APPENDIX E.
CABLE FRANCHISE ORDINANCE
AN
ORDINANCE GRANTING A CABLE FRANCHISE IN THE CITY OF DETROIT LAKES; SETTING FORTH
CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR CERTAIN
SERVICE REGULATIONS; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE
PROVISIONS HEREIN
The
City of Detroit Lakes ordains:
Statement
of Intent and Purpose
The
City intends, by the adoption of this Franchise, to renew the cable franchise
ordinance previously issued by the City.
Continued cable service can contribute significantly to the
communication needs and desires of residents of the City. Further, the City may achieve better
utilization and improvement of public services with the continued operation of
a cable system.
Section 1.
Definition
of Terms
1. Terms. For 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.
a.
“Affiliate”
means an entity which owns or controls, is owned or controlled by, or is under
common ownership with Grantee.
b.
“Basic
Cable Service” means any service tier, which includes the lawful retransmission
of local television broadcast signals and any public, educational, and
governmental access programming required by the Franchise to be carried on the
basic tier. Basic Cable Service as
defined herein shall not be inconsistent with 47 U.S.C. § 543(b)(7).
c.
“Cable
Programming Service” means any video programming regardless of service
tier, including installation or rental of equipment used for the receipt of
such video programming, other than Basic Cable Service or video programming
offered on a pay‑per‑channel or pay‑per‑program
basis. Cable Programming Service as
defined herein shall not be inconsistent with the definition as set forth in 47
U.S.C. § 543(1)(2) and 47 C.F.R.§ 76.901(b).
d.
“Cable
Service” means: the one-way transmission to subscribers of (i) video programming, or (ii) other programming service,
and (iii) subscriber interaction, if any, which is required for the selection
or use of such video programming or other programming service.
e.
“Cable
System” means a system of antennas, cables, wires, lines, towers, wave
guides, or other conductors, converters, equipment or facilities located which
operates the service of receiving and amplifying programs broadcast by one or
more television or radio stations, and distributing those programs by wire,
cable, microwave or other means, whether the means are owned or leased, to
persons who subscribe to the service.
f.
“Channel”
means a single full motion video channel.
g.
“City”
means the City of Detroit Lakes, Minnesota.
h.
“Converter”
means an electronic device, which converts signals to a frequency acceptable to
a television receiver of a Subscriber and by an appropriate selector permits a
Subscriber to view all Subscriber signals included in the service.
i.
“Drop,”
means the cable that connects the ground block on the Subscriber’s residence to
the nearest feeder cable.
j.
“FCC”
means the Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
k.
“Franchise”
or “Cable Franchise” means this ordinance and the contractual
relationship established hereby.
l.
“Franchise
Fee” means the fee or assessment imposed by the City on a Grantee solely
because of its status as a franchisee.
The term “Franchise Fee” does not include: (i)
any tax, fee or assessment of general applicability; (ii) capital costs which
are required by this Franchise related to the provision of public, educational,
or governmental access facilities; (iii)
requirements or charges incidental to awarding or enforcing this Franchise,
including payments for bonds, security funds or letters of credit, insurance,
indemnification, penalties or liquidated damages, or other regulatory costs
specifically required herein in addition to the Franchise Fee; (iv) any fee
imposed under Title 17 of the United States Code.
m.
“Grantee”
is Tekstar Cablevision, Inc., its agents and
employees, lawful successors, transferees or assignees.
n.
“Gross
Revenues” means the following revenues received by the Grantee or its
Affiliates from the operation of the Cable System to provide Cable Service in
the City: 1) the monthly service fees for basic broadcast service (the One Star
Plan); 2) expanded basic tiers (Two Star Plan) and pay television fees and
pay-per-view service. Gross Revenues
shall not include: 1) fees derived from the lease of channels to providers
unaffiliated with Grantee, to the extent such lease is required by law; 2)
revenues received from telecommunications services as defined in state or
federal law; 3) any taxes on Cable Services which are imposed directly or
indirectly on any subscriber by any governmental unit or agency; 4) revenues
received from national advertising carried on the system; 5) revenues received from late fees, or; 6) bad debt write-offs.
o.
“Installation”
means the connection from feeder cable to the point of connection with the
Subscriber Converter.
p.
“Lockout
Device” means an optional mechanical or electrical accessory, which
inhibits the viewing of a certain program, certain channel, or certain
channels.
q.
“Normal
Business Hours” means those hours during which most similar businesses in
the community are open to serve customers.
Normal Business Hours must include some evening hours at least one night
per week and/or some weekend hours.
r.
“Normal
Operating Conditions” means those service conditions, which are within the
control of Grantee. Those conditions
which are not within the control of Grantee include, but are not limited to,
natural disasters, civil disturbances, power outages, telephone network
outages, and severe or unusual weather conditions. Those conditions which are
ordinarily within the control of Grantee include, but are not limited to,
special promotions, pay‑per‑view events, rate increases, regular
peak or seasonal demand periods, and maintenance or upgrade of Grantee’s
facilities.
s.
“Person”
is any person, firm, partnership, association, corporation, company, or other
legal entity.
t.
“Right-of-Way”
or “Rights-of-Way” means the area on, below, or above any real property
in the City in which the City has an interest including, but not limited to any
street, road, highway, alley, sidewalk, parkway, park, skyway, or any other
place, area, or real property owned by or under the control of the City,
including other dedicated Rights-of-Way for travel purposes and utility
easements.
u.
“Right-of-Way
Ordinance” means the ordinance adopted by the City creating requirements
regarding regulation, management and use of Rights-of-Way, including
registration and permitting requirements.
v.
“Standard
Installation” means any residential installation, which can be completed
using a Drop of 125 feet or less.
w.
“Subscriber”
means any Person who lawfully receives Cable Service from Grantee.
Section 2.
Grant of Franchise
1.
Findings of
Council. In the review of the franchise renewal
request by the Grantee and negotiations related thereto, and as a result of a
public hearing, the Grantee’s technical, financial, legal qualifications and
ability were considered and approved in accordance with state and federal
law. In addition, the Grantee’s plans
for providing video services were considered and found adequate and
feasible. The Franchise granted herein
is intended to comply in all respect with applicable Minnesota Statutes,
federal laws and regulations.
2.
Grant of
Franchise.
a.
This Franchise is
granted pursuant to the terms and conditions contained herein. The Grantee shall have the continued right
and privilege pursuant to this Franchise to provide Cable Service and
construct, reconstruct, operate and maintain a Cable System in the
Rights-of-Way in the City.
b.
Use of the
Rights-of-Way to operate a Cable System and provide Cable Service shall not be
inconsistent with the terms and conditions by which such Rights-of-Way were
created or dedicated and is subject to all legal requirements related to the
use of such Rights-of-Way, including the terms and conditions of the
Right-of-Way Ordinance.
c.
This Franchise
shall be nonexclusive. Additional Cable
Franchises may be granted by the City.
3.
Lease or
Assignment Prohibited. No Person may
lease Grantee’s Cable System for the purpose of providing Cable Service within
the City, until and unless such Person shall have first obtained and shall
currently hold a valid Franchise
4.
Franchise
Term.
This Franchise shall be in effect for a period of 15 years from the date
of acceptance by Grantee.
5.
Compliance
with Applicable Laws, Resolutions and Ordinances. The Grantee
shall at all times during the term of this Franchise be subject to all lawful
exercise of the police power, local ordinance-making authority, and eminent
domain rights of the City. This
Franchise shall comply with the franchise standards contained in Minnesota
Statutes, Chapter 238.
6.
