HomeMy WebLinkAbout99-14
CITY OF PRIOR LAKE
A SUMMARY OF ORDINANCE 99-14
AMENDING SECTION 306 OF THE PRIOR LAKE CITY CODE
The City Council of the City of Prior Lake does hereby ordain that:
1. On October 18, 1999, the City Council of the City of Prior Lake adopted a Cable
Television Regulatory Ordinance (Ordinance 99-14) amending Section 306 of the
Prior Lake City Code in its entirety, and approved publication of said Ordinance in
summary.
2. Cable television systems have the potential of benefitting and impacting the
residents of the City. Cable television involves complex and rapidly changing
technology. The intent of Ordinance 99-14 and subsequent amendments is to
provide for and specify the means to attain the best possible cable television service
for the public.
3. Ordinance 99-14 authorizes the City Council to grant a non-exclusive operating
franchise on such terms and conditions that are favorable to the City and to
subscribers and potential subscribers to the cable system.
4. Ordinance 99-14 specifies:
a) The City's franchise authority;
b) The right of the City to purchase the system;
c) Consumer protection and service standards;
d) Rate regulations and Franchise fees'
e) Design and construction requirements;
1) Technical standards;
g) Insurance and indemnification requirements applicable to Franchise
grantees; and
h) Such other regulatory matters incidental to the authority of the City to
regulate cable television systems.
4. The City Council finds that this summary provides the public with general notice of
the provisions of the Cable Television Regulatory Ordinance 99-14. A full copy of
Ordinance 99-14 is available for inspection at Prior Lake City Hall, 16200 Eagle
Creek Ave. S.E., Prior Lake, MN 55372.
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16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245
AN EQUAL OPPORTUNITY EMPLOYER
Ordinance 99-14 shall become effective from and after its passage and publication of
this Summary.
Passed by the City Council of the City of Prior Lake this 18th day of October, 1999.
ATTEST:
In the Prior Lake American on the 23th day of October, 1999.
Drafted By:
City of Prior Lake
16200 Eagle Creek Avenue
Prior Lake, MN 55372
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THE CITY OF PRIOR LAKE, MINNESOTA
CABLE TELEVISION
REGULATORY ORDINANCE
OCTOBER 15,1999
ORDINANCE 99-14
REPLACING CITY CODE SECTION 306
III ITS ENTIRETY
Prepared by:
BRIAN T. GROGAN, ESQ.
Moss & Barnett
A Professional Association
4800 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402-4129
(612) 347-0340
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SECTION 1.1.
SECTION 1.2.
SECTION 1.3.
SECTION 1.4.
SECTION 1.5.
SECTION 1.6.
SECTION 1.7.
SECTION 1.8.
SECTION 1.9.
SECTION 1.10.
SECTION 1.11.
SECTION 1.12.
SECTION 1.13.
SECTION 1.14.
SECTION 1.15.
SECTION 1.16.
SECTION 1.17.
SECTION 1.18.
SECTION 1.19.
SECTION 1.20.
SECTION 1.21.
SECTION 1.22.
SECTION 1.23.
SECTION 1.24.
SECTION 1.25.
SECTION 1.26.
SECTION 1.27.
SECTION 1.28.
SECTION 1.29.
SECTION 1.30.
SECTION 1.31.
SECTION 1.32.
SECTION 1.33.
SECTION 1.34.
SECTION 1.35.
SECTION 1.36.
SECTION 1.37.
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TABLE OF CONTENTS
INTENT. ......................................................................................... .............. 1
DEFINITIONS. .................... ......................................................................... 1
FRANCHISE TO INSTALL AND OPERATE............................................... 5
FRANCHISE REQUIRED............. ................................................................ 5
TERM OF THE FRANCHISE. ......................................................................6
FRANCHISE TERRITORY........................................................................... 6
FEDERAL, STATE AND CITY JURISDICTION. ........................................ 6
FRANCHISE NON-TRANSFERABLE. ........................................................7
CITY'S RIGHT TO PURCHASE SYSTEM. ................................................. 8
PURCHASE BY CITY UPON EXPIRATION OR REVOCATION. .............9
EMERGENCY USE. ........... ... ... ... ... ... ... ...... ... ... ... ..... .... .... .... ..... .... ....... .... ....9
GEOGRAPHICAL COVERAGE. .................................................................. 9
NONEXCLUSIVE FRANCHISE. ...............................................................10
MULTIPLE FRANCHISES. ........................................................................10
FRANCHISE APPLICATIONS. ..................................................................11
CONSIDERATION OF INITIAL APPLICATIONS. ................................... 12
FRANCHISE RENEWAL............................................................................ 12
CONSUMER PROTECTION AND SERVICE STANDARDS. ...................12
RATE REGULATION............ .................................................. ................... 15
FRANCHISE FEE. ..... ......... ...... ...... ... ... ... ... ...... .... .... .... .... .... ..... .... ............. 15
DESIGN AND CONSTRUCTION REQUIREMENTS................................ 16
TECHNICAL STANDARDS...... ........................... ................ .......... ............ 19
TRIMMING OF TREES. .............................................................................20
USE OF GRANTEE FACILITIES. ..............................................................20
PROGRAMMING DECISIONS. .................................................................20
INDEMNIFICATION............................................... ................................... 20
INSURANCE. ...................................... ................................ ..... ..................21
RECORDS REQUIRED AND GRANTOR'S RIGHT TO INSPECT. .......... 22
ANNUAL REPORTS. ............. ..................... ......... ................ ...... ................23
FRANCHISE VIOLATION. ........................................................................23
FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM. ................ 24
ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTy...... ...... 25
EXTENDED OPERATION AND CONTINUITY OF SERVICES..............26
RECEIVERSHIP AND FORECLOSURE. ... ... ... ... ..... .... .... .... ..... .... ........ .....26
RIGHTS RESERVED TO GRANTOR. ....................................................... 26
RIGHTS OF INDIVIDUALS....................................................................... 27
SEVERABILITY.......................................................... ............ ........ ........... 28
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ORDINANCE NO.
THE CITY COUNCIL OF THE CITY OF PRIOR LAKE, MINNESOTA DOES
HEREBY ORDAIN AS FOLLOWS:
The following Chapter is added to the City of Prior Lake, MN Municipal Code:
CHAPTER
SECTION 1.1.
CABLE TELEVISION REGULATORY ORDINANCE
INTENT.
a. The City of Prior Lake, Minnesota, pursuant to Applicable Laws, is
authorized to grant one or more nonexclusive Franchises to construct, operate,
maintain and reconstruct Cable Television Systems within the City limits.
b. The City Council finds that the development of Cable Television Systems
has the potential of having great benefit and impact upon the residents of the City.
Because of the complex and rapidly changing technology associated with cable
television, the City Council further finds that the public convenience, safety and general
welfare can best be served by establishing regulatory powers which should be vested
in the City or such Persons as the City shall designate. It is the intent of this Ordinance
and subsequent amendments to provide for and specify the means to attain the best
possible cable television service to the public and any Franchises issued pursuant to
this Ordinance shall be deemed to include this finding as an integral part thereof.
SECTION 1.2.
DEFINITIONS.
For the purpose of this Ordinance, the following terms, phrases, words and their
derivations shall have the meaning given herein. Words used in the present tense
include the future, words in the plural number include the singular number, and words
in the singular number include the plural number. All capitalized terms used in the
definition of any other term shall have their meaning as otherwise defined in this
Section. The words "shall" and "will" are mandatory and "may" is permissive. Words
not defined shall be given their common and ordinary meaning.
a. "Applicable Laws" means any law, statute, charter, ordinance, rule,
regulation, code, license, certificate, franchise, permit, writ, ruling, award, executive
order, directive, requirement, injunction (whether temporary, preliminary or permanent),
judgment, decree or other order issued, executed, entered or deemed applicable by
any Governmental Authority.
b. "Basic Cable Service" means any service tier which includes the'
retransmission of local television broadcast signals. Basic Cable Service as defined
herein shall not be inconsistent with 47 U.S.C. S 543(b)(7)(1993).
c. "Cable Act" means the Cable Communications Policy Act of 1984, Pub. L.
No. 98-549, 98 Stat. 2779 (1984) (codified at 47 U.S.C. SS 521-611 (1982 & Supp. V
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1987)) as amended by the Cable Television Consumer Protection and Competition Act
of 1992, Pub. L. NO.1 02-385 and the Telecommunications Act of 1996, Pub. L. No.
