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AN ORDINANCE CREATING AND AWARDING A CABLE
COMMUNICATIONS FRANCHISE IN THE CITY OF BARNUM, MINNESOTA
AND RULES GOVERNING THE OPERATION OF SAME
PAGE
SECTION1 Definitions1
SECTION2 Grant of Authority1
SECTION3 Award Fee1
SECTION4 Authority for Use of Streets1
SECTION5 Incorporation by Reference2
SECTION6 Agreement2
SECTION7 Police Powers2
SECTION8 Compliance With State and Federal Laws2
SECTION9 Franchise Terms2
SECTION10 Renegotiation of Franchise Terms3
SECTION11 Franchise Exclusivity3
SECTION12 Sale or Transfer of the Franchise, Sale or Transfer of Stock3
SECTION13 Rates, Rate Change Procedure and Residential Subscriber Contracts3
SECTION14 Franchise Administrator4
SECTION15 Liability Insurance4
SECTION16 Performance Bond5
SECTION17 Liability for Injury to Franchisee's Facilities5
SECTION18 Channel Capacity5
SECTION19 Construction Schedule5
SECTION20 Authorization to Commence Construction5
SECTION21 Compliance with Applicable Codes5
SECTION22 Permission of Property Owner Required6
SECTION23 Work Performed by Others6
SECTION24 Relocation of Wires, Etc6
SECTION25 Repair of Streets6
SECTION26 Erection of Poles Prohibited6
SECTION27 Reservations of Street Rights7
SECTION28 Trimming of Trees7
SECTION29 Technical Standards7
SECTION30 Special Testing7
SECTION31 Non-Voice Return Capability8
SECTION32 Subscriber Privacy8
SECTION33 Subscriber Complaints8
SECTION34 Repairs and Complaints8
SECTION35 Open Books and Records9
SECTION36 Termination.9
SECTION37 Foreclosure9
SECTION38 Receivership9
SECTION39 Abandonment10
SECTION40 Removal of Cable Equipment Upon Termination or Forfeiture10
SECTION41 Municipal Right to Purchase System10
SECTION42 Access Channels10
SECTION43 No Recourse Against City11
SECTION44 Franchise Fees11
SECTION45 Written Notice11
ORDINANCE NO. 84
AN ORDINANCE CREATING AND AWARDING A CABLE
COMMUNICATIONS FRANCHISE IN THE CITY OF BARNUM,
MINNESOTA AND RULES GOVERNING THE
OPERATION OF SAME
Section 1. DEFINITIONS.
1.1"Franchisor/Franchising Authority" is the City of Barnum, Minnesota.
1.2"Franchisee", is Savage Communications, Inc.
1.3"FCC" is the Federal Communications Commission of the United States.
1.4"Class IV Channel,, means 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.
1.5"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.
1.6The words "shall" and "must" are mandatory.
1.7The word "may" is permissive.
1.8The words "may not" are unconditionally prohibitive.
1.9"Offering" means the proposal of Franchisee, as contained herein.
Section 2. GRANT OF AUTHORITY.
The City Council of Barnum, Minnesota, authorizes that a cable communications franchise for the installation, operation and maintenance of a cable communications system within the City limits of Barnum, Minnesota, is granted to Savage Communications, Inc.; provided, however, that the franchise shall be subject to. the terms and performance conditions set forth in this Ordinance.
Section 3. AWARD FEE.
The Franchisee shall reimburse the Franchisor for all reasonable costs, including attorneys' fees expended in soliciting and processing the franchise award.
Section 4. AUTHORITY FOR USE OF STREETS.
4.1For the purposes of operating and maintaining a cable communications system in the City of Barnum, the Franchisee may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the street within the City such lines, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of the system, provided that all applicable permits are applied for and granted, all fees paid and all other City codes and ordinances are otherwise complied with. Prior to construction or alteration, the Franchisee shall in each case file design maps with the City and utility companies, however, the franchisee need not secure prior written approval for minor alterations or construction.
