1996-26BII.L NO. 1996-26
AN ORDINANCE AMENDING THE RICI~I.D CITY CODE BY
ADDING SECTION 726; REGULATING THE GRANTING OF
FRANCHISES TO OPERATE AND MAINTAIN A CABLE SYSTEM IN
THE CITY; SETTING FORTH CONDITIONS ACCOMPANYING THE
GRANT OF FRANCHISE; PROVIDING FOR REGULATION AND USE OF
THE SYSTEM; AND PRESCRIBING PENALTIES FOR THE VIOLATION
OF ITS PROVISIONS.
THE CITY OF ItI['T~rFT .n DOES ORDAIN:
Section 1. The Richfield City Code is amended by adding a Section 726 to read as
follows:
726.01. Statement of Intent and Purpose. The City, pursuant to applicable
federal and state law, is authorized to grant one or more nonexclusive cable television
franchises to construct, operate, maintain and reconstnict Cable Television Systems
within the City limits.
The City Council finds that the development of Cable Television Systems has
the potential of having great benefit and impact upon the residents of Richfield.
Because of the complex and rapidly changing technology associated with cable
television, the City Council further fords that the public convenience, safety and
general welfare can best be served by establishing regulatory powers which should be
vested in the City or such Persons as the City shall designate. It is the intent of this
Ordinance and subsequent amendments to establish minimum requirements regarding
the granting of cable television franchises consistent with Minnesota and federal law
recognizing that these laws and the requirements of local government are continuously
changing, and to provide for and specify the means to attain the best possible cable
television service to the public. Any franchises issued pursuant to this Ordinance
shall be deemed to include this intent as an integral part thereof.
726.03. Title.
This Ordinance shall be entitled, "Cable Regulatory Ordinance."
726.05. Definitions. Subdivision 1. For the purpose of this Ordinance, the
following, terms, phrases, words, derivations and their derivations shall have the
meanings given herein. When not inconsistent with the context, words used in the
present tense include the future tense, words in the plural number include the singular
number and words in the singular number include the plural number.
Subd. 2. "Access Channels" shall mean those Channels which, by the terms
of this Ordinance or the Franchise Agreement, are required to be kept available by
the Minnesota Cable Communications Act for partial or total dedication to public
access, educational access, or local government access.
Subd. 3. "Affiliate" shall mean any person controlling, controlled by or under
common control of a Grantee of a franchise issued pursuant to this Ordinance.
Subd. 4. "Applicant" means any person that applies for a Franchise under this
Ordinance.
Subd. 5. "Application" or "Proposal" are synonymous for the purposes of this
Ordinance. An Application or Proposal means the process by which the Applicant
submits a request and indicates a desire to be granted a franchise for all, or a part, of
the City. An Application or Proposal includes all written documentation, including
official city council minutes concerning the construction, detailed description of
services to be provided, the area to be served within the City, the portion of Street to
be used, rendering of services and the manner thereof, rates and charges,
maintenance, or any other matter pertaining to the proposed Cable Commutications
system.
Subd. 6. "Basic Cable Service" means any service tier which includes the
retransmission of local television broadcast signals. This definition shall be deemed
to change pursuant to any changes in applicable federal law and shall be interpreted in
a manner consistent with the rules of the Federal Communications Commission.
Subd. 7, "Cable Communications System," "Cable Television System,"
"Cable System," "CATV" or "System", shall mean a System of coaxial cables or
other electrical conductors and equipment used or to be used to originate or receive
television or radio signals directly or indirectly off the air and to transmit them via
cable or fiber optics to Subscribers for a fixed or variable fee, including the
origination, receipt, transmission, and distribution of voices, sound signals, pictures,
visual images, digital signals, telemetry, or any other type of closed circuit
transmission by means of electrical impulses, whether or not directed to originating
signals or receiving signals off the air.
Subd. 8. "Cable Service" shall mean (a) the one-way transmission to
subscribers of (i) Video Programming or (ii) Other Programming Service, and (b)
subscriber interaction, if any, which is required for the selection or use of such video
programming or other programming service. For the purposes of this definition,
"video programming" is programming provided by, or generally considered
comparable to programming provided by a television broadcast station; and, "other
programming service" is information that a cable operator makes available to all
subscribers generally.
Subd. 9. "City" shall mean the City of Richfield, a municipal corporation in
the State of Minnesota.
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Subd. 10. "Connection" means the attachment of the drop to the first radio or
television set of the subscriber.
Subd. 11. "Converter" means 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 permits a subscriber to view
all signals included in the basic service delivered at designated converter dial
locations.
Subd. 12. "Council" shall mean the governing body of the City.
Subd. 13. "Drop" shall mean the cable that connects the subscriber terminal
to the nearest feeder cable of the cable.
Subd. 14. "FCC" means the Federal Communications Commission, or a
designated representative.
Subd. 15. "Franchise" means the non-exclusive right and authority granted to
an Applicant by a Franchise Agreement Ordinance to construct, maintain and operate
any part of a Cable Communications System described in the Application, through use
of the public Streets, public utility easements or other public rights-of--way or public
places in the City. The Franchise shall describe in detail all requirements applicable
to the Franchise including all applicable requirements of federal, state and local laws.
Subd. 16. "Franchise Agreement Ordinance" or "Franchise Agreement"
means the ordinance adopted by City granting a Franchise to an Applicant.
Subd. 17. "Grantee" shall mean any Person to whom a Franchise is granted
pursuant to this Ordinance and any lawful successor or assignee of the original
Grantee.
Subd. 18. "Gross Revenues" shall mean all revenues received directly or
indirectly by the Grantee; arising from or in connection with the provision of Cable
Service in the City and consistent with local, state and federal law, including, but not
limited to, Subscriber revenues (including Pay Tom, advertising income, home
shopping programs, rentals of equipment, antenna or signal space, and any and all
other Gross Revenues received by the Grantee from the provision of Cable Service in
the area under the jurisdiction of the City. Grantee is not required to include
revenues recorded as received but which are "bad debt," but it must include any
recoveries of bad debt. This defuvtion of gross revenues also does not include any
sales, excise or other taxes collected by Grantee on behalf of federal, state, county,
city or other governmental unit. Funds collected by Grantee to support public,
educational and governmental access programming are also excluded from the
definition of Gross Revenues.
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Subd. 19. "Minnesota Cable Communications Act" means the provisions of
Minnesota law governing the requirements for a cable television franchise as set forth
in Minn. Scat. § 238, et. seq., as amended.
Subd. 20. "Ordinance" means this Ordinance concerning the granting of
Franchises in and by the City for Cable Communications Systems.
Subd. 21. "Person" means any natural person and all domestic and foreign
corporations, closely-held corporations, associations, syndicates, joint stock
corporations, partnerships of every kind, clubs, businesses, common law trusts,
societies and/or any other legal entity.
Subd. 22. "Street" shall mean the surface of and the space above and below
any public Street, road, highway, freeway, Iane, 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, vaults, man-holes,
amplifiers, appliances, attachments and other property as may be ordinarily necessary
and pertinent to a System.
Subd. 23. "Subscriber" shall mean any person or entity receiving service
provided by a Grantee pursuant to the authority of a Franchise.
Subd. 24. In the event the meaning of any word or phrase not defined herein
is uncertain, the definitions contained in applicable State or Federal law shall apply.
726.07. Authority to Grant l~-anchises
Subdivision 1. The Council is empowered and authorized to issue, in
accordance with the City Charter, non-exclusive Franchises to install, construct,
operate and maintain Cable Communications Systems in the City's Streets, as well as
to regulate these activities:
Subd. 2. The Council has determined that the granting of Franchises for
Cable Communications Systems in the City will promote the public interest, enhance
the health & welfare and safety of the public and stimulate commerce by assuring
that: (1) Cable Communications Systems are responsive to the needs and interests of
the City and its residents; (2) Cable Communications Systems provide, and are
encouraged to provide the widest diversity of information and service to the public;
and (3) there is an orderly process for the granting or renewal of Franchises, and
oversight of the services provided pursuant to Franchises.
