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5-1 CHAPTER 5 Business Licenses, Regulations and Occupations Article 5-4 Business Licenses Sec. 5-4-10 Application fee Sec. 5-4-20 City Clerk to keep records Sec. 5-4-30 Fee payment and compliance required Sec. 5-4-40 Fees refunded on application denial Sec. 5-4-50 License requirements Sec. 5-4-60 Term, suspension or revocation Sec. 5-4-70 Fees not refundable Sec. 5-4-80 Nonassignability Article 5-8 Alcohol Beverages Division 1 Generally Sec. 5-8-10 Definitions Sec. 5-8-20 City license required Sec. 5-8-30 Application – local liquor license Sec. 5-8-40 Findings of the Authority Sec. 5-8-50 Hearing officer Sec. 5-8-60 Licensee's duty to report violations Sec. 5-8-70 Licensee's duty to post sign Sec. 5-8-80 Hotel and restaurant and wine and beer licenses; distance restrictions to schools Division 2 Tastings Sec. 5-8-100 Alcohol beverage tastings; authority Sec. 5-8-110 Application Sec. 5-8-120 Renewal Sec. 5-8-130 Application fees Sec. 5-8-140 Decision on application Sec. 5-8-150 Permit posting Sec. 5-8-160 Regulations Sec. 5-8-170 Violations and penalties Division 3 Special Events Sec. 5-8-200 Authority Sec. 5-8-210 Applications Sec. 5-8-220 Application fee Sec. 5-8-230 Decision on application Sec. 5-8-240 Permit posting Sec. 5-8-250 Regulations Article 5-12 Amusement Devices Sec. 5-12-10 Definitions Sec. 5-12-20 License required; application and fee Sec. 5-12-30 Age requirement Sec. 5-12-40 Contents of application Sec. 5-12-50 Investigation; approval Sec. 5-12-55 Action upon application Sec. 5-12-60 License fee required Sec. 5-12-70 Expiration of license Sec. 5-12-80 Display of license required Sec. 5-12-90 Hours of jukebox operation ---PAGE BREAK--- 5-2 Sec. 5-12-100 Gambling devices prohibited Sec. 5-12-110 Seizure and destruction of amusement devices Sec. 5-12-120 Suspension or revocation of license Sec. 5-12-130 Exemptions Article 5-16 Auctioneers Sec. 5-16-10 License required Sec. 5-16-20 License fees Sec. 5-16-30 Expiration of license Sec. 5-16-40 Exceptions to applicability Article 5-24 Cabarets Sec. 5-24-10 Cabaret defined Sec. 5-24-20 License required Sec. 5-24-30 License fee; term Sec. 5-24-40 Nontransferability of license Sec. 5-24-50 Expiration of license Article 5-28 Cable Television System Sec. 5-28-10 Defined Sec. 5-28-20 License required Sec. 5-28-30 Contents of application Sec. 5-28-40 Rights granted to permittee designated Sec. 5-28-50 Rights granted to permittee nonexclusive Sec. 5-28-60 Application conditions, contents Sec. 5-28-70 Transferability of license; approval required Sec. 5-28-80 Bond requirements Sec. 5-28-90 Liability of permittee; insurance Sec. 5-28-100 Gross subscription receipts defined Sec. 5-28-110 Fee; statement; right of inspection Sec. 5-28-120 Percentage paid by all permittees to be equal Sec. 5-28-130 Minimum percentage as fee Sec. 5-28-140 Method of fee payment; fund deposit Sec. 5-28-150 Charges for service; approval required Sec. 5-28-160 Standards of service required Sec. 5-28-170 Standards and regulations; compliance required Sec. 5-28-180 Restrictions on aboveground facilities Sec. 5-28-190 Construction requirements for underground facilities Sec. 5-28-200 Activities prohibited, designated Sec. 5-28-210 Pay TV prohibited Sec. 5-28-220 Termination or revocation of license Article 5-32 Circuses and Carnivals Sec. 5-32-10 Definitions Sec. 5-32-20 License required Sec. 5-32-30 Inspection; issuance Sec. 5-32-40 License fee Sec. 5-32-50 Deposit required Article 5-36 Merchant Guards and Patrols and Industrial Guards Sec. 5-36-10 Definitions Sec. 5-36-20 License required Sec. 5-36-30 License application, contents Sec. 5-36-40 Application fee for license Sec. 5-36-50 Duration of license and license fees Sec. 5-36-60 License not required when ---PAGE BREAK--- 5-3 Sec. 5-36-70 License not issued to certain persons Sec. 5-36-80 Identification card issued Sec. 5-36-90 Badge and insignia; approval authority Sec. 5-36-100 Uniform approval required; authority Sec. 5-36-110 Vehicle equipment and insignia restrictions Sec. 5-36-120 Advertising restrictions Sec. 5-36-130 Bond required Sec. 5-36-140 Firearm restrictions Sec. 5-36-150 Discharge of licensee; notice and surrender of license Sec. 5-36-160 Notification required for address change Sec. 5-36-170 Unlawful acts Sec. 5-36-180 City Clerk authority to suspend or refuse license Sec. 5-36-190 Administration responsibility Article 5-44 Pawnbrokers Sec. 5-44-10 Definitions Sec. 5-44-20 License required Sec. 5-44-30 Application for license Sec. 5-44-40 Issuance of license; fee Sec. 5-44-50 License fee, term, expiration Sec. 5-44-60 License renewal and replacement; bond requirements Sec. 5-44-70 Required acts of pawnbrokers Sec. 5-44-80 Prohibited acts Sec. 5-44-110 Lending to minor or intoxicated persons prohibited Sec. 5-44-120 Safekeeping of pledges and insurance required Sec. 5-44-130 Statutory provisions; applicability Sec. 5-44-140 Violation; penalty Article 5-48 Peddlers, Canvassers and Solicitors Sec. 5-48-10 Definitions Sec. 5-48-20 License required Sec. 5-48-30 License application; bond; nontransferability Sec. 5-48-40 Bond required; conditions and approval Sec. 5-48-50 Application contents Sec. 5-48-60 License application; investigation Sec. 5-48-70 Fee schedule; exception Sec. 5-48-80 Expiration of license Sec. 5-48-90 Suspension or revocation conditions Sec. 5-48-100 Exhibition of license required Sec. 5-48-110 Exemptions to Article applicability Sec. 5-48-120 Chief of Police to report violations Article 5-52 Poolrooms, Billiard Halls and Bowling Alleys Sec. 5-52-10 License required Sec. 5-52-20 Fee schedule Sec. 5-52-30 Expiration Article 5-56 Public Dances Sec. 5-56-10 License required; exceptions Sec. 5-56-20 Fee; license term Sec. 5-56-30 Location; nontransferability Sec. 5-56-40 Expiration Article 5-68 Tree Care Sec. 5-68-10 License required ---PAGE BREAK--- 5-4 Sec. 5-68-20 Application; contents Sec. 5-68-30 Fee Sec. 5-68-40 Insurance requirements Article 5-72 Massage Therapist Licenses Sec. 5-72-10 Short title Sec. 5-72-20 Required; term Sec. 5-72-30 Definitions Sec. 5-72-40 Qualifications Sec. 5-72-50 Applications Sec. 5-72-60 License and renewal fees Article 5-73 Massage Parlors Sec. 5-73-10 Short title Sec. 5-73-20 License required; term Sec. 5-73-30 Definitions Sec. 5-73-40 Local licensing authority designated Sec. 5-73-50 License application Sec. 5-73-60 Minimum requirements Sec. 5-73-70 License and renewal fees Sec. 5-73-80 Identity card required; contents; validity Sec. 5-73-90 Massage therapy license Article 5-76 Use of 1886 Church Sec. 5-76-10 Authorization required Sec. 5-76-20 Application for authorization Sec. 5-76-30 Fees Sec. 5-76-40 Exemption Article 5-80 Franchise for Gas and Electricity Division 1 Grant of Franchise Sec. 5-80-10 Definitions Sec. 5-80-20 Grant of franchise Sec. 5-80-30 Conditions and limitations Sec. 5-80-40 Effective date and term Division 2 Police Powers Sec. 5-80-60 Police powers Sec. 5-80-70 Regulation of streets or other City property Sec. 5-80-80 Compliance with laws Division 3 Franchise Fee Sec. 5-80-100 Franchise fee Sec. 5-80-110 Remittance of franchise fee Sec. 5-80-120 Franchise fee payment not in lieu of permit or other fees Division 4 Administration of Franchise Sec. 5-80-140 City designee Sec. 5-80-150 Company designee Sec. 5-80-160 Coordination of work Division 5 Supply, Construction and Design Sec. 5-80-180 Purpose Sec. 5-80-190 Supply Sec. 5-80-200 Service to City facilities Sec. 5-80-210 Restoration of service Sec. 5-80-220 Obligations regarding Company facilities ---PAGE BREAK--- 5-5 Sec. 5-80-230 Excavation and construction Sec. 5-80-240 Restoration Sec. 5-80-250 Relocation of Company facilities Sec. 5-80-260 New or modified service requested by City Sec. 5-80-270 Service to new areas Sec. 5-80-280 City not required to advance funds Sec. 5-80-290 Technological improvements Division 6 Reliability Sec. 5-80-310 Reliability Sec. 5-80-320 Franchise performance obligations Sec. 5-80-330 Reliability reports Division 7 Company Performance Obligations Sec. 5-80-350 New or modified service to City facilities Sec. 5-80-360 Adjustment to Company facilities Sec. 5-80-370 Emergencies Sec. 5-80-380 Third party damage recovery Division 8 General Provisions Sec. 5-80-400 Billing for utility services Sec. 5-80-410 Payment to City Sec. 5-80-420 Municipal right to purchase or condemn Sec. 5-80-430 Municipally produced utility service Sec. 5-80-440 Consent of City required Sec. 5-80-450 Transfer fee Sec. 5-80-460 Continuation of utility service Sec. 5-80-470 City held harmless Sec. 5-80-480 Immunity Sec. 5-80-490 Noncontestability Sec. 5-80-500 Breach Sec. 5-80-510 Proposed amendments Sec. 5-80-520 Effective amendments Division 9 Equal Opportunity Sec. 5-80-540 Economic development Sec. 5-80-550 Employment Sec. 5-80-560 Contracting Sec. 5-80-570 Coordination Division 10 Miscellaneous Sec. 5-80-590 No waiver Sec. 5-80-600 Successors and assigns Sec. 5-80-610 Third parties Sec. 5-80-620 Notice Sec. 5-80-630 Examination of records Sec. 5-80-640 PUC filings Sec. 5-80-650 Other information Sec. 5-80-660 List of utility property Sec. 5-80-670 Payment of taxes and fees Sec. 5-80-680 Conflict of interest Sec. 5-80-690 Certificate of public convenience and necessity Sec. 5-80-700 Authority Sec. 5-80-710 Severability Sec. 5-80-720 Force majeure Sec. 5-80-730 Earlier franchises superseded ---PAGE BREAK--- 5-6 Sec. 5-80-740 Titles not controlling Sec. 5-80-750 Applicable law Sec. 5-80-760 Payment of expenses incurred by City in relation to franchise agreement Sec. 5-80-770 Responsibility for language Article 5-84 Franchise for Electricity to Union Rural Electric Association, Inc. Division 1 Grant of Franchise Sec. 5-84-10 Grant of franchise Sec. 5-84-20 Street lighting service Sec. 5-84-30 Term of franchise Division 2 Franchise Fee Sec. 5-84-40 Franchise fee Sec. 5-84-50 Payment schedule Sec. 5-84-60 Change of franchise fee and other franchise terms Sec. 5-84-70 Franchise fee in lieu of other fees Sec. 5-84-80 Contract obligation Division 3 Company Construction and Operation Obligations Sec. 5-84-90 Adequate supply at lowest possible cost Sec. 5-84-100 City approval of construction and design Sec. 5-84-110 Excavation and construction Sec. 5-84-120 Installation and maintenance of Company facilities Sec. 5-84-130 Warranty of Company facilities Sec. 5-84-140 Continued compliance with air and water pollution laws Sec. 5-84-150 Relocation of Company facilities Sec. 5-84-160 Technological improvements Sec. 5-84-170 Company obligations to City Sec. 5-84-180 Service to new areas Sec. 5-84-190 Construction by City employees or developers Sec. 5-84-200 City not required to advance funds Sec. 5-84-210 Safety regulations by City Sec. 5-84-220 Compliance with PUC and Company regulations Sec. 5-84-230 Inspection, audit and quality control Division 4 Reports to City Sec. 5-84-240 Annual report on Company operations Sec. 5-84-250 Copies of tariffs and approvals Sec. 5-84-260 Detailed bills Division 5 City Use of Company Facilities Sec. 5-84-270 City use Sec. 5-84-280 Underground conduit Sec. 5-84-290 Use of land and water facilities Sec. 5-84-300 Right of first refusal Sec. 5-84-310 Use by City franchisees Sec. 5-84-320 Annexation to City Division 6 Indemnification of City Sec. 5-84-330 City held harmless Sec. 5-84-340 Notice to Company Sec. 5-84-350 Financial responsibility Sec. 5-84-360 Breach of contract Division 7 Undergrounding of Company Distribution Facilities Sec. 5-84-370 Underground distribution lines in new areas Sec. 5-84-380 Overhead conversion at Company expense ---PAGE BREAK--- 5-7 Sec. 5-84-390 Review of underground program Sec. 5-84-400 Cooperation with other utilities Division 8 Transfer of Franchise Sec. 5-84-410 Consent of City required Division 9 Purchase or Condemnation Sec. 5-84-420 City's right to purchase or condemn Sec. 5-84-430 Negotiated purchase price condemnation award Sec. 5-84-440 Continued cooperation by Company Division 10 Removal of Company Facilities at End of Franchise Sec. 5-84-450 Limitations on Company removal Division 11 Small Power Production and Cogeneration Sec. 5-84-460 Company to purchase City-generated energy Sec. 5-84-470 Interconnection Sec. 5-84-480 Curtailment Sec. 5-84-490 Enforceability Division 12 Forfeiture Sec. 5-84-500 Forfeiture Sec. 5-84-510 Continued obligations Division 13 Amendments Sec. 5-84-520 Amendment to franchise Division 14 Miscellaneous Sec. 5-84-530 Successors and assigns Sec. 5-84-540 Representatives Sec. 5-84-550 Severability Sec. 5-84-560 Entire agreement Article 5-90 Group Homes Sec. 5-90-10 Definitions Sec. 5-90-20 License required Sec. 5-90-30 License and operation, age requirement Sec. 5-90-40 Contents of application Sec. 5-90-45 Coordination, monitoring Sec. 5-90-50 Investigation, eligibility Sec. 5-90-60 Conformity of structure Sec. 5-90-70 License, special requirements Sec. 5-90-80 Operational requirements Sec. 5-90-85 Inspection of premises Sec. 5-90-90 License revocation, suspension, violation Article 5-94 Sexually Oriented Businesses Sec. 5-94-10 Purpose and intent Sec. 5-94-20 Definitions Sec. 5-94-30 Exemptions Sec. 5-94-40 Violations and penalties Sec. 5-94-50 Regulations for operation Sec. 5-94-60 License Sec. 5-94-70 Investigation Sec. 5-94-80 Issuance Sec. 5-94-90 Annual license fees Sec. 5-94-100 Expiration and renewal Sec. 5-94-110 Transfer Sec. 5-94-120 Changing, altering or modifying licensed premises ---PAGE BREAK--- 5-8 Sec. 5-94-130 Manager's license Sec. 5-94-140 Suspension Sec. 5-94-150 Summary suspension Sec. 5-94-160 Revocation Sec. 5-94-170 Hearing procedure Article 5-98 Mobile Vendors Sec. 5-98-10 Definitions Sec. 5-98-20 License required Sec. 5-98-30 License application; bond, nontransferability Sec. 5-98-40 Bond required; conditions and approval Sec. 5-98-50 Application contents Sec. 5-98-60 Operational requirements Sec. 5-98-70 License application; investigation Sec. 5-98-80 Fee schedule; exception Sec. 5-98-90 Expiration of license Sec. 5-98-100 Suspension or revocation Sec. 5-98-110 Exhibition of license required Sec. 5-98-120 Exemptions to Article applicability ---PAGE BREAK--- 5-9 ARTICLE 5-4 Business Licenses Sec. 5-4-10. Application fee. All applications for business licenses governed by this Article, excluding contractor licenses, and provided for in Article 15-16 and licenses provided for in Articles 5-12 through 5-68 shall be made to the City Clerk in written form and shall be accompanied by the requisite license fee provided for said business licenses in this Code. Except as provided in this Article, the initial application shall also be accompanied by an application fee in an amount as set by resolution of the City Council, which shall remain in effect until such resolution is amended by action of the City Council. Contractor licenses shall be applied for and issued by the Building Department. Payment for contractor licenses shall be made to the Building Department Permit Technician. It is expressly provided that this Section shall not apply to the application fee relative to applications for the sale of alcohol beverages and fermented malt beverages which are governed by the provisions of Article 3-24, nor to the application fees for those business licenses of the construction industry which are governed by Article 15-16. (Ord. 991 1979; Ord. 1435 1993; Ord. 1723 2001) Sec. 5-4-20. City Clerk to keep records. The City Clerk shall maintain a file of all applications for licenses other than contractor licenses according to the type of license applied for in accordance with the law of keeping of public records. (Prior code §5-108; Ord. 841 §1(part), 1975; Ord. 1723 2001) Sec. 5-4-30. Fee payment and compliance required. No business license shall be issued unless the requisite license fee and the initial application fee are paid in advance to the City Clerk. Furthermore, the City Clerk shall not issue any license pursuant to this Chapter whenever the public health, safety and welfare of the citizens of the City shall require that the license shall not be issued. (Ord. 992 1979) Sec. 5-4-40. Fees refunded on application denial. In the event an application for a business license pursuant to the provisions of this Article is denied, the license fee shall be returned forthwith to the proposed licensee; provided, however, this Section shall not apply to the initial application fee. (Prior code §5-103; Ord. 841 §1(part), 1975) Sec. 5-4-50. License requirements. Every business license issued pursuant to the this Article and Articles 5-8 through 5-68 shall be signed by the City Clerk and shall have the seal of the City affixed thereto. It shall be dated as of the date of issuance and shall set forth the purpose of the license and the length of time for which the license is valid. (Prior code §5-104; Ord. 841 §1(part), 1975) ---PAGE BREAK--- 5-10 Sec. 5-4-60. Term, suspension or revocation. No business license shall be granted pursuant to this Article for a period of longer than one year and the City Council shall have the right to suspend or revoke any business license issued to any person pursuant to this Article whenever the holder thereof violates any ordinance or statute or whenever in the judgment of the City Council the public health, safety and welfare shall require that the same shall be suspended or revoked. (Prior code §5-105; Ord. 841 §1(part), 1975) Sec. 5-4-70. Fees not refundable. In case any license issued pursuant to this Article shall be suspended or revoked, no refund shall be made of the license fee or application fee or any portion thereof. (Prior code §5-106; Ord. 841 §1(part), 1975) Sec. 5-4-80. Nonassignability. No business license issued pursuant to this Article shall be assignable nor shall any business license authorize any person to do business or to act pursuant to such license other than the person to whom such license is issued. (Prior code §5-107; Ord. 841 §1(part), 1975) ARTICLE 5-8 Alcohol Beverages Division 1 Generally Sec. 5-8-10. Definitions. As used in this Article, the following words and phrases shall have the meanings ascribed to them as follows: Authority means the Liquor Licensing Authority of the City. Elementary school includes a public or parochial school in which the highest grade is Grade 5. Fermented malt beverage means any beverage obtained by the fermentation of any infusion or decoction of barley, malt, hops or any similar product or any combination thereof in water containing not more than three and two-tenths percent alcohol by weight or four percent alcohol by volume. Hearing officer means the City Clerk, unless the authority appoints another to act as a hearing officer. Except in Subsection 5-9-20(b), licensee includes any person duly licensed to sell liquor or fermented malt beverages in the City or any agent, servant or employee of such licensee. Liquor means liquor as defined in the Colorado Liquor Code and includes all alcohol beverages or spirits except 3.2 beer, the sale of which is capable of being licensed by the City. ---PAGE BREAK--- 5-11 Middle school and high school includes a public or parochial school in which the grades fall within the range from Grade 6 to Grade 12. Premises includes all or any part of the physical boundaries of any establishment duly licensed for the sale of liquor or fermented malt beverages in the City and including any parking area or adjoining grounds under the ownership, control or management of such licensee. Security personnel means a City police officer or a merchant guard duly licensed by the City. (Prior code §7-601; Ord. 1723 2001; Ord. 1816 2004; Ord. 2134 2012) Sec. 5-8-20. City license required. It shall be unlawful for any person to engage in the business of selling or serving any alcohol beverages or fermented malt beverages within the City without a City license. (Ord. 2134 2012) Sec. 5-8-30. Application – local liquor license. Obtaining forms. Application forms required under this Article and Article 3-24 of this Code shall be available at the office of the City Clerk. Completion of forms. All applications for malt, vinous and spirituous liquor licenses and fermented malt beverage licenses shall be submitted to the City Clerk on the prescribed forms. 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 state statutes and regulations and the provisions of the ordinances of the City applicable to such licenses and all regulations promulgated pursuant thereto. No 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. In addition to the documents and information required under Subsection below, the applicant shall furnish such additional documentation or information as the Authority deems necessary to make the determinations required by applicable state statutes or regulations and City ordinances and regulations. Attachments. The application must be returned to the office of the City Clerk with all necessary attachments as follows: Transfer of interest in licensed business. a. Three letters of reference for each individual, partnership member or corporate officer, director and stockholder. b. Lease agreement, assignment of the lease to the applicant or deed to the premises in the name of the applicant. c. Partnership agreement or, for a corporation, articles of incorporation, certificate of incorporation and certificate of good standing. d. A current, verified financial statement of the applicant completed no less than one hundred eighty (180) days prior to the date of the application. ---PAGE BREAK--- 5-12 e. Written verification executed by a duly authorized representative of the Police Department, which shall be kept current with the City Clerk's office, that the applicant (licensee) and manager have completed the Police Department training program for service of fermented malt beverages or alcohol beverages that meets the standards required by City or state law. f. An agreement of sale of the business or other documentation demonstrating a transfer of possession of the licensed premises by operation of law, including a petition in bankruptcy pursuant to federal bankruptcy law, the appointment of a receiver, a foreclosure action by a secured party or a court order dispossessing the prior licensee of all rights of possession pursuant to Section 13-40-101, et seq., C.R.S. g. An application for transfer of ownership of a licensed business does not require a public hearing. h. No person shall make application nor shall any application be received for transfer of a license under this Article until such time as all occupational fees, license fees, sales and use taxes and other fees and charges related to the licensed premises due and owing the City are paid in full. New licenses or change of location of licensed business. Subparagraphs through e. above are incorporated in this Subsection and shall be required in addition to the following: a. Interior and plot or site plans of the premises. b. An application for a new license or for change of location of a licensed business requires a public hearing which will be set by the Authority pursuant to the notice requirements set forth in state statutes. c. The completed application will be processed by the City Clerk and Police Department and presented to the Authority for public hearing. d. No licensee shall make application for nor shall any application be received for a new license or for change in location under this Article until such time as all occupational fees, license fees, sales and use taxes and other fees and charges related to the licensed premises due and owing the City are paid in full. Applications for new licenses where no certificate of occupancy has been issued. Subparagraphs through e. of this Section are incorporated in this Paragraph and shall be required in addition to the following: a. Any applicant for a license whose building has not been issued a certificate of occupancy at the time of public hearing on the application shall have one year immediately following the date of approval of the license to obtain a certificate of occupancy issued by the City and to obtain the necessary City and state licenses to begin operating. b. Whenever it appears that the applicant shall not be ready to commence business within the prescribed one-year period, the applicant must file an affidavit of due diligence with the Authority, within thirty (30) days prior to the end of the one-year period, requesting an extension of time to complete the structure and obtain a certificate of occupancy, which extension shall in no case ---PAGE BREAK--- 5-13 exceed one year, for a total of two years from the approval date. The affidavit of due diligence must be accompanied by an extension fee as set by the City Council in the Annual Fee Resolution, which fee is not refundable. The applicant shall be required to demonstrate to the Authority the progress being made toward the completion of the structure and occupancy for the use of the approved license, the due diligence on the part of the applicant and the reasons why the premises have not been completed. The Authority shall, at its next regularly scheduled meeting following receipt of the application, consider the applicant's affidavit and, if satisfied that the applicant is diligently making progress toward the completion of the building, may extend the approval of the application for an additional period not to exceed one year. No more than one extension shall be granted to the applicant under this Paragraph. c. If, after one year, the construction of the proposed building has not commenced or if, after two years, the proposed building has not received a certificate of occupancy and been placed in operation, the Authority's initial approval of the license application shall expire. The applicant shall not make new application for the same premises for the same type of license within two years from the end of the original period of approval or of any extension thereof. The applicant's failure to proceed with due diligence shall render the Authority's prior approval null and void and shall constitute a denial of the license for failure to meet the needs of the neighborhood as previously determined by the Authority. d. No license which has been approved for issuance upon completion of the premises shall be transferred to a new owner prior to the issuance of the license to the original applicant. Applications for renewal of retail fermented malt beverages and malt, vinous or spirituous liquor licenses. a. All renewal applications for malt, vinous and spirituous liquor licenses and fermented malt beverage licenses shall be submitted to the City Clerk on the prescribed forms no later than forty- five (45) days prior to the date on which the license expires. 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 state statutes and regulations and the ordinances of the City related to alcohol beverages and fermented malt beverages and all regulations promulgated pursuant thereto. 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 an 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. Should any renewal application be received in completed form less than forty-five (45) days prior to the date on which the license expires, it shall be deemed a late application. The Authority shall not be responsible for the failure of a license to issue by the expiration date on any late application. b. An application for renewal of a license shall include written verification executed by a duly authorized representative of the Police Department, which shall be kept current with the City Clerk's office, that the licensee, manager and each employee of the licensee who shall be serving fermented malt beverages or alcohol beverages has completed the Police Department training program for service of fermented malt beverages or alcohol beverages that meets the standards required by City or state law. ---PAGE BREAK--- 5-14 c. No application for renewal of a license shall be accepted after the date of expiration; provided, however, that a licensee whose license has been expired for not more than ninety (90) days may file a late renewal application upon the payment of all required fees. d. If there is information before the Authority tending to constitute good cause for not renewing a particular license for an additional year, the City Clerk, at the direction of the Authority, shall cause to be issued a notice of hearing on the license renewal. If the Authority requires a hearing to renew a license, such hearing shall be held only after a notice of hearing has been conspicuously posted on the licensed premises for a period of ten (10) days and has been provided to the applicant at least ten (10) days prior to the hearing. e. Hearings held on any renewal or late renewal application after proper notice has been given may result in denial of renewal of the license for good cause, as defined in Section 12-47-103(a), C.R.S. f. If a malt, vinous or spirituous liquor license or fermented malt beverage license is renewed by the Authority, such renewal will not affect a pending violation or show cause order which relates to an incident that occurred prior to the date of the renewal. The Authority shall be authorized to take whatever action is necessary against the license, either in the form of suspension or revocation of the liquor license, regardless of when such license has been renewed. g. No person shall make application for nor shall any application be received for renewal of a license under this Article until such time as all occupational fees, license fees, sales and use taxes and other fees and charges related to the licensed premises due and owing the City are paid in full. Applications for late renewal of retail fermented malt beverage and malt, vinous or spirituous liquor licenses. a. Any applicant for late renewal of a license shall be required to submit a late renewal application. b. In no event shall a late renewal application be accepted by the City Clerk more than ninety (90) days after the expiration of a licensee's permanent annual license. c. The Authority, in its discretion, may hold a public hearing to determine the qualifications of an applicant for late renewal of a license. Applications for temporary retail fermented malt beverages or malt, vinous or spirituous liquor permits. a. Any applicant for a temporary permit shall be required to submit an application for a transfer of ownership pursuant to the requirements set forth in Paragraph of this Section. b. In no event shall a temporary permit be granted except for premises which have been previously licensed by the State and the Authority and such license shall have been valid at the time the application for transfer of ownership was filed with the Authority. ---PAGE BREAK--- 5-15 c. The application for a temporary permit shall be filed no later than thirty (30) days after the filing of the application for transfer of ownership. d. A temporary permit, if granted by the Authority, shall be valid until such time as the application to transfer ownership of the license to the applicant is granted or denied or for one hundred twenty (120) days, whichever shall first occur; except that, if the application to transfer the license has not been granted during the one-hundred-twenty-day period and the transferee demonstrates good cause, the Authority may extend, in its discretion, the validity of the permit for an additional period not to exceed sixty (60) days. (Ord. 2134 2012) Sec. 5-8-40. Findings of the Authority. The Authority may specify terms, conditions or provisions upon granting of a license as the Authority may deem necessary to carry out the exercise of police powers, provided that these terms, conditions or provisions do not conflict with the laws of the State or rules and regulations provided by the state liquor licensing authority, local rules or ordinances and resolutions of the City. The Authority shall have the power to impose on a licensee as a condition of a period of suspension held in abeyance or as a condition of renewal any conditions reasonably related to the offenses leading to the suspension or the conduct of the business for which the license is to be renewed. The decision of the Authority shall constitute final agency action of the Authority for all purposes under the applicable state statutes, this Code and state and local rules and regulations. (Ord. 2134 2012) Sec. 5-8-50. Hearing officer. The Authority may appoint the City Clerk or another to act as a hearing officer at the City's expense, to conduct hearings and issue findings, orders and conclusions. (Ord. 2134 2012) Sec. 5-8-60. Licensee's duty to report violations. It shall be the duty of the licensee and those agents or employees of the licensee on duty on the premises to immediately report to the Police Department any breach of peace or unlawful or disorderly act, conduct, disturbance or any act or acts that constitute a violation of law of the City or State ("unlawful conduct") committed on the premises of the business or upon any parking area or adjoining grounds under the ownership, control or management of such licensee. It shall not be a defense to a violation of this Section that the licensee was not personally present on the premises at the time such violation of law occurred if the licensee had reasonable opportunity to report such violation of law after learning of such violation. However, any agent, servant or employee of the licensee shall not be responsible hereunder when absent from the premises and not on duty on the premises at the time such violation occurred on the premises. (Ord. 2134 2012) Sec. 5-8-70. Licensee's duty to post sign. Each licensee shall post and keep at all times visible to the public, in a conspicuous place on the premises, a sign to be furnished by the City Clerk's office, which sign shall be in the following form: ---PAGE BREAK--- 5-16 WARNING: Brighton Police Department must be notified of all disturbances in this establishment. Brighton Ordinances make it mandatory that all liquor and fermented malt beverage establishments comply with this requirement." Each licensee shall post and keep at all times visible to the public, in a conspicuous place on the premises, the state and City licenses issued to the licensee for the premises. Each licensee shall post and keep at all times visible to the public, in a conspicuous place on the premises, the City tax receipt showing the name of the licensee, date of payment of the tax, the period for which the tax was paid and the address of the licensed premises. (Ord. 2134 2012) Sec. 5-8-80. Hotel and restaurant and wine and beer licenses; distance restrictions to schools. Pursuant to Section 12-47-313(1)(d)(III), C.R.S., the application of the five-hundred-foot distance restriction from schools and campuses under Section 12-47-313(1)(d)(I), C.R.S., is hereby deleted for and shall not be applicable to: hotel and restaurant, and (ii) wine and beer classes of licenses, as applied to all schools (as defined in Section 12-47-313(1)(d)(I), so long as said hotel and restaurant and wine and beer licensed premises have service bars only and do not have sit-down bars. As used in this Section, a service bar shall mean the location within the licensed premises where employees serving alcohol pick up said alcohol beverages prepared by a bartender for service to patrons while dining elsewhere within the premises. As used in this Section, a sit-down bar shall mean the location within the licensed premises where patrons may sit at a bar to order, receive and consume alcohol beverages directly from a bartender. (Ord. 2056 2010; Ord. 2134 2012) Division 2 Tastings Sec. 5-8-100. Alcohol beverage tastings; authority. Alcohol beverage tastings on the licensed premises of a retail liquor store licensee or of a liquor- licensed drugstore licensee are authorized to be conducted within the City in accordance with Section 12- 47-301(10), C.R.S., and subject to the provisions of this Article. The Liquor Licensing Authority is authorized to issue alcohol beverage tastings permits in accordance with the requirements of this Article. The Authority shall establish the procedures for obtaining an alcohol beverage tastings permit, which procedures shall include, without limitation, conducting a noticed public hearing before the Authority, at which hearing the applicant must establish that the applicant is able to conduct alcohol beverage tastings without violating the provisions of this Article. The notice required for the public hearing shall be the posted and published notices required by Section 12-47-311, C.R.S., as the same may be amended from time to time. (Ord. 2013 2009; Ord. 2134 2012) Sec. 5-8-110. Application. A retail liquor store or liquor-licensed drugstore licensee desiring to conduct alcohol beverage tastings must submit an application for an alcohol beverage tastings permit or the renewal thereof in accordance with this Article. ---PAGE BREAK--- 5-17 The forms for the alcohol beverage tastings permit application, the renewal application and the alcohol beverage tastings permit shall be those prescribed by the Liquor Licensing Authority. An alcohol beverage tastings permit shall be valid for the period of the then-existing liquor license and the permit may be renewed at the time of the liquor license renewal in accordance with Section 5-8-70 below. An application for an alcohol beverage tastings permit must be submitted to the City Clerk no later than thirty (30) days prior to the date of the first alcohol beverage tastings requested in the application or at the time of license renewal, whichever occurs first. At a minimum, the application must include the following information: The name of the licensee and location of the premises of the retail liquor store or liquor- licensed drugstore; A written plan to establish how the applicant will conduct tastings in compliance with the provisions of the statutes of the State of Colorado and this Code, and without creating a public safety risk to the neighborhood, which plan shall include diagrams of the premises as may be applicable to the tastings. A schedule of the specific dates and times of requested alcohol beverage tastings for the period of the permit. Such schedule shall conform to all requirements imposed by Section 5-8-110, below. a. The City Clerk will notify the Police Department of the approved tastings dates and times and any amendments to the approved schedule. b. Following approval of a tastings permit and the tastings schedule by the Liquor Licensing Authority, the licensee may amend such schedule by delivering to the City Clerk, at least seventy- two (72) hours prior to an unscheduled event, a notice of amendment of the approved schedule, provided that any change or deviation from the approved schedule shall not violate any provision of this Article, the statutes of the State of Colorado and the Liquor Code of Regulations or any other state law or municipal ordinance or regulation. An applicant for an alcohol beverage wine tastings permit must also include with the filing of the initial and any renewal application, and keep current with the City Clerk's office at all times, written verification that the licensee and each employee of the licensee who will be conducting