the official secretary of the authority, and shall provide or cause to be provided the necessary secretarial and reporting services for the authority. The city clerk shall attend all meetings of the authority. All public notices required by this chapter and by the Colorado Beer Code, as amended, and the regulations promulgated thereunder, shall be accomplished by the city clerk. (Ord. 885 §1, 1990)

5-32-080  Investigator; powers and duties. Go to the top

Such person as the city manager designates shall be the beer license investigator, who shall perform the investigative duties set forth in this chapter and such other duties as the authority may reasonably direct. (Ord. 885 §1, 1990)

5-32-090  Application for new license; generally. Go to the top

(A)  All applications for new licenses for the sale of fermented malt beverages shall be on forms provided by the state licensing authority and may be obtained from and shall be filed with the city clerk. Each application shall be accompanied by such further information as may reasonably be required by the state or local licensing authority.

(B)  The city clerk shall cause the completed application to be placed on the agenda of the authority at a meeting to be held not less than seven nor more than forty days after the clerk has received the completed application.

(C)  The following persons shall be in attendance at the meeting at which the application is presented to the licensing authority:

(1)  If the applicant is an individual, that individual;

(2)  If the applicant is a partnership, any partner;

(3)  If the applicant is a corporation, any officer of the corporation; or

(4)  Counsel for the applicant.

(D)  The authority shall set the boundaries of the neighborhood considered affected by the proposed location. The applicant shall have the opportunity at this time to give any evidence as to the propriety of any proposed boundary or boundaries, and to give any objections thereto.

(E)  The licensing authority shall also set a date for public hearing on the application, which date shall be not less than thirty days from the date of the meeting at which the application is presented.

(F)  The following persons shall be in attendance at the public hearing on the application:

(1)  If the applicant is an individual, that individual;

(2)  If the applicant is a partnership, any partner;

(3)  If the applicant is a corporation, the president of the corporation or the president's authorized representative; and

(4)  Irrespective of the identity of the applicant, the manager of the proposed establishment.

(G)  The authority may require the attendance of such other person or persons as it deems necessary or desirable and may, at its discretion, waive attendance by any one or more of the designated persons. (Ord. 885 §1, 1990)

5-32-100  Application for new license; investigation, fingerprinting of applicant. Go to the top

(A)  Prior to the acceptance of applications for a new license, transfer of ownership, or change of corporate structure, the following individuals shall present themselves to the police department to be fingerprinted and shall pay the costs thereof:

(1)  If the applicant is a natural person, that person;

(2)  If the applicant is a partnership, all of the partners;

(3)  If the applicant is a corporation, both the officers and directors, together with any person owning more than 5% of the stock thereof; and

(4)  Irrespective of the identity of the applicant, the manager of the proposed establishment.

(B)  The police department shall make character and background investigations of the above-named individuals; and, for this purpose, such individuals shall provide all information necessary for the investigation.

(1)  Where a partner or a corporation officer, director, or stockholder lives at such a distance from the city that travel would impose undue expense or inconvenience, the police chief shall have the discretion to make other suitable arrangements in order to obtain the necessary fingerprints and information.

(2)  Where a character and background investigation has been previously made of any individuals enumerated in this section, either by the police department or another law enforcement agency or the state licensing authority within the twelve-month period previous to the date of the license application, the police chief shall have the discretion to employ such investigation, and may waive the fingerprinting required by this section.

(C)  The investigator shall acquire such information, either upon direction of the authority or on his or her own initiative, as necessary to properly carry out the provisions of Title 12, Articles 46 and 48, C.R.S., the regulations promulgated thereunder, the ordinances of the city, and the rules and regulations of the authority. (Ord. 885 §1, 1990)

5-32-110  Licenses; distance restrictions. Go to the top

(A)  No license provided for by this chapter shall be issued if the building in which 3.2% fermented malt beverage is to be sold is located within 500 feet of any public or parochial school; except that this provision shall not affect the renewal or reissuance of a license once granted or apply to licensed premises located or to be located on land owned by the city, or apply to a 3.2% fermented malt beverage license in effect and actively doing business before the school was constructed.

(B)  The distance shall be computed by direct measurement from the nearest property line of the land used for school purposes to the nearest portion of the building in which 3.2% fermented malt beverage is to be sold, using a route of direct pedestrian access, measured as a person would walk safely and properly without trespassing, with right angles at crossings and with the observation of traffic regulations and lights. (Ord. 885 §1, 1990)

5-32-120  Application fees. Go to the top

(A)  The following application fees shall be paid to the city clerk at the time the application is submitted:

Application Fee
New license $500.00
Transfer or change in location or ownership of existing license $500.00
Change in corporate structure $100.00
Modification of premises $50.00
Renewal of existing license $50.00
Registration or change of manager, hotel and restaurant licenses only $75.00
Special events permits $25.00

(B)  Application fees enumerated in this section shall be paid to the city to help to defray actual and necessary expenses incurred by the city in conducting the processing, investigations, surveys, publishing and posting requirements, and public hearing related to the application. (Ord. 885 §1, 1990; Ord. 1323 §2, 1998)

5-32-130  Collections of fees generally. Go to the top

In addition to any other remedy provided by this chapter, the city shall have the right to recover all sums due and owing hereunder by any civil remedy available at law. (Ord. 885 §1, 1990)

5-32-140  License renewal. Go to the top

(A)  All renewal applications for 3.2% beer licenses shall be submitted to the city clerk on the prescribed forms no later than forty-five days prior to the date on which the license expires, except that the authority, for good cause, may waive the time requirement set forth in this subsection. The forms shall be accompanied by all the required fees and such additional materials as the authority deems necessary to carry out the provisions of the Colorado Beer Code, this chapter, and all applicable regulations.

(B)  No renewal application shall be accepted by the city clerk which is not complete in every detail. Any application mailed to or deposited with the city clerk, which, upon examination, is found to have some omission or error, shall be returned to the applicant for completion or correction without any action on the part of the city clerk or the authority.

(C)  The following persons, unless waived by the authority, shall be in attendance at the meeting at which the completed application is considered:

(1)  If the applicant is an individual, that individual;

(2)  If the applicant is a partnership, any partner;

(3)  If the applicant is a corporation, any officer of the corporation;

(4)  The manager of the establishment; or

(5)  Counsel for the applicant.

(D)  Should the authority determine a hearing is required, such hearing shall be held in accordance with the procedures provided in the Colorado Beer Code, and the regulations promulgated thereunder. (Ord. 885 §1, 1990)

5-32-150  Change of manager. Go to the top

Within thirty days after a change in the manager of the establishment, such new manager shall report to the police department, as provided in section 5-32-100, for fingerprinting and character and background investigation. (Ord. 885 §1, 1990)

5-32-160  Special event permit. Go to the top

The licensing authority shall establish a procedure to issue special event permits for sale by the drink only of 3.2% beer, as set forth in Title 12, Article 48, C.R.S., and the regulations promulgated thereunder. (Ord. 885 §1, 1990)

5-32-170  Hearing; procedure. Go to the top

The licensing authority shall establish procedures for all of its public hearings in conformity with the laws of the state and the ordinances and resolutions of the city. (Ord. 885 §1, 1990)

5-32-180  Hearing; authority. Go to the top

The licensing authority shall have the power to administer oaths and issue subpoenas to require the presence of persons and the production of papers, books, and records necessary to the determination of any hearing which the licensing authority is authorized to conduct. It is unlawful for any person to fail to comply with any subpoena issued by the authority in the proper conduct of its hearings. The municipal court of the city shall enforce the subpoenas of the licensing authority and, upon good cause shown, shall enter its orders compelling witnesses to attend and testify or produce books, records, or other evidence, and shall impose penalties of punishment for contempt in case of failure to comply with such orders. (Ord. 885 §1, 1990)

5-32-190  License suspension; alternate penalty; adoption. Go to the top

The optional procedures set forth in the Colorado Liquor Code, Sections 12-47-601(3) to (6), C.R.S., are hereby accepted and adopted. (Ord. 885 §1, 1990; Ord. 1545 §5, 2001)

5-32-200  License display required. Go to the top

Once issued, the license shall be displayed in a prominent location in the vicinity of the bar of the establishment. (Ord. 885 §1, 1990)

5-32-210  Warning sign to be displayed. Go to the top

Each licensee shall post and keep visible at all times to the public in a conspicuous place on the licensed premises a sign furnished by the city clerk that reads as follows:

WARNING! BROOMFIELD POLICE MUST BE
NOTIFIED OF ALL DISTURBANCES IN THIS
ESTABLISHMENT AND OF ALL DISTURBANCES
ON THE GROUNDS THAT ARE A PART OF THIS
ESTABLISHMENT.
SECTION 5-32-210,
BROOMFIELD MUNICIPAL CODE.