Subd. 3. No person shall construct, operate, maintain, or continue to operate
or maintain a Cable Communications System which occupies any part of the City's
P,~~ a
Streets, without the authority of a Franchise granted by the City pursuant to this
Ordinance.
Subd. 4. No provision of this Ordinance shall be deemed or construed to
require the granting of a Franchise by the City.
Subd. 5. Any Franchise granted must comply with the Minnesota Cable
Communications Act standards.
Subd. 6. Grantee's rights are subject to the police power of City to adopt and
enforce ordinances necessary to the health, safety and welfare of the public of general
applicability.
Subd. 7. Both the City and the Grantee expressly reserve any and all rights
that either may have under applicable state and federal law including but not
necessarily limited to, the Cable Communications Policy Act of 1984, as amended,
and the rules and regulations of the FCC. Neither adoption of this Franchise by the
City nor acceptance by the Grantee shall be construed as a waiver, modification,
termination or discharge of any right that either the city or the Grantee may now or
hereafter have.
Subd. 8. Except as may be based upon public health, safety and welfare
requirements of general applicability or where required by federal or state law or
rules, no modification or amendment to the Regulatory Ordinance or the franchise
agreement ordinance shall be effective unless in writing and signed by both the City
and Grantee.
726.09. Application for Franchise.
Subdivision 1. Each Applicant for a Franchise, including the renewal of a
Franchise consistent with state and federal law, requesting permission to construct,
operate or maintain any Cable Communications System in the City shall file an
Application with the City in a form and containing such information as is requested
by the City. The contents of such Application may vary, according to the nature of
the proposed Cable Communications Systems. However, an Initial Application shall
contain, at a minirnum, the following information.
(a) The name, address and telephone number of the Applicant. If the
Applicant is a partnership, the home and business address of each partner shall also
be set forth. If the Applicant is a corporation, the" Application shall state the names
and addresses of its directors, main officers, major stockholders and associates and
the names and addresses of parent or subsidiary companies.
(b) A statement setting .forth in its entirety any and all agreements and
understandings, whether formal or informal, written, oral or implied, existing or
proposed to exist between the Applicant and any Person who proposes to have an
p,~~ s
ownership interest with respect to the proposed Franchise or to the proposed Cable
Communications System. If a Franchise is granted to a Person acting as a
representative of another Person and such information is not disclosed in the original
Application, the Franchise shall be deemed void and of no force and effect.
(c) Financial statements, as determined by the Council, prepared by a
certified public accountant, or person otherwise satisfactory to the Council, showing
Applicant's financial status and financial ability to complete the construction and
installation of the proposed Cable Communications System and/or continue the
operation of the existing Cable Communications System.
(d) A statement describing the Cable Communications System and
specifying the type and capacity of the Cable Communications System proposed to be
construed, installed, maintained or operated by the Applicant and the proposed or
existing location of the Cable Communications System.
(e) A description of all previous experience of the Applicant in
providing Cable Communications System service and in related or similar fields.
(f) Any other details, statements, information or references pertinent to
the subject matter of such Application which shall be required or requested by the
Council, or by any provision of any other ordinance of the City.
The City reserves the right to modify the Application in a renewal process to
accommodate information regarding the Applicant that is already in the possession of
the City. Any renewal of a Franchise shall comply with applicable federal, state or
local law.
Subd. 2. Prior to the issuance of a Franchise, the City shall hold a public
hearing, following reasonable notice to the public, at which Applicant and its
Application shall be examined and the public and all interested parties afforded a
reasonable opportunity to be heard. The City reserves the right to seek
reimbursement of its costs to the extent permitted by applicable state and federal law.
The preceding statement does not constitute an agreement by any Applicant to
reimburse the City for the cost of the Application process.
Subd. 3. In making any determination hereunder as to any Application, the
City shall consider the impact on the Streets with the addition of the proposed Cable
Communications System, the needs of the City and the legal, technical and financial
qualifications of the Applicant. For initial franchises, the City shall give due
consideration to the quality of the service proposed; experience, character,
background and the financial responsibility of any Applicant and its management and
owners; willingness and ability to abide by policy conditions; Franchise limitations
and requirements; and any other considerations deemed pertinent to the Council for
safeguarding the interest of the City and the public. For a renewal of a Franchise,
Pagc 6
the Ciry shall also consider the factors identified in the Cable Communications Policy
Act of 1984, as amended.
Subd. 4. The Ciry may require the Applicant for an initial franchise to
reimburse the Ciry for its reasonable costs to review the Application including costs
for technical assistance to aid the Ciry in understanding the nature and effect of the
Application.
726.11. Acceptance and Duration of Franchise.
Subdivision 1. Any Franchise granted pursuant to this Ordinance shall be in
the form of a Franchise Agreement Ordinance between the City and the Grantee
which shall comply with all specifications of this Ordinance.
Subd. 2. Any Franchise granted pursuant to this Ordinance shall become
effective in accordance with the terms and conditions approved by the Council,
provided that a Grantee has filed with the Ciry Clerk a written instrument addressed
to the Council accepting the Franchise, within the time specified by the City Council,
and agreeing to comply with all provisions of this Ordinance and the Franchise.
Subd. 3. The term of a Franchise shall be stated in the Franchise Agreement
Ordinance, but shall in no event exceed 15 years.
726.13. Franchise Territory.
Any Franchise shall be valid within all territorial limits of the City, and within any
area added to City during the term of a Franchise, unless otherwise specified in the
Franchise Agreement Ordinance.
72'6.15. Franchise Administration.
Subdivision 1. Administrator. The City Manager or the City Manager's
designee shall be responsible for the continuing administration of a Franchise. The
administrator may be changed by City from time to time by written notice given to a
Grantee.
Subd. 2. Advisory bodX. The City may appoint an advisory body to monitor
the performance of a Grantee in executing the provisions of a Franchise. The
advisory body shall perform all functions required of it by the City and applicable
laws, ordinances, Hiles and regulations.
Subd. 3. Delegation of Authorit~by the City.
a. The City reserves the right to delegate and redelegate from time to
time any of its rights or obligations under a Franchise to any body or organization.
Page 7
b. Any delegation by City shall be effective upon written notice by
City to a Grantee of such delegation.
c. Upon receipt of notice by a Grantee of City's delegation, a Grantee
shall be bound by all terms and conditions of the delegation not in conflict with a
Franchise.
d. Any such delegation, revocation or redelegation, no matter how
often made, shall not be deemed an amendment to a Franchise or require any consent
of a Grantee.
Subd. 4. Nonenforcement b~City. A Grantee shall not be relieved of its
obligation to comply with any of the provisions of a Franchise by reason of any
failure of the City or to enforce prompt compliance.
Subd. 5. Administration of Franchise.
a. The City shall have continuing regulatory jurisdiction and
supervision over the System and a Grantee's operation under a Franchise. The City
may issue such reasonable rules and regulations concerning the construction,
operation and maintenance of a System as are consistent with the provisions of a
Franchise.
b. A Grantee shall construct, operate and maintain a System subject to
the supervision of all the authorities of the City who have jurisdiction in such matters
and in strict compliance with all laws, ordinances, departmental rules and regulations
affecting the System.
c. A System and all parts thereof shall be subject to the right of
periodic inspection by the City where reasonably necessary to the enforcement of a
Franchise and provided that such inspection shall not interfere with the operation of a
System and such inspections take place during normal business hours.
Subd. 6. Emer ency Use. In the case of any emergency or disaster, a
Grantee shall, upon request of the City or emergency management personnel, make
available to the City its emergency alert system and related facilities for use during an
emergency or disaster period in accordance with Section 47 C.F.R. § 11.
Subd. 7. Controlline Law. A Franchise shall be construed and enforced in
accordance with the substantive laws of the State of Minnesota except to the extent the
Supremacy Clause of the United States Constitution requires application of federal
law .
