(A) Definition. The term FRANCHISE as used in this section shall be construed to mean any special privileges granted to any person in, over, upon, or under any of the streets or public places of the city, whether such privilege has heretofore been granted by it or by the State of Minnesota or shall hereafter be granted by the city or by the state.
(B) Franchise ordinances. The Council may grant franchises by ordinance. Franchise rights shall always be subject to the superior right of the public to the use of streets and public places. All persons desiring to make any burdensome use of the streets or public places, inconsistent with the public’s right in such places, or desiring the privilege of placing in, over, upon, or under any street or public place any permanent or semi-permanent fixtures for the purpose of constructing or operating railways, telegraphing, or transmitting electricity, or transporting by pneumatic tubes, or for furnishing to the city or its inhabitants or any portion thereof, transportation facilities, water, light, heat, power, gas, or any other such utility, or for any other purpose, shall be required to obtain a franchise before proceeding to make such use of the streets or public places or before proceeding to place such fixtures in such places.
(C) Power of regulation reserved. The city shall have the right and power to regulate and control the exercise by any person, of any franchise however acquired, and whether such franchise has been heretofore granted by it or by the state.
(D) Conditions in every franchise. All conditions specified in this section shall be a part of every franchise even though they may not be expressly contained in the franchise:
(1) That the grantee shall be subject to and will perform on its part all the terms of this section and will comply with all pertinent provisions of any City Charter and City Code, as the same may from time to time be amended.
(2) That the grantee shall in no case claim or pretend to exercise any power to fix fares, rates, and charges; but that such fares, rates, and charges shall at all times be just, fair and reasonable for the services rendered and shall in all cases be fixed and from time to time changed, unless regulated by an agency of the State of Minnesota, in the manner following:
(a) A reasonable rate shall be construed to be one which will, with efficient management, normally yield above all operating expenses and depreciation a fair return upon all money invested;
(b) If possible maximum rates and charges shall be arrived at by direct negotiation with the Council;
(c) If direct negotiations fail to produce agreement, the Council shall, not less than 30 days before the expiration of any existing rate schedule or agreement, appoint an expert as its representative, the franchisee shall likewise appoint an expert as its representative and the 2 of them shall appoint a third person, preferably an expert, and the 3 of them shall constitute a Board of Arbitration. The Board shall report its findings as soon as possible and the rates and charges it shall agree upon by majority vote shall be legal and binding, subject only to review by a Court of competent jurisdiction upon application of one of the parties.
(3) That the Council shall have the right to require reasonable extensions of any public service system from time to time, and to make such rules and regulations as may be required to secure adequate and proper service and to provide sufficient accommodations for the public.
(4) That the grantee shall not issue any capital stock on account of the franchise or the value thereof, and that the grantee shall have no right to receive upon condemnation proceedings brought by the city to acquire the public utility exercising such franchise, any return on account of the franchise or its value.
(5) That no sale or lease of the franchise shall be effective until the assignee or lessee shall have filed with the city an instrument, duly executed, reciting the facts of such sale or lease, accepting the terms of the franchise, and agreeing to perform all the conditions required of the grantee thereunder.
(6) That every grant in said franchise contained of permission for the erection of poles, masts, or other fixtures in the streets and for the attachment of wires thereto, or for the laying of tracks in, or of pipes or conduits under the streets or public places, or for the placing in the streets or other public places of any permanent or semi-permanent fixtures whatsoever, shall be subject to the conditions that the Council shall have the power to require such alterations therein, or relocation or re-routing thereof, as the Council may at any time deem necessary for the safety, health, or convenience of the public, and particularly that it shall have the power to require the removal of poles, masts, and other fixtures bearing wires and the placing underground of all facilities for whatsoever purpose used.
(7) Every franchise shall contain a provision granting the city the right to acquire the same in accordance with statute.
(8) That the franchisee may be obligated by the city to pay the city fees to raise revenue or defray increased costs accruing as a result of utility operations, or both, including, but not limited to, a sum of money based upon gross operating revenues or gross earnings from its operations in the city.
(E) Further provisions of franchises. The enumeration and specification of particular matters which must be included in every franchise or renewal or extension thereof shall not be construed as impairing the right of the city to insert in any such franchise or renewal or extension thereof such other and further conditions and restrictions as the Council may deem proper to protect the city’s interests, nor shall anything contained in this section limit any right or power possessed by the city over existing franchises.
(F) City franchises.
(1) Ordinance No. 16, Third Series.
(a) Definitions.
For the purpose of the franchisee, the following terms, phrases and 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.
ADVISORY BOARD. See division (f)(2).
BASIC SERVICE. All subscriber services provided by franchisee including and delivery of broadcast signals, covered by the regular monthly charge paid by all subscribers, excluding optional services for which a separate charge is made. (See division (h)(1)).
BOARD. The Minnesota Cable-Communications Board.
CITY. The City of North Mankato, a municipal corporation, in the State of Minnesota.
CLASS IV CHANNEL. A signaling path provided by a cable communications system to transmit signals of any type from a subscriber terminal to another point in the cable communications system.
CONNECTION. The attachment of the drop to the first radio or television set of the subscriber.
CONVERTER. An electronic device, which converts signals to a frequency not susceptible to interference within the television receiver of a subscriber, and by an appropriate channel selector also permitting a subscriber to view all basic subscriber signals included in the basic service delivered at designated converter dial locations.
COUNCIL. The governing body of the City of North Mankato.
DAY. Unless otherwise indicated all days shall be calendar days.
DROP. The cable that connects the subscriber terminal to the nearest feeder cable of the cable.
FCC. The Federal Communications Commission and any legally appointed designated or elected agent or successor.
FRANCHISEE. American Television and Communications, Inc. doing business as TV Signal, a wholly owned and subsidiary of Time, Inc.
GROSS REVENUES. All revenue derived directly or indirectly by franchisee, its affiliates, subsidiaries, parent and any person in which franchisee has a financial interest of 5% or more from or in connection with the operation of the system, including but not limited to, basic subscriber service monthly fees, pay cable 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 franchisee and imposed directly upon any subscriber or user by the state, city or other governmental unit and collected by franchisee on behalf of the governmental unit.
INSTALLATION. The connection of the system from feeder cable to the point of connection.
LOCKOUT DEVICE. An optional mechanical or electrical accessory to a subscriber's terminal which inhibits the viewing of a certain channel or channels provided by way of cable communications system.
PAY LEVEL. Additional tier level, above basic service, shown for additional charge.
PUBLIC PROPERTY. Any real property owned by city other than a street.
SCRAMBLER/DE-SCRAMBLER. Refers respectively to the equipment installed to the cable communications 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 communications system and re-constituting the signal at each authorized location for subsequent display.
SIDEWALK. The portion of a street delineated for pedestrian travel.
STREET. 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 which shall, within its proper use and meaning in the sole opinion of city, entitle grantee to the use thereof for the purpose of installing or transmitting over poles, wires, cables, conductors, ducts, conduits, valuts, manholes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and pertinent to a system.
SUBSCRIBER. Any person or entity who subscribes to a service provided by franchisee by means of or in connecting with the system regardless of whether a fee is paid for such service.
SYSTEM. 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 and distributing, audio, video and other forms of electronic or electrical signals located in city. The definition shall not include any system wholly internal to one or more multiple unit dwellings under common ownership, control or management, and 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 out in the rules of the Board.
(b) Grant of authority.
1. The franchisor has, following reasonable notice, conducted a full public hearing, affording all persons reasonable opportunity to be heard, which proceeding was concerned with the analysis and consideration of the technical ability, financial consideration, legal qualification, areas to be served, channel capacity and general characteristics of the franchisee.
2. The franchisor after such consideration, analysis and deliberation, has approved and found sufficient, the technical ability, financial condition, legal qualification, extent and nature of service proposed and character of the franchisee.
3. The franchisor has at the above mentioned public hearing considered and analyzed the plans of the franchisee for the construction, operation, maintenance and expansion of the cable communications system. and found the same to be adequate and feasible in view of the needs and requirements of the city.
4. To the knowledge and belief of the franchisor, this franchise and the procedure used in formulating the awarding and same in all ways complies with the franchise standards of the Board.
5. The franchisee, its lessees, successors and assigns is hereby granted the non-exclusive right and authority for the period of 15 years, and subject hereto, to erect and construct utility poles and operate and maintain a cable communications system, including all necessary wires, amplifiers, cable and other equipment thereunto appertaining, in, upon, over, across, and along the streets, alleys, bridges and public places within the present and future corporate limits of the city for the distribution and sale of television signals in and beyond the city.
(c) Franchisor rights. This franchise conveys to the city certain rights including, but not limited to the following:
1. Access to financial records.
a. Throughout the term of this franchise, franchisee shall maintain books and records in accordance with normal and accepted bookkeeping and accounting practices for the cable communications industry, and allow for inspection and copying of them at reason-able times at its designated office. The books and records to be maintained by franchisee shall include the following:
i. A record of all requests for service;
ii. A record of all subscriber or other complaints, and the action taken as pertaining to division (f)(1)(m) of this section;
iii. A file of all subscriber contracts;
iv. Franchisee policies, procedures and company rules; and
v. Financial records.
b. The city shall give franchisee at least 48 hours notice before making inspections of any books or records in the local office of the franchisee.
c. The city, its agents and representatives, shall have authority to arrange for and conduct an audit of and copy the books and records of franchisee. Franchisee shall first be given 15 days notice of the audit request, the description of and purpose for the audit, and description, to the best of city's ability, of the books, records and documents it wants to review.
2. Termination of franchise.
a. The city shall have the right to terminate and cancel the franchise and all rights and privileges thereof in the event of conditions and circumstances which include, but are not limited to, the following:
i. If the franchisee substantially violates any provision of this section, or any rule, order, or determination of the city made in accordance with this section.
ii. If the franchisee practices fraud or deceit upon the city.
iii. If the franchisee attempts to evade any of the provisions of this section.
iv. If the franchisee should default in the performance of any obligation under this franchise, and fail to act on the default within 30 days after receiving written notice of the default.
v. If a petition is filed by the franchisee under the Bankruptcy Act, or any other insolvency or creditors' rights law, state or federal, or the franchisee is adjudged a bankrupt or insolvent under any insolvency or creditors' rights law, state or federal.
b. The city shall provide the franchisee with a written notice of the cause for termination and its intention to terminate the franchise and shall allow the franchisee a minimum of 30 days subsequent to receipt of the notice in which to correct the violation. The franchisee shall, be provided with an opportunity to be heard at a public hearing before the City Council prior to the termination of the franchise. In the event that the city determines to terminate the franchise, the franchisee shall have a period of 30 days, beginning the day next following the date of the conclusion of the public hearing at which the termination of the franchise is considered, within which to appeal with the Board, pursuant to M.S. § 238.14 (1976). During such 30 day period and until the Board determines the appeal, if an appeal is taken, the franchise shall remain in full force and effect, unless the term thereof sooner expires. If the Board approves of the action of the city, the franchise shall terminate immediately; if the Board disapproves of the action of the city, the franchise shall remain in full force and effect during the term thereof unless sooner terminated in accordance with law or this section. Any such appeal to the Board is a contested case to which the Board is not a party.
c. Upon termination or forfeiture of the franchise, the franchisee and the city shall work together to develop a mutually agreeable solution to the discontinuance of cable service. If the solution has not been reached within a reasonable period, the city may require the franchisee to remove its cables, wires and appliances from the streets, alleys and other public places within the city.
In the event the franchisee fails to remove its cable, wires and. appliances, the city may undertake the removal and bill the franchisee for all costs incurred.
3. Fines. The city shall have the right to levy fines on the franchisee as per section (e)(4)(c).
4. Special testing. The city shall have the right to require special testing to determine the source of technical difficulties. If the testing reveals the franchisee to be responsible for the difficulties, then the franchisee shall bear the costs of testing. If the testing reveals the difficulties are beyond the. franchisee's control, the testing costs shall be borne by the franchisor.
5. Right to purchase.
a. The city shall have the non-exclusive right to purchase the franchisee's cable communications system in the event of expiration of the franchise term, revocation of the franchise, other termination of the franchise as provided for in this section, or receipt of an application for approval of an assignment of the franchise.
b. If the city opts to purchase the system, the city and the franchisee shall work together to determine a mutually agreeable purchase value for the system.
(d) Responsibilities of franchisee. This franchise conveys certain obligations and responsibilities to the franchisee, including but not limited to, the following:
1. Conformance with state and federal law. The franchisee shall conform to all state and federal laws, rules and regulations regarding cable communications not later than 1 year after their promulgation.
2. Operating standards. The franchisee shall operate a cable communications system that provides the following minimum standards:
a. The system shall deliver to the subscriber's terminal a signal that is capable of producing a black and white or colored picture without visual material degradation in quality within the limitations imposed by the technical state of the art of our system.
b. The system shall transmit or distribute signals without causing objectionable cross-modulation in the cable or interfacing with other electrical or electronic network or with the reception of other television or radio receivers in the area not connected to the network.
3. Technical standards. The franchise shall as a minimum adhere to the technical standards promulgated by the FCC relating to cable communications systems contained in subpart K of part 76 of the FCC's rules and regulations relating to cable communications systems, as the same now provided and may hereafter be amended or modified from time to time. The results of any tests required by the FCC shall be filed within 10 days of the conduct of such tests with the city and with the Board.
a. The system will 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 undistorted and free from ghost images, without material degradation of color fidelity. The system shall produce a sound that is undistorted on any receiver of a subscriber provided that the receiver is in good functioning condition. Franchisee, at its expense, shall install and maintain the system so as not to interfere with any subscriber's receipt of local broadcast stations.
b. The system shall transmit or distribute signals to all television and radio receivers of all subscribers without causing cross-modulation in the cables or interfering with other electrical or electronic systems or the reception of other television or radio receivers.
c. Franchisee shall construct and maintain a system that at least meets minimum technical standards now or hereafter promulgated by the FCC relating to cable communications systems; provided, however, that in no event shall the technical standards required to be met by franchisee be less stringent than the FCC standards in effect at the time of the adoption of the section, nor shall franchisee be required to meet minimum FCC technical standards which apply solely to cable communications systems for which franchises are granted subsequent to the acceptance of this franchise.
d. The system shall be installed and remain capable of using all band equipment and of passing the entire VHF bands, mid-band, super-bands and FM band up to the current capacity of the system.
e. The system shall be designed for and operate on a 24 hour a day continuous operation basis.
f. Franchisee shall specify the procedure for initially and subsequently testing the technical capacity of the system and agrees to have city select a consultant to review and perform such testing procedure. The results of any tests required by the FCC shall be filed within 10 days of the conduct of such tests with the city and the Board. Other representatives of city may be present during testing. The tests may be done annually at such times as is determined by city, with notice to franchisee. All expenses for all such tests shall be paid by franchisee.
4. Two-way capability. The franchisee shall provide a cable communications system having the technical capacity for non-voice return communications at such time as the city determines such capacity is needed. The city shall make this determination after consultation with the Region Nine Development Commission and the Board and after conducting public hearings giving reasonable notice and a reasonable opportunity to be heard. For the purposes of this paragraph, technical capacity for non-voice return communications means the provision of appropriate system design techniques with the installation of cable and amplifiers suitable for the subsequent insertion of necessary non-voice communications electronic modules.
5. Public disclosure. Franchisee shall file with city, at the time of its annual payment of the franchise fee, as described in this franchise, the following:
a. A financial statement prepared by an independent certified public accountant showing, in such detail as acceptable to city, the gross revenues of franchisee for the preceding fiscal year.
b. Current list of names and addresses of each officer and director and other management personnel, and if a corporation, each shareholder having stock ownership of 5% or more, and if a partnership, all general partners, and if a general partner is a corporation, the foregoing information shall be given as to the corporate general partner.
c. A copy of each document filed with all federal, state and local agencies during the preceding fiscal year not previously filed with the city (each of these filings shall be provided at the time the filing is made).
d. A statement of its current billing practices, if any changes were made during the past year.
e. A current copy of its rules, if any changes were made during the past year.
f. A current copy of its subscriber service contract, if any changes were made during the past year.
6. Abandonment. Notwithstanding any provision in this franchise, the franchisee may not abandon any cable communications distribution system or any portion thereof without having given 3 months written notice to the City Council and the Board. The franchisee may not abandon any cable communications distribution system or any portion thereof without compensating the city for damages resulting to it from such abandonment.
(e) Indemnification, insurance, letter of credit and bond.
1. General.
a. All rights of city pursuant to indemnification, insurance, letter of credit or bond, 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.
2. Indemnification and insurance.
a. Franchisee 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 in connection with:
i. Damage to persons or property, in any way arising out of or through the acts or omissions of franchisee or city, their respective servants, officials, agents or employees or to which franchisee's or city's negligence or that of their respective servants, agents, officials or employees shall in any way contribute;
ii. Arising out of 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 programming;
iii. Arising out of franchisee's failure to comply with the provisions of this franchise, any federal, state or local law, ordinance or regulation applicable to franchisee or the system; and
iv. Any and all claims which franchisee may now or hereafter have or claim to have against city, its servants, agents, employees or officials, due to or arising out of damage to any of franchisee's property or equipment, including, without limitation, resulting or consequential loss of income, injury or 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.
b. If suit be brought or threatened against city, either independently or jointly with franchisee, or with any other person or municipality, franchisee, upon notice given by city, shall defend city at the cost of franchisee, and if final judgment is obtained against city, either independently or jointly with franchisee, or any other defendants, franchisee shall indemnify city and pay such judgment with all costs and satisfy and discharge the same.
c. City reserves the right to cooperate with franchisee and participate in the defense of any litigation either through intervention or otherwise. Franchisee shall pay upon receipt of written demand from city, all expenses incurred by the city in defending itself with regard to any matters in this section. These expenses shall include, but not be limited to, attorney's fees, and the reasonable value of services (as determined by city), rendered by city or any employees, agents or representatives of city.
