HomeMy WebLinkAboutOrdinance 01-2006 ORDINANCE NO. 01-06
AN ORDINANCE GRANTING A FRANCHISE TO BROOKINGS MUNICIPAL
UTILITIES, TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE TELEVISION
SYSTEM IN THE CITY OF BROOKINGS, SOUTH DAKOTA, SETTING FORTH
CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING
FOR REGULATION AND USE OF THE SYSTEM; AND PRESCRIBING PENALTIES
FOR THE VIOLATION OF ITS PROVISIONS.
The City Council of the City of Brookings ordains:
STATEMENT OF INTENT AND PURPOSE
The City intends, by the adoption of this Franchise,to bring about the development of a
Cable Television System, and the continued operation of it. Such a development shall contribute
significantly to the communication needs and desires of many.
FINDINGS
In the review of the application of Brookings Municipal Utilities ("Grantee"), and as a
result of a public hearing, the City Council makes the following findings:
1. The Grantee's technical ability, financial condition, legal obligations, and character were
considered and approved in a full public proceeding after due notice and a reasonable opportunity
to be heard;
2. Grantee's plans for constructing, upgrading, and operating the System were considered
and found acceptable in a full public proceeding after due notice and a reasonable opportunity to
be heard;
3. The Franchise granted to Grantee by the City complies with the existing applicable state
and federal laws and regulations.
SECTION 1.
SHORT TITLE AND DEFINITIONS
Short Title. This Franchise Ordinance shall be known and cited as the Brookings Municipal
Utilities Cable Television Franchise Ordinance or as the Franchise Agreement.
Definitions. For the purposes of this Franchise,the following terms,phrases,words, and their
derivations shall have the meaning given herein. When not inconsistent with the context, words
in the singular number include the plural number. The word "shall" is always mandatory and not
merely directory. The word "may" is directory and discretionary and not mandatory.
"Basic Cable Service" means any Cable Service tier that includes the lawful retransmission of
local television broadcast signals and any Public, Educational, and Governmental Access
programming required by this Ordinance or a Franchise Agreement to be carried on the basic tier.
Basic Cable Service as defined herein shall be consistent with 47 U.S.C. § 543(b)(7) (1997), as
may from time to time be amended.
"Cable Act" means the Cable Communications Policy Act of 1984, Pub. L.No. 98-549, (codified
at 47 U.S.C. §§ 521-611 (1982 & Supp. V. 1987) as amended by the Cable Television Consumer
Protection and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications Act
of 1996, Pub. L. No. 104-104 (1996) as may, from time to time,be amended.
"Cable Internet Service" unless determined otherwise under applicable law, means an
Information Service offered by a Grantee whereby Persons receive access to the Internet or high-
speed information services through the Cable System.
"Cable Service" or "Service" means:
A. The one-way transmission to Subscribers of video programming or Other
Programming Service; and
B. Subscriber interaction, if any,that is required for the selection or use of such
video programming or Other Programming Service;
"Cable Television System" or "Cable System" means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control equipment that is
designed to provide Cable Service to multiple Subscribers within the Franchise Area,but such
term does not include:
A. A facility that serves only to retransmit via broadcast the television signals of one
or more television broadcast stations;
B. A facility that serves Subscribers without using any public Right-of-Way;
C. A facility of a common carrier which is subject, in whole or in part, to the
provisions of Title II of the Communications Act of 1934, as it may be amended, except that such
facility shall be considered a Cable System to the extent such facility, whether on a common
carrier basis or otherwise, is used in the transmission of video programming directly to
Subscribers unless the extent of such use is solely to provide interactive on-demand services;
D. An Open Video System that complies with § 653 of the Telecommunications Act;
and
E. Any facilities of any electric utility used solely for operating its electric utility
System.
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"Capital Costs" means costs associated with assets, including but not limited to equipment and
facilities,that will provide Service for more than one year, whether incurred during initial
construction or throughout the life of a System.
"Channel" means a portion of the frequency spectrum that is used in a Cable System and which is
capable of delivering a television Channel as defined by the Federal Communications
Commission.
"City" means the City of Brookings, South Dakota. The City is sometimes also referred to as
"Grantor" in this Franchise Ordinance.
"Community Access Corporation" or "CAC" means a non-profit Access Corporation serving the
City, its assignees or delegees, whose duties shall include the management, and programming of
the PEG Access Channels.
"Complaint" means any written, faxed or electronic inquiry, allegation, or assertion made by a
Person regarding Service. While"Complaint" does not include oral complaints, Grantee shall
use reasonable efforts to log oral complaints it receives and shall not be obligated to provide
verbatim reports or transcripts of oral complaints provided the nature of the complaint is
adequately provided to the City if requested by City.
"Converter" means an electronic device that converts signals to a frequency not susceptible to
interference within the television receiver of a Subscriber and, through the use of an appropriate
Channel selector,permits a Subscriber to view all authorized Subscriber signals delivered at
designated converter dial locations.
"Council" means the City Council of Brookings, South Dakota.
"Drop" means the cable or cables that connect the users of the System to the distribution System.
"Educational Access Facilities" means:
A. Channel capacity designated for non-commercial educational access programming
use; and
B. Facilities and equipment for the use of such capacity.
"Effective Date" means the date a Franchise becomes effective in accordance with the Franchise
and the rules and procedures of the City.
"FCC" means the Federal Communications Commission and any legally appointed, designated or
elected agent or successor.
"Franchise" means the rights and obligations extended by the City to a Person to own, lease,
construct, maintain, or operate a Cable System in the Right-of-Way within the Franchise Area for
the purpose of providing Cable Services. Any such authorization, in whatever form granted, shall
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not mean or include: (i) any other permit or authorization required for the privilege of transacting
and carrying on a business within the City required by the ordinances and laws of the City; (ii)
any permit, agreement, or authorization required in connection with operations in the Right-of-
Way including, without limitation,permits and agreements for placing devices on or in poles,
conduits, or other structures, whether owned by the City or a private entity, or for excavating or
performing other work in or along the Right-of-Way.
"Franchise Agreement" means a Franchise granted pursuant to this Ordinance.
"Franchise Area" means the entire geographic area within the City as it is now legally
constituted or may in the future be legally constituted, or any other area in the City for which a
Franchise is granted in a Franchise Agreement. Unless the Franchise Agreement specifically
states otherwise, every Franchise Agreement shall apply to the entire area within the corporate
limits of the City of Brookings as such corporate limits legally exist or may legally exist in the
future.
"Franchise Fee" means any tax, fee, or assessment of any kind imposed by the City or other
governmental entity on a Grantee or Cable Subscriber, or both, solely because of its status as
such. The term "Franchise Fee" does not include: (i) any tax, fee, or assessment of general
applicability (including any such tax, fee, or assessment imposed on both utilities and cable
operators or their Services but not including a tax, fee, or assessment that is unduly
discriminatory against cable operators or cable Subscribers); (ii) Capital Costs that are required
by a Franchise Agreement to be incurred by a Grantee for PEG Access Facilities; (iii)
requirements or charges incidental to the awarding or enforcing of a Franchise, including
payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or
liquidated damages; or (iv) any fee imposed under Title 17 of the United States Code.
"Government Access Facilities" means:
A. Channel capacity designated for non-commercial governmental access
programming use; and
B. Facilities and equipment for the use of such channel capacity.
"Grantee" means Brookings Municipal Utilities, its agents and employees, lawful successors,
transferees or assignees.
"Grantor" means the City and its successors or delegates.
"Gross Revenues" means any revenue derived directly or indirectly by a Grantee from the
operation of its Cable System to provide Cable Service, within the Franchise Area, including
revenues received by its affiliates, subsidiaries, parent, or any other Person, in which a Grantee
has a financial interest of five percent (5%) or more, where such revenue in the ordinary course
of business should have been paid to Grantee other than for the provision of
telecommunications services as defined under federal law, or other services for which the
Grantee or affiliate is subject to a separate franchise ordinance. Gross Revenues shall include
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but are not limited to, pay cable fees, installation and reconnection fees, leased channel access
fees, Converter rentals, non-subscriber revenue, including advertising and home shopping
revenues, all Cable service lease payments from the Cable System; payments or other
consideration received by the Grantee from programmers for carriage of programming on the
Cable System and accounted for as revenue under GAAP; any charges based on sale or lease of
fiber or system capacity to provide Cable Service. The term does not include taxes on Services
furnished by Grantee and imposed by any municipality, state, or other governmental unit and
collected by Grantee for such governmental unit. (e.g.tax on the Franchise Fee) In addition,the
FCC User Fee is not included in Gross Revenue. Fees for Cable Internet Service shall not be
included in Gross Revenues unless in accordance with applicable law such service may be
subject to local franchise fees.