Subd. 8. Ca tions. The paragraph captions and headings in a Franchise are
for convenience and reference purposes only and shall not affect in any way the
meaning of interpretation of a Franchise.
r.g~ s
Subd. 9. Calculation of Time. Where the performance or doing of any act,
duty, matter, payment or thing is required hereunder and the period of time or
duration for the performance is prescribed and fixed herein, the time shall be
' computed so as to exclude the first and include the last day of the prescribed or fixed
period or duration of time. When the last day of the period falls on Saturday, Sunday
or a legal holiday, that day shall be omitted from the computation and the next
business day shall be the last day of the period.
726.17. Construction of Svstem.
Subdivision 1. A Grantee shall, at least 60 days prior to any construction
regarding the System in the City, provide notice to representatives of the City of the
following: (1) The nature of the work to be undertaken; (2) the estimated schedule
for said work; (3) steps to be taken to minimi~P disnrption to public; and (4) steps to
be taken to notify the residents and others of said work.
Subd. 2. A Grantee shall not open or disturb the surface of any Streets
without first obtaining a permit from City for which permit City may impose a
reasonable fee to be paid by a Grantee. The lines, conduits, cables and other
property placed in the Streets shall be located in such part of the Street as shall be
reasonably determined by the City. In so deternrining the location in such part of the
Street, the parties shall take into account the health, safety and welfare considerations
together with the technical parameters of the System design. A Grantee shall, upon
completion of any work requiring the opening of any Streets, restore the same,
including the pavement and its grounds to as good a condition as formerly and in a
manner and quality approved by City, and shall exercise reasonable care to maintain
the same thereafter in good condition. Such work shall be performed with diligence
and due care, and if Grantee shall fail to perform the work promptly, to remove all
dirt and rubbish and to put the Street back into the condition required hereby, City
shall have the right to give written notice to Grantee regarding the condition of the
Street. Grantee shall have 30 days from the receipt of written notice from the City to
put the Street into the condition required hereby or reach an agreement with the City.
Such work shall be performed with diligence and due care, and if Grantee shall fail to
perform the work promptly, to remove all dirt and rubbish and to put the Street back
into the condition required hereby, the City shall have the right following 30 days
written notice to a Grantee to put the Street back into good condition at the expense of
the Grantee. A Grantee, upon demand, shall pay to the City the cost of such work
done or performed including its administrative and overhead plus an additional ten
percent as liquidated damages.
Subd. 3. All wires, conduits, cable and other property and facilities of a
Grantee shall be so located, constructed, installed and maintained as not to endanger
or unnecessarily interfere with the usual and customary trade, traffic and travel upon,
or other use of, the Streets of City. A Grantee shall keep and maintain all of its
property in good condition, order and repair so that the same shall not menace or
endanger the life or property of any person. A Grantee shall keep accurate maps and
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records of all of its wires, conduits, cables and other property and facilities located,
constructed and maintained in the City.
Subd. 4. All wires, conduits, cables and other property and facilities of a
Grantee, shall be constructed and installed in an orderly and workmanlike manner.
All wires, conduits and cables shall be installed, where possible, parallel with electric
and telephone lines. Multiple cable configurations shall be arranged in parallel and
bundled with due respect for engineering considerations.
Subd. 5. A Grantee shall at all times comply with all applicable laws,
ordinances, rules, regulations and codes, federal, state and local. In any event, the
installation, operation or maintenance of System shall not endanger or interfere with
the safety of persons or property in the City.
Subd. 6. Whenever City shall undertake any public improvement which
affects a Grantee's equipment or facilities, City shall, with due regard to reasonable
working conditions and with reasonable notice, direct a Grantee to remove its wires,
conduits, cables and other property located in Streets. A Grantee shall relocate or
protect its wires, conduits, cables and other property at its own expense. If the City,
from its own funds, reimburses any non-municipally owned utility for relocating its
property at the City's request, the City shall reimburse Grantee in a substantially
similar manner.
Subd. 7. To the extent a Grantee plans to construct or rebuild its System, it
shall comply with the following minimum requirements:
a. A Grantee shall construct underground in any area where both
electrical and telephone has been installed underground.
b. A Grantee shall change from aerial to underground, at its own
expense, in any area where both electrical and telephone are hereafter changed from
aerial to underground. if the City, from its own funds, reimburses any non-
municipally owned utility for relocating its property at the City's request, the City
shall reimburse Grantee in a substantially similar manner.
c. A Grantee shall change from aerial to underground, when both
electrical and telephone are similarly required, without cost to City, whenever
requested by City, which request can be made for a certain area or areas or for the
entire System. If the City, from its own funds, reimburses any non-municipally
owned utility for relocating its property at the City's request, the City shall reimburse
Grantee in a substantially similar manner.
d. To enable a Grantee reasonable opportunity to change its wiring
from aerial to underground, and also to allow it to pre-wire all new subdivisions or
new development areas, City shall arrange for the Grantee to receive timely notice of
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anew Franchise granted for Cable Services, but in no event shall City have any
liability for failure to arrange for notice of the following:
e. Any changes of which City has knowledge of, or which City may order,
regarding a change from aerial to underground of any line (telephone or electrical)
within its boundaries.
1. Any underground trenching that may be pending.
2. New subdivisions and development. All of such subdividers or
developers shall be notified of a Franchise and a System.
726.19. Work Performed by Others.
Subdivision 1. A Grantee shall give notice to City specifying the names and
addresses of any entity, other than a Grantee, which performs construction services
pursuant to a Franchise, provided, however, that all provisions of a Franchise remain
the responsibility of a Grantee.
Subd. 2. All provisions of a Franchise shall apply to any subcontractor or
others performing any work or services pursuant to the provisions of a Franchise.
726.21. Conditions on Use.
Subdivision 1. A Grantee shall not place poles or other fixtures where the
same will interfere with any gas, electric or telephone fixture, water hydrant or main.
Subd. 2. A Grantee, at the request of any person holding a building moving
permit and with not less than five business days advance notice, shall temporarily
remove, raise or lower its wires, conduits and cables. The expense of such
temporary removal, raising or lowering of wires, conduits and cables shall be paid by
person requesting the same, and Grantee shall have the authority to require such
payment in advance of anq required work taking place.
Subd. 3. A Grantee shall have the authority, to the extent the City has
authority to grant the same, to trim trees upon or overhanging any Street so as to
prevent the branches of such trees from coming in contact with the wires, conduits
and cables of a Grantee. All trimming shall be done under the supervision and
direction of City and at the expense of a Grantee.
Subd. 4. Nothing contained in a Franchise shall relieve any Person from
liability arising out of the failure to exercise reasonable care to avoid injuring a
Grantee's facilities while performing any work connected with grading, regrading or
changing the line of any Street or public place or with the construction or
reconstruction of any sewer or water system.
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726.23. Use of Grantee's Facilities.
A Grantee is authorized to use Streets to construct, operate and maintain a Cable
Television System and to provide Cable Services in the City. All uses by Grantee or
others authorized by Grantee shall be subject to applicable permits, licenses,
certificates or franchises as may be required by the City, state or federal law or rules.
726.25. Failure to Com,~lete Work.
Upon the failure, refusal or neglect of a Grantee to cause any work or other act
required by law, this Ordinance or a Franchise to be properly completed or
performed, after notice to a Grantee the City may cause work or other activity to be
completed or performed, in whole or in part, to the satisfaction of the City. Upon so
doing, the City shall submit to a Grantee an itemized statement of the cost thereof. A
Grantee shall, within 30 days after receipt of the statement, pay to the City the entire
amount thereof.
726.27. Technical Standards.
Subdivision 1. A Cable System shall be designed, constructed and operated so
as to meet those technical standards promulgated by the Federal Communications
Commission relating to Cable Television Systems contained in part 76 of the Federal
Communications Commission's rules and regulations relating to Cable Television
Systems and found in Code of Federal Regulations, Title 47, Sections 76.601 to
76.630. The City shall be able to enforce these standards to the extent allowable
under local, state or federal law. Any tests required by the Federal Communications
Commission pursuant to these rules must be filed with the City upon request.
Subd. 2. A Grantee shall perform additional tests if requested by City. The
tests may be done at such times as is determined by City, with notice to a Grantee.