3. Insurance.
a. Franchisee shall maintain liability insurance covering its obligations of indemnification provided for in or as a result of the exercise of this franchise covering both the city and franchisee and shall maintain the insurance during the entire term of this franchise in the minimum amount of:
i. $500,000 for property damage to any one person;
ii. $1,000,000 for property damage in any one act or occurrence;
iii. $500,000 for personal injury to any one person; and
iv. $1,000,000 for personal injury in any one act or occurrence.
b. Such insurance shall be with a company acceptable to city and shall otherwise be in form and substance acceptable to city. Such insurance policy with written evidence of payment of required premiums shall be filed and maintained with city during the term of the franchise. The above minimum amounts shall be changed from time to time by franchisee as requested by city. Franchisee 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 shall be construed to, or shall, limit the liability of franchisee.
d. No recovery by city of any sum by reason of the letter of credit or bond required in this franchise shall be any limitation upon the liability of franchisee to city under the terms of this section, except that the sum so received by city from such letter of credit or bond shall be deducted from a recovery under this section, if for the same act or occurrence.
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 the intention not to renew be stated until 60 days after receipt to city by registered mail, or written notice of such intention to cancel or not to renew.
4. Letter of credit.
a. At the time of acceptance of this franchise, franchisee shall deliver to the cities as one system an irrevocable and unconditional letter of credit, in form and substance acceptable to the cities, from a national or state bank approved by the cities, in the amount of $50,000. This one letter of credit will be used for draw downs and multiplier effect by any or all member cities. (Member city of Advisory Board).
b. The letter of credit shall provide that funds will be paid to city, upon written demand of city, and in an amount solely determined by city in payment for penalties charged pursuant to paragraph c of this section, in payment for any moneys owned by franchisee pursuant to its obligations under this franchise, or in payment for any damage incurred as a result of any acts or omissions by franchisee pursuant to this franchise.
c. In addition to recovery of any moneys owed by franchisee to city or damages to city as a result of any acts or omissions by franchise pursuant to the franchise, city at its sole discretion may charge to and collect from the letter of credit the following penalties:
i. For failure to complete system construction in accordance with grantee's initial service area plan, unless city approves the delay, the penalty shall be $50.00 per day for each day, or part thereof, such failure occurs or continues.
ii. 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 $50.00 per day for each day, or part thereof, such failure occurs or continues.
iii. For failure to comply with any of the provisions of this franchise for which a penalty is not otherwise specifically provided pursuant to this division (e)(4)(c), the penalty shall be $50.00 per day for each day, or part thereof, such failure occurs or continues.
iv. For failure to test, analyze and report on the performance of the system following a request by city, the penalty shall be $50.00 per day for each day, or part thereof, such failure occurs or continues.
v. For failure by franchise to initiate the modification of the system to provide additional services within 45 days after required by city following a periodic review or renegotiation session, the penalty shall be $50.00 per day for each day, or part thereof, such failure occurs or continues.
vi. Forty-five days following notice from city of a failure of franchisee to comply with construction, operation or maintenance standards, the penalty shall be $50.00 per day for each day, or part thereof, such failure occurs or continues.
vii. For failure to provide the services franchisee 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 to city, the penalty shall be $50.00 per day for each day, or part thereof, such failure occurs or continues.
viii. 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 franchisee has violated one or more terms, conditions or provisions of this franchise, a written notice shall be given to franchisee informing of such violation. At any time after 3 days following notice, city may draw from the letter of credit all penalties and other moneys due city.
f. Whenever a penalty has been assessed, franchisee may, within 10 days of notice, notify city that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by franchisee to city shall specify in detail the matters disputed by the franchisee.
i. City shall hear franchisee's dispute at the next regularly scheduled Council meeting. City shall supplement the Council decision with written findings of fact.
ii. Upon a determination by city that no violation has taken place, city shall refund to franchisee without interest all moneys drawn down from the letter of credit by reason of the alleged violation, less all costs and attorney's fees incurred by city as a result of franchisee's appeal.
g. If the letter of credit or any subsequent letter of credit delivered pursuant hereto expires prior to 15 months after the expiration of the term of this franchise, it shall be renewed or replaced during the term of this franchise to provide that it will not expire earlier than 15 months after the expiration of this franchise. The renewed or replaced letter of credit shall be on the same form and with a bank authorized herein and for the full amount stated in division (e)(4)(a) above.
h. If city draws upon the letter of credit, or any subsequent letter of credit delivered pursuant hereto, in whole or in part, franchisee shall replace the same within three days and shall deliver to city a like replacement letter of credit for the full amount stated in division (e)(4)(a) above as a substitution of the previous letter of credit.
i. If any letter of credit is not so placed, 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 the obligations, duties and responsibilities of franchisee under this franchise that are not performed or paid for by the franchisee pursuant hereto, including attorneys' fees incurred by the city in so performing and paying. The failure to so replace any letter of credit may also, at the option of the city be deemed a default by franchisee 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 franchisee which are in default, shall not be a waiver or release of such default.
j. The collection by city of any damages, moneys 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.
k. Performance bond. At the time the franchise becomes effective and at all times thereafter, until the franchisee has liquidated all of its obligation with the city, the franchisee shall furnish a bond to the city in such amount as the city deems necessary, in such form and with sureties as shall be acceptable to the city conditioned upon the faithful performance of the franchisee according to the terms of the franchise and upon the further condition that in the event the franchisee shall fail to comply with any law, ordinance, or regulation governing the franchise, there shall be recoverable jointly and severally by the city as a result, including the full amount of any compensation, indemnification, or cost of removal or abandonment of any property of the franchisee, plus a reasonable allowance for attorney and consultant fees and costs, up to the full amount of the bond, and further guaranteeing payment by the franchisee of claims, liens and taxes due the city which arise by reason of the construction, operation, or maintenance of the cable communications system. The rights reserved by the city with respect to the bond are in addition to all other rights the city may have under the franchise or any other law. The city may, from year to year, at its sole discretion, reduce the amount of the bond, or determine which form the bond may take, which could be the same letter of credit as stipulated in division (e)(4)(a) above or additional performance bond, in any form, as deemed necessary.
(f) Franchise administration.
1. The office of the City Administrator shall be responsible for the continuing administration of this franchise.
2. A Cable Communications Advisory Board is hereby established to assist in the administration of this franchise and the improvement of the local cable communications system. The duties and responsibilities of the Advisory Board include the following:
a. Monitor the performance of the franchisee in executing the provisions of the franchise.
b. Advise the City Council on the regulation of subscriber charges pursuant to the requirements of this section.
c. Advise the City Council on matters which might constitute violations of this franchise and recommend appropriate action.
d. Make recommendations to the City Council concerning rates and services to be offered.
e. Work with the franchisee and any organization created pursuant to this section to operate community access cablecasting to encourage the use of community access services and to explore the feasibility of new services.
f. Conduct periodic evaluations of the system and pursuant thereto, make recommendations to the City Council for amendments to this section.
g. Prepare an annual report assessing the franchisee's performance, utilization of access services and making recommendations regarding the apparent or likely need for upgrading the system to meet the current state of the art or the needs of the community.
h. Advise the Council concerning renegotiations which may occur pursuant to this franchise.
i. Prepare and submit three months prior to the expiration of the franchise and to the expiration of the certificate of confirmation a report evaluating the performance of the franchisee according to the requirements of the State Cable Communication Board's rules and regulations.
3. The Cable Communications Advisory Board shall be a joint undertaking of North Mankato/Mankato and open to other municipalities served by this system. A combined Advisory Board shall be created by joint resolution of the City Councils of the affected cities. This resolution shall specify: The composition and size of the Board, a method for appointing members, length of membership and a provision stating that the Board is responsible for the duties specified in this division.
(g) Rights of individuals (subscriber privacy).
1. 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. Franchisee and any other person shall neither initiate nor use any procedure or device for procuring or storing information or data from a subscriber's terminals or terminal by any means, without the prior authorization of the affected subscriber which shall not have been obtained from the subscriber as a condition of service. The request for such authorization shall be contained in a separate document and identify the purpose for which the data or information is being gathered or stored. After the first year of the authorization's initial signing, franchisee shall, for each year the authorization is in effect without revocation, mail a notice to each authorizing subscriber informing him or her of his right to revoke the authorization. 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.
2. Franchisee shall not, without the written authorization of the affected subscriber, provide to anyone data identifying or designating any subscriber. Any data 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.
3. Franchisee 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 division (g)(1).
4. Nothing herein contained shall prohibit franchisee from verifying system operation and the transmission of signals to an affected subscriber or from monitoring for the purpose of billing.
(h) Rates. Subscriber charges.
1. Definitions.
For the purpose of this subdivision the following terms shall have the meanings stated as follows.
BASIC SERVICE. That package of broadcast channels available to all subscribers. The package shall include a minimum of 18 broad-cast channels, including: one channel for each of the major networks, one channel for an independent network, the local TV channel for public educational television, one governmental public access channel and the other cable casting filled channels to be at the franchisee's discretion, with the reservation that if public access for public access broadcasting is necessary one of these channels could be pre-empted. Initially only 2 pay channels shall be allowed, for additional channels the franchisee shall demonstrate the need to the City Council.
MULTI-RATE SUBSCRIBERS. All institutional subscribers, all multiple outlet commercial subscribers, and any residential subscribers who receive a single bill for multiple dwelling units. This may include trailer parks, college dormitories, apartment complexes, senior citizen complexes, schools, hospitals, nursing homes, hotels and motels.
RESIDENTIAL SUBSCRIBER. All subscribers who are billed for cable service to a single dwelling unit. This shall include single family homes, double bungalows, three and four plexes or any multi-family units which can be billed in this manner.
SINGLE OUTLET COMMERCIAL SUBSCRIBERS. A commercial subscriber that uses cable broadcasting in conjunction with their business or commercial enterprise. Prime examples would be bars, restaurants, TV or radio stores, however, also included would be other commercial or
business enterprises that use television as a communication source within their business area, be that for news or entertainment value but still primarily within the commercial area.
2. Residential subscribers. The franchisee has established and shall continue to adhere to the following schedule of charges for residential subscribers.
Basic Service Charge | $8/per month |
$9/per month with converter | |
Installation Charge | $15/per existing |
$20/per new | |
Additional Outlets | $1.50/per first |
$1.00/per each additional | |
Converter Deposit | Up to $20 |
Delinquent Payment Penalty | $5.00 |
3. Single outlet commercial subscribers. The franchisee has established and shall adhere to the following schedule of charges for single outlet subscribers:
Basic Service Charge | $11.50/per month |
Installation Charge | Cost Basis |
4. Multi-rate subscribers. The basic service charge for multi-rate subscribers shall be $11.50/per month for the first unit and an additional charge for each subsequent unit which will be negotiated by the franchisee and the subscriber. The franchisee and the subscriber will also negotiate installation and additional outlet charges. This section will not force apartment owners to supply this service but will allow them the flexibility to have the apartment unit placed under a multi-rate subscribers section. Upon request of the franchisor, the franchisee will submit a list of the multi-rate customers within the city, indicating the average monthly service charge of each subsequent unit.
5. The procedure for changing the charge for basic services is as follows:
a. Sixty days prior to the date that a proposed impending increase in the basic service charge will take effect, the franchisee shall notify the city, in writing, publish legal notice of a proposed charge increase in the official newspaper for three consecutive days and notify, in writing, all affected subscribers.
b. The city may instruct the advisory Board to conduct a public hearing if the proposed increase:
i. Is within 12 months of the most recent increase;
ii. Would exceed 5% of the present basic rate;
iii. Or 5% of the affected subscribers have petitioned for a hearing concerning the proposed increase. The Advisory Board shall then make. recommendations concerning the proposed increase to the respective City Councils. The City Councils shall then have the total authority to accept, reject, or modify the proposed rates requested by the franchisee.
c. In cases where no hearing is required, the City Council shall adopt the revised charges at the last possible Council meeting prior to the effective date of the increase.
6. The franchisee shall establish a schedule of charges for optional subscriber services; such as paid TV, optional TV channels, sports networks, and the like. The franchisee shall file with the City Clerk a schedule of current operational subscriber service charges for all charges in effect. There shall be a limit on the number of pay options approved by the respective Councils. Initial options shall allow a 2 pay levels only beyond basic service.
7. No contract with a residential subscriber may exceed 12 months. All billing shall be monthly, payable within 30 calendar days.
8. Nothing stated herein shall be construed to limit the mini-mum rate of subscriber contracts with commercial subscribers.
9. There will be no decrease in the quality of service from what is required as the effective date of this franchise unless reduction is required in order for the Franchisee to comply with rules and regulations of the FCC or the State Cable Board or is first approved by the respective City Councils.
10. No increase in the charges specified in divisions (h)(2), (3), and (4) above shall be made except by amendments of this section.
(i) Channel designations.
In order to give the franchisee as much flexibility as possible, it is the intention of the enabling bodies to allow the franchisee to designate all channels within his or her system as long as these designating channels are strictly within the rules and regulations of both the Federal Communications Board and the State Communications Board rules and regulations. However, it must be remembered, along these lines, it is expected that one public access channel specifically the government channel must be designated and kept in a priority state for whatever purposes the government entities would deem necessary. All other public access channels, again, can be used in conjunction with other cable casting users but public access time must be made available when programming is brought on line.
(j) Channel capacity.
The franchisee shall initially provide and thereafter maintain a subscriber network having at least a forward capacity of 22 video channels, plus the FM audio band of 20 FM offset radio channels, and a possible reverse capacity of 4 video channels within 6 months of the effective date of the franchise. It is understood that it may be required that within 60 months of the effective date of the franchise the system may be expanded to a 54 channel system. Due to the state of the art of the communications industry, there is the possibility of substantial additional channels being added in the next 5 to 10 year period. Therefore, the cable board will review the channel capacity requirements necessary on the 5 year anniversary date of the effective date of the agreement and therefore the system shall be capable of increasing its channel capacity as technology permits and needs arise.
(k) Public access requirements.
1. Franchisee will carry broadcast stations in accordance with this section as from time to time revised.
2. Franchisee will provide an audio emergency alert override system that will permit the initial interruption by city of all audio (including FM) and video programming.
3. Franchisee shall provide at least 4 channels for access use (including one for each of the following uses: public, governmental, educational network, and others). All residential subscribers who receive all or any part of the total services offered on the system shall also receive all of the 4 access channels at no additional charge. These channels shall be activated upon system need and thereafter be maintained. Franchisee shall establish rules and regulations prior to system activation for the use of access channels which shall be approved by city before implementation and thereafter shall not be altered or amended without approval of city. In preparing such rules:
a. Franchisee shall provide an equal opportunity for use of access services.
b. Franchisee will consider needs assessments prepared by city.
c. Franchisee shall develop a plan to allocate to city a reasonable use and fair schedule of channel time, use of equipment and facilities so that it can receive programming unique to its needs.
d. Franchisee will comply, at a minimum, with the requirements of city and the Board now or hereafter adopted or determined by city or the Board regarding access channels. Such requirements of the Board are hereby made a part of this section and include the following:
i. Franchisee 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 non-commercial public access channel available for use by the general public on a first come, non-discriminatory basis; at least one specially designated access channel for use by local educational authorities; at least one specially designated access channel available for local government use; and at least one specially designated access channel available for lease on a first come, non-discriminatory basis by commercial and non-commercial users (hereinafter 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 designated non-commercial public access channels required. No charges shall be made for channel time or playback of prerecorded programming on at least one of the specially designated non-commercial public access channels. However, personnel, equipment and production costs may be assessed for live studio presentation exceeding five minutes in length. Charges for such production costs and any fees for use of other public access channels shall be consistent with the goal of affording 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 non-commercial programming free of charge on a first come, non-discriminatory basis.
ii. Whenever any of the access channels are in use during 80% of the weekdays (Monday through Friday), for 80% of the time during any consecutive 3 hour period for 6 weeks running, and there is demand for use of an additional channel for the same purpose, franchisee shall then have 6 months in which to provide a new specially designated access channel for the same purpose at no additional cost to subscribers.
iii. The rules and regulations established by the franchisee and approved by city governing the access channels shall be filed with the Board within 90 days after any such channels are put into use.
iv. Subscribers receiving programs on one or more special service channels without also receiving the regular subscriber services may receive only one specially designated composite access channel composed of the programming on access channels. Subscribers receiving only alarm system services or only data transmission services for computer operated functions shall not be included in this requirement.
v. The franchisee shall comply at a minimum, with the requirements of city and Board, now or hereafter adopted by city or Board regarding public use of its equipment, including the following:
a. Franchisee shall donate for public use at least minimal equipment necessary for the production of programming and playback of pre-recorded programs for the specially designated non-commercial public access channel and the minimum equipment necessary to make it possible to record programs at remote locations with battery operated portable equipment. The franchisee shall also donate, upon need being shown, all items listed in equipment appendix, by the City Council.
b. Need within the meaning of this paragraph shall be determined in the sole discretion of city or by subscriber petition. The petition must contain the signatures of at least 10% of the subscribers of the system, but in no case more than 500 nor fewer than 100 signatures.
vi. Service to public buildings and educational institutions.
a. Upon demonstration or determination of need, the franchisee shall provide, at a minimum, subscriber and institutional network service to all publicly owned buildings, in city (City Hall, police department fire department, schools, libraries, and the like), all educational institutions in city, and all buildings now or hereafter wholly or partially owned or leased by school districts or educational institutions in city, the cost of which shall be negotiated.
b. Need for either or both of such network services as referred to in the offering shall be determined in the sole discretion of city.
vii. Public access authority.
a. When the need is determined by the Advisory Board it is hereby designated that the organization given authority to operate the public access channels for the good of the public shall be known as the Cable TV Public Access Authority (hereafter known as the "Authority"). The Authority shall have a charter adopted after review and authorization by the cable TV board and then total review and a resolution passed by each of the City Councils involved in the cable franchise system.
b. All rules and regulations adopted by the Authority shall be subject to the approval of the Advisory Board.
c. The annual budget to be adopted by the Authority will be reviewed and approved by the Advisory Board.
d. There shall be 1 board member sitting on the Authority's Board of Directors acting as an ex officio member for liaison and communication between the Public Access Authority and the Cable Advisory Board.
