HomeMy WebLinkAbout1989.04.17 ORD 1989-257 ORDINANCE NO. 1989-257
AN ORDINANCE, INCLUDING ADDENDUM WITH EXHIBITS , GRANTING A
FRANCHISE TO GROUP W CABLE OF RAMSEY/WASHINGTON, INC . , A MINNESOTA
CORPORATION, TO OPERATE AND MAINTAIN A CABLE COMMUNICATIONS SYSTEM
IN THE CITY; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF
FRANCHISE; PROVIDING FOR REGULATION, AND USE OF THE SYSTEM; AND
PRESCRIBING PENALTIES FOR THE VIOLATION OF ITS PROVISIONS .
The City Council of the City of Hugo ordains :
STATEMENT OF INTENT AND PURPOSE
The City intends, by the adoption of this Franchise, to bring
about the development of a Cable Communications System, and the
continued operation of it . Such a development can contribute
significantly to the communication needs and desires of many.
Further, the City may achieve better utilization and improvement of
public services with the development and operation of a Cable
Communications System.
Past studies by the City have led the way for organizing a
means of procuring and securing a Cable Communications System
which, in the judgment of the Council, is best suited to the City.
This has resulted in the preparation and adoption of this
Franchise .
FINDINGS
In the review of the proposal and application of Group W
Cable of Ramsey/Washington, Inc . , ( "Grantee" ) , and as a result of
the public hearings , the City Council makes the following findings :
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A. The Grantee ' s technical ability, financial condition, legal
qualifications, and character were considered and approved in
a full public proceeding after due notice and a reasonable
opportunity to be heard.
B. Grantee ' s plans for constructing and operating the System
were considered and found adequate and feasible in a full
public proceeding after due notice and a reasonable
opportunity to be heard;
C. The franchise granted to Grantee by the City complies with
the existing applicable Minnesota Statutes , Federal laws and
regulations; and
D. The Franchise granted to Grantee is nonexclusive .
ARTICLE I_
SHORT TITLE AND DEFINITIONS
SECTION 1 . SHORT TITLE
This Ordinance shall be known and cited as the Cable
Communications Ordinance.
SECTION 2 . DEFINITIONS
For the purpose of the Franchise, the following terms ,
phrases , words and their derivations shall have the meaning given
herein. When not inconsistent with the context, words used in the
present tense include the future, words in the plural number
include the singular number, and words in the singular number
include the plural number. The words "shall " and "will " are
mandatory and "may" is permissive. Words not defined shall be
given their common and ordinary meaning.
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A. "Basic Service" means the delivery by Grantee to all
Subscribers of satellite delivered special interest
programming, automated programming, local television
broadcast stations and access programming, and local
origination channels by Grantee as covered by regular monthly
charges paid by all Subscribers . This definition excludes
optional services for which a separate charge is made.
B. "City" means City of Hugo, a municipal corporation, in the
State of Minnesota, acting by and through its City Council .
C . "Class IV Channel " means a signaling path provided by a
System to transmit signals of any type from a Subscriber
terminal to another point in System.
D. "Converter" means an electronic device, which converts
signals to a frequency acceptable to a television receiver of
a Subscriber, and by an appropriate selector permits a
Subscriber to view all Subscriber signals included in the
service .
E . "Council " means the governing body of the City.
F. "Drop" means the cable that connects the Subscriber terminal
to the nearest feeder cable of the system.
G. "FCC" means the Federal Communications Commission and any
legally appointed, designated or elected agent or successor.
H. "Grantee" is Group W Cable of Ramsey/Washington, Inc . , a
Minnesota Corporation, its agents or employees .
I . "Gross Revenues " means all revenue derived directly or
indirectly by Grantee, its affiliates , subsidiaries , parent,
and person in which Grantee has financial interest of five
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percent ( 5%) or more from or in connection with the operation
of the System in the City, including but not limited to,
Basic Service Subscriber monthly fees , Pay Cable fees ,
Installation and reconnection fees , leased channel fees ,
converter rentals , studio rental , production equipment and
personnel fees, and advertising revenues . The term does not
include any taxes on services furnished by Grantee and
imposed directly upon any Subscriber or user by the State,
City or other governmental unit . Gross Revenues shall not
include revenues for signals originating in or passing
through the Franchise area for transmission to a cable system
or Subscriber without the franchise area, unless Grantee
receives revenue for such signal which has not already
otherwise been directly or indirectly subject to a franchise
fee or similar tax, in which case said revenues will be
considered Gross Revenues for the purpose of this Franchise.
J . "Installation" means the connection of the System from feeder
cable to the point of connection, including standard and
custom installations .
Y. "Lockout Device" means an optional mechanical or electrical
accessory to a Subscriber ' s terminal which inhibits the
viewing of a certain program, certain channel or certain
channels provided by way of the cable communications System.
L. "Metropolitan Area" means the seven-county Minneapolis/St .
Paul , Minnesota major metropolitan area .
M. "Offering of Grantee" or "Offering" means that certain
document dated February 1 , 1989 , entitled "Offering of
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Grantee" and signed by Grantee, as amended from time to time
by mutual written agreement between Grantee and the City, a
copy of which is on file with the City Administrator .
N. "Pay Cable" or "Service other than Basic Service" means the
delivery over the System of per channel or per program
audio-visual signals in intelligible form to Subscribers for
a fee or charge, in addition to the charge for Basic Service .
O. "Prime Rate" means the interest charged from time to time by
the First National Bank of Minneapolis for ninety ( 90 ) day
unsecured loans to commercial borrowers of the highest credit
rating.
P . "Public Property" means any real property owned by City other
than a Street .
Q . "Ramsey/Washington Franchise Area" means the area encompassed
by the corporate boundaries of Birchwood Village, Dellwood,
Lake Elmo, Mahtomedi, Maplewood, North St . Paul , Oakdale,
Vadnais Heights , White Bear Lake, and Willernie, Minnesota,
and the townships of Grant and White Bear, as the same may be
modified.
R. "Scrambler/Descrambler" refers respectively to the equipment
installed in the cable communication System ' s headend
equipment and Subscriber terminal used to isolate Pay Cable
and other ancillary service channels from Basic Service which
is accomplished by electronically distorting the signal prior
to its transmission through the cable communication System
and reconstituting the signal at each authorized location for
subsequent display.
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S . "Sidewalk" means the portion of a Street delineated for
pedestrian travel .
T. "Street" means the surface of and the space above and below
any public street, road, highway, freeway, lane, path, public
way, alley, court, sidewalk, boulevard, parkway, drive or any
easement or right-of-way now or hereafter held by City.
U. "Subscriber" means any person or entity who subscribes to a
service provided by Grantee by means of or in connection with
the System regardless of whether a fee is paid for such
service.
V. "System" means a system of antennas, cables, wires , lines,
towers, waveguides or other conductors , converters , equipment
or facilities, designed and constructed for the purpose of
producing, receiving, transmitting, amplifying or
distributing, audio, video and other forms of electronic
electrical signals, located in City and that part of
Grantee ' s System located in the Ramsey/Washington Franchise
Area from which the System is extended into the City. Said
definition shall not include any system wholly internal to
one or more multiple dwelling units under common ownership,
control or management, and which does not use City Streets or
other Public Property. In any event, System as defined
herein shall not be inconsistent with the definition as set
forth in Minn. Stat . §238 . 02 , subd. 3 ( 1988 ) and 47 U. S .C .
§522 ( 6 ) ( 1988 ) .
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ARTICLE II .
GRANT OF AUTHORITY AND GENERAL PROVISIONS
SECTION 1 . GRANT OF FRANCHISE AND ACCEPTANCE
City hereby grants to Grantee, to be effective upon Grantee ' s
acceptance, a nonexclusive Franchise subject to all of the terms
and conditions as herein provided:
A. Grantee shall accept this Franchise in the following manner,
and not later than the time set out in Article XIV, Section
2 :
( 1 ) This Franchise will be properly executed and
acknowledged by Grantee and delivered to City.
( 2 ) At the same time as delivery of the executed Franchise,
Grantee shall deposit with City its nonrefundable
acceptance fee in the suns of [to be determined prior to
final execution of this Franchise by Grantee) for the
purpose of defraying all costs and expenses of
developing this Franchise . After the initial payment of
the acceptance fee, should costs in excess of the
acceptance fee be incurred by the City prior to the
payment of the first Franchise fee, City may charge such
excess costs to Grantee and Grantee shall pay them on
demand by City, as an advance on the payment of
Franchise fees , provided the Company and the City have
mutually agreed upon payback provisions .
( 3 ) All certificates of insurance, acceptances , letters of
credit, attorneys ' opinions , organizational and creation
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documents and guarantees required of Grantee by this
Franchise, shall be delivered with the executed
Franchise and in accordance therewith.
SECTION 2 . AUTHORITY GRANTED
A. City grants to Grantee permission to use Streets for
erecting, constructing, operating and maintaining the System.
Other rights necessary for the System and on other Public or
private Property must be obtained by Grantee, but City shall
have no obligation to give or grant or assist in obtaining
the same .
B. Grantee shall construct and maintain the System so as not to
interfere with other uses of Streets . Grantee shall make use
of existing poles and other facilities available to Grantee.
C. Notwithstanding the above grant to use Streets, no Street
shall be used by Grantee if City in its sole opinion
determines that such use is inconsistent with the terms,
conditions or provisions by which such Street was created or
dedicated, or with the present use of the Street.
SECTION 3 . AGREEMENT
A. Grantee agrees to be bound by all the terms and conditions of
this Franchise .
B. Grantee also agrees to provide all services specifically set
forth in, and to comply with all provisions of, its Offering
to provide a System within the boundaries of City. Failure
of Grantee to provide a System as described in its Offering,
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at City ' s option, shall be a violation of the provisions of
this Franchise .
SECTION 4 . FRANCHISE TERM
This Franchise shall commence upon the effective date of this
Franchise Ordinance and shall run concurrently with the term of the
Franchise Agreement and Cable Communications Ordinance granted in
the Ramsey/Washington Franchise Area and any renewals or extensions
thereof . Notwithstanding the preceding sentence, this Franchise
may be extended for a period of fifteen ( 15) years from the
expiration or termination date of the aforementioned Franchise
Agreement and Cable Communications Ordinance provided Grantee
establishes to the reasonable satisfaction of City that Grantee can
continue to provide service and meet its obligations under this
Franchise.
SECTION 5 . AREA
This Franchise is granted for City as it exists from time to
time during the term of this Franchise .
SECTION 6 . POLICE AND EMINENT DOMAIN POWERS
A. Grantee ' s rights are subject to the rights of eminent domain
of the City and to the police power of City to adopt and
enforce ordinances necessary for the health, safety and
welfare of the public .
B. Any conflict between the provisions of this Franchise and any
other present or future lawful exercise of the right of
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eminent domain or the police powers of the City shall be
resolved in favor of City.
SECTION 7 . USE OF GRANTEE FACILITIES
City shall have the right to install and maintain, free of
charge, upon the poles and within the underground pipes and
conduits of Grantee any wires or fixtures as desired by City.
Grantee waives any claim against City arising from City' s exercise
of these rights .
SECTION 8 . WRITTEN NOTICE
All notices , reports or demands required to be given in
writing under this Franchise shall be deemed to be given when
delivered personally to any officer of Grantee or City' s
Administrator of this Franchise or forty-eight ( 48) hours after it
is deposited in the United States mail in a sealed envelope, with
registered or certified mail postage prepaid thereon, addressed to
the party to whom notice is being given, as follows :
If to City: City of Hugo
5524 Upper 146th Street
Hugo, Minnesota 55038
Attention: City Administrator
With copy to: Mark J. Ayotte, Esq.
