HomeMy WebLinkAboutOrdinance 10-1988 ' . ApP ro �•-• bY G.G. � -�-8 8
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ORD I NAN CE NO . 10-£3�3
AN ORDINAN CE GRANTING A FRANCHISI: TO BROOKINGS CABLEVISION,
A PARTNERSHIP CONS ISTING OF ( i ) MARCUS COMMUNICATIONS , INC. , A
SUBSIDIARY OF WESTERN TELECOMMUNICATIONS , INC. , AND (ii)
SATELLITE CABLE SERVICES PARTNERS , A SOUTH DAKOTA GENERAL
PARTNERSHIP, ITS SUCCESSORS AND ASSIGNS , TO ERECT , OWN, OPERATE
AND D9AINTAIN A COMMUNITY ANTENNA TELEVISION SYSTEri 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 BROOKIVGS , 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
"Pranchise. "
II .
� DE`��NITIONS
For tlie purposes oE this ordinance , the following terms ,
phrases , words , and their derivations shall have the meaning
given herein. When not inconsistent with the context , words
used in present tense include the future , words in the plural
number include the singular number, and words in the singular
number include the plural number . The word "shall" is always
mandatory and not merely directory.
1 . "Basic Cable Service" means �ny servi�ce tier
which includes the retransmission of local
broadcast signals.
2 . "City" sllall mean the City of Brookings , South
Dakota .
3 , "Commission" shall mean the T9ayor and the Com-
missioners of Brookings , South Dakota.
4 . "Cable Television System" , "Cable System" or
� "CATV" shall mean a facility consisting oL a
set of closed transmission paths and associated
_ signal �eneration, reception and control equip-
ment that is designed to provide cable television
service which inclucles video programming and
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� . which is provided to multiple subscribers within
the City, but such term does not include (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 such 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 .
5 . "Cable Television Reception Service" means the de-
livery by tlie Grantee to television receivers (or
any other suitable type of electronic terminal or
receiver of tlie electronic signals and other com-
munications services carried over said system. )
6 . "FCC" s1ia11 mean Federal Communications Commission.
7 . "Gross Revenues" sliall mean the annual �ross rev-
enues of Grantee from all sources of operations of
the System within 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 for a fee or charge, in ad-
dition to the charge for Basic Service.
9 . "Person" sliall mean any person, firm, partnership,
association, corporation or organization of any
kind and any other legally recognized entity.
10 . "Graiitee" stiall mean Brookings Cablevision, a Part-
nersliip consisting of (i ) Marcus Communicati�ns ,
Inc . , a subsidiary of Western Telecommunications ,
Inc. , and ( ii ) Satellite Cahle Services Partners , a �
Soutli Dakota General Partiiersliip, or t}ie successor
of Brookings Cablevision in accordance with tlie pro-
visions of this Franchise.
11 . "Subscribers" are those persons cantracting to re-
ceive cable television reception services furnished
under tliis Francliise by Grantee.
III .
GRANT OF NON-EXCLUSIVE AUTHORITY
There is hereby granted by the City to the Grantee a non-
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excl�isive francliise, right ancl privilege to construct , erect,
operate , modify and maintain, in, upon, along, across , above and
over and under the present and future bridges, highways,
streets, alleys , sidew�lks , public ways and puhlic places now
laid out or dedicated and all extensions thereof, and additions
tliereto , in the City, towers, poles , wires , cables , underground
conduits , manitoles and other television conductors and fixtures
necessary for the maintenance and operation in tlie City of a
Cable Television System for tlie purpose of distributing televi-
sion and radio signals, audio and visual signals, and other
electronic impu.ises 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 tlie purposes herein set �
forth, and all City owned poles after receiving permission from
tlie appropriate City officials to insure public safety and con-
sistent with tlie City utility plan.
IV.
DURATION AND ACCEPTANCE OF FRANCHISE
Tlie Francliise granted tlie Grantee herein shall terminate 15
years from the date of the acceptance of this Francliise by tlie
Grantee in accordance with Article XLII hereof.