(l) Franchise fee.
1. As per the Federal Communication Commission's rules and regulations, all franchise systems can assess a 3% franchise fee. Throughout the term of this franchise, franchisee will pay to city, within 60 days after the end of each fiscal year of franchise, an annual fee of 3% of all gross revenues. Franchisee agrees to support any waiver required by the FCC for 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, but in no event shall the renegotiated fee be less than 3%. It is understood that the cost of this franchise fee may be passed on to the consumer.
2. Payment will be made to city with an itemization of the gross revenues derived from the services in city.
3. It is the intention of the enabling bodies to use a major portion of this 3% franchise fee specifically for public access cablecasting. This fee may specifically be placed in a designated fund for this purpose and may be used both for providing a source of funds for any coordination of the cablecasting and additional moneys that may be necessary because of these cablecasting operations.
(m) Complaints and repairs.
1. For the purposes of interpreting this subdivision, the term
COMPLAINT shall mean an accusation, stipulated in writing, that the franchisee has failed to provide proper service or in some other way violated this franchise, including, but not limited to, service received, signal quality, equipment malfunction and billing disputes. Initial requests for service and inquiries relating to temporary service outages shall not constitute a complaint.
2. If the franchisee should expand the service area into locations outside of the local telephone system, he or she shall provide a collect-call telephone number for the purpose of complaints from subscribers in those areas.
3. The franchisee shall keep a maintenance and repair system log indicating:
a. The nature of each complaint by the franchisor, subscriber, or other citizen.
b. The date and time the complaint was received.
c. The disposition of the complaint and the time and date of disposition.
The log shall be made available for periodic inspections by the city. All complaint entries to the log shall be kept on file for a period of 3 years.
4. The franchisee shall investigate all complaints as soon as possible and shall rectify the cause of the complaint if reasonably possible. Twenty-four hours shall generally be accepted as a reasonable amount of time within which to initiate investigations of complaints. If the complaint is received on a Saturday, then the investigation should be initiated on the following Monday.
5. If a subscriber or citizen complaint cannot be resolved, the complainant may then file the complaint with the city. The City Administrator shall attempt to resolve the complaint. If the complaint remains unresolved, the complainant may present it to the City Council for a decision. The franchisee or the complainant may appeal a decision of the City Council to the Board, in accordance to Board rules governing subscriber complaints.
6. The Advisory Board shall hold a public meeting in October of each year for the purpose of reviewing complaints. Legal notice of this meeting shall be published not less than 10 days prior to the date of the meeting.
7. The franchisee shall maintain a repair service capable or responding to subscriber complaints or requests for service within 24 hours after receipt of the complaint or request for service.
8. Whenever it is necessary to shut off or interrupt services for the purpose of making repairs, adjustments, or installation, the franchisee shall attempt to do so during periods of minimum use of the system by subscribers. Unless such interruption is unforeseen and immediately necessary, the franchisee shall give reasonable notice thereof to the subscribers affected. All costs incurred in making such repairs, adjustments, or installations shall be borne by the franchisee unless otherwise provided for in the franchise or subscriber contract.
(n) Construction of system.
1. Permission for the franchisee to construct cable communication systems within the city is hereby authorized, provided that the franchisee has given the city reasonable notice of the proposed construction thereof, so as to coordinate all work between the city and the franchisee.
2. The franchisee shall not open or disturb the surface of any street, sidewalk, driveway or public place for any purpose without first having obtained a permit to do so from the City Council, for which permit the city may impose a reasonable fee to be paid by the franchisee. The lines, conduits, cables and other property placed in the streets and public places pursuant to such permit shall be located in the streets, or portions of the streets and public places as shall be determined by the City Council. The franchisee shall, upon completion of any work requiring the opening of any street or public place, restore the same, including the paving and its foundations, to as good a condition as formerly, and in a manner and quality approved by the City Council, and shall exercise reasonable care to maintain the same thereafter in good condition. Such work shall be performed with due diligence and if the franchisee shall fail to perform the work promptly, to remove all dirt and rubbish and to put the street or public place back in good condition,. the city shall have the right to put the street or public place back into good condition, at the expense of the franchisee and the franchisee shall, upon demand, pay to the city, cost of such work done or performed by the city together with an additional sum as liquidated damages to be determined by the city.
3. All wires, conduits, cables and other property and facilities of the facilities of the franchisee 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 the streets and public places of the city. The franchisee shall keep and maintain all of its property in good condition, order and re-pair, so that the same shall not menace or endanger the life or property of any person. The city shall have the right to inspect and examine at any reasonable time and upon reasonable notice the property owned or used, in part or in whole, by the franchisee. The franchisee shall keep accurate maps and records of all its facilities and furnish copies of such maps and records as requested by the city.
4. All wires, cables, amplifiers and other property of the franchisee shall be constructed and installed in an orderly and workmanlike manner. All cables and wires shall be installed parallel with existing telephone and electric wires whenever possible. Multiple cable configurations shall be arranged in parallel and bundled, with due respect for engineering considerations.
5. All construction, installation, maintenance and operation of any cable communications system or any facilities employed in connection therewith shall be in compliance with the provisions of the National Electrical Safety Code as prepared by the National Bureau of Standards, the National Electrical Code of the National Board of Fire Underwriters, the Bell Telephone System's Code of Pole Line Construction, any standards issued by the Federal Communications Commission or other federal or state regulatory agencies in relation thereto, and local zoning regulations. In any event, shall be so designed, constructed, installed, maintained and operated as not to endanger or interfere with the safety of persons or property in the city.
6. Whenever the city shall undertake any public improvement which affects cable communications equipment, it shall, with due regard to reasonable working conditions, direct the franchisee to remove or relocate its wires, conduits, cables and other property located in said street, right of way, or public place. The franchisee shall relocate or protect its facilities at its own expense. The city shall give the franchisee reasonable notice of the under-taking of public improvements which affect the franchisee's cable communications equipment.
(o) Certificate of confirmation.
The franchise shall cease to be of any force and effect if the franchisee fails to obtain either a regular certificate of confirmation or renewal of a certificate of confirmation from the Board, provided however, that the franchisee may operate his cable communications system while the Board is considering the application for the renewal of his or her certificate of confirmation.
(p) Transferability.
No sale, assignment, or lease of this franchise shall be effective until the city shall have approved the same and the vendee, assignee, or lessee shall have filed in the office of the City Clerk an instrument duly executed reciting the fact of the sale, assignment, or lease, accepting the terms of this permit and agreeing to perform all conditions thereof.
(q) Franchise terms.
1. The franchise will expire December 31, 1997.
2. Any renewal of this franchise shall not be for a period of more than 15 years or the greatest number of years the state or federal government will allow.
3. Renegotiation of any or all of the terms of the franchise may occur at such times as may be mutually agreed upon by the franchisor and the franchisee. Prior to December 31, 1987, and December 31, 1992, the franchisor shall conduct a complete evaluation of the performance of the Franchisee. Based on this evaluation and for due cause, the franchisor reserves the right to renegotiate the following subdivisions of the franchise at these times: subscriber charges, complaints and repairs, channel capacity and two-way capability. A complete renegotiation of the con-tract shall occur at least at the end of the franchise term, unless the franchisor determines not to reissue the franchise to the franchisee or desires to consider additional applications for the franchise. At the city's discretion it may be possible for the city to purchase the total system or a portion of the system to be used for city operation.
4. Franchisee may apply for renewal of this franchise not earlier than 18 months prior to the expiration of this franchise on forms provided by city. The renegotiation period shall commence not less than 12 months before the expiration of the franchise term.
5. Franchisee may be approved, and this franchise or modification to it may be renewed or extended, by City, in accordance with the then existing rules of the FCC, the Board, the City and all other applicable laws, ordinances, rules or regulations.
6. Nothing in this franchise shall be construed to require renewal or extension of this franchise.
7. City shall conduct an investigation and evaluation of the franchisee and the system and the renewal proposal. This investigation and evaluation shall be completed by city within 6 months after receipt of the application and determination by city of its completeness.
(r) Equipment appendix.
1. Equipment selection for the Public Access facility:
a. Equipment acquisitions or purchases will be accomplished in stages.
b. Movement to the next stage will be predicated on the amount of use the facility received in the preceding stage.
2. The first stage will be operated with equipment furnished by franchisee. Subsequent stages will require the purchase of equipment from monies acquired through the franchise fee (50%) and 50% from the franchisee. (Except for the first year, when the franchisee will be responsible for the first $5,000 of purchase.)
a. First stage.
i. 2 - 3 B/W video cameras.
ii. 1 - 3/4 Umatic video recorder.
iii. 1 - 1" Sony video recorder.
iv. 1 - portapak recorder w/color camera.
v. 1 - color monitor 13".
vi. 1 - modulator.
vii. 2 - microphones EV635A.
viii. 1 set - portable lights.
ix. 1 - FM tuner w/pre amp.
x. 2 - tripods.
xi. Device for converting 35 mm film to video.
xii. Interconnect equipment $600.
b. If sufficient use of the facility is realized (by the pre-set standards), proceed to the next stage.
c. If usage dictates that the facility showed considerable use, in the next stage a full color studio will replace the B/W cameras furnished in the first stage. The cameras should be of the medium to low cost variety. It is not felt that any professional or broadcast quality equipment would be warranted due to the "amateur" use of the equipment.
d. Second stage.
1 | Portapak Recorder w/Color Camera | $2,000 |
1 | Switcher (SEG) | $3,600 |
2 | Color Cameras (example: Panasonic 3900) | $12,000 |
1 | 3/4 Umatic Video Recorder | $1,900 |
4-5 | B/W 9" Monitors | $1,000 |
1 | Audio Mixer | $1,000 |
Additional Lighting | $400 | |
Misc. Studio Equipment | $3,000 | |
Editing Equipment - 3/4 Umatic | $17,000 |
(Franchise 16, passed 9-8-1981)
(2) Ordinance No. 69, Third Series.
(a) An ordinance of the City of North Mankato, Minnesota, amending the North Mankato City Code, chapter 3, entitled "MUNICIPAL AND PUBLIC UTILITIES, RULES AND REGULATIONS, FRANCHISES AND RATES" by modifying certain portions of the "CABLE TV FRANCHISE ORDINANCE FOR TV SIGNAL COMPANY" as it relates to cable system capacity.
(b) The City Council of the City of North Mankato, Minnesota, ordains:
1. The North Mankato City Code, Section 3.60, Subdivision (F)(1)(h)(6) is hereby amended to read:
a. Subdivision (F)(1)(h)(6). The franchisee shall establish a schedule of changes for optional subscriber services: such as pay TV, optional TV channels and sports networks, and the like. The franchisee shall file with the City Clerk a schedule of current operational subscriber service charges for all charges in effect. There shall be a limit on the number of pay options approved by the respective Councils. Options shall allow for 4 pay channels plus one pay-for-view channel only beyond basic service.
2. The North Mankato City Code, Section 3.60, Subdivision (F)(1)(j), Channel Capacity, is hereby amended to read:
a. Subdivision (j). Channel Capacity. The franchisee shall provide and hereafter maintain a subscriber network of having at least a forward capacity of 35 video channels, plus the FM audio band of 20 FM off-set or on-set radio channels, and a possible reverse capacity of 4 video channels within 12 months of the effective date of this amendment. It is understood that it may be required that within 60 months of the effective date of this amendment, the system may be expanded to a 54 channel system. Due to the state of the art of the communications industry, there is a possibility of substantial additional channels being added within the next 5 to 10 year period. Therefore, the Cable Board will review the channel capacity requirements necessary on the 5 year anniversary date of the effective date of this amendment, and, therefore, the system shall be capable of increasing its channel capacity as technology permits and needs arise.
(Franchise 69, passed - )
(3) Ordinance No. 106, Third Series.
(a) An ordinance granting Minnegasco, Inc., a Minnesota corporation, its successors and assigns, a nonexclusive franchise to construct, operate, repair and maintain facilities and equipment for the transportation, distribution, manufacture and sale of gas energy for public and private use and to use the public ground of the City of North Mankato, Minnesota for such purposes; and prescribing certain terms and conditions thereof.
(b) The City Council of North Mankato ordains:
1. Definitions. The following terms shall mean:
COMPANY. Minnegasco, Inc., a Minnesota corporation, its successors and assigns.
GAS. Natural gas, manufactured gas, mixture of natural gas and manufactured gas or other forms of gas energy.
MUNICIPALITY, MUNICIPAL COUNCIL, MUNICIPAL CLERK. These terms mean respectively, the City of North Mankato, the Council of the City of North Mankato and the Clerk of the City of North Mankato.
PUBLIC GROUND. All streets, alleys, public ways, utility easements and public grounds of the Municipality as to which it has the right to grant the use to the Company.
2. Franchise generally.
a. Grant of franchise. There is hereby granted to the Company, for a period of 20 years, the right to import, manufacture, transport, distribute and sell gas for public and private use in the municipality, and for these purposes to construct, operate, repair and maintain in, on, over, under and across the public ground of the municipality, all facilities and equipment used in connection therewith, and to do all things which are necessary or customary in the accomplishment of these objectives, subject to zoning ordinances, other applicable ordinances, permit procedures, customary practices, and the provisions of this franchise.
b. Effective date; written acceptance. This franchise shall be in force and effect from and after its passage and publication as required by law, and its acceptance by the company in writing filed with the Municipal Clerk within 60 days after publication.
c. Nonexclusive franchise. This is not an exclusive franchise.
d. Publication expense. The expense of publication of this ordinance shall be paid by the Company.
e. Default.
i. If the company is in default in the performance of any material part of this franchise for more than 90 days after receiving written notice from the municipality of such default, the Municipal Council may, by ordinance, terminate all rights granted hereunder to the company. The notice of default shall be in writing and shall specify the provisions of this franchise under which the default is claimed and state the basis therefor. Such notice shall be served on the company by personally delivering the notice to an officer thereof at its principal place of business in Minnesota.
ii. If the company is in default as to any part of this franchise, the municipality may, after reasonable notice to the company and the failure of the company to cure the default within a reasonable time, take such action as may be reasonably necessary to abate the condition caused by the default, and the company agrees to reimburse the municipality for all its reasonable costs.
iii. Nothing in this section shall bar the company from challenging the municipality's claim that a default has occurred. In the event of disagreement over the existence of a default, the burden of proving the default shall be on the municipality.
3. Conditions of use.
a. Use of public ground. All utility facilities and equipment of the company shall be located, constructed, installed and maintained so as not to endanger or unnecessarily interfere with the usual and customary traffic, travel, and use of public ground, and shall be subject to those permit conditions the municipality has adopted for all utilities.
b. Restoration. Upon completion of any work requiring the opening of any public ground, the company shall restore the same, including paving and its foundations, to as good condition as formerly, insofar as reasonably possible. The restoration shall be completed as promptly as weather permits, but if the company shall not promptly perform and complete the work, the municipality shall have the right to do so at the expense of the company; and the company shall, upon demand, pay to the municipality the reasonable cost of the work performed by the municipality.
c. Relocation of utility facilities.
i. The company shall promptly, with due regard for seasonal working conditions, permanently relocate its facilities or equipment whenever the municipality orders such relocation. If the relocation is for the sole benefit of the municipality in the furtherance of a public purpose, the company shall relocate at its own expense. If the relocation is not a result of the furtherance of a public purpose, the relocation shall be at the expense of the municipality. If such relocation is done without an agreement first being made as to who shall pay the relocation cost, such relocation of the facilities by the company shall not be construed as a waiver of its right to be reimbursed for the relocation cost. If the company claims that it should be reimbursed for such relocation costs, it shall notify the municipality within 30 days after receipt of such order. The municipality shall give the company reasonable notice of plans requiring such relocation.
ii. Nothing contained in this subsection shall require the company to remove and replace its mains or to cut and reconnect its service pipe running from the main to a customer's premises at its own expense where the removal and replacement or cutting and reconnecting is made for the purpose of a more expeditious operation for the construction or reconstruction of underground facilities; nor, shall anything contained herein relieve any person from liability arising out of the failure to exercise reasonable care to avoid damaging the company's facilities while performing any work in any public ground.
d. Relocation when public ground vacated. If gas facilities or equipment are in place, the vacation of any public ground shall not operate to deprive the company of the right to operate and maintain its facilities therein. However, if the municipality desires that such facilities or equipment be relocated, then the provisions of division (b)(3)(c) above shall be controlling.
e. Street improvements, paving or resurfacing. The municipality shall give the company reasonable written notice of plans for street improvements where paving or resurfacing of a permanent nature is involved. The notice shall contain the nature and character of the improvements, the streets upon which the improvements are to be made, the extent of the improvements and the time when the municipality will start the work, and, if more than one street is involved, the order in which this work is to proceed. The notice shall be given to the company a sufficient length of time, considering seasonable working conditions, in advance of the actual commencement of the work to permit the company to make any additions, alterations or repairs to its facilities the company deems necessary. The cost of making additions shall be paid in accordance with Minnegasco's tariff or the rules and regulations established by the Minnesota Public Utilities Commission. The cost of alterations or repairs shall be done at the company's own expense.