(Ord. 944 §3, 1992)


Chapter 5-36

Sexually Oriented Businesses

5-36-010  Legislative declaration. Go to the top

(A)  The purpose of these regulations is to provide for the regulation and licensing of sexually oriented businesses within the city in a manner that will protect the property values, neighborhoods, and residents from the potential adverse secondary effects of sexually oriented businesses while providing to those who desire to patronize sexually oriented businesses the opportunity to do so. It is not the intent of this chapter to suppress any speech activities protected by the First and Fourteenth Amendments of the United States Constitution or Article II, Section 10 of the Colorado Constitution, but to impose content-neutral regulations, which address the adverse secondary effects of sexually oriented businesses. Nothing in this chapter is intended to authorize or license anything otherwise prohibited by law.

(B)  Sexually oriented businesses are frequently used for unlawful sexual activities, including prostitution. The concern over sexually transmitted diseases is a legitimate health concern of the city which demands reasonable regulation of sexually oriented businesses to protect the health and well-being of citizens, including the patrons of sexually oriented businesses. Licensing is a legitimate and reasonable means of ensuring that operators comply with regulations and do not knowingly allow their business to be used as places of illegal sexual activity or solicitation. There is convincing documented evidence that sexually oriented businesses, because of their nature, have a deleterious effect on both the existing businesses around them and surrounding residential areas, causing increased crime and downgrading of property values. The purpose of this chapter is to control adverse effects and thereby protect the health, safety, and welfare of the citizens; protect them from increased crime; preserve the quality of life; preserve the property values and character of the surrounding neighborhoods and deter the spread of urban blight. (Ord. 1219 §1, 1997)

5-36-020  Definitions. Go to the top

The following definitions apply for the purposes of this chapter:

(A)  Adult arcade means any place to which the public is permitted or invited wherein, for any form or consideration, one or more still or motion picture projectors, slide projectors, or similar machines, or other image-producing machines, for viewing by five or fewer persons each, are used to show films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

(B)  Adult bookstore, adult novelty store, or adult video store means a business having a substantial and significant portion of its stock and trade, revenues, space, or advertising budget, resulting from the sale, rental or viewing of one or more of the following:

(1)  Books, magazines, periodicals or other printed matter, or photographs, films, motion pictures, video cassettes or video reproductions, slides, or other visual representations which depict or describe specified sexual activities or specified anatomical areas; or

(2)  Instruments, devices, or paraphernalia which are designed for specified sexual activities.

(C)  Adult cabaret means a nightclub, bar, restaurant, or similar business which regularly features:

(1)  Persons who appear in a state of nudity; or

(2)  Live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or

(3)  Films, motion pictures, video cassettes, slides, or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas.

(D)  Adult motel means a motel, hotel, or similar commercial establishment which offers public accommodations, for any form of consideration, and provides patrons with closed-circuit television transmissions, films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas and which advertises the availability of this sexually oriented type of material by means of a sign visible from the public right-of-way, or by means of any off-premises advertising, including, but not limited to, newspapers, magazines, pamphlets or leaflets, radio or television, or any motel, hotel, or similar commercial establishment offering a sleeping room for rent for a period of time less than ten hours; or allows a tenant or occupant to sub-rent a sleeping room for a period of less than ten hours.

(E)  Adult motion picture theater means a commercial establishment where films, motion pictures, video cassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas are regularly shown for any form of consideration.

(F)  Adult theater means a theater, concert hall, auditorium, or similar commercial establishment which regularly features persons who appear in a state of nudity or live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities.

(G)  Employee means a person who works or performs in or for a sexually oriented business, regardless of whether or not said person is paid a salary, wage, or other compensation by the operator of said business.

(H)  Manager means any person other than a licensee who is employed by a sexually oriented business to act as a manager or supervisor of the employees, finances, or patrons of the business or is otherwise responsible for the operation of the business.

(I)  Nude model studio means any place where a person, who appears in a state of nudity or displays "specified anatomical areas" is provided for money or any form of consideration to be observed, sketched, drawn, painted, sculpted, photographed, or similarly depicted by other persons.

(J)  Nudity or state of nudity means the appearance of human bare buttock, anus, male genitals, female genitals, or the areola or nipple of the female breast; or a state of dress which fails to opaquely and fully cover a human buttock, anus, male or female genitals, pubic region or areola or nipple of the female breast.

(K)  Peep booth means a viewing room of less than 150 square feet of floor space.

(L)  Person means an individual, proprietorship, partnership, corporation, association, or other legal entity.

(M)  Private room means a room in an adult motel that is not a peep booth, has a bed in the room, has a bath in the room or adjacent to the room, and is used primarily for lodging.

(N)  Sexual encounter establishment means a business or commercial establishment that, as one of its primary business purposes, offers for any form of consideration a place where two or more persons may congregate, associate, or consort for the purpose of specified sexual activities or the exposure of specified anatomical areas, when one or more of the persons is in a state of nudity or seminude. An adult motel will not be classified as a sexual encounter establishment by virtue of the fact that it offers private rooms for rent.

(O)  Sexually oriented business means an adult arcade, adult bookstore, adult novelty shop, adult video store, adult cabaret, adult motel, adult motion picture theater, adult theater, or sexual encounter establishment.

(P)  Specified anatomical areas means less than completely and opaquely covered human genitals, pubic region, buttocks, and female breast below a point above the top of the areole; or male human genitals in a discernibly turgid state even if completely and opaquely covered.

(Q)  Specified criminal acts means sexual crimes against children, sexual abuse, rape or crimes connected with another sexually oriented business, including, but not limited to, distribution of obscenity, prostitution, pandering, or tax violations.

(R)  Specified sexual activities means acts, simulated acts, exhibitions, representation, depictions or descriptions of:

(1)  Human genitals in a state of sexual stimulation or arousal.

(2)  Fondling or other intentional touching of human genitals, pubic region, buttocks, anus, or female breast.

(3)  Sex acts, normal or perverted, actual or simulated, including intercourse, oral copulation, and sodomy.

(4)  Masturbation or bestiality, actual or simulated, lewd exhibition of genitals, or excretory functions in connection with any other specified sexual activity, actual or simulated.

(S)  Stage means a raised floor or platform at least three feet above the surrounding floor measured perpendicularly from the edge of the stage to the surrounding floor and at least thirty-six square feet in area. (Ord. 1219 §1, 1997)

5-36-030  License required. Go to the top

It shall be unlawful for any person to operate a sexually oriented business unless licensed to do so as provided for by this chapter, and unless the license required is in full force and effect, and all applicable fees and taxes have been paid in full. (Ord. 1219 §1, 1997)

5-36-040  Application requirements. Go to the top

(A)  All applications for new licenses shall be on forms provided by the city clerk.