104-458 and as the same may, from time to time, be amended.
d. "Cable Television Svstem," "Svstem" or "Cable Svstem" means a facility,
consisting of a set of closed transmission paths and associated signal generation,
reception and control equipment that is designed to provide Cable Service which
includes video programming and which is provided to multiple Subscribers within a
community, but such term does not include:
1. A facility that serves only to retransmit the television signals of one
(1) or more television broadcast stations;
2. A facility that serves subscribers without using any public rights-of-
way;
3. A facility of a common carrier which is subject, in whole or in part,
to the provisions of 47 U.S.C. SS 201-226- except that such facility shall be
considered a Cable System (other than for purposes of 47 U.S.C. S 541) to the
extent such facility is used in the transmission of video programming directly to
subscribers; unless the extent of such use is solely to provide interactive on-
demand services;
4.
Act; or
An open video system that complies with Section 653 of the Cable
5. Any facilities of any electric utility used solely for operating its
electric utility system.
e. "Cable Service" means:
1. The one-way transmission to Subscribers of (i) video programming,
or (ii) other programming service; and
2. Subscriber interaction, if any, which is required for the selection or
use of such video programming or other programming service.
f. "Channel" or "Cable Channel" means a portion of the electromagnetic
frequency spectrum which is used in a Cable System and which is capable of delivering
a television Channel as defined by the Federal Communications Commission. .
g. "Council" means the City Council of the City of Prior Lake, Minnesota.
h. "Franchise" means an initial authorization, or renewal thereof, issued by
the City, whether such authorization is designated as a Franchise, permit, license,
resolution, contract, certificate, agreement or otherwise, which authorizes the
construction or operation of a Cable System over publicly owned rights-of-way.
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i. "Franchise Aareement" means a Franchise granted pursuant to this
Ordinance containing the specific provisions of the Franchise granted, including
references, specifications, requirements and other related matters.
j. "Franchise Fee" means any tax, fee or assessment of any kind imposed
by the City or any other Governmental Authority on a Grantee or cable Subscriber, or
both, solely because of their status as such. The term "Franchise Fee" does not
include: (i) any tax, fee or assessment of general applicability (including any such tax,
fee or assessment imposed on both utilities and cable operators or their services but
not including a tax, fee, or assessment which is unduly discriminatory against cable
operators or cable subscribers); (ii) capital costs which are required by the Franchise
Agreement to be incurred by the Grantee for PEG Access Facilities; (iii) requirements
or charges incidental to the awarding or- -enforcing of the Franchise, including
payments for bonds, security funds, letters of credit, insurance, indemnification,
penalties or liquidated damages; or (iv) any fee imposed under Title 1 7 of the United
States Code.
k. "Governmental Authority" means any Court or other federal, state, county,
municipal or other governmental department, commission, board, agency or
instrumentality.
1. "Grantee" means any Person receiving a Franchise pursuant to this
Ordinance and its agents, employees, officers, designees, or any lawful successor,
transferee or assignee.
m. "Grantor" or "Citv" means the City of Prior Lake, Minnesota as
represented by the Council or any delegate acting within the scope of its jurisdiction.
The City Administrator shall be responsible for the continuing administration of the
franchise.
n. "Gross Revenues" means all revenue received directly or indirectly by the
Grantee, its affiliates, subsidiaries, parents, or any Person in which Grantee has a
financial interest of five percent (5%) or more arising from or attributable, to the
provision of Cable Service by the Grantee within the City including, but not limited to,
monthly fees charged to Subscribers for Basic Cable Service; monthly fees charged to
Subscribers for any optional service; monthly fees charged to Subscribers for any tier
of service other than Basic Cable Service; Installation, disconnection and reconnection
fees- leased Channel fees; converter and remote revenues; advertising revenues; and
revenues from home shopping Channels. Gross Revenues shall be the basis for
computing the Franchise Fees imposed pursuant to Section 1.20 hereof. Grantee shall
not be required to pay a franchise fee on gross revenues derived from any Person
receiving free Cable Service pursuant to a Franchise Agreement. Gross Revenues
shall include franchise fees collected by Grantee on behalf of the City. Gross
Revenues shall not include revenues received from Internet services for a period of two
years from the date of introduction of high-speed Internet access. Thereafter, Gross
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Revenues shall include revenues received from Internet services to the extent
permitted by State or Federal law.
o. "Initial Service Area" means the area of the City which will receive Cable
Service initially, as set forth in any Franchise Agreement.
p. "Installation" means the connection of the System to a Subscriber and the
provision of Cable Service.
q. "Normal Business Hours" means those hours (8 a.m.-5 p.m. Monday-
Friday) during which most similar businesses in the City are open to serve customers.
In all cases, "Normal Business Hours" must include some evening hours at least one
night per week and/or some weekend hours.
r. "Normal Ooeratina Conditions" means those service conditions which are
within the control of the Grantee. Those conditions which are not within the control of
the Grantee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions.
Those conditions which are ordinarily within the control of the Grantee include, but are
not limited to, special promotions, pay-per-view events, rate increases, regular peak or
seasonal demand periods, and maintenance or upgrade of the System.
s. "Person" means any individual or any association, firm, general
partnership, limited partnership, joint stock company, joint venture, trust, corporation,
limited liability company or other legally recognized entity, private or public, whether
for-profit or not -for-profit.
t. "Public. Educational or Government Access Facilities" or "PEG Access
Facilities" means:
1. Channel capacity designated for public, educational or
governmental use; and
2. Facilities and equipment for the use of such Channel capacity.
u. "Section" means any Section, subsection or provision of this Ordinance.
v. "Service Area" or "Franchise Area" means the entire geographic area
within the City as it is now constituted or may in the future be constituted, unless
otherwise specified in the Franchise Agreement.
w. "Service Interruotion" means the loss of picture or sound on one or more
Cable Channels.
x.
"State" means the State of Minnesota.
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y. "Street" or "publiclv owned rioht of wav" means each of the following
which have been dedicated to the publiC or are hereafter dedicated to the public and
maintained under public authority or by others and located within the City limits:
streets, roadways, highways, avenues, lanes, alley's, sidewalks, easements, rights-of-
way and similar public property and areas that the Grantor shall permit to be included
within the definition of Street from time to time.
Z. "Subscriber" means any Person who or which lawfully elects to subscribe
to, for any purpose, a service provided by the Grantee by means of or in connection
with the Cable System whether or not a fee is paid for such service.
SECTION 1.3.
FRANCHISE TO INSTALL AND OPERATE.
a. A Franchise granted by the City under the provisions of this Ordinance
shall encompass the following purposes:
1. To engage in the business of providing Cable Service, and such
other lawful services as may be permitted by Applicable Law, to Subscribers
within the Service Area.
2. To erect, install, construct, repair, rebuild, reconstruct, replace,
maintain and retain cables, lines, related electronic equipment, supporting
structures, appurtenances and other property in connection with the operation of
a Cable System in, on, over, under, upon, along and across Streets within the
Service Area.
3. To maintain and operate said Franchise properties for the
origination, reception, transmission, amplification and distribution of television
and radio signals for the delivery of Cable Services.
4. To set forth the obligations of a Grantee under the Franchise
Agreement.
b. Nothing contained in this Ordinance relieves a Person from liability
arising out of failure to exercise reasonable care to avoid injuring Grantee's facilities
while performing work connected with grading, regarding or changing the line of a
Street or public place or with the construction or reconstruction of a sewer or water
system.
SECTION 1.4.
FRANCHISE REQUIRED.
It shall be unlawful for any Person, other than the City unless specifically
required by Applicable Laws, to construct, install or operate a Cable Television System
in the City in, on, over, under, upon, along or across any Street or publicly owned right
of way without a Franchise properly granted pursuant to the provisions of this
Ordinance.
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SECTION 1.5.
TERM OF THE FRANCHISE.
a. A Franchise granted hereunder shall be for the term established in the
Franchise Agreement and shall not exceed fifteen (15) years.
b. A Franchise granted hereunder may be renewed upon application by the
Grantee pursuant to the provisions of this Ordinance and Applicable Laws.
SECTION 1.6.
FRANCHISE TERRITORY.
Any Franchise granted pursuant to this Ordinance shall be valid within the
Service Area.
SECTION 1.7.
FEDERAL, STATE AND CITY JURISDICTION.
a.
Laws.