4. Indemnification.
a. The company shall indemnify, keep and hold the municipality, its elected officials, officers, employees, and agents free and harmless from any and all claims and actions on account of injury or death of persons or damage to property occasioned by the construction, maintenance, repair, removal, or operation of the company s property located in, on, over, under, or across the public ground of the municipality, unless such injury or damage is the result of the negligence of an affirmative physical act negligently performed by the municipality, its elected officials, employees, officers, or agents. The municipality shall not be entitled to reimbursement for its costs incurred prior to notification to the company of claims or actions and a reasonable opportunity for the company to accept and undertake the defense.
b. If a claim or action shall be brought against the municipality under circumstances where indemnification applies, the company, at its sole cost and expense, shall defend the municipality if written notice of the claim or action is promptly given to the company within a period wherein the company is not prejudiced by lack of such notice. The company shall have complete control of such claim or action, but it may not settle without the consent of the municipality, which shall not be unreasonably withheld. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the municipality, and the company in defending any action on behalf of the municipality shall be entitled to assert every defense or immunity that the municipality could assert in its own behalf.
5. Assignment. The company, upon notice to the municipality shall have the right and authority to assign all rights conferred upon it by this franchise to any person. The assignee of such rights, by accepting such assignment, shall become subject to the terms and provisions of this franchise.
6. Change in form of government. Any change in the form of government of the municipality shall not affect the validity of this franchise. Any governmental unit succeeding the municipality shall, without the consent of the company, automatically succeed to all of the rights and obligations of the municipality provided in this franchise.
7. Severability. If any portion of this franchise is found to be invalid for any reason whatsoever, the validity of the rest of this franchise shall not be affected.
8. Notices. Any notice required by this franchise shall be sufficient if, in any case of notice to the Company, it is delivered to Minnegasco, Inc., attention Vice President, Minnesota Operations Division, 201 South Seventh Street, Minneapolis, Minnesota 55402; and, in the case of the municipality, it is delivered to:
(Franchise 106, passed 6-5-1989)
(4) Ordinance No. 128, Third Series
(a) An ordinance of the City of North Mankato, Minnesota, amending Section 3.40 of the North Mankato City Code, entitled "Franchise - Blue Earth-Nicollet Cooperative Electric Association" and Section 3.41 entitled "Franchise - Northern States Power Company", by extending the term of the same.
(b) The City Council of the City of North Mankato, Minnesota, ordains:
1. North Mankato City Code, Section 3.40, is amended by adding Subdivision 6, as follows:
a. Subd. 6. The term of this Section shall be extended so as to expire effective September 23, 1993.
2. North Mankato City Code, Section 3.41, is amended by adding Subdivision 6, as follows:
a. Subd. 6. The term of this Section shall be extended so as to expire effective September 23, 1993.
(Franchise 128, passed 6-7-1993)
(5) Ordinance No. 131, Third Series
(a) An ordinance of the City of North Mankato, Minnesota, amending Section 3.40 of the North Mankato City Code, entitled "Franchise - Blue Earth-Nicollet Cooperative Electric Association" and Section 3.41 entitled "Franchise - Northern States Power Company", by extending the term of the same.
(b) The City Council of the City of North Mankato, Minnesota, ordains:
1. North Mankato City Code, Section 3.40, is amended by adding Subdivision 6, as follows:
a. Subd. 6. The term of this Section shall be extended so as to expire effective December 23, 1993.
2. North Mankato City Code, Section 3.41, is amended by adding Subdivision 6, as follows:
a. Subd. 6. The term of this Section shall be extended so as to expire effective December 23, 1993.
(Franchise 131, passed 9-20-1993)
(6) Electric Franchise Ordinance No. 140
(a) An ordinance granting to Northern States Power Company, a Minnesota corporation, its successors and assigns, permission to construct, operate, repair and maintain in the city of North Mankato, Minnesota, an electric distribution system and transmission lines, including necessary poles, lines, fixtures and appurtenances, for the furnishing of electric energy to the city, its inhabitants, and others, and to use the public ways and public grounds of the city for such purposes.
(b) The City Council of the City of North Mankato, Nicollet County, Minnesota, does ordain:
1. Definitions.
CITY. The City of North Mankato, County of Nicollet, State of Minnesota.
CITY UTILITY SYSTEM. The facilities used for providing sewer, water, or any other public utility service owned or operated by city or agency thereof.
COMPANY. Northern States Power Company, a Minnesota corporation, its successors and assigns.
ELECTRIC FACILITIES. Electric transmission and distribution towers, poles, lines, guys, anchors, conduits, fixtures, and necessary appurtenances owned or operated by the company for the purpose of providing electric energy for public use.
NOTICE. A writing served by any party or parties on any other party or parties. Notice to the Company shall be mailed to the manager thereof at 210 Lime Street, P.O. Box 1090, Mankato, Minnesota 56002-1090. Notice to the city shall be mailed to the City Clerk, City Hall, P.O. Box 2055, 1001 Belgrade Avenue, North Mankato, MN 56003. Each party may change its respective address for the purpose of this ordinance by providing written notice to the other party.
PUBLIC GROUND. Land owned by the city for park, open space or similar purpose, which is held for use in common by the public.
PUBLIC WAY. Any street, alley, or other public right-of-way within the city.
2. Franchise.
a. Grant of franchise. City hereby grants company, for a period of 20 years, from and after April 1, 1994, the right to transmit and furnish electric energy for light, heat, power and other purposes for public and private use within and through the limits of the city as its boundaries now exist or as they may be extended in the future. For these purposes, company may construct, operate, repair and maintain electric facilities in, on, over, under and across the public ways and public grounds of city, subject to the provisions of this ordinance. Company may do all reasonable things necessary or customary to accomplish these purposes, subject, however, to zoning ordinances, other applicable ordinances, permit procedures, and to the further provisions of this franchise.
b. Effective date written acceptance. This franchise shall be in force and effect from and after its passage and its acceptance by the company, and its publication as required by law and the City Code. An acceptance by the company must be filed with the City Clerk within 90 days after publication.
c. Service rates and area. The service to be provided and rates to be charged by company for electric service in city currently are subject to the jurisdiction of the Minnesota Public Utilities Commission. The area within the city in which the company may provide electric service currently is subject to the provisions of M.S. § 216B.40.
d. Publication expense. The expense of publication of this ordinance shall be paid by the company.
e. Default. If either party asserts that the party is in default in the performance of any obligation hereunder, the complaining party shall notify the other party of the default and the desired remedy. The notification shall be written. If the dispute is not resolved with 30 days of the written notice, either party may commence an action in District Court to interpret and enforce this franchise or for such other relief as may be permitted by law or equity for breach of contract, or either party may take any other action permitted by law.
f. Termination of franchise. The city in granting this franchise does so with an objective of establishing a uniform fee to be collected and paid to city by all energy suppliers using facilities installed in city streets to provide electricity, gas or other energy service for the purposes referenced in division (9)(d). At the current time, the city's franchise with the local gas utility does not permit collection of a franchise fee. The city intends to establish uniform franchise fees upon the termination of such gas franchise on or about June 5, 2009. If the provisions of this franchise frustrate this objective of the city, then the city may, after at least 90 days prior written notice to company, terminate the franchise hereby granted effective any date on or after May 31, 2009, unless the company agrees to an amendment to this franchise reasonably requested by the city to fulfill its uniform franchise fee objective.
3. Location, other regulations.
a. Location of facilities. Electric facilities shall be located and constructed so as not to interfere with the safety and convenience of ordinary travel along and over public ways and they shall be located on public grounds as determined by the city. The company's construction, reconstruction, operation, repair, maintenance and location of electric facilities shall be subject to other reasonable regulations of the city.
b. Field locations. The company shall provide field locations for any of its underground electric facilities within a reasonable period of time on request by the city. The period of time will be considered reasonable if it compares favorably with the average time required by the cities in the same county or adjacent counties to locate municipal underground facilities for the company.
c. Street openings. The company shall not open or disturb the paved surface of any public way or public ground for any purpose without first having obtained permission from the city, for which the city may impose a reasonable fee. Permit conditions imposed on the company shall not be more burdensome than those imposed on other utilities for similar facilities or work. The company may, however, open and disturb the paved surface of any public way or public ground without permission from the city where an emergency exists requiring the immediate repair of electric facilities. In such event the company shall notify the city by telephone to the office designated by the city before opening or disturbing a paved surface of a public way or public ground. Not later than the second working day thereafter, the company shall obtain any required permits and pay any required fees.
d. Restoration. After undertaking any work requiring the opening of any public way or public ground, the company shall restore the same, including paving and its foundation, to as good condition for two years thereafter. The work shall be completed as promptly as weather permits, and if the company shall not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the public way or public ground in the said condition, the city shall have, after demand to the company to cure and the passage of a reasonable period of time following the demand, but not to exceed 5 days, the right to make the restoration at the expense of the company. The company shall pay to the city the cost of such work done or performed by the city, including its administrative expense and overhead. This remedy shall be in addition to any other remedy available to the city.
e. Shared use of poles. The company shall make space available on its poles or towers for city fire, water utility, police or other city facilities whenever such use will not interfere with the use of such poles or towers by the company, by another electric utility, by a telephone utility, or by any cable television company or other form of communication company. In addition, the city shall pay for any added cost incurred by the company because of such use by city.
4. Relocations.
a. Relocation of electric facilities in public ways. Except as provided in division (4)(c) below, if the city determines to vacate for a city improvement project, or to grade, regrade, or change the line of any public way, or construct or reconstruct any city utility system in any public way, it may order the company to relocate its electric facilities located therein. The company shall relocate its electric facilities at its own expense. The city shall give the company reasonable notice of plans to vacate for a city improvement project, or to grade, regrade, or change the line of any public way or to construct or reconstruct any city utility system. If a relocation is ordered within 5 years of a prior relocation of the same electrical facilities, which was made at company expense, the city shall reimburse company for non-betterment expenses on a time and material basis, provided that if a subsequent relocation is required because of the extension of a city utility system to a previously unserved area, company may be required to make the subsequent relocation at its expense. Nothing in this ordinance requires company to relocate, remove, replace or reconnect at its own expense its facilities where such relocation, removal, replacement or reconstruction is solely for the convenience of the city and is not reasonably necessary for the construction or reconstruction of a public way or city utility system or other city improvement.
b. Relocation of electric facilities in public ground. Except as may be provided in division (4)(c) below, city may require the company to relocate or remove its electric facilities from public ground upon a finding by city that the electric facilities have become or will become a substantial impairment of the public use to which the public ground is or will be put. The relocation or removal shall be at the company's expense.
c. Projects with state or federal funding. Relocation, removal, or rearrangement of any company facilities made necessary because of the extension into or through city of a federally aided or state aided highway project shall be governed by the provisions of M.S. § 161.46 as supplemented or amended. It is understood that the right herein granted to company is a valuable right. city shall not order company to remove, or relocate its facilities when a public way is vacated, improved or realigned because of a renewal or a redevelopment plan which is financially subsidized in whole or in part by the federal government or any agency thereof, unless the reasonable non-betterment costs of such relocation and the loss and expense resulting therefrom are first paid to company, but the city need not pay those portions of such for which reimbursement to it is not available.
d. No waiver by company. The provisions of division (4) apply only to electric facilities constructed in reliance on a franchise and the company does not waive its right under an easement or prescriptive right, or state or county permit.
e. Liability. Nothing in this ordinance relieves any person from liability arising out of the failure to exercise reasonable care to avoid damaging electric facilities while performing any activity.
5. Tree trimming. The company may trim all trees and shrubs in the public ways and public grounds of city interfering with the proper construction, operation, repair and maintenance of any electric facilities installed hereunder, provided that the company shall save the city harmless from any liability arising therefrom, and subject to permit or other reasonable regulation by the city.
6. Indemnification.
a. The company shall indemnify, keep and hold the city free and harmless from any and all liability on account of injury to persons or damage to property occasions by the construction, maintenance, repair, inspection, the issuance of permits, or the operation of the electric facilities located in the city. The city shall not be indemnified for losses or claims occasioned through its own negligence except for losses or claims arising out of or alleging the city's negligence as to the issuance of permits for, or inspection of, the company's plans or work. The city shall not be indemnified if the injury or damage results from the performance in a proper manner of acts reasonably deemed hazardous by company, and such performance is nevertheless ordered or directed by city after notice of company's determination.
b. In the event a suit is brought against the city under circumstances where this agreement to indemnify applies, the company at its sole cost and expenses shall defend the city in such suit if written notice thereof is promptly given to the company within a period wherein the company is not prejudiced by lack of such notice. If the company is required to indemnify and defend, it will thereafter have control of such litigation, but the company may not settle such litigation without the consent of the city, which consent shall not be unreasonably withheld. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the city; and the company, in defending any action on behalf of the city shall be entitled to assert in any action every defense or immunity that the city could assert in its own behalf.
7. Vacation of public ways.
a. The city shall give the company at least 2 weeks' prior written notice of a proposed vacation of a public way.
b. Except where required for a city street or other improvement projects, the vacation of any public way, after the installation of electric facilities, shall not operate to deprive company of its rights to operate and maintain such electrical facilities, until the reasonable cost of relocating the same and the loss and expense resulting from such relocation are first paid to company. In no case, however, shall city be liable to the company for failure to specifically preserve a right-of-way, under M.S. § 160.29.
8. Change in form of government. Any change in the form of government of the city shall not affect the validity of this ordinance. Any governmental unit succeeding the city shall, without the consent of the company, succeed to all of the rights and obligations of the city provided in this ordinance.
