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HomeMy WebLinkAboutOrdinance 07-1988 .' , !{ , ORDIIIANCL N0 . �_gg AN ORDINANCE GRANTING A FRANCHISE TO MARCUS COMMUNICATIONS, INC. , A SUBSIDIARY OF WE5TERN TELECOMA4UNICATIONS, INC. , ITS SUCCESSORS AND ASSIGNS, TO ERECT, OWN, OPERATE AND MAINTAIN A COMMUNITY ANTENNA TELEVISION SYSTEM IN THE CITY OF BROOKINGS, SOUTH DAKOTA; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE ; AND PROVIDING FOR CITY REGULATION AND USE OF THE COMMUNITY ANTENNA TELEVISION SYSTEM. BE IT ORDAINED BY THE CITY OF BROOKINGS, SOUTH DAKOTA: I . SHORT TITLE This ordinance shall be known and may be cited as a "Brookings Cable Television Franchise Ordinance. " Within this document it may also be referred to as the "Ordinance" or the "Franchise." II . DEFINITIONS For the purposes of t}iis ordinance, the following terms , phrases , words , and their derivations shall liave the meaning given herein. When not inconsistent with the context , words used in present tense include the future , words in tlie plural number inlcude the singular number, and words in the singular number include the plural number . The word "shall" is always mandatory and not merely directory. 1 . "Basic Cable Service" �means any service tier which includes the retransmission of local broadcast signals . �2 . "City" sllall mean the City of Brookings , Soutll Dakota . - � 3 . "Commission" shall mean the Mayor and the Com- missioners of Brookings , South Dakota . 4 . "Cable Television System" , "Cable System" or "CATV" shall mean a facility consisting of a set of closed transmission paths and associated sional generation, reception and control equip- ment tliat is designed to provide cable television service which includes video programming and , ' which is provided to muttiple subscribers within the City, but s��ch term does not incl�ide (A) a facility of a common carrier which is subject , in whole or in part , to the provisions of title II of the Cable Communications Policy Act of 1984, except that such facility shall be considered a System to the extent siich facility is used in the trans- mission of video programming directly to subscrib- ers; or (B) any facilities of any electric utility • used solely for operating its electric utility systems . S . "Cable Television Reception Service" means the de- livery by the Grantee tc� television receivers (or any other suitable type of electronic terminal or receiver of the electronic signals and other com- munications services carried over said system. ) 6 . "FCC" shall mean Federal Communications Commission. 7 . "Gross Revenues" shall mean the �anniial gross rev- enues of Grantee from all sources of operations of the System witllin the City including, but not lim- ited to , Basic Service monthly fees and pay tele- vision fees . This term does not include any sales , excise or other taxes collected by Grantee on be- half of the state , city, or other governmental unit . 8 . "Pay Television" shall mean the delivery over the System of per-channel or per-program audio-visual signals to subscribers Lor a fee or charge, in ad- dition to the charge for Basic Service. 9 . "Person" shall mean any person, firm, partnership, association, corporation or organization of any kind and any otlier legally recognized entity. 10 . "Grantee" shall mean Marcus Communications, Inc. , a Subsidiary of Western Telecommunications , Inc. , or its � successor in accordance witli the provisions of this Franchise. 11 . "Subscribers" are those persons contracting to re- ceive cable television reception services furnished under tliis Frai�chise by Grantee . III . GRANT OF NON-LXCLUSIVE AUTHORITY There is hereby granted by the City to the Grantee a non-. -� - exclusive franchise, right and Privilege to construc•t , erect , operate, modify and maintain, in, upon, along, across, above and over and under the present and future bridges , highways , streets, alleys , sidewalks , puhlic ways and public places now laid out or dedicated and all extensions thereof, and additions thereto , in the City, towers, poles , wires , cables, underground conduits , manholes and other television conductors and fixtures necessary for the maintenance and operation in the City of a Cable Television System for the purpose of distributing televi- sion and radio signals, audio and visual signals, and other electronic impulses in order to furnish television and radio programs , and various communications and other electronic ser- vices to the public. The right so granted includes the right to use and occupy said streets , alleys, public ways and public pla- ces and all matter of easements for the purposes herein set . forth, and all City owned poles after receiving permission from the appropriate City officials to insure public safety and con- sistent with the City utility plan. IV. DURATION AND ACCEPTANCE OF FRAN CHISE The Franchise granted the Grantee herein shall terminate 15 years from the date of the acceptance of this Franchise by the Grantee in accordance with Article XLII hereof. V. COMPLIANCE WITH APPLICABLE LAWS, REGULATIONS, ORDINANCES AND COD�S The Grantee shall , during the term hereof, except in those areas which have been preempted by the Cable Communications Policy Act of 1984 or which are regulated by the FCC, be subject to the police powers of the City to adopt and enforce ordinances necessary to the health, safety and welfare of the public. VI . TERRITORIAL AREA INVOLVED This Franchise relates to the present territorial limits of I'! the City and to any area henceforth added thereto during the ' term of this Franchise . Effective twenty-four (24) months after the acceptance of this Franchise, Grantee shall provide cable television reception service to any resident of the City so requesting service, provided that the additional service line required to Ue built by Grantee to provide service to such resi - -3 - , dent shall have a density of not less. than 25 homes per lineal . mile. � VII . LIABILITY AND INDEMNIFICATION Grantee shall at all times lceep in effect the following types of insurance coverage : (a) Worker ' s Compensation upon its employees engaged ' in any manner in the installation or servicing of its plant and equipment within the City. ' (b) Property Damage Liability insurance to the extent of Fifty Thousand Dollars ( $50 , 000. 