Franchise
Area/Service Area.
a.
This Franchise is
granted for the corporate boundaries of the City, as it exists from time to
time. In the event of annexation by City
or as development occurs, any new development within
the City shall become part of the territory for which this Franchise is granted
and for which Cable Service is authorized.
b.
The Grantee shall
be required to offer Service to all existing residential dwellings,
within the City consistent with the line extension criteria of Section 2(6)(c) below.
c.
Whenever the
Grantee shall receive a request for Cable Service from at least eight (8)
residences within 1320 cable-bearing strand feet (one-quarter mile) of its
trunk or distribution cable, it shall extend its Cable System to such
Subscribers at no cost to said Subscribers for Cable System extension, other
than the usual connection fees for all Subscribers; provided that such
extension is technically feasible, and it will not adversely affect the
operation of the Cable System. Grantee
shall extend Service within one hundred twenty (120) days of the date of
request, unless technically impossible or prevented
by weather conditions.
d.
Service shall not
be denied to any group of potential residential cable Subscribers because of
the income of the residents of the area in which such group resides.
7.
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
City’s Administrator of this Franchise 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 Grantor: City of
Attention: City Administrator
With copies to: City of
Attention: City Attorney
If to
Grantee: Tekstar
Communications, Inc.
Attention:
Systems Manager
With copies
to: Tekstar
Communications, Inc.
Attention:
Director of Video Operations
Such addresses may be changed by either party upon
notice to the other party given as provided in this Section.
Section
3.
Construction Standards
1.
Registration,
Permits and Construction Codes.
a.
Grantee shall
strictly adhere to all state and local laws and building and zoning codes
currently or hereafter applicable to location, construction, installation,
operation or maintenance of the Cable System and other facilities used to
provide Cable Service in the 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 as necessary
to ensure compliance with the terms of the Franchise and applicable provisions
of local, state and federal law.
c.
Nothing in this
Franchise shall be construed to prevent the City from enforcing or amending the
Right of Way Ordinance.
2.
Drop Burial. Grantee shall
bury all Drops in a reasonable time period, which shall not exceed thirty (30)
business days, subject to weather conditions.
In the event the ground is frozen, Grantee shall be permitted to delay
burial until the ground is suitable for burial, which in no event shall be
later than June 30th.
3.
Permits. Grantee shall
obtain the appropriate permit or other required authorization as provided in
the Right-of-Way Ordinance prior to any construction or work in or on the
Right-of-Way, including construction of poles, conduits, amplifier boxes,
similar structures, or other wire‑holding structures. Facilities located on public and private
property shall be subject to applicable zoning and other land use
regulations. All Cable System facilities
to-be located in the Right-of-Way shall be subject to City approval with regard
to location, height, type and other considerations.
4.
Relocation of
Facilities. Grantee shall at its sole expense relocate or
otherwise temporarily support, protect, or disconnect its Cable System in the
Right-of-Way, or any part thereof, upon five (5) days notice from the City, in
the event the City shall lawfully elect to change or alter the location or
grade of any street, alley, easement or other Right-of-Way, or the City shall
change, relocate, replace or remove utility poles at any time during this
franchise, or when required for any other public purpose or public
project. Grantee shall, at the request
of any person holding a moving permit, temporarily remove, raise or lower its
Cable System, or any part thereof, to permit the moving of a building,
provided: a) the expense shall be paid by said person(s) requesting same; and
b) the Grantee receives no less than twenty (20) days written notice. Nothing in this section is meant to limit any
rights Grantee may have under applicable laws to be compensated for the cost of
relocating its facilities from the Person that is requesting the
relocation.
5.
Existing Poles. Grantee shall
use existing poles, conduits or other wire-holding structures to the extent
feasible.
6. Pole Rental Fee. The City may require the Grantee to enter
into a pole attachment agreement granting permission to use the City's utility
poles. In any event, Grantee shall pay
the City Public Utilities Department for attachments to electric utility
poles. Such payment shall be in addition
to the franchise fee required herein. The per pole amount of the rental fee shall be established
by Council Resolution. The City may
modify the pole rental fee every five (5) years. Said pole rental fee shall be payable
semi-annually in advance on the first day of January, and the first day of July
of each year while this franchise remains in effect. The payments shall be based on the number of
poles upon which attachments are maintained, as determined by City. Grantee may request a physical count of the
poles upon which attachments are maintained.
7. Undergrounding. Grantee shall place its Cable System, or any
portion thereof, underground in areas of the City where all other utility lines
are placed underground. Grantee shall
relocate its Cable System, or any portion thereof, underground within a
reasonable time after receiving written notice that all other utility
facilities have been or are being placed underground. Amplifier boxes and pedestal mounted terminal
boxes may be placed above ground if existing technology reasonably requires,
but shall be of such size and design and shall be so located as not to be
unsightly or unsafe, all as may be approved by City in accordance with applicable
requirements. Grantee shall be entitled
to proportionate reimbursement form the City for undergrounding
costs to the same extent as other right-of-way users. Nothing in this section is meant to limit any
rights Grantee may have under applicable laws to be compensated for the cost of
relocating its System underground from the Person that is requesting the
relocation.
8. Safety Requirements.
a.
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.
b.
The Grantee
shall, upon completion of any work requiring the opening of any public or private
property, restore the same to as good a condition as existed immediately prior
to construction and in a manner and quality approved by City with regard to
Right-of-Way, and shall exercise reasonable care to maintain the same
thereafter in good condition.
c.
The Grantee shall
install and maintain its equipment and facilities in accordance with all
federal, state and local laws and regulations, including the requirements of
the National Electric Safety Code, and any applicable FCC or MPUC regulations,
and in such manner that they will not interfere with private radio, police and
fire communications or any installations of City or of any public utility
serving City.
d.
All facilities
structures, and lines, equipment and connections in, over, under and upon the
Rights-of-Way, wherever situated or located, shall at all times be kept and
maintained in good condition, order, and repair so that the same shall not
menace or endanger the life or property of the City or any Person.
e.
The Grantee shall
keep accurate maps and records of all its wires, conduits, cables and other
property and facilities located, constructed and maintained in the City. Grantee shall, without charge, furnish a copy
of such maps and records of the location and character of the facilities from time
to time as requested by the City.
9. Tree
Trimming. The Grantee is authorized
to trim any trees upon and overhanging the Rights-of-Way so as to prevent the
branches of such trees from coming in contact with its Cable System. The City may supervise tree-trimming
activities and condition the authority to trim trees, as it deems appropriate.
Section
4.
System Design
1. Channel Capacity.
a.
Within
twelve (24) months of acceptance of this Franchise, Grantee shall complete upgrade
of the Cable System to 750 MHz capacity with capability of delivering a minimum
of 80 analog (6 MHz) video channels.
b.
All
final programming decisions remain the discretion of Grantee in accordance with
this Franchise, provided, that Grantee notifies City and Subscribers in writing
thirty (30) days prior to any channel additions, deletions, or realignments,
and to Grantee’s signal carriage obligations
hereunder and pursuant to 47 U.S.C. § 531-536, and to City’s rights
pursuant to 47 U.S.C. § 545. The initial
broad categories of Video Programming are set forth in Exhibit B, attached
hereto and incorporated herein by reference.
Location and relocation of the PEG Channels shall be governed by Section
6.
2. Emergency Override/EAS Requirements. The Grantee will implement emergency alert
override capability consistent with all applicable federal and state
regulations. The Grantee shall
immediately, upon request, make its System available to the City in the event
of a local emergency. At minimum, the Grantee
shall ensure that all channels are capable of carrying a brief System-specific
message upon demand, consistent with federal law.