It is understood and agreed that the Grantee operates other utility businesses within the City
of Brookings. Gross revenues,as defined in this paragraph,pertain to only revenue derived by the
Grantee from the operation of its cable system and not from any of the other businesses that the
Grantee offers in the City of Brookings such as telephone service,electrical service or water and
wastewater service.
"Lockout Device" means a mechanical or electrical accessory to a Subscriber's terminal that inhibits
the video or audio portions of a certain program or certain Channel(s)provided by way of a Cable
System.
"Normal Business Hours" means,unless otherwise defined in a Franchise Agreement,those hours
during which most similar businesses in the community are open to serve customers. In all cases,
Normal Business Hours must include some evening hours, at least one night per week, and/or some
weekend hours.
"Normal Operating Conditions" means any and all service and operational situations or conditions
that are ordinarily within the control of a Grantee, including but not limited to, special promotions;
pay-per-view events;rate increases;regular peak or seasonal demand periods; and maintenance,
repair or upgrade of the Cable System, and any associated computer or software systems. Those
conditions that are not within the control of a Grantee including but not limited to,natural disasters;
civil disturbances;power outages; telephone network outages; and severe or unusual weather
conditions.
"Other Programming Service" means information that a Grantee makes available to all Subscribers
generally.
"Person" means any corporation,partnership,proprietorship, individual,organization,
governmental entity or any natural person.
"Public Access Facilities" means:
A. Channel capacity designated for non-commercial public access programming
use; and
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B. Facilities and equipment necessary for the use of such channel capacity.
"Resident" means any Person residing in the City.
"Service Interruption" means the loss of picture, sound, or data on one or more cable Channels
on the System, or the degradation of the picture and/or sound quality on such Channels to the
extent that the subscriber is unable to use the signals.
"Standard Installation" means any Service installation that can be completed using a Drop of
one hundred twenty-five (125) feet or less, unless otherwise agreed to in the Franchise
Agreement.
"Street" means the surface of, and the space above and below, any public street,road or highway,
sidewalk, easement or right-of-way now or hereafter held by City.
"Subscriber" means any Person that lawfully elects to subscribe to Cable Service provided by a
Grantee by means of, or in connection with, the Cable System.
"System" means a Grantee's Cable System operated pursuant to a Franchise Agreement within
the Franchise Area.
SECTION 2.
GRANT OF AUTHORITY AND GENERAL PROVISIONS
1. Grant. A Cable Television Franchise is hereby granted to Brookings Municipal Utilities,
subject to the terms and conditions of this Franchise Agreement(hereinafter also referred to as
the "Agreement"). The Agreement provides Grantee with the authority, right and privilege,to
construct,reconstruct, operate and maintain a Cable Television System and to provide cable
service and any other cable services permitted by this Franchise or applicable law within the
Streets in the City as it is now or may in the future be constituted. This Franchise does not
prohibit or grant any franchise rights concerning the provision of"telecommunications services"
which is defined as:
"the offering of telecommunications" for a fee directly to the public, or to
such classes of users as to be effectively available directly to the public, regardless
of the facilities used."
2. Effective Date of This Franchise. This Franchise shall be effective on the date that both
parties have executed this Franchise Agreement, provided that said date is no later than sixty(60)
days after the date that the City Council, by resolution, approves this Franchise Agreement. The
Franchise is further contingent upon the filing by Grantee with the City Clerk, of the executed
Franchise Agreement and the required insurance certificates, except that if the filing of any such
insurance certificate does not occur within sixty(60)days after the effective date of the
resolution approving this Franchise Agreement and any extension of time hereunder,the Grantor
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may declare this Franchise Agreement null and void.
3. Franchise Required. It shall be unlawful for any Person to construct, operate or maintain a
Cable Television System in City unless such Person or the Person for whom such action is being
taken shall have first obtained and shall currently hold a valid Franchise Agreement. It shall also
be unlawful for any Person to provide Cable Service in City unless such Person shall have first
obtained and shall currently hold a valid Franchise Agreement.
4. Governing Requirements. Grantee shall comply, with all lawful requirements of this
Franchise Agreement and applicable State and Federal law.
5. Grant of Nonexclusive Franchise.
(a) The Grantee shall have the right and privilege to construct, erect, operate, and
maintain, in, upon, along, across, above, over and under any public street,road or
highway, sidewalk, easement or right-of-way now laid out or dedicated and all
extensions thereof, and additions thereto in City,poles,wires, cables,
underground conduits, manholes, and other television conductors and fixtures
necessary for the maintenance and operation in City of a Cable Television System
as herein defined.
(b) This Franchise shall not be construed as any limitation upon the right of Grantor,
through its proper offices, and in accordance with applicable law,to grant to other
qualified Persons or corporations rights,privileges or authority similar to the
rights,privileges and authority herein set forth, in the same or other Streets the
Grantee is entitled to occupy by this Franchise Agreement, permit or otherwise;
provided, however,that such additional grants shall not operate to materially
modify,revoke or terminate any rights granted to Grantee herein.
6. Franchise Term. This Franchise shall be in effect for a period of ten(10)years from the
effective date, unless renewed,revoked,terminated, shortened or extended as herein provided.
7. Previous Franchises. Intentionally deleted.
8. Rules of Grantee. Grantee shall have the authority to promulgate such rules,regulations,
terms and conditions governing the conduct of its business as shall be reasonably necessary to
enable said Grantee to exercise its rights and perform its obligations under this Franchise.
9. Franchise Area. This Franchise is granted for the corporate boundaries of City, as it exists
from time to time.
10. Geographical Coverage.
(a) Grantee shall design, construct and maintain the Cable Television System to have
the capability to pass every dwelling unit in the City, subject to any line extension
requirements of this Franchise Agreement, provided however,that Grantee shall
not be required to provide Cable Service to any area within the City of Brookings
that is outside of its telecommunications territory as currently on file with the
South Dakota Public Utilities Commission and which territory is served by
another telecommunications company.
(b) After service has been established by activating trunk and/or distribution cables
for any part of the City, Grantee shall provide Cable Service to any requesting
Subscriber provided the Service Installation can be completed using a Drop of
One Hundred Twenty-five Feet(125') or less and provided the requesting
Subscriber resides within the City,within thirty(30) days from the date of request,
provided that the Grantee is able to secure all rights-of-way necessary to extend
service to such Subscriber within such thirty(30)day period on reasonable terms
and conditions.
11. Written Notice. All notices, reports, or demands required to be given in writing under this
Franchise shall be deemed to be given when delivered personally to any officer of Grantee or to
the City Manager of the City of Brookings, or forty-eight(48)hours after it is deposited in the
United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon,
addressed to the party to whom notice is being given, as follows:
If to City: City of Brookings
Attn: City Manager
City Hall
P.O. Box 270
Brookings, South Dakota 57006
If to Grantee: Brookings Municipal Utilities
Attn: General Manager
525 Western Avenue
Brookings, SD 57006
Such addresses may be changed by either party upon notice to the other party given as provided
in this Section.
12. Public,Educational or Government Access Facilities.
(a) Grantee shall make available to each of its subscribers who receive some or all of
the services offered on the System, reception of at least two (2) access channels,which shall be
used for noncommercial purposes as follows:
(1) Educational access;
(2) Government access;
The channels designated for access shall be provided by Grantee as a part of the basic
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cable service. The access channels shall be made available by Grantee for use by the City and its
citizens in accordance with the rules and procedures established by the City or any lawfully
designated person, group, organization or agency authorized by the City for that purpose.