00) as to any one accident , and bodily injury liability insur- ance to the extent of Five Hundred Thousand Dol- lars ($500 , 000 . 00) per any occurrence. Excess bodily injury and property damage of One Million Dollars ($1 , 000, 000 . 00) each occurrence and One Million Dollars ( $1 , 000 , 000 . 00) aggregate . Automo- bile bodily injury and property damage liability combined One Million Dollars ( $1 , 000, 000. 00) each occurrence. Grantee shall indemnify, protect , and save harmless the � City £rom and against losses and physical damage to property and bodily injury or death to persons , including payments made under any Worker ' s Compensation law which may be caused by the erec- tion, maintenance, use or removal of any of their attachments, poles , or other undertakings , wit}iin the City, or by any action of Grantee , its agents or employees . Grantee shall carry insurance in the above described amounts to protect the parties hereto from and against all claims , demands , actions, suits , judgments , costs , expenses and liabilities which may arise or result, directly or indirectly, from or by reason of such loss , injury or damage . Gra�ttee shall also carry such insurance as it deems necessary to protect it from all claims �inder the Worker ' s Compensation laws in effect that may be applicable to Grantee . The City shall give the Grantee prompt written notice of any sucli claims , demands , actions , suits , judgments , costs , expenses or liabilities . All ins�irance required shall be and remain in full force and effect Eor the entire life of the rights granted hereunder , Said policy or policies of insurance, or a certified copy thereof, shall be approved by the City Finance Officer, and then deposited wi�ll and kept on file by the City. These damages or penalties shall include, but shall not be limited to , damages arising .out of copyright infringements , operation, or maintenance of the CATV System authorized herein, -.� - , ,whetlier or not any act or omission complained of is authorized , allowed or prohihited by tliis Ordinance. VIII . GENERAL SYSTEM SPECI FI CATIONS The facilities used by tlie Grantee shall consist of a mini - mum of 25 active channels with 60-channel capacity (450 MHz) . The facilities shall also be capable of distributing color tele- vision signals, and when the signals the Grantee distributes are received in color , they shall be �distributed in color where technically feasible. � � iX. SERVICES TO BE PROVIllED Programming services to be distributed by Grantee under this Franchise shall incl�.�de channels primarily focused in the following areas : one sports channel, one weather channel , one news cliannel, one cultt.�ral and arts channel , one music channel , one children ' s channel , three independent television broadcast stations , and two movie channels . Grantee shall be entitled to determine which of the above programming it nuts in its Basic Service . The signal oC the South Dakota Public Broadcasting System shall be carried as a part of basic cable service. To the extent an channels carried b Grantee u on its cable - Y y p tele vision system broadcast Full time in stereo, such signals shall he carried on the cable television system in stereo. In the event that programming in any one or more of the above areas is no longer reasonably available, Grantee may select substitute programming of its choice . Grantee further agrees to make available a band width for public access and/or local origination and to make available a band width to the City of Brookings Department of Utilities for load management and otlier utility services . x. TECHNICAL STANDARDS Grantee shall provide to each subscriber a clear, con- sistant visual picture and audio signal Eree from unreasonable interference. Grantee shall maintain signal quality better tlian FCC minimum technical standards . The signal to noise ratio on trunk and feeder lines s1ia11 be 42db or better at the most distant lines in the system as measured from the head end . The _; _ �I trunk and feeder line design for cross mo�ulation shall be at least -57dbmv or better and shall include a standard for third order triple beats of -57dbmv or •better. XI . SPECIAL TESTING A. At any time after commencement of service to sub- scribers, the City may require additional tests, full or partial repeat tests, .diff erent test procedures, or tests involving a speci��ic subscriber ' s drop. Requests for such additional tests will be made on the basis of complaints received or other evidence indicating an , � unresolved controversy or significant noncompliance, and such tests will be limited to the particular mat- ter in controversy. Prior to a formal request for tests under this Article XI , the City sliall give Grantee five (5) days written notice oE its intention to request a formal test . Grantee sliall seek to cor- rect the condition giving rise to the proposed test within such Eive (S) day period in order to avoid any need for a formal test . B . The City shall endeavor to so arrange its requests for such special tests so as to minimize hardship or inconvenience to Grantee or to the subscriber. C. If such special testing establishes that the System meets all required technical standards set forth at Article X, the City s1ia11 bear the expense for such special testing . D. If such special testing establishes that the System does not meet all required technical standards set forth at Article X, Grantee shall bear the expense for such special testing. XIII . OPERATION AND A�l1INTENANCE OF SYSTEM 1 . The Grantee shall ren�ler safe and efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest possible time. Such interruptions , insof.ar as possil�le, shall be preceded by notice anci s�iall occur duri,ng periods of minimum use of the system. 