V.
COMPLIANCE WITN APPLICABLE LAWS , REGULATIONS,
ORDINAN CES AND COD�S
The Grantee shall , during tlie term hereof, except in those
areas which liave been preempted by tlie Cable Communications
Policy Act of 1984 or which are regulated by t}ie FCC, be subject
to the police po�rers of the City to adopt and enforce ordinances
necessary to the healtli, safety and welfare of tlie public. ,
VI .
TERRITORIAL AREA INVOLVED
Tl�is Fraiicliise relates to tlie present territorial limits of
the City and to any area hencefortll added t}iereto during tlie
term of. tliis Fra�ic}iise . Fffective twenty� four (24) montlis after
t}ie acceptance of tliis Fra�icliise, Grantee sliall provide cable
television reception service to any resi�ent of tlie City so
requesting service, provided tliat tlie additional service line
required to Ue built by Grantee to provide service to such resi-
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dent shall have a, density of not less than 25 homes per lineal
mile.
VII .
LIABILITY AND INDEMNIFICATION
Grantee shall at all times keep 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 in ury 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 from 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 , within the City, or by any action
of Grantee , its agents or employees . Grantee sha11 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. Grantee shall also carry such insurance as it ,
deems necessary to protect it from all claims under the Worker' s
Compensation laws in effect that may be applicable to Grantee.
The City shall give tlle Grantee prompt written notice of any
such claims , demands , actions , suits , judgments , costs, expenses
or liabilities . All insurance required shall be and remain in
full force and effect for the entire life of the rights granted
hereunder. Said policy or policies of insurance, or a certified
copy tliereof, shall be approved by the City Finance Officer, and
then deposited with 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 ,
and all other damages arising out of the installation, opera-
tion, or maintenance of the CATV System authorized herein,
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whetlier or not any act or omission complained of is authorized,
allowed or proliibited by tliis Ordinance.
VIII .
GENERAL SYSTEM SPECIFICATIONS
The faciliLies used by tlie Grantee shal.l consist of a mini-
mum of 25 active channels with 60-channel capacity (450 MHz) .
The £acilities shall also be capable of distributing color tele-
vision signals, and when tlie signals the Grantee distributes are
received in color, they sliall be distr�ibuted in color where
technically feasible.
tX.
SERVICES TO BE PROVIllED
Programming services to be distriUuted by Grantee under
this Franchise shall include channels primarily focused in the
following areas : one sports channel, one weather channel , one
news cliannel, one cultural 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 tlie above programming it puts in its Basic
Service. The signal of the South Dakota PuUlic Broadcasting
System shall be carried as a part oE basic cable service. To
the extent any channels carried by Grantee upon its cable tele-
vision system broadcast full time in stereo, sucli signals sliall
be 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 other utility services .
X.
TECHNICAL STANDARDS
Grantee shall provide to each subscriber a clear, con-
sistant visual picture and audio signal free from unreasonable
interference. Grantee shall maintain signal quality better tlian
FCC minimum technical standards . The signal to noise ratio on
trunk and feeder lines s}iall be 42db or better at tlie most
distant lines in the system as measured from tlie head end , The
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trunk and feeder line design for crosiude�alstandardaforbtliird
least -57dbmv or better and shall inc
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, fulor
or partial repeat tests, different test proceduResuests
tests involving a specific subscriber s drop. Q
for such additional tesotherlevidenceeindicatingsan of
complaints received or
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 tliis Article XI , the City sliall give
Grantee five (5) days written notice of its intention
to request a formal test . Grantee sliall seek to cor-
rect the condiVeo�5$idaygperiodt�ntorder�tosavoidsany
within such fi )
need for a formal test .