(b) Grantee shall dedicate an additional channel for public, educational or
governmental access no later than six (6)months following the City's request. In addition,
Grantee shall dedicate a fourth additional channel for public, educational or governmental access
upon the City's request if any access channel is in continuous use from 8:00 a.m. to 11:00 p.m.
for three (3) consecutive months provided, however:
(1) The use of repeat programming in excess of ten percent of the amount of original
programming on that channel, as well as text or character-generated programming shall
not be considered a continuous use.
(2) The access channels shall be considered separately. Continuous use of one
channel to capacity as defined in this section is sufficient to initiate a request for an
additional channel.
(3) In no event shall Grantee be required to provide in excess of four(4) access
channels total.
(4) To the extent that any access channel is not being used for the provision of non-
commercial,public, educational or governmental access purposes, Grantee shall be
permitted to use such channel(s) for the provision of other services.
Grantee's permitted use of any access channel made pursuant to this section shall cease
within ninety(90) days of Grantee's receipt of notice from City that such channel will again be
used for public, educational or governmental access.
(c) Notwithstanding the above, Grantee may accommodate a request from the City for
additional access capacity made pursuant to this Section by combining more than one access use
on a channel provided that:
(1) It is technically and economically feasible for Grantee to do so;
(2) The scheduling needs of all users of the channel can be reasonably
accommodated; and
(3) The access entity, which requires use of the alternate channel, must be able to
access the alternate channel from the site where it normally originates playback of its
programs and may not be required to transport tapes to a remote site for playback.
(d) Origination Points
Grantee shall provide free cable transmission facilities at City Hall and no more than two
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other locations for activated return capability provided the cost of providing such cable
transmission facilities does not exceed the sum of Ten Thousand Dollars ($10,000.00), and any
costs of providing such cable transmission facilities in excess of Ten Thousand Dollars
($10,000.00) shall be divided equally between the City and Grantee. Grantee shall also provide
free modulation equipment to introduce programming onto these transmission facilities by
linking the below listed origination points with the headend, or through hubs to the headend, for
distribution to all subscribers. Grantee shall be permitted to pass this cost to Subscribers to the
extent permitted by Federal and State law.
However, costs of providing said facilities shall not be a credit against payment of the
Franchise fee imposed under this Franchise Agreement.
(e)Equipment and Facilities for Public, Educational or Government Access Facilities
Grantee's Responsibility for Equipment. Grantee is responsible for all headend
equipment, including repair and maintenance, essential to playback of programming of signals
generated by City or its Access producing designees.
City's Responsibility for Access. The City shall be responsible for the operation of
Government Access Facilities and equipment. In this regard City may delegate from time to time
its responsibilities to others who then shall assume the responsibility of City in accordance with
the City's delegation.
The City will develop reasonable rules regarding use of Access Facilities and equipment
and determine the needs of the City for public, educational and governmental access services. In
this regard,the City shall regularly coordinate with Grantee for the purpose of developing and
maintaining reasonable Access Facilities.
The City, or persons to whom it delegates responsibility for access, shall have the
responsibility to provide funding for operating expenses associated with public, educational and
governmental access.
13. Drops to Public Buildings. Grantee shall provide Standard Installation of one (1) cable
Drop, one (1) cable outlet, and monthly Basic Cable Service without charge to the public
buildings set forth on the attached Exhibit"A".
Additional Drops and/or outlets in any of the above locations will be provided by Grantee
at the cost of Grantee's time and material. Alternatively, at the institution's request, said
institution may add outlets at its own expense, as long as such installation meets Grantee's
standards and provided that any fees for Cable Services are paid. Nothing herein shall be
construed as requiring Grantee to extend the System to serve additional institutions as may be
designated by City.
14. Annual Report. Grantee shall submit annually,within ninety(90) days after its year end, a
written end-of-the-year report to Grantor containing the following information:
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(1) A brief summary of the previous year's (or in the case of the initial
reporting year,the initial year's) installation of service lines of the Cable
System, including but not limited to, service lines begun or discontinued
during the reporting year.
(2) The number of Subscribers served under this Franchise Agreement.
(a) The City, including its agents and representatives, shall have the authority, during
Normal Business Hours,to arrange for and conduct an inspection of Annual
Reports required pursuant to this Franchise Agreement. The City shall give the
Grantee at least twenty-four(24)hours written notice of the inspection request.
If the requested information is proprietary in nature or must be kept confidential
by State, Federal or local law, upon proper request by Grantee, such information
obtained during such an inspection shall be treated as confidential, making it
available only to those Persons who must have access to perform their duties on
behalf of the City, including but not limited to the City Manager and City Clerk,
the City Attorney, Finance Department and Council Members. To the extent any
Federal requirement for privacy applies to the information to be submitted, said
law shall control.
(b) All reports and records required under this Ordinance shall be furnished at the
sole expense of Grantee, except as otherwise provided in this Franchise
Agreement.
15. Periodic Evaluation and Review. Grantor and Grantee acknowledge and agree that the
field of cable television is a rapidly changing one that may see many regulatory,technical,
financial, marketing and legal changes during the term of this Franchise Agreement. Therefore,
to provide for the maximum degree of flexibility in this Franchise Agreement, and to help
achieve a continued advanced and modern Cable System,the following evaluation and review
provisions will apply:
(a) The City may request evaluation and review sessions at any time during the term
of this Agreement and Grantee shall cooperate in such review and evaluation;
provided,however,that there shall not be more than one (1) evaluation and
review session every three years.
(b) Topics that may be discussed at any evaluation and review session include,but are
not limited to, rates, channel capacity,the System performance,programming,
PEG access,municipal uses of cable, Subscriber complaints,judicial rulings, FCC
rulings and any other topics that the City or Grantee may deem relevant.
(c) During an evaluation and review session Grantee shall fully cooperate with the
City and shall provide without cost such reasonable information and documents as
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the City may request to perform the evaluation and review.
(d) If at any time during the evaluation and review,the City reasonably believes that
there is evidence of inadequate technical performance of the Cable System,the
City may require Grantee, at Grantee's expense,to perform appropriate tests and
analyses directed toward such suspected technical inadequacies. In making such
requests,the City shall describe and identify in writing as specifically as possible
the nature of the problem,the reason the City has requested special testing and the
type of test that the City believes to be appropriate. Grantee shall cooperate fully
with the City in performing such tests and shall report to the City the results of the
tests, which shall include at least:
(1) The System component tested;
(2) the equipment used and procedures employed in testing;
(3) the results of the test(s)and, if necessary, the method by which the System
performance problem was resolved; and
(4) any other information pertinent to said tests and analyses;
(e) As a result of an evaluation and review session,the City or Grantee may
determine that a change in the System or in the terms of the Franchise Agreement
may be appropriate. In that event, either the City or the Grantee may propose
modifications to the System or the Franchise. Grantee and the City shall review
the terms of the proposed change and any proposed amendment to this Franchise
Agreement and seek to reach agreement on such change or amendment provided
the change or amendment is not inconsistent with applicable law or regulations
and the change or amendment technically feasible, economically reasonable and
will not result in a material alteration of the rights and duties of the parties under
the Franchise Agreement.
SECTION 3.
CONSTRUCTION STANDARDS
1. Construction Codes and Permits.
(a) Grantee shall obtain all necessary permits from City before commencing any
construction upgrade or extension of the System, including the opening or
disturbance of any Street, or private or public property within City.
(b) The City shall have the right to inspect all construction or installation work
performed pursuant to the provisions of the Franchise and to make such tests at its
own expense as it shall find necessary to ensure compliance with the terms of the
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Franchise and applicable provisions of local, state and federal law and to protect
the public health, safety and welfare of Grantor's citizens. Grantee shall have the
right to be present at such inspections.
2. Repair of Streets and Property. Any and all Streets or public property or private property,
which are disturbed or damaged during the construction,repair,replacement, relocation,
operation, maintenance or reconstruction of the System shall be promptly and fully restored by
Grantee, at its expense,to a condition as good as that prevailing prior to Grantee's work.
3. Building Movers. The Grantee shall, on request of any Person holding a moving permit
issued by City,temporarily move its wires or fixtures to permit the moving of buildings with the
expense of such temporary removal to be paid by the Person requesting the same, and the
Grantee shall be given not less than five (5)business days advance notice to arrange for such
temporary changes. The Grantee shall have the right to require advance payment for the costs of
moving its facilities.