This Ordinance shall be construed in a manner consistent with Applicable
b. This Ordinance shall apply to all Franchises granted or renewed after the
effective date of this Ordinance. This Ordinance shall further apply to the extent
permitted by Applicable Laws to all existing Franchises granted prior to the effective
date of this Ordinance.
c. The rights of all Grantees are subject to the policing powers of the City to
adopt and enforce ordinances necessary to the health, safety and welfare of the public.
All Grantees shall comply with all Applicable Laws enacted by the City pursuant to that
power.
d. No Grantee shall be relieved of its obligation to comply with any of the
provisions of this Ordinance or any Franchise granted pursuant to this Ordinance by
reason of any failure of the City to enforce prompt compliance.
e. This Ordinance and any Franchise granted pursuant to this Ordinance
shall be construed and enforced in accordance with the substantive laws of the City,
State of Minnesota and applicable federal laws, including the Cable Act.
f. This Ordinance together with any Franchise granted hereunder shall
comply with the Minnesota franchise standards contained in Minnesota Statutes
Section 238.084.
g. Grantee and the City shall conform to state laws and rules regarding
cable communications not later than one year after they become effective, unless
otherwise stated, and shall conform to federal laws and regulations regarding cable
communications as they become effective.
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SECTION 1.8.
FRANCHISE NON-TRANSFERABLE.
a. Grantee shall not voluntarily or involuntarily, by operation of law or
otherwise, sell, assign, transfer, lease, sublet or otherwise dispose of, in whole or in
part, the Franchise and/or Cable System or any of the rights or privileges granted by
the Franchise, without the prior written consent of the Council and then only upon such
terms and conditions as may be prescribed by the Council with regard to the proposed
transferee's legal, technical and financial qualifications, which consent shall not be
unreasonably denied or delayed. Any attempt to sell, assign, transfer, lease, sublet or
otherwise dispose of all or any part of the Franchise and/or Cable System or Grantee's
rights therein without the prior written consent of the Council shall be null and void and
shall be grounds for termination of the Franchise pursuant to Section 1.30 hereof and
the applicable provisions of any Franchise Agreement.
b. Without limiting the nature of the events requiring the Council's approval
under this Section, the following events shall be deemed to be a sale, assignment or
other transfer of the Franchise and/or Cable System requiring compliance with this
Section: (i) the sale, assignment or other transfer of all or a majority of Grantee's assets
or the assets comprising the Cable System to any Person; (ii) the merger of the
Grantee or any of its parents with or into another Person (including the merger of
Grantee or any parent with or into any parent or subsidiary corporation or other
Person); (iii) the consolidation of the Grantee or any of its parents with any other
Person; (iv) the transfer of the Franchise and/or Cable System to a subsidiary
corporation or other entity; (v) the sale, assignment or other transfer of capital stock or
partnership, membership or other equity interests in Grantee or any of its parents by
one or more of its existing shareholders, partners, members or other equity owners so
as to create a new Controlling Interest (as defined by Minn. Stat. S 238.084) in
Grantee; (vi) the issuance of additional capital stock or partnership, membership or
other equity interest by Grantee or any of its parents so as to create a new Controlling
Interest (as defined by Minn. Stat. S 238.084) in Grantee; and (vii) the entry by the
Grantee into an agreement with respect to the management or operation of the
Grantee, any of Grantee's parents and/or the System or the subsequent amendment
thereof, other than with an affiliate of Grantee. The term "Controlling Interest" as used
herein is not limited to majority ownership of the Grantee, but also includes actual
working control over the Grantee in whatever manner exercised.
c. Grantee shall notify Grantor in writing of any foreclosure or any other
judicial sale of all or a substantial part of the property and assets comprising the Cable
System of the Grantee or upon the termination of any lease or interest covering all or a
substantial part of said property and assets. Such notification shall be considered by
Grantor as notice that a change in control or ownership of the Franchise has taken
place and the provisions under this Section governing the consent of Grantor to such
change in control or ownership shall apply.
d. For the purpose of determining whether it shall consent to such change,
transfer or acquisition of control, Grantor may inquire into the qualifications of the
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prospective transferee or controlling party, and Grantee shall assist Grantor in any
such inquiry. In seeking Grantor's consent to any change of ownership or control,
Grantee shall have the responsibility of insuring that the transferee completes an
application in form and substance reasonably satisfactory to Grantor, which application
shall include the information required under this Ordinance and Applicable Laws. The
transferee shall be required to establish to the satisfaction of the City that it possesses
the legal, technical and financial qualifications to operate and maintain the System and
comply with all Franchise requirements for the remainder of the term of the Franchise.
If, after considering the legal, financial, character and technical qualities of the
transferee and determining that they are satisfactory, the Grantor finds that such
transfer is acceptable, the Grantor shall permit such transfer and assignment of the
rights and obligations of such Franchise as may be in the public interest. The consent
of the Grantor to such transfer shall not be unreasonably denied.
e. Any financial institution having a security interest in any and al I of the
property and assets of Grantee as security for any loan made to Grantee or any of its
affiliates for the construction and/or operation of the Cable System must notify the
Grantor that it or its designee satisfactory to the Grantor shall take control of and
operate the Cable Television System, in the event of a default in the payment or
performance of the debts, liabilities or obligations of Grantee or its affiliates to such
financial institution. Further, said financial institution shall also submit a plan for such
operation of the System within thirty (30) days of assuming such control that will insure
continued service and compliance with all Franchise requirements during the term the
financial institution or its designee exercises control over the System. The financial
institution or its designee shall not exercise control over the System for a period
exceeding one (1) year unless extended by the Grantor in its discretion and during said
period of time it shall have the right to petition the Grantor to transfer the Franchise to
another Grantee.
f. In addition to the aforementioned requirements in this Section 1.8, the
City and Grantee shall, at all times, comply with the requirements of Minnesota Statutes
Section 238.083 regarding the sale or transfer of a franchise and with all other
Applicable Laws.
SECTION 1.9.
CITY'S RIGHT TO PURCHASE SYSTEM.
The City shall have a right of first refusal to purchase the Cable System in the
event the Grantee receives a bona fide offer to purchase the Cable System from any
Person. Bona fide offer as used in this Section means a written offer which has been
accepted by Grantee, subject to the City's rights under this Ordinance and any
Franchise Agreement. The price to be paid by the City shall be the amount provided
for in the bona fide offer, including the same terms and conditions as the bona fide
offer. The City shall notify Grantee of its decision to purchase within sixty (60) days of
the City's receipt from Grantee of a copy of the written bona fide offer and such other
relevant and pertinent information as is necessary to understand the transaction..
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SECTION 1.10.
PURCHASE BY CITY UPON EXPIRATION OR REVOCATION.
Consistent with Section 627 of the Cable Act and all other Applicable Laws, at
the expiration, cancellation, revocation or termination of any Franchise Agreement, the
City shall have the option to purchase, condemn or otherwise acquire and hold the
Cable System.
SECTION 1.11.
EMERGENCY USE.
In the case of any emergency or disaster, Grantee shall, upon request of the City
or authorized emergency management personnel, make its Cable System and related
facilities available to the City for emergency use.
SECTION 1.12. GEOGRAPHICAL COVERAGE.
a. Grantee shall design, construct and maintain the Cable Television System
to have the capability to pass every dwelling unit in the Service Area, subject to any
Service Area line extension requirements of the Franchise Agreement.
b. After service has been established by activating trunk and/or distribution
cables for any Service Area, Grantee shall provide Cable Service to any requesting
Subscriber within that Service Area within thirty (30) days from the date of request,
provided that the Grantee is able to secure access to all rights-of-way necessary to
extend service to such Subscriber within such thirty (30) day period on reasonable
terms and conditions.
c. No Subscriber shall be refused service arbitrarily. However, for unusual
circumstances such as the existence of more than 150 feet of distance from distribution
cable to connection of service to Subscribers, or a density equivalent of less than 40
homes per mile, service may be made available on the basis of a capital contribution in
aid of construction, including cost of material, labor and easements. For the purpose of
determining the amount of capital contribution in aid of construction to be borne by the
Grantee and Subscribers In the area in which service may be expanded, the Grantee
will contribute an amount equal to the construction and other costs per mile, multiplied
by a fraction whose numerator equals the actual number of residences per mile, and
whose denominator equals 40 residences. Subscribers who request service-
hereunder, will bear the remainder of the construction and other costs on a pro rata
basis. The Grantee may require that the payment of the capital contribution in aid of
construction borne by such potential subscribers be paid in advance.
d. Grantee shall immediately bury all drops to subscribers dwellings when
required by local construction standards. In the event the ground is frozen or otherwise
unsuitable to permit immediate burial, Grantee shall be permitted to delay such burial
until the ground becomes suitable for burial and shall complete said burial no later than
June 1 st of each year.