B . The City s}ia11 endeavor to so arrange its requests
f or such spec i al �rantee�ors to�thensub scr ibedship or
inconvenience to
C, If sucli special testing establishes that tlie System
meets all required technical standards set forth at
Article X, the City shall bear tlie expense for sucli
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 TfAINTENAIJCE OF SYSTEM
1 . The Grantee shall re
nder safe and efficient service,
mal:e repairs promptly, and interrupt service only for
good cause and for t)le sliortest possible time. Such
interruptions , insoFar as possible, shall be preceded
by notice and s1ia11 occur during periods of minimum
use of the system.
2 , All service requests and complaints sliall be responded
to witliin 24 hours of receipt .
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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 liave the privileges
and be subject to the obligations to abandon any prop-
erty of Grantee in place as hereinafter provided.
8 . In a11 sections of the City where the City designates
an area where all presently above ground services are
to be placed underground , the Graiitee shall place its
wires underground on the same time sc}iedule and on the
same conditions that are applicable to the providing
of other above ground services in the designated areas .
9 . in the event that the use of any part of the system is
discontinued for any reason for a continuous period of
twelve (12) months, or in ttie event such systems or
property has been installed in any street or public
place without complying with tlie 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 alid poles of sucli system other than any
which the City may permit to be abandoned in place.
In the event of sucli removal , Grantee shall promptly
restore the street or other area from which such prop-
erty has been removed to a condition satisfactory to
the City.
10 . Any property of Grantee to be abandoned in place
shall be abandoned in such a manner as the City may
prescribe. Upon permanent abandonment of the prop-
erty of Grantee in place, it shall submit to the
City an instrument to be approved by the City, trans-
ferring to the City tlie ownership of suc}i property.
XVIII . �
0{VNERSHIP AND REMOVAL OF FACILITIES UPON REQUEST
All cable and passive equipment for cable television recep-
tion service installed by Grantee at a subscriber' s location
shall remain t}ie property of Grantee, and Grantee shall have the
right to remove said cable and equipment . Upon termination of
service to any subscriber, tlie Grantee shall promptly remove all
its above ground facilities and equipment from the premises of
suc}i subscriber upon his request .
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XIX.
TRANSFER OF FRAN CHIS6
1. All or substantially all of this Franchise or System
shall not be sold, assigned 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) , consolidation, creation of a subsidiary
corporation or sale or transfer of partnership inter-
ests in Grantee so as to create a new controlling in-
terest in the System. The term "controlling interest"
as used herein is not limited to majority partnership
ownership, but includes actual working control in what-
ever manner exercised . A corporate or partnership re-
organization of any kind which does not result in a
change of controlling interest siiall not be deemed a
sale or transfer of the Franchise under the terms of
this Section. The purchase by one partner in grantee
of the other partner shall not constitute a transfer
of controlling interest.
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 shall 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, such hearing shall be conducted
within thirty ( 30) days of such determination and
notice of any such hearing 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 of the action to be considered by
the City.
d. Within thirty ( 30) days after the public hearing,
the City shall approve or deny in writing the '
sale or transfer request . i
e. Grantee , upon transfer, shall within sixty (60) III
days thereafter file with the City a copy of the
deed, agreement , mortgage, lease or other writ- ��I
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ten instrument evidencing such sale, transfer of
ownership or control or lease, certified and
sworn to as correct by the Grantee.
3. In reviewing a request for sale or transfer pursuant to
paragraph (1) above, the City may inquire into the technical ,
. legal and financial qualifications 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 assignment of ownership or control be
approved without the transferee becoming a signator to this
Franchise.
XX.
PAYMENT TO THE CITY
During the term of the franchise granted hereunder and so
long as Grantee or its successors or assigns operate a Cable
Television System, commencing from the date of institution of
service to subscriber, Grantee shall pay to the City an amount
equal to three percent (3�) 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 the
Grantee . The payment shall be made on a quarterly basis with
each quarter ending on March 31, June 30, September 30 and
December 31 of each year. The quarterly payments shall be esti-
mated based upon Grantee' s unaudited records and each payment
shall constitute one- fourth (�) of the annual amount pa able to
the City and shall be due and payable within thirty (30� days
following the end of each quarterly period . On an annual basis ,
the Grantee shall provide to the City Finance Officer a cer-
tified statement by its auditors of Grantee' s annual 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 on or before April 1 of each year.