4. Tree Trimming. The Grantee shall consult with the City Forester for approval to trim any
trees upon and overhanging the Streets, alleys, sidewalks, or public easements of City so as to
prevent the branches of such trees from coming in contact with the wires and cables of the
Grantee.
5. No Waiver.Nothing contained in this Franchise shall relieve any Person, as defined in
this Agreement, from liability arising out of the failure to exercise reasonable care to avoid
injuring Grantee's facilities.
6. Undergrounding of Cable.
(a) In all areas of City where all other utility lines are placed underground, Grantee
shall construct and install its cables, wires and other facilities underground.
(b) In any area of City where one or more public utilities are aerial, Grantee may
construct and install its cables, wires and other facilities from the same pole with
the consent of the owner of the pole.
7. Safety Requirements. The Grantee shall at all times employ ordinary and reasonable care
and shall install and maintain in use nothing less than commonly accepted methods and devices
for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to
the public.
8. Drop Burial. Temporary drops will be buried within sixty(60) days of installation. Such
sixty(60) day period shall not apply if the installation is made during the winter months, which
shall be defined as November 15 to April 1. The installation period shall be extended throughout
the winter months until weather conditions permit the Grantee to complete such drop buries. In
the event the Grantee fails to bury said drops within sixty(60) days if outside the winter months
or if the installation is made during the winter months, within sixty days after the winter months,
the City shall notify the Grantee of violation of this section in accordance with the enforcement
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provisions in this Franchise Agreement and the Grantee shall provide basic and expanded basic
cable service without charge to the affected cable subscriber from the last date that the drop was
to have been buried to the actual date of burial. All subscriber drops that are located
underground shall comply with National Electrical Code (NEC) standards and shall be buried to
minimum depth of six (6) inches.
SECTION 4.
OPERATIONS PROVISIONS
1. System Design and Channel Capacity.
(a) Grantee shall develop, construct and operate a System capable of providing a
minimum of 60 channels of video programming during the term of this Franchise
Agreement.
(b) All final programming decisions remain the discretion of Grantee;provided that
Grantee notifies City and Subscribers in writing thirty(30) days prior to any
channel additions, deletions, or realignments, and further subject to Grantee's
signal carriage obligations hereunder and pursuant to 47 U.S.C. § 531-536, and
further subject to City's rights pursuant to 47 U.S.C. § 545.
2. Special Testing.
(a) City may require special testing of a location or locations within the System if
there is a particular matter of controversy or unresolved complaints pertaining to
such locations(s). Demand for such special tests may be made on the basis of
complaints received or other evidence indicating an unresolved controversy or
noncompliance. Such tests shall be limited to the particular matter in controversy
or unresolved complaints. The City shall endeavor to so arrange its request for
such special testing so as to minimize hardship or inconvenience to Grantee or to
the Subscribers caused by such testing.
(b) Before ordering such tests, Grantee shall be afforded thirty(30) days to correct
problems or complaints upon which tests were ordered. The City shall meet with
Grantee prior to requiring special tests to discuss the need for such and, if
possible, visually inspect those locations which are the focus of concern. If, after
such meetings and inspections, City wishes to commence special tests and the
thirty(30) days have elapsed without correction of the matter in controversy or
unresolved complaints,the tests shall be conducted by a qualified engineer
selected by City and Grantee. In the event that special testing is required by City
to determine the source of technical difficulties,the cost of said testing shall be
borne equally by the Grantee and the City.
3. Parental Control Lock. Grantee shall provide, for sale or lease,to Subscribers,upon
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request, a parental control locking device or digital code that permits inhibiting the video and
audio portions of any channels offered by Grantee.
4. Emergency Alert Capability. Within thirty-six (36)months of the effective date of this
Agreement, Grantee shall provide an Emergency Alert System(EAS) in accordance with FCC
Rules and Regulations and applicable law.
SECTION 5.
SERVICES AND PROGRAMMING PROVISIONS.
1. Programming.
(a) Broad programming categories. Grantee shall provide or enable the provision of at
least the following initial broad categories of programming:
(1) Educational programming;
(2) News & information;
(3) Sports;
(4) General entertainment(including movies);
(5) Children/family-oriented;
(6) Arts; culture and performing arts;
(7) Science/documentary;
(8) Weather information;
(9) Public affairs;
(b) Deletion or reduction of programming categories.
(1) Grantee shall not delete or so limit as to effectively delete any broad
category of Programming identified in this Section and within its control
without the consent of the City or as otherwise authorized by law.
(2) In the event of a modification proceeding under Federal law,the mix and quality
of services provided by the Grantee on the effective date of this Franchise shall be
deemed the mix and quality of services required under this Franchise throughout its term.
2. Leased Commercial Access. Grantee shall offer leased commercial access in accordance
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with applicable law.
3. Periodic Subscriber Survey.
(a) Commencing in 2008, at least once every three years,the Grantee shall conduct a
Subscriber survey. The City and Grantee shall discuss the sample size and cost of
the survey. The cost of the survey shall be borne equally by the City and Grantee.
Grantee shall provide Grantee the results of Subscriber surveys, to the extent it
determines the results do not contain confidential information. Each
questionnaire shall be prepared with input from the City and conducted as to
present reasonably reliable measures of Subscriber satisfaction with:
(1) signal quality;
(2) response to Subscriber complaints;
(3) billing practices;
(4) program services; and
(5) installation practices.
(b) As a part of each annual report, Grantee shall provide the City with a summary of
the results of any survey,to the extent that the results are not confidential,
conducted during the prior year. Grantee shall report in writing what steps
Grantee is taking to implement the findings of the survey, such as correcting
problems and expanding services.
4. Subscriber Inquiries. Grantee shall have a publicly listed toll-free telephone number and
be operated so as to receive Subscriber complaints and requests on a twenty-four(24)hour-a-day,
seven(7) days-a-week basis.
5. Refund Policy. In the event a Subscriber established or terminates service and receives
less than a full month's service, Grantee shall prorate the monthly rate on the basis of the number
of days in the period for which service was rendered to the number of days in the billing period.
6. General Technical Standards and Customer Service Practices.
A. This Ordinance incorporates technical standards and establishes customer Service
practices that a Grantee must satisfy.
B. In accordance with applicable law, Grantee shall maintain such equipment and
keep such records as are reasonably required to enable the City to determine whether the Grantee
is in compliance with all standards required by these regulations and other applicable laws.
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Technical Standards. The technical standards used in the operation of a System shall comply, at
minimum,with the technical standards promulgated by the FCC relating to Cable Systems
pursuant to the FCC's rules and regulations and found in Title 47, Sections 76.601 to 76.617, as
may be amended or modified from time to time, which regulations are expressly incorporated
herein by reference.
Test and Compliance Procedure. Tests for a System shall be performed in accordance with the
FCC's rules and regulations. Representatives of the City may witness the tests and written test
reports shall be made available to the City upon reasonable prior written request. If more than ten
percent(10%) of Grantee's locations in the City tested fail to meet the performance standards,
Grantee shall be required to indicate what corrective measures have been taken and the entire test
shall be repeated if requested by the City.
Emergency Requirements. Grantee must provide emergency alert override capabilities in a
manner consistent with the FCC's Emergency Alert System ("EAS")rules and consistent with
any State and/or regional Emergency Alert System plans adopted in response to the FCC's EAS
rules that are applicable to the Franchise Area.
Programming Decisions. In accordance with applicable law, Grantee shall provide programming
from each of the broad programming categories listed in accordance with the Franchise
Agreement. All programming decisions remain within the sole discretion of each Grantee
provided that Grantee complies with federal law regarding notice to Grantor and Subscribers
prior to any Channel additions, deletions, or realignments, and further subject to the Grantee's
signal carriage obligations pursuant to 47 U.S.C. §§ 531-536, as may be amended and subject to
the City's rights pursuant to 47 U.S.C. § 545, as may be amended.
Cable System Office Hours and Telephone Availability.