Briggs and Morgan, P .A.
2200 First National Bank Building
332 Minnesota Street
St . Paul , Minnesota 55101
If to Grantee: Group W. Cable of Ramsey/Washington, Inc .
934 Woodhill Drive
Roseville, Minnesota 55113
Attention: Hugo System Manager
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Such addresses may be changed by either party upon notice to the
other party given as provided in this Section.
SECTION 9 . RIGHTS OF INDIVIDUALS
A. No signals , including signals of a Class IV Channel, shall be
transmitted from a Subscriber terminal except as required to
provide a service authorized by this Franchise and the
Subscriber. Grantee and any other person shall neither
initiate nor use any procedure or device for monitoring
individual viewing patterns or practices or otherwise
procuring or storing or selling information or data from a
Subscriber ' s terminal ( s ) by any other means , without the
prior authorization to the affected Subscriber which shall
not have been obtained from the Subscriber as a condition of
providing service . The request for such authorization shall
be contained in a separate written document which prominently
states that the Subscriber is authorizing with full knowledge
of the authorization provisions and which identifies the
purpose for which the data or information is being gathered
or stored. Such authorization shall be for a limited period
of time not to exceed one year. The authorization shall be
revocable at any time by the Subscriber without penalty of
any kind whatsoever. A separate authorization shall be
required for each type or classification of data or
information sought from a Subscriber terminal .
B . Grantee shall not, without the written or electronic
authorization of the affected Subscriber, provide to anyone
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data or information identifying or designating any
Subscriber. Any data, the collection of which is' authorized,
shall be made available upon request by and without charge to
the authorizing Subscriber in understandable fashion,
including specification of the purpose for which the
information is being gathered and to whom and for what fee
the information is to be sold.
C. Grantee shall not tap or monitor, arrange for the tapping or
monitoring, or permit any other person to tap or monitor, any
cable, line, signal input device, or Subscriber outlet or
receiver for any purpose whatsoever, without the prior
written authorization of the affected Subscriber as required
by paragraph A of this Section.
D. Nothing herein contained shall prohibit Grantee from
verifying System operation and the transmission of signals to
an affected Subscriber or from monitoring for the purpose of
billing. The information obtained pursuant to this
subsection D shall be subject to the provisions of this
section relating to confidentiality.
E . City reserves the right to adopt and enforce laws consistent
with 47 U. S .C. 8551 ( 1988 ) for the protection of Subscriber
privacy.
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ARTICLE III .
DESIGN OF SYSTEM
SECTION 1 . CHANNEL CAPACITY - SUBSCRIBER NETWORK
A. The System shall be constructed as a 450 MHZ addressable
system and initially activated to provide at least sixty-one
( 61 ) downstream programmable channels .
SECTION 2 . PICTURE QUALITY AND TECHNICAL REQUIREMENTS
A. The System shall produce a picture upon each Subscriber ' s
television screen in black and white or color, depending upon
whether color is being telecast and provided the Subscriber ' s
television set is capable of producing a color picture, that
is not materially distorted and that is free from ghost
images , without material degradation of color fidelity. The
System shall produce a sound that is not materially distorted
on any receiver of a Subscriber. Grantee, at its expense,
shall install and maintain the System so as not to interfere
with any Subscriber ' s ability to receive local broadcast
stations .
B . The System shall transmit or distribute signals to all
television and radio receivers of all Subscribers without
causing unreasonable crossmodulation in the cables or
unreasonably interfering with other electrical or electronic
systems or the reception of other television or radio
receivers .
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C . Grantee shall construct and maintain a System that at least
meets minimum technical standards or guidelines now or
hereafter established by the FCC relating to cable
communication systems; provided, however, that in no event
shall the technical standards required to be met byGrantee
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be less stringent than the FCC standards or guidelines in
effect at the time of the adoption of the Ordinance, nor
shall Grantee be required to meet minimum FCC technical
standards or guidelines which apply solely to cable
communications systems for which franchises are granted
subsequent to the acceptance of this Franchise. The FCC
technical standards and guidelines relating to cable
communications systems contained in subpart K of part 76 of
the FCC rules are hereby incorporated by reference and made a
part hereof . In any event, Grantee shall, at a minimum,
comply with the Company' s technical standards set forth in
the Offering, unless Grantee ' s failure to comply with said
technical standards is caused by circumstances beyond its
reasonable control .
D. The System shall be designed for and operated on a
twenty-four (24 ) hours a day continuous operation basis .
E . Grantee shall initially and subsequently test the technical
capacity of the System according to the procedures delineated
in the Offering. The results of any tests required by the
FCC shall be filed with the City within ten ( 10 ) days of the
conduct of such tests . Other representatives of City may be
present during testing. Tests may be done annually at such
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times as is determined by City, with notice to Grantee. The
expenses of any tests required by the FCC shall be paid by
Grantee. The expenses of tests required by City in addition
to FCC-required tests shall be paid by City from the
Franchise fee. Should the tests show System to be not in
compliance with minimum FCC standards, Grantee shall pay upon
demand of City all expenses associated with City - required
tests .
SECTION 3 . TWO-WAY CAPACITY
Grantee shall activate and thereafter maintain a two-way
system supported by addressable, state-of-the-art equipment
concurrent with the activation of two-way Subscriber services in
the Ramsey/ Washington Franchise Area.
SECTION 4 . FACILITIES AND STAFF
Subject to 49 U.S .C. ®545, Grantee shall construct, maintain
and continue to provide all facilities and equipment, and all
staff personnel as required by the Ramsey/Washington Area Franchise
Agreement, including, but not limited to, the headend, hubs,
distribution system, studios , equipment and other facilities .
Grantee ' s obligations under the Ramsey/Washington Area Franchise
Agreement for implementing the construction, utilization, System
performance, and maintenance, repair and replacement of these
facilities , including its plans for accommodating future growth and
changing needs and desires , shall be fully and timely performed
only to the extent the obligation affects the operation of
Grantee ' s System in the City.
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SECTION 5 . SPECIAL CHANNEL AND ACCESS REQUIREMENTS
A. The Government access channel may be dedicated as an
emergency channel which may be operated by City.
B. Grantee will provide an audio emergency alert override system
that will permit the interruption by designated City
officials of all audio ( including FM) and video programming,
instructing citizens to switch to the emergency channel or
other appropriate channel (s ) for emergency announcements .
C. Grantee shall provide all access and local origination
channels as provided in the Ramsey/Washington Franchise Area
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except the one ( 1 ) government access channel shall be made
available, at the request of City, as a discrete government
access channel in the City as set forth in the Offering. All
residential Subscribers who receive all or any part of the
total services offered on the System shall also receive all
of said access and local origination channels at no
additional charge. All channels shall be activated upon
System activation and thereafter maintained. Grantee shall
establish rules and regulations prior to System activation
pertaining to the administration of the specially designated
access channels . For purposes of this requirement, the rules
established by Grantee for use in the Ramsey/Washington
Franchise Area are adopted and incorporated herein by
reference . Grantee shall give City written notice of any
change in said rules as soon as the change becomes effective.
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D. Grantee will comply, at a minimum, with the requirements now
or hereafter lawfully adopted regarding access channels .
Such requirements are hereby made a part of this Ordinance
and include the following:
( 1 ) Grantee shall , to the extent of the System ' s available
channel capacity, provide to each of its Subscribers who
receive all or any part of the total services offered on
the System, reception on at least one specially
designated noncommercial public access channel available
for use by the general public on a first come,
nondiscriminatory basis ; at least one specially
designated access channel for use by local educational
authorities ; at least one specially designated access
channel for local government use; and at least one
specially designed access channel available for lease on
a first come, nondiscriminatory basis by commercial and
noncommercial users (the proceeding hereinafter referred
to as the "access channels " ) . Subscribers receiving
only alarm system services or only data transmission
services for computer operated functions shall be exempt
from this requirement . The VHF spectrum shall be used
for at least one of the specially designed noncommercial
access channels required. No charges shall be made for
channel time or playback of prerecorded programming on
at least one of the specially designated noncommercial
access channels . Any fees for use of other access
channels shall be consistent with the goal of affording
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the public a low-cost means of television access .
Access facilities , equipment and/or channel time will be
made available to the general public, any group or
individual resident in City for the production and/or
cablecasting of noncommercial programming free of charge
on a first come, nondiscriminatory basis .
( 2 ) Whenever any of the access channels in the Ramsey/
Washington Franchise Area is in use during eighty
percent ( 80% ) of the weekdays (Monday - Friday) , for
eighty percent ( 80% ) of the time during any consecutive
three ( 3) hour period for six ( 6 ) weeks running, and
there is demand for use of an additional channel for the
same purpose, then at the request of the City, Grantee
shall have six ( 6 ) months in which to provide a new
specially designated access channel for the same purpose
at no additional cost to Subscribers .
( 3 ) Subscribers receiving programs on one or more special
service channels without also receiving Basic Service
may receive only one specially designated composite
access channel composed of the programming on access
channels . This composite channel shall not include
programming from the leased access channel . Subscribers
receiving only alarm system services or only data
transmission services for computer operated functions
shall not be included in this requirement .
E . Grantee shall provide to City within ninety ( 90 ) days of a
written request the equipment stated in the Offering, or the
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substantial equivalent of the equipment as directed by City,
consisting of one ( 1 ) camcorder, monitor, tripod and recorder
at a cost of Three Thousand and No/100 Dollars ( $3 , 000 ) , as
well as the modulator and character generator stated in the
Offering. Pursuant to law, Grantee shall also make available
for public use at least the minimal equipment of the
Ramsey/Washington Franchise Area Franchise Agreement as
stated in the Offering necessary for the production of
programming and playback of prerecorded programs for the
specially designated non-commercial access channels . Grantee
shall also make readily available upon need being shown, the
minimum equipment as stated in the Offering and the
Ramsey/Washington Franchise Area Franchise Agreement
necessary to make it possible to record programs at remote
locations with battery operated portable equipment . Nothing
in this Franchise shall be construed as requiring the
duplication of said equipment.
( 1 ) Need within the meaning of this paragraph shall be
determined by Subscriber petition . Said petitions must
contain the signatures of at least ten percent ( l0o )of
the Subscribers of System, but in no case more than five
hundred ( 500 ) nor fewer than one hundred ( 100 )
signatures .
SECTION 6 . SERVICE TO PUBLIC BUILDINGS AND EDUCATIONAL INSTITUTIONS
Grantee shall provide installation and monthly Basic Service
at no cost to such public and educational institutions located
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within two hundred ( 2.00 ) feet of the Subscriber network as City may
from time to time designate . For public and educational
institutions located more than two hundred ( 200 ) feet from the
Subscriber network, Grantee shall provide monthly Basic Service at
no cost and shall equally share the installation cost with said
entity.
SECTION 7 . REGIONAL CHANNEL
Grantee shall fully comply with the provisions of Minn. Stat .
@238 . 43 regarding a regional channel . The standard VHF Channel 6
is hereby designated for uniform regional channel usage. However,
until the regional channel becomes operational, Grantee may utilize
the standard VHF Channel 6 as it deems appropriate. Use of time on
the regional channel shall be made available without charge by
Grantee .
ARTICLE IV.
SERVICES AND PROGRAMMING,
INTERRUPTION OF SERVICE AND COMPLAINTS
SECTION 1 . SERVICES AND PROGRAMMING
A. Subject to 49 U . S .C . g545 , Grantee shall provide those
services and broad categories of video programming as
specified in its Offering and shall provide City with thirty
( 30 ) days written notice of any channel realignment .