Section 5.
Customer
Service
1.
Provision
of Services. The Grantee shall render good quality Cable
Service, make repairs promptly, and interrupt Cable Service only for good cause
and for the shortest time possible. Such
interruption, to the extent feasible, shall be preceded by notice to the City
and Subscribers and shall occur during periods of minimum use of Cable Service.
2.
Technical
Standards. The technical standards used in the provision
of Cable Service shall comply, at minimum, with the technical standards
promulgated by the FCC (47 C.F.R. 76.601 to 76.617), as may be amended or modified
from time to time, which regulations are expressly incorporated herein by
reference.
3.
Performance
Review and System Testing. In the event City finds that there are signal
or performance difficulties, which may constitute violations of applicable FCC
technical standards or this Franchise, Grantee shall be notified and afforded
ten (10) days to correct the problems or complaints. If the performance difficulty is not resolved
after the cure period has elapsed in City’s sole determination, City may require
Grantee to demonstrate compliance via testing or other means selected by the
Grantee.
4.
FCC
Reports. Upon request, Grantee shall file with City
all required FCC technical reports, which pertain to signal quality.
5.
Regulation
of Service Rates.
a.
The City
may regulate rates for the provision of Cable Service to the extent allowed
under federal or state law(s).
b.
A list
of Grantee’s current residential Subscriber rates and charges shall be
maintained on file with the City and shall be available for public inspection. Grantee shall give the City and Subscribers
written notice of any change in a rate or charge in accordance with any
applicable FCC requirements, unless such change arises from changes in
regulatory fees, franchise fees, access costs or franchise imposed costs.
6. Sales
Procedures. Grantee shall not
exercise deceptive sales procedures when marketing any of its services within
City. Grantee shall have the right to
market consistent with local ordinances and other applicable laws and
regulations.
7. Telephone
Inquiries and Complaints.
a. Availability Grantee
will maintain local, toll‑free or collect call telephone access lines
which will be available to its Subscribers 24 hours a day, seven days a
week. During Normal Business Hours,
trained representatives of Grantee shall be available to respond to Subscriber
inquiries. Grantee will ensure that: (1)
an adequate number of trained company representatives will be available to
respond to customer telephone inquiries during Normal Business Hours, and; (2)
after Normal Business Hours, the access line will be answered by a trained
company representative or a service or an automated response system such as an
answering machine. Inquiries received
after Normal Business Hours must be responded to by a trained company
representative on the next business day.
b. Telephone
Answer Time and Busy Signals Under
Normal Operating Conditions, telephone answer time by a customer
representative, including wait time, shall not exceed thirty (30) seconds when
the connection is made. If the call needs to be transferred, transfer time
shall not exceed thirty (30) seconds. These standards shall be met no less than
ninety (90) percent of the time under Normal Operating Conditions, measured on
a quarterly basis. Under Normal
Operating Conditions, the customer will receive a busy signal less than three
(3) percent of the time. The Grantee
will not be required to acquire equipment or perform surveys to measure
compliance with the telephone answering standards in Sections 5.7(a) and (b)
unless an historical record of complaints indicates a clear failure to comply.
8. Installation, Outage and Service
Calls. Under Normal Operating
Conditions which will exclude the initial deployment period, each of the
following standards will be met no less than ninety five (95) percent of the
time measured on a quarterly basis: (1)
Excluding conditions beyond the control of Grantee which prevent performance,
Grantee will begin working on service interruptions promptly, and in no event
later than twenty-four (24) hours after the interruption becomes known, and
Grantee must begin actions to correct other service problems the next business
day after notification of the service problem and resolve such problems as soon
as is reasonably possible; (2) The “appointment window” alternatives for
Installations, service calls, and other installation activities will be either
a specific time or, at maximum, a four‑hour time block during Normal
Business Hours. The Grantee may schedule
service calls and other installation activities outside of Normal Business
Hours for the convenience of the customer; (3) Grantee may not cancel an
appointment with a customer after the close of business on the business day
prior to the scheduled appointment; (4) If a representative of Grantee is
running late for an appointment with a customer and will not be able to keep
the appointment as scheduled, the customer will be contacted. The appointment
will be rescheduled, as necessary, at a time during Normal Business Hours,
which is convenient for the customer.
9.
Complaint
and Other Service Records Subject to Grantee’s obligation to maintain the
privacy of certain information, at City's request Grantee shall prepare and
maintain written records of all complaints received and the resolution of such
complaints, including the date of such resolution. Such written records shall be on file at the
office of Grantee. Upon request, Grantee
shall periodically provide the City with a written summary of such complaints
and their resolution.
10.
Subscriber
Contracts. Grantee shall provide to City upon request
any standard form Subscriber contract utilized by Grantee. If no such written contract exists, Grantee
shall provide a document completely and concisely stating the length and terms
of the Subscriber contract offered to customers.
11.
Billing
and Subscriber Communications. Grantee must give Subscribers thirty (30)
days advance written notice with copy to City before any changes in rates,
programming services, or channel positions.
Bills must be clear, concise, and understandable, with itemization
including but not limited to, basic and premium charges and equipment charges.
12.
Refunds
and Credits. If Service is interrupted or discontinued for
24 or more consecutive hours and Grantee has notice of such interruption,
Subscribers shall be credited pro rata for such interruption beginning with the
date of notice of interruption. In the
event a Subscriber establishes 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. Refund checks
will be issued promptly, but no later than thirty (30) days from the date of
the return of the equipment supplied by the Grantee if Service is terminated.
13.
Local
Office. Grantee shall maintain a drop
box within the service area for receiving Subscriber payments after hours. Payments at Grantee’s drop box location shall
be deemed received on the date such payments are picked up by Grantee, which
shall occur no less than twice weekly.
14.
Additional
Customer Service Requirements. The City may adopt additional or modified customer
service requirements to address subscriber concerns or complaints.
SECTION 6.
INSTITUTIONAL SERVICES PROVISIONS
1. Public, Educational and Government
Access.
a.
PEG
Programming. The Grantee shall operate, administer, and
manage public, educational and governmental access programming pursuant to this
Franchise. The Grantee shall establish
rules pertaining to the administration of the specially designated access
channel. Upon request, Grantee shall
provide coverage of regular City Council meetings and such other governmental
meetings held in City Hall as the City may direct.
b.
PEG Channels. Grantee shall
dedicate one (1) channel for public, educational and governmental access
programming use. Nothing herein shall
diminish the City’s rights to secure additional channels pursuant to Minn.
Stat. § 238.084, which is expressly incorporated herein by reference.
c.
PEG
Availability. Grantee shall provide to each of its
Subscribers who receive all, or part of, the total Cable Services offered over
its Cable System, reception on the access channel free of charge. The specially designated access channel may
be used by the public, local educational authorities and local government on a
first-come, first-served, nondiscriminatory basis. During those hours that the specially
designated access channels are not being used by the public, local educational
authorities or local government, the Grantee may lease time to commercial or
noncommercial users on a first-come, first-served, nondiscriminatory basis if
the demand for that time arises. Grantee
may also use the specially designated access channels for local origination
during those hours when the channel is not otherwise in use.
d.
Charges for
Use.
Channel time and playback of prerecorded programming on the access must
be provided without charge to the City and the public.
e.
Spectrum. The VHF
spectrum shall be used for the specially designated access channel.
f.
Access
Equipment. The Grantee provides the minimal equipment
necessary to comply with Section 6.1.a above.