the alcohol beverage tastings has completed a server training program for alcohol beverage tastings that meets the standards required by City and state law. Any other information requested by the Liquor Licensing Authority or the City Clerk reasonable necessary to ensure compliance with the requirements of this Article, state law or other ordinances and regulations of the City. (Ord. 2013 2009; Ord. 2134 2012) Sec. 5-8-120. Renewal. Renewal of an alcohol beverage tastings permit shall be concurrent with the renewal of a license for a retail liquor store and liquor-licensed drugstore. A licensee's initial alcohol beverage tastings permit shall expire on the same date that the licensee's retail liquor store or liquor-licensed drugstore license expires. ---PAGE BREAK--- 5-18 The initial alcohol beverage tastings permit application fee shall not be prorated if the permit expires in less than one year. Alcohol beverage tastings permit renewal forms shall be submitted to the City Clerk, accompanied by the renewal fee. (Ord. 2013 2009; Ord. 2134 2012) Sec. 5-8-130. Application fee. The application fee for an alcohol beverage tastings per is fifty dollars ($50.00) and shall be paid to the City at the time of application. The application fee for the renewal of an alcohol beverage tastings permit shall be twenty-five dollars ($25.00) and shall be paid to the City at the time of application for renewal. The City Council may from time to time amend the application fees herein set forth in the City's Annual Fee Resolution. (Ord. 2013 2009; Ord. 2134 2012) Sec. 5-8-140. Decision on application. An alcohol beverage tastings permit shall only be issued to a retail liquor store or a liquor- licensed drugstore licensee whose license is valid, not subject to a current or pending enforcement action by the City or the State and in full force and effect. The Liquor Licensing Authority may approve, approve with restrictions or deny the application for an alcohol beverage tastings permit. The Liquor Licensing Authority may deny an application if the application fails to establish that the applicant is able to conduct alcohol beverage tastings in compliance with this Section or Section 12-47-301(10), C.R.S., or if such alcohol beverage tasting creates or threatens to create a public safety risk to the neighborhood. A decision to deny an alcohol beverage tastings permit application shall be made in writing and shall be provided to the applicant within five business days of the date of the decision. Approval of an application for alcohol beverage tastings shall also constitute approval of the schedule for tastings submitted with the application unless such schedule fails to conform to all applicable requirements imposed by Section 5-8-110 below. An application for an alcohol beverage tastings permit may be denied by the Liquor Licensing Authority if the licensee has violated the Colorado Liquor Code during one year immediately preceding the date of the application. If the applicant has violated the Colorado Liquor Code during one year immediately preceding the date of the application, the Liquor Licensing Authority shall have discretion to approve or deny the application based upon the following criteria: The length of time the licensee has been in business; The number of previous violations by the licensee, if any; The degree of cooperation with police and City officials in relation to the violation(s); Whether the licensee's staff has attended alcohol awareness training, the number of people who have attended and the number of times attended; Whether the licensee has a process in place on the licensed premises to prevent similar future violations; Whether the violation was committed by the owner or a person with a majority interest in the license or by employees of the licensee; ---PAGE BREAK--- 5-19 Any other circumstances provided by the licensee or other which may guide the Liquor Licensing Authority in determining whether to approve the application. (Ord. 2013 2009; Ord. 2134 2012) Sec. 5-8-150. Permit posting. Alcohol beverage tastings permits shall be conspicuously and prominently posted by the licensee on the licensed premises at all times during business hours. (Ord. 2013 2009; Ord. 2134 2012) Sec. 5-8-160. Regulations. The following regulations shall apply to all alcohol beverage tastings: Tasting permits issued during the term of a current license shall be valid for the period of the then-existing liquor license. All other tasting permits shall be issued concurrently with the retail liquor store license or liquor-licensed drugstore license and shall be valid for the term of said license. No tastings may be conducted that are not in accordance with the approved schedule unless the licensee has provided written notice to the City Clerk at least seventy-two (72) hours in advance stating the specific days and hours on which the tasting(s) shall occur. However, no notice may specify any date which is beyond the current license period. The size of an individual alcohol sample shall not exceed one ounce of malt or vinous liquor or one-half ounce of spirituous liquor. The licensee shall not serve more than four individual samples to a patron during an alcohol beverage tasting. Alcohol beverage tastings shall be conducted only during operating hours in which the licensee on whose premises the tasting occur is permitted to sell alcohol beverages, and in no case earlier than 11:00 a.m. or later than 7:00 p.m. Alcohol beverage tastings may be no longer than five hours, which must run consecutively. The licensee shall prohibit patrons from leaving the licensed premises with an unconsumed alcohol sample. The licensee shall remove all open and unconsumed alcohol beverage samples from the licensed premises or shall destroy the samples immediately following the completion of the alcohol beverage tastings. The licensee shall not serve a person who is under twenty-one (21) years of age or who is visibly intoxicated. Alcohol samples shall be in open containers and shall be provided to a patron free of charge. Alcohol beverage tastings may occur on no more than four of the six days of a week from a Monday to the following Saturday, not to exceed a total of one hundred four (104) days each calendar year. (10) 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 cost and all other responsibility for a tasting. ---PAGE BREAK--- 5-20 (11) The alcohol used in alcohol beverage tastings shall be purchased through a licensed wholesaler, licensed brewpub or winery licensed pursuant to Section 12-47-403, C.R.S. (12) A copy of the state certified training certificate(s) and the alcohol beverage tastings schedule must be available for inspection by a City representative or Police Department at all times during business hours. (Ord. 2013 2009; Ord. 2134 2012) Sec. 5-8-170. Violations and penalties. Alcohol beverage tastings, as defined in this Chapter, are permitted within the City only following approval of an application for an alcohol beverage tastings permit and subject to the limitations set forth in this Chapter and Section 12-47-301(10), C.R.S., as the same may be amended from time to time. It shall be unlawful for any person to conduct an alcohol beverage tasting without first having obtained an alcohol beverage tastings permit as provided in this Chapter, subject to the provisions of Article 1-24, General Penalties, of this Code. A violation of any provisions of Article 46, 47 or 48 of Title 12 of the Colorado Revised Statutes, the regulations related thereto or this Code by a retail liquor store licensee or liquor-licensed drugstore licensee, whether by his or her employees, agents or otherwise, shall be the responsibility of the retail liquor store licensee or liquor-licensed drugstore licensee who is conducting the tastings. A retail liquor store licensee 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. (Ord. 2013 2009; Ord. 2134 2012) Division 3 Special Events Sec. 5-8-200. Authority. Pursuant to Title 12, Article 48, C.R.S., qualified organizations, as defined in Section 12-48-102, C.R.S., may apply to the Authority for a special event permit for the sale of fermented malt beverages or malt, vinous or spirituous liquor to members of the general public at a special event as permitted herein. As provided in Section 12-48-107(5)(a), C.R.S., the application for a special event permit shall be reviewed by the Authority for approval or disapproval without notification to the State. Thereafter, the City Clerk shall, within ten (10) days of approval of the permit, report to the State Liquor Enforcement Division the approval of the permit, including the name of the organization to which the permit was issued, the addresses of the permitted location and the permitted dates of the permitted special event. The Authority shall establish the procedures for obtaining a special event permit, which procedures shall include, without limitation, the circumstances which may require a public hearing before the Authority, at which hearing the applicant must establish that the applicant is able to conduct the special event without violating the provisions of state or local law, this Article and other rules and regulations related to alcohol beverages. ---PAGE BREAK--- 5-21 Certain qualified organizations shall be exempt from the provisions of this Division and shall be deemed to be dispensing gratuitously and not to be selling fermented malt beverages or malt, vinous and spirituous liquors when it serves, by the drink, to its members and their guests at a private function held by such organization on unlicensed premises, so long as any admission or other charge, if any, required to be paid or given by any such member as a condition to entry or participation in the event is uniform as to all without regard to whether or not a member or such member's guest consumes such beverages or liquors. (Ord. 2134 2012) Sec. 5-8-210. Applications. A qualified organization desiring to conduct a special event must submit an application to the City Clerk on the prescribed forms. 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 state statutes and regulations and the provisions of the ordinances of the City applicable to special event permits and all regulations promulgated pursuant thereto. No 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 not less than thirty (30) days prior to the date of the special event. The Authority may waive the thirty-day time requirement set forth herein for good cause. At a minimum, the application must include the following information: The name of the applicant and location of the premises at which the special event is proposed to be held. A written plan to establish how the applicant will conduct the special event in compliance with the provisions of the statutes of the State and this Article and without creating a risk to the public welfare and safety, which, if requested by the Authority, such plan shall include diagrams of the premises as may be applicable to the event and specifics regarding security for the event, including the number, duties and qualifications of security personnel. A schedule of the special event, provided that such schedule shall conform to all requirements imposed by Section 5-8-250 below. Written verification executed by a duly authorized representative of the Police Department that the applicant and each server of fermented malt beverages and malt, vinous and spirituous liquors of the licensee who will be working at or assisting in the special event has completed the Police Department server training program for alcohol beverages that meets the standards required by City and state law. Any other information requested by the Authority or the City Clerk reasonably necessary to ensure compliance with the requirements of this Article, state law or other ordinances and regulations of the City. (Ord. 2134 2012) ---PAGE BREAK--- 5-22 Sec. 5-8-220. Application fee. Accompanying the application shall be the City application fee for a special event permit in an amount determined in the City's Annual Fee Resolution. (Ord. 2134 2012) Sec. 5-8-230. Decision on application. A public hearing on the application for a special event permit is not required, but may be required in the sole discretion of the Authority if, after investigation and review of the contents of any protest, sufficient grounds appear to exist for denial of the application. Written notice of the hearing shall be provided to the applicant and any person who has filed a protest. The Authority may deny the issuance of a special event permit upon the grounds that the issuance would be injurious to the public welfare and safety because of the nature of the special event, its location within the community, failure of the applicant to provide sufficient information to address potential public welfare and safety concerns or the failure of the applicant in a past special event to conduct the event in compliance with applicable laws. Upon filing information satisfactory to the Authority, an applicant may obtain a single permit with duplicate copies for the event if such event is to be conducted in more than one private home, provided that such homes are in the same neighborhood and the application contains the specific description and address of the premises to be utilized. The Authority may assign all or any portion of its functions under this Article and Section 12-48- 101, et seq., C.R.S., related to special event permits to the City Clerk or another to act as a hearing officer. (Ord. 2134 2012) Sec. 5-8-240. Permit posting. At least ten (10) days before approval of the permit by the Authority, the applicant shall conspicuously post at the proposed locations of the special event public notice of the proposed event and the procedure for protesting issuance of the permit. (Ord. 2134 2012) Sec. 5-8-250. Regulations. The special event permit for a location or locations properly described in the application is nontransferable as to any other location or to another organization. Permitted special events shall be conducted only during the following hours: Between the hours of 5:00 a.m. of the day specified in a malt beverage permit and until 12:00 a.m. on the same day; or Between the hours of 7:00 a.m. of the day specified in a malt, vinous and spirituous liquor permit and until 2:00 a.m. of the immediately following day. The Authority shall not issue a special event permit to any organization for more than a total of fifteen (15) days in one calendar year. ---PAGE BREAK--- 5-23 Sandwiches or other food snacks shall be available during all hours of service of malt, spirituous or vinous liquors at a special event. Adequate security personnel shall be provided by the applicant for all special events and shall be more specifically defined in the plan referenced in Paragraph 5-8-210(b)(2) of this Division. The Authority shall determine the number of security personnel required for each special event after considering the location, size, number of participants, experience of the servers, type, duration and hours of the event, the variety of alcohol to be served and other factors deemed pertinent to the particular permit requested. Nothing herein shall preempt or abrogate any regulations addressing the provision of security personnel for alcohol-related events at City-owned facilities. (Ord. 2134 2012) ARTICLE 5-12 Amusement Devices Sec. 5-12-10. Definitions. The following words and phrases as used in this Article unless the context otherwise indicates, shall be construed as defined in this Section: Jukebox means any music-vending machine, contrivance or device which, upon the insertion of a coin, slug, token, plate, disc or key into any slot, crevice or other opening, or by the payment of any price, operates or may be operated for the emission of songs, music or similar amusement. Mechanical amusement device means any machine which, upon the insertion of a coin, slug, token, plate or disc, may be operated by the public generally for use as a game, entertainment or amusement, whether or not registering a score. It shall include such devices as marble machines, pinball machines, skill ball, mechanical grab machines and all games, operations or transactions similar thereto under whatever name they may be indicated. Person , as used in this Article, includes the following: any person, firm, corporation or association which owns any such machine; provided, however, that the payment of such fee by any person, firm, corporation or association enumerated in this Article shall be deemed a compliance with this Article. (Prior code §5-621) Sec. 5-12-20. License required; application and fee. Any person displaying for public patronage or keeping for operation any jukebox or mechanical amusement device, as defined by Section 5-12-10, shall be required to obtain a license from the City, upon payment of a license fee. Application for such license shall be made to the City Clerk upon a form to be supplied by the City Clerk for that purpose. (Prior code §5-623) Sec. 5-12-30. Age requirement. No license shall be issued pursuant to the provisions of this Article to any applicant unless he or she has attained the age of twenty-one (21) years. (Prior code §5-631; Ord. 845 1975; Ord. 1589, 1999) ---PAGE BREAK--- 5-24 Sec. 5-12-40. Contents of application. The application for such license shall contain the following information: The applicant's name, address, age, date and place of birth; Prior convictions of the applicant, if any; Place where the machine or device is to be displayed or operated and the business conducted at that place; Description of the machine to be covered by the license, specifically including the mechanical features of the machine. (Prior code §5-624; Ord. 845 1975; Ord. 1589, 1999) Sec. 5-12-50. Investigation; approval. The application for the license shall be made out in duplicate, one copy being referred to the Chief of Police and the other copy to the Electrical Inspector. The Chief of Police shall investigate the location wherein it is proposed to operate such machine, ascertain if the applicant is a person of good moral character and either approve or disapprove the application. The Electrical Inspector shall inspect all wiring and connections to the machine, determine if the same complies with the electrical code of the City, and shall either approve or disapprove the application. No license shall be issued to any applicant unless approved by the Chief of Police and the Electrical Inspector. (Prior code §5-625) Sec. 5-12-55. Action upon application. Except as hereinafter provided, the City Clerk shall place all applications for new licenses provided for in this Article before the City Council for consideration at a duly convened Council meeting, and the City Council shall act upon such application within thirty (30) days after such application is filed with the City Clerk. Those applications for new licenses pursuant to this Article for premises for the conduct or operation of no more than two machines, including jukeboxes and/or mechanical amusement devices as defined in Section 5-12-10, shall be acted upon by the City Clerk within thirty (30) days after such application is filed with the City Clerk. Upon receipt of an application for renewal of any license issued pursuant to this Article, the City Clerk shall make inquiry as to whether the applicant for renewal of the license has violated any of the provisions of this Article or has allowed the licensed premises to become a public nuisance or in any manner injurious to the public health, safety or welfare. If the City Clerk determines that no reasonable basis exists for denial of the application for renewal of the license, the City Clerk shall renew the license. In the event that the City Clerk determines that reasonable grounds exist for denial of the application for renewal of the license, the application shall be placed before the City Council for consideration at a duly convened Council meeting upon notice to the applicant and public hearing to be held within thirty (30) days after such application is filed with the City Clerk. ---PAGE BREAK--- 5-25 In rendering a decision on any application pursuant to this Article, the City Council or the City Clerk, as applicable, shall consider the following: The character of the applicant; The proposed method of operation of the contemplated business, including but not limited to the number of persons to be employed, the hours of operation, the character of the persons to be employed, the abilities of the persons to be employed and the size of the proposed business operation; The location of the proposed business; The desires of the inhabitants and the operators of the other businesses in the general area of the proposed business; The zoning on the subject premises; The means of ingress and egress to the proposed business, as well as the public improvements, including sidewalks, drainage and public right-of-way servicing the subject premises; Any other factors which are relative to the effect on the health, safety and general welfare of the citizens of the City. If the applicant for a license pursuant to this Article is denied by the City Council or the City Clerk, as the case may be, the fee paid with the application shall be refunded to the applicant. (Ord. 1118 1982) Sec. 5-12-60. License fee required. Each applicant for a license pursuant to this Article shall, before being granted a license, pay an annual license fee for the privilege of operating or maintaining for operation each jukebox or mechanical amusement device as defined in this Article, and a fee per each machine on the premises for any portion of the period for which the license is issued pursuant to this Article. Such fee shall be set by resolution of the City Council, which shall remain in effect until such resolution is amended by action of the City Council. (Prior code §5-626; Ord. 845 1975; Ord. 1435 1993; Ord. 1589, 1999; Ord. 1723 2001) Sec. 5-12-70. Expiration of license. Each license issued pursuant to the provisions of this Article shall expire at 12:00 midnight on December 31 of the year for which the license is issued. (Prior code §5-633; Ord. 845 1975) Sec. 5-12-80. Display of license required. The license provided for in this Article shall be posted permanently and conspicuously at the location of the machine, in the premises wherein the device is to be operated or maintained to be operated. (Prior code §5-627; Ord. 845 1975; Ord. 1589, 1999) ---PAGE BREAK--- 5-26 Sec. 5-12-90. Hours of jukebox operation. No person holding a license under this Article shall permit the playing of jukeboxes, as defined in Section 5-12-10, between the hours of 2:00 a.m. and 6:00 a.m. of any day. (Prior code §5-628) Sec. 5-12-100. Gambling devices prohibited. Nothing in this Article shall in any way be construed to authorize, license or permit any gambling devices whatsoever, or any mechanism that has been judicially determined to be a gambling device or in any way contrary to law, or that may be contrary to any future laws of the State. (Prior code §5-622) Sec. 5-12-110. Seizure and destruction of amusement devices. If the Chief of Police has reason to believe any mechanical amusement device is used as a gambling device, such machine may be seized by the police and impounded, and if upon trial of the exhibitor for allowing it to be used as a gambling device the exhibitor be found guilty, such machine shall be destroyed by the police. (Prior code §5-630) Sec. 5-12-120. Suspension or revocation of license. Each license issued pursuant to this Article shall be subject to revocation or suspension by the City Council after notice and hearing, if such licensee is found to conduct his or her business in a manner which violates any ordinance of the City or the laws of the State, or in a manner which constitutes a breach of the peace or is a menace to the health, safety or general welfare of the public. (Prior code 629; Ord. 845 1975) Sec. 5-12-130. Exemptions. No charitable, religious, patriotic, philanthropic or nonprofit corporation shall be required to comply with the provisions of this Article. (Prior code §5-632; Ord. 845 1975) ARTICLE 5-16 Auctioneers Sec. 5-16-10. License required. No person shall sell any property at public auction within the City without first having obtained a license therefor pursuant to the provisions of this Article. (Prior code §5-201; Ord. 854 §1(part), 1975) Sec. 5-16-20. License fees. In order to sell at public auction in the City, any person maintaining an auction room or place of regular business for auction within the City shall pay to the City Clerk, at the time application is made for the license, a fee in an amount to be set by resolution of the City Council. In order for any person, other than a person maintaining an auction room or place of regular business for auction within the City, to sell at public auction in the City, such person shall pay to the City Clerk, at the time application is made for the license, a fee in an amount to be set by resolution of the City ---PAGE BREAK--- 5-27 Council. (Prior code §5-202; Ord. 854 §1(part), 1975; Ord. 1435 1993) Sec. 5-16-30. Expiration of license. Each license issued pursuant to this Article shall expire at 12:00 midnight on December 31 of the year for which the license is issued, notwithstanding any provision to the contrary contained in this Article. (Prior code §5-203; Ord. 854 §2(part), 1975) Sec. 5-16-40. Exceptions to applicability. No provision of this Article shall be considered as applicable to sales made at public auction under or by virtue of any legal proceeding or process through or from a court of law; to sales under any mortgage or deed of trust; to any tax sales; or to sales under any ordinance of the City by any municipal officer. (Prior code §5-204; Ord. 854 §2(part), 1975) ARTICLE 5-24 Cabarets Sec. 5-24-10. Cabaret defined. A cabaret means a cafe, restaurant or tavern where patrons are entertained by performers who dance, sing or have vaudeville acts for the entertainment of patrons within the corporate limits of the City. (Prior code §5-640; Ord. 868 §1(part), 1976) Sec. 5-24-20. License required. No person shall operate or maintain or permit the operation or maintenance of a cabaret within the City without first obtaining a license therefor pursuant to the provisions of this Article. (Prior code 641; Ord. 868 §1(part), 1976) Sec. 5-24-30. License fee; term. Upon application for a license pursuant to the provisions of this Article, there shall be paid to the City Clerk a fee in an amount to be set by resolution of the City Council, which shall remain in effect until such resolution is amended by action of the City Council. (Prior code §5-642; Ord. 868 §1(part), 1976; Ord. 1435 1993) Sec. 5-24-40. Nontransferability of license. Each license issued pursuant to the provisions of this Article shall be for a particular place or premises as described in the application and in the license and shall not be transferable to a different place or premises. (Prior code §5-643; Ord. 868 §1(part), 1976) Sec. 5-24-50. Expiration of license. Each license issued pursuant to the provisions of this Article shall expire at 12:00 midnight on December 31 of the year for which the license is issued. (Prior code §5-644; Ord. 868 §1(part), 1976) ---PAGE BREAK--- 5-28 ARTICLE 5-28 Cable Television System Sec. 5-28-10. Defined. As used in this Article, cable television system , community antenna television system , sometimes called CATV system or CATV , means any facility which, in whole or in part, 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; however, such term shall not include any facility which serves only the residents of one or more apartment dwellings under common ownership, control or management and commercial establishments located on the premises of such an apartment house. (Ord. 578 §l(part), 1968) Sec. 5-28-20. License required. A nonexclusive license or permit to install, operate and maintain a cable television system within all or any portion of the City shall first be obtained from the City Council before any person commences to operate and continues to operate a cable television system within the City. Such permit shall be obtained under and pursuant to the terms and provisions of this Article. (Ord. 578 §1(part), 1968) Sec. 5-28-30. Contents of application. Any person desiring a permit for a CATV system in the City shall file a written application with the City Clerk setting forth among other things a statement showing the financial condition, responsibility and resources of the applicant, the experience of the applicant in the CATV field and similar business, the ability of the applicant to furnish efficient and dependable service to the public and potential users of CATV in the City, the channels or program coverage of service of the applicant, with any particular features thereof and other pertinent information bearing upon the quality, scope and type of service. The applicant shall also state the percentage of its gross revenue which it will pay the City each month. (Ord. 578 §15, 1968) Sec. 5-28-40. Rights granted to permittee designated. Any permittee granted a license shall have the right, permission and authority to construct, operate and maintain all facilities necessary or appropriate for its cable system or the transmission of signals by wire under the streets, avenues, alleys, public rights-of-way, easements for the public or utilities and other City property now or hereafter existing. (Ord. 578 §15, 1968) Sec. 5-28-50. Rights granted to permittee nonexclusive. The right to use and occupy the streets, alleys and other public ways of the City for the purposes herein set forth shall not be exclusive, and the City reserves the right to grant a similar use in the streets and alleys to any other person or persons. As stated, all facilities shall be constructed underground and such construction shall refer to and not conflict or interfere with any existing utilities, their maintenance and repair. The permittee shall be obligated to protect its facilities at all times. (Ord. 578 1968) ---PAGE BREAK--- 5-29 Sec. 5-28-60. Application conditions, contents. Any permit granted under this Article shall be on a form provided by the City, and the same shall contain such terms, provisions and conditions as the City Council may determine. The form may be modified, amended and changed by the City Council as it deems proper. No vested rights shall accrue to any permittee by virtue that the permittee holds a permit so as to prevent any subsequent modifications, amendments and changes, such right being reserved to the City. (Ord. 578 §17, 1968) Sec. 5-28-70. Transferability of license; approval required. The permit or privileges provided for in this Article shall be personal to the permittee and they cannot be sold, transferred, leased, assigned and disposed of, in whole or part, either by voluntary or involuntary proceedings, without the consent of the City expressed by resolution of the City Council upon such conditions as it may prescribe, except such consent shall not be unreasonably withheld. (Ord. 578 §13, 1968) Sec. 5-28-80. Bond requirements. Each permittee shall file with the City Clerk a bond in the sum of ten thousand dollars ($10,000.00) to be executed by the permittee, with good and sufficient surety, running to and in favor of the City, and conditioned as follows: The full and faithful performance of all the terms and conditions of the license or permit by the permittee; That the permittee shall faithfully and simultaneously with construction, installation, repair and maintenance and upon termination or revocation restore the streets, rights-of-way, alleys and easements of the City to their prior condition; and That the City shall be saved harmless from any damage arising out of the exercise by the permittee, its successors and assigns, of the rights conferred by this Article. Upon the filing of such bond, the license or permit shall be in full force and effect. (Ord. 578 §16, 1968) Sec. 5-28-90. Liability of permittee; insurance. The permittee shall, at its own expense, defend all suits that may be brought against the City on account of the CATV business of the permittee or the construction or operation of its system and infringement of copyrights, patents or like violations, and shall keep the City harmless from any and all damages, claims, judgments, costs and expenses of every kind growing out of or connected with the business and installation or operation of the system. The permittee, as further assurance to the City shall, during the existence of the permit granted the permittee under this Article, furnish the City with proper evidence of liability insurance coverage with an approved company, insuring both the permittee and the City against claims, demands or losses for injury to persons or damage to property resulting from or connected with the construction, operation or maintenance of the system and business within the City. Such insurance shall have limitations in not less than one hundred thousand dollars ($100,000.00) for injury to one person in one occurrence, not less than three hundred thousand dollars ($300,000.00) for injury to more than one person in the same occurrence, and not less than one hundred thousand dollars ($100,000.00) for damage to property in one occurrence. (Ord. 578 §14, 1968; Ord. 1589, 1999) ---PAGE BREAK--- 5-30 Sec. 5-28-100. Gross subscription receipts defined. As used in Sections 5-28-110 through 5-28-140, gross subscription receipts means the amount received by the permittee from the sale of its services within the City, less the amounts collected for the connection, termination, reconnection or installation of lines or equipment necessary to commence rendering service to any customer. (Ord. 585 §1(part), 1968) Sec. 5-28-110. Fee; statement; right of inspection. The permittee shall pay to the City quarterly, as a permit fee, a sum equal to not less than five percent of its gross revenue and receipts derived from the conduct of its business within the corporate limits of the City. Within thirty (30) days after the end of each calendar year, the permittee shall file with the City a gross financial statement, prepared and certified by a certified public accountant, showing in detail the total gross receipts for the preceding calendar year; and shall simultaneously, with the filing of such statement, pay any unpaid balance for such year. The City shall have the right to inspect the permittee's books and records in order to verify the amount reported. (Ord. 585 §l(part), 1968) Sec. 5-28-120. Percentage paid by all permittees to be equal. Each permittee shall pay the same percentage of revenue and receipts to the City. In the event the City grants to a permittee offering substantially identical services in the City, a permit calling for a greater percentage of revenue and receipts than provided for in permits granted earlier by the City; or in the event that any grantee, licensee or permittee is granted a license, permit or other type of authorization, however designated, of a similar nature, to construct, operate and maintain a cable television system, offering substantially identical services, in any of the Counties of Adams, Jefferson, Arapahoe, or any city located therein or any portion thereof, or in the City and County of Denver, which provides for greater percentage of gross subscription receipts than that being paid to the City, then the City may, by written notice delivered to all permittees of this City, elect to be paid, in lieu of the permit fee then existing, a like fee so that the City shall receive and all permittees of this City shall pay a percentage equal to that paid by the permittee of the City paying the highest percentage or equal to that paid to the counties of Adams, Jefferson or Arapahoe, or to any city therein a portion thereof, or to the City and County of Denver, by any licensee, permittee or grantee of any such governmental unit, whichever is higher. (Ord. 585 §l(part), 1968) Sec. 5-28-130. Minimum percentage as fee. No permittee shall pay less than the percentage designated in this Article nor less than the percentage designated in the revocable permit issued by this City, whichever is higher, and all permittees shall pay the same percentage at all times to the City; nor shall any permittee pay a lower rate of return, after notice of election by the City, than any licensee, grantee or permittee, however designated, of the Counties of Adams, Arapahoe, Jefferson, or any city therein or portion thereof, or of the City and County of Denver, pays to such governmental units. Upon election by the City as provided in Section 5-28-120, all permit fees shall automatically be adjusted as of the date of election, and all permittees of this City shall pay the adjusted fee. (Ord. 585 §l(part), 1968; Ord. 1589, 1999) ---PAGE BREAK--- 5-31 Sec. 5-28-140. Method of fee payment; fund deposit. Any and all fees and revenues received under this Article shall be paid to the City Treasurer, who shall deposit the same in the capital improvement fund of the City, and the same shall not be used for any other purpose. (Ord. 585 §1(part), 1968) Sec. 5-28-150. Charges for service; approval required. The charges made by the permittee for its services, including installation, repair, removal and service charges, shall be according to maximum rates as established by the permittee and approved by the concurring vote of three-fourths of the elected members of the City Council. No such rate or charge shall be increased above the maximum approved without reapproval by the City Council, three-fourths of the elected members concurring in such rate or charge increase. (Ord. 578 §10, 1968) Sec. 5-28-160. Standards of service required. The system operated by the permittee shall deliver satisfactory television signals from such television stations as the City Council and the permittee may agree upon at the time the permit is granted. The system shall be installed and maintained in accordance with the highest and best accepted standards of the industry available and in compliance with such standards as the City Council may determine and require from time to time. (Ord. 578 §12, 1968) Sec. 5-28-170. Standards and regulations; compliance required. The installation, construction, operation and maintenance of the CATV system and the conduct of its business shall comply with all current federal, state and City laws, regulations and ordinances applicable thereto, and all laws, ordinances and regulations hereafter passed or adopted. (Ord. 578 §11, 1968) Sec. 5-28-180. Restrictions on aboveground facilities. In the event any facilities, poles or towers are required to be erected aboveground, the same shall be erected so as not to interfere with the traffic over the streets and alleys, and the locations of all poles, towers or other structures on public property shall be placed with prior written approval and under the supervision of the City as to such location, giving consideration to the reasonable operation of the same; further, such location on public property shall not be a vested interest, and the same shall be removed by