XXI .
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 throu li the term of this Franchise, the sum
of Ten Thousand Dollars (�10, 000, 00) as a common security fund
for the faithful performance by it of all the provisions
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of this Franchise and compliance with all orders, permits and
directions by the City and the payment by Grantee of any claim,
liens and taxes due the City which arise by reason of the
construction, operation 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 security fund . Grantee shall not use the
security fund for other purposes 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 such 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 shall 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
by the City to comply with any provision of the Franchise which
the City reasonably determines can be remedied by an expenditure
of the security, the City may then seek to withdraw such funds
from the security fund .
5 , In the event Grantee fails to keep in effect in-
surance coverage as set fortli in Article VII , the City may
charge to and collect from the security fund a penalty in the
amount of $200. 00 per day , This penalty sliall be in addition to
any other remedy provided 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.
XXII .
PROCEDURE FOR IMPOS ITION OF PENALTIES
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 the violation. Grantee shall have ten
(10) days subsequent to receipt of the notice in which to
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correct the violation before the City may resort to the security
fund . Grantee may, within five (S) days of receipt of notice,
notify the City t}iat there is a dispute as to whether a viola-
tion or failure has , in fact, occurred. Such notice by Grantee
to the City s}ia11 specify with particularity tlie matters
disputed by Grantee and shall stay tlie running of the above-
described time.
a. The City shall hear Grantee ' s dispute at its
next regularly or specially scheduled meeting.
The City sliall supplement the decision with
written findings of fact .
b, if after hearing the dispute, the claim is u -
held by tlie City, Grantee sliall have ten (10�
days f rom such a dete rmi nat i on to remedy tlie
violation or failure . At any time after that
ten (10) day period , the City may dra w against
the security fund all penalties due it .
2 . The security fund deposited pursuant to this Section
sliall hecome the property of the City in tlie event that the
Franc)iise is cancelled by reason of the default of Grantee or
revoked for cause. Grantee, however, sha11 be entitled to the
return of sucli security fund , or portion thereof, as remains on
deposit at the expiration of the term o£ 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
whetlier reserved by tltis Franc}iise or authorized by law, and no
action, proceeding or exercise of a right with respect to such
security fund shall affect any other riglit the City may have.
4 . The City s}iall stay or tivaive tlie imposition of any
penalties set forth above upon a finding ttiat such failures or
delays are a result of acts of God or circumstances beyond the
reasonable control of Grantee.
XXIII .
DURATION AND RENEWAL OF ORDINAN CE
The rights granted to Grantee herein sliall terminate fif-
teen (15) years from tlie acceptance date of tliis Ordinance and
shall be subject to renewal pursuant to applicable federal and
state law.
XXIV.
CITY'S RIGHT TO R�VOKE
In addition to all other rights �rhich the City has pursuant
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to law or equity, the City reserves the right to revoke, ter-
minate or cancel this Franchise, and all rights and privileges
pertaining t}iereto, 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 tlie City or
subscriber; or
4 . Grantee becomes insolvent , unable or unwilling to pay
its debts , or is adjudged a bankrupt ; or
S . 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 sliall provide Grantee witli a written notice of
the cause for revocation and the intent to revoke and shall
allow Grantee thirty (30) days s�ibsequent to receipt of the
notice in which to correct the violati�n or to provide adequate
assurance of performance in compliance witli tlie 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 ttie public hearing and upon determination by tlle
City to revoke the Fraiicliise, Grantee shall have a period of
thirty (30) days , from tlie 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 period, the Francliise shall remain in
full force and effect .
XXVI .
FRECTION, REMOVAL AND COMMON USE OF POLES
A. No poles or otlier wire-holding structures shall be
erected by t}ie Grantee witllout prior approval of the City
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�ngineer with regard to locations , height, type or any other
pertinent aspect . However, locations o.f any pole or interest
and such poles or structures 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 tlie public convenience would be
enhanced thereby and the terms of the use available to the
Grantee are just and re aso nable.