In addition, the Grantee shall make readily available for use, upon need
being shown, at least the minimal equipment necessary to perform good quality
playback of prerecorded programming and to make it possible to record programs
at remote locations with battery operated portable equipment. Need shall be determined by subscriber
petition which, to be successful, must contain the signatures of at least 100
subscribers.
2.
Service to
Public Buildings. Grantee shall provide, free of charge, a
Drop, outlet and monthly basic and expanded basic Cable Service (currently
marketed under One Star and Two Star Plans) to City Hall,
3.
Activated
Two-Way Capacity. Grantee shall provide two-way activated
capacity allowing live or recorded cablecast of programming from City Hall and
such other site(s) as may be mutually agreed to by Grantee and the City.
SECTION 7.
OPERATION AND ADMINISTRATION PROVISIONS
1.
Administration
of Franchise. The City shall
have authority to administer the Franchise and to monitor the performance of
the Grantee pursuant to the Franchise.
The City Manager or his designee shall have continuing regulatory
jurisdiction and supervision over the Services described herein and the
Grantee’s operation under this Franchise.
2.
Franchise
Fee.
a.
During
the term of this Franchise, Grantee shall pay to the City a Franchise Fee in an
annual amount of up to 5 percent (5%) of its Gross Revenues. The Franchise Fee shall initially be set at
the amount identified in Exhibit A. The City may by Resolution annually modify the
amount of the Franchise Fee. The City
shall provide notice of any modification in the Franchise Fee amount to Grantee
on or before November 1st.
Any change in the Franchise Fee amount shall be effective on January 1st
of the following year.
b.
Any
payments due under this provision shall be payable quarterly. The payment shall be made within sixty (60)
days of the end of each of Grantee’s current fiscal quarters together with a
report in form reasonably acceptable to City and Grantee and which shows the
basis for the computation.
c.
All
amounts paid shall be subject to audit and recompilation by the City and
acceptance of any payment shall not be construed, as an accord that the amount
paid is in fact the correct amount.
3.
Access
to Records. The City shall have the right to inspect,
upon reasonable notice and during Normal Business Hours, any records maintained
by Grantee which relate to this Franchise or operations, including specifically
Grantee’s revenue records, subject to the privacy provisions of 47 U.S.C. § 521
et seq. Grantee shall be required to
provide copies of such requested documents to the City unless such documents
are confidential and are available for City inspection at a location in the
City.
4.
Reports
to be filed with the City. Grantee shall file with the City, at the time
of payment of the Franchise Fee, a report of all Gross Revenues received during
the prior fiscal quarter. Grantee shall
prepare and furnish to the City such other reports with respect to the
operations, affairs, transactions or property, as they relate to this Franchise
or Cable Services as City may request.
The form of such reports shall be mutually agreed upon by City and
Grantee.
5.
Periodic
Evaluation.
a.
The City
may require evaluation sessions during the term of this Franchise not more than
annually, upon thirty (30) days written notice to Grantee. Such sessions shall be held by public
hearing. Topics which may be discussed
at any evaluation session may include, but are not limited to, application of
new technologies, programming offered, access channels, facilities and support,
municipal uses of cable, customer complaints, amendments to this Franchise,
judicial rulings, FCC rulings, line extension policies and any other topics the
City and Grantee deem relevant.
b.
As a
result of a periodic review or evaluation session, the City may request Grantee
to amend the Franchise to provide additional services or facilities as are
mutually agreed upon and which are both economically and technically feasible
taking into consideration the remaining life of the Franchise.
SECTION 8.
GENERAL
FINANCIAL AND INSURANCE PROVISIONS
1. Performance Bond.
a. City acknowledges that Grantee has operated
the System in the city for a substantial length of time, and through its
activities Grantee has demonstrated
hat it has the financial and technical qualifications for compliance with the
terms of the Franchise. Except as
expressly provided
herein, the Grantee shall not be required to obtain or maintain a performance
bond as a condition for being awarded the Franchise or continuing its
existence. In order to minimize costs,
which ultimately may be borne by Subscribers, City agrees to require a performance
bond only in such
amounts and during such times, as there is a reasonably demonstrated need
therefore. City reserves the right to
impose on Grantee an
obligation to file with City, a bond in the amount of up to Ten Thousand and
no/100 (10,000.00) in a form and with such sureties
as reasonably acceptable to City. This
bond will be conditioned upon the faithful performance by the Grantee of the
material terms of
its Franchise and upon the further condition that in the event Grantee shall
fail to comply with any law, ordinance or regulation governing the Franchise, there shall be
recoverable jointly and severally from the principal and surety of the bond any
damages or loss suffered by City as
a result, including the full amount of any compensation, indemnification or
cost of removal or abandonment of any property of Grantee, plus a reasonable allowance
for attorney’s fees and costs, up to the full amount of the bond, and further
guaranteeing payment by the Grantee
of Claims, liens and taxes, due City which arise by reason of the construction,
operation, or maintenance of the system.
b. The security must be conditioned upon
the faithful performance of the Grantee according to the terms of the Franchise
and upon the further condition
that in the event the Grantee shall fail to comply with any law, ordinance or
regulation governing the Franchise, there shall be recoverable jointly and severally from
the principal and surety of the bond any damages or loss suffered by the City
as a result, including the full
amount of any compensation, indemnification or cost of removal or abandonment
of any property of the Grantee, plus a reasonable allowance for attorneys’ fees and
costs, up to the full amount of the bond, and further guaranteeing payment by
the Grantee of claims, liens and
taxes due the City which arise by reason of the construction, operation, or
maintenance of its system in the City.
c.
The
rights reserved by the City with respect to the bond shall not be deemed an exclusive remedy are in addition to all other rights the
City may have under the Franchise or any other law. No action, proceeding or
exercise of a right with respect to the performance bond shall affect any other
right the City may have. The City may,
from year to year, in its sole discretion, reduce the amount of the bond.
d.
The
Grantee shall be given thirty (30) days notice of any franchise violation, or
other claim, liability or obligation giving rise to City’s right to make a
claim under the bond. In the event the
violation, claim, liability, or obligation is not cured, corrected or satisfied
within this thirty (30) day cure period, in City’s determination, the City may
make a claim pursuant to the bond. The City may grant additional time beyond the
initial cure period before making a claim under the bond in the event Grantee
requests additional time and the City determines that the Grantee has made a
good faith effort towards cure and such additional time is necessary to
completely cure the alleged violation.
e.
In the
event this Franchise is revoked or the rights hereunder relinquished or
abandoned by Grantee, the City shall be entitled to collect the full amount of
the performance bond as liquidated damages.
2. Indemnification of the City.
a.
The
City, its officers, boards, committees, commissions, elected officials,
employees and agents shall not be liable for any loss or damage to any real or
personal property of any Person, or for any injury to or death of any Person,
arising out of or in connection with the construction, operation, maintenance,
repair or removal of, or other action or event with respect to Grantee’s Cable
System, or any other action or event with respect to this Franchise.
b.
Grantee
shall indemnify, defend, and hold harmless the City, its officers, boards,
committees, commissions, elected officials, employees and agents, from and
against all liability, damages, and penalties which they may legally be
required to pay as a result of the exercise, administration, or enforcement of
the Franchise. Nothing herein shall be
construed as a waiver by City of its defenses and limitations available to it
under law, including the Minnesota Municipal Tort Liability Act, Minnesota
Statutes Section 466.01 et. Seq.
c.
Nothing
in this Franchise relieves a Person, except the City, from liability arising
out of the failure to exercise reasonable care to avoid injuring the Grantee’s
facilities while performing work connected with grading, regarding, or changing
the line of a Right-of-Way or public place or with the construction or
reconstruction of a sewer or water system.
d.