2 . All service requests and complaints sliall be responded to witliin 24 hours of receipt . -5 - 3 . The Grantee s!iall maintain an office in the City, which shall be open during all iisual business liours , liave a listed telephone, and be so operated that complaints and requests for repairs or adjustments may be received twenty- four ( 24) hours a day, seven (7) days a week. 4 . Service calls for maintenance or repair shall be per- formed at no charge to the subscriber; provided, however , if such maintenance or repair is required as a result of damage caused by the subscriber or subscrib- er-owned equipment , the Grantee may then charge accord- ing to its actual cost £or time and material . � 5 . If the Grantee fails to �correct a service problem with- in twenty-four (24 ) hours after receiving a request for service, the Grantee shall credit to the subscriber 1/30th of the pro rata monthly charge for Basic Service and for any pay services for each twenty-four (24) hours or fraction thereoF during which a subscriber is totally witho�it such basic or pay services . . XIII . SERVICE TO SCHOOLS Al'�D CI"fY The Grantee shall furnish to each school in the City and to the City Hall and four other public buildings , to be designated by the City Commission, N�ithout charge , one junction terminal at each school and at each such City building, and shall also fur- nish to each school and public building, witlio�it charge , basic cable service to all sets connected within such buildings to the junction terminal, suc}i installations to be made when requested by the Mayor of the City or tlie Superintendent of Schools. XIV. EMERGENCY USE OF FACILITIES In the case of any emergency or disaster, the Grantee shall , upon request of the Commission or an appropriate civil defense authority, make available its facilities to the City or civil defense authorities for emergency use during the emergency or disaster . XV. SAFETY REQUIREMENTS The Grantee shal� at all times employ orciinary care and -7 - II shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damages , injuries , or nuisances to the public. � XVI . � NEW DEVELOPMENTS . The field of cable communications is a relatively new and rapidly changing one which may see many regulatory, technical , financial , marketing and legal changes during the term of this Franchise . Therefore , in order to provide for a maximum degree of flexihility in this Franchise, and to help achieve a con- tinued advanced and modern System, the City and Grantee agree to evaluations of Grantee ' s performance from time to time at the City' s request . As a result of an evaluation session, the City or Grantee may determine that a change in the terms of the Franchise is desirable, that the System or Franchise requirements should be updated , changed or that additional services should be provided . If the change is consistent with the terms of this Franchise, the needs of the city and existing state-of-the-art (or due to regulatory, technical , Einancial , marketing, inflation or legal requirements) and the cost of providing cable television ser- vice , Grantee and the City will , in good faith, negotiate the terms of the change and any requi red amendment to this Franchise . Upon adoption of sucli a francllise amendment, if one is required, the change will become eff:ective and Grantee shall accept the same. Fail�ire to negotiate in good faith by City or Grantee shall be a violation of this Franchise. XVII . LIMITATIUNS OF RIGHTS GRANTED 1.. All transmission and distribution struct�ires , lines , and equipment erected by the Grantee within the City shall be so located as to cause minimum interference with the proper use of streets , alleys and other pub- lic ways and places , and to cause minimum interfer- ence with the rights of the said streets, alleys , or other public ways and places , and said poles or towers shall be removed by Grantee whenever, in the opinion of the City Engeineer, the same restrict or obstruct the operation or location of any future streets or public places in the City. , 2 . Construction and maintenance of the transmission dis- tribution system shall he in accordance with the pro- visions of the Natio�ial Electrical Safety Code, pre- , _g _ . pared by the National Bureau of Standards, the National Electrical Code of the National Board of Fire Under- writers, and such applicable Ordinances and regulations of the City affecting electrical installation, which may be presently in effect , or changed by future Or- dinances . 3 . In case of disturbance of any street , sidewalk, alley, public way, or paved area, the Grantee shall , at its own cost and expense and in manner approved by the City Superintendent or Engineer, replace and restore such street , sidewalk, alley, public way, or paved areas in as good a condition as :before the work involving such disturba nce was done . 4 . If at any time during tlie period of this Ordinance the City shall lawfully elect to alter or change the grade of an y street , sidewalk alle or , y, other public way, the Grantee, upon reasonable notice by the city, shall remove , relay and relocate its poles, ,�aires , cables, ' underground conduits manhole , s and other fixtures a t , its ow� expense. 5 . The Grantee shall , on the request of any person holding a building moving permit issued by the City or any per- son who wishes to remove trees or structures from their property, temporarily raise or lower its wires to per- mit the moving of buildings or tree removal . The ex- pense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the Grantee shall have the authority to re- quire such payment in advance. The Grantee shall be given not less tlian forty-eight (48) hours advance no- tice to arrange for such temporary wire changes . 6 . The Grantee shall have the authority to trim trees , in accordance with generally accepted arboricultural practices , upon the overhanging streets , alleys, sidewalks and public ways and places of the City so as ' to prevent tlie hranches of such trees from coming in contact with tlie wires anci cables of the Grantee, except that at the option of the City, such trimming may be done hy it or under its supervision and dir- ection at the expense of the Grantee . 