B. City recognizes that services and programming in cable
communications are rapidly changing . Therefore, to insure
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the provision of services and broad categories of video
programming in the best interest of the citizens of City,
Grantee may add or delete services and programming from the
System only after thirty ( 30 ) days written notice to City
provided Grantee has received at least thirty-five ( 35 ) days
notice of any change in the services and programming. Any
such addition or deletion of programming or services will not
require an amendment of this Franchise, but any addition or
deletion of programming will be subject to all terms and
conditions of this Franchise .
C . City and Grantee recognize that Grantee was selected at least
in part on the broad variety of programming that it offered.
Further, Grantee pledges that it will not offer X-rated or
otherwise pornographic or obscene programming that, in the
sole opinion of City, offends the standards of decency of the
City and is otherwise unprotected by the Constitution of the
United States .
SECTION 2 . INTERRUPTION OF SERVICE AND COMPLAINTS
A.
Whenever it is
necessary to shut off or interrupt service,
Grantee shall do so during periods of minimum use of the
System. Unless such interruption is unforeseen and
immediately necessary, Grantee shall use its best efforts
give reasonable notice thereof to Subscribers . All costs
incurred in repairing System and handling complaints shall be
paid by Grantee, and if service is interrupted or
discontinued for a total period of more than twenty-four ( 24 )
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hours in any thirty ( 30 ) day period, Subscribers shall be
credited pro rata for such interruption. The cause of any
such interruption shall be removed and service restored as
promptly as reasonably possible.
B. Grantee shall maintain an office in the Metropolitan Area
area which shall be open during all usual business hours ,
have a listed local telephone, and the office shall be so
operated that complaints and requests for repairs or
adjustments may be received at any time, seven ( 7 ) days per
week.
( 1 ) Notice of this information shall be provided to all new
Subscribers at the time of subscription and to existing
Subscribers annually.
( 2 ) Grantee shall not engage in the sale of television sets
or provide other television repair service, but in the
event such service is required, shall promptly notify
the Subscriber of that need for service.
( 3 ) All complaints by City, Subscribers, or other persons
regarding the quality of service, equipment malfunction,
billing disputes , and any other matters relative to the
System, shall be investigated and responded to by a
service representative of Grantee within twenty-four
( 24 ) hours . All such complaints regarding equipment
malfunctions shall be responded to by a service
representative to Grantee within twenty-four ( 24 ) hours .
If reasonably possible, Grantee shall rectify the cause
of all valid complaints . If a complaint is not
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rectified within seven ( 7 ) days, the complainant may
then file the complaint with City.
(4 ) City and Grantee shall prepare and maintain a record of
all complaints made to them. If at any time after the
filing of a complaint, the City' s chief administrative
officer or advisory body determines , in its sole
discretion, that the complaint represents a failure in
the performance of Grantee pursuant to this Franchise,
City may, in addition to any other remedy available to
it, issue written notice specifying the nature of the
complaint and order Grantee to appear at the next
regularly scheduled Council meeting or at a special
meeting of the Council called for this purpose. At said
Council meeting, Grantee shall explain its failure to
rectify the complaint and show cause why the Council
should not institute default proceedings . Failure by
Grantee to appear may result, at the sole discretion of
City, in the termination of Franchise.
ARTICLE V.
CONSTRUCTION, INITIAL SERVICE AREA,
LINE EXTENSION AND CONSTRUCTION STANDARDS
SECTION 1 . INITIAL SERVICE AREA
Grantee shall construct as the initial service area all areas
containing dwelling units within the City as designated on the
mapappended hereto as Exhibit A, which is incorporated herein and
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made apart hereof . All existing dwelling units , shall receive
service from the System at the same rates and charges . Grantee
shall extend service to any area within or contiguous to the
designated initial service area which was not constructed as part
of the initial service area, which subsequently exceeds a density
of twenty ( 20 ) dwelling units per cable mile or greater, at the
same rates and charges . Access to cable service shall not be
denied to any group of potential residential cable Subscribers
because of the income of the residents of the area in which such
group resides .
SECTION 2 . LINE EXTENSION POLICY
Grantee ' s extension of service to those areas not constructed
as a part of the initial service area shall comply with the
following requirements :
A. In the portions of the line extension area which do not
contain a density of twenty ( 20 ) dwelling units or more per
cable mile, Grantee shall provide cable television on a
cost-sharing arrangement . If any potential Subscriber
requests that the line be extended, Grantee shall calculate
the cost on a time and material basis which shall be prorated
based on the number of Subscribers serviced by the extension.
Grantee shall bear the cost of the first $400 per Subscriber
in the line extension. All Subscribers served by any such
extension will bear an equal share of the remainder of all
costs . If additional Subscribers receive service from the
line extension , they will assume their pro-rated share of the
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line extension cost; and, this assessment will then be
refunded annually on a pro rata basis to any of the original
Subscribers that shared in the original costs of that line
extension. If said Subscriber cannot be located by Grantee,
appropriate rebates will be made to the current Subscribers
of affected dwelling units . In no event will a Subscriber
who partially assumed construction costs be rebated more than
the amount initially assumed by that Subscriber. Once the
line extension is built on the above basis , the normal
installation for drops and monthly rates will apply.
B . If the line extension has been built and exceeds a density of
twenty (20) dwelling units per cable mile contiguous to the
initial service area, Grantee shall rebate all monies paid by
those Subscribers who have assumed line extension costs . In
no event will a Subscriber who partially assumed construction
costs be rebated more than the amount initially assumed by
the Subscriber.
C . Grantee shall provide service through an aerial line
extension no later than six ( 6 ) months from the date of
request and service through an underground line extension no
later than nine ( 9 ) months from the date of request .
D . For installation of service drops longer than two hundred
( 200 ) feet, the resident shall be charged an additional
amount for the installation equal to the incremental increase
of the costs of time and materials for everything longer than
two hundred ( 200 ) feet.
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SECTION 3 . CONSTRUCTION TIMETABLE
A. Within ninety ( 90 ) days after the effective date of the
Franchise, Grantee shall apply for all necessary permits,
licenses , certificates and authorizations which are required
in the conduct of its business , including, but not limited
to, any joint use attachment agreements, microwave carrier
licenses , or any other permits , licenses and authorizations
to be granted by duly constituted regulatory agencies having
jurisdiction over the operation of cable communication
systems, or their associated microwave transmission
facilities .
B. Within ninety ( 90 ) days after obtaining all necessary
permits , licenses , certificates and authorizations , Grantee
shall give written notice thereof to City and commence
construction and installation of System. Grantee shall
construct all areas of the initial service area which contain
dwelling units by September 15 , 1989 , so that persons along
the route of the energized cable will have individual Drops
as desired during the same period of time.
C . Any delays in the construction timetable or commencement of
construction may result in penalties as provided in this
Franchise, and continued delays may result in the termination
of this Franchise and all rights and privileges of Grantee
hereunder.
( 1 ) Grantee shall promptly notify City in writing of all
delays known or anticipated in the construction of
System.
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( 2 ) City may extend the time for beginning construction or
may extend the construction timetable.
SECTION 4 . CONSTRUCTION STANDARDS
A. Grantee shall not open or disturb the surface of any Street,
Sidewalk, or Public Property without first obtaining a permit
from City for which permit City may impose a fee to be paid
by Grantee. Grantee ' s plans for the location of pedestals
shall be prepared in consultation with the City. The lines ,
conduits , cables and other property placed in the Streets,
Public , or private Property pursuant to such permit shall be
located in such part of the Street, Public, or private
Property as shall be determined by City. Grantee shall, upon
completion of any work requiring the opening of any Streets,
Public, or private Property, restore the same, including the
pavement and its grounds to as good a condition as
immediately prior to construction and in a manner and quality
approved by City, and shall exercise reasonable care to
maintain the same thereafter in good condition. Such work
shall be performed with diligence and due care, and if
Grantee shall fail to perform the work promptly after
particular notice of the deficiency, to remove all dirt and
rubbish or to put the Street, Public, or private Property
back into the condition required hereby, City shall have the
right after ten ( 10) business days notice to Grantee to put
the Streets, Public, or private Property back into the
condition required hereby at the expense of Grantee. Grantee
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shall pay to City the reasonable cost of such work done or
performed at such time as it is determined that the Grantee
has failed to comply with the restoration provisions of this
section.
B. All wires , conduits , cable and other property and facilities
of Grantee shall be so located, constructed, installed and
maintained as not to endanger or unnecessarily interfere with
the usual and customary trade, traffic and travel upon, or
other use of, the Streets and Public Property of City.
Grantee shall keep and maintain all of its property in good
condition, order and repair so that the same shall not menace
or endanger the life or property of any person. City shall
have the right to inspect and examine at all reasonable times
and upon reasonable notice the property owned or used, in
part or in whole, by Grantee . Grantee shall keep accurate
maps and records of all of its wires , conduits , cables and
other property and facilities located, constructed and
maintained in the City. Further, Grantee shall, without
charge, furnish copies of such maps and records from time to
time as requested by City.
C . All wires , conduits , cables and other property and facilities
of Grantee, shall be constructed and installed in an orderly
and workmanlike manner. All wires , conduits and cables shall
be installed, where possible, parallel with electric and
telephone lines . Multiple cable configurations shall be
arranged in parallel and bundled with due respect for
engineering considerations .
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D . Grantee shall at all times comply with all applicable laws ,
ordinances , rules , regulations and codes , federal , state and
local . In any event, the installation, operation or
maintenance of System shall not endanger or interfere with
the safety of persons or property in the City.
E . Whenever City shall undertake any public improvement which
affects Grantee ' s equipment or facilities , City shall , with
due regard to reasonable working conditions and with
reasonable notice, direct Grantee to remove its wires ,
conduits , cables and other property located in Streets ,
Public, or private Property. Grantee shall relocate or
protect its wires , conduits , cables and other property at its
own expense .
F . Grantee ' s plans for constructing its System, and the
construction of the System, shall be in accordance with the
following minimum requirements :
( 1 ) Grantee shall construct underground in any area where
all other utility lines are underground.
( 2 ) Grantee shall change from aerial to underground, at its
own expense, in any area where ( i ) all other lines are
hereafter changed from aerial to underground or ( ii ) any
aerial line is changed to underground by the open trench
method and City requests Grantee to share the trench,
and Grantee can share the trench at a cost not to exceed
Grantee ' s pro rata share of the cost of the trenching .
( 3 ) To enable Grantee a reasonable opportunity to change its
wiring from aerial to underground, and also to allow it
29
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to prewire all new multiple dwelling units , subdivisions
or new development areas , City shall provide Grantee
with at least fifteen ( 15 ) days prior written notice of
the following, but in no event shall City have any
liability for failure to provide notice of the
following:
(a) Any changes of which City has knowledge, or which
City may order, regarding a change from aerial to
underground of any telephone or electrical line
within its boundaries .
(b) Any underground trenching that may be pending.
(c ) All subdividers or developers of new subdivisions
and developments shall be notified of the Franchise
and the System.
(d ) All Franchise changes affecting the wiring of the
System.
SECTION 5 . CONDITIONS OF USE
A. Grantee shall not place poles or other fixtures where the
same will interfere with any gas , electric or telephone
fixture, water hydrant or main, or sewer line .
B . Grantee, at the request of any person holding a building
moving permit and with not less than five ( 5 ) days advance
notice, shall temporarily remove, raise or lower its wires ,
conduits and cables . The expense of such temporary removal ,
raising or lower of wires , conduits and cables shall be paid
by person( s ) requesting the same, and Grantee shall have the
authority to require such payment in advance .