In order
for City to assert its rights to be indemnified, defended, and held harmless,
City must, with respect to each claim:
1.
Promptly
notify Grantee in writing of any claim or legal proceeding which gives rise to
such right.
2.
Afford
Grantee the opportunity to participate in any compromise, settlement or other
resolution or disposition of any claim or proceeding; and
3.
Fully
cooperate with reasonable requests of Grantee, at Grantee’s expense, in its participation
in compromise, settlement or resolution or other disposition of such claim or
proceeding subject to Paragraph 2 above.
3. Insurance.
a.
Grantee
shall file with its acceptance of this Franchise, and at all times thereafter
maintain in full force and effect at its sole expense, a comprehensive general
liability insurance policy, in protection of the Grantee, and the City, its
officers, elected officials, boards, commissions, agents and employees for
damages which may arise as a result of this Franchise.
b.
The
policies of insurance shall be in the sum of not less than One Million Dollars
($1,000,000.00) for personal injury or death of any one Person, and Two Million
Dollars ($2,000,000.00) for personal injury or death of two or more Persons in any
one occurrence, Five Hundred Thousand Dollars ($500,000.00) for property damage
to any one person and Two Million Dollars ($2,000,000.00) for property damage
resulting from any one act or occurrence.
c.
The
policy or policies of insurance shall be maintained by Grantee in full force
and effect during the entire term of the Franchise. 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 premium, or otherwise, and whether
at the request of Grantee or for other reasons, except after sixty (60) days
advance written notice have been provided to the City.
SECTION 9.
1. City’s
Right to Revoke. In addition to all
other rights which the City has pursuant to law or equity, the City reserves
the right to revoke, terminate or cancel this Franchise, and all rights and
privileges pertaining thereto, if after the hearing required herein, it is
determined that:
a.
Grantee
has violated any material provision of this Franchise and failed to timely
cure; or
b.
Grantee
has attempted to evade any of the material provisions of the Franchise; or
c.
Grantee
has practiced fraud or deceit upon the City or Subscriber.
The
City may revoke this Franchise without the hearing required herein if Grantee
files for bankruptcy.
2. Procedures for Revocation.
a.
The City
shall provide Grantee with written notice of intent to revoke the Franchise,
which shall identify the basis of the revocation. Grantee shall have thirty (30) days
subsequent to receipt of the notice in which to cure the violation or to
provide adequate assurance of performance in compliance with the Franchise.
b.
City
shall schedule a public hearing affording Grantee due process prior to
revocation. The public hearing shall be
scheduled after the end of the cure period and within ninety (90) days of the
date of the notice of revocation. Notice
of the hearing shall be provided to Grantee.
c.
The City
shall provide Grantee with written notice of its final decision together with
written findings of fact supplementing said decision. Only after Grantee receives written notice of
the determination by the City to revoke the Franchise may Grantee appeal said
decision.
d.
During
the appeal period, the Franchise shall remain in full force and effect unless
the term thereof sooner expires.
3. Abandonment of Service. Grantee may not discontinue providing video
programming services without having first given three (3) months written notice
to the City.
4. Removal
After Abandonment, Termination or Forfeiture.
a. In
the event of termination or forfeiture of the Franchise or abandonment of
Grantee’s system, the City shall have the right to require Grantee to remove
all or any portion of its system from all Rights-of-Way and public property
within the City; provided, however, that the Grantee shall not be required to
remove its system if it continues to be authorized to provide
telecommunications service pursuant to state or federal law over such system.
b. If
Grantee has failed to commence removal of its system, or such part thereof as
was designated by the City, within one hundred twenty (120) days after written
notice of the City demand for removal is given, or if Grantee has failed to
complete such removal within twelve (12) months after written notice of the
City demand for removal is given, the City shall have the right to apply funds
secured by the Letter of Credit and Performance Bond toward removal and/or
declare all right, title, and interest to Grantee’s system to be in the City
with all rights of ownership including, but not limited to, the right to
operate the system or transfer the system to another for operation by it
pursuant to the provisions of 47 U.S.C. § 547.
5.
a.
No sale,
transfer, or corporate change of or in Grantee or its system, including, but
not limited to, the sale of a majority of the entity’s assets, a merger
including the consolidation of a subsidiary and parent entity, or the creation
of a subsidiary or affiliate entity, shall take place until the parties to the
sale, transfer, or corporate change file a written request with the City for
its approval and such approval is granted by the City, provided, however, that
said approval shall not be required where Grantee grants a security interest in
its Franchise and assets to secure an indebtedness.
b.
Any
sale, transfer, exchange or assignment of stock or other equity interest in
Grantee so as to create a new controlling interest shall be subject to the requirements
of this Section 9.5. The term
“controlling interest” as used herein means actual working control in whatever
manner exercised.
c.
The City
shall have such time as is permitted by applicable federal law in which to
review a transfer request, but in no event less than one hundred twenty (120)
days.
d.
In the
event of any proposed sale, transfer, corporate change, or assignment pursuant
to Subparagraph (a) or (b) of this Section, the City shall have the right to
purchase Grantee’s System. The City shall
have the right to purchase for the price which the proposed assignee or
transferee agreed to pay. In any other
event, the City shall have the right to purchase the system for an equitable
price upon such commercially reasonable terms as may be agreed to by the City
and Grantee.
SECTION 10.
PROTECTION OF INDIVIDUAL RIGHTS
1.
Discriminatory
Practices Prohibited. Grantee shall not deny service, deny access,
or otherwise discriminate against Subscribers or general citizens on the basis of
race, color, religion, national origin, sex, age, and status as to public
assistance, affectional preference, or
disability. Grantee shall comply at all
times with all other applicable federal, state, and local laws, and all
executive and administrative orders relating to nondiscrimination.
2.
Subscriber
Privacy.
a.
Grantee shall
comply with the subscriber privacy-related requirements of 47 U.S.C. §
551. No signals including signals of a
Class IV Channel may be transmitted from a Subscriber terminal for purposes of
monitoring individual viewing patterns or practices without the express written
permission of the Subscriber. Such
written permission shall be for a limited period of time not to exceed one (1)
year, which may be renewed at the option of the Subscriber. No penalty shall be invoked for a
Subscriber’s failure to provide or renew such authorization. The authorization shall be revocable at any
time by the Subscriber without penalty of any kind whatsoever. Such permission shall be required for each type
or classification of Class IV Channel activity planned for the purpose of
monitoring individual viewing patterns or practices.
b.
No lists of the
names and addresses of Subscribers or any lists that identify the viewing
habits of Subscribers shall be sold or otherwise made available to any party
other than to Grantee and its employees for internal business use, and also to
the Subscriber subject of that information, unless Grantee has received
specific written authorization from the Subscriber to make such data
available. Such written permission shall
be for a limited period of time not to exceed one (1) year, which may be
renewed at the option of the Subscriber.
No penalty shall be invoked for a Subscriber’s failure to provide or
renew such authorization. The
authorization shall be revocable at any time by the Subscriber without penalty
of any kind whatsoever.
c.
Written
permission from the Subscriber shall not be required for the conducting of
Cable System-wide or individually addressed electronic sweeps for the purpose
of verifying network integrity or monitoring for the purpose of billing. Confidentiality of such information shall be
subject to the provision set forth in Subparagraph (b) of this Section.
SECTION 11.
MISCELLANEOUS PROVISIONS
1.