the permittee whenever, in the sole determination of the City, the same restricts or obstructs the operation or location of the streets, alleys or public places, or municipal or franchised utilities located therein. Any and all relocation of the system reasonably requested by the City shall be at the expense of the permittee. Any and all streets and sidewalks disturbed or damaged in the construction or maintenance of such cables, lines and other appurtenances shall be repaired by the permittee, at its expense, and to the satisfaction of the City. The permittee shall be subject to all ordinances now in force or that may hereafter be enacted, relative to the use of the streets, alleys, sidewalks and public ways and places of the City. All construction of the permittee shall comply with all existing and future ordinances and regulations of the City. (Ord. 578 1968; Ord. 1589, 1999) ---PAGE BREAK--- 5-32 Sec. 5-28-190. Construction requirements for underground facilities. All construction of the permittee shall be underground and shall comply with all existing and future ordinances and regulations of the City. The construction, operation and maintenance of the permittee's transmission and distribution system shall be carried out in a manner which will not unnecessarily hinder or obstruct the free use of the streets or endanger persons or property. The permittee shall, at its own expense, modify its transmission and distribution system when necessary to avoid such hindrance, obstruction or danger. All construction shall be performed so as to create the least damage to the City streets, alleys, rights-of-way and easements pursuant to requirements and specifications as prepared by the City Manager. Complete restoration of all streets, rights-of-way, alleys and easements shall be made contemporaneously with installation or maintenance so as to leave them in as good condition as they were prior to installation or maintenance; and to this end the bond of the permittee shall be so conditioned. (Ord. 578 1968) Sec. 5-28-200. Activities prohibited, designated. The permittee shall not engage in the business of renting, repairing, selling or installing television sets, radios, antennas or other electronic devices for the reception of electronic signals except those required by its system. (Ord. 578 1968) Sec. 5-28-210. Pay TV prohibited. Nothing in this Article or permit granted in this Article shall be construed to authorize services known as pay TV; that is, the sale of programs on a program-by-program basis. (Ord. 578 1968) Sec. 5-28-220. Termination or revocation of license. The right, permit and privilege granted in this Article is subject to revocation by the City Council at its pleasure at any time. In the event of revocation, termination or expiration of this permit, the permittee shall, at its own expense and within one year from the date of notice of revocation, remove any poles, wires, cables and related appurtenances that have been installed and erected, and shall leave the streets, alleys and public ways and places in as good condition as they were prior to such installation. To this end, the permittee shall post a performance bond, and the same shall be so conditioned as provided herein. (Ord. 578 1968) ARTICLE 5-32 Circuses and Carnivals Sec. 5-32-10. Definitions. As used in this Article, the following words shall have the meanings ascribed to them as follows: Carnival means a traveling, commercial entertainment with organized programs of sideshows, rides, games, contests and similar activities, exhibitions and festivities. Circus means an assemblage of entertainment acts to which the public is invited and which includes a show of acrobats, trained animals, clowns and similar exhibitions and performances often enclosed in a tent or building and being of a transient nature. ---PAGE BREAK--- 5-33 Menagerie means a traveling collection or exhibition of animals, monsters or freaks of nature as well as wax or other figures, paintings or artificial curiosities and other similar types of shows and exhibitions usually kept in cases or enclosures for view by the public. (Prior code §5-402; Ord. 855 §1(part), 1975) Sec. 5-32-20. License required. No person shall cause or permit the operation or maintenance of a circus, carnival, menagerie or similar exhibition within the City without having first obtained a license therefor and having complied with the provisions of this Article. (Prior code §5-401; Ord. 855 §1(part), 1975) Sec. 5-32-30. Inspection; issuance. Before issuance of any license required by this Article, the application shall be referred to the Fire Chief for his or her review and instruction of the applicant as to compliance with the public safety code of the City. Upon approval of the Fire Chief and compliance with the requirements of this Article, the Director of Finance shall issue a license to the applicant. (Prior code §5-404; Ord. 855 §1(part), 1975; Ord. 1589, 1999) Sec. 5-32-40. License fee. The license fee to be charged to operate a circus, carnival, menagerie or similar exhibition shall be set by resolution of the City Council, which shall remain in effect until such resolution is amended by action of the City Council. (Prior code §5-403(1); Ord. 855 §1(part), 1975; Ord. 1435 1993) Sec. 5-32-50. Deposit required. No license shall be issued pursuant to this Article until the applicant has provided to the City Clerk a deposit in addition to the license fee provided for in Section 5-32-40 above. The amount of this deposit shall be set by resolution of the City Council. The deposit required in this Section shall be returned to the applicant after completion of its business operation upon presentation to the City Clerk of a written statement from the Protective Safety Inspection Division stating that the area occupied by the business of the applicant has been cleared of all trash, rubbish and debris resulting from the use of the area by the applicant. (Prior code §5-403(2); Ord. 855 §1(part), 1975; Ord. 1435 1993) ARTICLE 5-36 Merchant Guards and Patrols and Industrial Guards Sec. 5-36-10. Definitions. The following words and phrases, when used in this Article, shall have the following meanings, unless the context clearly indicates a different meaning. Agents and employees means all persons employed as a merchant guard or merchant patrol, in the conduct of such business within the City except stenographic and clerical duties in the business office of the merchant guard or merchant patrol or other employees not directly engaged in protecting and preserving the peace. ---PAGE BREAK--- 5-34 Business or industrial guard means an individual other than a member of a governmental police or sheriff's department who accepts employment from a single employer within the City for the purpose of watching, guarding or otherwise protecting the persons or property of that employer only, or preserving the peace in the conduct of that employer's business within the City, excepting any individual so employed by any common carrier engaged in interstate commerce. Merchant guard or merchant patrol means any person other than a member of a governmental police or sheriff's department or a business or industrial guard as hereinafter defined, who is engaged in the business of providing protection to persons and property within the City or preserving the peace in the conduct of any business within the City. Person means and includes association, club, society, firm, partnership, corporation and bodies politic as well as a natural born individual. (Prior code §5-C701; Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976; Ord. 1589, 1999) Sec. 5-36-20. License required. It is unlawful for any merchant guard or merchant patrol to employ any agent or employee within the City or for any employer to employ a business or industrial guard within the City, unless the person to be so employed has obtained a license issued by the City Clerk on behalf of the City as provided in this Article. It is unlawful for any agent or employee of a merchant guard or patrol or for any business or industrial guard to be so employed within the City unless such person has obtained a license issued by the City Clerk on behalf of the City as provided in this Article. (Prior code §5-C702; Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976; Ord. 1589, 1999) Sec. 5-36-30. License application, contents. Applicants for a license as a merchant guard or merchant patrol, or business or industrial guard, shall file an application with the City Clerk on forms to be provided by him or her for that purpose, which shall contain the following: If an applicant for a license as an agent or employee of a merchant guard or merchant patrol, or as a business or industrial guard: The name of the person by whom the applicant is to be employed, the address where the applicant is to be employed; the nature of the services to be rendered; the purpose of the employment; and any other pertinent facts required. In addition, the City Clerk shall require evidence that the applicant will be employed by a merchant guard, merchant patrol or other employer in the event the application is approved; A statement as to whether or not the applicant has been convicted of any felony, misdemeanor or ordinance violation (other than traffic violations), the nature of the offense, the penalty or punishment imposed and the date and place where such offense occurred; A statement as to the business or employment record of the applicant for the two years immediately preceding the date of application; Proof of good character of the applicant; and ---PAGE BREAK--- 5-35 Proof of bond hereinafter required in Section 5-36-130 of this Article. (Prior code §5-C703; Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976; Ord. 1589, 1999) Sec. 5-36-40. Application fee for license. All applications for licenses issued pursuant to this Article shall be accompanied by an application fee in an amount to be set by resolution of the City Council, which shall remain in effect until such resolution is amended by action of the City Council. (Ord. 1307 1988) Sec. 5-36-50. Duration of license and license fees. Each license issued pursuant to this Article shall expire at midnight of December 31 of the year of issuance. In addition to the annual license provided in Subsection above, the City Clerk may issue a temporary license for a period not to exceed thirty (30) days to any individual, agent or employee of a merchant guard or patrol upon the submission of a complete application as provided in Section 5-36-30. The annual license fee for any license issued pursuant to this Article shall be in an amount to be set by resolution of the City Council, which shall remain in effect until such resolution is amended by action of the City Council. (Ord. 1307 1988; Ord. 1836 2005) Sec. 5-36-60. License not required when. In the event of an unforeseen occurrence making it necessary for personnel not licensed under this Article to perform duties which otherwise require a license hereunder, the Chief of Police shall be notified. In such event, authorization may be given by the Chief of Police for such personnel to perform duties within the City without obtaining a license therefor for a period not in excess of three consecutive days. (Prior code §5-C706; Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976) Sec. 5-36-70. License not issued to certain persons. No license shall be issued to any of the following persons: Any person under eighteen (18) years of age; Any person who has a record of bad character, reputation or sobriety; Any person convicted of a felony, or other offense involving moral turpitude within five years immediately preceding the date of application; Any person who has a history of drug addiction or a history of violent acts against persons or property; Any person who is unable to prove that he or she will be employed as a business or industrial guard, or as a merchant guard or merchant patrol upon issuance of the license; or Any person whose physical or mental condition is such as to warrant concern that he or she will be unfit for the service to be rendered. (Prior code §5-C707; Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976) ---PAGE BREAK--- 5-36 Sec. 5-36-80. Identification card issued. In addition to the license provided for in this Article, the Chief of Police may issue to each licensee an identification card which should include the following, if issued: The type of license and expiration date thereof; Name, address and physical description of the licensee; The name of the employer, if the licensee is a business or industrial guard or agent or employee of a merchant guard or merchant patrol; The signature of the licensee and that of the Chief of Police; A statement as to whether or not the licensee is authorized to carry a firearm; and Such other information as the Chief of Police may deem advisable. (Prior code §5-C708(a); Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976) Sec. 5-36-90. Badge and insignia; approval authority. The Chief of Police is authorized to approve the use of badges and insignia used by merchant guards or merchant patrols, or business or industrial guards, but such badges or insignia should not be a colorable imitation of, or resemble in a confusing manner, the badges and insignia worn by officers of the Brighton Police Department, the Adams County Sheriff's Department or the Colorado State Patrol. (Prior code C708(b); Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976) Sec. 5-36-100. Uniform approval required; authority. Uniforms, if any, worn by business or industrial guards, merchant guards or merchant patrols, while employed within the City, shall be presented to the Chief of Police for his or her approval prior to issuance to merchant guards or merchant patrols, or business or industrial guards. Once this approval is obtained, the uniforms shall not thereafter be changed except by mutual agreement between the Chief of Police and the licensee. (Prior code §5-C708(c); Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976) Sec. 5-36-110. Vehicle equipment and insignia restrictions. Vehicles used within the City by any licensee shall not be equipped with any lights or sirens in violation of the traffic code of the City or the Colorado Department of Transportation, nor shall insignias be painted thereon which say "police," "policeman," "officer of the law," "sheriff," "deputy" or "state patrol." (Prior code §5-C708(d); Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976; Ord. 1589, 1999) Sec. 5-36-120. Advertising restrictions. The words police , policeman, officer of the law , sheriff , deputy or state patrol shall not be used in any advertising or upon the premises or equipment of any licensee within the limits of the City. (Prior code §5-C708(e); Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976; Ord. 1589, 1999) ---PAGE BREAK--- 5-37 Sec. 5-36-130. Bond required. Any person licensed pursuant to this Article shall furnish to the City Clerk a good and sufficient bond conditioned upon compliance with the laws of the City and the State, in an amount to be set by resolution of the City Council, which shall remain in effect until such resolution is amended by action of the City Council. (Prior code §5-B712; Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976; Ord. 1435 1993) Sec. 5-36-140. Firearm restrictions. Licensees shall have the right to carry firearms only if specifically authorized by the Chief of Police who will grant such authorization by special permit only when, in his or her opinion, the duties to be performed and services to be rendered by the licensee require that a firearm be carried for the protection of the licensee, and only when the Chief of Police is satisfied that the licensee is proficient in the care, maintenance and use of firearms. The authority to carry firearms by a licensee will be extended only while the licensee is performing the required duties of his or her employment and while en route to or from his or her place of employment. (Prior code §5-C709; Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976; Ord. 1589, 1999) Sec. 5-36-150. Discharge of licensee; notice and surrender of license. Whenever a business or industrial guard or a merchant guard or merchant patrol is discharged for any reason, the licensee shall immediately notify the Chief of Police of such fact, together with the reasons for the dismissal. When a licensee is dismissed, he or she shall forthwith surrender his or her license to the Chief of Police. In the event the person surrendering his or her license is reemployed during the remainder of the year, the license may be reissued to him or her without charge. (Prior code §5-C710(a)(b); Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976) Sec. 5-36-160. Notification required for address change. Any licensee changing his or her place of business or abode shall immediately notify the Chief of Police of such fact, together with the address of the new place of business or abode; provided, however, that in the event a licensee changes his or her place of abode, this shall not be deemed to be transfer of license or require the payment of any additional fees. (Prior code §5-C710(c); Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976) Sec. 5-36-170. Unlawful acts. It is unlawful for any licensee to: Arrest any person except when that person commits a criminal offense in the presence of the licensee; Fail to turn over immediately to the Police Department any such person arrested; Draw or fire a firearm in the performance of his or her duties except when necessary to protect himself or herself from bodily harm, or others against felonious assault or serious bodily injury and when all other means have failed to subdue the assailant, and then only when there is no obvious ---PAGE BREAK--- 5-38 danger of injury to innocent persons. Under no circumstances shall a licensee use the firearm to shoot at or warn a person who is fleeing to avoid arrest for a misdemeanor or ordinance violation; Fire at fleeing vehicles or the drivers or occupants unless the licensee has personal knowledge that the drivers or occupants have committed a dangerous felony, such as murder, robbery, sexual assault, mayhem or aggravated assault and there may be probable cause to believe that more lives may be placed in jeopardy unless the suspects are immediately apprehended; Hinder or interfere with any investigation under the jurisdiction of the Police Department; Wear a uniform, badge or insignia other than that authorized by the Chief of Police or at any time other than while in the performance of duties; Fail to report immediately to the Police Department all violations of City, state or federal laws; Investigate any acts or make any arrest except in connection with offenses or suspected offenses committed on the property of the licensee or that property which the licensee is employed to protect; Represent himself or herself to be an officer of the Police Department or other governmental law enforcement agency; or (10) Fail to conduct himself or herself in a lawful and orderly manner at all times. (Prior code B711; Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976; Ord. 1589, 1999) Sec. 5-36-180. City Clerk authority to suspend or refuse license. The City Clerk shall have the power to suspend, revoke or refuse to renew any license granted under this Article for violation of any federal or state statute or serious City ordinance subject to review by the City Council within ten (10) days of such action by the City Clerk. (Prior code §5-B713; Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976) Sec. 5-36-190. Administration responsibility. The Chief of Police shall be responsible for the administration of this Article and may issue and promulgate such rules not inconsistent with this Article subject to approval by the City Manager as may be necessary to effectuate the purpose and intent of this Article. By way of example, such rules pertaining to duties of licensees may include the furnishing of periodic reports to the Chief of Police at such times as are deemed necessary to assure compliance with this Article. (Prior code §5-B714; Ord. 742 §1(part), 1973; Ord. 896 §1(part), 1976) ---PAGE BREAK--- 5-39 ARTICLE 5-44 Pawnbrokers Sec. 5-44-10. Definitions. The following words and phrases, when used in this Article, shall have the following meanings, unless the context clearly indicates a different meaning. 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. Purchase transaction means the purchase by a pawnbroker in the course of his or her business of tangible personal property for resale, other than newly manufactured tangible personal property which has not previously been sold at retail, when such purchase does not constitute a contract for purchase. Tangible personal property means all personal property other than choses in action, securities or printed evidences of indebtedness, which property is deposited with or otherwise actually delivered into the possession of a pawnbroker in the course of his or her business in connection with the contract for purchase or purchase transaction. (Ord. 1323 1989) Sec. 5-44-20. License required. It is unlawful for any person to establish or conduct the business of pawnbroker unless such person shall have first procured a license as provided in this Article. (Prior code §5-A702; Ord. 785 §1(part), 1974; Ord. 1589, 1999) Sec. 5-44-30. Application for license. Every person desiring to engage in the business of pawnbroker shall make an application to the City Clerk in writing. Such application shall state the name of the person and, in case the applicant is a firm or corporation, the application shall state the names of the persons composing the firm or the officers of the corporation, and the address where the business is to be conducted and the amount of capital proposed to be used by the applicant in such business. (Prior code §5-A703; Ord. 785 §1(part), 1974) Sec. 5-44-40. Issuance of license; fee. Every person having complied with the provisions of Section 5-44-30 and having deposited with the City Clerk the amount of the license fee herein required, and having produced satisfactory evidence of his or her good character as being a suitable person to carry on the business of pawnbroker shall be granted a license by the City Manager as provided in this Article. The license issued hereunder shall state the name of the licensee and the address of the place of business. Such license shall entitle the licensee to do business at the place designated therein and shall not be transferable from one person to another, but may be transferred from one place to another with the consent of the City Manager. (Prior code A704; Ord. 785 §1(part), 1974; Ord. 1589, 1999) ---PAGE BREAK--- 5-40 Sec. 5-44-50. License fee, term, expiration. The annual license fee for conducting the business of pawnbroker shall be in an amount to be set by resolution of the City Council, which shall remain in effect until such resolution is amended by action of the City Council. All such licenses shall expire on December 31 of each year. (Prior code §5-A705(part); Ord. 785 §1(part), 1974; Ord. 1435 1993) Sec. 5-44-60. License renewal and replacement; bond requirements. No renewal or replacement license shall be issued for a period of less than six months. No license shall be effective until the licensee shall furnish a good and sufficient bond with at least two sureties or a corporate surety authorized to do business in the State, in a sum to be set by resolution of the City Council; and shall be conditioned on the faithful performance and observance of all ordinances and regulations of the City relating to pawns, pledges and pawnbrokers, and for the safekeeping or return of all articles held in pawn or pledge by such pawnbroker. (Prior code §5-A705(part); Ord. 785 §1(part), 1974; Ord. 1435 1993) Sec. 5-44-70. Required acts of pawnbrokers. A pawnbroker shall keep such records and perform such duties as provided in Section 12-56-103, C.R.S., as amended. (Ord. 1323 1989) Sec. 5-44-80. Prohibited acts. No pawnbroker shall violate the provisions of Section 12-56-104, C.R.S. (Ord. 1323 1989) Sec. 5-44-110. Lending to minor or intoxicated persons prohibited. No pawnbroker shall make any loan to any person under eighteen (18) years of age on any article or thing or take any article in pawn from any person obviously under the influence of intoxicating liquor or drugs. (Ord. 1323 §5 1989) Sec. 5-44-120. Safekeeping of pledges and insurance required. Any pawnbroker licensed and operating under the provisions of this Article shall provide a safe place for the keeping of pledges received by such licensee and shall have sufficient insurance on the property to pay for the value thereof in the event of loss by fire or otherwise. Proof of such insurance shall be deposited with the City Clerk. (Prior code §5-A711; Ord. 785 §1(part), 1974) Sec. 5-44-130. Statutory provisions; applicability. Regulation of pawnbrokers is a subject of joint statewide and local concern. The provisions of this Article are not intended to prohibit what the State allows nor allow what the State prohibits. Any conflict between the provisions of state statutes and the provisions of this Article shall be resolved accordingly. It is the intention of this Article to license and regulate all pawnbrokers doing business in this City and that all such pawnbrokers will be subject to the provisions of both this Article and applicable state statutes. (Ord. 1323 1989; Ord. 1589, 1999) ---PAGE BREAK--- 5-41 Sec. 5-44-140. Violation; penalty. Any person violating any of the provisions of this Article upon conviction shall be punish ed as provided in Article 1-24 of this Code. It is intended that this penalty shall apply to all violations of this Article except the felony violations specified in Section 12-56-104, C.R.S. (Ord. 1323 1989; Ord. 1589, 1999) ARTICLE 5-48 Peddlers, Canvassers and Solicitors Sec. 5-48-10. Definitions. As used in this Article: Excluding mobile vend o r , mobile vending and mobile vending unit as defined in Section 5-98- 10, canvasser or solicitor means any individual, whether a resident of the C ity 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, personal property of any nature whatsoever for future delivery, or for services to be 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 includes any person who, for himself or herself, or for another person, hires, leases, uses or occupies any building, structure, tent, railroad boxcar, hotel room, lodging house, apartment, shop or any other place within the City for the sole purpose of exhibiting any samples and taking orders for future delivery. Excluding mobile vend o r , mobile vending and mobile vending unit as defined in Section 5-98- 10, peddler means and includes 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 and merchandise, 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; and further provided that one who solicits orders and as a separate transaction makes deliveries to purchasers as a part of scheme or design to evade the provisions of this Article shall be deemed a peddler subject to the provisions of this Article. Peddler includes the words hawker and huckster. Person means and includes the singular and the plural and also means and includes any person, firm or corporation, association, club, copartnership or society, or any other organization. Transient merchant , itinerant merchant or itinerant vendor means any person, whether as 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, lodging houses, 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. However, such definition shall not be constructed to include any person occupying such temporary location who does not sell ---PAGE BREAK--- 5-42 from stock, but exhibits samples only for the purpose of securing orders for future delivery only. The person so engaged shall not be relieved from complying with the provisions of this Article 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. (Prior code §5-602; Ord. 1589, 1999; Ord. 1821 2004) Sec. 5-48-20. License required. It is unlawful for any person to engage in the business of a peddler, solicitor, canvasser or itinerant vendor, as defined in Section 5-48-10, within the corporate limits of the City, without first obtaining a license therefor as provided in this Article. (Prior code §5-601) Sec. 5-48-30. License application; bond; nontransferability. Every individual who is a peddler, canvasser, solicitor, transient merchant, itinerant merchant or itinerant vendor as defined in Section 5-48-10 shall be required to make an individual application, give a bond and secure a license, which license shall be issued in the individual's name. No license shall be transferable or used by any other person. Any license issued to a firm, association or corporation shall include the name of the authorized representative of the firm, association or corporation, which individual name of the representative shall appear on the application, bond, badge and license. No representative of the same firm, association or corporation shall use the same license; provided that an individual license may authorize the same individual to be a peddler, canvasser, solicitor, transient merchant, itinerant merchant or itinerant vendor, and such multipurpose license shall be for the same fee as if the license was issued for only one purpose. (Prior code §5-608) Sec. 5-48-40. Bond required; conditions and approval. Before any license, as provided by this Article, is issued to an applicant, such applicant shall file with the City Clerk a bond running to the City in the sum of one thousand dollars ($1,000.00), executed by the applicant as principal and at least one surety upon which service of process may be made in the State; such bond to be conditioned that the applicant shall comply fully with all the provisions of the City ordinances and of the state statutes regulating and concerning the applicant's business, and will pay all judgments rendered against said applicant for any violation of said ordinances or statutes, or any of them together with all judgments and costs that may be recovered against him or her by any person for damage growing out of any misrepresentation or deception practiced on any person transacting such business with such applicant, whether the misrepresentations or deceptions were made or practiced by the owners or by their servants, agents or employees, either at the time of making the sale or through any advertisement of any character whatsoever, printed or circulated with reference to the goods, wares and merchandise sold or any part thereof. Action on the bond may be brought in the name of the City to the use of the aggrieved person. Such bond must be approved by the City Clerk, both as to form and as to the responsibility of the surety thereon. (Prior code §5-605; Ord. 1589, 1999) Sec. 5-48-50. Application contents. An applicant for a license under this Article must file with the City Clerk an application in writing on a form to be furnished by the City Clerk, giving the following information: Name and description of the applicant; ---PAGE BREAK--- 5-43 Address, including an address where the applicant may be reached in the area of the City; A brief description of the nature of the business and the goods to be sold, solicited or delivered; The length of time for which the right to do business is desired; If a vehicle is to be used, a description of the same, including a license number; A statement as to whether or not the applicant has been convicted of any crime, misdemeanor or violation of any municipal ordinance and if so, the nature of the offense, and the punishment or penalty assessed therefor; A brief description of the nature and character of the advertising to be used for the business; Credentials from the employer of the applicant, including an authorization from the employer permitting the applicant to act as a representative in the City; and Such other information as the City Clerk shall deem necessary for the public health, safety and welfare. (Prior code §5-603; Ord. 843 1975) Sec. 5-48-60. License application; investigation. Upon receipt of such application by the City Clerk, the City Clerk shall cause an investigation of the applicant's business and character to be made to the extent being necessary for the protection of the public health, safety and welfare. If, as a result of such investigation, the applicant’s character or business responsibility is found to be unsatisfactory, the City Clerk shall endorse on such application his or her disapproval and his or her reasons therefor, and shall notify the applicant that the application has been disapproved and that no license will be issued for the reasons stated. If, as a result of such investigation, the character and business responsibility of the applicant are found to be satisfactory, the City Clerk shall endorse his or her approval on the application. Upon posting the bond as required by this Article, and payment of the required license fee by the applicant, the City Clerk shall issue the license applied for. (Prior code §5-604; Ord. 843 1975; Ord. 1589, 1999) Sec. 5-48-70. Fee schedule; exception. License fees pursuant to this Article shall be set by resolution of the City Council and shall remain in effect until such resolution is amended by action of the City Council. No fee shall be required of a person selling products of the farm or orchard actually produced by the seller. (Prior code §5-606; Ord. 843 1975; Ord. 1435 §10, 1993; Ord. 1589, 1999) ---PAGE BREAK--- 5-44 Sec. 5-48-80. Expiration of license. Each annual license issued pursuant to the provisions of this Article shall expire at 12:00 midnight on December 31 of the year for which the license is issued. Other licenses issued pursuant to this Article shall expire on the date specified in the license. (Prior code §5-613; Ord. 843 1975) Sec. 5-48-90. Suspension or revocation conditions. Licenses issued pursuant to the provisions of this Article may be revoked or suspended by the City Council after notice and hearing for any of the following causes: Fraud, misrepresentation or false statement contained in the application for license; Fraud, misrepresentation or false statement made in the course of carrying on the business for which the license is issued; Any violation of a City ordinance or state statute; Conduct of the business in an unlawful manner or in such a manner as to constitute a breach of the peace or to constitute a menace to the health, safety or general welfare of the public. (Prior code §5-611; Ord. 843 1975) Sec. 5-48-100. Exhibition of license required. Each licensee hereunder shall exhibit his or her license at the time of initial introduction to persons in the City for the purpose of consummating any transaction included in this Article. (Prior code §5-612; Ord. 843 1975) Sec. 5-48-110. Exemptions to Article applicability. This Article does not apply to persons selling personal property at wholesale to retailers in the City, nor to merchants or their employees with established premises for the conduct of sales to the public who deliver goods in the regular course of business in the City, nor shall it apply to the following professions or businesses in the City: newsboys, state-licensed real estate agents, state-licensed insurance agents, public utilities and their employees franchised to do business within the City, and motor vehicle salesmen. Any person desiring to solicit or have solicited in his or her name money, property or financial assistance of any kind or desiring to sell or distribute any item of literature or merchandise for which a fee is charged or solicited from persons in the City for charitable, religious, patriotic or philanthropic purposes, shall be exempt from the requirements of Sections 5-48-40, 5-48-50 and 5-48-70 of this Article, provided that there is filed with the City Clerk an application giving the following information: Name and purpose of the cause; Names and addresses of the officers and directors of the organizations; Period during which solicitation is to be carried on; and ---PAGE BREAK--- 5-45 Whether or not any commissions, fees or wages are to be expended in connection with such solicitation and the amount thereof. In all other respects, the requirements of this Article shall apply to such applicants. (Prior code §5-607; Ord. 862 1976) Sec. 5-48-120. Chief of Police to report violations. The Chief of Police shall report to the City Clerk all violations and suspected violations of this Article. (Prior code §5-610; Ord. 843 1975) ARTICLE 5-52 Poolrooms, Billiard Halls and Bowling Alleys Sec. 5-52-10. License required. No person shall operate or maintain for profit, or permit the operation or maintenance for profit, within the City, any billiard hall, poolroom or bowling alley, without having received a license therefor from the City pursuant to the provisions of this Article. (Prior code §5-407; Ord. 852 §1(part), 1975) Sec. 5-52-20. Fee schedule. The annual license fee for a billiard hall or poolroom in the City shall be set by resolution of the City Council and shall remain in effect until such resolution is amended by action of the City Council, and shall be payable to the City Clerk at the time of application for the license. The annual license fee for operation of a bowling alley in the City shall be set by resolution of the City Council and shall remain in effect until such resolution is amended by action of the City Council, and shall be payable to the City Clerk at the time of application for the license. (Prior code §5-408; Ord. 852 §1(part), 1975; Ord. 1435 §11, 1993) Sec. 5-52-30. Expiration. All licenses issued pursuant to the provisions of this Article shall expire at 12:00 midnight on December 31 of the year for which issued. (Prior code §5-409; Ord. 852 §1(part), 1975) ARTICLE 5-56 Public Dances Sec. 5-56-10. License required; exceptions. No person shall operate, maintain or permit the operation or maintenance of a public dance hall, booth, pavilion or other place where dancing is permitted in public, in a place provided therefor within the City, without first obtaining a license therefor pursuant to the provisions of this Article. This requirement shall not apply to dances conducted by schools, churches or charitable organizations. (Prior code §5-430; Ord. 856 §1(part), 1975) ---PAGE BREAK--- 5-46 Sec. 5-56-20. Fee; license term. Upon application for a license pursuant to the provisions of this Article, there shall be paid to the City Clerk a fee to be set by resolution of the City Council, which shall remain in effect until such resolution is amended by action of the City Council. Such license shall be issued for a period of one year or any portion thereof, and shall expire on December 31. (Prior code §5-431; Ord. 856 §1(part), 1975; Ord. 1435 §12, 1993) Sec. 5-56-30. Location; nontransferability. Each license issued pursuant to the provisions of this Article shall be for a particular place or premises as described in the application and in the license and shall not be transferable to a different place or