All expenses for all such tests shall be paid by City, unless otherwise agreed upon.
726.29. Interconnection.
Subdivision 1. A System shall be designed to be interconnected with other
adjacent Systems. At a minimum, a System shall be capable of interconnecting the
access channel programming to other adjacent systems. Grantee shall not be required
to provide more access channels as a result of interconnecting with another system
than the number of channels required by the franchise agreement ordinance.
Subd. 2. The City may request a Grantee to negotiate interconnecting the
Subscriber Network with other adjacent Systems in the general area. A Grantee shall
use its good faith to negotiate such interconnection and shall keep the City informed
of the progress of any negotiations.
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726.31. Removal or Abandonment of A Svstem.
Subdivision 1. In the event that: (1) the use of any System is discontinued for
~~ any reason for a continuous period of 12 months; or (2) any System has been installed
in a Street without complying with the requirements of this Ordinance and a
Franchise, a Grantee, at its expense shall, at the demand of the City remove promptly
from the Streets all of a System other than any which the City may permit to be
abandoned in place. In the event of any such removal Grantee shall promptly restore
to a condition as nearly as possible to its prior condition the Street or other public
places in the City from which a System has been removed.
Subd. 2. A System to be abandoned in place shall be abandoned in the
manner prescribed by the City. A Grantee may not abandon any portion of a System
without having first given three months written notice to the Ciry. A Grantee may
not abandon any portion of a System without compensating the City for damages
resulting from the abandonment.
Subd. 3. At the termination or expiration of the term for which a Franchise is
granted and following a denial of renewal, or upon its revocation, as provided for, the
City shall have the right to require a Grantee to remove within two years, at a
Grantee's expense, all or any portion of a System from all Streets within the City. In
so removing a System, a Grantee shall refill and compact at its own expense, any
excavation that shall be made and shall leave all Streets and private property in as
good a condition as that prevailing prior to a Grantee's removal of a System, and
without affecting, altering or disturbing in any way electric, telephone or utility,
cables wires or attachments. The City, or its delegation, shall have the right to
inspect and approve the condition of such Streets after removal. The security fund,
insurance, indemnity and penalty provision of a Franchise shall remain in full force
and effect during the entire term of removal. The insurance and indemnity provisions
of this Ordinance in Sections 726.63 and 726.67 shall survive any termination or
revocation.
Subd. 4. If a Grantee has failed to complete such removal within the time
given after written notice of the City's demand for removal is given, the City shall
have the right to exercise one of the following options:
a. Declare all right, title and interest to a System to be in the City or
its designee with all rights of ownership including, but not limited to, the right to
operate a System or transfer a System to another for operation by it; or
b. Declare a System abandoned and cause a System, or such part
thereof as the City shall designate, to be removed at no cost to the City. The cost of
said removal shall be recoverable from the security fund, indemnity and penalty
section provided for in the Franchise, or from a Grantee directly.
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Subd. 5. Upon termination of service to any Subscriber, a Grantee shall
promptly remove all its facilities and equipment from a dwelling of a Subscriber who
owns such dwelling upon his or her written request, except as provided by applicable
state and federal law. Such Subscribers shall be responsible for any costs incurred by
a Grantee in removing the facilities and equipment.
726.33. Customer Service Standards.
Subdivision 1. At all times, a Grantee shall meet the requirements of the
Federal Communications Commission regulations on Consumer Service Obligations.
A Grantee shall comply with the Customer Service Obligations of the Federal
Communications Commission as such standards may from time to time be amended.
Subd. 2. A Grantee shall begin actions to correct service or maintenance
problems no later than 24 hours after it is notified of a System outage for 95 ~O of
Subscribers. A Grantee shall bear the costs of malting any repairs, adjustments, or
installations, unless the Subscriber caused the damage necessitating the repairs or
maintenance. A Grantee may charge for service.
a. Subscriber Complaints to the City.
b. Subscribers shall direct all complaints regarding service to a
Grantee.
c. If such complaints are not rectified within seven days from the date
the complaint is made, the Subscriber may file a complaint with the City.
d. The City shall maintain a record of all complaints it receives.
e. If, at any tune after receipt of a complaint, the City believes that
the complaint may constitute a violation of a Franchise, or local, state or federal law,
the City may notify a Grantee regarding the complaint.
f. If the City and a Grantee cannot resolve the complaint within seven
days after the date that the Subscriber files a complaint with the City, the City may
issue a written notice specifying the nature of the complaint and ordering a Grantee to
appear at the next regularly scheduled meeting or other appropriate public forum, as
determined by City.
g. If the City and Grantee fail to rectify the complaint, the City may
begin default procedures as specified in Section 726.69.
726.35. Programming Provisions.
A Grantee shall identify its initial services in an Exhibit attached to a Franchise
Agreement Ordinance.
Pagc 14
726.37. Subscriber Practices.
Subdivision 1. There shall be no charge for disconnection of any installation
or outlet. If any subscriber fails to pay a properly due monthly subscriber fee, or any
other properly due fee or charge, a Grantee may disconnect the subscriber's service
outlet, provided, however, that such disconnection shall not be effected until after the
later of: (i) 45 days after the original due date of said delinquent fee or charge; or (ii)
ten days after delivery to subscriber of written notice of the intent to disconnect. If a
subscriber pays before expiration of the later of (i) or (ii), a Grantee shall not
disconnect. After disconnection, upon payment in full of-the delinquent fee or charge
and the payment of a reconnection charge, a Grantee shall promptly reinstate the
subscriber's cable service.
Subd. 2. Refunds to subscribers shall be made or determined in the following
manner:
a. If a Grantee fails, upon request by a subscriber, to provide any
service then being offered, a Grantee shall promptly refund all deposits or advance
charges paid for the service in question by said subscriber. This provision does not
alter a Grantee's responsibility to subscribers under any separate contractual
agreement or relieve a Grantee of any other liability.
b. If any subscriber terminates any monthly service because of failure
of a Grantee to render the service in accordance with a Franchise, a Grantee shall
refund to such subscriber the proponionate share of the charges paid by the subscriber
for the services not received. This provision does not relieve a Grantee of liability
established in other provisions of a Franchise.
c. If any subscriber terminates any monthly service prior to the end of
a prepaid period, a proportionate amount of any prepaid subscriber service fee, using
the number of days as a basis, shall be refunded to the subscriber by a Grantee.
Subd. 3. Continued failure by a Grantee to provide services required by a
Franchise may, in the discretion of City, be cause for imposition of a penalty or
termination of a Franchise.
726.39. Local Office.
Fach Franchise shall require that a Grantee maintain a local business office, as
described in a Franchise, or agent, which subscribers may access by telephone 24
hours a day, seven days a week, without incurring long distance toll charges, so that
complaints, questions or requests regarding the service provided pursuant to a
Franchise may be promptly reported to a Grantee.
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726.41. Subscriber Charges.
Current subscriber charges, the length and terms of residential subscriber contracts,
and the procedure by which subscriber charges are established shall be available
during normal business hours for public inspection.
726.43. Rate RePulation.
The City reserves the right to regulate rates for services offered over the Cable
System, to the extent not expressly preempted by federal and state law. A Grantee
shall be subject to the rate regulation provisions provided for herein, and those of the
FCC at 47 C.F.R., Part 76.900, Subpart N.
726.45. Risrhts of Individuals.
Subdivision 1. Discriminatory Practices Prohibited. In the performance of a
Franchise, a Grantee shall not discriminate against any person on the ground of or
because of race, creed, color, national origin or ancestry, sex, religion, sexual
preference, or political opinion or affiliation or age. A Grantee shall comply at all
times with all other applicable federal, state and City laws, and all executive and
administrative orders relating to non-discrimination.