A. Grantee shall maintain a customer Service office within the Franchise Area for a
minimum of five years from the effective date of this Franchise, which shall include a place
where Subscribers may pay their bills,pick-up and return converter boxes and comparable items
and receive information on the Grantee and its Services. Such Service office shall be open during
Normal Business Hours. Grantee also shall maintain a publicly listed toll-free or collect call
telephone access line that is available to Subscribers twenty-four(24)hours a day, seven(7) days
a week. The local or toll-free numbers shall be listed,with appropriate explanations, in all widely
utilized local phone directories. If Grantee discontinues use of a customer service office, it shall
provide a local agent to accept payment of bills and shall provide a convenient alternative
procedure for services formerly provided through its local customer Service office.
B. Grantee shall have trained representatives available to respond to Subscriber
telephone inquiries during Normal Business Hours. The term "trained representatives" shall mean
employees of the Grantee who have the authority and capability while speaking with a Subscriber
to, among other things, answer billing questions, and schedule Service and installation calls.
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C. All employees of the Grantee shall identify themselves when answering an
incoming call or inquiry, or while working in the field. Supervisory personnel must use
reasonable efforts to respond to Subscriber requests to speak with a "manager or supervisor"
within one business day of the request under Normal Operating Conditions, during Normal
Business Hours and supervisory personnel will respond no later than the next business day.
D. After Normal Business Hours,the telephone access line may be answered by a
Service or an automated response System, including an answering machine. Inquiries received
after Normal Business Hours must be responded to by a trained representative on the next
business day.
E. Upon reasonable prior written request, Grantee shall provide on the calendar of
holidays and business days on which the Grantee will be closed. Grantee shall also use
reasonable efforts to provide prior notice to Subscribers through answering Service/machine,
voice mail messages, bill messages, or through a Channel provide by Grantee regarding hours or
dates when its offices will not be open. In addition, during such "closed" periods,the Grantee
shall use reasonable efforts to provide voice messages and notice on its premises of the after
hours contact numbers.
F. Under Normal Operating Conditions, telephone answer time by a customer
Service representative or automated response unit, including wait time, shall not exceed thirty
(30) seconds. If a call must be transferred,transfer time shall not exceed thirty(30) seconds.
These standards shall be met no less then ninety percent(90%) of the time as measured on a
semi-annual basis under Normal Operating Conditions.
G. Under Normal Operating Conditions, Subscribers will receive a busy signal less
than three percent(3%) of the time.
H. The period of three (3) hours following major outages (more than 25%of the
Grantee's Subscribers) or periods of natural disasters are not included in the response
requirements above, provided that Grantee has used reasonable best efforts to provide voice-mail
information about the outage on phone answering equipment and the System bulletin board
(assuming outage is not City-wide) and the Grantee provides documentation to City as soon as
reasonably possible following the outage, including beginning and ending times, area of outage,
location and cause of problem.
I. Grantee shall respond to all Subscriber or user inquiries or complaints within ten
(10) days of the inquiry or complaint, unless the resolution of the Subscriber or user inquiries or
complaints is not reasonably available within that time frame, in which case Grantee shall
respond as soon as reasonably possible. The requirement that Grantee respond to all Subscriber
or user inquiries or complaints within ten(10) days of the inquiry or complaint as provided above
shall apply except to the extent a more stringent standard is set forth for specific types of
activities, inquiries or complaints in this Franchise Ordinance/Agreement.
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J. On a semi-annual basis,the Grantee, upon request, will provide the City with
reports for hold time, busy signals, and abandonment rate, and if requested by the City,the
Grantee will meet with the City to review such reports. The Grantor may allow periods of
excused non-compliance if the Grantee can provide reasonable documentation that these periods
of non-compliance were not within Normal Operating Conditions.
(1) The Grantee will be deemed in compliance if:
(a) During any such semi-annual period each criterion has been met or
exceeded; or
(b) If each criterion has been met or exceeded during four(4)months within
any such semi-annual period.
(2) Should the Grantee be found to be in non-compliance,the City shall notify the
Grantee in writing and specify the basis for the finding. Upon notification,the
Grantee shall have thirty(30) days to cure such non-compliance.
(3) If the Grantee,based upon the available monthly data, fails to cure the non-
compliance within the thirty(30) day period,the Grantor may commence
enforcement procedures.
Installations, Outages, and Service Calls. Under Normal Operating Conditions, each of the
following standards must be met no less than ninety-five percent(95%) of the time as measured
on a quarterly basis:
A. Maintenance Service capability enabling the prompt location and correction of
substantial System malfunctions or outages shall be available twenty-four(24)hours a day, seven
(7) days a week.
B. To the extent practical, at the time an appointment is scheduled,the Grantee shall
inform the Subscriber of Service procedures, required payments, possible delays, and phone or
field verification procedures which are related to the appointment and/or possible
rescheduling/cancellation.
C. The appointment window alternatives for Standard Installations and Service calls
will be within a maximum four(4)hour time block during Normal Business Hours. Grantees
may schedule Service calls and other installation activities outside of Normal Business Hours for
the express convenience of a Subscriber, if so requested.
D. No Grantee may cancel an appointment with a Subscriber after the close of
business on the business day prior to the scheduled appointment.
E. If a Grantee's representative is running late for an appointment with a Subscriber
and will not be able to keep the appointment as scheduled, all reasonable efforts will be made to
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contact the Subscriber. The appointment must be rescheduled, as necessary, at a time that is
convenient for the Subscriber.
F. The Grantee may phone the Subscriber within the appointment window to verify
that the appointment is still needed. If the subscriber telephone is answered by a machine or
Service, the Grantee may leave a message which includes a number the Subscriber may use to
call back to confirm or reschedule the appointment.
G. Appointments may not be canceled or rescheduled until field personnel of the
Grantee make reasonable efforts to verify that the Subscriber or other authorized adult is not at
the address for the appointment.
H. Upon arrival at the Subscriber's address, if the Grantee verifies that a Subscriber is
not at the address during the scheduled appointment window,the Grantee shall leave a door tag
or similar notice with the name of the person leaving the notice, the time the person determined
that the Subscriber was not at home; and a telephone number the Subscriber may call back to
confirm or reschedule an appointment.
I. Any vehicle used for the installation, construction, maintenance, or repair of a
Cable System shall bear the identification of the Grantee in a conspicuous place and manner.
J. Reconnections due to erroneous disconnection based on billing or technical errors
must be completed at no charge within twenty-four(24) hours of notification by the affected
Subscriber.
K. Reconnections after a disconnection attributed to non-payment of bills must be
completed within seven(7)business days of Grantee's receipt of back payment.
L. The Subscriber may be billed for installations or reconnections as soon as each
such service is installed.
M. Runs in building interiors shall be as unobtrusive as reasonably possible and
outlets shall be located for the convenience of the Subscriber. The Grantee shall use due care in
the process of installation and shall repair any damage to the Subscriber's property caused by
installation work. Such restoration shall be undertaken as soon as possible after the damage is
incurred, shall be subject to reasonable Subscriber approval of the corrective action, and Grantee
shall use its best efforts to complete the corrective action within no more than thirty(30)days
after the damage is incurred. Should such restoration not be corrected within thirty(30) days, the
Grantee shall notify the Subscriber as to the cause for the delay and the date when such action
shall be completed.
N. Failure of the Grantee to maintain adequate budget, sufficient staff or properly
trained staff shall not constitute justification for failure to comply with these provisions.
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Repairs and Interruptions.
A. Every Grantee will begin working on Service Interruptions and outages within a
reasonable timeframe but in no event later than twenty-four(24) hours after the Service
Interruption becomes known.
(1) Any reports of"no picture/no sound" must be responded to within twenty-four
(24)hours of such report.
(2) Work not requiring the Operator to enter Subscriber premises (or property) shall
not require the Subscriber to be available for an appointment and shall not be
delayed on account of the Grantee's inability to arrange an appointment with the
Subscriber.
B. Work on all other requests for Service must begin by the next business day after
notification of the problem.
C. The Subscriber does not need to be home for outside plant and line repairs.
D. A Grantee may interrupt Service only for good cause and for the shortest time
possible, including interruption for System upgrade, maintenance and repair. Grantee shall use
reasonable efforts to perform maintenance at times that affect the fewest number of Subscribers.