Franchise
Renewal. Any renewal of this Franchise shall be
performed in accordance with applicable federal, state and local laws and
regulations. The term of any renewed
Franchise shall be limited to a period not to exceed fifteen (15) years.
2.
Amendment of Franchise
Ordinance. Grantee and the City may agree, from time to
time, to amend this Franchise. Such
written amendments may be made subsequent to a review session pursuant to
Section 7.5 or at any other time if the City 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, provided, however, nothing herein
shall restrict the City’s exercise of its police powers.
3.
Preemption. If any
section, sentence, paragraph, term, or provision hereof is preempted or superceded by the FCC or any other agency with jurisdiction
over the subject matter of this Franchise, then to the extent such agency’s
action shall preempt and supercede the City’s
jurisdiction, such section, sentence, paragraph, term, or provision shall be
unenforceable.
4.
Severability. If any section, sentence, paragraph, term, or
provision hereof is determined to be illegal, invalid, or unconstitutional by
any court of competent jurisdiction over the subject matter of this Franchise,
then such provision shall be invalid and unenforceable.
5.
Compliance
with Federal, State and Local Laws. Grantee and the City shall conform to state
laws and rules regarding cable communications not later than one year after they
become effective, unless otherwise stated, and to conform to federal laws and
regulations regarding cable as they become effective.
6.
Force Majeure. In the event Grantee’s performance of any of
the terms, conditions, obligations or requirements of this Franchise is
prevented due to a cause beyond its control, such failure to perform shall be
excused for the period of such inability to perform.
7.
Nonenforcement by
City.
Grantee shall not be relieved of its obligations to comply with any of the
provisions of this Franchise by reason of any failure or delay of the City to
enforce prompt compliance. The City may
only waive its rights hereunder by expressly so stating in writing. Any such written waiver by the City of a
breach or violation of any provision of this Franchise shall not operate as or
be construed to be a waiver of any subsequent breach or violation.
8.
Rights
Cumulative. All rights and remedies given to the City by
this Franchise or retained by the City shall be in addition to and not
exclusive of any and all other rights and remedies, existing or implied, now or
hereafter available to the City, at law or in equity.
9.
Grantee
Acknowledgment of Validity of Franchise. Grantee acknowledges that it has had an
opportunity to review the terms and conditions of this Franchise and that under
current law Grantee believes that said terms and conditions are not
unreasonable or arbitrary, and that Grantee believes the City has the power to
make the terms and conditions contained in this Franchise.
SECTION 12.
PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND
EXHIBITS
1.
Publication:
Effective Date. This Franchise shall be published in
accordance with applicable local and
2.
Acceptance.
a.
Grantee shall
accept this Franchise within thirty (30) days of its enactment by the City,
unless the time for acceptance is extended by the City. Such acceptance by the Grantee shall be
deemed the grant of this Franchise for all purposes provided.
b.
Upon acceptance
of this Franchise, Grantee shall be bound by all the terms and conditions
contained herein. In the event
acceptance does not take place, or should all ordinance adoption procedures and
timelines not be completed, this Franchise and any and all rights previously
granted to Grantee shall be null and void.
c.
Grantee shall
accept this Franchise in the following manner:
i. This
Franchise will be properly executed and acknowledged by Grantee and delivered
to the City.
ii. With
its acceptance, Grantee shall also deliver any grant payments, performance bond
and insurance certificates required herein that have not previously been
delivered.
Passed and adopted this
_______day of __________________2002.
______________________________
MAYOR
ATTEST:
__________________________
CITY
ADMINISTRATOR
ACCEPTED: This
Franchise is accepted and the undersigned agrees to be bound by its terms and
conditions.
Dated: ________________________
TEKSTAR COMMUNICATIONS, INC. DBA ARVIG
COMMUNICATON SYSTEMS (ACS)
By: ________________________
Its:_________________________
Published in the this ____ day of ________________,
2002.
Exhibit
A
Franchise
Fee
Upon Grantee’s acceptance of this Franchise, and for the year 2002, the
Franchise Fee shall be in the amount of 3% of Grantee’s Gross Revenues.
As provided in the Franchise, the Franchise fee may be modified by
Council Resolution. However, the Council
hereby agrees that the Franchise fee shall not be increased for a period of
five years from the effective date of this franchise agreement. Any such Resolution shall be attached to
this Franchise and shall replace this Exhibit A.
Exhibit B
Video Programming
.
* * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * * *
GAS FRANCHISE
ORDINANCE
NO. 202
AN ORDINANCE
GRANTING TO PEOPLES NATURAL GAS, A DIVISION OF UTILICORP UNITED INC., A
DELAWARE CORPORATION, ITS SUCCESSORS AND ASSIGNS, PERMISSION TO OPERATE A GAS
PUBLIC UTILITY AND MAINTAIN ITS GAS DISTRIBUTION SYSTEM CONSTRUCTED IN THE CITY
OF DETROIT LAKES AND TO ENLARGE, OPERATE, REPAIR AND MAINTAIN SAID SYSTEM IN
THE CITY OF DETROIT LAKES, MINNESOTA, THE NECESSARY PIPES, MAINS AND
APPURTENANCES FOR THE TRANSMISSION OR DISTRIBUTION OF GAS TO SAID CITY AND ITS
INHABITANTS AND OTHERS AND TRANSMITTING GAS INTO AND THROUGH SAID CITY AND TO
USE THE PUBLIC WAYS AND PUBLIC GROUNDS OF SAID CITY FOR SUCH PURPOSE; AND
PRESCRIBING CERTAIN TERMS AND CONDITIONS THEREOF.
THE CITY
COUNCIL OF THE CITY OF
NOW THEREFORE BE IT RESOLVED THAT, the City of Detroit Lakes,
1.1 In this
1.2 "Company or Peoples Natural Gas" means
Peoples Natural Gas, a division of UtiliCorp United
Inc. a Delaware Corporation.
1.3 "Effective Date" means the effective date
of this Ordinance, that is, upon adoption and publication, as provided by law.
1.4 "Franchise" means the grant of rights made
by City to Company in this Ordinance, subject to its terms and conditions.
1.5 "Gas" as used herein shall include natural
gas, manufactured gas, a mixture thereof or other form of gaseous energy.
1.6 "MPUC" refers to the Minnesota Public Utilities Commission or any successor
regulatory agency.
1.7 "Notice" means a writing
served personally or by certified, receipted mail by any party or parties on
any other party or parties. Notice to Company shall be served upon the Vice
President, Customer Operations, UtiliCorp United
Inc.,
1.8 "Public Grounds" means all real property
owned by or dedicated to the City with respect to which City holds the legal
right or title to grant or withhold easement, leasehold or occupancy rights or
servitudes to Company;
1.9 "
2.1 City hereby grants and conveys to Company the following
rights and privileges within the City as its boundaries presently exist and as
they may be extended in the future:
(a) The right
and privilege to operate, construct and maintain a gas public utility; and
(b) The right to occupy and utilize the public ways and
public grounds of City for the purpose of enlarging, extending, operating,
repairing and maintaining, in, on, over, under, and across the same, all gas
pipes, mains, and appurtenances which are necessary or customary in accordance
with sound utility practices for the purpose of the transmission of gas, or the
distribution of gas, for public and private use;
subject, however, to the provisions of this
ordinance, zoning ordinances, other applicable ordinances, permit procedures
and customary and necessary City practices and the due exercise of the police
power of the City to adopt and enforce resolutions and ordinances necessary to
the health, safety and welfare of the public.