premises. (Prior code §5-432; Ord. 856 §1(part), 1975) Sec. 5-56-40. Expiration. Each license issued pursuant to the provisions of this Article shall expire at 12:00 midnight on December 31 of the year for which the license is issued. (Prior code §5-433; Ord. 856 1975) ARTICLE 5-68 Tree Care Sec. 5-68-10. License required. It is unlawful for any person to engage in the business for hire of planting, cutting, trimming, pruning, removing, spraying or otherwise treating trees, shrubs, hedges or vines, or applying herbicides, insecticides, fungicides, soil conditioners or fertilizers by spraying or disseminating any such materials by any device, other than by hand tools, actuated in whole or in part by compressed air, gas, water or mechanical means or source, without first obtaining a license therefor from the City. (Ord. 664 §1(part), 1971; Ord. 1589, 1999) Sec. 5-68-20. Application; contents. The license application shall specify the type or types of service to be performed. Before any license is issued, the applicant will be examined orally and/or in writing to determine the applicant's qualifications and competency to engage in the requested business. Each such license issued shall specify on its face the type or types of service the licensee is authorized to perform. (Ord. 664 §1(part), 1971) Sec. 5-68-30. Fee. The annual license fee shall be paid to the City Clerk at the time of application for the license, and such fee shall be an amount to be set by resolution of the City Council, which shall remain in effect until such resolution is amended by action of the City Council. If the initial license is issued after June 30, the fee for the balance of the calendar year shall be one-half of the annual fee. (Ord. 664 §1(part), 1971; Ord. 1435 §15, 1993) ---PAGE BREAK--- 5-47 Sec. 5-68-40. Insurance requirements. No license shall be issued until the licensee files with the City Clerk a satisfactory public liability insurance policy covering all operations of the licensee in the sum of at least fifty thousand dollars ($50,000.00) for each person injured and not less than one hundred thousand dollars ($100,000.00) in case of injury of two or more persons in any one accident, and in the sum of not less than twenty- five thousand dollars ($25,000.00) for property damage. The policy may be written to allow the first one hundred dollars ($100.00) of liability for damage to property to be deductible. Should any policy be cancelled, the City shall be notified by the company writing such policy within ten (10) days after such cancellation is effective. Failure of the licensee to maintain required insurance shall be grounds for revocation or suspension of such license. (Ord. 664 §1(part), 1971) ARTICLE 5-72 Massage Therapist Licenses Sec. 5-72-10. Short title. This Article may be cited as the "Brighton Massage Therapist Licensing Code." (Ord. 1753 2002) Sec. 5-72-20. Required; term. No person shall engage in the business of providing a massage, massage therapy or massage services without first obtaining from the City Clerk a massage therapist license authorizing the person to engage in such business. Each license must be renewed annually. (Ord. 1753 2002) Sec. 5-72-30. Definitions. As used in this Article: Massage means a method of treating the body for remedial or hygienic purposes, including but not limited to rubbing, stroking, kneading or tapping with the hand or an instrument or both. Massage therapist means a person who has graduated from a massage therapy school approved or accredited by the state educational board or division charged with the responsibility of approving or accrediting private occupational schools or from a school with comparable approval or accreditation from another state with transcripts showing completion of at least five hundred ( 500 ) hours of training in massage therapy. A massage therapy school may include an equivalency program approved or accredited by the state educational board or division charged with the responsibility of approving or accrediting private occupational schools. (Ord. 1753 2002) Sec. 5-72-40. Qualifications. Massage therapist licenses shall be issued only to persons qualified as massage therapists. (Ord. 1753 2002) Sec. 5-72-50. Applications. Every applicant for a massage therapist license shall furnish the City Clerk the following: ---PAGE BREAK--- 5-48 Name, date of birth and residential address; Applicant's height, weight and color of eyes; Diploma or certificate of graduation as contemplated by Section 5-72-30 above; Evidence that the school attended complies with the requirements of Section 5-72-30. (Ord. 1753 2002) Sec. 5-72-60. License and renewal fees. Each application for a new license or a renewal shall be accompanied by a fee paid to the City Clerk at the time of application for a license, and such fee shall be an amount to be set by resolution of the City Council and shall remain in effect until such resolution is amended by action of the City Council. Such license shall be issued F or a period of one year or any portion thereof, and shall expire on December 31. (Ord. 1753 2002) ARTICLE 5-73 Massage Parlors Sec. 5-73-10. Short title. This Article may be cited as the "Brighton Massage Parlor Code." (Ord. 1753 2002) Sec. 5-73-20. License required; term. No person shall engage in the business of operating a massage parlor without first obtaining from the local licensing authority, as described in Section 5-73-40 below , a massage parlor license authorizing the person to engage in such business. Each license must be renewed annually. (Ord. 1753 2002) Sec. 5-73-30. Definitions. As used in this Article: Applicant includes any natural person, partnership, association, company, corporation, organization or other association making application for licensing under this Article. Whenever the application required pursuant to Section 5-73-50 below provides for the furnishing of information or production of documents, and the applicant is other than a natural person, then such information or production requirements shall apply to the individual making such application, along with all partners and associates, if the applicant is a partnership or other association; and the president, vice president, secretary, managing officer and all shareholders holding over ten percent (10%) of the outstanding capital stock, if the applicant is a corporation. The applicant shall additionally provide the information and production for each employee providing massage services, and in each instance such information and production shall be submitted before the issuance of any identity card as to that individual. Massage parlor means an establishment providing massage, but it does not include training rooms of public and private schools approved or accredited by the state education al board or approved or accredited by the division charged with the responsibility of approving or accrediting private ---PAGE BREAK--- 5-49 occupational schools, training rooms of recognized professional or amateur athletic teams and licensed health care facilities. A fa cility operated for the purpose of massage therapy performed by a massage therapist is not a parlor. Massage therapist means a person who has graduated from a massage therapy school approved or accredited by the state educational board or division charged with the responsibility of approving or accrediting private occupational schools, or from a school with comparable approval or accreditation from another state with transcripts indicating completion of at least five hundred ( 500 ) hours of training in massage therapy. A massage therapy school may include an equivalency program approved or accredited by the state educational board or division charged with the responsibility of approving or accrediting private occupational schools. (Ord. 1753 2002) Sec. 5-73-40. Local licensing authority designated. The City Council shall be the local licensing authorit y for the licensing of massage parlors. (Ord. 1753 2002) Sec. 5-73-50. License application. Every applicant for the issuance of a massage parlor license shall, upon application, submit the following documents and specify the following information, in writing and verified by oath or affirmation, upon forms prepared and furnished by the local licensing authority: Name, date of birth and residential address of applicant for the immediate past three years, providing dates of residency for each such address; Written statements of at least three bona fide residents of the City relating to the issue of the good moral character of the applicant; Written proof that the applicant is over the age of eighteen (18) years; Applicant's height, weight and color of eyes; Two recent portrait photographs at two inches by two inches reflecting the present general appearance of the applicant; Applicant shall submit to the City Police Department for the taking of fingerprints, which shall be retained by the City Clerk; The business, occupation or employment of the applicant for the five years immediately preceding the date of application; The massage or similar business license history of the applicant, including whether such person, in a previous operation, in this or another state, has had his or her license revoked or suspended, the reason therefor and any such business activity or occupation subsequent to the action of suspension or revocation; ---PAGE BREAK--- 5-50 The conviction or plea of nolo contenders or no contest of any crime which in its nature, under the laws of the State , would constitute a felony, along with any conviction for crimes in the nature of prostitution, pimping or pandering; (10) A certificate from a medical doctor or doctor of osteopathy designating that, as to each person applying massage, within thirty (30) days immediately prior thereto, he or she has been examined and found to be free of any contagious or communicable disease; (11) The address of the premises where the massage business will be located; whether the building in which the massage activity is to be conducted is located within five hundred (500) feet of any church, public or parochial school, the principal campus of any college, university or se minary or any property used for residential purposes. The distance referred to in this Section is to be computed by direct measurement from the nearest property line of the land used for school, church or residential purposes to the nearest portion of the building in which the massage activity is to be conducted, using a route of direct pedestrian access; and such location shall be considered in determining whether such license should be granted; (12) Such other identification and information as the Chief of Police may require in order to discover the truth of the information set forth in the application. (Ord. 1753 2002) Sec. 5-73-60. Minimum requirements. The application for a new massage parlor license sh all not be issued unless an inspection by the City reveals that the establishment complies with each of the following minimum requirements: Sign. A recognizable and legible sign shall be posted at the main entrance identifying the establishment as a massage parlor. Lighting. Minimum lighting shall be provided in accordance with the Uniform Building Code and, in addition, at least an artificial light of not less than forty (40) watts shall be provided in each room or enclosure where massage services are performed on patrons. Ventilation. Minimum ventilation shall be provided in accordance with the Unifo rm Building Code. Equipment. Adequate equipment for disinfecting and sterilizing instruments used in performing acts of massage shall be provided. Water. Hot and cold running water shall be provided at all times. Linen storage. Closed cabinets shall be provided for the storage of clean linen. Bathing, dressing, locker and toilet facilities. Adequate bathing, dressing, locker and toilet facilities shall be provided for patrons. A minimum of one tub or shower, one dressing room containing a separate locker for each patron to be served, which locker shall be capable of being locked, and a minimum of one toilet and one wash basin shall be provided by every massage parlor; provided, however, that if male and female patrons are to be served simultaneously at said establishment, a separate massage room or rooms, separate dressing facilities and separate toilet facilities shall be provided for male and female patrons. ---PAGE BREAK--- 5-51 Physical and sanitary conditions. All walls, ceilings, floors, pools, showers, bathtubs, steam rooms and all other physical facilities for the parlor must be in good repair and maintained in a clean and sanitary condition. Wet and dry heat rooms, steam or vapor rooms or steam or vapor cabinets, shower compartments and toilet rooms shall be thoroughly cleaned each day the business is in operation. Bathtubs shall be thoroughly cleaned after use. Towels and linens. Clean and sanitary towels and linens shall be provided for each person of the establishment. No common use of towels and linens shall be permitted. (10) Facilities and employees. A minimum of one separate wash basin shall be provided in each massage parlor for the use of employees of any such establishment, which basin shall provide soap or detergent and hot and cold running water at all times, and shall be located within or as close as practicable to the area devoted to the performing of massage services. In addition, there shall be provided, at each wash basin, sanitary towels placed in a permanently installed dispenser. (11) Compliance is required with all zoning, building and fire prevention laws of the City. (Ord. 1753 2002) Sec. 5-73-70. License and renewal fees. Each application for a new massage parlor license or renewal shall be accompanied by a fee to be paid to the City Clerk at the time of application for a license. Such fee shall be in an amount to be set by resolution of the City Council and shall remain in effect until such resolution is amended by action of the City Council. Such license shall be issued for a period of one year or any portion thereof, and shall expire on December 31. (Ord. 1753 2002) Sec. 5-73-80. Identity card required; contents; validity. Prior to commencing work in the provision or application of massage services in or upon the licensed premises, every applicant, licensee and employee shall obtain an identity card, required by the Colorado Massage Parlor Code, from the Brighton Police Department, which card shall contain the name, address, date of birth, name of physician and date of medical examination as required by Section 5-73-50, a recent photograph of suitable size, along with the name of the person or firm to whom the massage parlor license is issued, and the license number and street address of the licensed premises. Such identity card shall be signed by the City Clerk or designee. The identity card shall only be valid upon the premises of the massage parlor thereon endorsed, and unless revoked or suspended, shall be valid during the term of the current massage parlor license. (Ord. 1753 2002) Sec. 5-73-90. Massage therapy license. Any person, prior to engaging in the business of providing a massage, massage therapy or massage services upon the premises of a duly licensed massage parlor, shall obtain, and at all times retain, a valid massage therapist license. A duly licensed massage parlor operator shall not engage in the business of performing massage, massage therapy or massage services without a massage therapist license under Article 5-72 of this Code. (Ord. 1753 2002) ---PAGE BREAK--- 5-52 ARTICLE 5-76 Use of 1886 Church Sec. 5-76-10. Authorization required. Except as hereinafter provided, no person, organization or association shall use the 1886 Church located at 147 South Main Street, City of Brighton, Colorado, without first having obtained authorization therefor from the City. (Ord. 926 §1(part), 1977) Sec. 5-76-20. Application for authorization. Application for such use shall be made in such manner as is approved by the City Manager. (Ord. 926 §1(part), 1977) Sec. 5-76-30. Fees. The schedule of fees to be charged for use of the 1886 Church shall be reviewed at such times as the City Council determines to be necessary and shall be set by resolution duly adopted by the City Council. (Ord. 1247, 1986) Sec. 5-76-40. Exemption. This Article shall not be construed to require any payment or deposit of fees with the City by the Adams County Historical Society for use of the 1886 Church. (Ord. 926 §1(part), 1977) ARTICLE 5-80 Franchise for Gas and Electricity Division 1 Grant of Franchise Sec. 5-80-10. Definitions. For the purpose of this franchise, the following words and phrases shall have the meaning 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. City means the City of Brighton, a home rule municipality in Adams and Weld Counties, State of Colorado. City Council means the governing body of the City. ---PAGE BREAK--- 5-53 Company means 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. Company facilities means all facilities of the Company reasonably necessary to provide gas service into, within and through the City, including but not limited to plants, works, systems, transmission and distribution structures, lines, equipment, pipes, mains, gas compressors, meters, meter reading devices, communication and data transfer equipment, control equipment and gas regulator stations. Force majeure means the inability to undertake an obligation of this franchise due to a cause that could not be reasonably anticipated by a party or is beyond its reasonable control after exercise of best efforts to perform, including but not limited to fire, strike, war, riots, terrorist acts, acts of governmental authority, acts of God, floods, epidemics, quarantines, labor disputes, unavailability or shortages of materials or equipment or failures or delays in the delivery of materials. 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 a force majeure condition. Gross revenues means those amounts of money which the Company receives from the sale of gas within the City under rates authorized by the Public Utilities Commission, (ii) from the transportation of gas to its customers within the City, 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 or transportation of gas to the City as a customer of the Company. Other City property means the surface, the air space above the surface and the area below the surface of any property owned or directly controlled by the City or hereafter held by the City that would not otherwise fall under the definition of streets , including, without limitation, City parks and open space, which may provide a suitable location for the placement of Company facilities, provided that such placement is specifically approved in writing by the City. Other City property does not include public utility easements. Private project means any project which is not covered by the definition of public project. Public project means any public work or improvement within the City that is wholly or beneficially owned by the City, or any public work or improvement within the City where fifty percent (50%) or more of the funding is provided by any combination of the City, the federal government, the State of Colorado, any Colorado county, the Urban Drainage and Flood Control District or the Regional Transportation District, but excluding all other entities established under Title 32, C.R.S. Public Utilities Commission or PUC means the Public Utilities Commission of the State of Colorado or other state agency succeeding to the regulatory powers of the Public Utilities Commission. Public utility easement means any easement over, under or above public or private property expressly dedicated to and accepted by the City for the use of utility companies for the placement of utility facilities, including but not limited to Company facilities. Public utility easement shall not include any easement that is located within streets or other City property. ---PAGE BREAK--- 5-54 Residents means 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. Streets or City streets means the surface, the air space above the surface and the area below the surface of any City streets, alleys, bridges, roads, lanes, public easements (excluding any easements the terms of which do not permit the use thereof by public utilities) , and other public rights-of-way within the City, which are primarily used for motorized vehicle traffic. Streets shall not include public utility easements, other City property, or parks or trails within the City. Supporting documentation means 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 gas service and meter set are needed and the name and contact information for the City's project manager. Tariffs means those tariffs of the Company on file and in effect with the PUC. Utility service means the sale of gas to residents by the Company under rates approved by the PUC, as well as the delivery of gas to residents by the Company. (Ord. 2112 2011) Sec. 5-80-20. Grant of franchise. 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, public utility easements (as applicable) and other City property: To provide utility service to the City and to its residents under tariffs on file with the PUC; and To acquire, purchase, construct, install, locate, maintain, operate and extend into, within and through the City all Company facilities reasonably necessary for the sale, storage, purchase, exchange, transmission, transportation and distribution of utility service within and through the City. (Ord. 2112 2011) Sec. 5-80-30. Conditions and limitations. Scope of franchise. The grant of this franchise shall extend to all areas of the City as it is now or hereafter constituted that are within the Company's PUC-certificated service territory; however, nothing contained in this franchise shall be construed to authorize the Company to engage in activities other than the provision of utility service. Subject to City usage. The right to make reasonable use of City streets and other City property under the franchise is subject to and subordinate to any City usage of said streets and other City property. Prior grants not revoked. This grant is not intended to revoke any prior license, grant or right to use the City streets, other City property or public utility easements, and such licenses, grants or rights of use are hereby affirmed. Such rights shall, however, be governed by the terms of this franchise unless otherwise provided herein or by separate instrument. ---PAGE BREAK--- 5-55 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. No right to use parks and open space. This franchise does not grant the Company the right, privilege or authority to use or occupy any land currently designated as parks, park land or open space of the City or which may in the future be so designated, except to the extent the Company is currently using or occupying said parks, park land or open space, and as otherwise authorized in writing by the City. The Company shall not expand its use or occupancy of said parks, park land or open space or upgrade the facilities therein except by specific written authorization of the City; provided, however, that nothing herein contained shall require such specific written authorization or limit or restrict the Company's right to reasonably maintain, renovate, repair, replace or make an expansion of such facilities, provided that such expansion is necessary, reasonable and foreseeable. As used in this Subsection, an expansion that is necessary, reasonable and foreseeable is one that reflects a natural expansion of such facility that is consistent with the demand for utility service that such expansion is designed to accommodate. (Ord. 2112 2011) Sec. 5-80-40. Effective date and term. Term. This franchise shall take effect on November 1, 2011, and shall supersede any prior franchise grants to the Company by the City. This franchise shall terminate on October 31, 2031, unless extended by mutual consent. (Ord. 2112 2011) Division 2 Police Powers Sec. 5-80-60. Police powers. The City shall have the right to adopt, from time to time, in addition to the provisions contained herein, such Charter provisions, ordinances and rules and regulations as it may deem necessary in the exercise of its governmental and police powers for the protection of the health, safety and welfare of its citizens. 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 and other City property, it will make a good faith effort to advise the Company of such consideration; provided, however, that lack of notice shall not be justification for the Company's noncompliance with any applicable local requirements. (Ord. 2112 2011) Sec. 5-80-70. Regulation of streets or other City property. The Company expressly acknowledges the City's right to enforce regulations concerning the Company's access to or use of the streets, public utility easements and other City property, including requirements for permits and the payment of fees therefor. The Company shall attempt to coordinate its projects in City streets, public utility easements and other City property with City street improvement programs. (Ord. 2112 2011) ---PAGE BREAK--- 5-56 Sec. 5-80-80. Compliance with laws. The Company shall and fully comply with all laws, ordinances, regulations, permits and orders enacted by the City, and in particular those regarding curb and pavement cuts, excavating, digging and related construction activities. The City Manager shall be the City's agent for inspection of Company projects in streets, public utility easements and other City property to assure compliance with City ordinances, regulations, permits and orders related to any such projects. (Ord. 2112 2011) Division 3 Franchise Fee Sec. 5-80-100. Franchise fee. Fee. In partial consideration for the grant of this franchise, which provides for the Company's use of City streets, public utility easements and other City property which are valuable public properties acquired and maintained by the City at great expense to its residents, and in recognition of the fact that the grant to the Company of the use of City streets, public utility easements and other City property is a valuable right, the Company shall pay the City a sum equal to three percent of all gross revenues. To the extent required by law, the Company shall collect this fee from a surcharge upon City residents, not including the City, who are customers of the Company. 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 the franchise, an aggregate amount equal to the amount which the Company would have paid as a franchise fee as partial consideration for use of the City streets, public utility easements and other City property. To the extent required by law, the Company shall collect the amounts agreed upon through a surcharge upon utility service provided to City residents, not including the City. 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. Utility service provided to the City. No franchise fee shall be charged to the City for utility service provided directly or indirectly to the City for its own consumption, unless otherwise directed by the City. Change of franchise fee or other franchise terms. The Company shall report to the City, within sixty (60) days, the execution or change of any franchise under which a municipality receives a franchise fee greater than is provided for herein. Once each year, the City Council may, by ordinance, change the franchise fee to that provided under any municipal franchise entered into by the Company in Colorado ---PAGE BREAK--- 5-57 after first giving thirty (30) days' notice to the Company. (Ord. 2112 2011) Sec. 5-80-110. Remittance of franchise fee. Remittance schedule. Franchise fee revenues shall be remitted by the Company to the City, as directed by the City, in installments not more than thirty (30) days following the close of each month. 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 below; otherwise, the error shall be corrected in the next payment. However, if the error results in an overpayment of the franchise fee to the City and said overpayment is in excess of five thousand dollars ($5,000.00), credit for the overpayment shall be spread over the same number of months that the error was undiscovered. All franchise fee underpayments shall be corrected in the next payment, together with interest computed at the rate set by the PUC for customer security deposits held by the Company, from the due date of the underpayment 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. Audit of franchise fee payments. Every three years, commencing at the end of the third year of this franchise, the Company shall conduct an internal audit to investigate and determine the correctness of the franchise fee paid to the City. Such audit shall be limited to the previous three calendar years. The Company shall provide a written report to the City Manager containing the audit findings. If the City disagrees with the results of the audit and if the parties are not able to informally resolve their differences, the City may conduct its own audit at its own expense, and the Company shall cooperate fully, including but not necessarily limited to providing the City's auditor with all information reasonably necessary to complete the audit. If the results of a City audit conducted pursuant to Paragraph above concludes that the Company has underpaid the City by two percent or more, in addition to the obligation to pay such amounts to the City, the Company shall also pay all costs of the City's audit. Fee disputes. Either party may challenge any written notification of error as provided for in Subsection above by filing a written notice to the other party within thirty (30) 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. 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. 2112 2011) ---PAGE BREAK--- 5-58 Sec. 5-80-120. Franchise fee payment not in lieu of permit or other fees. 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 occupation, occupancy or similar tax for the use of City streets, public utility easements and other City property. (Ord. 2112 2011) Division 4 Administration of Franchise Sec. 5-80-140. City designee. The City Manager shall be the official having full power and authority to administer the franchise. The City Manager 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 name and telephone numbers of said City representatives. The City Manager may change these designations by providing written notice to the Company. The City designee shall have the right, at all reasonable times, to inspect any Company facilities in City streets, public utility easements and other City property. (Ord. 2112 2011) Sec. 5-80-150. Company designee. 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. 2112 2011) Sec. 5-80-160. Coordination of work. The Company agrees to coordinate its activities in City streets, public utility easements and other City property 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 and/or work plans for construction and other similar construction work which may affect City streets, public utility easements and other City property. The City and Company shall hold such additional 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 City air and water pollution regulations are complied with, and that aesthetic and other relevant planning principles have been given due consideration. (Ord. 2112 2011) ---PAGE BREAK--- 5-59 Division 5 Supply, Construction and Design Sec. 5-80-180. Purpose. 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. 2112 2011) Sec. 5-80-190. Supply. Subject to the jurisdiction of the PUC, the Company shall take all reasonable and necessary steps to provide a sufficient supply of gas to residents at the lowest reasonable cost consistent with reliable supplies. (Ord. 2112 2011) Sec. 5-80-200. Service to City facilities. 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. 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 gas rates. (Ord. 2112 2011) Sec. 5-80-210. Restoration of service. Notification. The Company shall provide to the City daytime and nighttime telephone numbers of one or more designated Company representatives (or a Company hotline) from whom the City designee may obtain status information from the Company on a twenty-four-hour basis concerning interrupt tions of utility service or emergencies involving Company facilities in any part of the City and the status of the Company's responses to the interruptions or emergencies. Restoration. In the event the Company's gas system, or any part thereof, is partially or wholly destroyed or incapacitated, the Company shall use due diligence to restore such gas 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. 2112 2011) Sec. 5-80-220. Obligations regarding Company facilities. Company facilities. All Company facilities within City streets, public utility easements and other City property shall be maintained in good repair and condition. Meetings and reports. Upon reasonable request of the City, but no more frequently than annually, the Company shall provide public reports, including live presentations to the City where appropriate, ---PAGE BREAK--- 5-60 concerning the status of Company facilities and service within the City, including the status of any infrastructure improvement programs. Company work within the City. All Company work within City streets, public utility easements and other City property, performed or caused to be performed by the Company, shall be done: In a high-quality manner; In a timely and expeditious manner; In a manner which minimizes inconvenience to the public; In a cost-effective manner, which may include the use of qualified contractors; and In accordance with all applicable laws, ordinances and regulations. 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, public utility easements or other City property. Company facilities shall be installed and maintained in City streets, public utility easements and other City property so as to minimize interference with other property, trees and other improvements and natural features in and adjoining the City streets, public utility easements and other City property, in light of the Company's obligation under Colorado law to provide safe and reliable utility facilities and service. Permit and inspection. The installation, renovation and replacement of any Company facilities in the City streets, public utility easements or other City property, by or on behalf of the Company, shall be subject to permit, payment of applicable permit fees and inspection and approval by the City. Such inspection and approval may include, but shall not be limited to, the following matters: location of Company facilities, cutting and trimming of trees and shrubs (although the Company may be able to fell and prune vegetation that interferes with the safety and operation of its facilities), and disturbance of pavement, sidewalks and surfaces of City streets, public utility easements and other City property. The Company agrees to cooperate with the City in conducting inspections and shall perform any remedial action lawfully required by the City pursuant to any such inspection. 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 and requirements regarding curb and pavement cuts, excavating, digging and other construction activities. The Company shall assure that its contractors working in City streets, public utility easements and other City property hold the necessary licenses, registrations and permits required by law. Whenever the Company proposes to make curb and pavement cuts or to excavate, dig or perform any other construction activities in City streets, public utility easements and other City property, the Company and the City shall meet at the City's request to discuss the placement of facilities in order to mitigate adverse impacts of such activities within the City in a manner that mitigates costs for the Company. As-built drawings. Upon project completion and written request of the City designee, the Company shall provide, within fourteen (14) days of the request, on a project-by-project basis, as-built drawings of any Company facility installed within the City streets or other City property or contiguous to the City streets or other City property. As used in this Subsection, as-built drawings means the facility drawings as maintained in the Company's geographical information system or any equivalent Company ---PAGE BREAK--- 5-61 system. The Company shall not be required to create drawings that do not exist at the time of the request, but the foregoing shall not be construed to affect any obligation to prepare drawings pursuant to any separate agreement. (Ord. 2112 2011) Sec. 5-80-230. Excavation and construction. The Company shall be responsible for obtaining, paying for and complying with all applicable permits for all construction, excavation, maintenance and repair work done by the Company and its contractors, including but not limited to excavation, traffic control, 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 5-80-250 below, the City will not require the Company to pay the fees charged for such relocation permits. Upon the Company submitting a construction design plan, the City shall and fully advise the Company in writing of all requirements for restoration of City streets in advance of Company excavation projects in City streets and other City property based upon the design submitted, if the City's restoration requirements are not addressed in publicly available standards. (Ord. 2112 2011) Sec. 5-80-240. Restoration. When the Company performs any work in or affecting the City streets, public utility easements and other City property or any landscaping or improvements therein, it shall, at its own expense, remove any Company-placed obstructions therefrom, repair any damage caused by the Company and restore such City streets, public utility easements and other City property and landscaping and improvements therein to a condition substantially the same as existed before the work and that meets applicable City standards. If weather or other conditions do not permit the complete restoration or repair required by this Section, the Company may, with the approval of the City, temporarily restore the affected City streets, public utility easements and other City property and maintain the condition of the temporary restoration, provided that such temporary restoration is at the Company's sole expense and provided further that the Company undertakes and completes the required permanent restoration or repair when the weather or other conditions no longer prevent such permanent restoration or repair. If the Company fails to restore or repair the City streets, public utility easements and other City property and landscaping and improvements therein as required by this Section, and if, in the reasonable discretion of the City, immediate action is required for the protection of public health and safety, the City may restore such City streets, public utility easements and other City property or remove the Company- caused obstruction therefrom; provided, however, that City actions shall not interfere with Company facilities. The Company shall be responsible for the actual cost incurred by the City to restore or repair such City streets, public utility easements and other City property or to remove any obstructions therefrom as provided for in this Section. In the course of its restoration of City streets, public utility easements or other City property, the City shall not perform work on Company facilities unless previously and specifically authorized by the Company in writing on a project-by-project basis and subject to the terms and conditions agreed to in such authorization. Upon request of the City, the Company shall restore the City streets or other City property to a better condition than existed before the work was undertaken, provided that the City shall be responsible for any additional costs of such restoration. (Ord. 2112 2011) ---PAGE BREAK--- 5-62 Sec. 5-80-250. Relocation of Company facilities. Relocation obligation. The Company shall temporarily or permanently remove, relocate, change or alter the position of any Company facility in City streets, public utility easements and other City property, at no cost or expense to the City , whenever such removal, relocation, change or alteration is necessary for the completion of any public project. Any City-required removal, relocation, change or alteration of Company facilities located in any Company-owned property or any private easement or public utility easement shall be at no cost to the Company. For all relocations, the Company and the City agree to cooperate on the location and relocation of the Company facilities in the City streets, public utility easements and other City property 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 unless said subsequent relocation is necessary to remedy public health and safety concerns not reasonably foreseeable by the City at the time of the prior relocation. Nothing provided herein shall prevent the Company from recouping its relocation costs and expenses from third parties. Private projects. The Company shall not be responsible for the expenses of any relocation required by 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. Relocation performance. The relocations set forth in Subsection above shall be completed within a reasonable time, not to exceed one hundred twenty (120) 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 receive an extension of time to complete a relocation where the Company's performance was delayed due to force majeure or the failure of the City to provide adequate supporting documentation. The Company has the burden of presenting evidence to reasonably demonstrate the basis for delay. Upon written 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. City revision of supporting documentation. Any revision by the City of supporting documentation provided to the Company that causes the Company to substantially redesign and/or change its plans regarding facility relocation shall be deemed good cause for a reasonable extension of time to complete the relocation under the franchise. Completion. Each such relocation shall be complete only when the Company actually relocates the Company facilities, restores the relocation site in accordance with Section 5-80-240 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. Scope of obligation. Notwithstanding anything to the contrary in this franchise, the Company shall not be required to relocate any Company facilities from property: owned by the Company in fee; or in which the Company has a property right, grant or interest, including, without limitation, an easement. Underground relocation. Underground facilities shall be relocated underground. Aboveground facilities shall be placed above ground unless underground relocation is feasible and the Company is paid for the incremental amount by which the underground relocation cost would exceed the aboveground cost ---PAGE BREAK--- 5-63 of relocation. 