C. Where a public utility serving tlie City desires to make
use of poles or other wire-holding struct��res of the Grantee but
agreement t}ierefor 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 en}iance the public convenience and would not
unduly interfere witli the Grantee' s operations .
XXVII . �
RATES
A. Grantee shall at all times maintain on file with the
City Finance Officer a schedule setting fortli aTl rates and
charges to be made to subscriUers for basic CATV service,
including installation charges .
B . The Grantee shall not discriminate in rates between
customers of the same category except to the extent permitted by
tlie 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,
t}irough approval or disapproval of a rate revision request after
affording Grantee due process .
U . Prior to implementing any rate increase for Basic
Service not requiring t}ie City approval , Grantee shall give the
following notice :
1 . At least tliirty ( 30) days advance written notice
to the City; and
2 . At least tilirty (30) days advance written notice
to subscribers of Basic Service.
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• XXVIII .
CHARGES FOR DISCONNECTION OR DOWNGRA DING OF SERVICE
A. Grantee may impose a charge reasonably related to the
cost incurred for a downgrade of service, except that no sucti
charge may be imposed when:
1 . A subscriber requests total disconnection
from the System; or
2 . A subscriber requests the downgrade within a
thirty (30) day period following any rate in-
crease relative to the service in question.
B . If a suUscriber requests disconnection from service
prior to the effective date of an increase in rates , the
subscriber shall not be charged tlie 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�.�ests disconnection from service shall receive a
prorated refund of any amounts paid in advance.
XXIX.
SUBSCRIBER INFORMATIUN
Grantee shall provide on an annual hasis compreliensive
written subscriUer information to all suUscribers . The
subscriber information shall include, but not be limited to, the
following:
A. The procedure for investigation and resolution o£
subscribers service complaints ;
B. Pro rammin services and rates ;
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C. Billing practices ;
D. Service termination procedures ;
E. Change in service procedures ;
F . Converter/subscriber terminal equipment policy;
G . Termination of agreement procedures ;
H . Refund policy;
Grantee sliall provide a copy of tlie proposed subscriber
information packet to the City for review and comment.
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XAX•
OPEN BOOKS AND RECORDS
The City shall have the right to inspect , upon twenty- four
( 24) hours written notice, at any time during normal business
hours all books and records relating to gross revenue infor-
mation, maps , plans, service complaint logs , performance test
results, record of requests for service, and other like
materials of Grantee which are reasonably necessary to monitor
compliance with the terms of this Franchise.
XXXI .
ANNUAL REPORTS
On or before April 1, including the year in which the
Franchise Uecomes effective, Grantee shall Eile 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 with 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 the reported year.
C. A current copy of the subscriber service information.
D. A current list of names and addresses of each part-
ner as well as each person having directly or indirectly, a
beneficial interest in the 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. �
XXXII .
ADDITIONAL REPORTS
Grantee shall pre pare and furnish to the City, at the times
and in the form prescr'�bed, such additional reports with respect
to its operation, affairs , transactions or property, which are
reasonably necessary for the administration and enf orcement of
this Fraiichise.
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� XXXIII .
MISCELLANEOIJS
A. Grantee' s legal , Einancial , technical and other quali-
fications , and the adequacy and feasibility of its construction
arrangements, if any, have been approved by tlie Commission after
consideration in a full public proceeding affording due process
to all interested persons .
B . Complaints regarding tlie quality of service, equipment
malfunctions and similar matters sliall first be directed to
Grantee ' s office . Should Grantee fail to satisEy a complaint,
it may then be directed to the Finance Officer for investiga-
tion. The complaining party and Grantee shall be afforded a
reasonable opportunity to present written statements of their
position. The Finance Officer shall attempt to resolve the
complaints and , if this cannot be achieved, he shall submit a
recommendatic�n to the City Commission, which shall either (1)
dismiss the complaint, or (2) specify corrective steps to be
taken by Grantee. Appeal from the Commission' s action may be
made to the appropriate judicial or administrative forum.