7 . Grantee shall , at its expense, protect , support, tem- porarily disconnect , relocate on the same street , alley or public place, or remove from the street, a11ey or public place, any property of Grantee when required by the City by reason of traffic conditions, public safe- ty, street vacation, freeway and street construction, change or estahlishments oE street grade, installation _� _ of sewers , drains , waterpipes , power lines , signal lines , and tracks or any other types of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity, or other structure of public improvement ; provided, however, that Grantee shall in all cases have the privileges � and be subject to the obligations to abandon any prop- erty of Grantee in place as hereinafter provided. 8 . In all sections of the City where the City designates an area where all presently above ground services are to be placed underground , the Grantee shall place its � wires underground on the same time schedule and on the same conditions that ,are applicable to the providing o£ other above ground services in the designated areas . 9 . In the event that the use of any part of the system is disconnected for any reason for a continuous period of twelve (12) months , or in the event such systems or property has been installe� in any street or public place without complying with the requirements of this Ordinance, or tlie rights granted hereunder have been terminated , cancelled or have expired , Grantee shall , promptly remove from the streets, or public places all such property and poles oF such system other than any which the City may permit to be abandoned in place . in tl�c cvent �f s�ich rem�v:il � Crrint���� sh��ll rr�m�rly restorc thc slr�;ct or c�llicr r► r�;t frc�in wl�t�h sti�l� ��rul�- erty has heen removed to a condition satisfactory to the City. 10 . Any property of Grantee to be abandoned in place nner a the Cit ma shall be abandoned in stich a ma s y y prescribe. Upon permanent abandonment of the prop- erty of Grantee in place, it shall submit to the City, transferring to the City the ownership of such property. XVIII . , OWN�RSHIP AND REMOVAL OF FACILITIES UPON REQUEST All cable and passive equipment for caUle television recep- tion service installed by Grantee at a subscri'oer' s location shall remain tlie property of Grantee , and Grantee shall have the right to remove said cable and equipment . Upon termination of service to any subscriber , the Grantee shall promptly remove all its above ground fac �lities and equipment from the premises of such subscriber upon his request . -10 - XIX. TRANSFER OF FRANCHISE 1 . All or substantially all of t}iis Franchise or System shall not be sold, assioned or transferred, leased or sublet in any manner, nor shall title thereto, either legal or equitable, or any right , interest or proper- ty therein,� pass to or vest in any person without . full compliance with the procedure set forth in this Section. � 2 . The provisions of this Section shall apply to the sale or transfer of all or .a �majority of Grantee' s assets , merger ( including any parent and its subsidiary cor- poration) , or transfer of ownership interests in Grantee so as to create a new controlling interest in the System. The term "controlling interest" as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner ex- ercised . A corporate or partnership reorganization of any kind which does not result in a change of control- ling interest shall not be deemed a sale or transfer of the Franchise under tlie terms of tliis Section. a . The parties to the sale or transfer shall make a written request to the City for its approval of a sale or transfer . b . The City s}iall reply in writing within thirty (30) days of the request and shall indicate approval of the request or . its determination that a public hearing is necessary due to potential adverse effect on Grantee ' s subscribers. � c . If a ublic hearing is deemed necessary pursuant to (B� above , sucli' hearing shall be conducted within thirty ( 30 ) days of suc}i determination and notice of any suc}i liearing shall be given fourteen � ( 14) days prior to the hearing by publishing notice thereof. The notice shall contain the date , time and place of the hearing and shall briefly state the substance oE t)ie action to be considered by the City. d. Within tliirty (30) days after tile public hearing , the City shall approve or deny in writing the sale or transfer request . e . Grantee, upon transfer, shall within sixty (60) days thereafter file with the City a copy of the deed, agreement , mortgage , lease or other writ- -11- ten instrument evidencing s«cli sale, transfer of ownership or control or lease, certified and sworn to as correct by the Grantee. � 3 . In reviewing a request Eor sale or transfer pursuant to �aragraph ( 1) above, the City may inquire into the technical , legal and financial qualificati�ons of the prospective , controlling party, and Grantee shall assist the City in so inquiring. The City may condition said transfer upon such terms and conditions as it deems reasonably appropriate . In no event shall a transfer or assi�nment of ownership or control be approved without the transferee becoming a signator to this Franchise. XX. . ' PAYMENT TO THE CITY During t}ie term of tlie francliise grante�l iiereunder and so long as Grantee or its successors or assigns operate the Cable Television System, commencing from t}ie date of institution of service to subscriber, Grantee shall pay to the City annually an amount equal to three percent ( 30) of its annual gross revenues , for the use of the streets and other facilities of the City in the operation of the CATV System. This payment shall be in addition to any other tax or payment owed to the City by tlie Grantee. The payment shall be on a quarterly basis with each quarter ending on Marc}i �31 , June 30 , September 30 and December 31 of each year . The quarterly payments shall be estimated based upon Grantee' s unaudited records and eac}i payment shall be due and payable within tliirty (30) days following the end of each quarterly period . On an annual basis , the Grantee shall provide to the City Finance Officer a certified statement by its auditors of Grantee ' s ann�ial revenues subject to the franchise fee payment . A reconciliation between the quarterly estimated � payments and the audited financial records will be made and any adjustments between the parties will be settled and paid within thirty (30) days following the receipt of the certified stateinent . XYI . SECURITY FUND 1 . At the time this Franchise is accepted, Grantee shall deposit into a bank account , established by the City, and maintain on deposit tiiroiigli the term of this Franchise, the sum of Ten Thousand Dollars ( $10 , 000 . 