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, public utility easements and other City property. Such meetings shall be for the purpose of minimizing conflicts where possible and to facilitate coordination with any reasonable timetable established by the City for any public project. The City shall provide the Company with one-year advance notice of any planned street repaving, including overlays, to the extent the City has such information. The Company shall make reasonable best efforts to complete any necessary or anticipated repairs or upgrades to Company facilities that are located underneath the streets within the one-year period if practicable. 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 acceptance of the proposed alternative or modification shall be at the sole discretion of the City. In the event the City accepts the proposed alternative or modification, the Company agrees to compensate the City for all additional costs, expenses or delay that the City reasonably determines resulted from the implementation of the proposed alternative. Unless otherwise agreed by the City, the presentation of a proposed alternative or modification by the Company shall not be deemed good cause for any extension of time to complete the relocation. (Ord. 2112 2011) Sec. 5-80-260. New or modified service requested by City. 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. 2112 2011) Sec. 5-80-270. Service to new areas. 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 if the expanded area is within the Company's PUC-certificated service territory. 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. 2112 2011) Sec. 5-80-280. City not required to advance funds. 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. 2112 2011) ---PAGE BREAK--- 5-64 Sec. 5-80-290. Technological improvements. The Company shall use its best efforts to incorporate, as soon as practicable, technological advances in its equipment and service within the City when such advances are technically and economically feasible and are safe and beneficial to the City and its residents. (Ord. 2112 2011) Division 6 Reliability Sec. 5-80-310. Reliability. The Company shall operate and maintain Company facilities efficiently and economically and in accordance with the high standards and best systems, methods and skills consistent with the provision of adequate, safe and reliable utility service. (Ord. 2112 2011) Sec. 5-80-320. Franchise performance obligations. 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. 2112 2011) Sec. 5-80-330. Reliability reports. Upon written request, the Company shall provide the City with a report regarding the reliability of Company facilities and utility service. (Ord. 2112 2011) Division 7 Company Performance Obligations Sec. 5-80-350. New or modified service to City facilities. In providing new or modified utility service to City facilities, the Company agrees to perform as follows: 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 one hundred eighty (180) days from the date upon which the City designee makes a written request and provides the required supporting documentation for all Company facilities. The Company shall be entitled to an extension of time to complete a project where the Company's performance was delayed due to force majeure. 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. City revision of supporting documentation. Any revision by the City of supporting documentation provided to the Company that causes the Company to substantially redesign and/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 the franchise. The Company shall advise the City of a claimed extension under this provision, including the estimated length of the claimed extension and the revised date by which the installation or modification is estimated to be ---PAGE BREAK--- 5-65 completed. 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 the franchise and the ordinances, rules and regulations of the City, 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. 2112 2011) Sec. 5-80-360. Adjustments to Company facilities. The Company shall perform adjustments to Company facilities to accommodate City street maintenance, repair and paving operations at no cost to the City. Adjustments to Company facilities means raising or lowering manholes and other appurtenances, utilizing the methodology provided by the City consistent with generally accepted standards for gas utilities. At the City's request, the Company shall provide manhole extension rings to the City and/or the City's contractor for installation directly behind paving operations at no cost to the City whenever this method for adjustment is deemed appropriate by the Company. In providing such adjustments to Company facilities, the Company agrees to perform as follows: Performance. The Company shall complete each requested adjustment within a reasonable time, not to exceed thirty (30) days from the date upon which the City makes a writt en request and provides to the Company all information reasonably necessary to perform the adjustment. The Company shall be entitled to an extension of time to complete an adjustment where the Company's performance was delayed due to force majeure. 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. Completion/restoration. Each such adjustment shall be complete only when the Company actually adjusts the Company facility to accommodate the City operations in accordance with City instructions and, if required, readjusts, following City maintenance, repair and paving operations. Coordination. As requested by the City or the Company, representatives of the City and the Company shall meet regarding anticipated street maintenance operations which will require such adjustments to Company facilities in streets, public utility easements or other City property. Such meetings shall be for the purpose of coordinating and facilitating performance under this Section. (Ord. 2112 2011) Sec. 5-80-370. Emergencies. 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 oral 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. The Company and the City shall meet periodically at reasonable time intervals, upon written request of the City, to discuss the handling of emergency situations that may occur within the Company's PUC-certificated service territory in the City. (Ord. 2112 2011) ---PAGE BREAK--- 5-66 Sec. 5-80-380. Third party damage recovery. Damage to Company interests. If any individual or entity damages any Company facilities that the Company is responsible to repair or replace, to the extent permitted by law, 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. Damage to Company property for which City is responsible. If 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, to the extent permitted by law, 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. Meeting. The Company and the City agree to meet periodically, upon written request of either party, for the purpose of developing, implementing, reviewing, improving and/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. 2112 2011) Division 8 General Provisions Sec. 5-80-400. Billing for utility services. Unless otherwise provided in its tariffs, the rules and regulations of the PUC or the public utilities law, the Company shall render bills to the offices of the City for utility service and other related services for which the Company is entitled to payment and for which the City has authorized payment. Billings for service rendered during the preceding month shall be sent to the person designated by the City, and payment for same shall be made as prescribed in this Article and the applicable tariffs on file and in effect from time to time with the PUC. The Company shall provide all billings and any underlying support documentation reasonably requested by the City in a format that is acceptable to the Company and the City, including but not limited to an editable and manipulatable electronic format. The Company agrees to meet with the City designee at least annually for the purpose of developing, implementing, reviewing and/or modifying mutually beneficial and acceptable billing procedures, methods and formats for the efficient and cost-effective rendering and processing of such billings submitted by the Company to the City, which may include, without limitation, electronic billing and upgrades or beneficial alternatives to the Company's current most advanced billing technology. (Ord. 2112 2011) Sec. 5-80-410. Payment to City. In the event the City determines, after written notice to the Company, that the Company is liable to the City for payments, costs, expenses or damages of any nature, and subject to the Company's right to challenge such determination, the City may deduct all monies due and owing the City from any other ---PAGE BREAK--- 5-67 amounts currently due and owing the Company. Upon receipt of such written notice, the Company may request a meeting between the Company designee and the City designee to discuss such City determination. The City agrees to attend such a meeting. As an alternative to such deduction, the City may bill the Company for such assessments, in which case the Company shall pay each such bill within thirty (30) days of the date of receipt of such bill. However, if the Company challenges the City determination of liability, the City shall make payments to the Company pursuant to the Company's tariffs until the Company's challenge has been finally resolved. (Ord. 2112 2011) Sec. 5-80-420. Municipal right to purchase or condemn. 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 relating to the acquisition of public utilities, are expressly recognized. The City shall have the right, within the time frames and in accordance with 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. 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. 2112 2011) Sec. 5-80-430. Municipally produced utility service. City reservation. The City expressly reserves the right to engage in the production of utility service to the extent permitted by law. The Company agrees to negotiate in good faith long-term contracts to purchase City-generated power made available for sale, subject to applicable statutory requirements and consistent with PUC requirements. The Company further agrees to offer transmission and delivery services to the City that are required by judicial, statutory and/or regulatory directive and that are comparable to the services offered to any other customer with similar generation facilities. Franchise not to limit City's rights. Nothing in this franchise prohibits the City from becoming an aggregator of utility service or from selling utility service to customers should it be permissible under law. (Ord. 2112 2011) Sec. 5-80-440. Consent of City required. The Company shall not transfer or assign this franchise or 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. 2112 2011) Sec. 5-80-450. Transfer fee. 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 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 provided utility service by the Company multiplied by one ---PAGE BREAK--- 5-68 million dollars ($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. 2112 2011) Sec. 5-80-460. Continuation of utility service. 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 have no right to remove any Company facilities or discontinue providing utility service unless other wise ordered by the PUC and 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 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 the 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, public utility easements and other City property. 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. 2112 2011) Sec. 5-80-470. City held harmless. The Company shall indemnify, defend and hold the City harmless from and against claims, demands, liens, actions 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: provide prompt written notice to the Company of the pendency of any claim, demand, lien or action with respect to which the City seeks indemnification hereunder; and unless in the City's judgment a conflict of interest may exist between the City and the Company with respect to such claim, demand, lien or action, shall permit the Company to assume the defense of such claim, demand, lien or action with counsel satisfactory to the City. If such defense is assumed by the Company, the Company shall not be subject to 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 of the City or to the extent that the City is acting in the capacity of a Company customer. Unless otherwise required by law, no expenses paid or reimbursed by the Company under this Section shall be surcharged solely to residents. (Ord. 2112 2011) Sec. 5-80-480. Immunity. 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 24-10-101, et seq., C.R.S.) or of any other defenses, immunities or limitations of liability available to the City by law. (Ord. 2112 2011) ---PAGE BREAK--- 5-69 Sec. 5-80-490. Noncontestability. The City and the Company agree to take all reasonable and necessary actions to assure that the terms of this franchise are performed. The Company reserves the right to seek a change in its tariffs, including but not limited to the rates, charges, terms and conditions of providing utility service to the City and its residents, and the City retains all rights that it may have to intervene and participate in any such proceedings. (Ord. 2112 2011) Sec. 5-80-500. Breach. 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 (30) 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: Specific performance of the applicable term or condition; and Recovery of actual damages incurred by the nonbreaching party in connection with the breach from the date of such breach, but excluding any consequential damages. 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 (90) 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 or otherwise provided by law. 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 the 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, public utility easement or other City property. Company shall not terminate franchise. In no event does the Company have the right to terminate this franchise. 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. 2112 2011) Sec. 5-80-510. Proposed amendments. At any time during the term of this franchise, the City or the Company may propose amendments to this franchise by giving thirty (30) days' written notice to the other of the proposed amendments desired, and both parties thereafter, through their designated representatives, will, within a reasonable time, ---PAGE BREAK--- 5-70 negotiate in good faith in an effort to agree upon mutually satisfactory amendments. However, nothing contained in this Section shall be deemed to require either party to consent to any amendment proposed by the other party. (Ord. 2112 2011) Sec. 5-80-520. Effective amendments. 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, to the extent required by law. 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. 2112 2011) Division 9 Equal Opportunity Sec. 5-80-540. Economic development. 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. 2112 2011) Sec. 5-80-550. Employment. 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. 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 to the City a copy of the Company's annual affirmative action report upon the City's written request. 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, internships, and engaging recruiting firms with diversity-specific expertise. 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 ---PAGE BREAK--- 5-71 for its employees. Such programs may include mentoring programs, training programs, classroom training and leadership programs. 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. 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. 2112 2011) Sec. 5-80-560. Contracting. It is the Company's policy to make available to minority- and women-owned business enterprises and other small and/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 and/or disadvantaged business enterprises for services, construction, equipment and supplies to the maximum extent consistent with the efficient and economical operation of the Company. 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 and/or disadvantaged business enterprises to encourage economic vitality. The Company agrees to keep the City regularly advised of the Company's programs. 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. 2112 2011) Sec. 5-80-570. Coordination. City agencies provide collaborative leadership and mutual opportunities or programs relating to City- based initiatives on economic development, employment and contracting opportunity. The Company agrees to review Company programs and mutual opportunities responsive to this Article with these agencies, upon their request, and to collaborate on best practices regarding such programs and coordinate and cooperate with the agencies in program implementation. (Ord. 2112 2011) ---PAGE BREAK--- 5-72 Division 10 Miscellaneous Sec. 5-80-590. No waiver. 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. 2112 2011) Sec. 5-80-600. Successors and assigns. 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 Sections 5-80-450 and 5-80-460 of this Article. (Ord. 2112 2011) Sec. 5-80-610. Third parties. Nothing contained in this franchise shall be construed to provide rights to third parties. (Ord. 2112 2011) Sec. 5-80-620. Notice. 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: City Manager City of Brighton 500 South 4th Avenue Brighton, CO 80601 Mayor of Brighton City Hall 500 South 4th Avenue Brighton, CO 80601 With a copy to: City Attorney City of Brighton 500 South 4th Avenue Brighton, CO 80601 ---PAGE BREAK--- 5-73 To the Company: Regional Vice President, Customer and Community Services 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. 2112 2011) Sec. 5-80-630. Examination of records. The parties agree that a duly authorized representative of the City shall have the right to examine any existing books, documents, papers and records of the Company reasonably related to the Company's compliance with the terms and conditions of this franchise. Information shall be provided within thirty (30) days of any written request. Any books, documents, papers and records of the Company in any form that are requested by the City, that contain confidential information, shall be conspicuously identified as "confidential" or "proprietary" by the Company. In no case shall any privileged communication be subject to examination by the City pursuant to the terms of this Section. Privileged communication means any communication that would not be discoverable due to the attorney-client privilege or any other privilege that is generally recognized in Colorado, including but not limited to the work product privilege. The work product privilege shall include information developed by the Company in preparation for PUC proceedings and litigation. With respect to any information requested by the City which the Company identifies as "confidential" or "proprietary": The City will maintain the confidentiality of the information by keeping it under seal and segregated from information and documents that are available to the public. The information shall be used solely for the purpose of determining the Company's compliance with the terms and conditions of this franchise. The information shall only be made available to City employees and consultants who represent in writing that they agree to be bound by the provisions of this Subsection. The information shall be held by the City for such time as is reasonably necessary for the City to address the franchise issues that generated the request and shall be returned to the Company, without duplication in any manner, when the City has concluded its use of the information. The parties agree that, in most cases, the information should be returned within one hundred twenty (120) days. However, in the event that the information is needed in connection with any action that requires more time, including but not necessarily limited to litigation, administrative proceedings and/or other disputes, the City may maintain the information until such issues are fully and finally concluded. ---PAGE BREAK--- 5-74 If an Open Records Act request is made by any third party for confidential or proprietary information that the Company has provided to the City pursuant to this franchise, the City will notify the Company of the request and shall allow the Company to defend such request at its sole expense, including filing a legal action in any court of competent jurisdiction to prevent disclosure of such information. In any such legal action, the Company shall join the person requesting the information and the City. In no circumstance shall the City provide to any third party confidential or proprietary information provided by the Company pursuant to this franchise without first conferring with the Company. The Company shall defend, indemnify and hold the City harmless from any claim, judgment, costs or attorney fees incurred in participating in such proceeding. Unless otherwise agreed between the parties, the following information shall not be provided by the Company: confidential employment matters, specific information regarding any of the Company's customers, information related to the compromise and settlement of disputed claims, including but not limited to PUC dockets, information provided to the Company which is declared by the provider to be confidential and which would be considered confidential to the provider under applicable law. (Ord. 2112 2011) Sec. 5-80-640. PUC filings. Upon written request, the Company shall provide to the City copies of all applications, advice letters and periodic reports, together with any accompanying nonconfidential testimony and exhibits, filed by the Company with the Public Utilities Commission. (Ord. 2112 2011) Sec. 5-80-650. Other information. Upon written request, the Company shall provide the City Manager with: A copy of the Company's or its parent company's consolidated annual financial report or, alternatively, a URL link to a location where the same information is available on the Company's web site; Subject to legitimate security concerns, maps or schematics indicating the location of specific Company facilities, including gas lines, located within the City, to the extent those maps or schematics are in existence at the time of the request; and A copy of any report required to be prepared for a federal or state agency detailing the Company's efforts to comply with federal and state air and water pollution laws. (Ord. 2112 2011) Sec. 5-80-660. List of utility property. The Company shall provide the City, upon request not more than once every two years, a list of utility-related property owned or leased by the Company within the City. All such records must be kept for a minimum of three years or such shorter duration if required by Company policy. (Ord. 2112 2011) Sec. 5-80-670. Payment of taxes and fees. The Company shall pay and discharge as they become due, 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 ---PAGE BREAK--- 5-75 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. 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. (Ord. 2112 2011) Sec. 5-80-680. Conflict of interest. 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, 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. 2112 2011) Sec. 5-80-690. Certificate of public convenience and necessity. The City agrees to support the Company's application to the PUC to obtain a certificate of public convenience and necessity to exercise its rights and obligations under this franchise. (Ord. 2112 2011) Sec. 5-80-700. Authority. Each party represents and warrants that, except as set forth herein, 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. 2112 2011) Sec. 5-80-710. Severability. 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, to the extent allowed by law, 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. 2112 2011) Sec. 5-80-720. Force majeure. 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 force majeure, as defined herein. (Ord. 2112 2011) Sec. 5-80-730. Earlier franchises superseded. This franchise shall constitute the only franchise between the City and the Company for the furnishing of utility service, and it supersedes and cancels all former franchises between the parties hereto. (Ord. 2112 2011) ---PAGE BREAK--- 5-76 Sec. 5-80-740. Titles not controlling. Titles of the paragraphs herein are for reference only and shall not be used to construe the language of this franchise. (Ord. 2112 2011) Sec. 5-80-750. Applicable law. 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 Adams County, State of Colorado. (Ord. 2112 2011) Sec. 5-80-760. Payment of expenses incurred by City in relation to franchise agreement. The Company shall pay for expenses reasonably incurred by the City for the adoption of this franchise, including the publication of notices, publication of ordinances and photocopying of documents. (Ord. 2112 2011) Sec. 5-80-770. Responsibility for language. The parties hereby acknowledge that each bears equal and identical responsibility for the language of this agreement. In case of ambiguity, there shall be no presumption based upon responsibility for drafting this franchise, and the agreement shall not be construed against one party in favor of another. (Ord. 2112 2011) ARTICLE 5-84 Franchise for Electricity to Union Rural Electric Association, Inc. Division 1. Grant of Franchise Sec. 5-84-10. Grant of franchise. The City of Brighton (the "City") grants to Union Rural Electric Association, Inc. (the "Company"), for the period of and subject to the conditions, terms and provisions contained in this Article, a nonexclusive right to furnish and sell electricity to the City and to all persons, businesses and industry (hereinafter collectively referred to as "residents") in the Company's hereafter described service areas within the City. Subject to the conditions, terms and provisions contained in this Article, the City also grants to the Company an electrical energy (electricity) nonexclusive right to construct, install, maintain and operate all facilities reasonably necessary to provide electrical energy within the City and a nonexclusive right to make reasonable use of the streets, alleys, bridges, viaducts, public property and public ways as may be necessary to carry out the terms of this Article. These rights shall extend to those areas of the City which are part of the Company's exclusive service areas as of February 2, 1987, as certificated by the Colorado Public Utilities Commission (hereafter "Company's service areas"). The legal description of the Company's service areas is attached to the ordinance codified in this Article as Exhibit (Ord. 1328 (part), 1989) ---PAGE BREAK--- 5-77 Sec. 5-84-20. Street lighting service. The rights granted in this Article encompass the nonexclusive right, duty and franchise to provide street lighting service to the City within Company's service areas and the provisions of this Article apply with full and equal force to the street lighting service provided by the Company. Wherever reference is made to the sale of electricity or to the provision of electric service in this Article, these references shall be deemed to include the provision of street lighting service. Wherever reference is made to Company facilities, equipment, system or plant in this Article, this reference shall be deemed to include Company- owned street lighting facilities, equipment, system and plant. (Ord. 1328 (part), 1989) Sec. 5-84-30. Term of franchise. The term of this franchise shall be for twenty-five (25) years, beginning on the first day of December, 1985. (Ord. 1328 (part), 1989) Division 2. Franchise Fee Sec. 5-84-40. Franchise fee. In consideration for the grant of this franchise, the Company shall pay the City a sum equal to three percent of all gross revenue per year derived from the sale of electricity within the City or from gross revenues accruing to the Company from the use of its utility facilities within the City retroactive to February 2, 1987. Gross revenue as used herein shall mean any revenue derived under authorized temporary or permanent rates, or otherwise, from sales of electricity or use of its utility facilities within the City, after the adjustments for the net write-off of uncollectible accounts and corrections of bills theretofore rendered. In no event will the City be required to refund franchise fees previously paid by the Company, nor shall the Company deduct any refund from subsequent payments to the City duly calculated on the then-effective gross revenues. Included within gross revenue shall be all amounts paid to the Company by the City or any of its departments. (Ord. 1328 (part), 1989) Sec. 5-84-50. Payment schedule. For the franchise fee owed on gross revenues received after the effective date of the ordinance codified in this Article, payment shall be made in installments not more than thirty (30) days following the close of the month for which payment is to be made. Initial and final payments shall be prorated for the portions of the months at the beginning and end of the term of the ordinance codified in this Article. All payments shall be made to the Director of Finance. The City Manager shall have access to the books of the Company for the purpose of auditing or checking to insure that the franchise fee has been correctly computed and paid. (Ord. 1328 (part), 1989; Ord. 1589, 1999) Sec. 5-84-60. Change of franchise fee and other franchise terms. Once during each calendar year of the franchise term the City Council, upon giving thirty (30) days’ notice to the Company of its intention to do so, may review and change the consideration paid by the Company under this Article, the franchise fee or other consideration the City may be entitled to receive as part of the franchise in accordance with the following terms: The City may increase the franchise fee to equal the franchise fee paid by any other public utility supplier of electric energy within the City, or if ---PAGE BREAK--- 5-78 none, to equal the franchise fee paid by Public Service Company of Colorado in any other city or the City may increase the franchise fee to equal the franchise fee paid by the Company to any other city or town in the State in which the Company supplies electric service under franchise. The Company shall report to the City within thirty (30) days of execution of a franchise or of any change of franchise in other municipalities that could have a financial impact on the consideration to be paid by the Company to the City hereunder. If the City Council decides the franchise fee or other terms shall be so changed, it shall provide for such change by ordinance. Any changed franchise fee may then be surcharged by the Company. (Ord. 1328 (part), 1989) Sec. 5-84-70. Franchise fee in lieu of other fees. So long as the Company performs its obligations under this Article, including payment of the franchise fee, the Company will be exempt from the payment of any license fees or charges to the City, but payment of the franchise fee does not exempt the Company from any lawful taxation upon its property from sales and use taxes, excavation permit fees and building permit charges, and from fees and charges for excavating for or construction of underground or overhead facilities that are uniform and generally applicable to contractors performing similar work. (Ord. 1328 (part), 1989) Sec. 5-84-80. Contract obligation. The franchise ordinance codified in this Article constitutes a valid and binding contract between the Company and the City. In the event that the franchise fee specified in this Article is declared illegal, unconstitutional or void for any reason by any court or other proper authority, the Company shall be contractually bound to pay the City, on the same schedule as proved herein for the franchise fee, an aggregate amount equal to the amount which would have been paid as a franchise fee. In addition, if the franchise fee is declared invalid, the-City shall have the right to impose occupation and license fees and permit charges reasonably equivalent on an annual rate to said franchise fee. (Ord. 1328 (part), 1989) Division 3. Company Construction and Operation Obligations Sec. 5-84-90. Adequate supply at lowest possible cost. The Company shall at all times take all reasonable and necessary steps to assure an adequate supply of electricity to the City and its residents at the lowest possible cost. Should electric power or energy be made available to the Company from whatever source at less cost than the cost which would be incurred by the Company to supply such power or energy from its own systems, the Company agrees to purchase this lower-cost power or energy and to pass on to the City and its residents any savings resulting from the purchase; provided however, that any savings resulting in lower costs shall not be exclusively available to consumers in the City, but as part of the general rates of the Company. If the supply of electricity to the City or its residents should be interrupted, the Company shall immediately take all necessary and reasonable actions to restore such supply at the soonest possible time. (Ord. 1328 (part), 1989) Sec. 5-84-100. City approval of construction and design. Prior to construction of any regulator station, or any transmission lines or generating plant, building, substation or similar structure within the City, the Company shall furnish to the City the plans for such facilities, including all architectural, engineering and landscaping plans. In addition, the Company shall assess and report on the impact of its proposed construction on the City environment. Such plans and reports may be reviewed by the City to ensure: that all applicable laws, including building and zoning ---PAGE BREAK--- 5-79 codes and air and water pollution regulations, are complied with; that aesthetic and good planning principles have been given due consideration; and that adverse impact on the environment has been minimized. The Company shall comply with all regulatory requirements of the City and shall incorporate all other changes requested by the City which are agreeable to the Company. (Ord. 1328 (part), 1989) Sec. 5-84-110. Excavation and construction. The Company shall comply with all City requirements for excavation and construction and shall be responsible for obtaining all applicable permits. The City shall have the right to supervise all construction or excavation. All construction, excavation, maintenance and repair work done by the Company shall be done in a timely and expeditious way and in a manner which minimizes the inconvenience to the public or individuals. All public and private property in dedicated easements disturbed by Company construction or excavation activities shall be restored as soon as possible by the Company, at its expense, to substantially its former condition subject to inspection by the Director of Public Works and compliance by the Company with reasonable remedial action required by the Director pursuant to