(B)  The application must be accompanied by a diagram showing the configuration of the premises, including a statement of total floor space occupied by the business, and designating the use of each room or other area of the premises.

(1)  The diagram shall designate those rooms or other areas of the premises where patrons are not permitted.

(2)  The diagram need not be professionally prepared, but must be drawn to a designated scale or drawn with marked dimensions of the interior of the premises to an accuracy of plus or minus six inches.

(3)  No alteration in the configuration of the premises or any change in use of any room or area as shown on the diagram may be made without the prior written approval of city council. The requirement for the foregoing diagram for renewal applications may be waived if the applicant adopts a diagram that was previously submitted and certifies that the configuration of the premises has not been altered since it was prepared and that the use of any area or room in the premises has not changed.

(C)  The applicant must be qualified in accordance with the provisions of this chapter, and the premises must be inspected by the fire authority and building official.

(D)  The application must include a vicinity map showing the location of existing or approved sexually oriented businesses, churches, schools, public parks and open space, residentially zoned or used property, or day care facilities within 1,500 feet of the site of the proposed licensed premises.

(E)  Upon receipt of a completed application, the city clerk shall cause the completed application to be placed on the agenda of city council for a meeting to be held not more than thirty days after receipt of the application, and shall provide notice of public hearing on said application in accordance with section 17-52-030, B.M.C. (Ord. 1219 §1, 1997; Ord. 1401 §1, 1999)

5-36-050  Issuance of license. Go to the top

(A)  The sexually oriented business shall be issued a license unless during the public hearing before the city council, one or more of the following is found:

(1)  An applicant for a sexually oriented business providing live nude entertainment is under the age of twenty-one years.

(2)  An applicant for a sexually oriented business not providing live nude entertainment is under the age of eighteen years.

(3)  There is evidence that serious criminal conduct would result from the granting of the license. Evidence that serious criminal conduct would result includes any finding that the applicant, manager, or employee has been convicted of a specified criminal act for which less than two years have elapsed since the date of conviction or date of release from confinement if the conviction is of a misdemeanor; or less than five years have elapsed since the date of conviction or date of release from confinement if the conviction is for a felony or two or more misdemeanors.

(4)  An applicant is overdue in payment to the city of taxes, fees, fines, or penalties assessed against the applicant or imposed upon the applicant in relation to a sexually oriented business.

(5)  An applicant has failed to provide information reasonably necessary for issuance of the license or has falsely answered a question or request for information on the application form.

(6)  The premises to be used for the sexually oriented business have not been approved by the fire authority or building official as being in compliance with applicable laws and ordinances.

(7)  The subject property to be used for the sexually oriented business is not zoned either B-1, B-2, I-1, or I-2.

(8)  The setback requirements of section 5-36-120, or criteria for a variance therefrom, have not been met.

(B)  The license, if granted, shall state on its face the name of the person to whom it is granted, the expiration date, and the address of the sexually oriented business. The license shall be posted in a conspicuous place at or near the entrance to the sexually oriented business so that it may be easily read at any time.

(C)  The fire authority and the building official shall complete their certification that the premises are in compliance or not in compliance within ten days of receipt of the application by the city clerk. Their certifications shall be promptly presented to the city clerk. Failure to conduct an inspection by either the fire authority or the building official shall not prejudice the application.

(D)  Any decision of the city council on applications shall state in the official minutes the reasons for such decision. Any denial may be appealed in accordance with the provisions of Rule 106 of the Colorado Rules of Civil Procedure. (Ord. 1219 §1, 1997)

5-36-060  Manager registration. Go to the top

(A)  It shall be unlawful for any person to work as a manager of a sexually oriented business without first registering with the city clerk.

(B)  The city clerk shall register a manager if all of the requirements of a license as set forth in section 5-36-050 are met. (Ord. 1219 §1, 1997)

5-36-070  Employee registration. Go to the top

Each licensee shall provide to the city clerk the full name, aliases if any, address, telephone number, and date of birth of any employee within five days of employment. (Ord. 1219 §1, 1997)

5-36-080  Inspection. Go to the top

(A)  The licensee or the licensee's employees shall permit representatives of the police department, building department, fire authority, or other city departments or state or local agencies to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law as provided for in this section.

(B)  City departments and agencies shall conduct such inspections in a reasonable manner and only as frequently as may be reasonably necessary.

(C)  Inspections shall take place during the regular business hours of the sexually oriented business or when any person is on the premises.

(D)  It shall be unlawful for the licensee or any employee to refuse to permit such lawful inspection of the premises as provided in this section. (Ord. 1219 §1, 1997)

5-36-090  Expiration of license. Go to the top

Each license shall expire one year from the date of issuance and may be renewed only by making application as provided in this chapter. (Ord. 1219 §1, 1997)

5-36-100  License suspension or revocation. Go to the top

(A)  After notice to the licensee and a hearing conducted by the city council, a sexually oriented business license may be suspended for a period not to exceed six months, or may be revoked if the city council determines that a licensee or any employee of a licensee has:

(1)  Violated or is in violation of any section of this chapter.

(2)  Refused to allow an inspection of the sexually oriented business premises as authorized by this chapter.

(B)  In determining the action to be taken as provided in this section, the city council shall consider the following aggravating and mitigating circumstances:

(1)  Whether the licensee has been previously suspended or revoked.

(2)  Whether the licensee was warned that the conduct involved could lead to a suspension or revocation.

(3)  Whether the cause for suspension or revocation involves one or several violations.

(4)  Whether the violation or violations are technical or substantive in nature.

(5)  The extent to which the licensee, licensee's agents and employees, as opposed to patrons, were involved in the violation or violations.

(6)  The extent to which the licensee or licensee's employees had knowledge of the violation or violations.

(7)  Any corrective or remedial action the licensee has taken to prevent similar violation or violations in the future.

(8)  Whether the violation or violations involved the commission of a crime and, if so, the degree of felony or misdemeanor involved.

(9)  The extent to which the violation or violations caused personal injuries or property damage.

(10)  Whether the licensee has paid damages or made restitution to any person or entity damaged by the violation or violations.

(11)  The extent to which the violation or violations posed a significant risk to the health, safety, or welfare of persons on or off the licensed premises.

(12)  The length of time over which the violation or violations extended.

(13)  The extent to which the licensee or licensee's employees realized a financial gain from the violation or violations.

(14)  The number of employees, patrons, or both involved in the violation or violations.

(15)  The nature and extent of enforcement action taken by the city or any law enforcement agency to detect the violation or violations.

(16)  The involvement of any person under twenty-one years of age in the violation or violations.

(17)  The extent to which the licensee or licensee's employees have attempted to cover up the violation or violations, destroy evidence, or otherwise hinder the investigation and detection of the violation or violations.

(18)  The extent to which the licensee and licensee's employees have acted in good faith. (Ord. 1219 §1, 1997)

5-36-110  Mandatory license revocation. Go to the top

(A)  After notice to the licensee and a hearing conducted by the city council, the city council may revoke a license if it determines that:

(1)  A license has previously been suspended within the preceding twelve months;

(2)  A licensee gave false information in the material submitted to city council, or failed to provide information reasonably necessary for the enforcement of this chapter;

(3)  A licensee or employee has knowingly allowed possession, use, or sale of controlled substance as defined in Part 3 of Article 22 of Title 12, C.R.S., on the premises;

(4)  A licensee or an employee has knowingly allowed prostitution on the premises;

(5)  A licensee or any employee knowingly operated the sexually oriented business during a period of time when the license was suspended;

(6)  Excluding conduct within a private room of an adult motel, a licensee or employee has knowingly allowed any act of sexual intercourse, sodomy, oral copulation, masturbation, or other sexual conduct to occur on the premises.