The Grantee shall post override notices on the System to advise Subscribers in advance of
planned Service interruptions. For a planned Service interruption that is likely to last four(4)
hours or more, Grantee shall broadcast information concerning the planned Service interruption
on a Channel of Grantee used for such notices and shall notify the local newspaper.
E. A Grantee shall provide a pro rata credit for Service for each Service Interruption
exceeding four(4) hours in any twenty-four(24)hour period, unless it is demonstrated that the
Subscriber caused the outage, or the outage was planned as part of an upgrade or other work of
which the City and the Subscriber received appropriate prior general notification or the Service
Interruption was determined to be beyond the control of Grantee. A Subscriber is entitled to a full
refund for any Cable System or equipment impairment to pay-per-view event. These credits and
refunds shall be made available upon request by Subscriber.
F. Service Call Charges. Unless otherwise agreed to, no charge shall be made to a
Subscriber for any Service call relating to Grantee owned and Grantee maintained equipment
after the initial installation of Cable Service unless the problem giving rise to the Service request
can be demonstrated by Grantee to have been:
(1) Caused by the negligence or malicious destruction of cable equipment by the
subscriber; or
(2) A problem established as having been non-cable in origin.
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(3) A customer education problem requiring unnecessary visits by Grantee.
G. An"Identified Outage" is construed as reports of no picture/no sound from three
(3) or more Subscribers in close geographic proximity or along the same trunk or feeder line
within twenty(20)minutes of each other.
H. Within one (1) hour of an Identified Outage during Normal Business Hours,
Service technicians will respond and use all available reasonable means to correct the outage in
the shortest possible amount of time. The Grantee shall maintain and forward to the City,upon
request, reports on the cause, area, duration and repair of the outage.
I. Cable drop lines, cable trunk lines, or any other type of outside wiring that
comprise part of the Grantee's Cable System that are located underground, shall be placed in such
locations pursuant to City Code, and the surrounding ground shall be restored to a condition
which is reasonably comparable to the condition immediately prior to such construction,within
seventy-two (72)hours after connection to the Cable System, or such time as agreed to by the
property owner. Additional time may be allowed for the completion of such restoration if
individual circumstances warrant. The requirements of this subsection shall apply to all
installation, reinstallation, Service or repair commenced by the Grantee within the City during
Normal Operating Conditions.
Communications Between Grantees and Subscribers.
A. Notifications to Subscribers:
(1) In accordance with applicable law, Grantee shall provide written information to
Subscribers on each of the following topics at the time of installation, at least annually to all
Subscribers, at any time upon request, and at least thirty(30) days prior to making significant
changes in such information:
(a) Product and Services offered;
(b) Prices and options for programming services and conditions of
subscription to programming and other services and facilities;
(c) Installation and maintenance policies including, when applicable,
information regarding the Subscriber's home wiring rights and information
describing ownership of internal wiring during the period Service is
provided;
(d) Instructions on how to use Services;
(e) Channel positions of programming offered on a System;
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(fj Billing and Complaint procedures, including the name, address and
telephone number of the City;
(g) The availability of Converters, Lockout Devises or other signal control
devices;
(h) The Grantee's practices and procedures for protecting against invasions of
privacy; and
(i) The address and telephone number of the Grantee's office to which
Complaints may be reported.
(2) Grantee promotional materials, announcements and advertising of Service to
Subscribers, including pay-per-view or event programming, shall clearly and
accurately disclose price terms. In the case of telephone orders, the Grantee shall
take appropriate steps to reasonably explain the price terms to potential customers
before the order is accepted.
(3) Subscribers will be given thirty(30) days advance notice of any changes in rates,
programming Services, or Channel positions through any written means that is
reasonably likely to bring such information to the attention of Subscribers.
B. Billing:
(1) Bills must be clear, concise, and understandable. Bills must be itemized,with
itemizations including, but not limited to, Basic and premium Service charges and
equipment charges.
(2) Bills must clearly show a specific payment due date.
(3) If Grantee chooses to itemize, as a separate line item on bills,Franchise Fees or
other government imposed fees attributable to the total bill, such fees must be
shown in accordance with any applicable law concerning the Grantee's ability to
itemize such fees.
(4) Bills must also clearly delineate all activity during the billing period, including
optional charges,rebates, and credits.Nothing in this section prohibits or restricts
a Grantee from offering packages of programming to Subscribers and to identify
such packages on the Subscriber bill.
(5) The billing statement must clearly and conspicuously indicate the past due date,
and if applicable the date certain that a Subscriber's Service will be eligible for
disconnection.
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(6) Negative option billing is prohibited unless applicable federal law specifically
requires that the Grantee be permitted to engage in such practice.
(7) In case of a billing dispute, a Grantee must respond to a written Complaint from a
Subscriber within thirty(30) days. Credits for Service shall be issued no later than
the Subscriber's next billing cycle after determination that the credit is warranted.
Complaint Log. Subject to the privacy provisions of 47 U.S.C. § 521 et seq., Grantor and every
Grantee shall prepare and maintain written records of all Complaints made to them and the
resolution of such Complaints, including the date of such resolution. Such written records shall
be on file at the office of Grantee. Grantee shall make available to Grantor a written summary of
such Complaints and their resolution upon request.
Lockout Device.
A. Grantee shall provide to any Subscriber upon request for sale or lease a Lockout
Device for blocking both video and audio portions of any channel(s) of programming entering
the Subscriber's premises.
B. Scrambling/Blocking. Grantee shall at all times scramble both the audio and video
portions of all channels with predominately adult oriented programming.
Periodic Subscriber Surveys.
A. Grantee shall allow the Grantor to insert a written survey into Grantee's monthly
Cable Service Subscriber billing statements or utility bills. The Grantor shall be responsible for
any costs incurred by a Grantee that are related to the conduct of such surveys.
B. In addition to Periodic Telephone Surveys,the Grantor may periodically elect to
supplement periodic telephone surveys with a statistically valid telephone survey, of the subject
matter identified in Section 5-3 of this Franchise.
Line Extension Policy. No resident shall be refused Service arbitrarily. Unless otherwise set
forth in the Franchise Agreement,whenever Grantee receives a request for Cable Service in an
unserved portion of the Franchise area where there are at least 25 dwelling units (which shall be
interpreted to include businesses that have contractually agreed to subscribe to Cable Service)
within one linear cable mile of the Grantee's nearest trunk or distribution cable from which it is
technically feasible to extend Service, or the dwelling unit is within 125 feet of Grantee's
distribution cable, it shall extend its Cable System to such Subscriber at no cost, other than the
published standard installation fee charged to all Subscribers.
Mobility Limited Subscribers. Unless otherwise agreed in this Franchise Ordinance/Agreement,
upon the request of mobility-limited Subscribers, Grantee shall arrange for delivery,pickup or
exchange or replacement of converters or other equipment at the Subscriber's address.
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Customer Service Reporting Requirements. Based on a substantial number and a documented
pattern of verbal or written Complaints received by Grantor, Grantor may require Grantee to
prepare and furnish to Grantor reports and any other reasonable information relevant to the
complaints, including, at minimum,the following:
A. A telephone report containing the following information relevant to the question
of whether the Grantee's telephone answering System complies with the standards
of this Ordinance:
(1) Total number of calls received by the Call System handling the Franchise Area;
(2) Total number of calls abandoned by the Call System handling the Franchise Area;
(3) Total percentage of calls abandoned;
(4) Percentage of calls answered within thirty (30) seconds; and
(5) A description of significant events impacting telephone response
times.
B. The number of free Standard Installations that were issued for failure to arrive for
Standard Installations.
C. A significant Service Interruptions report that tracks information on a monthly
basis to include:
(1) Total number of Service Interruptions;
(2) Time of all Service Interruptions;
(3) Total hours that the System was out-of-service as related to planned maintenance
or Channel line-up changes performed by a Grantee; and
(4) Estimated number of Subscribers affected by each incident.
In addition to the above,the City may request that Service Interruption reports
contain graph(s)that depict Grantee's performance with respect to the items above
for the first three(3)year period of this Franchise and thereafter up to a three (3)
year period prior to the date the report was requested.
D. Results of any technical testing on the System.
Dispute Resolution.