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SECTION 1.13.
NONEXCLUSIVE FRANCHISE.
Any Franchise granted under this Ordinance shall be nonexclusive. The Grantor
specifically reserves the right to grant, at any time, such additional Franchises for a
Cable Television System as it deems appropriate on terms and conditions no more
favorable nor less burdensome than those imposed in previously granted Franchises,
subject to Applicable Laws. The Grantor also specifically reserves the right to operate
a municipal Cable Television System pursuant to Applicable Laws.
SECTION 1.14. MULTIPLE FRANCHISES.
a. Grantor may grant one or more Franchises for a Service Area. Grantor
may, in its sole discretion, limit the number of Franchises granted, based upon, but not
necessarily limited to, the requirements of Applicable Laws and specific local
considerations; such as:
1. The capacity of the public rights-of-way to accommodate multiple
coaxial cables in addition to the cables, conduits and pipes of the utility systems,
such as electrical power, telephone, gas and sewage.
2. The impact on the City of having multiple Franchises.
3. The disadvantages that may result from Cable System competition,
such as the requirement for multiple pedestals on residents' property, and the
disruption arising from numerous excavations of the rights-of-way.
4. The financial capabilities of the applicant and its guaranteed
commitment to make necessary investment to erect, maintain and operate the
proposed System for the duration of the Franchise term.
b. Each Grantee awarded a Franchise to serve the entire City shall offer
service to all residences in the City, in accordance with construction and service
schedules mutually agreed upon between Grantor and Grantee, and consistent with
Applicable Laws.
c. The City may, in its sole discretion, require developers of new residential
housing with underground utilities to provide conduit to accommodate cables for a
minimum of two (2) Cable Systems in accordance with the provisions of Section 1.21
(d).
d. Grantor may require that any new Grantee be responsible for its own
underground trenching and the costs associated therewith, if, in Grantor's opinion, the
rights-of-way in any particular area cannot feasibly and reasonably accommodate
additional cables.
e. Any additional Franchise granted by the City to provide Cable Service in
a part of the City in which a Franchise has already been granted and where an existing
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Grantee is providing service shall require the new Grantee to provide service
throughout its Service Area within a reasonable time and in a sequence which does not
discriminate against lower income residents.
SECTION 1.15.
FRANCHISE APPLICATIONS.
Any Person, other than the City unless specifically required by Applicable Laws,
desiring an initial Franchise for a Cable Television System shall file an application with
the City. A reasonable nonrefundable application fee in an amount established by the
City shall accompany the initial application. Such application fee shall not be deemed
to be "franchise fees" within the meaning of Section 622 of the Cable Act (47 U.S.C.
S 542), and such payments shall not be deemed to be (i) "payments in kind" or any
involuntary payments chargeable against the Franchise Fees to be paid to the City by
Grantee pursuant to Section 1.20 hereof and applicable provisions of a Franchise
Agreement, or (ii) part of the Franchise Fees to be paid to the City by Grantee pursuant
to Section 1.20 hereof and applicable provisions of a Franchise Agreement.
An application for an initial Franchise for a Cable Television System shall be in a
form reasonably acceptable to Grantor and shall contain, where applicable:
a. A statement as to the proposed Service Area.
b. A resume of prior history of applicant, including the legal, technical and
financial expertise of applicant in the cable television field.
c. A list of the general and limited partners of the applicant, if a partnership,
or the shareholders, if a corporation.
d. The percentage ownership of the applicant of each of its partners,
shareholders or other equity owners;
e. A list of officers, directors and managing employees of applicant or its
general partner, as applicable, together with a description of the background of each
such Person;
f. The names and addresses of any parent or subsidiary of applicant or any
other business entity owning or controlling applicant in whole or in part, or owned or
controlled in whole or in part by applicant;
g. A current financial statement of applicant verified by an audit or otherwise
certified to be true, complete and correct to the reasonable satisfaction of the City;
h.
Proposed construction and service schedule.
i.
Any additional information that the City deems applicable.
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SECTION 1.16.
CONSIDERATION OF INITIAL APPLICATIONS.
a. Upon receipt of any application for an initial Franchise, the City
Administrator shall prepare a report and make his or her recommendations respecting
such application to the City Council.
b. A public hearing shall be set prior to any initial Franchise grant, at a time
and date approved by the Council. Within thirty (30) days after the close of the
hearing, the Council shall make a decision based upon the evidence received at the
hearing as to whether or not the Franchise(s) should be granted, and, if granted subject
to what conditions. The Council may grant one (1) or more initial Franchises, or may
decline to grant any Franchise.
SECTION 1.17.
FRANCHISE RENEWAL.
Franchise renewals shall be in accordance with Applicable Laws. Grantor and
Grantee, by mutual consent, may enter into renewal negotiations at any time during the
term of the Franchise. To the extent consistent with Applicable Laws, a reasonable
non-refundable renewal application fee in an amount established by the City may be
required to accompany any renewal application. Such application fee shall not be
deemed to be "franchise fees" within the meaning of Section 622 of the Cable Act (47
U.S.C. S 542), and such payments shall not be deemed to be (i) "payments in kind" or
any involuntary payments chargeable against the Franchise Fees to be paid to the City
by Grantee pursuant to Section 1.20 hereof and applicable provisions of a Franchise
Agreement, or (ii) part of the Franchise Fees to be paid to the City by Grantee pursuant
to Section 1.20 hereof and applicable provisions of a Franchise Agreement.
SECTION 1.18. CONSUMER PROTECTION AND SERVICE STANDARDS.
Grantee shall maintain a convenient local customer service or bill payment
location for receiving Subscriber payments. Grantee shall also maintain or arrange for
a location where equipment can be dropped-off or exchanged as is necessary or, in the
alternative, establish a system for having Subscriber equipment picked-up at the
Subscriber residence free-of-charge. Grantee shall also provide the necessary
facilities, equipment and personnel to comply with the following consumer protection
standards under Normal Operating Conditions:
a. Cable Svstem office hours and telephone availabilitv:
1. Grantee will maintain a local, toll-free or collect call telephone
access line which will be available to its Subscribers 24 hours a day, seven (7)
days a week.
(i) Trained Grantee representatives will be available to respond
to customer telephone inquiries during Normal Business Hours.
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(ii) After Normal Business Hours, the access line may be
answered by a service or an automated response system, including an
answering machine. Inquiries received after Normal Business Hours must
be responded to by a trained Grantee representative on the next business
day.
2. Under Normal Operating Conditions, telephone answer time by a
customer representative, including wait time, shall not exceed thirty (30) seconds
when the connection is made. If the call needs to be transferred, transfer time
shall not exceed thirty (30) seconds. These standards shall be met no less then
ninety (90%) percent of the time under Normal Operating Conditions, measured
on a quarterly basis.
3. The Grantee will not be required to acquire equipment or perform
surveys to measure compliance with the telephone answering standards above
unless an historical record of complaints indicates a clear failure to comply.
4. Under Normal Operating Conditions, the customer will receive a
busy signal less than three percent (3%) of the time.
5. Customer service center and bill payment locations will be open at
least during Normal Business Hours.
b. Installations. outaqes and service calls. Under Normal Operating
Conditions, each of the following four standards will be met no less than ninety-five
percent (95%) of the time measured on a quarterly basis:
1. Standard Installations will be performed within seven (7) business
days after an order has been placed. "Standard" Installations are those that are
located up to 125 feet from the existing distribution system. Grantee has agreed
to 150 feet at Section 1.12( c).
2. Excluding conditions beyond the control of Grantee, Grantee will
begin working on "service interruptions" promptly and in no event later than 24
hours after the interruption becomes known. The Grantee must begin actions to
correct other service problems the next business day after notification of the
service problem.
3. The "appointment window" alternatives for Installations, service
calls, and other Installation activities will be either a specific time or, at
maximum, a four-hour time block during Normal Business Hours. (The Grantee
may schedule service calls and other Installation activities outside of Normal
Business Hours for the express convenience of the customer.)
4. Grantee may not cancel an appointment with a customer after the
close of business on the business day prior to the scheduled appointment.