00) as a common security fund .for tile faithful performance by it of all the provisions -12 - of this Franchise and compliance witli all oraers, permits and by the City and the payment by Grantee of any claim, liens and taxes due the City which arise by reason of tlle construction, op- eration or maintenance of the System. Interest accrued on this deposit shall be paid to Grantee on an annual basis provided that all . requirements of this Franchise have been complied with by Grantee . 2 . Provision shall be made to permit the City to with- draw funds from the se�urity fu�id . Grantee shall not use the security fund for other purpos�es and shall not assign, pledge or otherwise use this security fund as security for any purpose. The City reserves the right , in its sole discretion, to reduce the required amount of the security fund . 3 . Within three (3) days after notice to it that any amount has been withdrawn by the City from the security fund pursuant to (1) of this section, Grantee shall deposit a sum of money sufficient to restore sucli security fund to the required amount . 4 . If Grantee fails to pay to the City any taxes due and unpaid; or, fails to repay to the City, any damages , costs or expenses which the City s}iall be compelled to pay by reason of any act or default of the Grantee in connection with this Franchise; or fails, after ten (10) days notice of such failure Uy the City to comply with any provision of the Franchise which the City reasonably determines can he remedied by an expenditure of the security, tlie City may then seek to witlidraw sucli funds from the securit� fund . S , In the event Grantee fails to keep in effect in- surance coverage as set Forth in Article VII , the City may charge to and collect from the security fund a penalty in the amount of $Z00 . 00 per day . This penalty shall be in addition to any other remedy provideci in this Ordinance . Failure by Grantee to provide the �required insurance coverage for a period ' exceeding sixty ( 60) days shall constitute a substantial viola- tion of this Franchise . ' XX I I . PROCEDURE FOR IMPOS I'TION OF P�NALTIES 1 . Whenever the City finds that Grantee has violated one or more terms , conditions or provisions of this Franchise , a written notice shall be given to Grantee informing it of such violation or liability. The written notice shall describe in reasonable detail the specific violation so as to afford Grantee an opportunity to remedy tlie violation. Grantee shall have ten ( 10 ) days subsequent to r�eceipt oE the notice in which to -13 - correct the violation before the City may resort to the security fund . Grantee may, within five ( 5) days of receipt of notice, notify the City that there is a dispute as to whether a viola- tion or failure has , in fact , occurred . Sucli notice by Grantee to the City shall specify with particularity t}ie matters disputed by Grantee and shall stay the running of the above- described time. a. The City shall hear Grantee ' s dispute at its next regularly or specially scheduled meeting. The City shall supplement the decision with written findings of �fact . b. if after hearing� the dispute, the claim is u - held by tjie City, Gra ntee shall have ten (10� aays from such a determination to remedy the violation or failure . At any time after that ten (10) day perio3 , the City may draw against the security fund all penalties due it . 2 . The security fund deposited pursuant to this Section s}iall become t}ie property of the City in the event t)lat the Franchise is cancelled by reason of the default of Grantee or revoked for cause. Grantee , however, shall be entitled to the return of suc}i security fund , �r portion thereof, as remains on deposit at the expiration of the term of the Franchise. 3 . The rights reserved to the City with respect to the security fund are in addition to all other rights of the City whether reserved by tliis Franchise or authorized by law, and no action, proceeding or exercise of a right with respect to such , security fund shall "affect any other right the City may have . 4 . The City shall stay or waive the imposition of any penalties set forth above upon a finding that such failures or delays are a result of acts of God or circumstances beyond the reasonable control of Grantee. XXIII . DURATION AND RENEWAL OF ORDINANCE The rights granted to Grantee herein sliall terminate fif- teen (15) years from the acceptance date of this Ordinance and shall be subject to renewal pursuant to applicable federal and state law. XXIV . CITY' S RIGHT TO R�VOK� , In addition to all other rights which the City has pursuant ��� -1.� - to law or equity, the City reserves the right to revoke, ter- minate or cancel this Fraiichise, and all rights and privileges pertaining thereto , in tlie event that : 1 . Grantee . substantially violates any provision of this Franchise; or 2 . Grantee attempts to evade any of tlie provisions of the Franchise; or � . 