A. Grantee shall establish procedures for receiving, acting upon, and resolving
customer complaints, and crediting customer accounts, without intervention by the Grantor. Such
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procedures shall prescribe the manner in which any Subscriber may submit a complaint by
telephone, fax, e-mail or in writing to the Grantee that it has violated any provision of these
Customer Service Standards, any terms or conditions of the Customer's contract with the
Grantee, or reasonable business practices. Grantee shall use reasonable efforts to log oral
complaints it receives and shall not be obligated to provide verbatim reports or transcripts of oral
complaints provided the nature of the complaint is adequately provided to the Grantor if
requested by Grantor.
B. The Grantee's complaint procedure shall be filed with the Grantor prior to January
1, 2007.
C. The Grantee's investigation of a Subscriber complaint shall be concluded in no
more than fifteen(15) business days after receiving the complaint, at which time the Grantee
shall notify the Subscriber of the results of its investigation and its proposed action.
D. The Grantor may also notify the Subscriber of his/her rights to file a complaint
with the Grantor in the event the Subscriber is dissatisfied with the Grantee's decision, and shall
thoroughly explain the necessary procedures for filing such complaints with the Grantor.
E. The Grantor will review and notify Grantee of all complaints it receives against
Grantee regarding quality of service, equipment malfunctions, billing disputes, and property
damage. In conducting its review, the Grantor may request additional information from the
Grantee and/or Subscriber.
SECTION 6.
FRANCHISE FEE,INSURANCE PROVISIONS
1. Franchise Fee.
(a) Grantee shall pay to City an Annual Franchise Fee in the amount of three percent
(3%)of its annual Gross Revenues as defined in Section 1. of this Agreement.
(b) Any payments due under this provision shall be payable within 30 days of the end
of the Grantee's fiscal quarter and shall include a report showing the basis for the
computation.
(c) The City shall have the right, at any time during the term of this Franchise, to
increase the Annual Franchise Fee to the maximum percentage permitted by law,
however the City shall provide Grantee at least sixty(60) days notice prior to the
effective date of any increase or decrease of the Annual Franchise Fee.
2. Access to Records. The City shall have the right to inspect, upon reasonable notice and
during normal business hours, or require Grantee to provide within a reasonable time, copies of
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any records maintained by Grantee which relate to System operations including specifically
Grantee's accounting and financial records.
3. Indemnification.
(a) Except as otherwise provided herein, Grantee shall indemnify,hold harmless,
release and defend City, its officers, agents and employees from and against any
and all lawsuits, claims, actions, demands, damages, disability, losses, expenses
including attorney's fees and other defense costs or liabilities of any nature that
may be asserted by any Person or entity arising out of the activities of Grantee, its
subcontractors, employees and agents hereunder. Grantee shall be solely
responsible and save City harmless from all matters relative to payment of
Grantee's employees, including compliance with Social Security, withholding and
other payroll requirements.
(b) This indemnification obligation is not limited in any way by a limitation of the
amount or type of damages or compensation payable by or for Grantee under
workers' compensation, disability or other employee benefit acts, acceptance of
insurance certificates required under this Agreement, or the terms, applicability or
limitations of any insurance held by Grantee.
(c) Grantor does not, and shall not, waive any rights against Grantee which it may
have by reason of this indemnification, because of the acceptance by Grantor, or
the deposit with Grantor by Grantee of any of the insurance policies described in
this Franchise Agreement.
(d) This indemnification by Grantee shall apply to all damages and claims for
damages of any kind suffered by reason of any of the aforesaid operations referred
to in this Section, regardless of whether or not such insurance policies shall have
been determined to be applicable to any such damages or claims for damages.
(e) Grantee shall not be required to indemnify Grantor for negligence or misconduct
on the part of Grantor or its officials, boards, commissions, agents, or employees
(hereinafter negligence or misconduct may be referred to as "such acts"). Grantor
shall hold Grantee harmless for any damage resulting from any such acts of the
Grantor or its officials,boards, commissions, agents, or employees in utilizing any
PEG access channels, equipment, or facilities and for any such acts committed by
Grantor in connection with work performed by Grantor and permitted by this
Agreement, on or adjacent to the Cable System.
4. Grantee's Insurance. Grantee shall not commence any Cable System construction work or
permit any subcontractor to commence work until both shall have obtained or caused to be
obtained all insurance required under this Section. Said insurance shall be maintained in full
force and effect until the completion of construction.
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5. Workers' Compensation Insurance. Grantee shall obtain and maintain workers'
compensation insurance for all of Grantee's employees, and in case any work is sublet, Grantee
shall require any subcontractor similarly to provide workers' compensation insurance for all
subcontractor's employees, all in compliance with State laws, and to fully protect the Grantor
from any and all claims arising out of occurrences resulting from Cable System construction
work. Grantee hereby indemnifies Grantor for any damage resulting to it from failure of either
Grantee or any subcontractor to take out and maintain such insurance. Grantee shall provide the
Grantor with a certificate of insurance indicating workers'compensation coverage with its
acceptance of this Franchise Agreement.
6. Insurance.
(a) Grantee shall file, with its acceptance of this Franchise Agreement, and at all
times thereafter maintain in full force and effect during the entire term of this
Franchise at its sole expense, comprehensive general liability insurance that shall
protect the Grantee,the Grantor, and the Grantor's officials, officers, employees
and agents from claims which may arise from operations under this Franchise,
whether such operations are by the Grantee, its officials, officers, directors,
employees and agents, or any subcontractor of Grantee. This liability insurance
shall include but shall not be limited to protection against claims arising from
bodily and personal injury and damage to property, resulting from Grantee's
automobiles,products and completed operations. The amount of insurance for
single limit coverage applying to bodily and personal injury and property damage
shall not be less than one million dollars ($1,000,000)per occurrence and two
million dollars ($2,000,000) in aggregate. The following endorsements shall
attach to the liability policy:
(1) The policy shall cover personal injury as well as bodily injury.
(2) The policy shall cover blanket contractual liability subject to the standard
universal exclusions of contractual liability included in the carrier's standard
endorsement as to bodily injuries, personal injuries and property damage.
(3) Broad form property damage liability shall be afforded.
(4) The Grantor shall be named as an additional insured on the policy.
(5) An endorsement shall be provided which states that the coverage is primary
insurance and that no other insurance carried by the Grantor will be called upon to
contribute to a loss under this coverage.
(6) Standard form of cross-liability shall be afforded.
(7) Each policy of insurance shall contain a statement on its face that the insurer will
not cancel the policy or fail to renew the policy,whether for nonpayment of
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premium, or otherwise, and whether at the request of Grantee or for other reasons,
except after thirty(30) days' advance written notice have been provided to
Grantor.
(b) Grantor reserves the right to adjust the coverage limit requirements no more than
every five (5)years. Any such adjustment by the Grantor will be no greater than
the increase in the State of South Dakota Consumer Price Index(all consumers)
for such five (5)year period.
(c) Grantee shall submit to Grantor documentation of the required insurance
including a certificate of insurance signed by the insurance agent and companies
named, as well as all properly executed endorsements.
(d) Any deductible or self-insured retention must be declared to Grantor.
SECTION 7.
FRANCHISE VIOLATION/REVOCATION OF FRANCHISE
1. Franchise Violations. Grantor, by action of the City Manager, shall first notify Grantee of
a violation in writing by personal delivery or registered or certified mail, and demand correction
within a reasonable time,which shall not be less than ten(10) days in the case of the failure of
the Grantee to pay any sum or other amount due the Grantor under this Agreement,and thirty
(30) days in all other cases. If Grantee fails to correct the violation within the time prescribed, or
if Grantee fails to commence corrective action within the time prescribed and diligently remedy
such violation thereafter, the Grantee shall then be given a written notice of not less than thirty
(30) days of a public hearing to be held before the City Council. Said notice shall specify the
violation(s)alleged to have occurred.
(a) At the public hearing,the City Council shall hear and consider all relevant
evidence, and thereafter render findings, its decision, and the penalty or penalties
for the violation.