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5. If Grantee's representative Is running late for an appointment with
a customer and will not be able to keep the appointment as scheduled, the
customer will be contacted prior to the time of the scheduled appointment. The
appointment will be rescheduled, as necessary, at a time which is convenient for
the customer.
c. Communications between Grantee and Subscribers:
1. Notifications to Subscribers:
(i) The Grantee shall provide written information on each of the
following areas at the time of Installation of service at least annually to all
Subscribers, and at any time upon request:
(A) Products and services offered;
(B) Prices and options for programming services and
conditions of subscription to programming and other services;
(C) Installation and service maintenance policies;
(0) Instructions on how to use the Cable Service;
(E) Channel positions of the programming carried on the
System; and
(F) Billing and complaint procedures, including the
address and telephone number of the Grantee's office within the
Service Area.
(ii) Customers will be notified of any changes in rates,
programming services or channel positions as soon as possible in writing.
Notice must be given to Subscribers a minimum of thirty (30) days in
advance of such changes if the changes are within the control of the
Grantee. In addition, the Grantee shall notify subscribers thirty (30) days
in advance of any significant changes in the other information required by
this Section 1.18(c)(1)(i). Grantee shall not be required to provide prior
notice of any rate changes as a result of a regulatory fee, franchise fee, or
other fees, tax, assessment or charge of any kind imposed by any federal
agency, state or franchising authority on the transaction between the
operator and the subscriber.
2. Billing:
(i) Bills will be clear, concise and understandable. Bills must
be fully itemized, with itemizations including, but not limited to, basic and
premium service charges and equipment charges. Sills will also clearly
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delineate all activity during the billing period, including optional charges,
rebates and credits.
(ii) In case of a billing dispute, the Grantee must respond to a
written complaint from a Subscriber within thirty (30) days.
3.
either:
Refunds: Refund checks will be issued promptly, but no later than
(i) The customer's next billing cycle following resolution of the
request or thirty (30) days, whichever is earlier, or
(ii) The return of the equipment supplied by the Grantee if
service is terminated.
4. Credits: Credits for service will be issued no later than the
customer's next billing cycle following the determination that a credit is
warranted.
Grantee shall provide City with a quarterly customer service compliance report
specific to the system serving the City of Prior Lake in a form mutually agreed to, which
report shall, at a minimum, describe in detail Grantee's compliance with each and every
term and provision of this Section 1.1 8 and any additional customer service
requirements contained in Grantee's Franchise and shall outline and summarize all
subscriber complaints received by Grantee during the preceding calendar quarter.
SECTION 1.19.
RATE REGULATION.
The City reserves the right to regulate rates for Basic Cable Service and any
other services offered over the Cable System, to the extent not prohibited by Applicable
Laws. The Grantee shall be subject to the rate regulation provisions provided for
herein, and those of the Federal Communications Commission (FCC) at 47 C.F.R., Part
76, Subpart N, as the same may be amended from time to time. The City shall follow
the rules relating to cable rate regulation promulgated by the FCC at 47 C.F.R., Part
76, Subpart N, as the same may be amended from time to time.
SECTION 1.20.
FRANCHISE FEE.
a. Following the issuance and acceptance of a Franchise, the Grantee shall
pay to the Grantor a Franchise Fee in the amount set forth in the Franchise Agreement.
b. The Grantor, oh an annual basis, shall be furnished a statement within
ninety (90) days of the close of the calendar year, certified by the Company controller
or chief financial officer, reflecting the total amounts of Gross Revenues and all
payments, and computations of the Franchise Fee for the previous calendar year.
Upon ten (1 0) days prior written notice, Grantor shall have the right to conduct an
independent audit of Grantee's records. If such audit indicates a Franchise Fee
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underpayment of five percent (5%) or more, the Grantee shall assume all of City's
reasonable out-of-pocket costs associated with the conduct of such an audit and shall
remit to Grantor all applicable Franchise Fees due and payable together with interest
thereon at the lesser of the maximum rate permitted by Applicable Laws or 18% per
annum.
c. Except as otherwise provided by law, no acceptance of any payment by
the Grantor shall be construed as a release or as an accord and satisfaction of any
claim the Grantor may have for further or additional sums payable as a Franchise Fee
under this Ordinance or any Franchise Agreement or for the performance of any other
obligation of the Grantee.
d. In the event that any Franchise Fee payment or recomputed amount is not
made on or before the dates specified in the Franchise Agreement, Grantee shall pay
as additional compensation an interest charge, computed from such due date, at an
annual rate equal to the lesser of the maximum rate permitted by Applicable Laws or
18% per annum during the period for which payment was due.
e. Franchise Fee payments shall be made in accordance with the schedule
indicated in the Franchise Agreement.
SECTION 1.21.
DESIGN AND CONSTRUCTION REQUIREMENTS.
a. Grantee shall not construct any Cable System facilities until Grantee has
secured the necessary permits from Grantor, or other applicable Governmental
Authorities.
b. In those areas of the City where transmission or distribution facilities of all
the public utilities providing telephone and electric power service are underground, the
Grantee likewise shall construct, operate and maintain its transmission and distribution
facilities therein underground.
c. In those areas of the City where Grantee's cables are located on the
above-ground transmission or distribution facilities of the public utility providing
telephone or electric power service, and in the event that the facilities of both such
public utilities subsequently are placed underground, then the Grantee likewise shall
construct, operate and maintain its transmission and distribution facilities underground,
at Grantee's cost. Certain of Grantee's equipment, such as pedestals, amplifiers and
power, supplies, which normally are placed above ground, may continue to remain in
above-ground closures, however, the City specifically reserves all of its rights to
approve above-ground or underground locations for pedestals subject to Applicable
Laws.
d. In new residential developments in which all the electric power and
telephone utilities are underground, the City may, in its sole discretion, require that the
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following procedure apply with respect to access to and utilization of underground
easements:
1. The developer shall be responsible for contacting and surveying all
Grantees to ascertain which Grantees desire (or, pursuant to the terms and
provisions of this Ordinance and any Franchise Agreement, may be required) to
provide Cable Service to that development. The developer may establish a
reasonable deadline to receive responses from Grantees. The final
development map shall indicate the Grantees that have agreed to serve the
development.
2. If one (1) or more Grantees wish to provide service within all or
part of the development, they shall be accommodated in the joint utilities trench
on a nondiscriminatory shared basis. If fewer than two (2) Grantees indicate
interest, the developer shall provide conduit to accommodate a minimum of two
(2) sets of cable television cables and dedicate to the City any initially
unoccupied conduit.
3. The developer shall provide at least ten (10) business days notice
of the date that utility trenches will be open to the Grantees that have agreed to
serve the development. When the trenches are open, such Grantees shall have
two (2) business days to begin the Installation of their cables, and five (5)
business days after beginning Installation to complete Installation.
4. The final development map shall not be approved until the
developer submits evidence that:
A. It has notified each Grantee that underground utility
trenches are to open as of an estimated date, and that each Grantee will
be allowed access to such trenches, including trenches from proposed
Streets to individual homes or home sites, on specified nondiscriminatory
terms and conditions; and
B. It has received a written notification from each Grantee that
the Grantee intends to install its facilities during the open trench period on
the specified terms and conditions, or such other terms and conditions as
are mutually agreeable to the developer and Grantee, or has received no
reply from a Grantee within ten (10) days after its notification to such
Grantee, in which case the Grantee will be deemed to have waived its
opportunity to install its facilities during the open trench period.
5. Sharing the joint utilities trench shall be subject to compliance with
State regulatory agency and utility standards. If such compliance is not
possible, the developer shall provide a separate trench for the cable television
cables, with the entire cost shared among the participating Grantee(s). With the
concurrence of the developer, the affected utilities and the Grantees, alternative
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Installation procedures, such as the use of deeper trenches, may be utilized,
subject to the requirements of Applicable L.aws.
6. Any Grantee wishing to serve an area where the trenches have
been closed shall be responsible for its own trenching and associated costs and
shall repair all property to the condition which existed prior to such trenching.
e. Construction Codes and Permits.
1. Grantee shall obtain all necessary permits from City before
commencing any construction upgrade or extension of the System, including the
opening or disturbance of any Street, or private or public property within City.
Grantee shall strictly adhere to all state and local laws and building and zoning
codes currently or hereafter applicable to construction, operation or
maintenance of the System in City and give due consideration at all times to the
aesthetics of the property.