4.2The Franchisee shall construct and maintain the system so as not to interfere with other Uses Of streets. The Franchisee shall make use of existing poles and other facilities available to the Franchisee.
4.3Notwithstanding the above grant to use streets, no street shall be used by the Franchisee if the Franchisor, 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 presently used.
4.4Franchisee shall be responsible for all costs of relocation of the system due to reconstruction, repair or rerouting of streets or lines relocated or removed by the Franchisor.
Section 5. INCORPORATION BY REFERENCE.
All terms and provisions of Franchisee's offering are hereby incorporated by reference and made a part of this Franchise.
Section 6. AGREEMENT.
6.1The Franchisee agrees to be bound by all the terms and conditions of this Franchise.
6.2The Franchisee agrees to comply with all provisions of its application, to provide a system within the City, and to Provide the services set forth in this Ordinance.
Section 7. POLICE POWERS.
7.1The Franchisee's rights are subject to the police powers of the City of Barnum to adopt and enforce ordinances necessary to the health, safety and welfare of the public.
7.2Any conflict between the provisions of this franchise and any other present or future lawful exercise of police powers of the City of Barnum shall be resolved in favor of the City of Barnum.
Section 8. COMPLIANCE WITH STATE AND FEDERAL LAWS.
The Franchisee and the franchising authority shall conform to all state laws and rules regarding cable communications not-later than one (1) year after they become effective unless otherwise stated and to all federal laws and regulations regarding cable communications as they become effective.
Section 9. FRANCHISE TERMS.
The franchise shall have an initial franchise term of fifteen (15) years effective from the date of this ordinance, and any renewal term, if granted by the franchising authority, shall be for a term of fifteen (15) years.
Section 10. RENEGOTIATION OF FRANCHISE TERMS.
Renegotiation between the Franchisor and Franchisee shall occur at a minimum of one (1) year before the end of the franchise term unless franchising authority determines not to reissue the franchise to the Franchisee or desires to consider additional applications for a franchise. Such renegotiation periods must be specified and must be mutually agreed upon by the Franchisor and Franchisee.
Section 11. FRANCHISE EXCLUSIVITY.
This franchise is non-exclusive.
Section 12. SALE OR TRANSFER OF THE FRANCHISE, SALE OR TRANSFER OF STOCK.
Sale or transfer of this franchise or sale or transfer of stock so as to create a new controlling interest is prohibited except at the approval of the franchising authority, which approval shall not be unreasonably withheld, and except that such sale or transfer is completed pursuant to Minnesota Statutes 238.083 and 238.084.
Section 13. RATES, RATE CHANGE PROCEDURE AND RESIDENTIAL SUBSCRIBER CONTRACTS.
13.1 Rates. The following rate schedule shall apply until changed in compliance with the procedures set forth below in 16.2.
BASIC CABLE (17 CHANNELS FOR $14.95 plus TAX)
Channel2CBN Cable Network
Channel3KDLHDuluth
Channel4Nashville Network
Channel5ESPN
Channel6KBJRDuluth
Channel7Public Access
Channel8WDSEDuluth
Channel9Lifetime
Channel10WDIODuluth
Channel11Discovery Channel
Channel12Home Shopping Network
Channel13Nickelodeon
Channel14MTV
Channel15USA Network
Channel16Cable News Network
Channel18WTBSAtlanta
Channel19WGNChicago
The following premium services are available only to the Basic Service subscribers.
Channel17The Disney Channel$7.00/mo.
Channel20Home Box Office$9.00/mo.
Channel21The Movie Channel$8.00/mo.
INSTALLATION CHARGESOTHER CHARGES
Primary Outlet$25.00Weekly TV Guide$1.95/mo.
Add Outlet$15.00Remote Control$2.25/mo.
Relocate$15.00Additional Outlet$2.95/mo.