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C . Grantee shall have the authority, upon written consent by the
City and to the extent the City has authority to grant the
same, to trim trees upon or overhanging any Street or Public
Property only to the extent reasonably necessary to prevent
the branches of such trees from coming in contact with the
wires , conduits and cables of Grantee. All trimming for the
benefit of Grantee shall be done under the supervision and
direction of City and at the expense of Grantee. Any
activities of the Grantee which are undertaken pursuant to
authority granted under this paragraph are specifically made
subject to the indemnification and insurance provisions of
Article VIII , Section 2 of this Franchise.
D. Nothing contained in this Franchise shall relieve any person,
other than City, from liability arising out of the failure to
exercise reasonable care to avoid injuring the Grantee ' s
facilities while performing any work connected with grading,
regrading or changing the line of any Street or public place
or with the construction or reconstruction of any sewer or
water system.
ARTICLE VI .
SYSTEMS OPERATIONS
SECTION 1 . INFORMATION AVAILABILITY
A. Throughout the term of this Franchise, Grantee shall maintain
books and records in accordance with normal and accepted
bookkeeping and accounting practices for the cable
31
communications industry, and allow for inspection and copying
of them by City at reasonable times at Grantee ' s designated
office . The books and records to be maintained by Grantee
shall include the following:
( 1 ) A record of all requests for service except those
requests subsequently withdrawn;
( 2 ) A record of all Subscriber or other complaints, and the
action taken;
(3 ) A file of all Subscriber contracts; and
( 4 ) Financial records .
B. City shall give Grantee at least twenty-four ( 24 ) hours
notice before making inspections of any books or records of
Grantee.
C. Grantee shall file with City, at the time of its annual
payment of the franchise fee as described in this Franchise,
a brief report showing the basis for the computation and a
copy of Grantee ' s annual report filed with the franchising
authority for the Ramsey/Washington Franchise Area.
D. City, its agents and representatives shall have authority to
arrange for and conduct an audit of and copy the books and
records of Grantee . The City and Grantee shall establish
reasonable procedures to protect the confidentiality of
information. Grantee shall first be given five ( 5 ) days
notice of the audit request, the description of and purpose
for the audit, and a description, to the best of City ' s
ability, of the books , records and documents it wants to
review. Grantee shall receive at least twenty-four ( 24 )
32
hours notice before an actual inspection of such books ,
records and documents .
SECTION 2 . SERVICE CONTRACT
A. The form and content of the service contract to be used by
Grantee shall be the same as the service content used in the
Ramsey/Washington Franchise Area. Grantee shall provide City
with a minimum of thirty ( 30 ) days written notice of any
change in the approved service contract.
B. Grantee shall have authority to promulgate such rules,
regulations , terms and conditions governing the conduct of
its business as shall be reasonably necessary to enable
Grantee to exercise its rights and perform its obligations
under this Franchise and to assure uninterrupted service to
each and all of its Subscribers ; provided, however, that such
rules , regulations , terms and conditions shall not be in
conflict with the provisions of this Franchise, ordinances of
City, and laws of the State of Minnesota or the United
States .
C . Each Subscriber shall be provided with instructions on filing
complaints or otherwise obtaining information or assistance
from Grantee .
B. All items described in this section shall be provided to each
new Subscriber at the time a contract is entered into or
service begun , and to all existing Subscribers not less than
once each year.
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E . The Subscriber contract may be terminated by the Subscriber
at the Subscriber ' s option at any time, with no penalty to
Subscriber.
SECTION 3 . SUBSCRIBER PRACTICES
A. There shall be no charge for disconnection of any
installation or outlet. If any Subscriber fails to pay a
properly due monthly Subscriber fee, or any other properly
due fee or charge, Grantee may disconnect the Subscriber' s
service outlet, provided, however, that such disconnection
shall not be effected until after the later of ( i) forty-five
(45 ) days after the due date of said delinquent fee or charge
or ( ii) ten ( 10 ) days after delivery to Subscriber of written
notice of the intent to disconnect . If a Subscriber pays
before expiration of the later of ( i) or ( ii) , Grantee shall
not disconnect. After disconnection, upon payment in full of
the delinquent fee or charge and the payment of a
reconnection charge, Grantee shall promptly reinstate the
Subscriber' s cable service.
B. Refunds to Subscribers shall be made or determined in the
following manner:
( 1) If Grantee fails , upon request by a Subscriber, to
provide any service then being offered, Grantee shall
within sixty ( 60 ) days of a Subscriber' s request refund
all deposits or advance charges paid for the service in
question by said Subscriber. This provision does not
alter Grantee ' s responsibility to Subscribers under any
34
separate contractual agreement or relieve Grantee of any
other liability.
( 2 ) If any Subscriber terminates any monthly service because
of failure of Grantee to render the service in
accordance with Franchise, Grantee shall refund to such
Subscriber the proportionate share of the charges paid
by the Subscriber for the services not received. This
provision does not relieve Grantee of liability
established in other provisions of this Franchise.
C . If any Subscriber terminates any monthly service prior to the
end of a prepaid period, a proportionate amount of any
prepaid Subscriber service fee, using the number of days as a
basis , shall be refunded to the Subscriber by Grantee.
D. Continued failure by Grantee to provide services required by
this Franchise may, in the discretion of City, be cause for
imposition of a penalty or termination of this Franchise .
E . City reserves the right consistent with 49 U. S .C. 8552 to
adopt and enforce consumer protection laws .
SECTION 4 . FRANCHISE FEE, RATES AND CHARGES
A. Franchise Fee .
( 1 ) Throughout the term of this Franchise, Grantee shall pay
to City, within sixty ( 60 ) days after the end of each
fiscal year of Grantee, an annual Franchise fee of five
percent ( 5% ) of all Gross Revenues . No payment will be
allowed of any Franchise fee that is different from five
percent ( 5% ) , other than the filing fee and payment
35
required of the successful applicant as established by
City to recover the costs of franchising and any other
additional payments which are required by the terms of
this Franchise. Grantee agrees to support any waiver
required by law for the established Franchise fee. The
annual fee may be subject to renegotiation at such time
as federal or state authorities no longer regulate the
amount of the fee. If Grantee and City do not agree in
renegotiations, the Franchise fee shall remain
unchanged.
( 2 ) Payment of the Franchise Fee will be made with an
itemization of the Gross Revenues .
B. Rates and Other Charges :
( 1 ) Grantee, as a condition precedent to its acceptance of
this Franchise, hereby knowingly and voluntarily
consents to maintain uniform Subscriber rates and
charges in City as Grantee provides in the Ramsey/
Washington Franchise Area. A list of Grantee ' s current
rates and charges shall be maintained on file with the
City Administrator and shall be available for public
inspection. Grantee shall give City written notice of
anychange in a rate or charge no less than thirty30
g g ( )
days prior to the effective date of the change .
( 2 ) Service requests for maintenance or repair of Grantee ' s
property shall be performed at no charge to a
Subscriber. If such maintenance or repair is required
as a result of damage caused by Subscriber, Grantee may
36
charge to the Subscriber as a maximum its direct costs
for material and labor for service calls to Subscriber ' s
home .
( 3 ) Rates for new or additional services shall be
established by Grantee after thirty ( 30 ) days written
notice to City according to the terms of this Franchise.
C. Periodic Reviews and Technological Update of System: The
field of cable communications is a relatively new and rapidly
changing one which shall no doubt see many regulatory,
technical, financial, marketing and legal changes during the
terms of the Franchise. Therefore, in order to provide for a
maximum degree of flexibility in this Franchise, and to help
achieve a continued advanced and modern system, the following
provisions will apply:
( 1 ) City may participate and provide input in any system
performance evaluation session conducted by the
franchising authority for the Ramsey/Washington
Franchise Area at any time during the term of this
Franchise or as required by federal or state law.
( 2 ) All evaluation sessions shall be open to the public and
notice of sessions published in the same way as a legal
notice. Grantee shall notify its Subscribers of all
evaluation sessions by announcement on at least two
Basic Service channels of the System between the hours
of 7 : 00 p.m. and 9 :00 p.m. for five ( 5 ) consecutive days
preceding each session.
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491
( 3 ) During a review and evaluation by the franchising
authority for the Ramsey/Washington Franchise Area,
Grantee shall fully cooperate with City and shall
provide without cost such information and documents as
City may request to participate and provide input in the
evaluation.
( 4 ) Grantee shall exercise its best efforts to maintain a
modern state-of-the-art System which is comparable to
other operating cable television systems similarly
situated. Grantee shall modify or upgrade the System in
City, or provide additional Subscriber services in City,
to the same extent Grantee implements such a change in
the Ramsey/Washington Franchise Area system.
SECTION 5 . FRANCHISE RENEWAL
A. This Franchise shall be automatically renewed at any time
prior to the expiration of this Franchise provided Grantee
has received a renewal of its Franchise Agreement and Cable
Communications Ordinance in the Ramsey/Washington Franchise
Area in accordance with then existing applicable law, unless
the City determines not to reissue the Franchise to Grantee
or desires to consider additional applicants for a franchise .
B. City shall not be liable to Grantee for any failure by the
Ramsey/Washington Franchise Area to approve any requested
renewal of the Ramsey/Washington Franchise Area Franchise
Agreement and Cable Communications Ordinance and City shall
have no obligation to assist Grantee in obtaining a renewal
of the same .
38
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C . Renewal of this Franchise shall be for a term concurrent with
the renewal term of the Franchise Agreement and Cable
Communications Ordinance of the Ramsey/Washington Franchise
Area and may be for any length of time, but not more than
fifteen ( 15 ) years, unless otherwise permitted by federal or
state law.
ARTICLE VII .
[Reserved]
ARTICLE VIII .
INDEMNIFICATION, INSURANCE AND LETTER OF CREDIT
SECTION 1 . GENERAL
A. All rights of City pursuant to indemnification, insurance, or
Letter of Credit, as provided for by this Franchise, are in
addition to all other rights the City may have under this
Franchise or any other ordinance, rule, regulation or law.
B. The exercise or failure to exercise by City of any rights
pursuant to any section of this Franchise shall not affect in
any way the right of City to subsequently exercise any such
rights or any other right of City under this Franchise or any
other ordinance, rule, regulation or law.
39
4141
SECTION 2 . INDEMNIFICATION AND INSURANCE
A. Grantee shall fully indemnify, defend and hold harmless ,
City, its officers, boards , commissions , elected officials ,
agents and employees against any and all costs , damage,
expense, claims , suits, actions , liability and judgments for
damages , including but not limited to, expenses for legal
fees , whether suit be brought or not, and disbursements and
liabilities incurred by City related to this Franchise or the
System in connection with:
( 1 ) Damage to persons or property, in any way arising out of
or through the acts or omissions of Grantee, their
respective servants , officials , agents , or employees or
to which Grantee ' s negligence or that of their
respective servants , agents , officials or employees
shall in any way contribute;
( 2 ) Any claim for invasion of the right of privacy, for
defamation of any person, firm or corporation, or the
violation or infringement of any copyright, trademark,
trade name, service mark or patent, or of any other
right of any person, firm or corporation, except claims
because of City ' s own progranuning; or
( 3 ) Grantee ' s failure to comply with the provisions of this
Franchise, any federal , state or local law, ordinance or
regulation applicable to Grantee or the System.
B. Grantee shall release, discharge, acquit, and absolve City in
connection with any and all claims which Grantee may now or
hereafter have or claim to have against City, its servants ,
40
agents , employees or officials , due to or arising out of
damage to any of Grantee ' s property or equipment, including,
without limitation, resulting or consequential loss of
income, injury to reputation, or any other resulting or
consequential damages of any kind, caused by or resulting
from acts or omissions of City or any of its servants , agents
employees or officials . Grantee shall have no recourse
whatsoever against City or its servants , agents , employees or
officials for any loss , costs, expense or damage arising out
of any provision or requirement of the Franchise or because
of the enforcement of this Franchise.