(b) In the event the City Council finds that Grantee has corrected the violation, or has
diligently commenced correction of such violation after notice thereof from
Grantor and is diligently proceeding to fully remedy such violation,or that no
material violation has occurred, the proceedings shall terminate and no penalty or
other sanction shall be imposed. In determining whether a violation is material,
Grantor shall take into consideration the reliability of the evidence of the
violation,the nature of the violation and the damage, if any, caused to the Grantor
thereby, whether the violation was chronic, and any justifying or mitigating
circumstances and such other matters as the Grantor may deem appropriate.
(c) Grantor may impose any penalty or sanction authorized by Federal or State law
for a Violation of this Franchise,however imposition of any such penalty shall not
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constitute a waiver of any right of the Grantor to pursue any other remedy
permitted by law.
2. Revocation of Franchise.
(a) Grantor's Right to Revoke.
(1) In addition to all other rights which Grantor has pursuant to law or equity, Grantor
reserves the right to revoke, terminate or cancel this Franchise, and all rights and privileges
pertaining thereto, if after the hearing required by Section 7.1 herein, it is determined that:
(i) Grantee has violated any material provision of this Franchise; or
(ii) Grantee has attempted to evade any material provision of the Franchise; or
(iii) Grantee has practiced fraud or deceit upon Grantor or Subscriber.
(b) Procedures for Revocation.
(1) Grantor shall provide Grantee with written notice of a cause for revocation and the
intent to revoke this Franchise and shall allow Grantee thirty(30) days subsequent to receipt of
the notice in which to correct the violation or to provide adequate assurance of performance in
compliance with the Franchise.
(2) Grantee shall be provided the right to a public hearing affording due process
before the City Council prior to revocation, which public hearing shall follow the thirty(30) day
notice provided in Section(b.1.) immediately above. At the public hearing, Grantee shall be
provided a fair opportunity for full participation, including the right to be represented by legal
counsel,to introduce relevant evidence,to require the production of evidence,to compel the
relevant testimony of the officials, agents, employees or consultants of the Grantor,to compel the
testimony of other persons as permitted by law, and to question witnesses. A complete verbatim
record and transcript shall be made of such hearing,the cost of such transcript to be paid by
Grantee. The Grantor shall provide Grantee with written notice of its decision together with
written findings of fact supplementing said decision.
(3) After the public hearing and upon written determination by Grantor to revoke the
Franchise, Grantee may appeal said decision to an appropriate State or Federal court or agency
within sixty(60) days of said decision. Unless otherwise provided by Federal or State law,the
decision of the Grantor to revoke the Franchise shall be subject to review de novo.
(4) During the appeal period, the Franchise shall remain in full force and effect unless
the term of the Franchise Agreement expires during the appeal period.
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(5) The Grantor may, at its sole discretion, take any lawful action which it deems
appropriate to enforce the Grantor's rights under the Franchise in lieu of, or in addition to, appeal
or public hearing upon revocation of this Franchise.
SECTION 8.
PROTECTION OF INDIVIDUAL RIGHTS
1. Subscriber Privacy. Grantee shall comply with the terms of 47 U.S.C. § 551 relating to
the protection of Subscriber privacy.
SECTION 9.
UNAUTHORIZED CONNECTIONS AND MODIFICATIONS
1. Unauthorized Connections or Modifications Prohibited. It shall be unlawful for any firm,
Person, group, company, corporation,or governmental body or agency,without the express
consent of the Grantee, to make or possess, or assist anybody in making or possessing, any
connection, extension, or division, whether physically, acoustically, inductively, electronically or
otherwise, with or to any segment of the System.
2. Removal or Destruction Prohibited. It shall be unlawful for any firm, Person, group,
company, corporation, or governmental body or agency to willfully interfere,tamper, remove,
obstruct, or damage, or assist thereof, any part or segment of the System for any purpose
whatsoever.
3. Penalty. Any firm, Person, group, company, corporation or government body or agency
found guilty of violating this section may be fined not more than Two Hundred Dollars($200.00)
for each and every offense. Each continuing day of the violation shall be considered a separate
occurrence and offense.
SECTION 10.
MISCELLANEOUS PROVISIONS
1. Franchise Renewal. Any renewal of this Franchise shall be done in accordance with
applicable Federal, State and local laws and regulations.
2. Amendment of Franchise Ordinance. Grantee and Grantor may agree, from time to time,
to amend this Franchise. Such written amendments may be made at any time if Grantor and
Grantee agree that such an amendment will be in the public interest or if such an amendment is
required due to changes in Federal, State or local laws. Grantor shall act pursuant to local law
pertaining to the ordinance amendment process.
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3. Mediation. To aid in the analysis and resolution of any future disputed matters relative to
this Franchise Agreement, the Grantor and Grantee may, by mutual agreement(both as to
whether to hire and whom to hire), employ the services of technical, financial or legal
consultants, as mediators. All reasonable fees of the consultants incurred by the Grantor and the
Grantee in this regard shall be borne equally.
4. Force Majeure.Neither Grantor nor Grantee shall be liable for damages or subject to
penalty due to delay or failure to perform any duty imposed by this Franchise Agreement if such
delay or failure results directly or indirectly from circumstances beyond the control of such party.
Within thirty(30) days of Grantee's discovery of the event causing such delay or failure, Grantee
shall provide Grantor written notice describing the cause of the delay or failure and estimating
the period of time in which such delay or nonperformance will be cured.
5. Rate Regulation/Internet as a cable service. If Grantor is permitted under Federal and/or
State law to regulate the rates charged by Grantee, and if Grantor elects to regulate, Grantor shall
establish reasonable procedures consistent with due process and applicable law and follow those
procedures before so regulating. In addition, if internet service is determined to be a cable service
by Federal law or the FCC, such services shall be subject to the Franchise Fee to the extent
permitted by Federal and State law.
SECTION 11.
CONFLICT WITH OTHER ORDINANCES
In the event of any conflict or ambiguity between the terms and conditions of this
Franchise Ordinance and any other Ordinance,this Ordinance shall control, except as may be
specifically otherwise provided in this Ordinance. The Grantor reserves all rights that it may
possess under law to adopt any ordinance regulating the use of the Grantor's streets and rights of
ways.
SECTION 12.
PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
1. Publication; Effective Date. This Franchise shall be published in accordance with
applicable South Dakota law. The Effective Date of this Franchise shall be the date Grantee has
accepted this Franchise.
2. Acceptance.
(a) Grantee shall accept this Franchise Agreement within sixty(60) days of the
adoption of the Franchise Ordinance by the City Council,unless the time for
acceptance is extended by Grantor. Such acceptance by the Grantee shall be
deemed the grant of this Franchise for all purposes. Upon acceptance of this
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Franchise, Grantee shall be bound by all the terms and conditions contained
herein.
(b) Grantee shall accept this Franchise in the following manner:
(1) This Franchise shall be properly executed by Grantee and delivered to
Grantor.
(2) With its acceptance, Grantee shall also deliver any Insurance certificate
required herein that have not previously been delivered to Grantor.
Passed and adopted this 14th day of March, 2006.
_• °- p J
TY 0 : ' a • 4 GS, GRANTOR
-72(47/
`,\ THDYE.
hari Thornes % D unsterman
Brookings City Clerk Mayor
ACCEPTED: This Franchise Agreement is accepted and Grantee agrees to be bound by its terms
and conditions.
BROOKINGS MUNICIPAL UTILITIES,
GRANTE
Dated: Vc\Ca r\ \'\ � A00tp By: A .
Its: President
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EXHIBIT A
DROPS TO PUBLIC BUILDINGS
The following cable drops to public buildings shall be provided upon request by the
Grantor:
City: City Hall
Fire Department—Sixth St.
Parks & Recreation—Main Ave.
Street Department
Library
Any future law enforcement facilities constructed during the franchise
period
County: County Sheriffs Office
Resource Center
Any future law enforcement facilities constructed during the franchise
period
Swiftel Center no later than July 1, 2008
School: All current schools
Any future schools constructed during the franchise period
The following High speed data lines (HSD) shall also be provided:
City: Brookings Police Department-2 High speed data lines (HSD) installed at no cost
to the City, with HSD service provided at residential rates
Note: Buildings not identified on the above list may be included by Grantor's notice to
Grantee of the building and location,provided the building is within five hundred feet of
Grantee's nearest trunk or distribution cable. Grantee shall provide the free drop within ninety
(90) days after receipt of notice.
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