3 . Grantee practices any fraud or deceit upon the City or subscriber ; or � � 4 . Grantee becomes insol�ient , unahle or unwilling to pay its debts, or is adjudged a bankrupt ; or 5 . Grantee misrepresents a material fact in the applica- tion for or negotiation of, or renegotiation of, or renewal of, the Franchise. XXV. PROCEDURES FOR REVOCATION A. The City shall provide Gra ntee with a written notice of the cause for revocation and the intent to revoke and shall allow Grantee thirty (30) days s«bsequent to receipt of the notice in which to correct the violation or to provide adequate assurance of performance in compliance with the Franchise. The City sliall provide Grantee with written findings of fact which are the basis of the revocation. B . Grantee shall be provided the right to a public hearing affording due process before the City prior to revocation. C. After the public hearing and upon determination by the City to revoke the Fraiichise , Grantee shall have a period of thirty (30) days, from t)ie date of the City' s determination, within which to File an appeal with an appropriate state or federal court or agency. D .. During t}ie appeal periocl , the Fraiichise shall remain in full force and effect . XXV I . ERECTION , REMOVAL AND COMMON USE OF POLES A. No poles or otlier wire-holding structures shall be erected by the Grantee without prior approval of the City -15 - , � . �ngineer with regard to locations , height , type or any other pertinent aspect . However, locations of any pole or interest and such poles or struct»res shall be removed or modified by the Grantee at its own expense whenever the Commission determines that the public convenience would be enhanced thereby. • B . Where poles or other wire holding structures already existing in use in serving the City are available for use by Grantee, but it does not make arrangements for such use, the City Commission may require the Grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of �the use available to the Grantee are just and reasonable. � � . C. Where a public utility serving the City desires to make use of poles or 'other wire-holding structures of the Grantee but agreement therefor witli the Grantee cannot be reached, the Commission may require the Grantee to permit such use for such consideration and upon such terms as the commission determines the use would enhance the public convenience and would not unduly interfere witli the Grantee ' s operations . XXVII . RATES A. Grantee shall at all times maintain on file wit}i the City Finance Officer a schedule setting forth all rates and charges to be made to subscribers for basic CATV service, including installation cliarges . B . The Grantee shall not discriminate in rates between customers of the same category except to the extent permitted by the federal or state law. � C. The City reserves the right to regulate rates for Basic Service , to the extent allowable under federal or state law, tlirough approval or disapproval of a rate revision request after affording Grantee due process . D. Prior to implement.ing any rate increase for Basic Service not requiring tlie City approval , Grantee shall give the following notice : 1 . At least tliirty ( 30) days advance written notice to the City; and 2 . At least thirty ( 30) days advance written notice to subscribers oF Basic Service. -15 - . XXVIII . CHARGES FOR DISCUNNECTION OR DOWNGRADING OF SERVICE � A. Grantee may impose a charge reasonably related to the cost incurred for a downgrade oE service , , except that no such charge may be imposed when: � : 1 . A suhscriber requests total disconnection . from the System; or . 2 . A s�bscriber requests the downgrade within a thirty (30) day period following any rate in- crease relative �to the service in question. B . � If a subscriher requests disconnection from service prior to the effective date of an increase in rates, the subscriber shall not be charged the increased rate if Grantee fails to disconnect service prior to the effective date. Any subscriber who has paid in advance for the next Uilling period and who req��est s disconnection from service shall receive a prorated refund of any amounts paid in advance. XXIX. SUBSCRIBER INFURMATIUN Grantee shall provide on an annual basis compreliensive written subscriUer information to all subscribers . The subscriber information shall include, hut not be limited to, the following: A. The procedure for investigation and resolution of subscribers service complaints ; B . Programming services and rates ; •C. Billing practices ; D. Service termination procedures ; E . Change in service procedures ; F . Converter/s�ibscril�er terminal equipment policy; G . Termination oF agreement procedures ; H . Refunci pol icy; Grantee sllall provide a copy of tlie proposed subscriber information packet to the City For review and comment. - 17 - XXX. OPEN BOOKS ANn R�CORDS The City s}iall have t'ne right to inspect , upon twenty-four ( 24 ) hours written notice, at aiiy time during normal business hours � all books and records relatin to ross revenue infor- g 8 mation ma s lans service com laint �lo s erformance test � P � P � P g � P results, record of requests for service, and other like materials of Grantee which are reasonably necessary to monitor compliance with the terms o£ this Franchise. • XXXI . ANNUAL REPORTS On or before April 1, including tlie year in which the Franchise becomes effective, Grantee shall file with the City a copy of the following information regarding the System relative ' to the preceding calendar year . A. A detailed statement of gross revenues including all gross revenues by category prepared in accordance wit)i generally accepted accounting principles and certified by a financial officer of Grantee. B . A description of the Basic Service then being offered at the end of the calendar year . together with a description of any changes made in the Basic Service during t}le reported year. C. A current copy of the subscriber service information. D. A current list of names and addresses of each share- holder as well as eac}i person having directly or indirectly, a beneficial interest in t}le Grantee of ten percent (10� ) or more . E . A compilation summarizing the complaints received during the reported year , by category, and a discussion of any unresolved complaints . . XXYII . ADDITIONAL REPORTS Grantee shall prepare and furnish to the City, at the times and in t}ie form prescribed, sucli additional reports witli respect to its operation, affairs , transactions or property, which are reasonably necessary for tlie administration and enforcement of this Franchise . -18- XXXIII . ' MISCELLANEOIIS A. Grantee ' s legal , financial , technical and other quali - fications , and the adequacy and feasihility of its construction arrangements, if any, have been approved by t}ie Commission after consideration in a full public proceeciing affording due process to all interested persons . B . Complaints regarding the quaTity of service, equipment malfunctions