C . If suit be brought or threatened against City, either
independently or jointly with Grantee, or with any person or
municipality, Grantee, upon notice given by City, shall
defend City at the cost of Grantee, and if final judgment is
obtained against City, either independently or jointly with
Grantee, or any other defendants, Grantee shall indemnify
City and pay such judgment with all costs and satisfy and
discharge the same.
D. City reserves the right to cooperate with Grantee and
participate in the defense of any litigation either through
intervention or otherwise . Grantee shall pay upon receipt of
written demand from City, all expenses incurred by City in
defending itself with regard to any matters in this section.
These expenses shall include, but are not limited to,
attorneys ' fees , and the reasonable value of services (as
determined by City) rendered by City or any employees , agents
or representatives of City.
41
41191
SECTION 3 . INSURANCE
A. Grantee shall maintain liability insurance covering its
obligations of indemnification provided for herein or as a
result of the exercise of this Franchise covering both the
City and Grantee and shall maintain said insurance during the
entire term of this Franchise in the minimum amount of:
( 1 ) $500, 000 for property damage to any one person;
( 2 ) $2, 000,000 for property damage in any one act or
occurrence;
( 3 ) $1, 000 , 000 for personal injury to any one person; and
(4 ) $2 , 000, 000 for personal injury in any one act or
occurrence.
B. Such insurance shall be with a company mutually acceptable to
Grantee and City. Such insurance policy with written
evidence of payment of required premiums shall be filed with
City at the time of acceptance of this Franchise. Grantee
shall immediately give notice to City of any threatened or
pending litigation affecting this insurance .
C. Neither the provisions of this section nor any damages
recovered by City or any individual shall be construed to, or
shall limit the liability of Grantee .
D. No recovery by City of any sum by reason of the Letter of
Credit required in this Franchise shall be any limitation
upon the liability of Grantee to City under the terms of this
section, except that the sum so received by City from such
Letter of Credit shall be deducted from a recovery by City
under this section, if for the same act or occurrence .
42
PFP
E . All insurance policies maintained pursuant to this Franchise
shall contain the following endorsement :
It is hereby understood and agreed that this insurance
policy may not be cancelled nor may a refusal to renew
become effective until sixty ( 60 ) days after receipt by
City by registered mail , of written notice of such
intention to cancel or not to renew.
SECTION 4 . LETTER OF CREDIT
A. At the time of acceptance of this Franchise, Grantee shall
deliver to City an irrevocable and unconditional Letter of
Credit, in a form and substance acceptable to City, from a
National or State Bank approved by City in the amount of
Twenty-Five Thousand and No/l00 Dollars ( $25 , 000 . 00 ) . Upon
completion of construction of the System in the initial
service area, Grantee shall provide written notice to City.
Within thirty ( 30) days of receipt of notice of completion of
construction, City shall give written notice to Grantee
indicating whether City agrees the construction is complete
or specifying those items of construction which City deter-
mines are not complete. At such time as City and Grantee
mutually agree that construction of the System in the initial
service area is complete, Grantee shall provide to City a
replacement Letter of Credit in the amount of Five Thousand
and No/l00 Dollars ( $5 , 000 . 00 ) . If at any time Grantee
undertakes construction of the System in City, by way of a
line extension or otherwise, with a projected cost in excess
43
of One Hundred Thousand and No/100 Dollars ( $100, 000 . 00 ) ,
Grantee shall be required to provide City a Letter of Credit
in the amount of Fifteen Thousand an No/100 Dollars
( $15 , 000 . 00 ) during the term of said construction, which
shall thereafter be replaced by a Letter of Credit in the
amount of Five Thousand and No/100 Dollars ( $5 , 000 . 00) upon
completion of the additional construction. The notice and
mutual agreement provisions of this paragraph shall apply in
considering a reduction in the amount of the Letter of Credit
for any such additional construction.
B. The Letter of Credit shall provide that funds will be paid to
City, upon written demand, and in an amount determined by
City in payment for penalties charged pursuant to this
section, in payment for any monies owed by Grantee pursuant
to its obligations under this Franchise, or in payment for
any damage incurred as a result of any acts or omissions by
Grantee pursuant to this Franchise .
C. In addition to recovery of any monies owed by Grantee to City
or damages to City as a result of any acts or omissions by
Grantee pursuant to the Franchise, City in its sole
discretion may charge to and collect from the Letter of
Credit the following penalties :
( 1 ) For failure to complete System construction in
accordance with Grantee ' s initial service area plan,
unless City approved the delay, the penalty shall be
Five Hundred Dollars ( $500 . 00 ) per day for each day, or
part thereof, such failure occurs or continues .
44
( 2 ) For failure to provide data, documents , reports or
information or to cooperate with City during an
application process or System review, the penalty shall
be One Hundred Dollars ( $100 . 00 ) per day for each day,
or part thereof, such failure occurs or continues .
( 3) For failure to comply with any of the provisions of this
Franchise for which a penalty is not otherwise
specifically provided pursuant to this paragraph C, the
penalty shall be One Hundred Dollars ( $100 . 00) per day
for each day, or part thereof , such failures occurs or
continues .
( 4 ) For failure to test, analyze and report on the
performance of the System following a request by City,
the penalty shall be One Hundred Dollars ( $100 . 00) per
day for each day, or part thereof, such failure occurs
or continues .
(5 ) For failure by Grantee to modify the System or to
provide additional services within one hundred eighty
( 180) days after such modification is required by this
Franchise under Article VI , Section 4 , paragraph C(4 ) ,
the penalty shall be Five Hundred Dollars ( $500 . 00) per
day for each day, or part thereof, such failure occurs
or continues .
( 6 ) Forty-five (45 ) days following notice from City of a
failure of Grantee to comply with construction,
operation or maintenance standards, the penalty shall be
Five Hundred Dollars ( $500 . 00 ) per day for each day, or
part thereof, such failure occurs or continues .
45
( 7 ) For failure to provide the services Grantee has
proposed, including but not limited to the
implementation and the utilization of the access
channels and the making available for use of the
equipment and other facilities , the penalty shall be One
Hundred Dollars ( $100 . 00 ) per day for each day, or part
thereof, such failure occurs or continues .
( 8 ) Each violation of any provision of this Franchise shall
be considered a separate violation for which a separate
penalty can be imposed.
D. Exclusive of the contractual penalties set out above in this
section, a violation of any provision of this Franchise is a
misdemeanor.
E . Whenever City finds that Grantee has violated one or more
terms , conditions or provisions of this Franchise, a written
notice shall be given to Grantee informing it of such
violation. At any time after thirty ( 30 ) days following
local receipt of notice, provided Grantee remains in
violation of one or more terms , conditions or provisions of
this Franchise, in the sole opinion of City, City may draw
from the Letter of Credit all penalties and other monies due
City from the date of the local receipt of notice .
F . Whenever a penalty has been assessed , Grantee may, within
thirty ( 30 ) days of local receipt of notice, notify City that
there is a dispute as to whether a violation or failure has ,
in fact, occurred . Such notice by Grantee to City shall
specify with particularity the matters disputed by Grantee .
46
( 1 ) City shall hear Grantee ' s dispute at the next regularly
scheduled Council meeting. City shall supplement the
Council decision with written findings of fact .
( 2 ) Upon determination by City that no violation has taken
place, City shall refund to Grantee without interest all
monies drawn from the Letter of Credit by reason of the
alleged violation.
G. If City draws upon the Letter of Credit, Grantee shall
replace the same within fifteen ( 15 ) days and shall deliver
to City a like replacement Letter of Credit for the
applicable amount provided in paragraph A of this section as
a substitution of the previous Letter of Credit .
H. If any Letter of Credit is not so replaced, City may draw on
said Letter of Credit for the whole amount thereof and hold
the proceeds , without interest, and use the proceeds to pay
costs incurred by City in performing and paying for any or
all of this obligations , duties and responsibilities of
Grantee under this Franchise that are not performed or paid
for by Grantee pursuant hereto, including attorneys ' fees
incurred by the City in so performing and paying. The
failure to replace the Letter of Credit may also, at the
option of the City, be deemed a default by Grantee under this
Franchise . The drawing on the Letter of Credit by City, and
use of the money so obtained for payment or performance of
the obligations , duties and responsibilities of Grantee which
are in default, shall riot be a waiver or release of such
default .
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I . The collection by City of any damages , monies or penalties
from the Letter of Credit shall not affect any other right or
remedy available to City, nor shall any act, or failure to
act, by City pursuant to the Letter of Credit be deemed a
waiver of any right of City pursuant to this Franchise or
otherwise .
ARTICLE IX.
DEFAULT
SECTION 1 . NOTICE AND DEFAULT
A. City shall give written notice of default to Grantee if City,
in its sole discretion, determines that Grantee has :
( 1 ) Violated any material provision of this Franchise or the
acceptance hereof, or any rule, order, regulation or
determination of the City, state or federal government,
not in conflict with this Franchise;
( 2 ) Attempted to evade any provision of this Franchise or
the acceptance hereof;
( 3 ) Practiced any fraud or deceit upon City or Subscribers ;
( 4 ) Made a material misrepresentation of fact in the
application for or negotiation of the Franchise; or
( 5 ) Incurred a six ( 6 ) month or more delay in the
construction schedule .
B. If Grantee fails to cure such default within thirty ( 30 ) days
after the giving of such notice, or if such default is of
such a character as to require more than thirty ( 30 ) days
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within which to cure the same, and Grantee fails to commence
to cure the same, within said thirty ( 30 ) day period and
thereafter fails to use reasonable diligence, in City' s
reasonable opinion, to cure such default as soon as possible,
then and in any event, such default shall be a substantial
breach of this Franchise and City, at its option may elect to
either cure the default or terminate and cancel this
Franchise and all rights and privileges of this Franchise as
follows :
( 1 ) City may cure any default and all sums expended by City,
including attorneys ' fees incurred in curing such
default, whether suit be brought or not, with interest
thereon at rate per annum of two percent ( 2% ) in excess
of the then Prime Rate, shall be paid by Grantee to
City, upon demand, and failure to so pay upon demand
likewise may be deemed by City to be a default under
this Franchise.
( 2 ) City may place the issue of revocation and termination
of the Franchise before the Council at a regular or
special meeting of the City Council . If City decides
there is cause or reason to terminate, the following
procedure shall be followed:
(a ) City shall provide Grantee with a written notice of
City' s intention to terminate the Franchise and the
reason or cause for proposed termination . City
shall allow Grantee a minimum of thirty ( 30 ) days
subsequent to receipt of the notice in which to
correct the default .
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(b) Grantee shall be provided with an opportunity to be
heard at a public hearing prior to any decision to
terminate this Franchise .
(c ) In the event that City determines to terminate this
Franchise, the Grantee shall have a period of
thirty ( 30 ) days , beginning the date next following
written notice to Grantee of such decision, within
which to file an appeal with a court of competent
jurisdiction. During such thirty ( 30) day period
and if an appeal is taken, the Franchise shall
remain in full force and effect, unless the term
thereof sooner expires . Grantee shall pay all
costs of any unsuccessful appeal, including
reasonable attorneys ' fees incurred by City.
(d) If a court of competent jurisdiction approves the
action of City, the Franchise shall terminate
immediately. If a court of competent jurisdiction
disapproves of the action of City, the Franchise
shall remain in full force and effect for the full
term hereof unless sooner terminated in accordance
with the provisions hereof , or applicable law.
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ARTICLE X.