(B)  When the city council revokes a license, the revocation shall continue for one year, and the licensee shall not be issued a sexually oriented business license for one year from the date revocation became effective. (Ord. 1219 §1, 1997)

5-36-120  Setback requirements. Go to the top

(A)  No sexually oriented businesses may operate within 1,500 feet of any of the following, whether within or without the city limits:

(1)  Any church;

(2)  Any school meeting all requirements of the compulsory education laws of the state;

(3)  Any boundary of any residentially zoned or used property;

(4)  Any day care facility, as defined in section 17-04-080, B.M.C.;

(5)  Any public park or open space adjacent to any residential district;

(6)  Any preschool; or

(7)  Any other sexually oriented business.

(B)  No sexually oriented business may be located within the same building, structure, or portion thereof of another sexually oriented business, except as provided in section 5-36-200, B.M.C.

(C)  For purposes of this section, the one-thousand-five-hundred-foot separation measurement shall be made in a straight line without regard to intervening structures or objects from the nearest portion of the building or structure used as part of the premises where the sexually oriented business is conducted to the nearest property line of another sexually oriented business, church, school, public park, residentially zoned or used property, or day care facility.

(D)  A variance to the separation requirement set forth in this section may be granted if the presumptions in section 5-36-010 are overcome by proof that the establishment of a sexually oriented business within 1,500 feet of another sexually oriented business establishment, or establishment of a sexually oriented business within 1,500 feet of any residential zoning district, residential use, park, church, school, day care facility, as applicable, will not have a deleterious effect on surrounding residential and business areas by creating blight, downgrading of property values, or tending to cause an increase in crime. In granting a variance to the distance requirements set forth in this section, the city council may impose reasonable conditions relating to hours of operation and screening. (Ord. 1219 §1, 1997; Ord. 1401 §2, 1999)

5-36-130  Minimum age. Go to the top

(A)  It shall be unlawful for any person under the age of twenty-one years to be upon the premises of a sexually oriented business offering live nude entertainment, or for the employees or licensee of such an establishment to allow anyone under the age of twenty-one to be upon such premises.

(B)  It shall be unlawful for any person under the age of eighteen years to be upon the premises of any sexually oriented business other than an establishment offering live nude entertainment, or for the employees or licensees of such establishments to allow anyone under the age of eighteen to be upon such premises. (Ord. 1219 §1, 1997)

5-36-140  Hours of operation. Go to the top

(A)  It shall be unlawful for a sexually oriented business to be open for business or for the licensee or any employee of a licensee to allow patrons upon the licensed premises from:

(1)  On any Tuesday through Saturday from 2:00 a.m. until 7:00 a.m.;

(2)  On any Monday, other than a Monday which falls on January 1, from 12:00 midnight until 7:00 a.m.;

(3)  On any Sunday from 2:00 a.m. until 8:00 a.m.;

(4)  On any Monday which falls on January 1 from 2:00 a.m. until 7:00 a.m.

(B)  This section shall not apply to those areas of an adult motel which are private rooms. (Ord. 1219 §1, 1997)

5-36-150  Peep booth regulations. Go to the top

(A)  A licensee who has peep booths upon the premises shall comply with all of the following requirements:

(1)  The diagram accompanying an application for a license shall specify the location of one or more manager's stations.

(2)  It is the duty of the licensee to ensure that at least one employee is on duty and situated in each manager's station at all times that any patron is present inside the premises.

(3)  The interior of the premises shall be configured in such a manner that there is an unobstructed view from a manager's station of every area of the premises to which any patron is permitted access for any purpose, excluding rest rooms. Rest rooms may not contain film or video reproduction equipment or equipment for showing slides or photographs. If the premises has two or more manager's stations, then the interior of the premises shall be configured in such a manner that there is an unobstructed view of each area of the premises to which any patron is permitted access for any purpose from at least one of the manager's stations. The view required in this paragraph must be by direct line of sight from the manager's station.

(4)  It shall be the duty of the licensee and employees present on the premises to ensure that the view area specified in paragraph (3) above remains unobstructed by any doors, walls, merchandise, display racks, or other materials at all times and to ensure that no patron is permitted access to any area of the premises which has been designated in the application as an area to which patrons will not be permitted.

(5)  It shall be the duty of the licensee to ensure that all walls shall be maintained without holes or damage.

(6)  No peep booth may be occupied by more than one person at any time.

(B)  It shall be unlawful for any person having a duty under subsection (A) to knowingly fail to fulfill that duty. (Ord. 1219 §1, 1997)

5-36-160  Lighting regulations. Go to the top

(A)  Excluding a private room of an adult motel, the interior portion of the premises to which patrons are permitted access shall be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place at an illumination of not less than two foot-candles as measured at floor level.

(B)  It shall be the duty of the licensee and employees present on the premises to ensure that the illumination described above is maintained at all times that any patron is present on the premises. (Ord. 1219 §1, 1997)

5-36-170  Adult theaters and adult cabarets; regulations. Go to the top

(A)  Any adult cabaret or adult theater shall have one or more separate areas designated in the diagram submitted as part of the application as a stage for the licensee or employees to perform as entertainers. Entertainers shall perform only

upon the stage. The stage shall be fixed and immovable. No seating for the audience shall be permitted within three feet of the edge of the stage. No members of the audience shall be permitted upon the stage or within three feet of the edge of the stage.

(B)  It shall be unlawful for the licensee or for any employee to violate any of the requirements of this section or to knowingly permit any patron to violate the requirements of this section. (Ord. 1219 §1, 1997)

5-36-180  Conduct for sexually oriented businesses. Go to the top

(A)  No licensee or employee mingling with the patrons, or serving food or drinks, shall be unclothed or in such attire, costume, or clothing so as to expose to view any specified anatomical area.

(B)  No licensee or employee shall encourage or knowingly permit any person upon the premises to touch, caress, or fondle the breasts, anus, or specified anatomical areas of any person.

(C)  No licensee or employee shall violate the requirements of section 5-36-110 of this chapter.

(D)  It shall be unlawful for any licensee or employee to knowingly permit a patron to violate any of the requirements of this section.

(E)  No licensee may display materials depicting specified anatomical areas or specified sexual activities in storefront windows or any place where such may be viewed by any person outside the licensed premises. (Ord. 1219 §1, 1997)

5-36-190  Sexually oriented businesses; employee tips. Go to the top

(A)  It shall be unlawful for any employee of a sexually oriented business to receive tips from patrons except as set forth in subsection (C) of this section.

(B)  A licensee that desires to provide for tips from its patrons shall establish one or more boxes or other containers to receive tips. All tips for such employees shall be placed by the patron of the sexually oriented business into the tip box.