Subd. 2. Subscriber Privacy.
a. No signals, including signals of a Class IV Channel, shall be
transmitted from a subscriber terminal except as required to provide a service
authorized by a Franchise and the Subscriber. A Grantee 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, a Grantee shall, for each year said authorization is in effect without
revocation, mail a notice to each authorizing Subscriber informing him or her of the
right to revoke said 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.
b. A Grantee shall not, without the written authorization of the
affected Subscriber, provide to anyone data identifying or designating any Subscriber
other than where that third-party is performing a service or task in furtherance of the
Grantee's business including, but not necessarily limited to, billing or telemarketing
functions. Any data authorized shall be made available upon request by and without
charge to the authorizing subscriber in understandable fashion, including specification
~~ ~6
of the purpose for which the information is being gathered and to whom and for what
fee the information is to be sold.
~~ Subd. 3. A Grantee shall not tap or monitor, arrange for the tapping or
monitoring, or permit any other person to tap or monitor, any cable, line, signal input
device, or Subscriber outlet or receiver for any purpose whatsoever, without the prior
written authorization of the affected Subscriber as required by Subdivision 2 of this
section.
Subd. 4. Nothing herein contained shall prohibit a Grantee from verifying
System operation and the transmission of signals to an affected subscriber or from
monitoring for the purpose of billing.
726.47. Public. Educational and Governmental Access,.
Each Franchise shall include a requirement for public, educational and governmental
access programming and facilities consistent with state and federal law.
726.49. Grantee Records and Books.
Subdivision 1. Throughout the term of a Franchise, a Grantee shall maintain
books and records in accordance with normal and accepted bookkeeping and
accounting practices for the Cable Communications industry, and allow for inspection
of them at reasonable times at its designated office where necessary to enforcement of
a Franchise. The books and records to be maintained by a Grantee shall include the
following:
a. A record of all requests for service;
b. A record of all subscriber or other complaints, and the action taken;
c. A file of all subscriber contracts;
d. Grantee policies, procedures and company rules; and
e. Financial records.
Subd. 2. A Grantee shall file with City, at the time of its annual payment of a
Franchise Fee, as described in a Franchise, the following:
a. A copy of the most recent performance review for a Grantee
utilizing the Annual Performance Review Form attached hereto as Exhibit B.
b. A statement certified by an officer of Grantee showing, in such
detail as acceptable to City, the gross revenues of a Grantee for the preceding fiscal
year.
c. 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 three percent or more, and if a partnership, all general partners, and if a
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general partner is a corporation, the foregoing information shall be given as to the
corporate general partner.
d. If requested by City, a copy of each document filed with all federal,
state and local agencies during the preceding fiscal year not previously filed with
City.
e. A statement of its current billing practices.
f. A current copy of its rules governing use of equipment and facilities
and public, educational and government access and leased access programming.
g. A current copy of its subscriber service contract.
h. A copy of any subscriber surveys conducted during the last calendar
year.
Subd. 3. City, its agents and representatives shall have authority where
necessary to enforcement of a Franchise to arrange for and conduct an inspection or
audit of the books and records of a Grantee. A Grantee shall first be given five days
notice of the inspection or audit request, the description of and purpose for the
inspection or audit, and description, to the best of City's ability, of the books, records
and documents it wants to review.
726.51. Transfer of Ownership.
Subdivision 1. A Franchise shall not be assigned or transferred, either in
whole or in part, or leased, sublet or mortgaged in any manner, nor shall title thereto,
either legal or equitable or any right, interest or property therein, pass to or vest in
any person other than an Affiliate of Grantee without the prior written consent of
City, which consent shall not be unreasonably withheld. Further, Grantee shall not
sell or transfer any stock or ownership interest so as to create a new controlling
interest except with the consent of City, which consent shall not be unreasonably
withheld.
Subd. 2. Any sale or transfer of Franchise, including a sale or transfer by
means of a fundamental corporate change, requires the written approval of City. The
parties to the sale or transfer of Franchise shall make a written request to City for its
consent. City shall reply in writing within 30 days of actual receipt of the request
and shall indicate its approval of the request or its determination that a public hearing
is necessary. City shall conduct a public hearing on the request within 30 days of
such determination if it determines that a sale or transfer of Franchise may adversely
affect the Grantee's subscribers.
Subd. 3. Unless otherwise already provided for by local law, notice of any
such hearing shall be given 14 days prior to the hearing by publishing notice thereof
~~ ~s
once in a newspaper of general circulation in the 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. Within 30 days after the public hearing, City shall approve
' or deny in writing the sale or transfer request.
Subd. 4. In a sale or transfer of only a Franchise, without the inclusion of the
System in which at least substantial initial construction has commenced, a Grantee
shall be required to establish to the sole satisfaction of City that the sale or transfer of
a Franchise is in the public interest.
Subd. 5. For purposes of this section, fundamental corporate change means
the sale or transfer of a controlling interest in the stock of a corporation or the sale or
transfer of all or a majority of a corporation's assets, merger (including a parent and
its subsidiary corporation}, consolidation or creation of a subsidiary corporation. For
the purposes of this Section, fundamental partnership change means the sale or
transfer of all or a majority of a partnership's assets, change of a general partner in a
limited partnership, change from a limited to a general partnership, incorporation of a
partnership, or change in the control of a partnership.
Subd. 6. The word "control", as used herein, shall apply to the sale or
transfer of all or a majority of Grantee's assets or shares of stock, merger (including
any parent and its subsidiary corporation), consolidation, creation of a subsidiary
corporation of the parent company, or sale or transfer of stock in Grantee so as to
create a new controlling interest. The term "controlling interest" as used herein is not
limited to majority stock ownership, but includes actual working control in whatever
manner exercised, including the creation or transfer of decision-making authority to a
new or different board of directors. Every change, transfer or acquisition of control
of a Grantee shall make the Franchise subject to cancellation unless and until City
shall have consented in writing thereto, which consent shall not be unreasonably
withheld. For the purpose of determining whether it shall consent to such change,
transfer or acquisition of control, City may inquire into the qualifications of the
prospective controlling party. The City reserves the right to seek reimbursement of its
costs for conducting an inquiry to the extent permitted by applicable state and federal
law. The preceding statement does not constitute an agreement by any party to
reimburse the City.
Subd. 7. In no event shall a transfer or assignment of ownership or control be
approved without transferee becoming a signatory to a Franchise.
Subd. 8. Any transferee of a Franchise shall be subordinate to any right, title
or interest of City.
Subd. 9. For information on the right of the City to purchase the cable system
during a transfer of ownership, see Section 726.53.
Pagc 19
Subd. 10. Notwithstanding anything to the contrary, no such consent or
approval shall be required for a transfer or assignment to any Person controlling,
controlled by or under the same common control as the Grantee.
726.53. Right to Purchase.
Subdivision 1. Transfer of Ownership. If at any time a Grantee receives a
bona fide purchase offer for an asset sale of a System which a Grantee is willing to
accept, a complete copy of such offer shall promptly be given to City and City shall
have the right to purchase a System according to the terms of that offer. City shall
exercise such right by submitting to a Grantee, within 60 days after City's actual
receipt of the bona fide offer, notice that City desires to purchase a System pursuant
to said offer. If City does not exercise such right a System may be sold, but only on
terms substantially similar to those terms submitted to City. If any substantive
changes are made in the purchase offer given to City, such purchase offer, as so
changed, shall again be given to City and City shall have 60 days from actual receipt
by City of the offer, as changed, within which to exercise its right to purchase a
System pursuant to the offer, as changed, all as above provided. If City does not
exercise its right to purchase a System pursuant to any offer given to City pursuant to
this paragraph, and a System is not sold to the buyer and on the terms set out in the
offer given to City, then the right of City to purchase a System shall continue, and all
subsequent purchase offers shall be given to City pursuant to this paragraph. Also,
the City's right to purchase pursuant to this paragraph shall survive every sale to a
buyer and shall continue and be binding upon every buyer of the System.
Subd. 2. Upon Forfeiture, Revocation or Expiration:
a. Upon forfeiture, revocation or termination of a Franchise, or at the
normal expiration and denial of any renewal of a Franchise team, City shall have the
right to purchase the System. Such right shall be exercised upon written notice to
Grantee given within 120 days after the occurrence of any such event.
b. In the event City elects to exercise its right to purchase the System
as provided in this Subdivision 2, the following shall then apply:
1. If a Franchise expires and the renewal of the Franchise is
denied and the City acquires ownership of the Cable System or effects a transfer of
ownership of the System to another Person, any such acquisition or transfer shall be
at fair market value, determined on the basis of the Cable System valued as a going
concern but with no value allocated to the Franchise itself, or
2. If a Franchise held by a Grantee is revoked for cause and
the City acquires ownership of the Cable System or effects a transfer of ownership of
the System to another Person, any such acquisition or transfer shall be at an equitable
price.