9. Franchise fee.
a. Separate resolution. During the term of the franchise hereby granted, and in lieu of any permit or other fees being imposed on the company, the city may impose on the company a franchise fee of not more than 5% of the company's gross revenues as hereinafter defined. The franchise fee may be imposed by a resolution duly adopted by the City Council, which resolution shall not be adopted until at least 60 days after written notice enclosing such proposed resolution has been served upon the company by certified mail. The fee shall not become effective until at least 60 days after written notice enclosing such adopted resolution has been served upon the company by certified mail. Except as provided in division (9)(e), division (2)(e) of this ordinance shall constitute the sole remedy for solving disputes between the company and the city in regard to the interpretation of, or enforcement of, the resolution. No action by the city to implement a franchise fee by resolution will commence until this ordinance is effective. Except as permitted in divisions (9)(e) and (f) herein, a resolution which does not impose a uniform franchise fee on all revenues within the definition of gross revenues shall not be effective against the company.
b. Terms defined. The term
GROSS REVENUES means all sums, excluding any surcharge or similar addition to the company's charges to customers for the purpose of reimbursing the company for the cost resulting from the franchise fee, received by the company from the sale of electricity to its retail customers within the corporate limits of the city.
c. Collection of fees. The franchise fee shall be payable not less often than quarterly and shall be based upon the gross revenues of the company during complete billing months during the period for which payment is to be made. The payments shall be due the last business day of the month following the period for which the payment is made. The percent fee may be changed by resolution from time to time; however, each change shall meet the same notice requirements as described in division (9)(a) and the percentage may not be changed more often than annually. Such franchise fee shall not exceed any amount which the company may legally charge to its customers prior to payment to the city by imposing a surcharge equivalent to such franchise fee in its rates for electric service. The company shall pay the city the franchise fee based upon amounts billed subject to subsequent reductions to account for uncollectibles or customer refunds. The time and manner of collecting the franchise fee is subject to the approval of the Public Utilities Commission, which the company agrees to use best efforts to obtain. The company agrees to make its gross revenue records available for inspection by the city at reasonable times, upon reasonable notice.
d. Condition of the fee. Except as provided in divisions (9)(e) and (f) herein the resolution imposing the franchise fee shall not be effective against the company unless it lawfully imposes and the city quarterly or more often collects a fee or tax of the same or greater percentage on the receipts from sales of energy within the city by any other energy supplier, provided that, as to such a supplier, the city has the authority to require a franchise fee or to impose a tax. The franchise fee or tax shall be applicable to energy sales for any energy use related to heating, cooling or lighting, as well as to the supply of energy needed to run machinery and appliances on premises located within the city, but shall not apply to energy sales for the purpose of providing fuel for vehicles.
e. Protection from loss of customer. The company has agreed to collect and pay any franchise fee imposed pursuant to division (9), with the understanding that the imposition of such fee will not solely cause a customer to cease or reduce its electric energy purchases from the company by modifying equipment, or installing new equipment, to use a form of energy (including electricity not purchased from the company) subject to a lesser or no fee paid by the energy supplier to city. In the event, a customer advises the company in writing that it does intend to modify its equipment or install new equipment or to change to a different form of energy, including energy not purchased from company, which is subject to a lesser or no franchise fee, payable by the proposed new supplier, it is agreed that the company will notify the city in writing of such customer position. The parties shall make every effort to consider the needs of the customer, and if the city agrees to an adjustment, the city shall by resolution adjust the franchise fee which the city would impose on that particular customer which adjustment may include either the elimination or reduction of the franchise fee. If the parties cannot agree to a resolution of the franchise fee respecting the complaining customer within 30 days of the date of written notice to the city, the issue will be submitted to an agreed and willing professional evaluator selected by the City Manager and the company, who shall make a final and binding determination regarding the question of whether the imposition of the franchise fee will solely cause a customer to cease or reduce its electric energy purchases from the company by modifying equipment or installing new equipment, to use a form of energy (including electricity not purchased from the company) subject to a lesser or no fee paid by the energy supplier to the city. The professional evaluator based upon his determination of this issue, shall make a final and binding determination regarding the imposition of the franchise fee to the particular customer which determination may include the retention, elimination, or reduction of the franchise fee to the customer. In the event the city and the company cannot agree on an individual to serve as a professional evaluator, then the provisions and disagreement shall be submitted to an arbitrator chosen in accordance with the provisions and procedures of the American Arbitration Association. The request for an arbitrator shall be made within the aforementioned 30 day period. The arbitrator so chosen, shall have the same authority as the professional evaluator would possess had the parties agreed on the individual so chosen. Any adjustment in the franchise fee for the customer, shall be retroactive to the date of the next regularly scheduled billing date following the date of notice to the city of the request for franchise fee adjustment and to the extent that a rebate is determined, may be accomplished by the company with its next regularly scheduled billing cycle after receipt of the decision of the evaluator or the arbitrator. If any reduction in franchise fees occurs under this section, the basis for the reduction will be reviewed annually to assure such reduction continues to be warranted.
f. Exception for 1% Fee. Notwithstanding other provisions of this section herein, the city may impose a franchise fee not to exceed 1% of the company's gross revenues by a resolution meeting the notice and other requirements of this section. Such resolution need only impose the fee on sales of electric energy within the city and need not impose a fee on sale of other suppliers of other forms of energy. Any franchise fee imposed pursuant to this section is exclusive of and not in addition to any other franchise fee imposed pursuant to division (9)(a).
10. Severability. If any portion of this franchise is found to be invalid for any reason whatsoever, the validity of the remainder shall not be affected.
11. Consumer information. The company shall furnish to the city such consumer usage information, by class of consumer, as may be requested by the city and permitted by law.
12. Amendment. This ordinance may be amended at any time by the city passing a subsequent ordinance declaring the provisions of the amendment, which amendatory ordinance shall become effective upon the filing of the company's written consent thereto with the City Clerk within 90 days after the effective date of the amendatory ordinance.
13. Previous franchises superseded. This franchise supersedes any previous electric franchise granted to the company or its predecessor.
(Franchise 140, passed 4-18-1994)
(7) Electric Franchise Ordinance No. 141.
(a) An ordinance granting to Blue Earth-Nicollet-Faribault cooperative electric association a/k/a Frost-Benco-Wells Electric, a Minnesota electric cooperative association, its successors and assigns, permission to construct, operate, repair and maintain in the City of North Mankato, Minnesota, an electric distribution system and transmission lines, including necessary poles, lines, fixtures and appurtenances, for the furnishing of electric energy to the city, its inhabitants, and others, and to use the public ways and public grounds of the city for such purposes.
(b) The City Council of the City of North Mankato, Nicollet County, Minnesota, does ordain:
1. Definitions.
CITY. The City of North Mankato, County of Nicollet, State of Minnesota.
CITY UTILITY SYSTEM. The facilities used for providing sewer, water, or any other public utility service owned or operated by city or agency thereof.
COOPERATIVE. Frost-Benco-Wells Electric, a Minnesota electric cooperative association, its successors and assigns.
ELECTRIC FACILITIES. Electric transmission and distribution towers, poles, lines, guys, anchors, conduits, fixtures, and necessary appurtenances owned or operated by the company for the purpose of providing electric energy for public use.
NOTICE. A writing served by any party or parties on any other party or parties. Notice to the Company shall be mailed to the manager thereof at P.O. Box 8, Mankato, Minnesota 56002-0008. Notice to the city shall be mailed to the City Clerk, City Hall, P.O. Box 2055, 1001 Belgrade Avenue, North Mankato, MN 56003. Each party may change its respective address for the purpose of this ordinance by providing written notice to the other party.
PUBLIC GROUND. Land owned by the city for park, open space or similar purpose, which is held for use in common by the public.
PUBLIC WAY. Any street, alley, or other public right-of-way within the city.
2. Franchise.
a. Grant of franchise. City hereby grants cooperative, for a period of 20 years, from and after April 1, 1994, the right to transmit and furnish electric energy for light, heat, power and other purposes for public and private use within and through the limits of the city as its boundaries now exist or as they may be extended in the future. For these purposes, cooperative may construct, operate, repair and maintain electric facilities in, on, over, under and across the public ways and public grounds of city, subject to the provisions of this ordinance. Cooperative may do all reasonable things necessary or customary to accomplish these purposes, subject, however, to zoning ordinances, other applicable ordinances, permit procedures, and to the further provisions of this franchise.
b. Effective date written acceptance. This franchise shall be in force and effect from and after its passage and its acceptance by the cooperative, and its publication as required by law and the City Code. An acceptance by the cooperative must be filed with the City Clerk within 90 days after publication.
c. Service rates, standard and area agreement.
i. The service rates to be charged by the cooperative for electric energy sold within the city limits shall be reasonable rates consistent with the financial and economic requirements of the cooperative to construct and maintain adequate facilities. to provide reliable services. The cooperative' service rules and standard shall conform to those standards consistently applied by other similarly non-regulated rural cooperatives in the State of Minnesota. To the extent service standards for electric service are or may be subject to the jurisdiction of the Minnesota Public Utilities Commission, they shall be subject to the conditions that the Commission may provide.
ii. The cooperative shall have the exclusive right to provide electric service at retail to each and ever present and future customer in its assigned service area within the boundaries of the city as may be determined from time to time by the Public Utilities Commission after notice and hearing as provided in M.S. Chap. 216B.40 or any laws amendatory thereto.
d. Publication expense. The expense of publication of this ordinance shall be paid by the cooperative.
e. Default. If either party asserts that the party is in default in the performance of any obligation hereunder, the complaining party shall notify the other party of the default and the desired remedy. The notification shall be written. If the dispute is not resolved with 30 days of the written notice, either party may commence an action in District Court to interpret and enforce this franchise or for such other relief as may be permitted by law or equity for breach of contract, or either party may take any other action permitted by law.
f. Termination of franchise. The city in granting this franchise does so with an objective of establishing a uniform fee to be collected and paid to city by all energy suppliers using facilities installed in city streets to provide electricity, gas or other energy service for the purposes referenced in division (9)(d). At the current time, the city's franchise with the local gas utility does not permit collection of a franchise fee. The city intends to establish uniform franchise fees upon the termination of such gas franchise on or about June 5, 2009. If the provisions of this franchise frustrate this objective of the city, then the city may, after at least 90 days prior written notice to cooperative, terminate the franchise hereby granted effective any date on or after May 31, 2009, unless the cooperative agrees to an amendment to this franchise reasonably requested by the city to fulfill its uniform franchise fee objective.
3. Location, other regulations.
a. Location of facilities. Electric facilities shall be located and constructed so as not to interfere with the safety and convenience of ordinary travel along and over public ways and they shall be located on public grounds as determined by the city. The cooperative's construction, reconstruction, operation, repair, maintenance and location of electric facilities shall be subject to other reasonable regulations of the city.
b. Field locations. The cooperative shall provide field locations for any of its underground electric facilities within a reasonable period of time on request by the city. The period of time will be considered reasonable if it compares favorably with the average time required by the cities in the same county or adjacent counties to locate municipal underground facilities for the cooperative.
c. Street openings. The cooperative shall not open or disturb the paved surface of any public way or public ground for any purpose without first having obtained permission from the city, for which the city may impose a reasonable fee. Permit conditions imposed on the cooperative shall not be more burdensome than those imposed on other utilities for similar facilities or work. The cooperative may, however, open and disturb the paved surface of any public way or public ground without permission from the city where an emergency exists requiring the immediate repair of electric facilities. In such event the cooperative shall notify the city by telephone to the office designated by the city before opening or disturbing a paved surface of a public way or public ground. Not later than the second working day thereafter, the cooperative shall obtain any required permits and pay any required fees.
d. Restoration. After undertaking any work requiring the opening of any public way or public ground, the cooperative shall restore the same, including paving and its foundation, to as good condition for two years thereafter. The work shall be completed as promptly as weather permits, and if the cooperative shall not promptly perform and complete the work, remove all dirt, rubbish, equipment and material, and put the public way or public ground in the said condition, the city shall have, after demand to the cooperative to cure and the passage of a reasonable period of time following the demand, but not to exceed 5 days, the right to make the restoration at the expense of the cooperative. The cooperative shall pay to the city the cost of such work done or performed by the city, including its administrative expense and overhead. This remedy shall be in addition to any other remedy available to the city.
e. Shared use of poles. The cooperative shall make space available on its poles or towers for city fire, water utility, police or other city facilities whenever such use will not interfere with the use of such poles or towers by the cooperative, by another electric utility, by a telephone utility, or by any cable television cooperative or other form of communication company. In addition, the city shall pay for any added cost incurred by the cooperative because of such use by city.
4. Relocations.
a. Relocation of electric facilities in public ways. Except as provided in division (4)(c) below, if the city determines to vacate for a city improvement project, or to grade, regrade, or change the line of any public way, or construct or reconstruct any city utility system in any public way, it may order the cooperative to relocate its electric facilities located therein. The cooperative shall relocate its electric facilities at its own expense. The city shall give the cooperative reasonable notice of plans to vacate for a city improvement project, or to grade, regrade, or change the line of any public way or to construct or reconstruct any city utility system. If a relocation is ordered within 5 years of a prior relocation of the same electrical facilities, which was made at cooperative expense, the city shall reimburse cooperative for non-betterment expenses on a time and material basis, provided that if a subsequent relocation is required because of the extension of a city utility system to a previously unserved area, cooperative may be required to make the subsequent relocation at its expense. Nothing in this ordinance requires cooperative to relocate, remove, replace or reconnect at its own expense its facilities where such relocation, removal, replacement or reconstruction is solely for the convenience of the city and is not reasonably necessary for the construction or reconstruction of a public way or city utility system or other city improvement.
b. Relocation of electric facilities in public ground. Except as may be provided in division (4)(c) below, city may require the cooperative to relocate or remove its electric facilities from public ground upon a finding by city that the electric facilities have become or will become a substantial impairment of the public use to which the public ground is or will be put. The relocation or removal shall be at the cooperative's expense.
c. Projects with state or federal funding. Relocation, removal, or rearrangement of any cooperative facilities made necessary because of the extension into or through city of a federally aided or state aided highway project shall be governed by the provisions of M.S. § 161.46 as supplemented or amended. It is understood that the right herein granted to cooperative is a valuable right. city shall not order cooperative to remove, or relocate its facilities when a public way is vacated, improved or realigned because of a renewal or a redevelopment plan which is financially subsidized in whole or in part by the federal government or any agency thereof, unless the reasonable non-betterment costs of such relocation and the loss and expense resulting therefrom are first paid to cooperative, but the city need not pay those portions of such for which reimbursement to it is not available.
d. No waiver by cooperative. The provisions of division (4) apply only to electric facilities constructed in reliance on a franchise and the cooperative does not waive its right under an easement or prescriptive right, or state or county permit.
e. Liability. Nothing in this ordinance relieves any person from liability arising out of the failure to exercise reasonable care to avoid damaging electric facilities while performing any activity.
5. Tree trimming. The cooperative may trim all trees and shrubs in the public ways and public grounds of city interfering with the proper construction, operation, repair and maintenance of any electric facilities installed hereunder, provided that the cooperative shall save the city harmless from any liability arising therefrom, and subject to permit or other reasonable regulation by the city.
6. Indemnification.
a. The cooperative shall indemnify, keep and hold the city free and harmless from any and all liability on account of injury to persons or damage to property occasions by the construction, maintenance, repair, inspection, the issuance of permits, or the operation of the electric facilities located in the city. The city shall not be indemnified for losses or claims occasioned through its own negligence except for losses or claims arising out of or alleging the city's negligence as to the issuance of permits for, or inspection of, the cooperative's plans or work. The city shall not be indemnified if the injury or damage results from the performance in a proper manner of acts reasonably deemed hazardous by cooperative, and such performance is nevertheless ordered or directed by city after notice of cooperative's determination.
b. In the event a suit is brought against the city under circumstances where this agreement to indemnify applies, the cooperative at its sole cost and expenses shall defend the city in such suit if written notice thereof is promptly given to the cooperative within a period wherein the cooperative is not prejudiced by lack of such notice. If the cooperative is required to indemnify and defend, it will thereafter have control of such litigation, but the cooperative may not settle such litigation without the consent of the city, which consent shall not be unreasonably withheld. This section is not, as to third parties, a waiver of any defense or immunity otherwise available to the city; and the cooperative, in defending any action on behalf of the city shall be entitled to assert in any action every defense or immunity that the city could assert in its own behalf.
7. Vacation of public ways.
a. The city shall give the cooperative at least 2 weeks' prior written notice of a proposed vacation of a public way.
b. Except where required for a city street or other improvement projects, the vacation of any public way, after the installation of electric facilities, shall not operate to deprive cooperative of its rights to operate and maintain such electrical facilities, until the reasonable cost of relocating the same and the loss and expense resulting from such relocation are first paid to cooperative. In no case, however, shall city be liable to the cooperative for failure to specifically preserve a right-of-way, under M.S. § 160.29.
8. Change in form of government. Any change in the form of government of the city shall not affect the validity of this ordinance. Any governmental unit succeeding the city shall, without the consent of the cooperative, succeed to all of the rights and obligations of the city provided in this ordinance.
9. Franchise fee.
a. Separate resolution. During the term of the franchise hereby granted, and in lieu of any permit or other fees being imposed on the company, the city may impose on the cooperative a franchise fee of not more than 5% of the cooperative's gross revenues as hereinafter defined. The franchise fee may be imposed by a resolution duly adopted by the City Council, which resolution shall not be adopted until at least 60 days after written notice enclosing such proposed resolution has been served upon the cooperative by certified mail. The fee shall not become effective until at least 60 days after written notice enclosing such adopted resolution has been served upon the cooperative by certified mail. Except as provided in division (9)(e), division (2)(e) of this ordinance shall constitute the sole remedy for solving disputes between the cooperative and the city in regard to the interpretation of, or enforcement of, the resolution. No action by the city to implement a franchise fee by resolution will commence until this ordinance is effective. Except as permitted in divisions (9)(e) and (f) herein, a resolution which does not impose a uniform franchise fee on all revenues within the definition of gross revenues shall not be effective against the company.
b. Terms defined. The term
GROSS REVENUES means all sums, excluding any surcharge or similar addition to the cooperative's charges to customers for the purpose of reimbursing the cooperative for the cost resulting from the franchise fee, received by the cooperative from the sale of electricity to its retail customers within the corporate limits of the city.
c. Collection of fees. The franchise fee shall be payable not less often than quarterly and shall be based upon the gross revenues of the cooperative during complete billing months during the period for which payment is to be made. The payments shall be due the last business day of the month following the period for which the payment is made. The percent fee may be changed by resolution from time to time; however, each change shall meet the same notice requirements as described in division (9)(a) and the percentage may not be changed more often than annually. Such franchise fee shall not exceed any amount which the cooperative may legally charge to its customers prior to payment to the city by imposing a surcharge equivalent to such franchise fee in its rates for electric service. The cooperative shall pay the city the franchise fee based upon amounts billed subject to subsequent reductions to account for uncollectibles or customer refunds. The time and manner of collecting the franchise fee is subject to the approval of the Public Utilities Commission, which the cooperative agrees to use best efforts to obtain. The cooperative agrees to make its gross revenue records available for inspection by the city at reasonable times, upon reasonable notice.
d. Condition of the fee. Except as provided in divisions (9)(e) and (f) herein the resolution imposing the franchise fee shall not be effective against the cooperative unless it lawfully imposes and the city quarterly or more often collects a fee or tax of the same or greater percentage on the receipts from sales of energy within the city by any other energy supplier, provided that, as to such a supplier, the city has the authority to require a franchise fee or to impose a tax. The franchise fee or tax shall be applicable to energy sales for any energy use related to heating, cooling or lighting, as well as to the supply of energy needed to run machinery and appliances on premises located within the city, but shall not apply to energy sales for the purpose of providing fuel for vehicles.