(C)  A sexually oriented business that provides tip boxes for its patrons as provided in this section shall post one or more signs to be conspicuously visible to the patrons on the premises in letters at least one inch high to read as follows: "all tips are to be placed in tip box and not handed directly to the entertainer. Any physical contact between the patron and the entertainer is strictly prohibited." (Ord. 1219 §1, 1997)

5-36-200  Adult motel; regulations. Go to the top

An adult motel that, in addition to the renting of private rooms, operates a sexually oriented business as otherwise defined in this chapter shall comply with all of the requirements set forth in this chapter pertaining to that business. (Ord. 1219 §1, 1997)

5-36-210  Nude model studios; exemptions. Go to the top

The provisions of this chapter do not apply to:

(A)  A private educational facility which maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation; or

(B)  Businesses located in a structure which has no sign visible from the exterior of the structure and no other advertising that indicates a nude person is available for viewing; and where, in order to participate in a class a student must enroll at least three days in advance of the class; and where no more than one nude model is on the premises at any one time. (Ord. 1219 §1, 1997)

5-36-220  Injunction. Go to the top

Any person who operates or causes to be operated a sexually oriented business without a license is subject to suit for injunction as well as criminal prosecution. (Ord. 1219 §1, 1997)

5-36-230  Fees. Go to the top

(A)  The following application fees shall be paid to the city clerk at the time the application is submitted:

Application Fee
New license $950.00
Registration of manager $75.00
Renewal of license $950.00

(B)  The fees enumerated above shall be paid to the city to help defray actual and necessary expenses incurred by the city in conducting the processing, investigations, publishing, and posting requirements, and public hearing related to the application. (Ord. 1219 §1, 1997)

5-36-240  Penalty for violation. Go to the top

Any person who violates any provision of this chapter may, in addition to any civil remedy available to the city, be punished as provided in chapter 1-12, B.M.C. Each day of unlawful operation under this chapter constitutes a separate violation. (Ord. 1219 §1, 1997)


Chapter 5-38

Secondhand Dealers and Pawnbrokers

5-38-010  Definitions. Go to the top

The following definitions apply for the purposes of this chapter:

(A)  Pawnbroker means a person regularly engaged in the business of making contracts for purchase or purchase transactions in the course of his or her business.

(B)  Secondhand dealer means any person whose business is that of engaging in selling or trading secondhand property, or whose business is selling new goods, but who buys and sells secondhand articles, goods, wares or merchandise of the same type of class as the new goods sold. The term also includes any person whose business is not that of engaging in selling or trading secondhand property but who sells or trades secondhand property through means commonly known as flea markets or any similar facilities in which secondhand property is offered for sale or trade or who sells or trades secondhand property from a nonpermanent location. The term does not include:

(1)  A person or organization selling or trading secondhand property at an exhibition or show which is intended to display a particular commodity or class of products, including, but not limited to, antique exhibitions, firearm exhibitions, home and garden shows, and recreational vehicle shows; excluding, however, precious or semiprecious metal, or stone, or gold or silver shows.

(2)  A person or organization which is charitable, nonprofit, recreational, fraternal, or political in nature or which is exempt from taxation pursuant to Section 501(C)(3) of the Internal Revenue Code of 1954, as amended.

(3)  Private collectors purchasing collectors' items from other private collectors or businesses engaged in selling valuable articles exclusively as collectors' items, and who pay for such purchases by check.

(4)  A person selling or trading secondhand property so long as such property was not originally purchased for resale and so long as such person does not sell or trade secondhand property more than five weekend periods in any one calendar year, as verified by a declaration to be prepared by the seller. For the purposes of this paragraph (4), weekend period means Friday through the immediately following Monday.

(5)  Antique dealers who sell antiques, have a retail license and sales tax license in the city, and sell such antiques from a permanent storefront location.

(6)  A person who is a retailer or wholesaler as defined in Title 39 of the C.R.S., and who is selling or trading (but not buying) secondhand property in a location which is a permanent storefront location, unless such property carries a manufacture or serial number.

(7)  A person selling or trading firewood, Christmas trees, plants, food products, agricultural products, fungible goods, pets, livestock, or arts and crafts, excluding jewelry and items crafted of gold or silver, if sold or traded by the artist or craftsman, his or her immediate family or regular employees.

(C)  Secondhand property means the following items of tangible personal property sold or traded by a secondhand dealer:

(1)  Cameras, camera lenses, slide or movie projectors, projector screens, flashguns, enlargers, tripods, binoculars, telescopes, and microscopes.

(2)  Televisions, phonographs, tape recorders, video recorders, radio tuners, speakers, turntables, compact discs, compact disc changers, amplifiers, record changers, citizens band broadcasting units and receivers, video games, and cartridges.

(3)  Skis, ski poles, ski boots, ski bindings, golf clubs, guns, jewelry, precious or semiprecious metals or stones, coins, luggage, boots, and furs.

(4)  Typewriters, adding machines, calculators, computers, portable air conditioners, cash registers, copying machines, dictation machines, automatic telephone answering machines, and sewing machines.

(5)  Bicycles, bicycle frames, bicycle derailleur assemblies, bicycle hand brake assemblies, and other bicycle components.

(6)  Any item of tangible personal property which is marked with a serial or identification number, except motor vehicles, off-highway vehicles, snowmobiles, ranges, stoves, dishwashers, refrigerators, garbage disposals, boats, airplanes, clothes washers, clothes driers, freezers, mobile homes, and nonprecious scrap metal. (Ord. 1340 §1, 1998)

5-38-020  Secondhand articles to be held ten days before sale. Go to the top

No secondhand dealer shall offer for sale, or sell or dispose of, any article within ten days of the time of purchasing it, nor until it has been in or upon the premises where it will be offered or sold at least ten days. (Ord. 1340 §1, 1998)

5-38-030  Dealer to exhibit goods to police. Go to the top

Every secondhand dealer who shall receive or be in possession of any goods or articles which may have been lost or stolen, or are alleged or supposed to have been lost or stolen, shall forthwith exhibit the same to any member of the Broomfield Police Department upon demand. When any person is found to be the owner of stolen property which has been sold or traded to a secondhand dealer, such property shall be returned to the owner thereof without payment of any amount advanced by the secondhand dealer. (Ord. 1340 §1, 1998)

5-38-040  Inspection of dealers. Go to the top

The chief of police or his or her designee shall have the power to inspect the places of business of secondhand dealers and all articles or things kept therein at all reasonable hours. (Ord. 1340 §1, 1998)

5-38-050  Sales tax license. Go to the top

(A)  Every secondhand dealer shall obtain a sales tax license as provided in chapter 3-04, B.M.C.

(B)  Every secondhand dealer or any person who is a dealer of new goods who is a retailer and sells such goods at a flea market or similar facility or any nonpermanent location shall keep and preserve suitable records of sales made by him or her and such other books or accounts as may be necessary to determine the amount of tax for the collection of which is liable under chapter 3-04, B.M.C. It is the duty of every such person to keep and preserve for a period of three years all invoices of goods and merchandise purchased for resale and all such books, invoices, and other records shall be open for examination at any time by the finance director or his or her duly authorized agent, or any Broomfield police officer.

(C)  It shall be unlawful for any secondhand dealer or operator of a flea market or similar facility to violate any of the provisions of this section. (Ord. 1340 §1, 1998)

5-38-060  Sale of secondhand property; record; inspection; crime. Go to the top

(A)  Every secondhand dealer, as defined in section 5-38-010 of this chapter, shall make a record, as provided in paragraph (2) of this subsection, of each sale or trade of secondhand property made by him or her, his or her agent, or any person acting on his or her behalf. Such record shall be made available to any peace officer for inspection at any reasonable time. The secondhand dealer shall mail or deliver two copies of the record of the sale or trade to the local law enforcement agency within one week of the date of such sale or trade. The secondhand dealer shall keep a copy of the record of the sale or trade for at least one year after the date of the sale or trade.

(B)  The records required by this section shall be made in writing on forms provided by the Broomfield Police Department at a reasonable fee or a reasonable facsimile thereof and shall consist of the following:

(1)  The name, address, and date of birth of the seller or trader;

(2)  The date, time, and place of the sale or trade;

(3)  An accurate and detailed account and description of the item sold or traded, including, but not limited to, any trademark, identification number, serial number, model number, brand name, or other identifying mark on such item;

(4)  The identification number from any of the following forms of identification of the seller or trader:

a.  A valid Colorado driver's license,

b.  An identification card issued in accordance with Section 42-2-301, C.R.S.,

c.  A valid driver's license, containing a picture, issued by another state,

d.  A military identification card,

e.  A valid passport, or

f.  An alien registration card.