2. The City shall have the right to inspect all construction or
installation work performed pursuant to the provisions of the Franchise and to
make such tests at its own expense as it shall find necessary to ensure
compliance with the terms of the Franchise and applicable provisions of local,
state and federal law.
f. Repair of Streets and Propertv. Any and all Streets or public property or
private property, which are disturbed or damaged during the construction, repair,
replacement, relocation, operation, maintenance or reconstruction of the System shall
be promptly and fully restored by Grantee, at its expense, to a condition as good as
that prevailing prior to Grantee's work, as approved by City in the case of Streets and
other public property. If Grantee shall fail to promptly perform the restoration required
herein, City shall have the right to put the streets, public, or private property back into
good condition. City reserves its rights to pursue reimbursement for such restoration
from Grantee.
g. Conditions on Street Use.
1. Nothing in this Franchise shall be construed to prevent City from
constructing, maintaining, repairing or relocating sewers; grading, paving,
maintaining, repairing, relocating and/or altering any Street; constructing, laying
down, repairing, maintaining or relocating any water mains; or constructing,
maintaining, relocating, or repairing any sidewalk or other public work.
2. All System transmission and distribution structures, lines and
equipment erected by the Grantee within City shall be located so as not to
obstruct or interfere with the proper use of Streets, alleys and other public ways
and places, and to cause minimum interference with the rights of property
owners who abut any of the said Streets, alleys and other public ways and
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..
places, and not to interfere with existing public utility installations. The Grantee
shall furnish to and file with City Administrator the maps, plats, and permanent
records of the location and character of all facilities constructed, including
underground facilities, and Grantee shall file with City updates of such maps,
plats and permanent records annually if changes have been made in the
System.
3. If at any time during the period of this Franchise City shall elect to
alter, or change the grade or location of any Street, alley or other public way, the
Grantee shall, at its own expense, upon reasonable notice by City, remove and
relocate its poles, wires, cables, conduits, manholes and other fixtures of the
System, and in each instance comply with the reasonable standards and
specifications of City. If City reimburses other occupants of the Street, Grantee
shall be likewise reimbursed.
4. The Grantee shall not place poles, conduits, or other fixtures of
System above or below ground where the same will interfere with any gas,
electric, telephone, water or other utility fixtures and all such poles, conduits, or
other fixtures placed in any Street shall be so placed as to comply with all
requirements of City.
5. The Grantee shall, on request of any Person holding a moving
permit issued by City, temporarily move its wires or fixtures to permit the moving
of buildings with the expense of such temporary removal to be paid by the
Person requesting the same, and the Grantee shall be given not less than ten
(10) days advance notice to arrange for such temporary changes.
SECTION 1.22.
TECHNICAL STANDARDS.
a. The Grantee shall construct, install, operate and maintain its System in a
manner consistent with all Applicable Laws and the Federal Communications
Commission technical standards, and any standards set forth in its Franchise
Agreement. In addition, the Grantee shall provide to the Grantor, upon request, a copy
of the results of the Grantee's periodic proof of performance tests conducted pursuant
to Federal Communications Commission standards and guidelines.
b. Failure to comply with the FCC's technical standards shall entitle the City
to utilize the procedures of Section 1.30 hereof.
c. All construction practices shall be in accordance with all applicable
sections of the Occupational Safety and Health Act of 1970, as amended, as well as all
other Applicable Laws.
d. All Installation of electronic equipment at the time of installation shall be
of a permanent nature, durable and installed in accordance with the provisions of the
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National Electrical and Safety Code and National Electrical Code in effect at the time of
installation.
e. Antennae and their supporting structures (towers) shall be painted,
lighted, erected and maintained in accordance with all applicable rules and regulations
of the Federal Aviation Administration and all other Applicable Laws.
f. All of Grantee's plant and equipment, including, but not limited to, the
antenna site, headend and distribution system, towers, house connections, structures,
poles, wire, coaxial cable, fixtures and appurtenances shall be installed, located,
erected, constructed, reconstructed, replaced, removed, repaired, maintained and
operated in accordance with good engineering practices, performed by experienced
maintenance and construction personnel so as not to endanger or interfere with
improvements the City may deem appropriate to make or to interfere in any manner
with the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian
or vehicular traffic.
g. Grantee shall at all times employ ordinary care and shall install and
maintain in use commonly accepted methods and devices preventing failures and
accidents which are likely to cause damage, injury or nuisance to the public.
SECTION 1.23.
TRIMMING OF TREES.
Grantee shall have the authority to trim trees, in accordance with all applicable
utility restrictions, ordinance and easement restrictions, upon and hanging over Streets
and public places of the City so as to prevent the branches of such trees from coming
in contact with the wires and cables of Grantee. City representatives shall have
authority to supervise and approve all trimming of trees conducted by Grantee.
SECTION 1.24.
USE OF GRANTEE FACILITIES.
The City shall, at its own expense, have the right to install and maintain upon the
poles and within the underground pipes and conduits of Grantee, any wires and fixtures
desired by the City to the extent that such installation and maintenance does not
interfere with existing operations of Grantee.
SECTION 1.25.
PROGRAMMING DECISIONS.
All programming decisions shall be at the sole discretion of Grantee; provided,
however, that any change in the mix, quality or level of service pursuant to 47 U.S.C.
S 545(a) shall require the prior approval of the City. Such approval by the City shall not
be unreasonably withheld.
SECTION 1.26.
INDEMNIFICATION.
Grantee shall indemnify, defend and hold the City, its officers, boards,
commissions, agents and employees (collectively the "Indemnified Parties") harmless
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from and against any and all lawsuits, claims, causes of action, actions, liability,
demands, damages, judgments, settlements, losses, expenses (including reasonable
attorneys' fees) and costs of any nature that any of the Indemnified Parties may at any
time, directly or indirectly, suffer, sustain or incur arising out of, based upon or in any
way connected with the grant of a Franchise to Grantee, the operation of Grantee's
System and/or the acts and/or omissions of Grantee or its agents or employees,
whether or not pursuant to the Franchise. This indemnity shall apply, without limitation,
to any action or cause of action for invasion of privacy, defamation, antitrust, errors and
omissions, theft, fire, violation or infringement of any copyright, trademark, trade names
service mark, patent, or any other right of any Person, whether or not any act or
omission complained of is authorized, allowed or prohibited by this Ordinance or any
Franchise Agreement, but shall exclude any claim or action arising out of the acts or
omissions of the Indemnified Parties or related to any City programming or other
access programming for which the Grantee is not legally responsible or arising from the
operation of access facilities and equipment.
SECTION 1.27. INSURANCE.
Within sixty (60) days following the grant of a Franchise, the Grantee shall
obtain, pay all premiums for and make available to the City at its request copies of the
following insurance policies:
a. A general comprehensive liability insurance policy insuring, indemnifying,
defending and saving harmless the Indemnified Parties from any and all claims by any
Person whatsoever on account of injury to or death of a Person or Persons occasioned
by the operations of the Grantee under any Franchise granted hereunder, or alleged to
have been so caused or occurred with a minimum coverage of One Million Oollars
($1,000,000) for personal injury or death of one Person, and Three Million Oollars
($3,000,000) for personal injury or death of any two (2) or more Persons in anyone
occurrence. The policy limits provided for in this Section 1.27(a) shall be reviewed and
adjusted by the city as necessary not more than once every three (3) years.
b. Property damage insurance for property damage occasioned by the
operation of Grantee under any Franchise granted pursuant to this Ordinance, or
alleged to have been so caused or occurred, with minimum coverage of One Million
Oollars ($1,000,000) for property damage to the property of anyone Person and Two
Million Dollars ($2,000,000) for property damage to the property of two or more
Persons in anyone occurrence. The policy limits provided for in this Section 1.27(b)
shall be reviewed and adjusted by the city as necessary not more than once every
three (3) years.
c. Workers Compensation Insurance as provided by Applicable Laws.
d. All insurance policies called for herein shall be in a form satisfactory to
the City with a company licensed to do business in the State of Minnesota with a rating
by A.M. Best & Co. of not less than "A," and shall require thirty (30) days written notice
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of any cancellation to both the City and the Grantee. The Grantee shall, in the event of
any such cancellation notice, obtain, pay all premiums for, and file with the City, written
evidence of the issuance of replacement policies within thirty (30) days following
receipt by the City or the Grantee of any notice of cancellation.
e. If Grantee sells or transfers the Cable System, or in the event of
expiration, termination or revocation of a Franchise, insurance tail coverage shall be
purchased and filed with the City for the then applicable amounts, providing coverage
for the time periods according to applicable statutes of limitation, insurance for any
issues attributable to the period Grantee held its Franchise.
f. it shall be the obligation of Grantee to promptly notify the City of any
pending or threatened litigation that would be likely to affect the Indemnified Parties.