P~~ zo
3. A Grantee expressly waives its rights, if any, to relocation
costs that might otherwise be provided by law.
4. The date of valuation shall be no earlier than the day
following the date of revocation, forfeiture, expiration or termination of a Franchise
and no later than the date City makes a written offer for a System.
726.55. Mediation.
It either a Grantee or City asserts that the other is in default in the performance of
any obligation of a Franchise or in the event of a dispute relating to a right to
purchase or terms and conditions of it as described in Section 726.53 of this
Ordinance, the complaining parry shall notify the other of the default or claim and the
desired remedy. The notification shall be written. Representatives of City and a
Grantee must promptly meet and attempt in good faith to negotiate a resolution. If
the dispute is not resolved within 30 days of the written notice, the City and a
Grantee may jointly select a mediator to facilitate further discussion. The Ciry and a
Grantee will equally share the fees and expenses of this mediator. If a mediator is
not used, or if the City and a Grantee are unable to resolve the matter within 30 days
after first meeting with the selected mediator, either may commence an action in any
court of competent jurisdiction in Minnesota to interpret and enforce a Franchise or
for such other relief as may be permitted by law or equity, or either Grantee or Ciry
may take any other action permitted by law.
726.57. Special Provisions.
Subdivision 1. As permitted by state and federal law, and specified in a
Franchise Agreement Ordinance, each Franchise may require a Grantee to provide
facilities and services to public schools and community colleges within the City, and
to fire and police stations and other buildings owned and controlled by the Ciry used
for public non-residential purposes.
Subd. 2. System Maps and Layout - A Grantee shall have, at all times, up-to-
date route maps showing the location of the Cable Communications System adjacent
to the Streets. A Grantee shall make all maps available for review by the appropriate
City personnel.
Subd. 3. System Construction and Equipment Standards -The Cable
Communications System shall be installed and maintained in accordance with standard
good engineering practices and shall conform, when applicable, with the National
Electrical Safety Code and the FCC's Rules and Regulations.
L
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726.59. Franchise Fee.
Subdivision 1. As permitted by state and federal law, a Grantee may be
required to pay to the City a Franchise Fee as set forth in a Franchise, in
compensation for the use of the City's Streets pursuant to a Franchise.
Subd. 2. If a Franchise requires payment of a Franchise Fee, each such
Franchise shall authorize the City to audit a Grantee's financial records and
accountings relating to a Franchise Fee. A Grantee shall make available at its local
business office, upon reasonable request, such data as needed to conduct such audit in
accordance with generally accepted accounting principles.
5ubd. 3. The City and its representatives shall have the right to inspect a
Grantee's financial records during normal business hours to determine whether a
Grantee has properly paid all sums due to the City pursuant to the terms of a
Franchise.
Subd. 4. Any neglect, omission or refusal of a Grantee to cooperate with the
City in reviewing its financial information for the purpose of auditing payment of a
Franchise Fee, or to pay a Grantee fee in full, at the time and in the manner provided
in the Franchise, which neglect, omission or refusal shall continue for more than 30
days following written notice thereof to a Grantee from the City, shall be grounds for
default of a Franchise as provided for in Section 726.69 hereof.
726.61. Liabili
Subdivision 1. A Grantee shall pay all damages and penalties which the City
may legally be required to pay as a result of granting a Grantee's Franchise.
Subd. 2. A Grantee shall pay all expenses incurred by the City in defending
itself with regard to all damages and penalties mentioned above. The expenses shall
include all costs, such as attorney's fees.
726.63. Indemnification.
Subdivision 1. Grantee shall indemnify, defend, and hold harmless the City
for all damages and penalties, at all times during the term of this Franchise, as a
result of the procedures for granting this Franchise, the granting of this Franchise, or
Grantee's conduct or performance under this Franchise. These damages and penalties
shall include, but shall not be limited to, damages arising out of Personal injury,
property damage, copyright infringement, defamation, antitrust, errors and omission,
theft, fire, and all other damages arising out of Grantee's exercise of this Franchise,
whether or not any act or omission complained of is authorized, allowed or prohibited
by this Franchise.
P.~~ 2z
Subd. 2, In order for the City to assert its rights to be indemnified, defended,
or held harmless, the City must:
' a. Notify Grantee 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 ether resolution or disposition of such claim or
proceeding, unless, however, the City, in its sole discretion, determines that its
interests cannot be represented in good faith by Grantee; and
c. Fully cooperate with the reasonable requests of Grantee in its
participation in, and control, compromise, settlement or resolution or other disposition
of such claim or proceeding subject to Subdivision 1 above.
d. Act reasonably under all circumstances so as to protect the
indemnitor against liability and refrain from compromising any of indemnitor's rights.
Subd. 3. In the event the City, in its sole discretion, determines that its
interests cannot be represented in good faith by Grantee, Grantee shall pay, upon
receipt of written demand from City, all reasonable expenses incurred by the City in
defending itself with regard to all damages and penalties mentioned in Subdivision 1
above. These expenses shall include, but not be limited to, all out-of-pocket
expenses, such as attorney's fees and costs and the reasonable value of services (as
determined by City, rendered by City or any employees, agents or representatives of
City; provided, however, the attorney fees shall not exceed (on an hourly basis) those
customarily charged for similar work in the Twin Cities Metropolitan area of
Minnesota. City reserves the right to cooperate with a Grantee and participate in the
defense of any litigation either through intervention or otherwise.
726.65. Security Funds.
Subdivision 1. T19e City may require a Grantee to file with the City Clerk,
concurrently with its acceptance of a Franchise and at a Grantee's sole expense, a
corporate surety bond, construction bond or letter of credit. Such bond or letter of
credit shall be in an amount specified in the Franchise Agreement Ordinance, issued
by a responsible company licensed to do business in Minnesota and conditioned upon
the faithful performance of the Grantee to meet its obligations under this Ordinance
and the Franchise Agreement Ordinance. The bond or letter of credit may be reduced
at the sole discretion of the franchising authority.
Subd. 2. The provisions of this Section shall not be construed to excuse
unfaithful performance by a Grantee or limit the liability of a Franchise under this
Ordinance or a Franchise for damages.
Page 23
726.67. Insurance.
Subdivision 1. A Grantee shall maintain liability insurance covering its
` obligations of indemnification provided for in or as a result of the exercise of a
Franchise covering both the City and a Grantee (and shall maintain said insurance
during the entire term of a Franchise) in the minimum amount of:
a. $500,000 for property damage to any one person;
b. $2,(}00,000 for property damage in any ane act or occurrence;
c. $1,000,000 for personal injury to any one person; and
d. $2,000,000 for personal injury in any one act or occurrence.
Subd. 2. During the team of this Franchise, the Grantee shall maintain
insurance, as required by Subdivision 1 above, issued by a carrier or carriers with an
A.M. Best rating of "A-" or better. The Grantee shall maintain on file with the City
certificates of insurance together with written evidence of payment of required
premiums throughout the term of this Franchise. The above minimum amounts may
be changed from time to time by Grantee as requested by the City; provided,
however, the Grantee shall not be required to provide insurance in excess of what is
customarily provided by other cable television operators in the Twin Cities
Metropolitan area.
Subd. 3. A Grantee shall immediately give notice to City of any threatened or
pending litigation likely to affect this insurance.
Subd. 4. Neither the provisions of this section nor any damages recovered by
City shall be construed to, or shall, excuse unfaithful performance by a Grantee or
limit the liability of a Grantee.
Subd. 5. No recovery by City of any sum by reason of the Letter of Credit or
Bond required in a Franchise shall be any limitation upon the liability of a Grantee to
City under the terms of this section, except that the sum so received by City from
such Letter of Credit or $ond shall be deducted from a recovery under this section, if
for the same act or occurrence.