Reconnect$17.50Parental ControlN/C
A/B Switch$15.00FM ServiceN/C
NOTE: DURING THE FIRST 90 DAYS AFTER TURN-ON THERE WILL BE NO CHARGE FOR INSTALLATION OF THE FIRST OUTLET.
Installations which require more than 200 feet of cable will be charged time and material for each foot over 200 feet. In addition, installations which require pavement cutting, rock or unusual non-standard work may involve an additional charge. An estimate of the additional charge will be given to the subscriber prior to the start of the installation.
13.2 Rate Change Procedure. Franchisee may request changes in the rate schedule by written application to the Franchisor not more than once each calendar year. No change in the existing rate schedule shall occur without the approval of the Franchisor. If, however, specific action to approve or disapprove the rate change request is not taken by the Franchisor in a period of 60 days from the date of written request, the new rate shall automatically become effective.
13.3 Residential Subscriber Contracts. The Franchisee will not utilize monthly service subscriber contracts without prior approval by the Franchisor.
Section 14. FRANCHISE ADMINISTRATOR.
The City Clerk of Barnum, Minnesota, shall be responsible for the continuing administration of this franchise.
Section 15. LIABILITY INSURANCE.
The Franchisee shall indemnify and hold harmless the franchising authority at all times during the term of the franchise and shall maintain throughout the term of the franchise liability insurance in the maximum liability amount specified in Minnesota Statute Section 466.04 or any amendment thereto or successor statutes during the life of the franchise, insuring both the franchising authority and the Franchisee with regard to all damages and penalties which they may legally be required to pay as a result of the exercise of the franchise.
Section 16. 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 franchising authority, the Franchisee shall furnish a performance bond, certificate of deposit or any other type of instrument approved by the franchising authority in the amount of One Thousand Dollars ($1,000.00). This amount is deemed by the franchising authority to be adequate compensation for damages resulting from the Franchisee's nonperformance. The franchising authority may, from year to year, in its sole discretion, reduce the amount of the performance bond or instrument.
Section 17. LIABILITY FOR INJURY TO FRANCHISEE'S FACILITIES.
Nothing in this franchise shall relieve any person from liability arising out of the failure to exercise reasonable care to avoid injuring the Franchisee's facilities while performing any work connected with grading, regrading or changing the line of any street or public place or with the construction or reconstruction of any sewer or water system.
Section 18. CHANNEL CAPACITY.
The Franchisee shall construct a cable system with Channel capacity equal to a minimum of 252 MHZ of band width (the equivalent of 42 television broadcast channels).
Section 19. CONSTRUCTION SCHEDULE.
Within 90 days of the granting of the franchise, the franchisee shall apply for all necessary permits, licenses, certificates and authorizations. The energized trunk cable shall be extended substantially throughout the authorized area, and persons along the route of the energized cable will be provided with individual "drops", as desired, by November 1, 1989. The Franchisor may upon good cause shown, extend the November 1, 1989 completion date by up to 45 additional days. Extensions of the completion date of more than 45 days may be granted by the Franchisor only upon occurrence of unforseen events or acts of God.
Section 20. AUTHORIZATION TO COMMENCE CONSTRUCTION.
The Franchisee shall obtain a permit from the property municipal authority before commencing construction of any communications system, including the opening or disturbance of any street, sidewalk, driveway or public place. If the Franchisee fails to meet the conditions of the permit, the Franchisor may, after having given the Franchisee reasonable notice and an opportunity to remedy the failure of conditions, take any action it deems necessary to protect the general health, safety, and welfare of the public. In such case, the Franchisee shall reimburse the Franchisor for the actual cost involved in any actions taken.
Section 21. COMPLIANCE WITH APPLICABLE CODES.
All wires, conduits, cable and other property and facilities of the Franchisee shall be located, constructed, installed, and maintained in compliance with applicable codes. The Franchisee shall keep and maintain all of its property so as not to unnecessarily interfere with the usual and customary trade, traffic or travel upon the streets and public places of the franchise area or endanger the lives or property of any person.