e. Protection from loss of customer. The cooperative has agreed to collect and pay any franchise fee imposed pursuant to division (9), with the understanding that the imposition of such fee will not solely cause a customer to cease or reduce its electric energy purchases from the cooperative by modifying equipment, or installing new equipment, to use a form of energy (including electricity not purchased from the cooperative) subject to a lesser or no fee paid by the energy supplier to city. In the event, a customer advises the cooperative in writing that it does intend to modify its equipment or install new equipment or to change to a different form of energy, including energy not purchased from cooperative, which is subject to a lesser or no franchise fee, payable by the proposed new supplier, it is agreed that the cooperative will notify the city in writing of such customer position. The parties shall make every effort to consider the needs of the customer, and if the city agrees to an adjustment, the city shall by resolution adjust the franchise fee which the city would impose on that particular customer which adjustment may include either the elimination or reduction of the franchise fee. If the parties cannot agree to a resolution of the franchise fee respecting the complaining customer within 30 days of the date of written notice to the city, the issue will be submitted to an agreed and willing professional evaluator selected by the City Manager and the cooperative, who shall make a final and binding determination regarding the question of whether the imposition of the franchise fee will solely cause a customer to cease or reduce its electric energy purchases from the cooperative by modifying equipment or installing new equipment, to use a form of energy (including electricity not purchased from the cooperative) subject to a lesser or no fee paid by the energy supplier to the city. The professional evaluator based upon his determination of this issue, shall make a final and binding determination regarding the imposition of the franchise fee to the particular customer which determination may include the retention, elimination, or reduction of the franchise fee to the customer. In the event the city and the cooperative cannot agree on an individual to serve as a professional evaluator, then the provisions and disagreement shall be submitted to an arbitrator chosen in accordance with the provisions and procedures of the American Arbitration Association. The request for an arbitrator shall be made within the aforementioned 30 day period. The arbitrator so chosen, shall have the same authority as the professional evaluator would possess had the parties agreed on the individual so chosen. Any adjustment in the franchise fee for the customer, shall be retroactive to the date of the next regularly scheduled billing date following the date of notice to the city of the request for franchise fee adjustment and to the extent that a rebate is determined, may be accomplished by the cooperative with its next regularly scheduled billing cycle after receipt of the decision of the evaluator or the arbitrator. If any reduction in franchise fees occurs under this section, the basis for the reduction will be reviewed annually to assure such reduction continues to be warranted.
f. Exception for 1% Fee. Notwithstanding other provisions of this section herein, the city may impose a franchise fee not to exceed 1% of the cooperative's gross revenues by a resolution meeting the notice and other requirements of this section. Such resolution need only impose the fee on sales of electric energy within the city and need not impose a fee on sale of other suppliers of other forms of energy. Any franchise fee imposed pursuant to this section is exclusive of and not in addition to any other franchise fee imposed pursuant to division (9)(a).
10. Severability. If any portion of this franchise is found to be invalid for any reason whatsoever, the validity of the remainder shall not be affected.
11. Consumer information. The cooperative shall furnish to the city such consumer usage information, by class of consumer, as may be requested by the city and permitted by law.
12. Amendment. This ordinance may be amended at any time by the city passing a subsequent ordinance declaring the provisions of the amendment, which amendatory ordinance shall become effective upon the filing of the cooperative's written consent thereto with the City Clerk within 90 days after the effective date of the amendatory ordinance.
13. Previous franchises superseded. This franchise supersedes any previous electric franchise granted to the cooperative or its predecessor.
(Franchise 141, passed 4-18-1994)
(8) Cable Communications Franchise Ordinance, Ordinance No.156
(a) An ordinance granting a franchise to Bresnan communications company, a Michigan limited partnership, to construct, operate, and maintain a cable television system in the City of North Mankato; setting forth conditions accompanying the grant of the franchise; providing for regulation and use of the system; and prescribing penalties for the violation of its provisions
(b) The City Council of the City of North Mankato ordains:
1. Statement of intent and purpose.
a. 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.
b. Past studies by the city have led the way for organizing a means of procuring and securing of 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.
2. Findings. In the review of the proposal and application of Bresnan ("grantee"), and as a result of a public hearing, the City Council makes the following findings:
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, upgrading, 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.
3. Short title and definitions.
a. Short title. This franchise ordinance shall be known and cited as the Cable Communications Ordinance.
b. Definitions.
For the purposes of this franchise, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words in the singular number include the plural number. The word "shall' is always mandatory and not merely directory. The word "may" is directory and discretionary and not mandatory.
BASIC CABLE SERVICE. Any service tier which, at a minimum, includes the lawful retransmission of local television broadcast signals, and any public, educational, and governmental programming required by the franchise to be carried on the basic tier. Nothing herein shall limit the ability of the grantee to offer additional services in the basic cable service tier, and basic cable service as defined herein shall not be inconsistent with 47 U.S.C. § 543(b)(7) (1993).
BULK SUBSCRIBER EQUIVALENT. Calculated for each bulk contract based on the following formula: the full basic and cable programming service tier monthly rate shall be divided into the gross monthly bulk contract rate, equaling BULK SUBSCRIBER EQUIVALENTS. BULK SUBSCRIBER EQUIVALENTS shall be limited to residential-only facilities where tenants are not individually billed for service and shall exclude service to non-residential buildings and to Mankato State University.
CABLE COMMUNICATIONS SYSTEM or SYSTEM. A system of antennas, cables, wires, lines, towers, waveguides, or other conductors, converters, equipment, or facilities located in city and designed and constructed for the purpose of producing, receiving, transmitting, amplifying,
or distributing audio, video, and other forms of electronic signals in city.
SYSTEM as defined herein shall not be inconsistent with the definition as set forth in M.S. § 238.02, subd. 3 (1994) and 47 U.S.C. § 522(7) (1993).
CABLE PROGRAMMING SERVICE. Any video programming provided over a cable system, regardless of service tier, including installation or rental of equipment used for the receipt of such video programming, other than:
(1) Video programming carried on the basic service tier as defined in this section;
(2) Video programming offered on a pay-per-channel or pay-per program basis; or
(3) A combination of multiple channels of pay-per-channel or pay-per-program video programming offered on a multiplexed or time-shifted basis so long as the combined service:
(a) Consists of commonly-identified video programming; and
(b) Is not bundled with any regulated tier of service.
CABLE PROGRAMMING SERVICE as defined herein shall not be inconsistent with the definition as set forth in 47 U.S.C. § 543(1)(2)(1993) and 47 C.F.R. 76.901(b).
CABLE TELEVISION SERVICE. The provision of television reception, communications and/or entertainment services regulated pursuant to M.S. § 238.01 et seq. as may be amended from time to time for direct or indirect compensation, or as otherwise provided by this franchise ordinance, and distributing the same over a cable communications system. This definition shall not include telephone services regulated pursuant to M.S. § 237.01 et seq. and telecommunications services as defined in federal law as may be amended from time to time.
CITY. The City of North Mankato, a municipal corporation, in the State of Minnesota, acting by and through its City Council.
CITY COUNCIL. The North Mankato, Minnesota City Council.
CLASS IV CABLE COMMUNICATIONS CHANNEL. A signaling path provided by a cable communications system to transmit signals of any type from a subscriber terminal to another point in the system.
CONVERTER. 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.
DROP. The cable that connects the ground block on the subscriber's residence to the nearest feeder cable of the system.
FCC. The Federal Communications Commission and any legally appointed, designated or elected agent or successor.
GRANTEE. Bresnan Communications Company, its agents and employees, lawful successors, transferees or assignees.
GROSS REVENUES. All revenue received from cable television service, as defined, directly or indirectly by the grantee, its affiliates, subsidiaries, parent, or person in which grantee has financial interest of 5% or more from or in connection with the operation of its system within the city, including but not limited to basic cable service fees, cable programming service fees, pay television fees, installation and reconnection fees, upgrade and downgrade fees, converter rentals, lockout device fees, advertising revenues and shopping channel revenues, studio rental revenues, leased channel revenues, and production equipment and personnel fees or other services. GROSS REVENUES shall not include franchise fees, access operating fees, copyright fees, any fees itemized and passed through as a result of franchise imposed requirements, or any taxes or fees on services furnished by grantee imposed directly on any subscriber or user by any municipality, state, or other governmental unit and collected by grantee for such governmental unit.
INSTALLATION. The connection of the system from feeder cable to the point of connection, including standard installations and custom installations.
LOCKOUT DEVICE. 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 communication system.
NON-VOICE RETURN CAPABILITY. A system which is designed with the installation of cable and amplifiers suitable for the subsequent insertion of necessary non-voice communications electronic modules.
PAY TELEVISION. The delivery over the system of pay-per-channel or pay- per-program audio-visual signals to subscribers for a fee or charge, in addition to the charge for basic service or cable programming services.
PERSON. Any person, firm, partnership, association, corporation, company, or other legal entity.
STANDARD INSTALLATION. Any residential installation which can be completed using a drop of 150 feet or less.
STREET. The surface of, and the space above and below, any public street, road, highway, freeway, lane, alley, path, court, sidewalk, parkway, or drive, or any easement or right-of-way now or hereafter held by the city.
SUBSCRIBER. Any person who lawfully receives cable television services. In the case of multiple office buildings or multiple dwelling units, the SUBSCRIBER means the lessee, tenant or occupant.
4. Grant of authority and general provisions.
a. Grant of franchise. This franchise is granted pursuant to the terms and conditions contained herein. Such terms and conditions shall be subordinate to all applicable provisions of state and federal laws, rules and regulations.
i. Grantee shall accept this franchise in the following manner, and not later than the time set out in section 15(b).
(a) This franchise will be properly executed and acknowledged by grantee and delivered to city.
(b) All certificates of insurance, acceptances, security fund and bond(s) as required of grantee by this franchise, shall be delivered with the executed franchise.
b. Grant of nonexclusive authority.
i. The grantee shall have the right and privilege to construct, erect, operate, and maintain, in, upon, along, across, above, over and under the streets, alleys, public ways and public places now laid out or dedicated and all extensions thereof, and additions thereto in the city, poles, wires, cables, underground conduits, manholes, and other television conductors and fixtures necessary for the maintenance and operation in the city of a cable communications system as herein defined. The Cable communications system constructed and maintained by grantee or its agents shall not interfere with other uses of streets. Grantee shall make use of existing poles and other facilities available to grantee to the extent it is technically and economically feasible to do so.
ii. 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.
iii. This franchise shall be nonexclusive, and the city reserves the right to grant a similar use of the streets, alleys, public ways and places, to any person at any time during the period of this franchise, provided, however, that to the extent permitted by law, any additional franchise grants shall be under the same substantive terms and conditions as this franchise.
iv. Grantee shall have the authority to use city easements, public rights-of- way, streets and other conduits for the distribution of grantee's cable communications system. The city may require all developers of future subdivisions to allow and accommodate the construction of the system as part of any provisions for utilities to serve such subdivisions.
c. Franchise term. This franchise shall be in effect for a period of 15 years from the date of acceptance by grantee, unless renewed, revoked or terminated sooner as herein provided.
d. Previous franchises. Upon acceptance by grantee as required by section 15 herein, this franchise shall supersede and replace any previous ordinance or agreement granting a franchise to grantee to own, operate and maintain a cable communications system within the city. Ordinance No. 3.6 is hereby expressly repealed.
e. Compliance with applicable laws, resolutions and ordinances. The grantee shall at all times during the life of this franchise be subject to all lawful exercise of the police power and the right of eminent domain by the city. This franchise shall comply with the Minnesota franchise standards contained in M.S. § 238.01 (1994) et seq. which are not otherwise pre-empted by federal law.
f. Rules of grantee. The grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably necessary to enable the grantee to exercise its rights and perform its obligation under this franchise and to assure uninterrupted service to each and all of its subscribers; provided that such rules, regulations, terms and conditions shall not be in conflict with provisions hereto, the rules of the FCC, the laws of the State of Minnesota, city, or any other body having lawful jurisdiction thereof.
g. Territorial area involved. This franchise is granted for the corporate boundaries of the city, as it exists from time to time. In the event of annexation by the city, or as development occurs, any new territory shall become part of the area covered, provided, however, that grantee shall not be required to extend service beyond its present system boundaries unless there is a minimum of 30 homes per cable mile as measured from the last fiber node or terminating amplifier. 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. Grantee shall be given a reasonable period of time to construct and activate cable plant to service annexed or newly developed areas.
h. Written notice.
i. 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 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:
(a) | If to city: | City of North Mankato |
P.O. Box 2055 | ||
North Mankato, Minnesota 56002-2055 | ||
Attention: Denny Kemp | ||
(b) | With copies to: | Susan Rester Miles |
Hessian, McKasy & Soderberg, P.A. | ||
4700 IDS Center | ||
Minneapolis, MN 55402 | ||
(c) | If to grantee: | Bresnan Communications Company |
709 Westchester Avenue | ||
White Plains, New York 10604 | ||
Attention: Robert V. Bresnan, Esq. | ||
(d) | With copies to: | Larkin, Hoffman, Daly & Lindgren, Ltd. |
1500 Norwest Financial Center | ||
7900 Xerxes Avenue South | ||
Bloomington, Minnesota 55431 | ||
Attention: Jane E. Bremer, Esq. | ||
ii. Such addresses may be changed by either party upon notice to the other party given as provided in this section.
i. Drops to public buildings.
(a) Grantee shall provide installation of 1 cable drop, 1 cable outlet, and monthly basic service and the weather channel without charge to the following institutions and such other public or educational institutions located within 150 feet of the system which city may designate:
(1) North Mankato City Hall.
(2) North Mankato Police Station.
(3) North Mankato Fire Department (when constructed).
(4) North Mankato Street Department.
(5) North Mankato Park Department.
(6) North Mankato Water Plant #1 and #2.
(7) South Central Technical College.
(b) No redistribution of the free basic cable service and the weather channel provided pursuant to this section shall be allowed. Additional drops and/or outlets in any of the above locations will be provided at the cost of grantee's time and material. Alternatively, at the institution's request, said institution may add outlets at its own expense, as long as such installation meets grantee's standards and provided that any fees for cable television services are paid. Nothing herein shall be construed as requiring grantee to extend the system to serve additional institutions as may be designated by city. Grantee shall have 1 year from the date of City Council designation of additional institution(s) to complete construction of the drop and outlet.
5. Construction standards.
a. Construction standards. If the system, or subsequent rebuilds or extensions, proposed for the franchise area consist of fewer than 100 plant miles of cable:
i. Within 90 days of the granting of the franchise or in accordance with the construction schedule proposed by grantee, the grantee shall apply for the necessary governmental permits, licenses, certificates, and authorizations;
ii. The energized trunk cable must be extended substantially throughout the authorized area within 1 year after receipt of the necessary governmental permits, licenses, certificates, and authorizations and the persons along the route of the energized cable shall have individual drops as desired during the same period of time; and
iii. The above-stated requirements may be waived by the city only upon occurrence of acts beyond the reasonable control of grantee or acts of God.
b. Construction codes and permits.
i. Grantee shall obtain all necessary permits from the city before commencing any construction or extension of the system, including the opening or disturbance of any street, or private or public property within the city. Grantee shall comply with all building and zoning codes currently or hereafter applicable to construction, operation or maintenance of the system in the city and give due consideration at all times to the aesthetics of the property.
ii. The city shall have the right to inspect all construction or installation work performed pursuant to the provisions of the franchise and to make such tests as it shall find necessary to ensure compliance with the terms of the franchise and applicable provisions of local, state and federal law. City shall provide written notice to grantee at least 5 business days prior to conducting any tests on the system any shall be accompanied by a representative of grantee in grantee's discretion.
c. Repair of streets and property. Any and all streets or public property or private property, which are disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance or reconstruction of the system shall be promptly and fully restored by grantee, at its expense, to a condition as good as that prevailing prior to grantee's work, as approved by the city in the case of streets and other public property. If grantee shall fail to promptly perform the restoration required herein, city shall have the right to put the streets, public, or private property back into good condition. City reserves its rights to pursue reimbursement for such restoration from grantee.
d. Conditions on street use.
i. Nothing in this franchise shall be construed to prevent the city from constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing, relocating and/or altering any street; constructing, laying down, repairing, maintaining or relocating any water mains; or constructing, maintaining, relocating, or repairing any sidewalk or other public work.
ii. All system transmission and distribution structures, lines and equipment erected by the grantee within the city shall be located so as not to obstruct or interfere with the proper use of streets, alleys and other public ways and places, and to cause minimum interference with the rights of property owners who abut any of the streets, alleys and other public ways and places, and not to interfere with existing public utility installations. The grantee shall furnish to and file with the City Administrator the maps, plats, and permanent records of the location and character of all facilities constructed, including underground facilities, and grantee shall file with the city updates of such maps, plats and permanent records annually if changes have been made in the system.
iii. No poles, conduits or other wire-holding structures shall be erected or installed by grantee without the prior approval of the City Administrator with regard to the location, height, type and other pertinent aspects. The location of any pole, conduit or other wire-holding structure of the grantee shall not be a vested right and such pole, conduit, or other structure shall be removed or modified by the grantee at its own expense upon order of city that such removal or modification is reasonably required by the public health, safety or welfare.