Subd. 6. All insurance policies maintained pursuant to a 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 unti130 days after .receipt by
the City, by registered mail, of written notice of such intention to cancel or
not to renew.
Subd. 7. A Grantee shall provide worker's compensation insurance as
required by state law.
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Subd. 8. All such insurance coverage shall provide a 30 day notice to the City
Manager in the event of material alteration or cancellation of any coverage afforded in
said policies prior to the date said material alteration or cancellation shall become
"~ effective.
726.69. Default.
Subdivision 1. City shall give written notice of default to a Grantee if City, in
its sole discretion, determines that a Grantee has:
a. Violated any provision of a Franchise or the acceptance hereof, or
any tole, order, regulation or determination of the City, state or federal government,
not in conflict with a Franchise;
b. Attempted to evade any provision of a Franchise or the acceptance
hereof;
c. Practiced any fraud or deceit upon City or subscribers;
d. Made a material misrepresentation of fact in the application for or
negotiation of a Franchise; or
e. Incurred a 12 month or more delay in the construction schedule.
Subd. 2. If a 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 a Grantee fails to commence to cure the
same within said 30 day period and thereafter fails to use reasonable diligence, in
City's sole opinion, to cure such default as soon as possible), then, and in any event,
such default shall be a substantial breach and City may elect to terminate the
Franchise. The City may place the issue of revocation and termination of a Franchise
before the governing body of City at a regular meeting. If City decides there is cause
or reason to terminate, t-he following procedure shall be followed:
a. City shall provide a Grantee with a written notice of the reason or
cause for proposed termination and shall allow a Grantee a minimum of 30 days
subsequent to receipt of the notice in which to correct the default.
b. A Grantee shall be provided with an opportunity to be heard at a
public hearing prior to any decision to terminate a Franchise.
c. If, after notice is given and an opportunity to cure, at a Grantee's
option, a public hearing is held, and the City determines there was a violation,
breach, failure, refusal or neglect, the City may declare by resolution the franchise
revoked and of no further force and effect unless there is compliance within such
Pagc :S
period as the City may fix, such period may not be less than 30 days provided no
opportunity for compliance need be granted for fraud or misrepresentation.
726.71. Continuity of Service.
Subdivision 1. It shall be the right of all Subscribers to continue receiving
services insofar as their financial and other obligations to a Grantee are honored. In
the event that a Grantee elects to rebuild, modify or sell the System, or the City gives
notice of intent to terminate or fails to renew a Franchise, a Grantee shall act so as to
insure that all Subscribers receive reliable service.
Subd. 2. In the event of a change of a Grantee, or in the event a new operator
acquires a System, a Grantee shall cooperate with the City's new Grantee or operator
in maintaining continuity of service to all Subscribers. During such period, a Grantee
shall be entitled to the revenues for any period during which it operates a System and
shall be entitled to reasonable cost for its services when it no longer operates the
System.
Subd. 3. In the event a Grantee fails to operate the System for three
consecutive days without approval of the City or without just cause, the City may, at
its option, operate the System or designate an operator until such time as a Grantee
restores service under conditions acceptable to the City or a permanent operator is
selected. This section shall not apply if the cable operator is unable to operate the
system due to Force Majeure as defined in Section 726.77. If the City is required to
fulfill this obligation for a Grantee, a Grantee shall reimburse the City for all
reasonable cost or damages in excess of revenue from the System received by the City
that are a result of a Grantee's failure to perform.
Subd. 4. A Grantee shall not allow its cable or other operations to interfere
with the television reception of Persons not served by a Grantee, nor shall a System
interfere with, obstruct or hinder in any manner, the operation of the various utilities
serving the residents of the City, as the facilities of such utilities exist at the time of
construction or extension-of a Grantee's System.
726.73. Foreclosure and Receivership.
Subdivision 1. Foreclosure. Upon the foreclosure or other judicial sale of a
System, a Grantee shall notify the City of such fact and such notification shall be
treated as a notification that a change in control of a Grantee has taken place, and the
provisions of a Franchise governing the consent to transfer or change in ownership
shall apply without regard to how such transfer or change in ownership occurred.
Subd. 2. Receivership. The City shall have the right to cancel a Franchise
subject to any applicable provisions of state law, including the Banlauptcy Act, 120
days after the appointment of a receiver or trustee to take over and conduct the
business of a Grantee, whether in receivership, reorganization, bankruptcy or other
Pagc 26
action or proceeding, unless such receivership or trusteeship shall have been vacated
prior to the expiration of said 120 days, or unless:
"~ a. Within 120 days after his election or appointment, such receiver or
trustee shall have fully complied with all the provisions of a Franchise and remedied
all defaults thereunder; and,
b. Such receiver or trustee, within said 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 a Franchise.
726.75. Compliance with Laws. Rules and Re~rrlations.
Any of the provisions or terms of this Ordinance may be amended by the City in
order to be made consistent with any new or amended local, state or federal law,
Wile, or regulation of governmental authorities with jurisdiction to regulate Cable
Communications Systems. The City and a Grantee shall conform to federal and state
laws and regulations as soon as they become effective. Where amendment to laws,
rules or other regulatory standards requires modification of any Franchise granted
pursuant to this Ordinance, the modifications necessary to effect compliance with such
laws, rules or regulations shall be made within one year of the effective date of such
change, or at the time of renewal of a Franchise, whichever occurs first.
726.77. Force Majeure.
Subdivision 1. In the event a Grantee's performance of any of the terms,
conditions or obligations required by this Ordinance or a Franchise granted hereunder
is prevented by a cause or event not within a Grantee's control, such inability to
perform shall be deemed excused and no penalties or sanctions shall be imposed as a
result thereof.
Subd. 2. For thepurpose of this section, causes or events not within the
control of a Grantee shall include but not be limited to acts of God, strikes, sabotage,
riots or civil disturbances, restraints imposed by order of a governmental agency or
court, failure or loss of utilities, explosions, acts of public enemies and natural
disasters such as floods, earthquakes, storms, landslides, and fires.
726.79. Severability.
Subdivision 1. This Ordinance shall be construed in a manner consistent with
all applicable federal and Minnesota laws.
Subd. 2. If any section, subsection, sentence, clause, phrase or portion of this
Ordinance or any Franchise granted hereunder is for any reason held illegal, invalid
or unconstitutional by the decision of any court of competent jurisdiction, such
P,~~ z7
portion shall be deemed a separate, distinct and independent provision, and such
holding shall not affect the validity of the remaining portions hereof or thereof.
Sec. 2. Effective Date. This Ordinance shall become effective on January 1, 1997
provided that KBL Cable Systems of the Southwest, Inc. (KBL) has executed a Franchise
Agreement Ordinance in compliance with this Ordinance before December 25, 1996. If KBL
has not executed a Franchise Agreement Ordinance pursuant to this Ordinance by
December 25, 1996, this Ordinance becomes null and void.
Sec. 3. Certification and Publication. The City Clerk shall certify to the passage
of this Ordinance and shall cause the same to be printed in accordance with the requirements
of the City and state law.
Adopted this 25th any of November , 1996 by the City Council of the City of
Richfield.