Section 22. PERMISSION OF PROPERTY OWNER REQUIRED.
No cable, line, wire, amplifier, converter or other piece of equipment owned by Franchisee shall be installed by Franchisee without first securing the written permission of the owner or his designee of any property involved.
Section 23. WORK PERFORMED BY OTHERS.
23.1 Franchisee shall give notice to the City specifying the names and addresses of any other entity, other than Franchisee, which performs services pursuant to this franchise; provided, however, that all provisions of this franchise remain the responsibility of Franchisee.
23.2 All provisions of this franchise shall apply to any subcontractor or others performing any work or services pursuant to the provisions Of this franchise.
Section 24. RELOCATION OF WIRES, ETC.
The following procedure shall be used by the Franchisee and franchising authority for the relocation or removal of the Franchisee's wires, conduits, cables and other property located in said street, right-of-way or public place whenever the franchising authority undertakes public improvements which affect the cable equipment.
In the event that a change is made in the grade, width or location of public streets, alleys, avenues, rights of way or other public places by authority of the Franchisor which shall necessitate the removal of any poles, wires, transmission and distribution lines to conform to the change of grade, Franchisee shall make necessary changes in its equipment at its own expense, upon reasonable notice from the City Council or its designated official.
Section 25. REPAIR OF STREETS.
Any and all streets which are disturbed or damaged during the construction, operation, maintenance or reconstruction of the system shall be repaired by Franchisee at its expense and to the satisfaction of City.
Section 26. ERECTION OF POLES PROHIBITED.
Franchisee shall not erect any pole on or along any street in an existing aerial utility system. If additional poles in an existing aerial route are required, Franchisee shall negotiate with the utility for the installation of the needed poles. Any such additional poles shall require the advance written approval of the Franchisor. Franchisee shall negotiate the lease of pole space and facilities from the existing pole owners for all aerial construction, under mutually acceptable terms and conditions.
Section 27. RESERVATIONS OF STREET RIGHTS.
The following reservations in the use or construction on streets shall be complied with by the Franchisee notwithstanding the grant to use streets made by the franchise.
Nothing in this franchise shall be construed to prevent the Franchisor from constructing sewers, grading paving, repairing and/or altering any street, or laying down, repairing or removing water mains or constructing or establishing any other public work. All such work shall be done, insofar as practicable, in such manner as not to obstruct, injure or prevent the free use and operation of the poles, wires, conduits, conductors, pipes or appurtenances of the Franchisee. If any such property of the Franchisee herein shall interfere with the construction or repair of any street or public improvement, whether it be construction, repair or removal of a sewer or water main, the improvement of a street or any other public improvement, forty-five (45) days no ice shall be given to tho Franchisee by the Franchisor and all such poles, wires, conduits or other appliances and facilities shall be removed or replaced by the Franchisee in such manner as shall be directed by the Franchisor so that the same shall not interfere with the said public work of the Franchisor and such removal or replacement shall be at the expense of Franchisee herein.
Section 28. TRIMMING OF TREES.
Nothing contained in this franchise shall be deemed to empower or authorize the Franchisee to cut or trim any trees, ornamental or otherwise, in any of the streets, alleys or public highways, but the Franchisee may cut or trim trees as necessary only pursuant to a prior agreement with the owner of property which is adjacent to the street area in which such tree stands. In the event that an owner shall unreasonably refuse to permit the Franchisee to cut or trim trees, the Franchisor may nonetheless authorize such work if it is necessary to protect, repair or maintain the system.
Section 29. TECHNICAL STANDARDS.
The rules of the Federal Communications Commission relating to cable communications systems contained in subpart K of part 76 of the Federal Communications Commission's rules and regulations relating to cable communications systems are incorporated herein by reference.