said inspection. The Company shall comply with the City's requests for reasonable and prompt action to remedy all damage to private property adjacent to streets or dedicated easements where the Company is performing excavation or construction work. (Ord. 1328 (part), 1989) Sec. 5-84-120. Installation and maintenance of Company facilities. The installation, maintenance, renovation and replacement of any facilities by the Company shall be subject to regulation, inspection and approval by the Director of Public Works. Such regulation shall include, but not be limited to the following matters: location of facilities in the streets, alleys and dedicated easements; cutting and trimming of trees and shrubs; and disturbance of pavement, sidewalks and surfaces of streets, alleys, dedicated easements and driveways. All Company facilities shall be installed on public or dedicated easements so as to cause a minimal amount of interference with such property. The Company facilities shall not interfere with the City's water mains, sewer mains or any other municipal use of the City's streets and rights-of-way. The Company shall erect and maintain its facilities in such a way so as to minimize interference with trees and other natural features. The Company shall keep in good working order all facilities constructed, erected or used within the City. (Ord. 1328 (part), 1989) Sec. 5-84-130. Warranty of Company facilities. The Company warrants to the City that it will install, repair, renovate and replace its facilities in a good and workmanlike manner and that the Company's facilities will be of sufficient quality and durability to provide adequate and efficient electric service to the City and its residents. The Company will require warranties customary for the industry from its third party suppliers of transformers and other major equipment incorporated into the Company's facilities and shall fully enforce any such warranty. (Ord. 1328 (part), 1989) Sec. 5-84-140. Continued compliance with air and water pollution laws. The Company shall continue to use its best efforts to take measures which will result in its facilities meeting the standards required by applicable federal and state air and water pollution laws. Upon the City's request, the Company will provide the City with a status report of such measures. (Ord. 1328 (part), 1989) ---PAGE BREAK--- 5-80 Sec. 5-84-150. Relocation of Company facilities. If at any time the City requests the Company to relocate any facility installed or maintained in streets, alleys, public rights-of-way or dedicated easements pursuant to this or previous franchises in order to permit the City to make any public use of rights-of-way, easements or streets to construct any public improvement, to build any public project or for any municipal purpose, such relocation shall be made by the Company at its expense. Following relocation, all property shall be restored to its former condition by the Company at its expense. Nothing herein contained shall be construed to impose any obligation upon the City to make any payment for any relocation of the Company's facilities, whether located within or without said designated areas. (Ord. 1328 (part), 1989) Sec. 5-84-160. Technological improvements. The Company shall introduce and install generally, as soon as practicable, electrical energy technological advances in its equipment and service in the City when such advances are technically and economically feasible, and are safe and beneficial to the City and its residents. Upon request by the City, the Company shall review and report advances which have occurred in the electric utility industry that have been incorporated into the Company's operations in the City in the previous year or will be so incorporated in the next six months. The Company shall report in advance to the City any plans to include technological advances relating to communications systems such as fiber optics which may utilize electric facilities already in place for the transmission of communication signals, which facilities may be installed by the Company for its use, the use of the City or use of others as the Company may license. The City may use said facilities without cost, except such additional expense which may be incurred by the Company as a result of the City's use. Upon request of the City, the Company will provide a detailed report of the use of such communications systems. Nothing contained herein shall be construed to authorize the Company to engage in telecommunications activities, nor shall this Article be construed as a franchise for said telecommunications activities within the City. (Ord. 1328 (part), 1989) Sec. 5-84-170. Company obligations to City. The Company shall protect all City property against injury which may arise out of the exercise by the Company of any rights or privileges herein granted. The Company shall be liable for any interference, damage or injury suffered by the City as a result of the exercise by the Company of any rights or privileges herein granted. This Section shall be applicable only to City and Company relationships. Nothing herein contained shall be construed to affect the liability of the Company to third party claims. (Ord. 1328 (part), 1989) Sec. 5-84-180. Service to new areas. If, during the term of this franchise, the boundaries of the City are expanded to areas certificated by the Public Utilities Commission of Colorado (PUC) for service by the Company, and if service is requested to that area, the Company shall extend service to residents of such areas in accordance with the Company's extension policy at the soonest practicable time. (Ord. 1328 (part), 1989) Sec. 5-84-190. Construction by City employees or developers. Subject to reasonable specifications and supervision imposed by the company, the labor forces of the City or its contractors, at the City's request, shall be used to excavate for trenching subject to the provisions of the union contract with the Company; to install landscaping and to repair streets and public ---PAGE BREAK--- 5-81 ways for any capital improvements, repairs or replacements of electric service by the Company for municipal uses. At the City's request, the Company shall reimburse the City for all expenses incurred in said work; provided that said reimbursement shall not exceed the bid cost for said work; and provided further that in the event the City is not so reimbursed, the cost of said work by the City's labor forces shall not be included in operating expenses or rate base of the Company. The Company agrees to make a good faith attempt to utilize City employees on other facets of capital improvement projects serving municipal operations when feasible and so long as the City agrees to work subject to the Company's reasonable specifications and inspection and so long as the use of City employees does not violate the working agreement between the Company and any union. The Company will confer in good faith with subdivision developers with the goal of installing electric facilities within subdivisions at the lowest cost consistent with proper installation. (Ord. 1328 (part), 1989) Sec. 5-84-200. City not required to advance funds. The Company shall extend its facilities to provide electric service to the City for municipal uses within the City limits or for any major municipal facility outside the City limits and within the Company certified area without requiring the City to advance funds in aid of construction more than ten (10) days in advance of construction. (Ord. 1328 (part), 1989) Sec. 5-84-210. Safety regulations by City. The City reserves the right to adopt, from time to time, reasonable regulations in the exercise of its police power to ensure the safety, welfare and accommodation of the public. The Company agrees to comply with all such regulations in the construction, maintenance and operation of its facilities and in the provision of electricity within the City. (Ord. 1328 (part), 1989) Sec. 5-84-220. Compliance with PUC and Company regulations. The Company shall assure that the electrical energy it distributes meets with the minimum standards promulgated by the PUC, as well as the Company tariffs and regulations. The Company shall keep on file with the City copies of the PUC rules regulating the service of electric utilities, as well as the Company's own tariffs and rules and regulations as the same may be amended from time to time. The City shall have access to all records of the Company monitoring compliance with such standards. Prior to the final adoption by the City of the franchise, the Company shall adopt such amendments to its tariffs as may be necessary to make its tariff provisions compatible with the provisions of this Article, and shall report to the City any changes that have been made for this purpose. The Company shall use its best efforts to assure the City during the term of the franchise that the tariffs of the Company shall not be in conflict with any provision of this Article. (Ord. 1328 (part), 1989; Ord. 1589, 1999) Sec. 5-84-230. Inspection, audit and quality control. The City shall have the right to inspect any portion of the Company's system used to serve the City and its residents at all reasonable times. The City shall also have the right to inspect and conduct an audit of Company records relevant to compliance with any terms of this Article at all reasonable times. The Company agrees to cooperate fully with the City in conducting the inspection and/or audit and to correct any discrepancy affecting the City's interest in a prompt and efficient manner. (Ord. 1328 (part), 1989) ---PAGE BREAK--- 5-82 Division 4. Reports to City Sec. 5-84-240. Annual report on Company operations. In addition to reports required with regard to franchise fees, the Company shall provide the City by March 1 of each year, an annual report which shall include the following information: The return earned by the Company on operations for the prior calendar year, and the rate base used for calculation of such return in the form and detail required by the PUC for rate proceedings; A list of all real property and leasehold interests in real property owned by the Company in the City, excepting dedicated and other easements; Short-term (less than three years) and long-range (over three years) plans for all capital improvements, construction and excavation within the City or affecting service to the City and its residents; Any other information which the City may reasonably from time to time request with respect to the operations of the Company under this franchise. (Ord. 1328 (part), 1989) Sec. 5-84-250. Copies of tariffs and approvals. The Company shall file with the City and keep up to date all tariffs, rules, regulations and policies approved by it relating to service by the Company to the City and its residents and businesses. The Company shall provide the City with copies of all documents affecting said service. In addition, the Company will provide the City, at the City's request, copies of all work papers, annual reports, advice letters and exhibits and other information relevant to such approvals by the Company. (Ord. 1328 (part), 1989) Sec. 5-84-260. Detailed bills. All bills or invoices sent to the City by the Company shall include lists of account numbers and items metered, and they shall specify the type of account for which charges are made, i.e., electric service, street lighting, traffic signal, general office, spot lighting, etc. The Company shall provide the City every two years with a complete listing of all the City's accounts. (Ord. 1328 (part), 1989) Division 5. City Use of Company Facilities Sec. 5-84-270. City use. The City shall be permitted to make all reasonable use for City purposes of any electrical distribution or transmission system property of the Company, including underground facilities, without cost, provided that such use does not unreasonably interfere with the use of such systems for distribution of electrical energy or create an unreasonable hazard. Such use may include, by way of explanation but not by way of limitation, the attachment of traffic control signs, fire alarm or police signal systems or the attachment of cables for transmitting television or radio signals, or any other use of the system or any part thereof. The Company shall not be responsible for any modifications to the system or for payment of any costs necessitated by such use. (Ord. 1328 (part), 1989) ---PAGE BREAK--- 5-83 Sec. 5-84-280. Underground conduit. In addition to the rights given the City in Section 5-84-270, whenever the Company installs new conduits or replaces existing conduits, the Company shall provide adequate advance notice to permit additional installation of City conduit. If the City wants additional conduit installed, it will so notify the Company and timely provide conduit at its expense to the Company which will install it without further cost to the City. The City and the Company shall cooperate to minimize installation costs of underground conduit and to minimize cutting the streets. (Ord. 1328 (part), 1989; Ord. 1589, 1999) Sec. 5-84-290. Use of land and water facilities. For all land and water facilities lying within the City which are presently owned or are subsequently acquired by the Company, the Company shall permit such land and water facilities to be used by the public for recreational and open space use to the extent that such use does not interfere with the Company's use of such land and water facilities and is safe for public use. (Ord. 1328 (part), 1989) Sec. 5-84-300. Right of first refusal. If the Company, at any time during the term of this franchise, proposes to sell or dispose of any of its real property lying within the City, or used in whole or in part for service to the City, the City shall have the right of first refusal to purchase such property. The Company shall give written notice of its intent to sell and the property shall be offered to the City for the price contained in any bona fide offer from a third party which is acceptable to the Company. The City shall have sixty (60) days after notice of receipt by the Company of such bona fide offer in which to exercise the right of first refusal and shall exercise such right by giving written acceptance of the Company's offer within the sixty-day period. This provision shall not restrict the rights of the City to purchase or condemn the Company's facilities reserved under Division 9 of this Article. (Ord. 1328 (part), 1989) Sec. 5-84-310. Use by City franchisees. The Company shall permit use of Company facilities by other grantees of City franchises so long as such grantees are not in competition with the Company, and so long as such grantees obtain the permission of the City and pay to the City its appropriate fees, if any. (Ord. 1328 (part), 1989) Sec. 5-84-320. Annexation to City. When any property owned by the Company becomes eligible for voluntary annexation to the City, the Company shall petition to annex the same upon request made by the City, provided that no condition of such annexation shall impair the Company's ownership or then-existing use of its property and water or water rights for public utility purposes. Except as herein provided, the Company agrees to meet all terms and conditions imposed upon the annexation by the City that are no more stringent than those imposed generally upon property owners seeking annexation of their land to the City. The Company shall be exempted from a public donation of land, money or water rights arising from such mandatory annexation under this Section to the extent that the land annexed is committed, dedicated and being fully utilized by facilities directly involved in generating, transmitting or distributing electric energy services under this Article, and provided further that said exemption from public donation shall not extend to any unimproved land or land not so directly committed, dedicated and currently used. (Ord. 1328 (part), 1989) ---PAGE BREAK--- 5-84 Division 6. Indemnification of City Sec. 5-84-330. City held harmless. The Company shall construct, maintain and operate its plant, equipment, poles, wires, structures and other facilities in a manner which provides reasonable protection against injury or damage to persons or property; provided, however, that said obligation of the Company hereunder shall not increase or decrease its liability on third party claims; and provided further that the Company's obligation to the City hereunder shall not be diminished by said exception. The Company shall save the City harmless and indemnify the City from and against all liability or damage and all claims or demands whatsoever in nature filed by third parties, as well as reimburse the City for its reasonable expenses incurred in negotiation for or arising from the grant of this franchise (except any consultant's fees incurred in the negotiations for this franchise), the operations of the Company within the City and the exercise by the Company of the franchise rights granted in this Article, including any third party claims, administrative hearings and litigation, as well as costs arising from conferences and advice relative to said hearings and litigation. In the event the City institutes litigation against the Company for a breach of this Article and for an interpretation of the Article, and the City is the prevailing party, the Company shall reimburse the City for all costs related thereto, including reasonable attorney's fees. (Ord. 1328 (part), 1989) Sec. 5-84-340. Notice to Company. The City will provide notice to the Company of the pendency of any claim or action against the City arising out of the exercise by the Company of its franchise rights. The Company will be permitted, at its own expense, to appear and defend or to assist in defense of such claim. (Ord. 1328 (part), 1989) Sec. 5-84-350. Financial responsibility. At the time of the execution of this Article, and from time to time at the City's request, the Company shall provide the City with proof of its ability to meet its obligations under this Article, including its ability to indemnify the City as required by this Division. This proof may take the form of insurance coverage, adequate funding of self-insurance or the provision of a bond. Company shall supply the City with a list of its insurance companies with the types of coverage, not levels, of insurance. Said list shall be kept current by semiannual revisions as of January 1 and July 1 during the term of this franchise. The City may require, from time to time, and the Company agrees to provide, additional funding of the Company's indemnification obligations as self-insured. (Ord. 1328 (part), 1989) Sec. 5-84-360. Breach of contract. In the event the Company fails to fulfill any of the obligations under this Article, the City will have a breach of contract claim against the Company, in addition to any other remedy provided by law. (Ord. 1328 (part), 1989) ---PAGE BREAK--- 5-85 Division 7. Undergrounding of Company Distribution Facilities Sec. 5-84-370. Underground distribution lines in new areas. The Company will place underground newly constructed electric distribution lines within, bordering or needed to serve newly developed areas within the City in accordance with the Company's tariffs and as required by subdivision and other regulations adopted by the City or other proper authority. (Ord. 1328 (part), 1989) Sec. 5-84-380. Overhead conversion at Company expense. The Company shall develop a program to underground existing overhead electric distribution lines in order to complete such program according to a reasonable completion schedule not to exceed ten (10) years. (Ord. 1328 (part), 1989) Sec. 5-84-390. Review of underground program. Representatives of both the City and the Company shall meet periodically to review the Company's undergrounding program. This review shall include: Undergrounding programs, including conversions, public projects and replacements, which have been accomplished or are underway by the Company, together with the Company's plans for additional undergrounding; The status of technology in the field of electric undergrounding; Construction, operation and maintenance costs of underground lines versus overhead lines; and Public projects anticipated by the City. Such meetings shall be held to achieve a continuing program for the orderly undergrounding of electrical lines in the City. The Company shall make substantial progress during the ten-year schedule for putting underground its existing electric distribution lines throughout the City. All newly installed distribution lines shall be placed underground unless otherwise approved by the City Council. (Ord. 1328 (part), 1989) Sec. 5-84-400. Cooperation with other utilities. The City and the Company shall, when undertaking a project of undergrounding, work with other utilities or companies which have their lines overhead to have all lines undergrounded as part of the same project. When other utilities or companies are placing their lines underground, the Company shall cooperate with these utilities and companies and undertake to underground Company facilities as part of the same project where feasible. (Ord. 1328 (part), 1989) ---PAGE BREAK--- 5-86 Division 8. Transfer of Franchise Sec. 5-84-410. Consent of City required. The Company shall not sell or transfer its plant or system to merge with another, nor transfer, lease or permit the use of any rights under this franchise to another, by stock exchange or otherwise, excepting only corporate reorganization of the Company not involving a third party, unless the City shall approve in writing such sale, transfer, merger, stock exchange, lease, permit or other change in ownership or use of the rights herein created. Approval of the sale, transfer, merger, stock exchange, lease, permit or other change in ownership or use of the rights herein created. (Ord. 1328 (part), 1989) Division 9. Purchase or Condemnation Sec. 5-84-420. City's right to purchase or condemn. The right of the City to construct, purchase or condemn any public utility works or ways, as provided by the Colorado Constitution and Statutes, is hereby expressly reserved. The City shall have the right to purchase or condemn all or part of the Company's facilities within or without the City limits, and to the extent authorized by law, portions of power purchase contracts serving the City's metropolitan area. The City shall have the option to purchase or condemn these facilities and/or contracts at any time during the term of this Article, upon ninety (90) days' written notice to the Company or within ninety (90) days of the termination date of this Article. (Ord. 1328 (part), 1989) Sec. 5-84-430. Negotiated purchase price condemnation award. Upon the exercise of the City's option to purchase, the parties shall negotiate in good faith to determine a mutually acceptable purchase price. No value shall be given to the franchise or to rights-of- way. At the option of the City, the parties shall establish a mutually acceptable payment schedule which may extend over a number of years. The City is not obligated to make payment in full of the purchase price prior to the acceptance of ownership. If the City and the Company cannot reach agreement as to the purchase price or acceptable payment terms within ninety (90) days after commencement of negotiations, the City may commence condemnation proceedings, and each party shall have the rights provided by law relating to condemnation; provided, however, that no award shall be made for the value of the franchise or rights-of-way. (Ord. 1328 (part), 1989) Sec. 5-84-440. Continued cooperation by Company. In the event the City exercises its option to purchase or condemn, the Company agrees that it will continue to supply any service it supplies under this Article, in whole or part, at the City's request, for the duration of the term of this Article. The Company's facilities shall be available for continued service until nine months after a final order is entered in a condemnation proceeding or the effective date of a purchase agreement between the parties; provided, however, that said obligation to maintain the facilities shall not exceed a twenty-four-month period after the termination of the franchise. The Company shall continue to provide service pursuant to the terms of this Article for said twenty-four (24) months until the City has either purchased or condemned the Company's facilities or alternative arrangements have been ---PAGE BREAK--- 5-87 made to supply electric power to the City and its residents, whichever date shall earlier occur. The City shall not pay for any services no longer required. The Company shall cooperate with the City by making available then-existing pertinent Company records which are not confidential to enable the City to evaluate the feasibility of acquisition by the City of Company facilities. The Company shall not be obligated to conduct studies or accrue data without reimbursement by the City, but will make such studies if reimbursed its costs for the same. The Company shall take no action which could inhibit the City's ability to effectively or efficiently use the acquired systems. At the City's request, the Company shall su pply electric power for use by the City in the City-owned system. In addition, if the City purchases the Company's system, the Company shall not compete with the City in the provision of electric service within the City, as its boundaries exist at the time of purchase for a period of fifty (50) years from the date of purchase by the City. (Ord. 1328 (part), 1989) Division 10. Removal of Company Facilities at End of Franchise Sec. 5-84-450. Limitations on Company removal. If at the time of termination of the franchise granted under this Article no renewal has been negotiated between the City and the Company, the Company shall not be required to remove its facilities immediately from the streets, public ways and dedicated easements. At the City's request and within a reasonable time not to exceed nine months, the Company shall remove at the Company's expense from the public streets, ways and dedicated easements all overhead facilities belonging to the Company which are not purchased by the City at the termination of the franchise. Further, the Company, at the request of the City, shall remove at the Company's expense all underground facilities which are not purchased by the City within nine months after the receipt by the Company of a written notice from the Director of Public Works that said underground facilities constitute a hazardous condition or interfere with a municipal use of the subsurface of said streets, ways and dedicated easements. All public property shall be restored by the Company to its former condition after said removal. The Company need not remove any property from said public streets, ways and dedicated easements which it shall continue to use and maintain pursuant to contractual arrangements with the City. (Ord. 1328 (part), 1989) Division 11. Small Power Production and Cogeneration Sec. 5-84-460. Company to purchase City-generated energy. The City expressly reserves the right to engage in the production of electric energy from cogeneration and small power production (City-generated power and energy). The Company agrees to purchase such City-generated power and energy from facilities meeting the qualifications for mandatory purchase under present federal and state law and regulations so long as so required and thereafter if such power and energy is usable by the Company with respect to its system load and reserve capacity. If at the time the purchase contract is made, the PUC declines to determine the Company's avoided costs, the purchase price for City-generated power and energy shall be determined by whatever state or federal agency has jurisdiction for making such determination, and if no agency has such jurisdiction, the rate to be paid for such power and energy will be based upon the Company's cost at its base load generating plant operating at eighty-percent capacity factor, adjusted for the availability of the power and energy to be purchased, and the Company's ability to make a use of the power and energy beneficial to it and its ratepayers. ---PAGE BREAK--- 5-88 Payment for generated power and energy shall be guaranteed over the term of the purchase contract. (Ord. 1328 (part), 1989) Sec. 5-84-470. Interconnection. To facilitate the purchase of City-generated power and energy, the Company shall interconnect with all City-owned generation. The Company will construct, own and maintain the interconnection and/or any upgrade of the Company's existing interconnection facilities at the City's expense, provided that the cost paid by the City shall be a contribution in aid of construction as to said interconnection facilities. (Ord. 1328 (part), 1989) Sec. 5-84-480. Curtailment. The Company shall not curtail contractual purchases of City-generated power and energy except in emergency situations. (Ord. 1328 (part), 1989) Sec. 5-84-490. Enforceability. The Company shall be obligated to purchase City-generated power and energy at the rates as herein defined for the entire length of the contract term, irrespective of changes in federal or state legislation or administrative rulings with regard to cogeneration and small power production. (Ord. 1328 (part), 1989) Division 12. Forfeiture Sec. 5-84-500. Forfeiture. If the Company fails to perform any of the terms or conditions of this Article, the City shall notify the Company. In the notice, the City shall specify the time, not to exceed three months, in which the Company must remedy the violations. If after such time corrective actions have not been successfully taken, the City shall determine whether any or all rights and privileges granted the Company under this franchise shall be forfeited. (Ord. 1328 (part), 1989) Sec. 5-84-510. Continued obligations. Upon forfeiture, the Company shall continue to provide service to this City and its residents until the City makes alternative arrangements for such service. If the Company fails to provide continued service, it shall be liable for all actual and consequential damages to the City and its residents. (Ord. 1328 (part), 1989) Division 13. Amendments Sec. 5-84-520. Amendment to franchise. At any time during the term of this franchise, the City, through its City Council, or the Company may propose amendments to this franchise by giving thirty (30) days’ written notice to the other of the proposed amendments desired, and both parties thereafter, through their designated representatives, will within a reasonable time negotiate in good faith in an effort to agree upon mutually satisfactory amendments. The word amendment as used in this Section does not include a change in franchise fee or ---PAGE BREAK--- 5-89 other franchise term authorized in Section 5-84-60. (Ord. 1328 (part), 1989) Division 14. Miscellaneous Sec. 5-84-530. Successors and assigns. The rights, privileges, franchises and obligations granted and contained in this Article shall inure to the benefit of and be binding upon Union Rural Electric Association, Inc., its successors and assigns, and subsidiaries; and whenever in this Article the word Company is used, it shall be deemed to refer and apply to Union Rural Electric Association, Inc., its successors and assigns. (Ord. 1328 (part), 1989) Sec. 5-84-540. Representatives. 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 Article. Notices shall be in writing and forwarded by certified mail or hand delivery to the persons and addresses as hereinafter stated, unless the names 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 to the City Manager and to the Company's general manager. The addresses are as follows: For the City: City Manager City of Brighton 22 South Fourth Avenue Brighton, CO 80601 For the Company: General Manager Union Rural Electric Association, Inc. P. O. Box 929 Brighton, CO 80601 (Ord. 1328 (part), 1989; Ord. 1723 2001) Sec. 5-84-550. Severability. Should any one or more provisions of this Article be determined to be illegal or unenforceable, 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 a term that will achieve the original intent of the parties hereunder. (Ord. 1328 (part), 1989) Sec. 5-84-560. Entire agreement. This Article constitutes the entire agreement of the parties. There have been no representations made other than those contained in this Article. (Ord. 1328 (part), 1989) ---PAGE BREAK--- 5-90 ARTICLE 5-90 Group Homes Sec. 5-90-10. Definitions. The following words and phrases as used in this Article shall be construed and defined as follows: Group home means a residence that is operated to provide supervision and other services for four to eight individuals who are developmentally disabled (as defined in Section 31-23-103(4), mentally ill or sixty (60) years of age or older, or persons with handicaps as defined by 42 U.S.C. §3601 and Section 24-34-103(4), C.R.S., and who are not related to the owner of the residence by blood, marriage or adoption. A foster care home with more than four foster children is also considered a group home. Except as specifically provided by this Code, a group home shall not house more than one individual per dwelling who is required to register as a sex offender under the provisions of Section 18-3-412.5, C.R.S., as amended. Group home administrator means an individual with the authority and responsibility for the day-to-day management of a group home. (Ord. 1391 §1(part), 1991; Ord. 1589, 1999; Ord. 1639 2000) Sec. 5-90-20. License required. Any person, corporation, partnership or other entity owning and operating property and improvements within the City operated as a group home shall be required to obtain and maintain a license from the City and pay the applicable license fee. Any group home currently operating under a valid county or state license as of the effective day of the ordinance codified in this Article shall have a period of thirty (30) days to apply for a license and ninety (90) days within which to obtain a license. Application for such license shall be made to the City Clerk's office upon a form to be supplied by the City Clerk consistent with the terms of this Section. (Ord. 1391 §1(part), 1991; Ord. 1589, 1999; Ord. 1597 1999) Sec. 5-90-30. License and operation, age requirement. No person shall be licensed hereunder or authorized to act as a group home administrator who has not attained the age of twenty-one (21) years. (Ord. 1391 §1(part), 1991; Ord. 1589, 1999) Sec. 5-90-40. Contents of application. The application for a group home license shall contain the following information: Name and address of the applicant, and if a natural person or persons, age, date and place of birth (applicants include all owners of the property and the persons or entity who will be actually operating the facility); Telephone number of applicants for contact day or night; If a corporation, the names of directors, officers and shareholders and date and place of incorporation; ---PAGE BREAK--- 5-91 If a partnership or other entity, names and addresses of all persons who are members of the partnership or entity; A list of all civil judgments or criminal convictions for the five years preceding the application involving the persons listed above. Traffic infractions need not be listed; Documents that shall be attached to the application are: a. Copies of all licenses of any nature held by any applicant, pertaining to the operation of a group home; b. Proof of ownership and/or right to possession (if the operator not the owner); c. A plan of operation including a general description of the type of group home proposed and the facilities and care to be provided; the number of occupants; the hours of operation and staffing; a descriptive floor plan specifying all area uses, with fire control and fire evacuation notations and descriptions; a description of special care requirements and/or equipment of the group home or occupants; a plan for secure storage of drugs, if any; and a description of general supervision provisions; Identification of the group home administrators, night and day telephone numbers and dates of birth. (Ord. 1391 §1(part), 1991; Ord. 1597 1999) Sec. 5-90-45. Coordination, monitoring. The City Clerk's office shall be primarily responsible for coordinating with the applicant in the licensing process, approving the initial plan of operation, and amendments, and monitoring the licensee's compliance with all required standards. All completed applications shall be submitted to the City Council by the City Clerk for issuance or denial. Denials may be appealed pursuant to Rule 106 C.R.C.P. to the Adams County District Court. (Ord. 1391 §1(part), 1991; Ord. 1597 1999) Sec. 5-90-50. Investigation, eligibility. The City Clerk shall forward the application to the Planning Department for its review. The Planning Department shall confirm, by approval signature, that the location of the proposed group home is a permitted use under the City's Zoning Code, that it is not within seven hundred fifty (750) feet of another licensed group home, and that it satisfies the definition of a group home as set forth in the City's Zoning Code. The application shall then be forwarded to the Public Works, Police and Building Departments and the Fire District for a determination of compliance and the eligibility of the proposed property for group home use under health, safety, fire and building codes. Persons, entities or entities controlled by persons who have been convicted of crimes of moral turpitude (or other crimes affecting their ability to care for and supervise others), or adjudged negligent in the care of other persons, shall not be eligible to hold a group home license or be a group home administrator. (Ord. 1391 §1(part), 1991; Ord. 1597 1999) Sec. 5-90-60. Conformity of structure. In order to obtain and maintain a license, the structures for group homes used must be consistent with the massing, roof types, materials and character of the surrounding neighborhood, and any alterations or additions shall retain such consistency. (Ord. 1391 §1(part), 1991) ---PAGE BREAK--- 5-92 Sec. 5-90-70. License, special requirements. Owners and operators of residential facilities for the aged, persons with developmental disabilities and persons with mental illness group home owners and operators) must comply with all applicable zoning regulations of the City. When an application for a state license to operate such a residential facility within the jurisdictional limits of the City is filed with the State, the owner or operator shall also at that time provide to the City Planning and Community Development Department written notice of its intent to locate and operate within the City, and shall again provide similar written notice when the state license is granted, changed, revoked or renewed by the State. As a condition of the issuance of a l i cense hereunder, the City may specify special requirements of obtaining and maintaining the license, due to unique or exceptional circumstances, which are reasonably related to the health, safety and welfare of group home residents and the community as a whole, including such special requirements as are reasonably ne c essary for the regulation of group homes propo s ing to house individuals required to register as sex offenders pursuant to Section 18-3-412.5, C.R.S. (Ord. 1391 §1(part), 1991; Ord. 1639 2000) Sec. 5-90-80. Operational requirements. Any license issued hereunder is subject to revocation by the City Council, as hereinafter provided, for failure to operate the group home in conformance with the following required standards: All licensees must follow the required standards of any state or county license. All group homes must be operated by the group home administrators who shall be on site or on call twenty-four (24) hours a day. Any changes in the information pr o vided in Paragraph 5-90-40(1) through shall be immediately reported in writing to the City Clerk. The plan of operation, as amended from time to time and approved by the City Clerk, shall continue to be followed, and any changes thereto shall first be approved by the City Clerk. The group home administrators shall immediately notify the Police Department of: any unlawful acts committed on the premises; or any unlawful acts of the re s idents or staff off- premises which relate to the operation of the group home; or persons who make threatening communications to others or commit acts dangerous to themselves or others; and incidents, such as fire or structural failure or flooding, dangerous or potentially dangerous to the residents. Sufficient staffing, supervision and equipment/facilities must be maintained so residents do not become unaccounted for, uncontrolled or lost. It is the responsibility of the licensees and the group home administrator, not the City, to supervise the location or transportation of group home residents. (Ord. 1391 §1(part), 1991; Ord. 1597 1999) Sec. 5-90-85. Inspection of premises. Licensed premises shall be subject to inspe c tion for good cause, for the purpose of verifying that the operation thereof is in conformance with the requirements of the license and the requir e ments set forth herein, without notice, at reaso n able hours and with reasonable frequency, by City officials within the ---PAGE BREAK--- 5-93 Building Department, Code Enforcement Department, Police Depar t ment and Fire Department. Inspection may o c cur at any time if exigent circumstances exist. Refusal of inspection requests or interference with inspections shall be cause for license rev o cation. Annual inspections, with notice, shall occur for license renewal purposes. Notice of nonconformance with any of the licensing r e quirements listed heretofore in this Article by the licensee shall be forwarded in writing imm e diately to the City Clerk. (Ord. 1391 §1(part), 1991; Ord. 1597 1999) Sec. 5-90-90. License revocation, suspension, violation. The license granted hereunder may be revoked by the City Council for failure of any of the licensees or group home administrators to adhere to the requirements and standards set forth herein. Upon recommendation of the City Clerk, the City Manager may commence revocation proceedings by notifying the licensee of alleged violations and of the date of hearing before the City Council. Notice to the licensee shall be by regular mail to the address given in the license application, as amended, at least fifteen (15) days in advance of the City Council hearing. Notice of the hearing shall be published in a newspaper or on a publicly accessible web page at least five days before the hearing. At the hearing, after presentation of evidence by the City staff and by the applicant, the City Council, by majority vote, may revoke the license, suspend the license or stay revocation or suspension upon specified conditions, upon findings by preponderance of the evidence that the licensee or group home administrators failed in one or more respects to follow the standards and requirements of the license. Revocation or suspension of this license may be appealed pursuant to Rule 106 C.R.C.P. to the Adams County District Court. (Ord. 2123 2011) ARTICLE 5-94 Sexually Oriented Businesses Sec. 5-94-10. Purpose and intent. The purpose and intent of this Article is to regulate sexually oriented businesses, to promote the health, safety and general welfare of the citizens of the City and to establish reasonable and uniform regulations to prevent the del e terious location and concentration of sexually oriented businesses within the City, thereby reducing or eliminating the adverse secondary effects from sexually oriented businesses. The provisions of this Article are not intended to i m pose a limitation or restriction on the content of any communicative materials, including sexually oriented materials. Nor is it the intent of this Article to restrict or deny access by adults to constitutionally protected materials or to deny access by distributors and exhibitors of sexually oriented entertainment to their intended market. Neither is it the intent or effect of this Article to condone or legitimize the distribution of obscene material. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-20. Definitions. For the purposes of this Article, the words set out in this Section shall have the following meanings: Adult arcade means an establishment where as the principal business purpose, for any form of consideration, one or more still or motion picture projectors, slide pr o jectors or similar machines, or other image-producing machines, for viewing by five or fewer persons each, are used to show films, motion pictures, videocassettes, slides or other photographic reproductions which are ---PAGE BREAK--- 5-94 characterized by the depiction or descri p tion of specified sexual activities or specified anatomical areas. Adult bookstore means: a. A commercial establishment which: devotes twenty-five percent (25%) of its stock-in- trade or interior floor space to; (ii) receives twenty-five percent (25%) of its revenues from; or (iii) devotes twenty-five percent (25%) of its advertising expenditures to; the promotion of the sale, rental or viewing, for any form of consideration, of books, ma g azines, periodicals or other printed matter, or photographs, slides, videos, CDs or other visual representations which are characterized by the depiction or description of specified sexual activities or specified anatomical areas. b. An establishment may have other principal business purposes that do not involve the offering for sale, rental or viewing of materials depicting or describing specified sexual activities or specified anatomical areas, and still be categorized as an adult bookstore . Such other business purposes will not serve to exempt such establishment from being categorized as an adult bookstore so long as the provisions of Subsection (2)a hereof are otherwise met. Adult cabaret means a bar, restaurant or similar commercial establishment, whether or not alcoholic beverages are served, which features: a) persons who appear nude or in a state of nudity or seminude; b) live performances which are characterized by the exposure of specified anatomical areas or by specified sexual activities; or c) films, motion pictures, videocassettes, slides or other photographic reproductions which are characterized by the depiction or description of specified sexual activities or specified anatomical areas. Adult motel means a motel, hotel or similar commercial establishment which: a. Offers public accommodations for any form of consideration, and provides patrons with closed-circuit television transmissions, films, motion pictures, videocassettes, slides or other photographic reproductions which can be described as depicting specified sexual activities or specified anatomical areas and which advertises the availability of this sexually oriented 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, leaflets, radio or television; b. Offers a sleeping room for rent for a period of time less than ten (10) hours; or c. Allows a tenant or occupant to sub-rent a sleeping room for a time period of less than ten (10) hours. Adult motion picture theater means a commercial establishment where films, motion pictures, videocassettes, slides or similar photographic reproductions depicting or describing specified sexual activities or specified anatomical areas are regularly shown for any form of consideration to six or more persons. Adult novelty business means a commercial establishment which devotes any of its stock-in- trade or interior floor space to, receives any of its revenues from, or devotes any of its advertising expenditures to the promotion of the sale of devices which are designed and marketed for the stimulation of human genitals. Other business purposes will not serve to exempt such establishment ---PAGE BREAK--- 5-95 from being categorized as an adult novelty business. Adult theater means a theater, concert hall, auditorium or similar commercial establishment which, for any form of consideration, regularly features persons who appear in a state of nudity or live performances which are characterized by exposure of specified anatomical areas or by specified sexual activities. Adult video store means: a. A commercial establishment which: devotes twenty-five percent (25%) of its stock-in- trade or interior floor space to; (ii) receives twenty-five percent (25%) of its revenues from; or (iii) devotes twenty-five percent (25%) of its advertising expenditures to; the promotion of the sale, rental or viewing, for any form of consideration, of photographs, slides, videos, CDs or other visual representations which are characterized by the depiction or description of specified sexual activities or specified anatomical areas. b. An establishment may have other principal business purposes that do not involve the offering for sale, rental or viewing of materials depicting or describing specified sexual activities or specified anatomical areas, and still be categorized as an adult video store . Such other business purposes will not serve to exempt such establishment from being categorized as an adult video store so long as the provisions of Subsection (8)a hereof are otherwise met. Employee means a person who works or performs in and/or for a sexually oriented business, regardless of whether or not the person is paid a salary, wage or other compensation. The term employee includes but is not limited to the manager. (10) Escort means a person who, for any form of consideration, agrees or offers to act as a companion, guide or date for another person, or who agrees or offers to privately model lingerie or to privately perform a striptease for another person. (11) Escort agency means a person who furnishes, offers to furnish or advertises to furnish escorts as part of its business purposes for a fee, tip or any form of consideration. (12) Establishment (sexually oriented business) means: a. The opening or commencement of a sexually oriented business as a new business; b. The conversion of an existing business into a sexually oriented business; c. The addition of a sexually oriented business to any other existing sexually oriented business; or d. The relocation of a sexually oriented business. (13) License means a sexually oriented business license applied for or issued pursuant to Section 5 -94-60 of this Article. (14) Licensee means a person in whose name a license to operate a sexually oriented business has been issued and who shall be an owner or principal owner of the business. ---PAGE BREAK--- 5-96 (15) Manager means an employee, other than a licensee, who is responsible for the operation and management of a sexually oriented business. (16) Nude model studio means a sexually oriented business in which, for any form of consideration, a person appears in a state of nudity or displays specified anatomical areas to be observed, sketched, drawn, painted, sculpted, photographed or similarly depicted by another person. (17) Nudity or state of nudity means: a. The appearance of a human bare buttocks, anus, genitals or the areola or nipple of the female breast; or b. A state of dress which fails to opaquely and fully cover a human buttocks, anus, genitals or areola or nipple of the female breast. (18) Owner means a person owning, directly or beneficially, any interest or part interest, however identified, in a sexually oriented business. The term owner shall not include corporate stockholders unless such stockholders are also officers, directors or employees who have direct management responsibilities. (19) Peep booth means a room of less than one hundred fifty (150) square feet of floor space in which viewing of sexually oriented materials and/or acts is to occur. (20) Person means an individual, sole proprietorship, partnership (in any form), corporation, limited liability company, association, organization or other legal entity, including an applicant, licensee, manager, owner or principal owner. (21) Premises or licensed premises means any premises that requires a license and that is classified as a sexually oriented business, including parking lots, sidewalks and other areas under the direction and control of the licensee. (22) Principal owner means any person owning, directly or beneficially, ten percent (10%) or more of a corporation's corporate stock, ten percent (10%) or more of a membership interest in a limited liability company, ten percent (10%) or more of the ownership interest in the entity or the general partner of a limited partnership, regardless of the percentage of ownership. (23) Private room means a room in an adult motel that is not a peep booth, that has a bed and a bath in the room or adjacent room, and that is capable of being used for lodging. (24) Public park means public land which has been designated for park or recreational activities including but not limited to a park, playground, nature trail, swimming pool, reservoir, athletic field, basketball or tennis court, pedestrian bicycle path, open space, wilderness area or similar public land within the City which is under the control, operation or management of the City or other public entity. (25) Religious institution means any church, synagogue, mosque, temple or building which is used primarily for religious worship and related religious activities. (26) School means any public or private educational facility, including but not limited to child day care facilities, nursery schools, preschools, kindergarten, elementary schools, primary schools, intermediate schools, junior high schools, middle schools, high schools, vocational schools, secondary ---PAGE BREAK--- 5-97 schools, special education schools, junior colleges and universities. The term school includes the school grounds, but does not include facilities used primarily for another purpose and only incidentally as a school. (27) Seminude means a state of dress in which clothing covers no more than the genitals, pubic region and areola of the female breast, as well as portions of the body covered by supporting straps or devices. (28) 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 or activities when one or more of the persons is in a state of nudity. An adult motel will not be classified as a sexual encounter establishment by virtue of the fact that it offers private rooms for rent. (29) Sexually oriented business means an adult arcade, adult bookstore, adult cabaret, adult motel, adult motion picture theater, adult novelty business, adult theater, adult video store, sexual encounter establishment, escort agency or nude model studio. The definition of a sexually oriented business shall not include an establishment where a medical practitioner, or similar professional person licensed by the State engages in medically approved and commonly recognized sexual therapy. (30) Specified anatomical areas means human genitals less than completely or opaquely covered, including the pubic region, buttocks or anus; female breasts below a point immediately above the top of the areola; or human male genitals in a discernible turgid state, even if completely or opaquely covered. (31) Speci f ied criminal acts means sexual crimes against children, sexual abuse, rape and/or those included in Article 7 of Title 18, C.R.S., including, but not limited to, the distribution of obscenity, prostitution or pandering. (32) Specified sexual activities means: a. The fondling or other intentional touching of human genitals, pubic region, buttocks, anus or female breasts. b. Sex acts, actual or simulated, including intercourse, oral copulation or sodomy. c. Masturbation, actual or simulated. d. Human genitals in a state of sexual stimulation, arousal or tumescence. e. Excretory functions as part of or in connection with any of the activities set forth in Subparagraphs a through d. (33) Transfer of ownership or control of a sexually oriented business means the sale, lease or sublease of the sexually oriented business, the transfer of securities which constitute a controlling interest in such business, whether by sale, exchange or similar means, or the establishment of trust, management arrangement, gift or other similar legal device which transfers ownership or control of ---PAGE BREAK--- 5-98 such business, except for transfer by bequest or other operation of law upon the death of a person possessing the ownership or control. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-30. Exemptions. The provisions of this Article regulating nude model studios do not apply to: A college, junior college or university supported entirely or partly by taxation; or A private college or university which maintains and operates educational programs in which credits are transferable to a college, junior college or university supported entirely or partly by taxation. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-40. Violations and penalties. It shall be unlawful for a licensee, owner, principal owner, manager or employee to violate any of the requirements of this Article or to knowingly permit any patron, customer or occupant of the licensed premises to violate the requirements of this Article. It shall be unlawful for a licensee, owner, principal owner, manager or employee to knowingly operate or cause to be operated a sexually oriented business without a license therefor. It shall be unlawful for any person to act as a manager of a sexually oriented business without a manager's license therefor. It shall be unlawful for a licensee, owner, principal owner, manager or employee to knowingly allow or permit the following: Operation of licensed premises in violation of any municipal ordinance, state or federal law, or any applicable state or county health department regulation. Operation of licensed premises in violation of any of the regulations contained in Section 5- 94-50 of this Code. Transfer or attempt to transfer a license without complying herewith and obtaining a license therefor as required in this Article. Change, alter or modify the licensed premises of a sexually oriented business, or attempt to do so without complying with this Article. In the case of a corporate licensee, operation of a sexually oriented business when the corporation is suspended or not in good standing with the secretary of state's office where the corporation is incorporated, or is authorized to do business. It shall be unlawful for an applicant, owner, principal owner, manager or employee to knowingly: Make a false statement on an application for a license or fail to disclose facts as required by this Article. ---PAGE BREAK--- 5-99 Permit any person on the licensed premises who has not attained the age of eighteen (18) years, except for establishments which offer on-premises viewing of films or videos or have live entertainment, in which case the minimum age requirement shall be twenty-one (21) years. Permit any employee on the licensed premises who has not attained the age of twenty-one (21) years to participate in live performances or appear in a state of nudity. Engage in or allow any person to be engaged in any specified sexual activity on the licensed premises. It shall be unlawful for any person to knowingly: Enter or remain on the licensed premises when such a person has not attained the age of eighteen (18) years, except for establishments which offer on-premises viewing of films or videos or have live entertainment, in which case the minimum age requirement shall be twenty-one (21) years. Participate in live performances or appear in a state of nudity when such a person has not attained the age of twenty-one (21) years. Commit or engage in any specified sexual activity on the licensed premises. Touch, fondle, caress or come in physical contact with the specified anatomical areas of any performer, entertainer, waitperson or employee of the sexually oriented business. It is an affirmative defense to prosecution for a violation of this Article that a person in a sexually oriented business exposed any specified anatomical area during such person's bona fide use of a restroom, or in the case of an employee during the employee's bona fide use of a dressing room which is accessible only to employees. Penalties. Any violation of Subsections and of this Section shall be punishable by a fine in a minimum amount of two hundred fifty dollars ($250.00) and a maximum amount of one thousand dollars ($1,000.00), plus all applicable court costs. Any violation of Subsections or of this Section shall be punishable by a maximum penalty. Each day a violation occurs shall be considered a separate and distinct offense. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-50. Regulations for operation. Inspection of the premises. An applicant, licensee, owner, principal owner or manager shall permit representatives of the Building Inspection Division, the Tri-County Health Department, the Fire Department or the Police Department to inspect the premises of a sexually oriented business for the purpose of ensuring compliance with the law, at any time it is open for business or occupied by any person. ---PAGE BREAK--- 5-100 Exhibition of sexually explicit films or videos in peep booths. A licensee, owner, principal owner or manager who operates or causes to be operated a sexually oriented business which exhibits, on the licensed premises, a film, videocassette or other video reproduction in a peep booth, which depicts specified sexual activities or specified anatomical areas, shall comply with the following: The business shall have one or more manager's stations. No alteration in the configuration or location of a manager's station may be made without the prior written approval from the City's Chief Building Official. At least one employee must be on duty and situated at a manager's station at all times that any customer or patron is present inside the licensed premises. The interior of the licensed premises shall be configured in such a way that there is an unobstructed view from a manager's station of every area to which any customer or patron is permitted access for any purpose, excluding restrooms. Restrooms may not contain video display equipment. If the licensed premises has two or more manager's stations designated, the interior of the sexually oriented business premises shall be configured in such a manner that there is an unobstructed view of each area to which any customer or patron is permitted access for any purpose from at least one of the manager's stations. The view required must be by direct line of sight from the manager's station. The view area shall remain unobstructed by any doors, walls, merchandise, display racks or other materials at all times, and no customer or patron shall be permitted access to any area which has been designated in the application as an area in which customers and patrons will not be permitted. No peep booth may be occupied by more than one person at any one time. No door shall be placed on any peep booth, and no holes or openings shall be placed or allowed to remain in the wall between any two adjacent peep booths. Hours of operation. A sexually oriented business shall not be open for business nor shall the licensee, owner, principal owner, manager or any employee allow customers or patrons upon the licensed premises: a. On any Monday through Saturday from 2:00 a.m. to 7:00 a.m. b. On any Sunday, from 10:00 p.m. to 12:00 p.m. (noon), except if any Sunday falls on December 31, then the hours shall be as stated in Subparagraph (c)(1)a above. This Section does not apply to those areas of an adult motel which have private rooms. Minimum age. The licensee, owner, principal owner, manager or any employee of the licensee shall not allow or permit anyone under the age of eighteen (18) years to be in or upon a licensed premises, except for establishments which offer on-premises viewing of films or videos or have live entertainment, in which case the age requirement shall be twenty-one (21) years. The licensee, owner, principal owner or manager of the licensee shall not allow or permit any employee under the age of twenty-one (21) years to participate in live performances or appear in a state of nudity. Lighting regulations. ---PAGE BREAK--- 5-101 Excluding a private room of an adult motel, the interior portion of the premises of a sexually oriented business to which patrons are permitted access must be equipped with overhead lighting fixtures of sufficient intensity to illuminate every place, including peep booths, at an illumination of not less than five foot-candles as measured at floor level. It shall be the duty of the licensee and employees present on the premises to ensure that the illumination described in Subsection of this Section is maintained on at all times that any patron or customer is present on the premises. Adult theaters and adult cabarets. Any adult cabaret or adult theater shall have one or more separate areas designated as a stage in a diagram submitted as part of the application submitted with the City Clerk. Entertainers shall perform only upon the stage. The stage shall be fixed and immovable. Except for current legal, nonconforming businesses, 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. Conduct for sexually oriented businesses. It shall be unlawful for any licensee, owner, principal owner, manager or employee to mingle with the patrons or serve food or drinks in a state of nudity. It shall be unlawful for any licensee, owner, principal owner, manager or employee to knowingly encourage or permit any person upon the premises to touch, caress or fondle the breasts or specified anatomical areas of any person. A licensee, owner, principal owner or manager shall comply, in addition to the regulations contained in this Subsection, with those specific regulations concerning the conduct of liquor licensed premises contained in Article 5-8 of this Code, which Article is incorporated in this Article by this reference. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-60. License. No sexually oriented business shall be operated within the corporate limits of the City without a valid sexually oriented business license issued by the City. It shall be unlawful to operate or cause to be operated a sexually oriented business when the person knows or reasonably should know that the business: Does not have a sexually oriented business license; Has a license that is under suspension; Has a license that has been revoked; or Has a license that has expired. A sexually oriented business license shall be requested through the application and licensing process described in this Section. Any person desiring to operate a sexually oriented business shall file with the City Clerk an original and two copies of a fully completed and sworn license application on the standard application form supplied by the City Clerk. ---PAGE BREAK--- 5-102 The City Clerk is responsible for granting, denying, revoking, renewing and suspending the licenses for proposed or existing sexually oriented businesses. In the City Clerk's discretion, the City Clerk may, but need not, appoint an employee of the City to act for and on behalf of the City Clerk as to any or all matters related to sexually oriented businesses as specified in this Article. The Planning Department is responsible for ascertaining whether a proposed sexually oriented business for which a license application has been submitted complies with all locational requirements of Chapter XVII, Section 11, Paragraph J.5 of this Code. The Police Department is responsible for securing information on whether an applicant has been convicted of a specified criminal act during the time period set forth hereafter. The Building Inspection Department is responsible for inspecting a proposed sexually oriented business in order to ascertain whether it is in compliance with applicable building codes and ordinances. Any sexually oriented business operating in the City upon the effective date of the ordinance from which this Article derives, and subject to Article 5-4 of this Code, shall have sixty (60) days to file an application with the City Clerk for a license. During the sixty (60) days and throughout the application process, the business will be allowed to remain open. Once an application has been accepted by the City Clerk, the business will be allowed to remain open until notification that a request for a license has been denied. A legal nonconforming business , as used herein, means any sexually oriented business that was lawfully operated and maintained under the law governing such businesses before its annexation, the adoption of this Article or amendments thereto but does not conform to the provisions of Chapter XVII, Section 11, Paragraph J.5 of this code, relative to zoning districts in which sexually oriented businesses may be located and maintained. A legal nonconforming business may be continued and shall be operated in accordance with the provisions of this Article, but it shall not be: a. Altered, modified or expanded; b. Reestablished after its discontinuance, cessation or change of business for ninety (90) days; or c. Reestablished after damage or destruction if the estimated cost of reconstruction exceeds fifty percent (50%) of the appraised replacement cost as determined by the City Manager. The City Clerk shall first determine if the application is complete with all information required by the application form, which shall include the following information and required documents. If the application is complete, it will be accepted: Identify each such person and each owner and principal owner, member of a limited liability company, officer, director or any person holding ten percent (10%) or more of the corporate stock of a corporation, and all managers, shall be named in the application form, with the individual's legal name and any aliases, date of birth, satisfactory proof of such individual's age, Social Security number, mailing and business address and telephone number. Each person so named shall be photographed ---PAGE BREAK--- 5-103 and fingerprinted by the Police Department. For each entity, state its complete name; the date and place of its organization; evidence that it is in good standing under the laws of the state in which it is organized, and if it is organized under the laws of a state other than this State, that it is registered to do business in this State; the names and any aliases, dates of birth, Social Security number, mailing and business address, telephone number and capacity of all officers, directors, managers and principal owners; and the name of the registered agent and the address of the registered office for service of process, if any. If the applicant intends to operate the sexually oriented business under a name other than that of the applicant, the applicant must state said trade name. Whether the applicant or any other individual listed in Subsections and of this Section has been convicted of a specified criminal act within the times set forth in this Article and, if so, the specified criminal act involved, the date of conviction and the place of conviction. Whether the applicant or any other individual listed in Subsections and of this Section has had a previous license under this or any other type of sexually oriented business licensing process, law or ordinance from any type of governmental entity anywhere in the United States denied, suspended or revoked and, if so, the name and location of the sexually oriented business for which the license was denied, suspended or revoked, the date of the denial, suspension or revocation and the circumstances that resulted in denial, suspension or revocation. Whether the applicant or any other individual listed in Subsections and of this Section has been a partner in a partnership or a principal owner of a corporation or legal entity or other recognized entity whose license has previously been denied, suspended or revoked and, if so, the name and location of the sexually oriented business for which the license was denied, suspended or revoked, the date of denial, suspension or revocation and the circumstances that resulted in denial, suspension or revocation. Whether the applicant or any other individual listed in Subsections and of this Section holds any other licenses under this division or any other type of sexually oriented business licensing process, law or ordinance from any type of governmental entity anywhere in the United States, and if so, the name and location of such other permitted business. The location of the proposed or existing sexually oriented business, including a legal description of the property, street address and telephone number. Proof of ownership or the applicant's right to possession of the property. If the property is not owned by the applicant, evidence that the owner of the property is aware of and agrees to the operation of the sexually oriented business. (10) A sketch or diagram showing the configuration of the premises, including a statement of total floor space occupied by the business, and showing all interior walls and rooms. The sketch or diagram does not need to be professionally prepared, but it must be oriented to the north or to some designated street or object and shall 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. ---PAGE BREAK--- 5-104 (11) A current certificate and straight-line drawing prepared by a state-registered land surveyor within thirty (30) days prior to an initial application depicting the property lines and the structures containing the proposed licensed premises and any established existing uses regulated by this Section which are located wit hin five hundred (500) feet of the property to be certified; and the property lines of any religious institution, school, public park, public building or residentially zoned property. For purposes of this Section, a use shall be considered existing or established if it is in existence at the time an application is submitted. (12) If a person who wishes to operate a sexually oriented business is an individual, such person must sign the application for a license as applicant. If a person who wishes to operate a sexually oriented business is other than an individual, each owner and principal owner of the business must sign the application for a license as applicant. An applicant shall have a continuing duty to supplement application information required by this Section in the event that the information changes in any material way from what is stated on the application. The failure to comply with such continuing duty within thirty (30) days from the date of such change shall be grounds for denial or suspension of a license. In the event that the City Clerk determines or learns at any time that the applicant has improperly completed the application for an existing or proposed sexually oriented business, the City Clerk shall notify the applicant of such fact and allow the applicant to properly complete the application. The failure to complete the application within ten (10) days of notification shall be grounds for denial or suspension of a license. The sexually oriented business license shall expire on the anniversary date of approval of the license, and the application process described in this Section shall be repeated for each year that a licensee wishes to renew a license. The applicant shall pay a nonrefundable application fee, the amount of which shall be as established in the City's annual fee resolution, at the time of filing an application under this Section and at the time of filing of each annual renewal application. The fact that a person possesses other types of state or City licenses does not exempt such person from the requirement for obtaining a license issued pursuant to this Article. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-70. Investigation. Upon a determination by the City Clerk that the application is complete and payment of the nonrefundable application fee as required, the City Clerk shall note on the application the date of such determination and acceptance of the application. Thereafter, the City Clerk shall send photocopies of the application to the Planning Department, Police Department, Building Inspection Division and any other affected department or agency. Each department or agency shall conduct an investigation of the applicant, application and the proposed sexually oriented business in accordance with its responsibilities. The investigation shall be completed within forty (40) days of the date on which the application was accepted by the City Clerk. At the conclusion of its investigation, the Police Department shall provide the City Clerk with the information specified in Section 5-94-60(c)(3). At the conclusion of the investigation by other departments or agencies to which the application was submitted, each such department and agency shall submit to the City Clerk in writing its approval or disapproval of the application, date and in ---PAGE BREAK--- 5-105 the event of disapproval, state the reasons therefor. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-80. Issuance. Time limit for determination, decision. The City Clerk shall either issue a license or deny a request for issuance of a license within sixty (60) days from the date the application is accepted by the City Clerk. Upon the expiration of the sixtieth day, the applicant shall be permitted to begin operating the business for which the license is sought, unless and until the City Clerk notifies the applicant of a denial of the application or license and states the reason for that denial. In the event that the City Clerk denies a request for issuance of a license, after having received and compiled information concerning the proposed business from all relevant sources, the City Clerk shall make written findings of fact stating the reasons for the denial and will so notify the applicant within five days of such decision. A copy of the City Clerk's approval or denial shall be mailed by regular mail, postage prepaid, or in the City Clerk's discretion, served on the applicant at the address shown in the application. Issuance. The City Clerk shall issue a license unless one or more of the criteria set forth in Subsection of this Section is present. The license, when issued, shall identify the licensee on its face, 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. A license issued pursuant to this Section shall be transferable only pursuant to Section 5-94-110. Denial. The City Clerk shall deny a request for issuance of a license for any of the following reasons: a. An applicant is under twenty-one (21) years of age; b. In the case of renewal, if the applicant is overdue in payment to the City of taxes, fees, fines or penalties assessed or imposed upon the licensee and/or the sexually oriented business; c. An applicant has failed to provide any information required by this Article for the issuance of the license or has falsely answered a question on the application form or request for information; d. The premises to be used for the sexually oriented business have been disapproved by an inspecting agency on the grounds that the proposed sexually oriented business is in violation of any standard, regulation, law or ordinance adopted or administered by such agency; e. The application and/or license fees have not been paid; f. An applicant is found to be in violation of, or is not in compliance with, any relevant statutes, codes, ordinances, regulations or other laws in effect in the City; g. The granting of the application would violate a statute, ordinance or court order; h. The applicant held a license issued under this Article which had been suspended or revoked within the previous twelve (12) months; ---PAGE BREAK--- 5-106 i. The applicant has been convicted of a specified criminal act or acts for which: 1. Less than two years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a misdemeanor offense; 2. Less than five years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the conviction is of a felony offense; or 3. Less than five years have elapsed since the date of conviction or the date of release from confinement, whichever is the later date, if the convictions are of two or more misdemeanors. The fact that a conviction is being appealed shall have no effect on disqualification of the applicant. An applicant who has been convicted of a specified criminal act may qualify for a license only when the time period required in this Subsection has elapsed; j. The corporation for which a license has been issued or requested is not in good standing as required by the secretary of state of the state in which the corporation is incorporated; k. If an applicant held a license issued under this Article or any other similar sexually oriented business ordinance from another city or county denied, suspended or revoked for cause within five years of the date of the application; or 1. An applicant for the proposed business is in violation of or is not in compliance with any of the provisions of this Article. 2. An applicant shall be entitled to a hearing on a decision to deny before the City Council. A written request for such a hearing shall be made to the City Manager within thirty (30) days of the date of the City Clerk's decision to deny a request for issuance of a license. This hearing shall follow all the relevant procedures set forth for a suspension or revocation of a license contained in Section 5-94-170. 3. If, at the hearing before the City Council, the City Council determines that the applicant is ineligible for a license pursuant to Subsection of this Section, the City Council shall issue an order affirming the City Clerk's denial, within thirty (30) days after the date the hearing is concluded, based on the findings of fact advanced at the hearing. A copy of the order shall be mailed by regular mail, postage prepaid, or as may be directed by the City Council, served on the applicant at the address shown in the application. 4. The order of the City Council made pursuant to Subsection of this Section shall be a final decision and may be appealed to the District Court pursuant to Colorado Rules of Civil Procedure 106(a)(4). Failure of an applicant to timely appeal the City Council's decision constitutes a waiver by the applicant of any right to contest the decision. 5. Notwithstanding any other time periods set forth in this Article, no license shall be issued by the City Clerk until the building in which the business is to be housed is ready for occupancy with such furniture, fixtures and equipment in place as necessary to comply with the provisions of this Article, as well as any other requirements determined by the Building Inspection Division, and then only after inspection of the premises has been made by the Building ---PAGE BREAK--- 5-107 Inspection Division to determine that the applicant has complied with the plans and specifications submitted upon application. The City Clerk, at the City Clerk's discretion, may revoke, suspend or elect not to issue or renew the license if within three hundred sixty-five (365) days after approval of the request for issuance of the license the sexually oriented business has not begun operations of construction, renovation or improvement of the building. Notification. Unless the City Clerk or City Council shall direct otherwise, notification under this Article shall mean a mailing to the licensee by regular mail, postage prepaid, at the address listed on the license application, and the effective date for the notice shall be counted from the date of such mailing. Any notification made or required of the applicant, licensee or other private party under this Article shall be considered received by the City within the time periods specified. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-90. Annual license fees. The annual license fees for all licenses required under this Article, including manager's license and renewals thereof, shall be as established by the City Council in its annual fee resolution. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-100. Expiration and renewal. Each license required under this Article shall expire one year from the date of issuance and may be renewed only by making application as provided in Section 5-94-60. Application for renewal of a license shall be made at least sixty (60) days before the expiration date of the license. If a renewal application is submitted less than sixty (60) days before the expiration date of the license, the expiration date of the license will not be continued and the applicant/licensee will be accepting the risk that the request for a renewal of the license may not be completed in time to ensure continuous operation of the business. An expired license is invalid. The City Clerk may deny a request for renewal on the same grounds as stated in Section 5-94- 80(c)(1). (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-110. Transfer. It shall be unlawful for a licensee, owner, principal owner or manager to operate a sexually oriented business under the authority of a license issued pursuant to this Article at any address other than the address designated in the application for license. A licensee shall not transfer a license issued under this Article either directly or indirectly to any person unless and until such person: Files the equivalent of a new application with the City Clerk, and a new license is issued pursuant to this Article; and Pays a transfer fee equal to twenty percent (20%) of the annual license fee. No license may be transferred after such time as the City Clerk has notified the licensee that suspension or revocation proceedings have been or will be brought against the licensee. A license cannot be transferred to a different location. ---PAGE BREAK--- 5-108 A license issued pursuant to this Article shall be deemed to have been revoked from and after any attempt to transfer the license either directly or indirectly in violation of this Section. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-120. Changing, altering or modifying licensed premises. After the issuance of a license under this Article, the licensee shall make no physical change, alteration or modification of the licensed premises which materially or substantially alters the licensed premises or the usage of the licensed premises from the plans and specifications submitted at the time of obtaining the original license. If the licensee wishes to make physical changes, alterations or modifications, the licensee shall apply for a new license under the application provisions in Section 5-94- 60. For purposes of this Section, physical changes, alterations or modifications of the licensed premises or the usage of the licensed premises requiring prior written consent shall include but not be limited to the following: Any increase or decrease in the total size or capacity of the licensed premises. The sealing off, creation of or relocation of a common doorway, passage or other such means of public ingress and/or egress, when such common doorway or passage permits access to the licensed premises from or between public streets or thoroughfares, adjacent or abutting buildings, rooms or premises. Any change, alteration or modification to a peep bo o th which would result in increasing the size of the peep booth to more than one hundred fifty (150) square feet of floor space. Any change, alteration or modification of the manager's station for sexually oriented businesses which exhibit sexually explicit films or videos in peep booths. Any material change in the interior of the licensed premises that would alter or affect the physical structure that existed in the floor plan approved with the current existing license. The following shall not constitute a retinal change in the interior of the licensed premises: the installation or replacement of electric fixtures or equipment, plumbing, refrigeration, air conditioning or heating fixtures and equipment; the lowering of ceilings; the installation and replacement of floor coverings; the replacement of furniture and equipment; and other similar changes. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-130. Manager's license. If a sexually oriented business desires to employ a manager, such business must have a manager licensed pursuant to this Section, except an owner may act as a manager, in which case such owner or principal owner need not have a manager's license. Any manager of a sexually oriented business shall submit an application for a manager's license on a form to be provided by the City Clerk. The application shall contain the applicant's name and any aliases, residential address, date of birth, Social Security number, phone number and the information required in Section 5-94-60(e)(4), and ---PAGE BREAK--- 5-109 The Police Department is responsible for securing information on whether an applicant has been convicted of a specified criminal act during the time period set forth in Section 5-94-80(c)(1)i. Upon a determination by the City Clerk that the manager's application is complete and payment of the nonrefundable application fee as required, the City Clerk shall note on the application the date of such determination and acceptance of the application. Thereafter, the City Clerk shall send photocopies of the application to the Police Department for an investigation of the applicant in accordance with its responsibility. The City Clerk shall grant the application within twenty (20) days of its filing unless: The applicant is under age twenty-one (21). The applicant has failed to provide the information required by this Section or has failed to complete the application. The license fee for a manager's license has not been paid. The applicant has been convicted of a specified criminal act within the times set forth in Section 5-94-80(c)(1)i. The applicant is a manager of a sexually oriented business that is not operating in compliance with any provisions of relevant statutes, codes, ordinances, regulations or other laws in effect in the City. The applicant held or was the manager of a license issued under this Article or any other similar sexually oriented business ordinance from another city or county denied, suspended or revoked for cause within five years of the date of the application. Nothing herein shall be deemed a requirement that a sexually oriented business must have a manager separate and distinct from an owner or principal owner. A manager's license shall be valid as long as the manager is employed in that capacity. Each new manager for a business shall have a manager's license issued pursuant to this Section. A manager's license may be suspended or revoked in accordance with the procedures set forth in Sections 5-94-140 through 170 below. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-140. Suspension. The City Clerk shall suspend a license issued under this Article if the City Clerk finds that: A licensee, owner, principal owner or manager has: a. Violated or is not in compliance with any section of this Article, including the regulations provided for in Section 5-94-50, or has been convicted of or pled guilty or nolo contendere to the prohibitions contained in Section 5-94-40 or any specified criminal acts; b. Been found to have operated or been operating the sexually oriented business in violation of a building, fire, health or zoning ordinance, code, statute or regulation, whether federal, state or ---PAGE BREAK--- 5-110 local, such determination being based on investigation by the division, department, agency or court charged with enforcing such rules or laws. In the event that such a violation is of a type that can be corrected, the City Clerk shall notify the licensee of the violation and shall allow the licensee a seven-day period in which to correct the violation, after which period the City Clerk shall forthwith suspend the license and shall notify the licensee of the suspension; c. Engaged in a license transfer contrary to Section 5-94-110. In the event that the City Clerk suspends a license on the ground that a licensee engaged in a license transfer contrary to Section 5- 94-110, the City Clerk shall forthwith notify the licensee of the suspension. The suspension shall remain in effect until the procedure for transfer as set forth in Section 5-94-110 has been completed; d. Failed to comply with the continuing duty of the applicant or licensee to supplement an application requesting issuance of a license pursuant to Section 5-94-60(f); or e. Operated the sexually oriented business when the corporation in whose name the license is held is no longer in good standing according to the secretary of state of the state under which the corporation is incorporated. An employee of the licensee has been convicted of or pled guilty or nolo contendere to: a. Any specified criminal acts; or b. The prohibitions contained in Section 5-94-40(d). In the event that the City Clerk determines a license should be suspended, after having received information demonstrating or evidencing violation of this Article, the City Clerk shall make written findings of fact stating the reasons for the suspension and will notify the licensee within five days of such decision. All license suspensions under this Section shall be for a period of thirty (30) days. The thirty (30) days shall commence eleven (11) calendar days from the date the City Clerk notifies the licensee of the grounds for suspension. In the event that the violation of the statute, law, ordinance or regulation in question has not been corrected within the thirty-day suspension period, the suspension will continue until the violation has been corrected, as verified by the City Clerk. If the violation has not been corrected within six months, the City Clerk shall have the authority to revoke the license according to the procedures set forth in Section 5-94-160. A licensee shall be entitled to a hearing before the City Council if the City Clerk seeks to suspend a license under this Section. The licensee shall have ten (10) days after the licensee has received notification of the City Clerk's decision to suspend the license to request in writing a hearing before the City Council. Upon receipt of such a request by the City Clerk, the City Council shall schedule a hearing within fourteen (14) days of receipt of the request and notify the licensee of the date and time of the hearing. The hearing shall follow all relevant procedures set forth in Section 5-94-170. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-150. Summary suspension. At such time as the City Clerk has reasonable grounds to believe and finds that a licensee under this Article has been guilty of a willful violation of any applicable law, ordinance, rule or regulation and, as a result, there exists an imminent threat to the public health, safety or welfare which requires ---PAGE BREAK--- 5-111 emergency action, the City Clerk may temporarily and summarily suspend the license pending a request for proceedings by the licensee. The temporary suspension of a license without notice pending hearing shall not exceed fifteen (15) days. The licensee may request in writing a hearing as provided in Section 5-94-140(c). If the licensee does not request a hearing within the fifteen (15) days, the license shall remain suspended for an additional fifteen (15) days or until the reason for the summary suspension and imminent threat to the public health, safety or welfare has been eliminated. If the reason for the summary suspension has not been corrected within six months, the City Clerk shall revoke the license in accordance with the procedures set forth in Section 5-94-160. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-160. Revocation. Subject to the appeal provisions provided in this Section, the City Clerk shall revoke a license issued under this Article upon determining that: A cause for suspension as set forth in Section 5-94-140 occurred and the license had previously been suspended within the preceding twelve (12) months; A license has been suspended under Section 5-94-140 and the licensee has failed to correct the violation for which the license was suspended within six months; A licensee, owner, principal owner or manager gave false or misleading information in the material submitted during the application process; A licensee, owner, principal owner, manager or employee has knowingly allowed possession, use or sale of controlled substances, as defined in Section 12-22-301, C.R.S., et seq., to occur on the licensed premises of a sexually oriented business; A licensee, owner, principal owner, manager or employee has knowingly allowed prostitution to occur on the licensed premises of a sexually oriented business; A licensee, owner, principal owner, manager or employee knowingly operated the sexually oriented business during a period of time when the licensee's license was suspended; A licensee, owner, principal owner or manager has been convicted of a specified criminal act for which the time period set forth in Section 5-94-80(c)(1)i has not elapsed; On two or more occasions within a twelve-month period, a person committed an act or action which occurred in or on the premises, which act or actions constituted a specified criminal act for which a conviction has been obtained or a plea of guilty or nolo contendere had been entered, and the person was an employee of the sexually oriented business at the time the act was committed. The fact that conviction is being appealed shall have no effect on the revocation of the license; A licensee, owner, principal owner, manager or an employee is delinquent in payment to the City or State for any taxes, fees or other financial obligations; (10) A licensee, owner, principal owner, manager or employee has knowingly allowed any specified sexual activity to occur in or on the sexually oriented business premises; ---PAGE BREAK--- 5-112 (11) A licensee, owner, principal owner, manager or employee has knowingly allowed any activity, conduct or sale of material that has been found by a court of law to be obscene under Article 9-20 of this Code; or (12) The licensee, owner, principal owner, manager or an employee has operated more than one sexually oriented business within the same building structure or portion thereof. In the event that the City Clerk determines that a license should be revoked, after having received information demonstrating or evidencing a violation of this Article, the City Clerk shall make written findings of fact stating the reasons for the revocation and will notify the licensee within five days of such decision. A licensee shall be entitled to a hearing before the City Council if the City Clerk seeks to revoke a license under this Section. The licensee shall have ten (10) days after the licensee has received notification of the City Clerk's decision to suspend the license to request a hearing before the City Council. If the City Clerk receives no request for a hearing within ten (10) days of notification, the decision to revoke a license shall be final. Upon receipt of such a request from the licensee by the City Clerk, the City Council shall schedule such hearing within fourteen (14) days of receipt of the request and notify the licensee of the date and time of the hearing. The hearing shall follow all the relevant procedures set forth in Section 5-94-170. When a sexually oriented business license has been revoked, the revocation shall be effective for a period of two years. A licensee, owner or principal owner of a sexually oriented business who has had a license revoked shall be ineligible to apply for a license for two years from the effective date of the revocation. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) Sec. 5-94-170. Hearing procedure. A licensee shall be entitled to a hearing before the City Council if the City Clerk seeks to deny, suspend or revoke a license issued pursuant to this Article for reasons stated in this Article, pursuant to the following procedure: The City Council shall determine whether the City Clerk's proposed action comports with the requirements and standards of this Article and applicable provisions of all ordinances, statutes, codes and regulations applicable to the sexually oriented business license. The City Council may receive all or part of the evidence in written form if the interests of the parties will not be prejudiced substantially and if the hearing will be expedited thereby. The rules of evidence and requirements of proof and procedure shall conform to the extent practicable to ascertain facts affecting the substantial rights of the City and the licensee. The City Council may receive and consider evidence not admissible under such rules if such evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. In the absence of objection, the hearing may be conducted informally, and failure to request any procedure shall constitute a waiver thereof. All testimony by witnesses must be sworn testimony; the Mayor shall swear in all witnesses. The burden of proof is on the City to show that a violation of any statute, law, ordinance or regulation occurred or that actions constituting grounds for denial, suspension or revocation occurred by a preponderance of the evidence. ---PAGE BREAK--- 5-113 If the City Council determines that such a violation occurred or that any grounds exist for denial, suspension or revocation, the City Council shall issue an order either reaffirming the City Clerk's findings or an order denying, suspending or revoking the license. The order shall be in writing with findings of fact and conclusions of law, setting forth the grounds for the decision, based on the evidence presented at the hearing. The order shall be prepared within thirty (30) calendar days after the hearing is concluded. A copy of the order shall be mailed by regular mail, postage prepaid, to the licensee or owner at the address shown on the license or, if so ordered by the City Council, served on the licensee or owner at the address shown on the license. The order of the City Council made pursuant to this Section shall be a final decision and may be appealed to the District Court pursuant to Colorado Rules of Civil Procedure 106(a)(4). Failure of a licensee, owner or principal owner to timely appeal the order constitutes a waiver by the licensee, owner or principal owner of any right that may otherwise be available to contest the denial, suspension or revocation of the license. The City Council shall have the power to administer oaths, issue subpoenas and, when necessary, grant continuances. Subpoenas may be issued to require the presence of persons and/or the production of papers, books, records or other documents necessary for a fair determination of any issue presented at the hearing. A subpoena shall be served in the same manner as a subpoena issued by the District Court of the State. Upon failure of any witness to comply with such subpoena, the City Attorney shall: a. Petition any Judge of the Municipal Court, setting forth that due notice has been given of the time and place of attendance of the witness and the service of the subpoena, that the Court, after hearing evidence in support of or contrary to the petition, enter its order compelling the witness to attend and testify or produce books, records or other evidence, under penalty of punishment for contempt in case of willful failure to comply with such order of Court; or b. Petition the District Court setting forth that due notice has been given of the time and place of attendance of the witness and the service of the subpoena, that the Court, after hearing evidence in support of or contrary to the petition, enter its order as in other civil actions, compelling the witness to attend and testify or produce books, records or other evidence, under penalty of punishment for contempt in case of willful failure to comply with such order of the Court. In any such proceedings, the City Attorney may act on behalf of the City during the hearing. The licensee, owner or principal owner may be represented by counsel. All hearings held before the City Council regarding suspension or revocation of a license issued under this Article shall be recorded stenographically or by electronic recording device. Any person requesting a transcript of such record shall post a deposit in the amount required by the City Clerk and shall pay all costs of preparing such record. In the event of a denial, suspension or revocation of a license, or a cessation of business for any reason, no portion of the license fee shall be refunded. When the City Council affirms a decision by the City Clerk to deny, suspend or revoke, pursuant to the applicable subsections of this Section, the denial, suspension or revocation shall be for the same time period and upon the same conditions as specified by that subsection. (Ord. 1550 §1(part), 1998; Ord. 1589, 1999) ---PAGE BREAK--- 5-114 ARTICLE 5-98 Mobile Vendors Sec. 5-98-10. Definitions. As used in this Article: Food means any products sold for human consumption, the sale of which is not prohibited by law. Merchandise means any item of tangible personal property or other thing of value, except motor vehicles of any description; large household appliances; and food or seasonal items, such as Christmas trees or pumpkins that are sold prior to holidays or traditional observances, such as Christmas or Halloween Mobile vending means peddling, vending, selling, displaying, offering for sale or giving away goods, wares, merchandise or food from a mobile vending unit. Mobile vending unit means any motorized or nonmotorized vehicle, trailer, kiosk, pushcart, stand or other nonpermanent structure or device. Mobile vendor means the person or per sons, firm, association, sole proprietorship, entity or corporation, either as a principal or agent, who peddles, vends, sells, displays, offers to sell or gives away food, goods, wares or merchandise from a mobile vending unit that is parked or located on a parcel of property within the City for the purpose of transacting business within the meaning of this Article. The term does not include a traveling mobile vending unit that visits multiple private property sites on a daily basis for no more than one hour per site, per day. (Ord. 1821 2004) Sec. 5-98-20. License required. It is unlawful for any person to engage in the business of a mobile vendor, as defined in this Article, within the corporate limits of the City, without first obtaining a license therefor as provided in this Article. (Ord. 1821 2004) Sec. 5-98-30. License application; bond; nontransferability. Every person engaging in the business of a mobile vendor as defined in this Article shall make application to the City, give a bond and secure a license, prior to conducting business within the City. No license shall be transferable or used by any person other than the individual named in the license. Any license issued to a firm, association, corporation or entity shall include the name of the authorized officer or representative of the firm, association, corporation or entity, which individual name of the representative shall appear on the application, bond, badge and license. No other representative of the same firm, association, corporation or entity shall use the license except the individual named therein. An individual license may authorize the individual identified therein to engage in occupations other than a mobile vendor, such as a peddler, canvasser, solicitor, transient merchant, itinerant merchant or itinerant vendor. Such multipurpose license shall be for the same fee as if the license were issued for only one purpose. (Ord. 1821 2004) ---PAGE BREAK--- 5-115 Sec. 5-98-40. Bond required; conditions and approval. Before any license is issued pursuant to this Article, the applicant shall file with the City Clerk a bond in the sum of one thousand dollars ($1,000.00), which bond shall be executed by the applicant and issued by at least one surety upon which service of process may be made in the State. Said bond shall contain an acknowledgment and agreement by the applicant to: fully com ply with all City, County and State ordinances, statutes and regulations concerning the applicant's business; and pay all judgments, penalties or associated costs rendered against said applicant for any violation of said ordinances, statutes and regulations, or any of them, together with all judgments, penalties or associated costs that may be recovered against the applicant by any person for damage or loss resulting from or arising out of any misrepresentation or deception practiced on any person transacting business with the applicant, whether the misrepresentation or deception was made or practiced by the applicant or by his or her servants, agents, representatives or employees, either at the time of making the sale or through any advertisement of any character whatsoever, printed or circulated with reference to the food, goods, wares and merchandise sold or any part thereof. Action on the bond may be brought by the City for the benefit of the City and/or the aggrieved person, as the case may be. Such bond must be approved by the City Clerk as to form, substance, amount and the surety thereon. (Ord. 1821 2004) Sec. 5-98-50 Application contents. An applicant for a license under this Article shall file with the City Clerk an application in writing on a form to be furnished by the City Clerk, giving the following information: Name, including all names by which the applicant is known; physical description and driver's license number; Address, including an address where the applicant may be reached in the area of the City and a business address if applicable; home and business telephone numbers; A brief description of the nature of the business and the goods to be peddled, vended, sold, displayed, offered for sale or given away, and the name or trade name under which the applicant's business will be conducted; A description of the mobile vending unit to be used by the applicant, including a license number; A brief description of the nature and character of the advertising to be used for the applicant's business; Credentials from the employer of the applicant, including an authorization from the employer permitting the applicant to act as the employer's representative in the City; A statement demonstrating compliance with applicable health regulations if applicable to the applicant's business, including a copy of the applicant's County Health permit or current inspection certificate and the number and agency issuing such permit or certificate; and Such other information as the City Clerk or Community Development Department shall deem necessary for the public health, safety and welfare. (Ord. 1821 2004) ---PAGE BREAK--- 5-116 Sec. 5-98-60. Operational requirements. Stopping, standing or parking any mobile vending unit used in the peddling, vending, selling, displaying, offering for sale or giving away of goods, wares, merchandise or food at any location within the corporate limits of the City for ten (10) minutes or more, or an aggregate of more than one hour in any twenty-four-hour period during which time said mobile vending unit is open and/or engaged in operations at such location, shall subject such unit to the operational requirements of this Article. It shall be unlawful for any peddler, vendor and/or person licensed under this Article to: peddle, vend, sell, display, offer for sale, give away or make such attempt, along any particular street in the City for more than one hour during any twenty-four-hour period. The closure, intermittent stoppage or moving of operations along the same street while at a particular location shall not extend the time during which the unit may stop, park or stand at such location. For this purpose, location shall include any location on the same street within one thousand (1,000) feet of the initial place of stopping on such street. Except as provided above, no peddling, vending, selling, displaying, offering for sale or giving away of goods, wares, merchandise or food shall be allowed from a vacant lot, on public property or within the public right-of-way. A mobile vendor may conduct business on private property where an already-established legally conforming business use exists, so long as the mobile vendor obtains written authorization from the owner of record of said property to conduct the business thereon, which authorization addresses shared parking and restroom facilities, and so long as said use does not violate any ordinances, statutes or regulations of the City, County or State, including those City ordinances setting forth permitted uses in the applicable zone district. A mobile vending unit shall not obstruct the movement of pedestrians or other vehicles and shall not be: Left unattended at any time; Parked or placed within one hundred fifty (150) feet of any building premises if the owner or lessee thereof objects thereto; Parked or placed within three hundred (300) feet of any building premises or mobile vendor selling the same goods, wares or commodities; Parked or placed within fifty (50) feet of any intersection or within one hundred (100) feet of any intersection that includes a state highway; Parked or placed so as to occupy more than a rectangular area five feet by ten (10) feet with the ten-foot boundary measured parallel to the street. Constructed or maintained in an unsafe or hazardous manner. No service to the public shall be delivered toward the street side of the mobile vending unit, but only toward a sidewalk or other safe location. (Ord. 1821 2004) ---PAGE BREAK--- 5-117 Sec. 5-98-70. License application; investigation. Upon receipt of such application by the City Clerk, the City Clerk shall review the application and may request such additional information as may be necessary in order to properly evaluate the business of the applicant for the protection of the public health, safety and welfare. If, as a result of such review, the application and business of the applicant are found to be satisfactory, the City Clerk shall thereupon endorse his or her approval on the application. Upon posting the bond as required by this Article and payment of the required license fee by the applicant, the City Clerk shall issue the license applied for. (Ord. 1821 2004) Sec. 5-98-80. Fee schedule; exception. License fees to be assessed pursuant to this Article shall be set by resolution of the City Council and shall remain in effect until such resolution is amended by action of the City Council. No fee shall be required of a person selling products of the farm or orchard actually produced by the seller . (Ord. 1821 2004) Sec. 5-98-90. Expiration of license. Each annual license issued pursuant to the provisions of this Article shall expire at twelve o'clock (12:00) midnight on December 31 of the year for which the license is issued. Other licenses issued pursuant to this Article shall expire on the date specified in the license. (Ord. 1821 2004) Sec. 5-98-100. Suspension or revocation. Licenses issued pursuant to the provisions of this Article may be revoked or suspended by the City Council after notice and hearing for any of the following causes: Fraud, misrepresentation or false statement contained in the application for license; Fraud, misrepresentation or false statement made in the course of carrying on the business for which the license is issued; Any violation of a City ordinance or state statute; and Conduct of the business in an unlawful manner or in such a manner as to constitute a breach of the peace or to constitute a menace or danger to the health, safety or general welfare of the public . (Ord. 1821 2004) Sec. 5-98-110. Exhibition of license required. Each licensee hereunder shall exhibit its license conspicuously in the mobile vending unit at all times while transacting business within the City. (Ord. 1821 2004) Sec. 5-98-120. Exemptions to Article applicability. This Article does not apply to persons selling personal property at wholesale to retailers in the City, nor to merchants or their employees with established premises for the conduct of sales to the public ---PAGE BREAK--- 5-118 who deliver goods in the regular course of business in the City, nor shall it apply to the following professions or businesses in the City: newsboys, state-licensed real estate agents, state-licensed insurance agents, public utilities and their employees franchised to do business within the City and motor vehicle salespersons. Any person desiring to solicit, or have solicited in his or her name, money, property or financial assistance of any kind or desiring to sell or distribute any item of literature or merchandise for which a fee is charged or solicited from persons in the City for charitable, religious, patriotic or philanthropic purposes, shall be exempt from the requirements of Sections 5-98-40, 5-98-50 and 5-98- 70 of this Article, provided that there is filed with the City Clerk an application giving the following information: Name and purpose of the cause; Names and addresses of the officers and directors of the organizations; Written explanation or authorization in support of the stated charitable, religious, patriotic or philanthropic purpose; Period during which solicitation is to be carried on; and Whether or not any commissions, fees or wages are to be expended in connection with such solicitation and the amount thereof. In all other respects, the requirements of this Article shall apply to such applicant s. (Ord. 1821 2004)