iv. Grantee shall use its best efforts to obtain the permission and consent of any public utility company for the use of existing poles, conduits or other wire-holding structures located in city. Grantee shall utilize existing poles, conduits, or other wire-holding structures of existing public utilities to the extent technically and economically feasible. City shall have no obligation to assist grantee in obtaining the consent for use of existing facilities from any public utility company.
v. If at any time during the period of this franchise the city shall elect to alter, or change the grade or location of any street, alley or other public way, the grantee shall, upon reasonable notice by the city, remove and relocate its poles, wires, cables, conduits, manholes and other fixtures of the system at its own expense, and in each instance comply with the standards and specifications of city. If city reimburses other occupants of the street, grantee shall be likewise reimbursed.
vi. The grantee shall not place poles, conduits, or other fixtures of system above or below ground where the same will interfere with any gas, electric, telephone, water or other utility fixtures and all such poles, conduits, or other fixtures placed in any street shall be so placed as to comply with all requirements of the city.
vii. The grantee shall, on request of any person holding a moving permit issued by the city, temporarily move its wires or fixtures to permit the moving of buildings with the expense of such temporary removal to be paid by the person requesting the same, and the grantee shall be given not less than 10 days advance notice to arrange for such temporary changes.
viii. The grantee shall have the authority to trim any trees upon and overhanging the streets, alleys, sidewalks, or public easements of the city so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee.
ix. Nothing contained in this franchise shall relieve any person from liability arising out of the failure to exercise reasonable care to avoid injuring grantee's facilities.
e. Undergrounding of cable.
i In all areas of the city where all other utility lines are placed underground, grantee shall construct and install its cables, wires and other facilities underground. Amplifier boxes and pedestal mounted terminal boxes may be placed above ground if existing technology reasonably requires, but shall be of such size and design and shall be so located as not to be unsightly or unsafe.
ii. In any area of the city where there are certain cables, wires and other like facilities of a public utility or public utility district underground and at least one operable cable, wire or like facility of a public utility or public utility district suspended above the ground from poles grantee may construct and install its cables, wires and other facilities from the same pole with the consent of the owner of the pole.
iii. Grantee shall be granted access to any easements granted to a public utility or utility district in any areas annexed by the city or new developments.
f. Safety requirements.
i. The grantee shall at all times employ ordinary and reasonable care and shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public.
ii. The grantee shall install and maintain its system wires, cables, fixtures and other equipment in substantial compliance with the requirements of the National Electric Safety Code and in full compliance with all applicable FCC, state and local regulations, and in such manner that they will not interfere with any installations of the city or of any public utility serving the city.
iii. All system structures and all system lines, equipment and connections in, over, under and upon the streets, sidewalks, alleys, and public ways and places of the city, wherever situated or located, shall at all times be kept and maintained in good condition, order, and repair so that the same shall not menace or endanger the life or property of any person.
g. Emergency use of facilities.
i. In the case of any emergency or disaster, the grantee shall, upon request of the city, make available its facilities to the city during the period of emergency or disaster.
ii. The city may, in case of fire, disaster, or other catastrophic emergency, as reasonably determined by the city, cut or move any of the wires, cables, amplifiers, appliances, or other parts of the system. Except as provided in section 10 of this franchise, the city shall not be responsible for damage to grantee's system or for interruption of service provided by grantee.
6. Design provisions.
a. Minimum channel capacity.
i. Grantee shall provide a system which utilizes 750 Mhz equipment, and which is capable of delivering a minimum of 78 channels within 15 months of the effective date of this ordinance. Grantee agrees to use its best efforts to program a minimum of 47 channels with video programming upon completion of the construction contemplated by this section. Grantee shall also continue to provide local FM service in a manner and at a cost in grantee's discretion.
ii. While city and grantee agree that the system upgrade required herein will have the capacity of a minimum of 78 analog downstream channels utilizing 750 Mhz equipment, and that both parties desire a system with state-of-the-art design, and that such a system would incorporate fiber optic technology, the parties recognize that technological changes and advances are rapidly occurring such that in the future other system designs may be more advantageous to the parties considering economic and technological factors. Therefore, fiber optic trunk line at a minimum will be incorporated into the system upgrade design unless grantee determines in its sole discretion that economic and technological factors dictate otherwise.
iii. At any time after the initial system upgrade that grantee undertakes to upgrade or rebuild a significant portion of its cable communications system, it shall notify the city in writing at least 30 days before such upgrade or rebuild is commenced. City may at that time meet with grantee for the purpose of mutually determining what features will be in the public interest. Grantee shall in all cases exercise its best efforts to comply with the buy-through provisions of 47 C.F.R. 76.900 (c) (1995) as soon as reasonably practicable.
iv. All programming decisions remain the sole discretion of grantee provided that grantee notifies the city and subscribers in writing 30 days prior to any channel additions, deletions, or realignments.
b. Operation and maintenance of system. The grantee shall render commercially reasonable service, 24 hours per day, 7 days a week, and shall make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such interruption, to the extent feasible, shall be preceded by notice in accordance with section 4(I) herein and shall occur during periods of minimum use of the system.
c. Technical standards. The technical standards used in the operation of the system shall comply, at minimum, with the technical standards promulgated by the FCC relating to cable communications systems pursuant to the Federal Communications Commissions rules and regulations and found in 47 C.F.R. §§ 76.601 to 76.617, which regulations are expressly incorporated herein by reference. Copies of all technical standards reports and test results required to be performed by grantee pursuant to such technical standards shall be filed with the City Administrator within 15 days of finalization. For purposes of this section, finalization shall be deemed to occur on the date the technical reports are forwarded in final form to the FCC.
d. Special testing. City may request special testing of a location or locations within the system if there is a particular matter of controversy or unresolved complaints pertaining to such location(s). Demand for such special tests may be made on the basis of complaints received or other evidence indicating an unresolved controversy or noncompliance. Such tests shall be limited to the particular matter in controversy or noncompliance. The city shall endeavor to so arrange its request for such special testing so as to minimize hardship or inconvenience to grantee or to the subscribers caused by such testing. Before ordering such tests, grantee shall be afforded 30 days to correct problems or complaints upon which tests were ordered. The city shall meet with grantee prior to requesting special tests to discuss the need for such and, if possible, visually inspect those locations which are the focus of concern. If, after such meetings and inspections, the city wishes to commence special tests and the 30 days have elapsed without correction of the matter in controversy, the tests shall be conducted by a qualified engineer selected by the city. If the testing reveals the source of the technical difficulty to be within grantee's reasonable control then the cost of such testing shall be borne by grantee. If the testing reveals the difficulties to be caused by factors which are beyond grantee's reasonable control then the cost of said test shall be borne by the city.
e. Emergency override. Grantee shall provide an audio emergency alert override system consistent with federal law. In the interim between the effective date of this franchise and the implementation of this section, grantee shall continue to provide a working character generator which can be used by public safety officials to provide emergency alert services.
f. FCC reports. The results of any tests required by the FCC to be filed or performed by grantee shall also be filed with the city's designee with 15 days of finalization.
g. Nonvoice return capability. Grantee is required to use cable having the technical capacity for nonvoice return communications.
h. Lockout device. Upon the request of a subscriber, grantee shall provide by sale or lease a lockout device.
7. Services provisions.
a. Regulation of service rates.
i. The city may regulate rates for the provision of cable service, equipment, or any other communications service provided over the system to the extent allowed under federal or state law(s). In exercising its jurisdiction to regulate any such rates, city will adhere to regulations adopted by the Federal Communications Commission at 47 C.F.R. § 76.900, et. seq. as they may be amended from time to time.
ii. A list of grantee's current subscriber rates and charges shall be maintained on file with the city and shall be available for public inspection. Grantee shall give city and subscribers written notice of any change in a rate or charge no less than 30 days prior to the effective date of the change.
iii. In the event that city elects to exercise its jurisdiction over locally regulatable rates, it shall, after notice, hold a public hearing for the consideration of views of interested parties with respect to initial rates filed and any subsequent proposed changes in rates.
iv. City may hire personnel as needed to assist in the administration of its rate regulation powers.
b. Sales procedures. Grantee shall not exercise deceptive sales procedures when marketing its cable television services within the city. Grantee shall have the right to market its cable services door-to-door during reasonable hours consistent with local ordinances and regulation.
c. Subscriber inquiry and complaint procedures.
i. Grantee shall have a publicly listed toll free telephone number which shall be operated so as to receive subscriber complaints and requests on a 24 hour-a-day, 7 days-a-week basis.
ii. Grantee shall maintain and staff its customer service telephone lines in compliance with Federal Communications Commission customer service standards at 47 C.F.R. § 76.309(c), which standards are herein incorporated by reference.
iii. Subject to the privacy provisions of 47 U.S.C. § 521 et. seq. (1993), city and grantee shall prepare and maintain written records of all complaints made to them and the resolution of such complaints, including the date of such resolution. Grantee shall provide city with a written summary of such complaints and their resolution on a biannual basis.
iv. Grantee shall at all times throughout the term of this franchise maintain sufficient technical personnel and access to replacement parts and supplies to enable it to resolve subscriber complaints and repair outages within a reasonable time. Grantee shall use commercially reasonable efforts to repair reported service problems within 24 hours of grantee's receipt of a subscriber's complaint.
d. Subscriber contracts. Grantee shall submit any residential non-bulk subscriber contract utilized to the city. If no written contract exists, grantee shall file with the City Administrator a document completely and concisely stating the terms of the residential subscriber contract offered to customers, specifically including the length of the subscriber contract. The length and terms of any subscriber contract shall be available for public inspection during normal business hours. Nothing herein shall be deemed to limit city's rights under federal rate regulation rules to regulate the rates of nonresidential, commercial, or bulk service.
e. Refund policy. In the event a subscriber establishes or terminates service and receives less than a full month's service, grantee shall prorate the monthly rate on the basis of the number of days in the period for which service was rendered to the number of days in the billing. If service is interrupted or discontinued for a total period of more than 48 continuous hours in any 30 day period, subscribers shall be credited pro rata for such interruption beginning with the date of interruption.
f. Office policy. Grantee agrees to maintain a local drop box for receiving subscriber payments and grantee agrees to either maintain or arrange for a location where equipment can be dropped off or exchanged as is necessary or, in the alternative, establish a system for having the equipment picked up at the subscriber residence.
8. Public access provisions.
a. Public, educational and government access.
i. City or its designee is hereby designated to operate, administer; promote, and manage access (public, educational, and government) (hereinafter "PEG access") to the cable system established pursuant to this section. Grantee shall have no responsibility whatsoever for PEG access except as expressly stated in this section.
ii. Grantee shall dedicate 3 channels for PEG access use for the following uses: public access, educational access, and government access. All residential subscribers who receive all or any part of the total video services offered on the system shall be eligible to receive all of the 3 access channels at no additional charge. The 3 channels shall be activated upon the completion of the System upgrade.
iii. Pursuant to section 8(a)(ii) herein, grantee shall provide to each of its subscribers who receive all, or part of, the total video services offered on the system, reception on at least 1 specially designated noncommercial public access channel available for use by the general public on a first-come, first-served, nondiscriminatory basis; at least 1 specially designated access channel for use by local educational authorities; at least one specially designated access channel available for local government use; and at least 1 specially designated access channel available for lease on a first-come, first-served nondiscriminatory basis by commercial and noncommercial users. The VHF spectrum must be used for the first specially designated access channel required in the section. Grantee shall designate the channel locations of any other access channels.
iv. Grantee shall provide for video and stereo audio and second audio programming audio baseband inputs for all 3 PEG channels from the city's access studio, if necessary.
v. Grantee agrees to advance, on behalf of the Cities of Mankato and North Mankato (hereinafter "the cities") the costs of licensing and installing microwave equipment needed to permit the transmission of broadband signals from points selected by the cities to the access studio ("Microwave Equipment"). Such advanced costs shall be reimbursed by the cities as set forth below.
b. Charges for use. Channel time and playback of prerecorded programming on the specially designated access channel must be provided without charge to the general public except that personnel, equipment and production costs may be assessed for live studio presentations exceeding 5 minutes in length. Charges for production costs must be consistent with the goal of affording the public a low-cost means of television access.
c. Access rules.
i. City shall implement rules for use of any specially designated access channels. The initial access rules and any amendments thereto shall be maintained on file with city and available for public inspection during normal business hours.
ii. Prior to the cablecast of any program on any PEG access channel established herein, city shall require any person who requests access (public, educational, and government) to the system to provide written certification in a form and substance acceptable to grantee and city which releases, indemnifies, and holds harmless city, grantee and their respective employees, offices, agents, and assigns from any liability, cost, damages and expenses, including reasonable expenses for legal fees, arising or connected in any way with the program. If grantee chooses to enforce a policy regarding obscene programming by commercial users pursuant to 47 U.S.C. § 532(c), city shall assume no responsibility in that regard.
d. Access operating fee. Within 90 days of the effective date of this franchise, grantee shall commence collecting on behalf of city a per subscriber fee solely to fund access-related expenditures (hereinafter "Access Operating Fee") as follows:
i. Year one .60 per subscriber per month;
ii. Year two .80 per subscriber per month; and
iii. Year three and thereafter $1.00 per subscriber per month.
For purposes of this section "subscriber" shall include bulk subscribers equivalents. Commencing at year two, grantee may withhold 10 cents per subscriber per month in order to reimburse the cost of microwave equipment provided to the cities , estimated at $70,000 in total, until the actual out-of-pocket costs of such microwave equipment advanced by grantee, plus actual carrying charges, have been reimbursed.
9. Operation and administration provisions.
a. Franchise fee.
i. Grantee shall pay to the city a franchise fee in an annual amount equal to 3% of its annual gross revenues.
ii. Payments due city under this provision shall be payable quarterly. The payment shall be made within 90 days of the end of each of grantee's fiscal quarters together with a brief and itemized report showing the basis for the computation.
iii. All amounts paid shall be subject to audit and recomputation by the city and acceptance of any payment shall not be construed as an accord that the amount is in fact the correct amount.
b. Access to records. The city shall have the right to inspect, upon reasonable notice, at any time during normal business hours, those records maintained by grantee which relate to system operations and to gross revenues, subject to the privacy provisions of 47 U.S.C. §§ 521 et seq. Grantee shall make all such books and records requested by city available at its nearest business office. Grantee shall maintain its books and records in accordance with generally accepted accounting principles. Grantee shall maintain revenue accounts specific to the North Mankato system.
c. Reports to be filed with city. Grantee shall prepare and furnish to the city, at the times and in the form prescribed, such reports with respect to the operations, affairs, transactions or property, as they relate to the system, which grantee and the city may agree upon.
10. General financial and insurance provisions.
a. Indemnification of the city.
i. The city, its officers, boards, committees, commissions, elected officials, employees and agents shall not be liable for any loss or damage to any real or personal property of any person, or for any injury to or death of any person, arising out of or in connection with the construction, operation, maintenance, repair or removal of, or other action or event with respect to the system.
ii. Grantee shall indemnify, defend, and hold harmless the city, its officers, boards, committees, commissions, elected officials, employees and agents, from and against all liability, damages, attorneys' fees and penalties which they may legally be required to pay as a result of the exercise of the franchise, except claims because of PEG access programming.
iii. Nothing in this franchise relieves a person from liability arising out of the failure to exercise reasonable care to avoid injuring the grantee's facilities while performing work connected with grading, regrading, or changing the line of a street or public place or with the construction or reconstruction of a sewer or water system. City shall be liable only for the cost of replacing or repairing any damage to grantee's property or equipment caused by tortuous acts by the city, or its officers, boards, commissions, committees, elected officials, employees, and agents acting within the scope of their employment, consistent with Minn. Ch. 466 (1996).
iv. In order for city to assert its rights to be indemnified, defended, and held harmless, city must with respect to each claim:
(a) Promptly notify grantee in writing of any claim or legal proceeding which gives rise to such right;
(b) Afford grantee the opportunity to participate in and fully control any compromise, settlement or other resolution or disposition of any claim or proceeding; and
(c) Fully cooperate with reasonable requests of grantee, at grantee's expense, in its participation in, and control, compromise, settlement or resolution or other disposition of such claim or proceeding subject to paragraph (ii) above.
b. Insurance.
i. As a part of the indemnification provided in section (a) above, but without limiting the foregoing, grantee shall file with its acceptance of this franchise, and at all times thereafter maintain in full force and effect at its sole expense, a comprehensive general liability insurance policy, including contractual liability coverage, in protection of the city in its capacity as such, its officers, elected officials, boards, commissions, agents and employees. The policy or policies shall name as additional insureds the city, and in their capacity as such, its officers, agents and employees. The policies of insurance shall be in the sum of not less than $1,000,000 for personal injury or death of any 1 person, and $2,000,000 $1,000,000 for personal injury or death of 2 or more persons in any 1 occurrence, $500,000 for property damage to any 1 person and $2,000,000 for property damage resulting from any 1 act or occurrence.
ii. A certificate of insurance in a form and substance acceptable to city, together with written evidence of payment of required premiums, shall be filed with city at the time of acceptance of this franchise. The above minimum amounts shall be changed from time to time by grantee as mutually agreed with city. Grantee shall immediately give notice to city of any threatened or pending litigation affecting this insurance.
iii. 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.
iv. No recovery by city of any sum by reason of the security fund or bond 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 security fund or bond shall be deducted from a recovery by city under this section, if for the same act or occurrence.
v. The policy or policies of insurance shall be maintained by grantee in full force and effect during the entire term of the franchise. Each policy of insurance shall contain a statement on its face that the insurer will not cancel the policy or fail to renew the policy, whether for nonpayment of premium, or otherwise, and whether at the request of grantee or for other reasons, except after 30 days' advance written notice have been provided to the city.