Section 30. SPECIAL TESTING.
At any time after commencement of service to subscribers, the Franchisor may require additional tests, full or partial repeat tests, different test procedures or tests involving a specific subscriber's terminal. Requests for such additional tests will be made on the basis of complaints received or other evidence indicating a significant unresolved controversy or significant non-compliance. Such tests will be limited to the particular matter in controversy. In the event that special testing is required by the Franchisor to determine the source of technical difficulties, the cost of said testing shall be borne by the Franchisee.
Section 31. NON-VOICE RETURN CAPABILITY.
The Franchisee shall construct and maintain a cable communications system having the technical capacity for non-voice return communications.
Section 32. SUBSCRIBER PRIVACY.
No signals of a Class IV cable communications channel may be transmitted from a subscriber terminal for purposes of monitoring individual viewing patterns or practices without the express written permission of 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 one year which shall be renewable 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 revokable 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 cable communications activity planned for the purpose.
32.1 No information or data obtained by monitoring transmission of a signal from a subscriber terminal, including but not limited to lists of the names and addresses of the subscribers or any lists that identify the viewing habits Of subscribers may be sold or otherwise made available to any party other than to the company and its employees for internal business use, or to the subscriber subject to that information, unless the company has received specific written authorization from the subscriber to make the data available.
32.2 Written permission from the subscriber shall not be required for the systems conducting systemwise or individually addressed electronic sweeps for the purpose of verifying system integrity or monitoring for the purpose of billing.
Section 33. SUBSCRIBER COMPLAINTS.
All complaints by the Franchisor, subscribers, or other citizens regarding the quality of service, equipment malfunction, billing disputes, and any other matters relative to the cable communications system shall be investigated and resolved by the Franchisee. The Franchisor reserves the authority to establish procedures to be followed by the Franchisee in investigating and resolving complaints if it determines that the establishment of such procedures is in the public interest.
Section 34. REPAIRS AND COMPLAINTS.
The Franchisee shall provide to the subscriber at least a toll free or collect telephone number for the reception of subscriber complaints. The Franchisee shall maintain a repair service capable of responding to subscriber complaints or request for service within 24 hours after receipt of the complaint or request. Cost included in making repairs, adjustments and installation shall be borne by the subscriber, unless it is determined that the cable system is at fault, in which case the cost shall be borne by the Franchisee. Franchisee may interrupt system service between 1:00 a.m. and 7:00 am. for routine testing, maintenance and minor repairs, without notification. Interruption of service at any other time shall be only for good cause.
Section 35. OPEN BOOKS AND RECORDS
The Franchisor shall have the right to inspect, upon 72 hour notice, at any time during normal business hours all books, records, maps, plans, income tax returns, financial statements, service complaint logs, performance test results, record of requests for service and other like materials of the Franchisee which relate to the operation of this Franchise. Access to the aforementioned records shall not be denied by the Franchisee on the basis that said records contain "proprietary" information.
Section 36. TERMINATION.
The franchising authority shall have the right to terminate and cancel the franchise and all rights and privileges of the franchise if the Franchisee substantially violates any provision of the franchise ordinance, attempts to evade any of the provisions of the franchise ordinance or practices any fraud or deceit upon the franchising authority.
The Franchisor 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 thirty days after service 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 governing body of the municipality prior to the termination of the franchise.
Section 37. FORECLOSURE.
Upon the foreclosure or other judicial sale of the system, the Franchisee shall notify the Franchisor of such fact and such notification shall be treated as a notification that a change in control of Franchisee has taken place, and the provisions of this franchise governing the consent to transfer or change in ownership shall apply without regard to how such transfer of change in ownership occurred.
Section 38. RECEIVERSHIP.
The Franchisor shall have the right to cancel this franchise one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct the business of the Franchisee, whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty (120) days, or unless:
38.1 Within one hundred twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of this franchise and remedied all defaults thereunder; and
38.2 Such receiver or trustee, within said one hundred twenty (120) days, shall have executed an agreement, duly approved by the Court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of this franchise.