/f ~ j
Martin J. Kirsch, iViayor
ATTEST:
Thomas P. Ferber, City Clerk
J
P~~ 2s
EXHIBIT A
ANNUAL PERFORMANCE REVIEW
Check Where
A~nlicable
1
1. RATES AND CHARGES
No change
Changed
Notices sent to City and subscriber
Changes in rates and costs identified by attachment
Change "reasonable" and consistent with the standards
prescribed by the FCC
Other (describe in attachment)
2. PROGRAMS AND SERVICES
No change in programs and services
New programs and services added
Identify new programs and services
Other (describe in attachment)
3. CUSTOMER SERVICE
Customer service requirements complied with
Periodic subscriber satisfaction survey performed
Results of subscriber satisfaction survey with comment
on meeting needs identified (attached)
4. FILINGS WITH FCC
Summary of all filings with FCC described in attachment
Pagc 29
5. PERFORMANCE TEST IN FRANCHISE COMPLETID
Summary of performance test results (attached)
6. FRANCHISE FEE PAYMENTS MADE WITH REVE.~'~LTE SOURCES
IDESTTIFIED lS[JMMARY ATTACHED)
7. COMPLETION OF CONSTRUCTION
Upgrade/rebuild (summary attached)
New technologies incorporated into system
Channel capacity increased
Service extended to new areas
Other
8. NEW SERVICES
No Changes
Services other than programming made available in the subscriber
network (summary attached)
9. TERMS AND CONDITIONS Il`' THE FRANCHISE
HAVE BEEN COMPLIED WITH
Summary attached of outlining incomplete matters requiring
action by Company
Company participated in planning studied and Cable Advisory
Committee activities (summary attached)
All insurance, bonds and deposits are updated and filed with City
1
Duplication of materials already filed with the Ciry is not required with this filing.
Dated this day of
19_ by
Officer of Cable Company
Page 30
City of
Verification:
The above Annual Performance Review has been filed by
as required. The Office of Administrative Services for the City of has reviewed
the information and finds that the filing is complete /is not complete
The following matters are deemed incomplete and require further information and/of
compliance by
THE CITY ~ OF
By:
Dated this day of 19_
1
r
~.
Pagc 31
-_ -- Resolution No. 8406 -3-
a severability procedure and an effective date provision.
The amendment will be effective January 1, 1997, except that the amendment will be null
and. void if the City's existing cable franchisee does not execute a Franchise Agreement
Ordinance by December 25, 1996.
Copies of the amendment are available for public inspection in the office of the city clerk
during normal business hours.
Dated: 11 /25 /96
BY ORDER OF Tim CITY COUNCII.
Thomas P. Ferber, City Clerk
f,
***
Passers by the City Council of the City of Richfield, Minnesota this 25~; day of rtov~m~r
1996.
,,,
Martin J. Kirsch; Mayor
ATTEST:
~ ~''~
/~~ C~LLLG~IL} ~7..Z~L.
Thomas P. Ferber, City Clerk
City of Richfield
STATE OF MINNESOTA)
SS.
COUNTY OF HENNEPIN)
Denis L. MIndak
(Official Publication)
BH.L NO. 1996-26
AN ORDINANCE AMENDING THE RICHFIELD
CITY CODE BY ADDING SECTION 726; REGULAT-
ING THE GRANTING OF FRANCHISES TO OPER-
M
A
~ ATE AND MAINTAIN A CABLE SYSTEM IN THE
~
: CITY; SETTING FORTH CONDITIONS A000MPA-
N NYING THE GRANT OF FRANCHISE, PROVIDING
' FOR REGULATION AND USE OF THE SYSTEM;
PUBLJC
,ATIONS AND PRESCRIBING PENALTIES FOR THE VIO-
~~ ~~ ~~ LATION OF ITS PROVISIONS.
AFFIDAVIT OF PUBLICATION (SUMMARY PUBLICATION)
The above referenced actions have been taken pur-
suant to the authority of Minnesota Statutes, section
4G2.357. This summary of the amendment is published
pursuant to section 3.12 of the Richfield City Charter.
The Cable Television Regulatory Ordinance ("Regula-
tory Ordinance") provides the franchising process and re-
quirements for all cable operators within the City oE' Rich-
field. It defines the terms used within the documents. It
also outlines the authority that the City of Richfield has to
grant cable franchises.
The Regulatory Ordinance provides an application
_, being duly sworn on an oath says that he/she is process for new applicants and a renewal process for cur-
rent applicants. The Regulatory Ordinance specifies that
the publisher or authorized agent and employee of the publisher of the newspaper known as no franchise can be granted for a period of time longer than
15 ears It also describes the franchise territory
Sun-Current
which are stated below.
(A) The newspaper has complied with all of th
one
qualified newspaper, as provided by Minnesota Statue 331A.02, 331A.07, and other applicable system.
The Regulatory Ordinance provides construction re-
IaWS, aS amended. quirements that outline the responsibilities of a Grantee
during the construction of a cable system and specifies the
B 1 I I N o . 19 96 - 2 6 process for the movement of or removal of the Grantee's
(B) The printed equipment at the request of the City or another person.
Additional construction issues addressed by the Regulato-
ry Ordinance include interconnection with adjacent sys-
tems, abandonment of the cable system and removal of the
cable system. The Regulatory Ordinance incorporates the
which is attached was cut from the columns of said newspaper, and was printed and published Federal Communications Commission's technical stan-
once each week, for
1
Wednesday
Y
Within the Regulatory Ordinance, franchise adminis-
and has full knowledge of the facts tration procedures are outlined. The Regulatory Orcii-
nance specifies that the City Manager or the City Man-
ager's designee is responsible for cable administration.
Under the Regulatory Ordinance, the City is authorized to
delegate its rights regarding administration of the Regu-
erequirements constituting qualification aS a latory Ordinance. During emergencies or disasters, the
City is authorized to use the Grantee's emergency alert
lards 6y reference.
_ successive weekS• it was first published To address customer service issues, the Regulatory Or-
~ dinance inwrporates the Federal Communications Com-
o D e c e m b e r 96 mission's customer service standards and includes adcli-
the day of , 19 ,and was thereafter tional customer service standards regarding outages, sub-
ited and published on every
the day of
scriber complaints, subscriber practices, local oflices, sub-
to and including scriber charges, rate regulation and the rights ofindividu-
als. It also requires each Grantee to maintain a local of-
fice.
19 ; and'printed below is a copy of The Regulatory Ordinance requires each Grantee to
provide public, educational and governmental access pro-
the lower case alphabet from A to Z, both inclusive, which is hereby acknowledged aS being the gi'amming and facilities consistent with state and federal
law.
Provisions within the Regulatory Ordinance allow the
size and kind of type used in the composition and publication of the notice: city to review Grantees records and books. the Regnla-
tory Ordinance also specifies the documents and records
abcdefghijklmnopgratuvwxyz that each Grantee must provide annually including an An-
nual Performance Review.
~ The Regulatory Ordinance provisions state that the
BY: City has the right to review transfers of ownership anti to
match a bona fide purchase offer for an asset sale of the
system. Additional provisions govern the City's right to
TITLE: P u b l i s h e r purchase the cable system upon forfeiture, revocation or
expiration.
Aeknowled ed before me on this To minimise litigation, the Regulatory Ordinance ton-
g twins mediation procedures. The Regulatory Ordinance
` also affirms the City's right to assess a franchise fee.
4' day of December . 1 g 9 6 To protect the City, the Regulatory Ordinance includes
provisions detailing the Grantee's liability for damages
and penalties, the Grantee's responsibility for indemnify-
ing the City, requirements for security funds, anti insur-
t ~ "-f~i G~ ~ ~ ~ ~ ~~ ~ ancerequirgemen y
~ ' C)f Ct ~ , f a t ~f";...t The Re ulator Ordinance contains extensive default
Note PUbI1C provisions including requirements for the continuation of
ry cable services if a franchise is terminated or if it is not re-
Hewed, and foreclosure and receivership procedures. Ad-
ditional provisions in the Regulatory Ordinance include a
Force Majeure provision allowing exceptions for events be-
yond the Grantee's control, a severability procedure and an
` ' : °, ;. effective date provision.
The amendment will be effective January 1, 1997, ex-
cept that the amendment will be null and void if the City's
-" existing cable franchisee does not execute a Franchise
"' Agreement Ordinance by December 25, 199G.
Passed by the City Council of the City of Richfield,
RASE INFORMATION Minnesota this 25th day of November, 199G.
Martin J. Kirsch, Mayor
~ Lowest classified rate paid by commercial users $ 2.15per line ATTEST:
for comparable space
Thomas P. Ferber, City Clerk
{2) Maximum rate allowed by law for the above matter $ 5.95 per line (Dec. 4, 199G)Cty Rich Ord 1996-2G
(3) Rate actually charged for the above matter $ i.09 per line