(5)  The signature of the seller or trader;

(6)  A declaration by the secondhand dealer that he or she is the rightful owner of the secondhand property and a description of how he or she obtained the property, including the serial number of such property if available or a copy of the bill of sale of such property; and

(7)  A declaration by the secondhand dealer that he or she has knowledge of the requirement that he or she mail or deliver a record of the sale or trade to the Broomfield Police Department, as required by subsection 5-38-060(A).

(C)  Every secondhand dealer, as defined in section 5-38-010 of this chapter, shall utilize the Touch Print I.D. Program by requiring each person selling or trading any secondhand property to place a right index fingerprint on the forms designated by the Broomfield Police Department and described in this section. The original of the form shall be forwarded to the Broomfield Police Department, along with one copy.

(D)  In the case of flea markets and similar facilities in which secondhand property is offered for sale or trade, the operator thereof shall inform each secondhand dealer of the requirements of this section and shall provide the forms for recording the information required by this section. It shall be unlawful for the operator to violate the terms of this section.

(E)  In the case of flea markets and similar facilities in which secondhand property is offered for sale or trade, the operator thereof shall record the name and address of each secondhand dealer operating at the flea market or similar facility and the identification enumerated in subsection (B) of this section. Such record shall be mailed or delivered by the operator to the Broomfield Police Department within three days of the date the secondhand dealer offered secondhand property for sale or trade at the flea market or similar facility. A copy of such record shall be retained by the operator for at least one year after the date the secondhand dealer offered property for sale or trade at the flea market or similar facility. (Ord. 1340 §1, 1998)

5-38-070  Notice to be posted. Go to the top

Except in the case of flea markets and similar facilities as provided in this section, every secondhand dealer shall conspicuously post a notice in a place clearly visible to all buyers and traders which sets forth the provision of this section and of Sections 18-13-114 and 18-13-116, C.R.S., and which sets forth the penalties for violating such sections and for violating Section 18-4-410, C.R.S., concerning theft by receiving. Such notification shall include information to the effect that stolen property may be confiscated by any peace officer and returned to the rightful owner without compensation to the buyer. In the case of flea markets and similar facilities, the operator thereof shall post the notice required in this section in such a manner as to be obvious to all persons who enter the flea market or similar facility. The Broomfield Police Department shall print and provide the notices required by this section. (Ord. 1340 §1, 1998)

5-38-080  Secondhand dealers not to operate pawnshops. Go to the top

No secondhand dealer shall receive any article or thing by way of pledge or pawn; nor shall a secondhand dealer loan or advance any sum of money on the security of any article or thing. No secondhand dealer shall receive or hold a license to carry on the business of a pawnshop or pawnbroker. (Ord. 1340 §1, 1998)

5-38-090  Pawnbrokers to obey regulations. Go to the top

All pawnbrokers shall comply with Title 12, Article 56, C.R.S., and in addition, shall utilize the Touch Print I.D. Program by requiring each customer with whom a contract for purchase or purchase transaction is made to place a right index fingerprint on the customer's declaration of ownership form. The copy of such declaration form bearing the original fingerprint is to be provided to the Broomfield Police Department along with other records as required per Title 12, Article 56, C.R.S. (Ord. 1340 §1, 1998)

5-38-100  Violation. Go to the top

Any person who violates any of the provisions of this chapter shall be punished as provided in chapter 1-12, B.M.C. (Ord. 1340 §1, 1998)


Chapter 5-40

Ambulance Services

5-40-010  Definitions. Go to the top

(A)  Advanced life support ambulance means an ambulance, which in addition to meeting the basic requirements for equipment, must have on board the equipment and medications as required by the physician advisor's protocol, and operating with advance life support personnel.

(B)  Advanced life support personnel means a minimum of one state certified emergency medical technician-paramedic (EMT-P, or Emergency Medical Technician-Intermediate/EMT-1) or registered nurse with advanced cardiac life support certification, or a physician with advanced cardiac life support certification, and a driver with a valid state driver's license and current state certified Emergency Medical Technical-Basic/EMT-B certification.

(C)  Ambulance means any privately or publicly owned land vehicle, especially constructed or modified and equipped, intended to be used, and maintained or operated by an ambulance service for the transportation upon the streets and highways in the city, of individuals who are sick, injured or otherwise incapacitated or helpless.

(D)  Ambulance permit means the authorization approved and issued by the coordinator with respect to an ambulance used or to be used to provide ambulance service in the city.

(E)  Ambulance service means the furnishing, operating, conducting, maintaining, advertising, or otherwise engaging in or professing to be engaged in the transportation of patients by ambulance. Taken in context, it also means the person so engaged or professing to be so engaged. The person so engaged and the vehicles used for the emergency transportation of persons injured at a mine are excluded from this definition when the personnel utilized in the operation of said vehicles are subject to the mandatory safety standards of the Federal Mine Safety and Health administration or its successor agency.

(F)  Ambulance transport means the transportation of patients originating in the city by ambulances licensed by the city.

(G)  Ambulance validation sticker means a sticker displayed on the left side of the windshield of an ambulance unit that has been inspected. The sticker shall indicate the month and year of validation and shall be provided by the inspector hired by the participants of the intergovernmental agreement for ambulance inspections or the inspector otherwise designated by the city.

(H)  Authority means the local licensing authority.

(I)  Based means an ambulance headquartered in or having a substation or office or a permanent station in the city.

(J)  Catastrophe means a man-made or natural disaster or event.

(K)  City means City and County of Broomfield.

(L)  Coordinator means chief of police or designee.

(M) Emergency means any actual or self-perceived event, which threatens life, limb, or well-being of an individual in such a manner that a need for immediate medical care is created.

(N)  License means the authorization issued by the coordinator to operate an ambulance service in the city.

(O)  Licensee means the person or entity that has been issued a license by the coordinator to provide ambulance service in the city.

(P)  Mutual aid means an agreement with a jurisdiction to provide additional resources.

(Q)  Patient means any individual who is actual or self-perceived to be sick, injured, or otherwise incapacitated or helpless.

(R)  Physician advisor means a physician who is currently licensed by the Colorado State Board of Medical Examiners and who establishes protocols and standing orders for medical acts performed by an EMT-Basic, EMT-Intermediates or EMT-Paramedics or a pre-hospital emergency medical care service agency, and who is specifically identified as being responsible to assure the competency of the performance of those acts by such EMT-Basics, EMT-Intermediates or EMT-Paramedics.

(S)  Protocol means a written standard for patient medical assessment and management.

(T)  Revocation means to withdraw, repeal, rescind, or cancel a license or permit issued by the hearing officer.

(U)  Suspension means to temporarily stop service pertaining to a license or permit.

(V)  Temporary suspension means to suspend a license or permit for designated period of time.

(W) To operate in the City and County of Broomfield means the providing of ambulance service or transportation of patients within the boundaries of the city. (Ord. 1653 §1, 2001)

5-40-020  Regulations. Go to the top

(A)  Ambulance service license required. Any person, partnership, or corporation, either public or private, providing or operating an ambulance service based in the city must hold a valid license to do so issued by the coordinator.

(B)  Ambulance validation sticker. No ambulance shall transport patients, when transport originates in the city, unless the ambulance service meets city ambulance licensing requirements and displays a current ambulance validation sticker on the left side of each ambulance windshield.

(C)  Advanced life support ambulance. When an ambulance service operates or advertises as an advanced life support ambulance service, the staffing must comply with the definition for advanced life support ambulance.

(D)  Basic life support ambulance. When an ambulance service operates or advertises as a basic life support ambulance service, the staffing must comply with the definition for basic life support ambulance.