11. Bonds and penalties for violation of franchise.
a. Performance bond.
i. At the time the franchise becomes effective and at all times thereafter, until the grantee has liquidated all of its obligations with the city, the grantee shall furnish a bond to the city in the amount of $20,000 in a form and with such sureties as reasonably acceptable to the city. This bond will be conditioned upon the faithful performance of the grantee according to the terms of the franchise and upon the further condition that in the event the grantee shall fail to comply with any law, ordinance or regulation governing the franchise, there shall be recoverable jointly and severally from the principal and surety of the bond any damages or loss suffered by the city as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the grantee, indemnification or cost of identification and resolution of any violations of this franchise, including a reasonable allowance for attorneys' fees, and further guaranteeing payment by the grantee of claims, liens and taxes due the city which arise by reason of the construction, operation, or maintenance of the system. The rights reserved by the city with respect to the bond are in addition to all other rights the city may have under the franchise or any other law. The city may, from year to year, in its sole discretion, reduce the amount of the bond. The amount of the bond shall not in any way limit the extent of grantee's liability to city.
ii. If at any time grantee undertakes construction of the system in city, by way of a line extension, rebuild, upgrade, or otherwise, with a projected cost in excess of $70,000, grantee shall provide a bond to city in the amount of $150,000 and shall maintain such bond during the term of the construction. Upon completion of the construction, grantee shall provide written notice to city. City may then employ, an engineer or inspector of its choice to inspect the construction and render an opinion as to whether such construction complies with grantee's proposal to city regarding such construction. Within 30 day of receipt of notice of completion of the construction, city shall give written notice to grantee indicating whether city agrees the construction is complete or specifying those items of construction which city determines are not complete. At such time as city and grantee mutually agree that the construction of the system is substantially complete, grantee shall provide to city a bond in the amount equal to the bond existing immediately before the commencement of the additional construction. Nothing herein shall be construed to require grantee to maintain more than 1 bond with city.
iii. In the event this franchise is canceled by reason of default of grantee or revoked, city shall be entitled to collect from the performance bond that amount which is directly attributable to any damages sustained by the city pursuant to the default or revocation. Grantee, however, shall be entitled to the return of such performance bond, or portion thereof, as remains at the expiration of the term of the franchise.
iv. The rights reserved to the city with respect to the performance bond are in addition to all other rights of the city whether reserved by this franchise or authorized by law, and no action, proceeding or exercise of a right with respect to the performance bond shall affect any other right the city may have.
b. Procedure for imposition of penalties.
i. Whenever the city finds that grantee has violated 1 or more material terms, conditions or provisions of this franchise or federal or state law or regulation, a written notice shall be given to grantee informing it of such violation or liability. The written notice shall describe in reasonable detail the specific violation so as to afford grantee an opportunity to remedy the violation. Grantee shall have 30 days subsequent to receipt of the notice in which to correct the violation.
ii. Whenever a franchise violation has been alleged pursuant to section (11)(b)(i), grantee may, within 10 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 and shall toll the running of the cure period provided pursuant to section (11)(b)(i). City shall hear grantee's dispute at the next regularly scheduled Council meeting. City shall supplement the Council decision with written findings of fact.
iii. If grantee fails to cure such default within 30 days after the giving of such notice, or if such default is of such a character as to require more than 30 days within which to cure the same, and grantee fails to commence to cure the same within the 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:
(a) 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:
(1) City shall provide grantee with a written notice of city's intention to terminate the franchise and specifying in detail the reason or cause for proposed termination. City shall allow grantee a minimum of 30 days subsequent to receipt of the notice in which to correct the default.
(2) Grantee shall be provided with an opportunity to be heard at a public hearing prior to any decision to terminate this franchise.
(3) In the event that city determines to terminate this franchise, the grantee shall have a period of 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 30 day period and if an appeal is taken, the franchise shall remain in full force and effect, unless the term thereof sooner expires.
c. Letter of credit.
i. At the time of acceptance of this franchise, grantee shall provide a continuing irrevocable letter of credit in the name of city for the sum of $10,000 in a form and from an issuer acceptable to city. Grantee shall maintain the continuing irrevocable letter of credit throughout the term of this franchise and until such time as grantee has liquidated all of its obligations with city. Provisions shall be made to permit the City's Administrator designated in this franchise to issue a sight draft against such letter of credit. Grantee shall not use the letter of credit for other purposes and shall not assign, pledge or otherwise encumber the security fund as security for another purpose.
ii. 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 against the letter of credit the following penalties:
(a) For failure to complete system construction in accordance with grantee's initial service area plan, unless city approved the delay, the penalty shall be $250 per day for each day, or part thereof, such failure occurs or continues.
(b) For failure to provide data, documents, reports or information or to reasonably cooperate with city during an application process or system review, the penalty shall be $50 per day for each day, or part thereof, such failure occurs or continues.
(c) 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 $50 per day for each day, or part thereof, such failure occurs or continues.
(d) For failure to test, analyze and report on the performance of the system, the penalty shall be $50 per day for each day, or part thereof, such failure occurs or continues.
(e) For failure by grantee to modify the system or to provide additional services within 180 days after such modification is required by this franchise, the penalty shall be $250 per day for each day, or part thereof, such failure occurs or continues.
(f) Forty-five days following notice from city of a failure of grantee to comply with construction, operation or maintenance standards, the penalty shall be $250 per day for each day, or part thereof, such failure occurs or continues.
(g) For failure to provide the services grantee has proposed, including but not limited to the activation of the access channels, the provision of the access operating fund required herein, the penalty shall be $50 per day for each day, or part thereof, such failure occurs or continues.
(h) Each violation of any provision of this franchise shall be considered a separate violation for which a separate penalty can be imposed.
iii. The city shall comply with section 11(b) herein in order to draw on the letter of credit or otherwise impose penalties on grantee pursuant to this section 11(c).
iv. If city draws upon the letter of credit, in whole or in part, grantee shall replace the same within 15 days.
v. The remedies under this section 11(c) are not exclusive, and at the city's discretion it may collect damages, monies, or penalties from the letter of credit either in addition to or instead of other remedies which may be available to the city either under this franchise or under federal, state, or local law. Any act, or failure to act, by city pursuant to its rights under the letter of credit shall not be deemed a waiver of any right of city pursuant to this franchise or otherwise.
12. Sale, abandonment, transfer, foreclosure and receivership of franchise.
a. 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.
b. Receivership. City shall have the right to cancel this franchise 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 the 120 days, or unless:
i. Within 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
ii. Such receiver or trustee, within the 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 agrees to be bound by each and every provision of this franchise.
c. Abandonment of service. Grantee may not abandon the system or any portion thereof without having first given 3 months written notice to the city. Grantee may not abandon the system or any portion thereof without compensating the city for damages resulting from the abandonment. The abandonment of any substantial portion of the system may be cause for termination of the franchise by city pursuant to the procedures in section 11(b) herein. Upon final adjudication of abandonment of the system by grantee and subject to the city's full compliance with 47 U.S.C. § 547 (1993), city shall have the right to declare all right, title, and interest to the system 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.
d. Removal After termination or forfeiture. In the event of termination, abandonment, or forfeiture of the franchise, the city shall have the right to require grantee to remove all or any portion of the system from all streets and public property within the city; provided, however, that if grantee is authorized to provide telecommunications services on the system pursuant to state or federal law, the city may not order the removal of any portion of the system used to provide such telecommunications services.
e. Sale or transfer of franchise.
i. No sale, transfer, or "fundamental corporate change" as defined in M.S. § 238.083, of this franchise or system shall take place until the parties to the sale, transfer, or fundamental corporate change files a written request with the city for its approval, provided, however, that the approval shall not be required where grantee grants a security interest in its franchise and assets to secure an indebtedness.
ii. The city shall have 30 days from the time of receipt of the request to reply in writing and indicate approval of the request or its determination that a public hearing is necessary due to potential adverse effect on grantee's subscribers resulting from the sale or transfer. Such approval or determination shall be expressed by Council Resolution within 30 days of receipt of the request, or the request shall be deemed approved as a matter of law. If the city fails to render a final decision pursuant to federal law, the request shall be deemed approved as a matter of law unless the time for consideration is extended by mutual agreement of the city and grantee.
iii. If a public hearing is deemed necessary pursuant to section 12(d)(ii) above, such hearing shall be commenced within 30 days of such determination and notice of any such hearing shall be given in accordance with local law or 14 days prior to the hearing by publishing notice thereof once in a newspaper of general circulation in city. The notice shall contain the date, time and place of the hearing and shall briefly state the substance of the action to be considered by city. The hearing may be continued with the consent of grantee.
iv. Within 30 days after the closing of the public hearing, the city shall approve or deny in writing the sale or transfer request. City shall set forth in writing with particularity its reason(s) for denying approval. City shall not unreasonably withhold its approval.
v. The parties to the sale or transfer of the franchise only, without the inclusion of the system in which substantial construction has commenced, shall establish that the sale or transfer of only the franchise will be in the public interest.
vi. Any sale or transfer of equity in grantee so as to create a new controlling interest in the system shall be subject to the requirements of this section 12(e). The term "controlling interest" as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised.
vii. In no event shall a transfer or assignment of ownership or control be approved without the transferee becoming a signatory to this franchise and assuming all rights and obligations thereunder, and assuming all other rights and obligations of the transferor to the city.
viii. In the event of any proposed sale or assignment pursuant to paragraph (i) of this section city shall have the right of first refusal of any bona fide offer to purchase the system. Bona fide offer, as used in this section, means an offer received by the grantee which it intends to accept subject to the city's rights under this section. This written offer must be conveyed to the city along with the grantee's written acceptance of the offer contingent upon the rights of the city provided for in this section. City shall be deemed to have waived its rights under this section in the following circumstances:
(a) If it does not indicate to grantee in writing, within 30 days of notice of a proposed sale or assignment, its intention to exercise its right of purchase; or
(b) It approves the assignment or sale of the franchise as provided within this section.
13. Protection of individual rights.
a. Discriminatory practices prohibited. Grantee shall not deny service, deny access, or otherwise discriminate against subscribers or general citizens on the basis of race, color, religion, national origin, sex or age. Grantee shall comply at all times with all other applicable federal, state, and city laws, and all executive and administrative orders relating to nondiscrimination.
b. Subscriber privacy.
i. No signals including signals of a Class IV Channel may be transmitted from a subscriber terminal for purposes of monitoring individual viewing patterns or practices without the express written permission of the subscriber. The request for such permission shall be contained in a separate document with a prominent statement that the subscriber is authorizing the permission in full knowledge of its provisions. Such written permission shall be for a limited period of time not to exceed 1 year which shall be renewed at the option of the subscriber. No penalty shall be invoked for a subscriber's failure to provide or renew such authorization. The authorization shall be revocable at any time by the subscriber without penalty of any kind whatsoever. Such permission shall be required for each type or classification of Class IV Channel activity planned for the purpose of monitoring individual viewing patterns or practices.
ii. No information or data obtained by monitoring transmission of a signal from a subscriber terminal, or any other means, including but not limited to lists of the names and addresses of such subscribers or any lists that identify the viewing habits of subscribers shall be sold or otherwise made available to any party other than to grantee and its employees for internal business use, and also to the subscriber subject of that information, unless grantee has received specific written authorization from the subscriber to make such data available.
iii. Written permission from the subscriber shall not be required for the conducting of systemwide or individually addressed electronic sweeps for the purpose of verifying system integrity or monitoring for the purpose of billing. Confidentiality of such information shall be subject to the provision set forth in paragraph (ii) of this section.
14. Unauthorized connections and modifications.
a. Unauthorized connections or modifications prohibited. It shall be unlawful for any firm, person, group, company, corporation, or governmental body or agency, without the express consent of the grantee, to make or possess, or assist anybody in making or possessing, any connection, extension, or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of the system.
b. Removal or destruction prohibited. It shall be unlawful for any firm, person, group, company, corporation, or government body or agency to willfully interfere, tamper, remove, obstruct, or damage, or assist thereof, any part or segment of the system for any purpose whatsoever.
c. Penalty. Any firm, person, group, company, corporation or government body or agency found guilty of violating this section may be fined not less than $20 and the costs of the action nor more than $500 and the costs of the action for each and every subsequent offense. Each continuing day of the violation shall be considered a separate occurrence.
15. Miscellaneous provisions.
a. Franchise renewal. Any renewal of this franchise shall be done in accordance with applicable federal, state and local laws and regulations.
b. Work performed by others. All provisions of this franchise shall apply to any subcontractor or others performing any work or services pursuant to the provisions of this franchise.
c. Amendment of franchise ordinance. Grantee and city may agree, from time to time, to amend this franchise. Such written amendments may be made subsequent to a review session pursuant to section 14(g) or at any other time if city and grantee agree that such an amendment will be in the public interest or if such an amendment is required due to changes in federal, state or local laws. City shall act pursuant to local law pertaining to the ordinance amendment process.
d. Compliance with federal, state and local laws.
i. If any federal or state law or regulation shall require or permit city or grantee to perform any service or act or shall prohibit city or grantee from performing any service or act which may be in conflict with the terms of this franchise, then as soon as possible following knowledge thereof, either party shall notify the other of the point in conflict believed to exist between such law or regulation. Grantee and city shall conform to state laws and rules regarding cable communications not later than 1 year after they become effective, unless otherwise stated, and to conform to federal laws and regulations regarding cable as they become effective.
ii. 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 or provision to persons or 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 other respects, continue to be effective and complied with. In the event such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision which had been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect and shall thereafter be binding on grantee and the city.
e. Nonenforcement by city. Grantee shall not be relieved of its obligations to comply with any of the provisions of this franchise by reason of any failure or delay of the city to enforce prompt compliance. Any waiver by the city of a breach or violation of any provision of this franchise shall not operate as or be construed to be a waiver of any subsequent breach or violation.
f. Administration of franchise. The City Administrator or other city designee shall have continuing regulatory jurisdiction and supervision over the system and the grantee's operation under the franchise. The city may issue such reasonable rules and regulations concerning the construction, operation and maintenance of the system as are consistent with the provisions of the franchise and law.
g. Periodic evaluation. The field of cable communications is a relatively new and rapidly changing one which may see many regulatory, technical, financial, marketing and legal changes during the term of this franchise. Therefore, in order to provide for a maximum degree of flexibility in this franchise, and to help achieve a continued advanced and modem system, the following evaluation provisions shall apply:
i. The city may require evaluation sessions to correspond with the fifth and tenth year anniversaries of the acceptance of this franchise.
ii. All evaluation sessions shall be open to the public and notice of sessions published in the same say as a legal notice. Grantee shall notify its subscribers of all evaluation sessions by announcement on at least 1 basic service channel of the system between the hours of 7:00 p.m. and 9:00 p.m. for 5 consecutive days preceding each session.
iii. Topics which may be discussed at any evaluation session may include, but are not limited to, application of new technologies, system performance, programming offered, access channels, facilities and support, municipal uses of cable, customer complaints, amendments to this franchise, judicial rulings, FCC rulings, line extension policies and any other topics the city and grantee deem relevant.
iv. During a review and evaluation by city, grantee shall fully cooperate with city and shall provide to the city such information and documents as Commission may request to reasonably perform the evaluation.
v. As a result of a periodic review or evaluation session, the city and Grantee may, in good faith, develop such changes and modifications to the terms and conditions of the franchise, as are mutually agreed upon.
h. Citizens Advisory Board. The city may appoint a citizen advisory body to monitor the performance of the grantee pursuant to the franchise and advise the city of same. As a result of any periodic evaluation session as promulgated in section (14)(g), the advisory body may submit a report to the city and grantee assessing the grantee's performance according to the terms of the franchise and make recommendations to the city regarding the system's operations.
i. Rights cumulative. All rights and remedies given to city by this franchise shall be in addition to and cumulative with any and all other rights and remedies, existing or implied, now or hereafter available to the 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 the 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.
j. 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.
16. Publication effective date; acceptance and exhibits.
a. Publication effective date. This franchise, or a summary thereof, shall be published in accordance with applicable Minnesota law . The effective date of this franchise shall be the later of the date of acceptance by grantee in accordance with the provisions of section 16(b).
b. Acceptance.
i. Grantee shall accept this franchise within 60 days of its enactment by City Council, unless the time for acceptance is extended by the city. Such acceptance by the grantee shall be deemed the grant of this franchise for all purposes. In the event acceptance does not take place, this franchise and any and all rights previously granted to grantee shall be null and void.
ii. Upon acceptance of this franchise, grantee shall be bound by all the terms and conditions contained herein.
iii. Grantee shall accept this franchise in the following manner:
(a) This franchise will be properly executed and acknowledged by grantee and delivered to city.
(b) With its acceptance, grantee shall also deliver any performance bond, outstanding access and franchise fees, letter of credit, and insurance certificates required herein that have not previously been delivered.
(Franchise 156, passed 9-16-1996)