XXXIV.
UNAUTHORIZED CABLE USE
A. It shall be unlawful for any person, firm or cor-
poration to make any una�ithorized connection, whetlier pliysi-
cally, electrically, acoustically, inductively or otherwise, to
any part of a francliised CATV system witliin tlie City of
Brookings , Soutli Dakota , for tlie 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, whetlier pliysi- �
cally, electrically, acoustically, inductively, or otherwise, to
any part of a francliised CATV system witliin the City of
Brookings , for the purpose of enabling himself or others to
receive any television signal , radio signal, picture, program or
sound , witliout payment to the owner of said system.
C. It shall be unlawful for any person, without the con-
sent of the owner, to willfully 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 s1ia11 be unla��ful for any person, firm or cor-
poration to willfully obtain, rec eive or take television
signals, radio signals, pictures , programs , or sound furnished
by a franchiseci CATV system within the City of Brookings , Soutli
Dal:ota, througli deception, unautliorized connection or other
means to avoid payment for the said services .
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xxxv.
SEVERABILITY
A. If any federal or state law or regulation shall require
or permit Grantee to perform any service or act or sliall prohi -
bit Grantee from performing any service or act which may be in
conflict wit}i the terms of tliis Francliise, then as soon as
possible following knowledge thereof, Grantee shall notify tlie
City of the point of conflict believed to exist hetween suc}i law
or regulation.
B. If any term, condition or provision of tliis 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 sucli term, condition or
provision to persons or circumstances other t}ian tliose 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 aIl other respects, con-
� tinue to be effective and to be complied iait)i. in the event
that sucli law, rule or regulation is subsequently repealed,
rescinded , amended or otherwise changed so that tlie 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 fu11 force and effect and shall
thereafter be binding on Gra�itee and the city.
XXXVI .
NON-ENFORCEMENT BY CI'fY
Grantee shall not be relieved of its obligation to comply _
with any of the provisions of this Francliise by reason of any
failure or delay of the City to enforce prompt compliance.
XXXVII .
FORECLOSURE
Upon t}ie foreclosure or other judicial sale of tlie System,
Grantee shall notify t}ie City of sucli fact and sucli notification
shall be treatecl as a notification t}iat a change in control of
Grantee has taken place, and the provisions of this Franchise
governing tlle consent to transfer or change in ownership sha11
apply witliout regard to how such trans£er or change in ownership
occurred .
XXXVIII
RECEIVERSHIP
The City sliall have t}ie right to cancel this Franchise sub-
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ject to any applicable provisions of South Dakota 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 receiver or trustee, within said one hundred
twenty (120 ) days , shall have executed an agreement, duly
approved by the court having jurisdiction in the premises,
whereby suc}i receiver or trustee assumes and agrees to be bound
by each and every provision of this Franchise.
XXXIX.
ORDINANCES REPEALED
All ordinances or parts of ordinances in conflict with the
provisions of this Ordinance are hereby repealed. Ordinance No.
20 -87 which also grants a CATV franchise shall not be deemed to
be in conflict with the provisions of this Ordinance.
X L�.
TERMINATION FOR FAILURE TO CONSTRUCT REBUILD OF SYSTENI
Grantee shall replace substantially all of the equipment,
including substantially 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 of the cable television
system within six (6) months from tlie 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 the City.
Grantee shall be permitted to continue to use the equip-
ment , including head 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 Article VIII ,
Grantee shall provide the City wit}i monthly progress
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� reports of the system rebuild until completion thereof.
On or before the effective date of this ordinance, Grantee
shall provide the city with a Performance Bond in the amount of
Fifty Thousand Dollars ($50, 000. 00) , such bond issued by a
surety authorized to do business in this state , payable to the
City of Brookings , State of South Dakota, as a guaranty that
Grantee will complete the Brookings cable system rebuild in �
accordance with the requirements set fort}i in this ordinance.