FORECLOSURE, RECEIVERSHIP AND ABANDONMENT
SECTION 1 . FORECLOSURE
Upon the foreclosure or other judicial sale of all or part of
the System, Grantee shall notify City of such fact and such
notification shall be treated as a notification that a change in
control of Grantee has taken place, and the provisions of this
Franchise governing the consent to transfer or change in ownership
shall apply.
SECTION 2 . RECEIVERSHIP
City shall have the right to cancel this Franchise one
hundred twenty ( 120 ) days after the appointment of a receiver or
trustee to take over and conduct the business of Grantee, whether
in receivership, reorganization, bankruptcy or other action or
proceeding, unless such receivership or trusteeship shall have been
vacated prior to the expiration of said one hundred twenty ( 120 )
days , or unless :
(a) Within one hundred twenty ( 120 ) days after election or
appointment, such receiver or trustee shall have fully
complied with all the provisions of this Franchise and
remedied all defaults hereunder; and
(b) Such receiver or trustee, within said one hundred twenty
( 120 ) days , shall have executed an agreement with City
duly approved by the Court having jurisdiction in the
premises, whereby such receiver or trustee assumes and
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agrees to be bound by each and every provision of this
Franchise .
SECTION 3 . ABANDONMENT
Grantee may not abandon any portion of System without having
given not less than three ( 3 ) months prior notice to City.
Further, Grantee may not abandon any portion of the System without
compensating City for damages resulting from the abandonment. The
amount of damages resulting from abandonment and due City shall be
determined in the sole discretion of City. An abandonment of any
portion of the System as determined in the sole discretion of City
shall be a cause for termination of this Franchise by City.
ARTICLE XI .
PURCHASE OF SYSTEM
SECTION 1 . GENERAL
A. If at any time Grantee offers System for sale, City shall
have the right to purchase System. If at any time Grantee
receives a bona fide purchase offer for the System, which
Grantee is willing to accept, a complete copy of such offer
shall promptly be given to City and City shall have the right
to purchase the System according to the terms of that offer.
City shall exercise such right by submitting to Grantee,
within sixty ( 60 ) days after City ' s actual receipt of the
bona fide offer, notice that City desires to purchase the
System pursuant to said offer. If City does not exercise
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such right the System may be sold, but only on the terms
submitted to City. If any changes are made in the purchase
offer given to City, such purchase offer, as so changed,
shall again be given to City and City shall have sixty ( 60 )
days from actual receipt by City of the Offer, as changed,
within which to exercise its right to purchase the System
pursuant to the offer, as changed, all as above provided. If
City does not exercise its right to purchase the System
pursuant to any offer given to City pursuant to this
paragraph, and the System is not sold to the buyer on the
terms set out in the offer given to City, then the right of
City to purchase the System shall continue, and all
subsequent purchase offers shall be given to City pursuant to
this paragraph. Also, the City' s right to purchase pursuant
to this paragraph shall survive every sale to a buyer and
shall continue to be binding upon every buyer of the System.
B. Upon forfeiture, revocation or termination of this Franchise,
or at the normal expiration of the Franchise term, City shall
have the right to purchase the System. Such right shall be
exercised upon written notice to Grantee within six ( 6 )
months after the occurrence of any such event .
SEC`T'ION 2 . PROCEDURES
In the event City elects to exercise its right to purchase
the System as provided in Section lB of this Article, the following
shall then apply:
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A. City and Grantee shall negotiate all terms and conditions of
the purchase of the System.
B. If City and Grantee cannot agree upon the terms and
conditions of the purchase, City shall have the right to
proceed to arbitration. Arbitration shall commence and
proceed according to applicable Minnesota law except as
follows :
( 1 ) The parties shall, within fifteen ( 15 ) days of City' s
decision to proceed to arbitration, appoint one
arbitrator each who is experienced and knowledgeable in
the purchase and valuation of business property.
Arbitrators shall each agree upon the selection of a
third arbitrator, similarly qualified, within fifteen
( 15 ) days after appointment of the second arbitrator.
( 2 ) Within thirty ( 30 ) days after appointment of all
arbitrators and upon ten ( 10 ) days written notice to
parties , the arbitrators shall commence a hearing on the
terms and conditions of the purchase in dispute.
( 3 ) The hearing shall be recorded and may be transcribed at
the request and expense of either party. All hearing
proceedings, debates and deliberations shall be open to
the public and at such times and places as contained in
the notice or as thereafter publicly stated in the order
to adjourn.
( 4 ) The arbitration panel shall be required to determine the
purchase price of the System according to the standards
established in paragraph C below.
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( 5 ) At the close of the hearings and within thirty ( 30 )
days , the arbitrators shall prepare written findings and
make a written decision agreed upon by a majority of the
arbitrators which shall be served by mail upon City and
Grantee .
( 6 ) The decision of a majority of the arbitrators shall be
binding upon both parties except that City may, in its
sole discretion and without any penalty or cost to City
of any kind, withdraw its offer to purchase within
ninety ( 90 ) days of receipt of the final decision of a
majority of the arbitrators .
( 7 ) Either party may seek judicial relief to the extent
authorized under Minnesota Statutes , p572 . 09 and §572 . 19
as the same may be amended, and in addition, under the
following circumstances :
( a) A party fails to select an arbitrator;
( b) The arbitrators fail to select a third arbitrator;
(c ) One or more arbitrator is unqualified;
(d) Designated time limits have been exceeded;
(e) The arbitrators have not proceeded expeditiously;
or
( f ) Based upon the record the arbitrators abused their
discretion.
( 8 ) In the event a Court of competent jurisdiction
determines the arbitrators have abused their discretion,
it may order the arbitration procedure repeated and
issue findings , orders and directions , with costs of
suit to be awarded to the prevailing party.
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( 9 ) Cost of arbitration shall be borne equally. Reasonable
attorneys ' fees shall be borne by the party who retains
an attorney.
C . In the event of forfeiture, revocation or termination, the
purchase price of the System shall be the fair market value
of material and equipment in place . Goodwill shall not be
included in the purchase price of the System.
D. In the event City is purchasing upon normal expiration of the
Franchise, the purchase price shall be the value of an
ongoing business .
E . Grantee expressly waives its rights , if any, to relocation
costs that might otherwise be provided by law.
F . The date of valuation shall be the date City makes a written
offer for the System.
ARTICLE XII .
MISCELLANEOUS
SECTION 1 . TRANSFER OF OWNERSHIP OR CONTROL
A. This Franchise shall not be assigned or transferred, either
in whole or in part, or leased, sublet or mortgaged in any
manner, nor shall title thereto, either legal or equitable or
any right, interest or property therein, pass to or vest in
any person without the prior written consent of City.
Further, Grantee shall not sell or transfer any stock or
ownership interest so as to create a new controlling interest
except with the consent of City. The transfers described in
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this paragraph shall, in the sole discretion of City, be
considered a sale or transfer of Franchise within the meaning
and intent in the following paragraph.
B . Any sale or transfer of Franchise, including a sale or
transfer by means of fundamental corporate change, requires
the written approval of City. Any sale or transfer of
Franchise shall be subject to applicable law. The parties to
the sale or transfer of Franchise shall make a written
request to City of its consent . City shall reply in writing
within thirty ( 30) days of actual receipt of the request and
shall indicate its approval of the request subject to
paragraph C of this Section.
C . Except as provided in paragraph D of this Section, any sale
or transfer of Franchise, including a sale or transfer by
means of a fundamental corporate change, shall be
automatically approved by City provided Grantee has obtained
the consent of the franchising authority in the
Ramsey/Washington Franchise Area to the sale or transfer of
the Ramsey/Washington Franchise Area Franchise Agreement and
Cable Communications Ordinance in accordance with the
existing applicable laws .
D. City shall not be liable to Grantee or any proposed
transferee for any failure by the franchising authority in
the Ramsey/Washington Franchise Area to approve any requested
approval for the sale or transfer of the Ramsey/Washington
Franchise Area Franchise Agreement and Cable Communications
Ordinance and City shall have no obligation to assist Grantee
in obtaining the same .
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E . The parties to the sale or transfer of only this Franchise,
without the inclusion of the System in which at least
substantial construction has commenced, shall be required to
establish to the sole satisfaction of City that the sale or
transfer of only this Franchise is in the public interest
prior to any automatic approval becoming effective.
F. For purposes of this section, a fundamental corporate change
means any sale or transfer of the stock of a corporation
which results in a change of controlling interest or the sale
or transfer of all or a majority of a corporation' s assets,
merger ( including a parent and its subsidiary corporation) ,
consolidation or creation of a subsidiary corporation.
G. The word "control" , or the phrase "controlling interest" , as
used herein, is not limited to major stockholders, but
includes actual working control in whatever manner exercised.
As a minimum, "control" , as used herein, means a legal or
beneficial interest (even though actual working control does
not exist) of a least five (5% ) percent . Every change,
transfer or acquisition of control of Grantee shall make the
Franchise subject to cancellation unless and until City shall
have consented in writing thereto.
H. In the absence of extraordinary circumstances , City will not
be deemed to have automatically approved any transfer or
assignment of the Franchise prior to substantial completion
of construction of System in the initial service area .
I . In no event shall a transfer or assignment of ownership or
control be approved without transferee becoming a signator to
this Franchise .
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J. Any transferee shall be subordinate to any right, title or
interest of City.
SECTION 2 . REMOVAL AFTER TERMINATION OR REVOCATION
A. At the expiration of the terns for which this Franchise is
granted, or upon its revocation or termination, as provided
for herein, City shall have the right to require Grantee to
remove, at Grantee ' s expense, all or any portion of the
System from all Streets, Public or private Property within
City. In so removing the System, Grantee shall refill and
compact at its own expense any excavation that shall be made
by it and shall leave all Streets , Public and private
Property in as good a condition as that prevailing prior to
Grantee ' s removal of the System, and without affecting,
altering or disturbing in any way electric, telephone or
other utility cables , wires or attachments . City shall have
the right to inspect and approve the condition of such
Streets , Public and private Property after removal . The
Letter of Credit, insurance, indemnity and penalty provisions
of this Franchise shall remain in full force and effect
during the entire term of removal .
B. If, in the sole discretion of City, Grantee has failed to
commence removal of System, or such part thereof as was
designated by City, within thirty ( 30 ) days after written
notice of City' s demand for removal is given, or if Grantee
has failed to complete such removal within six ( 6 ) months
after written notice of City ' s demand for removal is given ,
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City shall have the right to exercise one of the following
options :
( 1 ) Declare all right, title and interest to the System to
be in City with all rights of ownership including, but
not limited to, the right to operate the System or
transfer the System to another for operation by it.
Insurance and Letter of Credit proceeds may be used to
remove any encumbrance on the System.
(2 ) Declare the System abandoned and cause the System, or
such part thereof as City shall designate, to be removed
at no cost to City. The cost of said removal shall be
recoverable from the Letter of Credit, insurance,
indemnification and penalties provided for in this
Franchise, or from Grantee directly.
C. Any portion of the System not designated by City for removal
shall belong to and become the property of City without
payment to Grantee and Grantee shall execute and deliver such
documents, as City shall request, in form and substance
acceptable to City, to evidence such ownership by City.
SECTION 3 . WORK PERFORMED BY OTHERS
A. Grantee shall give notice to City specifying the names and
addresses of any other entity, other than Grantee, which
performs services pursuant to this Franchise, provided,
however, that all provisions of this Franchise remain the
responsibility of Grantee.
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B . All provisions of this Franchise shall apply to any
subcontractor or others performing any work or services
pursuant to the provisions of this Franchise .