and similar matters sliall first be directed to , Grantee ' s office . Should GrantPe fail to satisfy a complaint , it may then be directed to th� Finance Officer for investiga- . tion. The complaining party and Grantee shall be afforded a rea n state►nents of their sonable o ortunit to �resent writte PP Y I � 1 lve the position. The Finance Officer s �all attempt to reso complaints and , if this cannot be aciiieved, he shall submit a recommendation to the City Commission, which shall either (1) dismiss the complaint , or (2) specify corrective steps to be taken by Grantee . Appeal Erom the Commission' s action may be . made to the appropriate judicial or administrative forum. t XXXIV. UNAUTHORIZED .CABLE USE A. It shall be unlawful for any person, firm or cor- poration to make any una«thorized connection, whether pliysi- cally, electri�cally, acoustically, inductively or otherwise, to any part of a franchised CATV system witliin the City of Brookings , South Dakota , for the purpose of taking or receiving television signals, radio signals, pictures, programs , or sound . B . It sliall be unlawful for any person, firm or cor- poration to make any unauthorized connection, whether pliysi- cally, electrically, acoustically, inductively, or otherwise, to any part of a francliised CATV system witliin the City of Brookings , for the purpuse of enabling himself or others to receive any television si�nal , radio signal , nicture , program or sound , without payment to the owner of said system. C. It shall be unl:�wful for any person, without the con- sent of the owner, to willf�illy tamper witli, remove or injure any cables , wires or equipment used for distribution of television si�nals, radio signals, pictures, programs , or sound . D. It s}iall be unla�aful Eor any person, firm or cor- poration to willfully obtain, receive or take television signals , radio signals, pictures , programs , or sound furnished by a franchiseci CATV system within the City of Brookings , Soutlt Dakota, through deception, tinauthorized connection or other means to avoid payment Eor the said services . _lg_ i � XXAV . SEVERABILITY A`. If any federal or state law or regulation shall require or permit Grantee to perform any service or act or shall prohi - bit Grantee from performing any service or act which may be in � conflict wit}i the terms of tliis Franchise, then as soon as possible following knowledge thereof, Grantee shall notify the City of the point of conflict believed to exist hetween sucli law or regulation. - B . If any term, condition .or provision of this Franchise or the application thereof to any person or circumstance shall , to any extent , be held to be invalid or unenforceable, the remainder hereof and the application of such term, condition or provision to persons or circumstances other t}ian those as to whom it shall be held invalid or unenforceable shall not be affected thereby, and this Franchise and all the terms , provi- , sions and conditions hereof shall , in all other respects, con- tinue to be effective and to be complied witli. In the event that such law, rule or regulation is subsequently repealed, rescinded , amended or otherwise changed so that tlze provision which had been held invalid or modified is no longer in conflict with the laws , rules and regulations then in effect , said provi- sion shall thereupon return to full force and effect and shall thereafter be binding on Grantee and the city. XXXVI . NON-ENFORCEMENT BY CITY Grantee shall not be relieved of its obligation to comply with any of the provisions of this Franchise by reason of any failure or delay of the City to enforce prompt compliance. � XXXVII . FOR�CLOSUR� Upon the foreclosure or other judicial sale of tlie System, Grantee shall notify tlie City of such fact and sucli notification shall be treated as a notification that a change in control of Gra�ntee has taken place, and the provisions of this Franchise governing the consent to transfer or change in ownership shall apply without regard to how sucli transfer or change in ownersliip occurred . YXXVIII RECE IVERSHIP The City s1ia11 have tlie right to cancel this Franchise st�b- _�� _ , ject to any applicable provisions of South Dalcota law, including the Bankruptcy Act , one hundred twenty (120) days after the appointment of a receiver or trustee to take over and conduct . the business of Grantee , whether in receivership, reorganiza- tion, bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been vacated prior to 'the expiration of said one hundred twenty (120) days, or unless : A. Within one hundred twenty ( 120). days after 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 � B . Such reciever or trustee; within said one hundred twenty (120 ) days, shall have executed an agreement, duly approved by tlie court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and ever'y provis ion of this Franchise. - XXXIX. QRDINANCES REPEALED All ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed . Ordinance No. 20 -37 whic}i also grants a CATV franchise shall not be deemed to be in conflict with tlle provisions oE this Ordinance. XL . TERMINATION FOR FAII.URE TO CONSTRUCT REBUILD OF SYSTEM Grantee shall replace substantially all of the equipment, including substantiatly all head end equipment , currently used by KOTA CABLE, INC. , except recently placed underground and - above ground line, and new, state-of-the-art equipment, with new state-of-the-art equipment and line. In the event Grantee does not commence substantial replacement o£ the cable television system within six ( 6) months from the effective date hereof, or if Grantee does not substantially complete the re lacement of all equipment as aforesaid within twenty-four (24� months from the effective date hereof, the franchise granted in this Ordinance shall be subject to termination by tlie City. Grantee shall be permitted to continue to use the equip- ment , including liead end equipment which is currently used by KOTA CABLE, INC. , during the twenty- four ( 24) month replacement period, however service provided during the replacement period must be consistent with the, standards set forth in Articles VIII and X. Grantee shall provide the City with monthly progress -'1 - . reports of tlie system rebuild until completion thereof. Grantee shall also provide the City with a let�er of credit in the amount of One Hundred Thousand Dollars ($100, 000) during the system rebuild. Tn the event the system rebuild as described aforesaid is not completed within twenty-four (24) months of the effective date hereof, the city sliall have the right to withdraw from the letter of credit the sum of Five Hundred Dollars ( $500 . 