2.2 The rights and privileges granted by the Franchise
shall remain in effect for a period of twenty (20) years from the effective
date hereof. Provided however, on the
tenth (10th) or fifteenth (15th) anniversary from the
date of enactment of the Franchise, City or Company may, for good cause, review
the Franchise and propose amendments thereto.
City or Company shall notify the other party in writing, no later than
one hundred and eighty (180) days before the tenth (10th) or
fifteenth (15th) anniversary of the effective date if it desires to
amend the Franchise. City and Company
shall negotiate in good faith to agree upon mutually satisfactory
amendment(s). If no mutually
satisfactory amendment can be reached, then either City or Company may
terminate this Franchise. The Franchise
shall continue as written, unless amended or terminated as provided in this
Article.
2.3 This Franchise is not an exclusive franchise.
Upon receipt
and acceptance of a valid application for service, Company shall, subject to
its reasonable economic feasibility criteria, provide such reasonable
extensions of its mains and pipes from time to time as are required to serve
City and customers within the current and future limits of the City. If such
extensions are governed by any Company tariff on file with the MPUC, Company
shall provide City (a) with a copy of said tariff, and (b) notice of any
proposal by Company to change the provisions of such tariff related to the
extensions. Company shall apply any such tariff in a reasonable and liberal
fashion so as to promote and maximize commerce and development within City, to
the full extent permitted by law. In the event Company proposes any charge for
such extensions (sometimes referred to as aids to construction) or in the event
Company proposes to refuse to provide such extension, notice of said proposed
charge or refusal shall be promptly provided to City upon request by City.
4.1 Whenever the Company desires to open or disturb any of
the public ways or public grounds for the purpose of maintenance, repair or laying of gas mains or pipes, it shall give the City
reasonable advance notice, but not less than two (2) business days, by filing a
written notice with the Street Commissioner. In any case, Company shall not
commence such work before obtaining an appropriate permit or other written
consent from the City. The Company shall not, during the progress of the work,
endanger or unnecessarily obstruct the passage of traffic or the normal and
customary use of the public ways or public grounds, and it shall, promptly and
diligently, restore said properties to as good condition as it was before the
excavations were made; provided, however, the Company shall in no case
interfere with any improvements being made by the City without the consent of
the City. During the progress of such work, Company shall keep the public ways
or public grounds affected guarded in order to prevent accidents to persons or
property. If Company fails to promptly restore the premises disturbed within
thirty (30) days of notice by City, City may do so at the expense of Company
and upon City's demand Company shall pay the City’s reasonable cost of repair
together with its administrative expense and overhead associated with the
repair, plus 10% of such cost of repair, administrative expense, and overhead
as reasonable liquidated damages.
4.2 The requirements for obtaining permits from the City
prior to any maintenance or repair of any of the facilities of Company shall not
apply to routine maintenance or repairs where excavation is not required or
emergency situations where it is necessary for Company to act immediately to
remedy a situation that jeopardizes the public health or safety. In such
emergency situations, however, Company shall as soon as practicable notify the
City of such emergency situation and the efforts required to be taken by it to
remedy such situation and file its request for permit not later than the second
(2nd) business day thereafter.
4.3 Company shall provide field locations for all its
underground facilities when requested by City within a reasonable period of
time. The period of time will be considered reasonable if it compares favorably
with the average time required by City to locate municipal underground
facilities for Company.
4.4 Before Company constructs any new structure or
converts any existing structure for the manufacture or storage of gas within
the City, Company shall first obtain the approval of the structure and the
location thereof from the City. Such approval by City shall not be unreasonably
withheld.
5.1 In the event the City reasonably determines that it
is necessary for Company to move any part of its system of mains, pipes,
conduits, and other necessary attachments and appurtenances for the storage
conveyance, distribution, and sale of gas because the City has determined to
change, move or improve its public ways or public grounds for a public purpose,
upon reasonable notice by the City to Company, Company will move its facilities
at its sole cost, if such move is necessary to prevent interference and not
merely for the convenience of the City.
If the City orders or requests the Company to relocate its facilities or
equipment primarily for non-public purposes or the primary benefit of a
commercial or private project, or as a result of the initial request of a
commercial or private developer or other non-public entity, and such removal is
necessary to prevent interference and not merely for the convenience of the
City or other right-of-way user, the Company shall receive payment from the
commercial or private developer or other non-public entity for the cost of such
relocation as a precondition to relocating its facilities or equipment. City
shall consider reasonable alternatives in designing its public works projects
so as not to arbitrarily cause the Company unreasonable additional expense in
exercising its authority under this Section 5.1. This Section 5.1 does not
compel a waiver by Company nor constitute a taking by City of any written grant
of easement to Company or any prescriptive rights acquired by Company as
provided by law by way of adverse possession independent of and without
reliance by Company on this Franchise or any prior franchise adopted by City.
5.2 Any relocation, removal or rearrangement of any
Company facilities made necessary because of the extension into or through City
of a federally aided highway project shall be governed by the provisions of
Minnesota Statutes Section 161.46 as supplemented or amended.
5.3 If a public way is vacated, improved or realigned
because of a renewal or redevelopment plan which is financially subsidized in
whole or in part by the Federal government, the reasonable nonbetterment
costs of Company's relocation or removal of its facilities shall not be the
obligation of Company if such costs under then prevailing law are the
obligation of the Federal government or any agency thereof.
5.4 Nothing contained herein shall relieve any third
party from liability arising out of their failure to exercise reasonable care
to avoid injuring Company's facilities while performing any work connected with
grading, regrading or changing the line of any public
way or with any construction on or adjacent to any public way. Provided,
however, this Section 5.4 shall not limit City's rights to indemnification
under Section 6.1 nor shall City in any way be liable to Company for claims
arising from the negligence of any third party.
6.1 If at any time any claim of any kind is made against
City for the injury to persons or property arising from the negligent or
otherwise wrongful acts or omissions or failure to act of Company, its agents,
servants, its independent contractors, or employees in connection with the
operations of the Company under and pursuant to this Franchise, Company shall
fully indemnify and hold the City, its agents, servants or employees harmless
from any and all such claims, including, but not by way of limitation, reimbursement
of any reasonable expenses City may incur in the handling, denial, or defense
of such claims, including, but not by way of limitation, reasonable attorneys
fees and costs; provided, however, that, in case suit is instituted against the
City, the City shall promptly notify the Company of such suit, giving the
Company ample and reasonable time to appear and defend the same. Company's
obligation to indemnify City shall not extend to any injury to persons or
property caused by the negligent act or failure to act of City or any actions
of Company taken pursuant to directions of City if reasonably performed within
the scope of City's directions without negligence by Company. If Company elects
to defend City, it will thereafter have complete control of such litigation,
but Company may not settle such litigation without the consent of City, which
consent shall not be unreasonably withheld. This section is not, as to third
parties, a waiver of any defense or immunity otherwise available to City; and
Company, in defending any action on behalf of City shall be entitled to assert
in any action every defense or immunity that City could assert in its own
behalf. Company's indemnification obligations under this Section 6.1 shall
survive the expiration, amendment or termination of this Franchise Ordinance.
6.2 At the request of City, Company shall furnish City a
summary of insurance carried by the Company to adequately protect the City from
any and all obligations, liabilities, or claims of any nature whatsoever, growing
out of the operation, construction, and maintenance of its gas plant and gas
distribution system within the City.