SECTION 1.28. RECORDS REQUIRED AND GRANTOR'S RIGHT TO INSPECT.
a. Grantee shall at all times maintain the following records and
information relating specifically to the Cable System serving the City as
identified by the FCC Community Unit Identifier ("CUIO") as opposed to a
regional cable system or other operating unit of Grantee: A full and complete set
of plans, records and "as-built" drawings and/or maps in an electronic form
agreed to by City and Grantee which shall be updated annually showing the
location of the Cable Television System installed or in use in the City, exclusive
of Subscriber service drops and equipment provided in Subscribers' homes.
2. If requested by Grantor, a summary of service calls, identifying the
number, general nature and disposition of such calls, on a monthly basis going
back no further than three (3) months from the date of the request. A summary
of such service calls shall be submitted to the Grantor within thirty (30) days
following its request in a form reasonably acceptable to the Grantor.
b. Upon reasonable notice, and during Normal Business Hours, Grantee
shall permit examination by any duly authorized representative of the Grantor, of all
Franchise property and facilities, together with any appurtenant property and facilities
of Grantee situated within or without the City, and all records relating to the Franchise,
provided they are necessary to enable the Grantor to carry out its regulatory
responsibilities under Applicable Laws, this Ordinance and the Franchise Agreement.
Grantee shall have the right to be present at any such examination.
c. The City shall also have the right to inspect, upon twenty-four (24) hours
written notice, at any time during Normal Business Hours at Grantee's office, all books,
records, maps, plans, financial statements, service complaint logs, performance test
results, records of request for service, and other like materials of Grantee to the extent
such examination will not violate federal law or disclose proprietary information.
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. .
d. Copies of all petitions, applications, communications and reports
submitted by Grantee or on behalf of or relating to Grantee to the Federal
Communications Commission, Securities and Exchange Commission, or any other
Governmental Authority having jurisdiction with respect to any matters affecting the
Cable System authorized pursuant to this Ordinance and any Franchise shall, upon
request, be submitted, upon request to the City. Copies of responses from the
Governmental Authority to Grantee shall likewise be furnished to the City.
SECTION 1.29.
ANNUAL REPORTS.
a. Grantee shall, upon request, within ninety (90) days of each calendar
year end, submit a written end of the year report to Grantor with respect to the
preceding calendar year containing the following information:
1. A Summary of the previous year's (or in the case of the initial
reporting year, the initial year's) activities in development of the Cable System,
including but not limited to, services commenced or discontinued during the
reporting year;
2. A list of Grantee's officers, members of its board of directors, and
other principals of Grantee;
3. A list of stockholders or other equity investors holding five percent
(5%) or more of the voting interest in Grantee; and
4. Information as to the number of Subscribers, additional television
outlets, and the number of basic and pay service Subscribers.
b. All reports required under this Ordinance, except those required by law to
be kept confidential, shall be available for public inspection in the Grantee's offices
during Normal Business Hours.
c. All reports and records required under this Ordinance shall be furnished
at the sole expense of Grantee, except as otherwise provided in this Ordinance or the
Franchise agreement.
SECTION 1.30.
FRANCHISE VIOLATION.
a. In the event Grantor believes that Grantee has breached or violated any
material provision of this Ordinance or a Franchise granted hereunder, Grantor may act
in accordance with the following procedures:
b. Grantor may notify Grantee of the alleged violation or breach, stating with
specificity the nature of the alleged violation or breach, and demand that Grantee cure
the same within a reasonable time, which shall not be less than ten (10) days in the
case of an alleged failure of the Grantee to pay any sum or other amount due the
Grantor under this Ordinance or the Grantee's Franchise and thirty (30) days in all
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. .
..
other cases. If Grantee fails either to cure the alleged violation or breach within the
time prescribed or to commence correction of the violation or breach within the time
prescribed and thereafter diligently pursue correction of such alleged violation or
breach, the Grantor shall then give written notice of not less than fourteen (14) days of
a public hearing to be held before the Council. Said notice shall specify the violations
or breaches alleged to have occurred. At the public hearing, the Council shall hear and
consider relevant evidence and thereafter render findings and its decision. In the event
the Council finds that a material violation or breach exists and that Grantee has not
cured the same in a satisfactory manner or has not diligently commenced to cure of
such violation or breach after notice thereoffrom Grantor and is not diligently
proceeding to fully cure such violation or breach, the Council may impose penalties
from any security fund required in a Franchise Agreement or may terminate Grantee's
Franchise and all rights and privileges of the Franchise. If the City chooses to
terminate Grantee's Franchise, the following additional procedure shall be followed:
1. After holding the public hearing, the City shall provide Grantee with
written notice of the City's intention to terminate the Franchise and specify
in detail the reason or cause for the proposed termination. The City shall
allow grantee a minimum of fifteen (15) days subsequent to receipt of the
notice in which to cure the default.
2. Grantee shall be provided with an opportunity to be heard at a regular or
special meeting of City prior to any final decision of City to terminate
Grantee's Franchise.
3. In the event that City determines to terminate Grantee's franchise, the
Grantee shall have an opportunity to appeal said decision in accordance
with all Applicable Laws.
4. If a valid appeal is filed, the Franchise shall remain in full force and affect
while said appeal is pending, unless the term of the Franchise sooner
expires.
SECTION 1.31.
FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM.
In the event Grantee's performance of any of the terms, conditions or obligations
required by this Ordinance or a Franchise granted hereunder is prevented by a cause
or event not within Grantee's control, such inability to perform shall be deemed excused
for the period of such inability and no penalties or sanctions shall be imposed as a
result thereof. For the purpose of this Section, causes or events not within the control
of Grantee shall include, without limitation, acts of God, strikes, sabotage, riots or civil
disturbances, restraints imposed by order of a governmental agency or court, failure or
loss of utilities, explosions, inability to obtain necessary permits or approvals after
having submitted timely and complete applications, acts of public enemies, and natural
disasters such as floods, earthquakes, landslides and fires.
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SECTION 1.32.
ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY.
a. In the event that the use of any property of Grantee within the Franchise
Area or a portion thereof is discontinued for a continuous period of twelve (12) months,
Grantee shall be deemed to have abandoned that property.
b. Grantor, upon such terms as Grantor may impose, may give Grantee
permission to abandon, without removing, any System facility or equipment laid, directly
constructed, operated or maintained in, on, under or over the Franchise Area. Unless
such permission is granted or unless otherwise provided in this Ordinance, the Grantee
shall remove all abandoned facilities and equipment upon receipt of written notice from
Grantor and shall restore any affected Street to its former state at the time such
facilities and equipment were installed, so as not to impair its usefulness. In removing
its plant, structures and equipment, Grantee shall refill, at its own expense, any
excavation made by or on behalf of Grantee and shall leave all streets and other public
ways and places in as good condition as that prevailing prior to such removal without
materially interfering with any electrical or telephone cable or other utility wires, poles
or attachments. Grantor shall have the right to inspect and approve the condition of the
streets, public ways, public places, cables, wires, attachments and poles prior to and
after removal. The liability, indemnity and insurance provisions of this Ordinance and
any security fund provided for in the Franchise Agreement shall continue in full force
and effect during the period of removal and until full compliance by Grantee with the
terms and conditions of this Section.
c. Upon abandonment of any Franchise property in place, the Grantee, if
required by the Grantor, shall submit to Grantor a bill of sale and/or other an
instrument, satisfactory in form and content to the Grantor, transferring to the Grantor
the ownership of the Franchise property abandoned.
d. At the expiration of the term for which the Franchise is granted, or upon
its earlier revocation or termination, as provided for herein and/or in the Franchise
Agreement, in any such case without renewal, extension or transfer, the Grantor shall
have the right to require Grantee to remove, at its own expense, all above-ground
portions of the Cable Television System from all Streets and public ways within the City
within a reasonable period of time, which shall not be less than one hundred eighty
(180) days.
e. Notwithstanding anything to the contrary set forth in this Ordinance, the
Grantee may, with the consent of the Grantor, abandon any underground Franchise
property in place so long as it does not materially interfere with the use of the Street or
public rights-of-way in which such property is located or with the use thereof by any
public utility or other cable Grantee.