SECTION 4 . GENERAL PROVISION ON RIGHTS AND REMEDIES
A. All rights and remedies given to City by this Franchise shall
be in addition to and cumulative with any and all other
rights or remedies, existing or implied, now or hereafter
available to City at law or in equity, and such rights and
remedies shall not be exclusive, but each and every right and
remedy specifically given by this Franchise or otherwise
existing or given may be exercised from time to time and as
often and in such order as may be deemed expedient by City,
and the exercise of one or more rights or remedies shall not
be deemed a waiver of the right to exercise at the same time
or thereafter any other right or remedy. No delay or
omission of City in the exercise of any right or remedy shall
impair any such right or remedy, nor shall any such delay or
omission be construed to be a waiver of or acquiescence to
any default. The exercise of any such right or remedy by
City shall not release Grantee from its obligations , or any
liability, under this Franchise .
B . In addition to all other remedies granted or available to
City, City shall be entitled to the restraint by injunction
of the violation, or attempted or threatened violation, by
Grantee of any terms or provisions of this Franchise, or to a
decree compelling specific performance by Grantee of any term
or provision of this Franchise .
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SECTION 5 . APPLICABLE LAWS AND COURT DECISIONS : SEVERABILITY
A. This Franchise shall at all times be in compliance with
federal , state and local law.
B. Grantee and City shall , at all times , comply with all laws ,
ordinances and regulations of federal , state and City
government relating to System and this Franchise, as they
become effective.
C . If any law, ordinance or regulation shall require or permit
Grantee to perform any service or shall prohibit Grantee from
performing any service which may be in conflict with the
terms of this Franchise, then as soon as possible following
knowledge thereof, Grantee shall notify City of the point of
conflict believed to exist between such law, ordinance or
regulation of this Franchise .
D. If City determines that any provision of this Franchise is
effected by such law, ordinance or regulation, City and
Grantee shall amend, modify, alter or repeal any of the
provisions of this Franchise to such reasonable extent as may
be necessary to carry out the intent and purpose of this
Franchise .
E . To the extent any provision of the Offering is not
specifically set out in this Franchise or not validly
incorporated herein by reference , City from time to time may
amend this Franchise to include such provision effective as
of the date of commencement of the Franchise term or any such
rule effective as of the date of commencement of the
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Franchise term or adoption of the rule, which is later.
Grantee, by acceptance of this Franchise, consents to and
agrees to be bound by any such amendments .
F . If any term, condition or provision of this Franchise or the
application thereof to any person or circumstance shall , to
any extent, be held to be invalid or unenforceable, the
remainder hereof and the application of such term, condition
and provision to persons and circumstances other than those
as to whom it shall be held invalid or unenforceable shall
not be affected thereby, and this Franchise and all the
terms, provisions and conditions hereof shall , in all
respects , continue to be effective and to be complied with,
subject to the rights of City as delineated in paragraph D of
this Section.
SECTION 6 . GRANTEE ACKNOWLEDGMENT OF VALIDITY OF FRANCHISE
Grantee acknowledges that it has had an opportunity to review
the terms and conditions of this Franchise and that under current
law Grantee believes that said terms and conditions are not
unreasonable or arbitrary, and that Grantee believes the City has
the power to make the terms and conditions contained in this
Franchise .
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ARTICLE XIII .
ADMINISTRATION AND ADVISORY BODY
SECTION 1 . ADMINISTRATION
The City' s chief administrative officer or such other person
or persons as designated by the City shall be responsible for the
continuing administration of this Franchise. The administrator of
this Franchise may be changed by City from time to time by written
notice given to Grantee.
SECTION 2 . ADVISORY BODY
City may appoint an advisory body to monitor the performance
of Grantee in executing and performing the provisions of this
Franchise . The advisory body shall perform all functions required
of it by the Council and applicable laws , ordinances , rules and
regulations .
SECTION 3 . DELEGATION OF AUTHORITY BY CITY
A. City reserves the right to delegate and redelegate from time
to time any of its rights or obligations under this Franchise
to any body or organization.
B. Any delegation by City shall be effective upon written notice
by City to Grantee of such delegation.
C . Upon receipt of notice by Grantee of City' s delegation,
Grantee shall be bound by all terms and conditions of this
delegation not in conflict with this Franchise .
D. Any such delegation, revocation or redelegation, no matter
how often made, shall not be deemed an amendment to this
Franchise or require any consent of Grantee .
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ARTICLE XIV.
EXTENDED SYSTEM, ACCEPTANCE, INCORPORATION
OF OFFERING, EXHIBITS, PUBLICATION
SECTION 1 . EXTENDED SYSTEM
A. The System intended for City is an extension of Grantee ' s
system which serves the Ramsey/Washington Franchise Area .
Any sale or transfer of the Ramsey/Washington Franchise Area
system shall also include the System in City.
SECTION 2 . TIME OF ACCEPTANCE; GUARANTEE; INCORPORATION OF
OFFERING; EXHIBITS
A. Grantee shall have thirty ( 30 ) days from the effective date
of this ordinance to accept this Franchise in a form and
substance acceptable to City. In no event will acceptance
occur later than said thirty ( 30 ) days after the effective
date of this Franchise, unless the time for acceptance is
extended by City. Such acceptance by Grantee shall be deemed
the grant of this Franchise for all purposes .
B. Upon acceptance of this Franchise, Grantee shall be bound by
all the terms and conditions contained herein. Grantee shall
provide all services and offerings specifically set forth in
the Offering to provide cable communication service within
City and other cities included in or a part of the extended
system; and, by its acceptance of this Franchise, Grantee
specifically agrees that the Offering of Grantee, including
all promises, offers , representations and inducements
65
contained therein, is specifically incorporated by reference
and made part of this Franchise . The failure to refer to the
Offering in any specific provisions of this Franchise shall
not be a limitation on the obligation of Grantee to comply
fully with the Offering. Grantee further acknowledges that
all promises , offers , representations and inducement
contained in the Offering of Grantee were freely and
voluntarily made to City by Grantee.
C . A copy of the Offering shall be permanently kept and filed in
the Office of the City Administrator and reproductions
thereof shall be available for inspection by the public
during normal business hours .
D. In the event of conflicts or discrepancies between any part
of the Offering and the provisions of this Franchise or
between any part of the summary made by Grantee and the
Offering, the Grantee and City shall promptly meet and confer
in good faith to resolve the conflict or discrepancy.
E . Grantee shall have continuing responsibility for this
Franchise, and if Grantee be a subsidiary or wholly-owned
corporate entity of a parent corporation, performance of this
Franchise shall be secured by guarantees of the parent
corporation in a form and substance acceptable to City, which
shall be delivered at time of, and as part of, acceptance of
this Franchise.
F. With its acceptance, Grantee shall also deliver to City an
opinion from its legal counsel , acceptable to City, stating
that this Franchise has been duly accepted by Grantee, that
66
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the guarantees have been duly executed and delivered, that
this Franchise and the guarantees are enforceable against
Grantee and the guarantors in accordance with their respective
terms, and which opinion shall otherwise be in a form and
substance acceptable to City.
G. With its acceptance, Grantee also shall deliver to City true
and correct copies of documents creating Grantee and
evidencing the power and authority referred to in the opinion
of Grantee's counsel, certified as of a then current date by
public office holders to the extent possible and otherwise
by an officer of Grantee.
H. Each exhibit is part of this Franchise and each is specifically
incorporated herein by reference. The exhibits are as follows:
Exhibit A - Initial Service Area Map
Exhibit B - Offering of Grantee
Passed and adopted this 17th day of April, 197• .
-orge *insfn Mayor
ity • 'ugo
ATTEST:
Mary A Creager, City . •rk
C./'
Published in the Forest Lake Times the 4th day of May, 1989.
This Franchise is accepted, and we agree to be bound by all its
terms and conditions .
DATED: i GROUP W CABLE 0
RAMSEY/WASHIN TIIN, INC.
All
1Pi JAIIts MTN
I �
By
Its
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City of Hugo
ORDINAINANCE 1989-257
NCE SUMMARY I DAVIT OF P U B L!C A T I O N
Final Franchise
City of Hugo
An ordinance, including addendum
with exhibits, granting a franchise to STATE OF MINNESOTA ]
Group W Cable of_Ramsey/Washington, SS
Inc., d/b/a Cable TV North Central, COUNTY OF WASHINGTON
(hereinafter"Cable TV North Central")
to operate and maintain a cable commu-
nications system in the City; setting
forth conditions accompanying the Duane A. Rasmussen , being duly sworn, on oath says that he is the
grant of franchise;providing for regula-
tion and use of the system;and prescrib-
ing penalties for the violation of its publisher or authorized agent and employee of the publisher of the
provision.
STATEMENT OF INTENT AND
PURPOSE;FINDINGS. newspaper known as The Times, and has full knowledge of the facts
The City of Hugo(hereinafter"City")
adopts a cable television franchise to
bring about the development of a cable which are stated below:
communications system and the contin-
ued operation of it.Such a development
can contribute significantly tothecom- (A) The newspaper has complied with all of the requirements con-
munication needs and desires of many.
Further, the City may achieve better
utilization and improvement of public stituting qualification as a legal newspaper, as provided by Minnesota
services.The City Council found Cable
TV North p p
Central's technical ability,
financial condition,legal qualifications, Statute 331A.02, 331A.07 and other applicable laws, as amended.
and character to,be appropriate to con-
struct and operate a cable television sys-
tem within the City. (B)The printed public notice
ARTICLE I.SHORT TITLE AND
DEFINITIONS
The Ordinance shall be known and
cited as the Cable Communications Or-
dinance.The definition section includes which is attached was cut from the columns of said newspaper, and
22 terms which are defined for the pur-
pose
pose of the franchise.
ARTICLE II.GRANT OF AUTHORITY wasrinted and published once each week, for one successive
AND GENERAL PROVISIONS p
SECTION 1.GRANT OF FRANCHISE
AND ACCEPTANCE. weeks: it was first published on Thursday , the 4 day
The City grants.to Cable TV North
Central a non-exclusive franchise to be
properly executed and acknowledged by of May , 19 89, and was thereafter printed and published
Cable TV North Central and delivered to
City. Cable TV North Central shall de-
posit with City a non-refundable accep- each week to and including ._Thursday , the 4 day
Lance fee for the purpose of defraying
the costs and expenses of development
of the franchise.Letters of credit, cer- of May , 1989
tificates of insurance, and organiza-
tional and creation documents of the
Smust delivered to City.
SECTION 2.AUTHORITY GRANTED
The City grants to Cable TV North BY• / L.
Central permission to use the streets for
erecting, constructing, operating and TITLE: Publ i sher
maintaining the cable communications
system.
SECTION 3.AGREEMENT
Cable TV North Central agrees to be Subscribed and sworn to before me on
bound by all terms of the franchise and
to provide all services set forth in its
proposal to City. this fifth
SECTION 4.FRANCHISE TERM
This franchise shall be for a term coin-
cident with the expiration date of the day of May ,19 89
Franchise Ordinance and Franchise
Agreement of the Ramsey/Washington
County Cable Commission.
SECTION 5.AREA • 11,,,ott4,444f2
The franchise is granted for the City
as it exists from time to time during the
term of the Franchise. 40( J did •. LcSTRUD
SECTION 6.POLICE AND EMINENT ? NOTARY PUBLIC • MINNESOTA
DOMAIN POWERS e9`;•
Cable TV North Central's rights are t•„ ; NQJV®VSIN1$,U ON COUNTY
subject to the rights of eminent domain �1. MY COMMISION EXPIRES
of the City and to the police powers of
the City. APRIL 16. 1995
SECTION 7.USE OF GRANTEE
FACILITIES (1)Lowest classified rate paid by commercial
The City has the right to install and users for space comparable
maintain any fixtures it desires upon the p $ 4.40COI.inch
poles and within the underground pipes
and conduits of Cable TV North Central.