Grantee shall advise the Finance Officer of the completion of
the system, and shall permit a representative of the city to
make an inspection of the system rebuild. Failure to construct
the system rebuild in accordance witli this ordinance shall
constitute cause for termination of this Franchise.
Upon satisfactory completion of the system rebuild, the
Performance Bond 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 have 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 given, as follows:
If to City: City of Brookings
P .O. Box 270
Brookings , SD 57006
Attention: City Finance Officer
If to Grantee : Brookings Cablevision
� Marcus Communications, Inc.
P.O. Box 1188
St. Cloud, MN 56302
Attention: Robert J. Michels
A copy shall in all
cases be mailed to : Satellite Cable Services Partners
P .O. Box 1030
Sioux Falls , SD 57101-1030
Attention: Richard A. Cutler
Such addresses may be changed by either party upon notice
to the other party given as provided in this Section.
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, XLII .
TIME UF ACCEPTANCE
A. Grantee shall have thirty (30) days from the date of
adoption of this Franchise to accept this Franchise in form and
substance acceptable to the City. Such acceptance by Grantee
shall be deemed the grant of this Franchise for all purposes .
In the event acceptance does not take place within thirty ( 30)
days or such other time as the City might allow, this Franchise
sha11 be null and void.
B: Upon acceptance of this Franchise, Grantee shall be
bound by all the terms and conditions contained herein. Grantee
shall provide all services and offerings specifically set forth
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 Ci�y and Grantee that City be
reimbursed for its costs and expenses in connection with the
�ranting and the renewal of 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 sliall provide an itemized statement of such
expenses to Grantee . Costs and expenses of the City not ite-
mi'zed at that time shall thereafter be 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 .
EFFECTIVE DATE
AND TERMINATION OF
ORDINANCE N0 . 647 �
The Franchise �ranted to the Grantee herein shall be con-
sidered a transfer and renewal of the franchise granted to KOTA
CABLE TV, Inc , and Northern Communications Associates , Inc . ,
under Ordinance No. 6d7 , as amended . The effective date of the
franchise granted in this ordinance, together with the ter-
mination of the franchise granted in Ordinance No. 647 , as
amended , shall be twenty ( 20 ) days after publication of this
ordinance or upon the closing date of the sale of KOTA CABLE TV
to the Grantee herein, whichever date occurs later.
XLIV.
PAY:�tENT OF CRLDITORS AND VENDORS
Prior to the effective date of this Ordinance, Grantee shall
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. �ublish public notices in local newspapers requesting infor-
mation concerning any and all unpaid accounts and claims against
KOTA Cable, Inc . and Northern Communications Associates , Inc .
Grantee shall provide the Brookings City Finance Officer with a
list of all responses and shall cause all substantiated claims
to be paid on or before the closing date of the sale of the KOTA
Cable, Inc . System to Grantee . Grantce sliall submit to the
City of Brookings the results of its lien and UCC searches
against KOTA Cable, Inc . and Norttiern Communications , Inc. , and
shall utilize its best efforts to obtain payment for any new
substantiated claims submitted after the closing of said sale
through the use of escrow funds retained following said closing.
XLV,
PRIOR ACTS LIABILITY COVERAGE
Grantee agrees to obtain and provide the City with a
Certificate of Insurance evidencing comprehensive and general
liability insurance coverage ohtained by Northern Communications
A sociates Inc . on •an occurrence basis for the re ortin eriocl
s , P g P
of one year prior to the effective da
te 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
the City of Brookings Municipal Utilities and subject to the
regulatory authority of the Brookings l�funicipal Utility Board
provided sucli telecommunications services are not otherwise
authorized by the laws of the State of South Dakota. Grantee
, shall further be prohibited from leasing its facilities to
others for the provision of sucl� types oF telecommuriications
services , except as approved by tlie city. Notl�ing herein shall
proliibit Grantee from providing television services as otherwise
permitted under this franchise.
FIRST READING: March 29 , 1988
SECOND READING: April 5 , 19£3�3
PASSED AND APPROVED: April 5 , 198�
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