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SECTION 1.33. EXTENDED OPERATION AND CONTINUITY OF SERVICES.
Upon termination or forfeiture of a Franchise, the Grantee shall remove its cable,
wires, and appliances from the streets, alleys, or other public places within the Service
Area if the City so requests. Failure by the Grantee to remove its cable, wires, and
appliances as referenced herein shall be subject to the requirements of Section 1.32 of
this Ordinance.
SECTION 1.34. RECEIVERSHIP AND FORECLOSURE.
a. A Franchise granted hereunder shall, at the option of Grantor, cease and
terminate one hundred twenty (120) days after appointment of a receiver or receivers,
or trustee or trustees, to take over and conduct the business of Grantee, whether in a
receivership, reorganization, bankruptcy or other action or proceeding, unless such
receivership or trusteeship shall have been vacated prior to the expiration of said one
hundred twenty (120) days, or unless: (1) such receivers or trustees shall have, within
one hundred twenty (120) days after their election or appointment, fully complied with
all the terms and provisions of this Ordinance and the Franchise granted pursuant
hereto, and the receivers or trustees within said one hundred twenty (120) days shall
have remedied all the defaults and violations under the Franchise and/or this
Ordinance or provided a plan for the remedy of such defaults and violations which is
satisfactory to the Grantor; and (2) such receivers or trustees shall, within said one
hundred twenty (120) days, execute an agreement duly approved by the court having
jurisdiction in the premises, whereby such receivers or trustees assume and agree to
be bound by each and every term, provision and limitation of the Franchise and this
Ordinance.
b. In the case of a foreclosure or other judicial sale of the Franchise
property, or any material part thereof, Grantor may give notice of termination of any
Franchise granted pursuant to this Ordinance upon Grantee and the successful bidder
at such sale, in which the event the Franchise granted and all rights and privileges of
the Grantee hereunder shall cease and terminate thirty (30) days after such notice has
been given, unless (1) Grantor shall have approved the transfer of the Franchise in
accordance with the provisions of the Franchise and this Ordinance; and (2) such
successful bidder shall have covenanted and agreed with Grantor to assume and be
bound by all terms and conditions of the Franchise.
. SECTION 1.35.
RIGHTS RESERVED TO GRANTOR.
In addition to any rights specifically reserved to the Grantor by this Ordinance,
the Grantor reserves to itself every right and power which is required to be reserved by
a provision of any ordinance or under the Franchise.
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SECTION 1.36.
RIGHTS OF INDIVIDUALS.
a. Grantee shall not deny service, deny access, or otherwise discriminate
against Subscribers, Channel users, or general citizens on the basis of race, color,
religion, disability, national origin, age, gender or sexual preference. Grantee shall
comply at all times with all other Applicable Laws, relating to nondiscrimination.
b. Grantee shall adhere to the applicable equal employment opportunity
requirements of Applicable Laws, as now written or as amended from time to time
including 47 U.S.C. Section 551, Protection of Subscriber Privacy.
c. Neither Grantee, nor any Person, agency, or entity shall, without the
Subscriber's consent, tap or arrange for the tapping, of any cable, line, signal input
device, or Subscriber outlet or receiver for any purpose except routine maintenance of
the System, detection of unauthorized service, polling with audience participating, or
audience viewing surveys to support advertising research regarding viewers where
individual viewing behavior cannot be identified.
d. In the conduct of providing its services or in pursuit of any collateral
commercial enterprise resulting therefrom, Grantee shall take reasonable steps to
prevent the invasion of a Subscriber's or general citizen's right of privacy or other
personal rights through the use of the System as such rights are delineated or defined
by Applicable Laws. Grantee shall not, without lawful court order or other applicable
valid legal authority, utilize the System's interactive two-way equipment or capability for
unauthorized personal surveillance of any Subscriber or general citizen.
e. No cable line, wire, amplifier, converter, or other piece of equipment
owned by Grantee shall be installed by Grantee in the Subscriber's premises, other
than in appropriate easements, without first securing any required consent or as
permitted by Applicable Law. If a Subscriber requests service, permission to install
upon Subscriber's property shall be presumed. Where a property owner or his or her
predecessor granted an easement including a public utility easement or a servitude to
another and the servitude by its terms is a compatible use to Grantee's intended usage,
Grantee shall not be required to obtain the written permission of the owner for the
Installation of equipment required to deliver Cable Service.
f. No signals of a class IV cable communications channel may be
transmitted from a Subscriber terminal for purposes of monitoring individual viewing
patterns or practices without the express written permission of a Subscriber. The
request for permission must be contained in a separate document with a prominent
statement that the Subscriber is authorizing the permission in full knowledge of its
provisions. The written permission must be for a limited period of time not to exceed
one year which is renewal at the option of the Subscriber. No penalty may be invoked
for a Subscribers failure to provide or renew the authorization. The authorization is
revocable at any time by the Subscriber without penalty of any kind. The permission
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must be required for each type or classification or class IV cable communications
activity planned.
1. No information or data obtained by monitoring transmission of a
signal from a Subscriber terminal, including but not limited to the lists of the
names and addresses of the Subscribers or lists that identify the viewing habits
of Subscribers may be sold or otherwise made available to any Person other
than to Grantee and its employees for internal business use, or to the Subscriber
who is the subject of that information, unless the Grantee has received specific
written authorization from the Subscriber to make the data available.
2. Written permission from the Subscriber must not be required for
the systems conducting system wide or individually addressed electronic sweeps
for the purpose of verifying system integrity or monitoring for the purpose of
billing. Confidentiality of this information is subject to paragraph 1 above.
3. For purposes of this Section 136, a "class IV cable communications
channel" means a signaling path provided by a System to transmit signals of any
type from a Subscriber terminal to another point in the System.
SECTION 1.37.
SEVERABILITY.
If any provision of this Ordinance is held by any Governmental Authority of
competent jurisdiction, to be invalid as conflicting with any Applicable Laws now or
hereafter in effect, or is held by such Governmental Authority to be modified in any way
in order to conform to the requirements of any such Applicable Laws, such provision
shall be considered a separate, distinct, and independent part of this Ordinance, and
such holding shall not affect the validity and enforceability of all other provisions
hereof. In the event that such Applicable Laws are subsequently repealed, rescinded,
amended or otherwise changed, so that the provision hereof which had been held
invalid or modified is no longer in conflict with such laws, said provision shall thereupon
return to full force and effect and shall thereafter be binding on Grantor and Grantee,
provided that Grantor shall give Grantee thirty (30) days written notice of such change
before requiring compliance with said provision or such longer period of time as may be
reasonably required for Grantee to comply with such provision.
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PASSED, APPROVEO, AND ADOPTED this 1lday of C4~~
1999.
THE CITY OF
PRIOR LAKE, MINNESOTA
By: lA.)k~, mJ.~
Its: <>
By:
Its:
288608/1
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Affidavit of Publication
Southwest Suburban Publishing
State of Minnesota)
)SS.
County of Scott )
Stan Rolfsrud, being duly sworn, on oath says that he is the publisher or the authorized agent of
the publisher of the newspapers known as the Shakopee Valley News, Jordan Independent, Prior
Lake American and Savage Pacer, and has full knowledge of the facts herein stated as follows:
(A) These newspapers have complied with the requirements constituting qualification as a legal
newspaper, as provided by Minnesota Statute 331 A.02, 331 A.O?, and other applicable laws. as
amended.
(B) The printed public notice that is attached to this Affidavit and identified as No. ?/~ ~
was published on the date or dates and in the newspaper stated in the attached Notice and said
Notice is hereby incorporated as part of this Affidavit. Said notice was cut from the columns of
the newspaper specified. Printed below is a copy of the lower case alphabet from A to Z, both
inclusive, and is hereby acknowledged as being the kind and size of type used in the compositi
and publication of the Notice:
abcdefghijklmnopqrstuv
Subscribed and sworn before me on
dd,
,1f:/Jf(Lil 'Y
thiS~~Of
,1999
r"""':
!
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~.,.~
GWEN M. RADUENZ
NOTARY PUBlIc-MlNNESOT-A
MY r.OMMIS310N EXPIRES 1-3HIO
RATE INFORMATION
Lowest classified rate paid by commercial users for comparable space.... $11.50 per column inch
Maximum rate allowed by law for the above matter................................. $11.50 per column inch
Rate actually charged for the above matter.............................................. $8.78 per column inch