SECTION S.WRITTEN NOTICE (2)Maximum rate allowed by law for the above
All notices shall be delivered in writ- matter $ 4.57 col.inch
ing to the offices of City and its Legal
Counsel,and the local office of Cable TV
North Central. (3)Rate actually charged for the above matter $ 4.40 col.inch
SECTION 9.RIGHTS OF
INDIVIDUALS
No signals shall be transmitted from (4)Rate actually charged for additional
the subscriber terminal except as re-
quired to provide service authorized by insertions COL inch
the franchise and the subscriber.Infor-
mation from subscriber terminals may
not be gathered or stored without the ex-
press written permission of the sub-
scriber.The terms and conditions of the
written authorization are included in
chic cart inn - •
_
1
ARTICLE III.DESIGN OF SYSTEM ARTICLE VI.SYSTEMS OPERATIONS SECTION 3.ABANDONMENT
SECTION 1.CHANNEL CAPACITY- SECTION L INFORMATION Cable TV North Central may not aban-
SUBSCRIBER NETWORK AVAILABILITY don any portion of the system without
A System capable of providing at least City shall have the right of reasonable having given not less than three months
61 downstream programmable channels access to Cable TV North Central's re- prior notice to City.Afiy such abandon-
shall be constructed pursuant to the con- cords. ment may be deemed a cause for ter- SECTION 3.DELEGATION OF
ditions of the proposal of Cable TV North SECTION 2.SERVICE CONTRACT mination of the franchise. AUTHORITY BY CITY
Central. The form of Cable TV North Central's ARTICLE XI.PURCHASE OF The City may delegate at any time its
service contract with subscribers is SYSTEM rights or obligations under the franchise
SECTION 2.PICTURE QUALITY AND detailed in Sec ion 2. SECTION GENERAL to any body or organization.
TECHNICAL REQUIREMENTS SECTION 3.SUL BSCRIBER The Section provides for the City's ARTICLE XIV.EXTENDED SYSTEM,
Cable TV North Central will be re- PRACTICESright to purchase the system,either pur- ACCEPTANCE,INCORPORATION OF
quired to transmit a signal to the sub- There shall be no charge for discon- suant to the terms and conditions of a OFFERING,EXHIBITS,
scriber,and further to comply with all nection of any installation, service, or bona fide purchase offer which Cable TV PUBLICATION
technical standards of their proposal outlet. Section 3 also details Cable TV North Central is willing to accept SECTION 1.EXTENDED SYSTEM
and Federal Communications Commis- North Central's right to disconnect for regarding the system,or in the event of The system in City is an extension of
sion requirements. failure to pay the monthly subscriber forfeiture,revocation or termination of Cable TV North Central's System serv-
SECTION 3.TWO-WAY CAPACITY fees, the franchise. ing the Ramsey/Washington Franchise
Cable TV North Central shall activate SECTION 4.FRANCHISE FEES, SECTION 2.PROCEDURES Area.
and thereafter maintain a two-way sys- RATES AND CHARGES The procedures for the City's election SECTION 2.TIME OF ACCEPTANCE;
tem concurrent with the activation of Throughout the term of the franchise, to exercise its rights to purchase the sys- GUARANTEE;INCORPORATION OF
two-way subscriber services in the Cable TV North Central shall pay to City tem are contained in this section. The OFFERING;EXHIBITS
Ramsey/Washington Franchise Area. an annual fee of 5%of,all gross revenues procedure provides for City's right to ac- Cable TV North Central shall accept
SECTION 4.FACILITIES as defined and restricted in the fran- cept the terms of a pending purchase of- the franchise pursuant to the procedures
Cable TV North Central shall con- chise and this section.Rates shall be es- fer,or the appointment of an arbitration
struct its facilities as set forth in its included in h section.The proposal o-
tablished pursuant to the terms and con- panel to establish the terms and condi- Cable TV North Central shall be incorpo-
proposal to the City. ditions of the franchise.The City retains tions of the purchase of the system. -- rated by reference into the franchise.
SECTION 5.SPECIALCHANNEL AND the right to participate in any perfor- ARTICLE XII.MISCELLANEOUS .Summaries of the proposal shall be
ACCESS REQUIREMENTS mance review and technological SECTION I.TRANSFER OF available in the office of the City Admin-
The system shall carry an emergency upgrading of the system. Cable TV OWNERSHIP OR CONTROL istrator. The exhibits to the franchise
override system and access channels for North Central shall exercise its best ef- Ownership is the system may not be are: Exhibit A - Initial Service Area
the use of public,education,government forts to maintain a modern, state-of- transferred without the prior written, .map; Exhibit B - The Offering
and leased.The franchise incorporates the-art system which is comparable to consent of the City.The procedures for: {Proposal) of Cable TV North Central
specific access rules which have been other operating cable television systems notifying the City of the transfer of Dow-Sat. -
developed by Cable TV North Central. similarly situated. ownership, and the City's approval of i This ordinance was passed .and
SECTION 6.SERVICE TO PUBLIC SECTION 5.FRANCHISE RENEWAL said transfer, are provided for in this adopted this 17th day of April,1989.
BUILDINGS AND EDUCATIONAL ' The franchise may be automatically section. /s/George L.Atkinson
INSTITUTIONS renewed at any time provided Cable TV SECTION 2.REMOVAL AFTER George Atkinson,Mayor
Cable TV North Central will provide North Central obtains renewal of the TERMINATION OR REVOCATION ATTEST:
one free installation and free Basic Ser- Franchise Ordinance and Franchise The City shall have the right to re- /s/Mary Ann Creager
vice to such public institutions desig- Agreement in the Ramsey/Washington quire Cable TV North Central to Mary Ann Creager,City Clerk
nated by the City. Franchise Area. remove,at Cable TV North Central's ex- (Published in THE TIMES
SECTION 7.REGIONAL CHANNEL ARTICLE VII.RESERVED pease,all or any portion of the system May 4,1989)
Cable TV North Central shall comply ARTICLE VIII.INDEMNIFICATION, within the City upon the revocation or
with the provisions of'Minnesota law INSURANCE,AND LETTER OF termination of the franchise pursuant to
regarding uniform regional channel CREDIT the terms and procedures of this section.
usage. SECTION 1.GENERAL SECTION 3.WORK PERFORMED BY
ARTICLE IV.SERVICES AND The City retains all rights of indemni- OTHERS
PROGRAMMING,INTERRUPTION fication,insurance,or letter of credit as Cable TV North Central must inform
OF SERVICE AND COMPLAINTS provided in the franchise. the City of the names and addresses of
SECTION 1.SERVICES AND SECTION 2.INDEMNIFICATION AND any entity other than Cable TV North
PROGRAMMING INSURANCE Central which shall perform services
Programming shall be provided as Cable TV North Central shall fully in- pursuant to the franchise.
specified in the proposal of Cable TV SECTION 4.GENERAL PROVISION
North Central. Programming shall be demnify,defend and hold harmless,City ON RIGHTS AND REMEDIES
added and deleted pursuant to the and all of its agents and employees from All remedies and rights given to City
provisions of Section 1. . liability and 'idgments for damages in by the franchise are in addition to any
SECTION 2.INTERRUPTION OF SER- connection with: Damage to persons or other rights which City might otherwise
VICE AND COMPLAINTS property, any claim arising out of the have regarding the system or Cable TV
Service shall not be interrupted unless franchise, Cable TV North Central's North Central.
necessary. If service is interrupted for failure to comply with provisions of the SECTION 5.APPLICABLE LAWS AND
more than 24 hours in any 30 day period, franchise,or any claim Cable TV North COURT DECISIONS:SEVERABILITY
subscribers shall be credited pro-rata Central may have against the City. The franchise must at all times be in
for such interruption.An office shall be SECTION 3.INSURANCE ' compliance with all laws, ordinances
maintained in the metropolitan area and Cable TV North Central shall main- and regulations of federal state and city
shall be capable of receiving complaints Min liability insurance for the entire government relating to the cable televi-
and requests for repairs or adjustments term of the franchise for amounts as sion system and the franchise. If any
at any time seven days per week.This specified in the franchise and pursuant provision of this franchise is declared in-
section further details subscriber corn- to the requirements of this section. valid or void, that section may be se-
plaint procedures. SECTION 4.LETTER OF CREDIT vered from the franchise with the
ARTICLE V.CONSTRUCTION, Cable TV North Central shall main- remaining sections in full force and ef-
INITIAL SERVICE AREA, • ' tam an irrevocable and unconditional feel. If the City determines that a
LINE EXTENSION AND Letter of Credit, The Letter of Credit provision of the franchise is affected by
CONSTRUCTION STANDARDS shall provide the funds to be paid to the law,ordinance or regulation,City shall
SECTION 1.INITIAL SERVICE AREA City upon demand by the City pursuant have the right to amend,modify,alter
All areas containing dwelling units to the procedures and requirements of or repeal any provisions of the franchise
within the city as identified on an ap- this section. This section further to such reasonable extent as necessary
pended map shall be constructed as the provides minimum amounts for penal- to carry out the intended purposes of the
initial service area. ties such as failure to construct the sys- franchise.
SECTION 2.LINE EXTENSION tem and failure to comply with terms SECTION 6.GRANTEE
POLICY and conditions of the franchise. Said ACKNOWLEDGEMENT OF VALIDITY
Service shall be extended to those penalties may be assessed against Cable OF FRANCHISE
areas not in the initial service area pur- TV North Central by the City and col- Cable TV North Central acknowledges
suant to the formula of Section 2. lected directly from the Letter of Credit. that is has reviewed the franchise and
SECTION 3.CONSTRUCTION TIME- The Letter of Credit must be maintained that under current law Cable TV North
TABLE pursuant to the procedures and require- Central believes that the franchise is not
Cable TV North Central shall con- ments of this section. • • unreasonable or arbitrary.
struct all areas of the initial service ARTIC,E IX.DEFAULT ARTICLE XIII.ADMINISTRATION
area which contain dwelling units by SECTION 1.N TICE AND DEFAULT AND ADVISORY BODY
September 15,1989.Delays in construe- City shall n tify Cable TV North Cen- SECTION 1.ADMINISTRATOR
tion may result in penalties provided by tral in writing of violations of the fran- The City's chief administrative officer
the franchise. chise. Cable TV North Central shall or the City's designee shall be responsi-
SECTION 4.CONSTRUCTION have thirty da s to cure such default,or ble for the administration of the fran-
STANDARDS - be subject tote procedures of this sec- chise.
Cable TV North Central shall comply lion leading t termination of the fran- SECTION 2.ADVISORY BODY `
with all construction standards of the chise. The City may appoint an advisory
franchise as well as all applicable laws, ARTICL X.FORECLOSURE, body to monitor performance of Cable
ordinances, rules, regulations and . REC IVERSHIP AND TV North Central in executing the
codes,federal,state and local. AB NDONMENT provisions of the franchise.
SECTION 5.CONDITIONS OF USE SECTION 1.F RECLOSURE
Cable TV North Central shall not, in Upon the for closure or judicial sale of
its construction of the System,interfere the system, t e provisions of the fran-
with any gas,electric or television fix- chise governi g consent to transfer or
ture,water hydrant or main,or sewer change in ownership shall apply.
line.Section 5 also provides procedures SECTION 2.RECEIVERSHIP
for the raising and lowering of lines, City shall have the right to'cancel the
trimming trees,and the recognition of franchise 120 days after the appointment
potential liability for persons damage of a receiver or trustee.
Cable TV North Central's facilities.