(E)  Ambulance crew members. No patient shall be transported in an ambulance unless there are two or more persons in the ambulance per definitions for advanced life support ambulance or basic life support ambulance, as defined by these regulations.

(F)  Ambulance permit. No ambulance shall be operated within the city unless a permit has been issued and posted in the patient compartment, as hereinafter provided. All ambulances shall bear evidence that its equipment meets or is equivalent to the minimum requirements set forth in the minimum equipment list established by the coordinator.

(G)  Exceptions to licensing and permits requirements. The provisions of the licensing and permit subsections as set forth above shall not apply to the following:

(1)  The exceptional emergency use of a private or public owned vehicle, including search-and-rescue unit vehicles, or aircraft not ordinarily used in the formal act of transporting patients.

(2)  A vehicle rendering services as an ambulance in the case of a major catastrophe or emergency, when ambulances with permits based in the localities of the catastrophe or emergency are insufficient to render the services required.

(3)  Vehicles used or designed for the scheduled transportation of convalescent patients, including individuals with disabilities, or persons who would not be expected to require skilled treatment or care while in the vehicle.

(4)  Ambulances based outside this state, which are transporting a patient in Colorado.

(5)  Vehicles used solely for the transportation of intoxicated persons or persons incapacitated by alcohol as defined in Section 25-1-302, C.R.S., but who are not otherwise seriously injured and who would not be expected to require skilled treatment or care while in the vehicle.

(6)  Mutual aid with a jurisdiction that does not ordinarily provide services within the city.

(7)  The city reserves the right to revoke the above exemptions and require city licensing.

(H)  Insurance. No ambulance shall operate in the city unless it is covered by insurance as set forth in this subsection. Each ambulance service shall maintain insurance coverage for each and every ambulance owned, operated, or leased by the ambulance service, providing coverage for injury to or death of persons in accidents resulting from any cause for which the owner of the said vehicle would be liable on account of any liability imposed on such owner by law, regardless of whether the ambulance was being driven by the owner, its agent or lessee or any other person, and coverage as against damage to property of another, including personal property, under like circumstances in the following amounts:

(1)  Worker's Compensation Insurance as required by state statute.

(2)  Public Liability and Property Damage Bodily Injury:

Each person
$500,000.00
Each accident
$500,000.00
Property damage (each accident)
$500,000.00
Professional Liability Coverage:
Each person
$500,000.00
Each accident
$1,000,000.00

(3)  Proof of insurance shall be filed with the coordinator, along with the application for an ambulance service license as required in these regulations. Every insurance policy required shall contain a provision for continuing liability thereunder to the full amount thereof, notwithstanding any recovery thereon, that the liability of the insured shall not be affected by the insolvency or bankruptcy of the insured, and that until a policy is revoked, the insurance company will not be relieved from liability on account of nonpayment of premiums, failure to renew license at the end of the year, or any act or omissions of the named insured. At any time said insurance is required to be renewed, proof of renewal shall be provided to the coordinator. The motor vehicle insurance shall be a complying policy as defined in Section 10-4-703, C.R.S.

(4)  A certificate of insurance, with the city named on the certificate holder's copy, shall indicate the vehicles covered by the policy, type of insurance (vehicle and professional liability, etc.) policy number or numbers, policy effective date, policy expiration date, amount of coverage, and contain a provision that thirty days' prior written notice of any cancellation or termination or revocation of said insurance policy shall be given to the coordinator.

(5)  Any changes in the status of vehicles listed on the certificate of insurance during the licensing cycle shall be noted on a new certificate of insurance and forwarded to the coordinator within thirty days of the changes.

(6)  Notification of any changes in insurance shall be made in writing within thirty days of such changes to the coordinator or their authorized representative by the licensee, to be followed with a certificate of insurance as outlined in previous paragraphs. The coordinator may require additional proof of insurance at any time as needed in order to promote health, safety, and welfare of residents of the city.

(I)  Ambulance specifications. Ground vehicles obtained, licensed, and placed in use as ambulances shall meet the requirements as adopted by the state. All ambulances shall have the name of the ambulance service clearly visible on said vehicle.

(J)  Ambulance equipment. Each ambulance shall contain the following equipment, which shall be maintained in good working order:

(1)  Emergency lighting and audible warning equipment that complies with state law for emergency vehicles;

(2)  Safe tires and in addition, adequate snow tires or chains when weather conditions demand;

(3)  In case of ambulances servicing the city, a capability of a two-way communications with their dispatcher and with one or more emergency facilities;

(4)  Safety belts or other restraining devices for each patient and all personnel;

(5)  Two functioning fire extinguishers, with current inspection of the all-purpose dry chemical type, ABC, and of the size as specified on the equipment list for the city; and

(6)  The minimal required equipment shall be guidelines as established and approved by the state board of health and the city.

(K)  Inspections. Through an intergovernmental agreement with participating cities and counties or as otherwise designated by the city, an inspector will be hired to inspect each ambulance to be issued a validation sticker and permit under a valid license in the city once a year or more often if required. Such inspection shall determine that each such ambulance is being properly maintained and contains the equipment specified in these regulations. Maintenance records shall be made immediately available upon the coordinator's request. Such inspections shall be in addition to other safety or motor vehicle inspections required to be made under Colorado law and shall not excuse compliance with any requirements of any other applicable Colorado law. The permit for each ambulance shall be carried in the patient compartment of that ambulance and made available for inspection by the coordinator. Each validation sticker as defined in subsection 5-40-020(B) shall be displayed on the left side of the windshield of the ambulance.

(L)  General regulations.

(1)  The city shall be authorized to promulgate and enforce such rules and regulations as deemed necessary to provide for quality emergency medical services and ensure compliance with state law and any resolution adopted by city council, which regulate the operation and licensing of ambulance services in the city.

(2)  Patient destinations by transporting agencies shall be based on patient request, appropriateness of facility choice and divert status, and all applicable state and federal statutory law and regulations.

(3)  All ambulance services based in the city must have a physician advisor. The coordinator shall notify the physician advisor in writing of any violation of these regulations by the ambulance service or individual licensee.

(4)  All emergency equipment and warning devices shall be used in accordance with all state traffic statutes, rules, and regulations.

(5)  When operating an ambulance with red lights and siren, local law enforcement agencies shall be notified by the responding licensee at the exact time the red lights and siren are put in operation, and neighboring jurisdictions shall also be notified by the responding licensee prior to entering those jurisdictions.

(6)  An ambulance service operating in the city must comply with all applicable local, state, and federal statutes and regulations.

(7)  All city-licensed ambulance services will follow all rules and regulations established by the Colorado Department of Public Health and Environment, Emergency Medical Services Division. (Ord. 1653 §1, 2001)

5-40-030  Licenses. Go to the top

(A)  Application for ambulance service license. An application for an ambulance service license shall be submitted in writing to the coordinator and shall contain the following information and necessary supporting documents:

(1)  The name, address, and telephone of the ambulance service;

(2)  The name, address, and telephone of the owner of the ambulance service, and the status of the owner as sole proprietor, partnership, or corporation;

(3)  The name, address, telephone number, and position of the person applying for the license, hereinafter referred to as the "applicant";

(4)  The name, address, and telephone number of the person responsible for management of the operation on a daily basis;

(5)  List the name, address, and telephone number of each stockholder of any corporation owning or applying for an ambulance service license, the name, address, and telephone number of each of the directors of the corporation, and the name, address, and telephone number of each partner of any partnership owning or applying for an ambulance service license;

(6)  The number of vehicles operated by the ambulance service within the city;

(7)  The locations which the ambulances will operate from within the city;

(8)  The geographic area within the city to be served by the ambulance service;

(9)  The name, address, telephone number, license number, and qualifications of the physician advisor of the ambulance service;

(10)  Statement from the coordinator that the physical inspection of the equipment and ambulances has been completed and equipment and ambulances were found to be in compliance with the provisions of these regulations;

(11)  Certificate of insurance as set forth and required in these regulations (self-insured municipalities shall provide proof of insurance as required by the coordinator);

(12)  Payment of a fee in the amount of $100.00 for the ambulance service license, and $50.00 for each ambulance unit, by check or money order, payable to The City and County of Broomfield, shall be attached to the application.