Section 39. ABANDONMENT.
The Franchisee may not abandon any portion of the cable communications service provided hereunder without having given three (3) month's prior written notice to the franchising authority. No cable communications company may abandon any cable communications service or any portion thereof without compensating the-franchising authority for damages resulting to it from such abandonment.
Section 40. REMOVAL OF CABLE EQUIPMENT UPON TERMINATION OR FORFEITURE
Upon termination or forfeiture of a franchise, the Franchisee shall remove its overhead cable, wires and appliances from the streets, alleys and other public places within the franchise area if the franchising authority so requests. In the event the Franchisee has not removed said cable, wires and appliances within 120 days of the date of termination or forfeiture, the Franchisor may elect either of the following procedures:
40.1 The Franchisor may declare all of the cable, wires and appliances to be the property of the Franchisor, in which case the Franchisee shall execute and deliver any and all documents necessary to effect the transfer of ownership to the Franchisor; or
40.2 The Franchisor may order that all cable, wires and appliances be removed from the streets, alleys and other public places within the franchise area by Franchisor's employees or others, and delivered to the Franchisee, all at the expenses of the Franchisee.
Section 41 MUNICIPAL RIGHT TO PURCHASE SYSTEM
If the franchise or cable system is offered for sale, the franchising authority shall have the right to purchase the system.
Section 42. ACCESS CHANNELS.
42.1 The Franchisee shall provide to each of its subscribers who receive some or all of the services offered on the system, reception on at least one specially designated access channel. The specially designated access channel may be used by local educational authorities and local government on a first-come, first-served nondiscriminatory basis. During those hours that the specially designated access channel is not being used by the local educational authorities or local government, the Franchisee shall lease time to commercial or noncommercial users on a first-come, first served non-discriminatory basis if the demand for that time arises. The Franchisee may also use this specially designated access channel for local origination during those hours when the channel is not in use by local educational authorities, local government, or commercial or non-commercial users who have leased time. The VHF spectrum (Channels 2-13) must be used for the specially designated access channel.
42.2 The Franchisee shall establish rules for the administration of the especially designated access channel. The operating rules governing the specially designated access channel shall be filed by the Franchise with the City Council within 90 days after any access channel is put into use.
Section 43. NO RECOURSE AGAINST CITY.
Franchisee shall have no recourse whatsoever against city or its officials, boards, commissions, agents or employees for any loss, cost, expense or damage arising out of any provision or requirement of the franchise or because of the enforcement of the franchise.
Section 44. FRANCHISE FEES.
During the term of this franchise granted hereunder, Franchisee shall pay to the City annually an amount equal to three percent (3%) of all Basic Service revenue derived from subscribers within the City within sixty (60) days after December 31 of each year. Service revenue shall not include monies received as installation charges and charges and fees for reconnections, inspections, repairs or modification of any installation, nor state and federal taxes relating thereto.
Section 45. WRITTEN NOTICE.
All notices, reports or demands required to be given I in writing under this franchise shall be deemed to be given when delivered personally to any officer of Franchisee or City Clerk of the City of Wahkon, or when seventy-two (72) hours have lapsed after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage pre-paid thereon, addressed to the party to which notice is being given, as follows:
If City:City of Barnum
Barnum, MN
If to Franchisee:Box 564
Hastings, MN 55033
Such addresses may be changed by either party upon notice to the other party given as provided in this section.
Passed by the Barnum City Council this 10th day of April, 1989.
_____(signed)_________________________
Mayor Dorothy VanDerWerff
_____(signed)_________________________
Clerk Kim Hassett
Acceptance by Company:
SAVAGE COMMUNICATIONS, INC.
By:_____(signed)___________________Date: 4/28/89
Its:_____President__________________
Effective date: 4/10/89
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