00) per day for each day that said rebuild is not com leted unl P , ess the delay is caused by circumstances not withi� the control of Grantee. In addition, the Franchise granted in this Ordinance shall be subject to termination by the City. . Upon Completion of the �ystem rebuild, the letter of credit set forth above shall be returned to the Grantee. � XLI . WRITTEN NOTICE All notes , reports or demands required to be given in writing under this Franchise shall be deemed to be given when delivered personally to the person designated below, or when five (5) days liave elapsed after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the party to which � notice is being �iven, as follows : IF to City City of Brookings P .O , Box 270 Brookings , SD 57006 Attention: City Finance Officer If to Grantee: Marcus Communications , Inc. P.O . T3ox 1188 St . Cloud, MN 56302 Attention: Robert J. Michels �Such addresses may be changed by either party upon notice to the other party given as provided in this Section. XLII . TIME OF ACCEPTAN CE A. Grantee shall have thirty ( 30) days from the date of adoption of t}iis Franchise to accept this Franchise in form and substance acceptable to the City. Such acceptance by Grantee shall be deemeci the grant of this Franchise for all purposes . In the event acceptance does not take place within thirty ( 30) days or such otller time �1s the City might allow, this Franchise shall he null and void. �L 2 � , B . Upon acceptance of- this Franc}iise, Grantee shall be bo'und by all the terms and conditions contained herein. Grantee shall provide all services and offerings specifically set forth herein to provide cable television services within the City. C. � With its acceptance, Grantee also shall deliver to the City a certified resolution of Grantee evidencing its power and authority to accept the Franchise. Such documents shall also describe officers authorized to accept on behalf of Grantee. D. It is the intent of the City and Grantee that City be � reimbursed for its costs and expenses in connection with the �ranting and the renewal oE this �Franchise not to exceed 5 , 000 , 00 in connection with the� granting of this Franchise and $5 , 000 . 00 in connection with •any extension or renewal of this Franchise . The City s}iall provide an itemized statement of such expenses to Grantee. Costs and expenses of the City not ite- mized at that time shall thereafter b�e promptly paid by Grantee upon receipt of an additional statement from the City subject to the total dollar reimbursement limitations set forth above. E . With its acceptance, Grantee shall also deliver any security deposit and insurance certificates required herein. XLIII . TERMINATION OF ORDINANCE N0 . b47 The Franchise granted the Grantee herein shall terminate any rights of KOTA CABLE TV INC. , or North�ern Communications Associates , Inc. , under Ordinance No. 647 , as amended upon the � effective date of this ordinance until such time, the Franchise granted in Ordinance No. 647 is hereby transferred from Northern Communications Associates , Inc. , to Marcus Communications, Inc . , a subsidiary of Western Telecommunications, Inc . XLIV. PAYMENT OF CREDITORS AND VENDORS ►Vithin forty- five ( 45) days of the e£fective date of this Ordinance, Grantee shall pay any and all valid claims of South Dakota vendors and creditors oF K�TA CABLE, INC. , or Northern Communications Associates , Inc. , which resulted from the opera- tion and maintenance of a CATV S}�stem under City of Brookings Ordinance No. 647 . As aciditional security for the prompt payment of creditors ' anc� vendors ' claims existing as of the effective date of this Ordinance, Grantee shall provide the City with a letter of credit in the amount of Fifty Thousand Dollars ( $50 , 000 . 00) for a periocl of not less than three ( 3) months . In the event that all valid claims of South Dakota creditors and vendors of KOTA CABLE INC. , or Northern Communications -23 - _ , r . � � Associates , Inc . , arising out of ..the operation of the CATV System in Brookings , South Dakota are not paid within three (3) months of the effective date of this Ordinance, the City shall have the right to withdraw from the letter oL- credit sufficient sums to pay any valid unpaid claims . Failure of the Grantee to fully pay all such valid clai.ms oE South Dakota creditors and vendors witliin three (3) mo "ths of the effective date of this ordinance shall constitute ,� material breach`�f- this ordinance. Upon the expiration of_ the �three (3) month period afo'resaid, and the filing with the City F.inance C�fi,cer of an Affidavit stating all such claims have been :�paid, the l�et�ter� of credit set forth above shall be returned to�Grantee . �� ,.�: � ��3 X�.V: �a _ '- / 1 PRIOR ACTS LIABILITY COVERAGE Grantee--agrees to obtain and provide the City with a Certificate of Insurance evidencing comprehensive and general liability insurance coverage obtained by Grantee for the endor- sement reporting period of three (3) years subsequent to the effective date of this Ordinance. XLVI . FURTHER LIMITATIONS ON GRANTEE Grantee is further prohibited from the transmission on its facilities of any type of telecommunications service provided by t}ie City of Brookings Municipal Utilities and subject to the regulatory authority of the Brookings Municipal Utility Board provided such telecommunications services are not otherwise authorized by the laws of the State of South Dakota . Grantee shall further be prohihited from leasing its facilities to others for the provision of such types of telecommunications services . FIRST READING: SECOND READING: PASSE D AND APPROVE D: Mayor ATTEST : City Finance Officer _`� _