(13)  The ambulance service will supply a personnel list at the time of licensing or renewal licensing to include the name of each employee, and each employee's hire date, state certification number, and expiration date, and driver's license number and expiration date;

(14)  A City and County of Broomfield certification requirements form for each employee, with all of the information filled out, providing clear, readable copies of state certification, CPR, or ACLS (for appropriate level of certification) and valid Colorado driver's license shall be submitted by each ambulance service;

(15)  All newly hired personnel certifications shall be sent to the coordinator within thirty days of hire; and

(16)  Updated information on current personnel must be submitted within thirty days of expiration of the certification or license.

(B)  Issuance of ambulance service license and vehicle permits. Upon receipt of an application for vehicle permit and license to provide ambulance service, the coordinator shall review the application and applicant's records. The coordinator may issue the applicant a license to operate an ambulance service and issue a permit for each ambulance inspected, both of which shall be valid for a period of twelve months following the date of issue, providing that:

(1)  The ambulance service staff, vehicle, equipment, and location comply with the requirement of this chapter;

(2)  The ambulance service personnel are certified or possess at least the minimum qualification set forth in these regulations; and

(3)  Current city inspection has been satisfactorily completed for vehicles being licensed.

(C)  Ambulance service license and vehicle permit renewal. Unless revoked by the hearing officer, a licensee may renew any such license or permit. Application for renewal shall be filed annually, but not less than thirty days before the date the license or permit expires. The coordinator shall send renewal notices to all agencies, which currently hold a license permit, sixty days prior to expiration. However, failure to receive such notice shall not release the individual agency from its responsibility for renewal of said license or permit. If reapplication is not received at least thirty days prior to expiration and the applicant's license expires, the applicant must cease operation until the license is reissued.

(D)  Transfer of license or permit. No license or permit issued by the coordinator shall be sold, assigned, or otherwise transferred.

(E)  Change of ownership. Change of ownership shall require a new application and license, with payment of the same license fee as is required for an original application. Any sale or exchange of stock in excess of 25% of the total outstanding stock of a corporation to anyone other than an existing stockholder at the time of the original issuance of license shall be deemed a change of ownership for the purpose of these regulations. Any change of ownership or any transfer of stock ownership of 10% or more shall be reported in writing to the coordinator within thirty days of such change or transfer. (Ord. 1653 §1, 2001)

5-40-040  Revocation, suspension, and hearings. Go to the top

(A)  The authority may on its own motion or on complaint, after investigation and public hearing at which the licensee shall be afforded an opportunity to be heard, suspend or revoke any license or permit issued by the coordinator pursuant to this chapter. After such hearing, the authority may suspend any license or permit issued pursuant to these regulations, for any portion of or for the remainder of its life. At the end of such period, the person whose license or permit was suspended may apply for a new license or permit as in the case of an original application. Suspension or revocation may result from violation of:

(1)  Any provision of these regulations;

(2)  Any applicable law or regulation of the state or any applicable ordinance or regulation of the city and evidence of such violation may be considered by the coordinator; or

(3)  Any rules and regulations promulgated pursuant to these regulations.

(B)  All hearings before the authority shall be public and every vote and official act of the authority shall be public. The authority has the power to administer oaths and issue subpoenas to require the presence of persons and the production of papers, books, and records necessary to the determination of any hearing, which the authority is authorized to conduct.

(C)  Written notice of temporary suspension or revocation as well as any required notice of such hearing shall be given by certified mail to the licensee or permit holder at the address contained in such license or permit application.

(D)  The issuing licensing authority, pending any prosecution, investigation, or public hearing, may temporarily suspend any license. Nothing in this section shall prevent the summary suspension of such license for a period of not more than thirty days after such temporary suspension. The licensee shall receive written notice of such temporary suspension, and a hearing shall be held no later than ten days after such temporary suspension. If any license is suspended or revoked, no part of the fees paid therefor shall be returned to the licensee.

(E)  The coordinator has the authority to suspend the permit for any individual ambulance if inspection reveals that the ambulance is not in compliance with the ambulance regulations. Suspension of a permit for the operation of any individual ambulance shall be made in writing at any time upon inspection by the individual appointed by the coordinator to perform such inspection. The individual appointed by the coordinator to perform such inspection may make written notification of suspension for the operation of any individual ambulance upon inspection. Also, written notice shall be given by the coordinator to correct the deficiency within a reasonable amount of time before the hearing to revoke the permit. The coordinator shall have a hearing on the revocation of such permit, and such hearing shall be conducted within ten days of the temporary revocation. A suspension or revocation inspection must be conducted prior to resuming operation. The reinstatement permit may be made by the coordinator prior to such hearing, upon a reinspection and finding by the coordinator that the ambulance fully complies with the provisions of these regulations. Upon issuance of a reinstatement permit, no hearing is necessary.

(F)  Upon revocation or suspension of a license issued under this chapter, all vehicle permits issued to said company will be automatically revoked and all permits must be returned to the coordinator within forty-eight hours.

(G)  It shall be the duty of the coordinator to notify local law enforcement authorities, fire departments, hospitals, and physician advisors of revocation or suspension.

(H)  The following practices shall be unlawful and may be grounds for a suspension or revocation of license after an investigation is completed:

(1)  Willful and deliberate failure to respond to any call in the absence of good cause shown unless prior documentation is provided to the coordinator;

(2)  Willful and deliberate failure to transport a patient when required by nature of the situation within guidelines established by the physician advisor;

(3)  Administering unnecessary treatment or supplies to a patient for the purpose of increasing the patient's bill;

(4)  Call jumping, which is defined as a response by an ambulance service not dispatched by the primary service area;

(5)  Conduct which constitutes a significant threat to the health or safety of the individuals receiving emergency care from a licensed ambulance service or services; or

(6)  Failure of a responding individual to notify jurisdictions immediately if an ambulance is responding to a nonemergent call for service and it becomes or they are notified that it has become an emergent call for services. (Ord. 1653 §1, 2001)

5-40-050  Alleged negligence. Go to the top

(A)  In any legal action against a licensee in which it is alleged that plaintiff's injury, illness, or incapacity was aggravated by, or that the plaintiff was otherwise injured by the negligence of the licensee, no negligence shall be presumed because of such allegations.

(B)  If a judgment is entered against such licensee, the licensee shall within thirty days file a copy of such findings and order of the court with the coordinator. The coordinator shall take note of such judgment for purposes of investigation and appropriate action if there appears any violation of these regulations or of any state law. (Ord. 1653 §1, 2001)

5-40-060  Applicability. Go to the top

All valid licenses issued to persons, partnerships, or corporations and all permits issued for ambulances providing ambulance services in counties other than The City and County of Broomfield, which ambulance services and ambulances will be based in The City and County of Broomfield on and after November 15, 2001, will be valid licenses and permits in the city and subject to all of the provisions of this chapter on and after the effective date of this chapter. (Ord. 1653 §1, 2001)

5-40-070  Penalty for violation. Go to the top

Any person who willfully fails to comply with any of the provisions of this chapter, or any sections of this chapter, shall be deemed guilty of a misdemeanor and, upon conviction, shall be punishable as provided in chapter 1-12, B.M.C. (Ord. 1653 §1, 2001)