6.3 In its operations under this Ordinance, the Company shall
observe all federal, state and local laws, rules, regulations and orders with
respect to the discharge, generation, removal, transportation, storage and
handling of all materials, substances and wastes deemed toxic or hazardous to
health, natural resources or the environment pursuant thereto ("Hazardous
Substances"). Company shall remove or remediate any Hazardous Substances
located on, in or surrounding its gas distribution facilities or caused by
Company to be located on, in or surrounding the public ways and public grounds
or elsewhere within the City in compliance with all applicable laws,
regulations and lawful governmental orders, and pay or cause to be paid all
costs associated therewith. The indemnification terms and conditions of Section
6.1 shall apply to all claims made against City by any person including any
governmental agency who or which asserts any right to costs, damages or other
relief based upon the terms and conditions imposed upon Company under this
Section 6.3 or which arise from or are related to Company's negligent or
otherwise wrongful acts or omissions or failure to act in compliance with any
law, rule, regulation or lawful order governing Hazardous Substances.
The City
shall give the Company at least two weeks prior written notice of a proposed
vacation of a public way. Except where ordered pursuant to Section 5.1, the
vacation of any public way, after the installation of gas facilities, shall not
operate to deprive Company of its rights to operate and maintain such gas
facilities, until the reasonable cost of relocating the same and the loss and expense resulting from such relocation are first paid to
Company. In no case, however, shall City be liable to the Company for failure
to specifically preserve a right‑of‑way, in the exercise of its
authority under Minnesota Statutes, Section 160.29.
Upon prior written request of the
City, the Company shall file annually with the Administrator, not later than
four (4) calendar months after the close of such calendar year of Company the
certified annual financial statement of Company showing the capitalization of
the Company, its profit and loss statements for the prior calendar year and its
balance sheet.
9.1 The gas service provided and the rates charged by
Company for gas service are, at the date hereof, subject to the jurisdiction of
the MPUC as provided in Minnesota Statutes, Chapter 216B. City reserves the
right to regulate the rates and terms and conditions of Company's gas service
within the City to the full extent permitted by law if and to the extent that
such regulation is not preempted by the regulatory authority of the State of
Minnesota or the Federal government, and Company reserves the right to
challenge any action thereto including the issue of jurisdiction by the
City. City and Company reserve their
respective rights generally and specifically granted pursuant to the laws of
Minnesota as adopted by the Legislature, the Constitution of the State of
Minnesota, and other law as interpreted by the Courts.
9.2 In the event Company shall at any time after the
Effective Date apply to the MPUC to change its rates or terms and conditions of
gas service, Company shall provide reasonable advance notice of such proposed
action, including Company's description of the effect of such proposal upon
City and customers of Company located within the City. City may elect to intervene in Company's
proceeding before the MPUC or any other court or agency involving Peoples
Natural Gas operations, for and on behalf of City or customers located within
City. City may petition the MPUC (or other state agency) to order Peoples
Natural Gas to reimburse City for its costs and fees incurred in said proceedings,
and Company reserves the right to challenge such intervention or petition.
10.1 The laws of the State of Minnesota as adopted by the
legislature and as interpreted by the courts, and the powers granted to Minnesota
cities by the constutution of the State of Minnesota
and other related legislation and decisional law, have authorized a requirement
for the payment of compensation to a city by the provider of natural gas
services in the form of the imposition of a city franchise fee to raise revenue
or to defray costs accruing as a result of such operations, or both, commonly
referred to as a franchise fee.
During the term of the Franchise,
and as a condition of its grant, a City franchise fee is hereby imposed on the
Company. Except as otherwise provided, the franchise fee shall be $ 1.00 per
month per meter, and $ .003 per 100 cubic feet of gas by volume, transported,
sold, furnished or delivered by Company within the current and future limits of
City, utilizing any of the services or facilities of Company.
Such fee shall be adjusted for net
write-off of uncollectible accounts, and corrections of bills theretofore
rendered. In addition, Company may
discount or reduce the franchise fee payable for gas delivered to a specific
customer of Company when it is required to reduce the franchise fee to retain
the business of that customer. Modification or reduction of the franchise fee
may occur only if the franchise fee would cause the customer to cease purchase
or transportation deliveries of natural gas from Company by installing
equipment to access natural gas from supplies not subject to the City's
franchise fee. The Company
may list the local franchise fee collected from customers as a
separate item on bills for utility service issued to customers.
The franchise fee shall be
effective ninety (90) days after written notice of this Ordinance to the
Company, and shall continue until amended or repealed during the term of this
Ordinance. Initial and final payments
shall be prorated for the portions of the periods at the beginning and end of
the term of this Ordinance.
10.2 The franchise fee shall be reported and paid to City
by Company on a monthly basis. Such
payment shall be made not more than thirty (30) days following the close of the
period for which payment is due. Company
shall provide information by customer class to City to show how fee was
determined.
10.3 By ordinance, the City may amend the franchise fee
language contained in this Article 10, including its rate structure and scope
of application. Such amendment to the franchise fee may be made without the
Company's acceptance or approval. The
City shall not adopt such amendments more often than once in any twelve (12)
consecutive calendar months and such amendment shall not be effective until 90
days after the City provides Notice to the Company that the City has adopted
the amending ordinance. Prior to
enacting such an amending ordinance, the City will provide Notice to the
Company regarding the City’s intent to consider amendments to the franchise fee
and will solicit input from the Company regarding the ability of the Company’s
billing system to accommodate such amendments.
The City will not adopt amendments to the franchise fee that cannot be
reasonably accommodated by the Company’s billing capabilities, nor will the
City adopt amendments to other provisions of this franchise without acceptance
or approval of Company.
10.4 If for any reason the time and manner of collecting,
or any aspect of the franchise fee or any other payment to be made to City
pursuant to this Franchise, is challenged by or before the MPUC, the Company
shall promptly give notice to City and shall, in any case, diligently and continuously exercise its efforts to sustain
said fee and payments and the time and manner of its collection. If at any time
the MPUC, or other authority having proper jurisdiction, prohibits such
recovery, then the Company will no longer be obligated to collect and pay the
franchise fee herein contemplated. The
Company agrees to make its records related to the calculation and payment of
the franchise fee available for inspection by the City at reasonable times.
10.5 If for any reason the amount or rate of the franchise
fee shall be determined to be in excess of the amount or rate allowed by law,
then the amount or rate shall automatically, and without further action by City
or Company, be reduced to the maximum amount or rate permitted by law.
Company reserves the right to
transfer or assign any interest in this franchise, in accordance with the rules
and regulations of the MPUC. All rights,
privileges and authority hereby granted to Company shall inure to the benefit
of its successors and assigns, subject to all the terms, provisions and
conditions herein contained, and all obligations hereby imposed upon Company
shall be binding upon its successors and assigns.
12.2
The City will not provide public access to Government Data relating to the
Company or its operations except as provided by the Act or by regulatory agency
rule or other law.
12.3 At the time that it provides any
data to the City, the Company will specifically identify data that it claims to
be private, protected, non-public, or confidential, or that is otherwise
precluded from public release by the Act, regulatory agency rule, or other
law. At such time, the Company will also
identify the provisions of the Act, regulatory agency rule or other law that
preclude public release of such data.
12.4
As provided by Minnesota Statute 13.072, the Company may request an advisory
opinion from the Commissioner of the Minnesota Department of Administration
regarding the classification of Government Data relating to the Company. The City will abide by such an advisory
opinion of the Commissioner, except as otherwise required or provided by law. Regulatory agency rule, or court decision or other advisory opinion
of the Commissioner.
The Franchise shall be effective after adoption and publication as
provided by law and the City has received the prior written acceptance of
Company. Company shall bear the costs of publication of this Franchise
Ordinance and any amendment hereto and upon City's request shall make a
sufficient deposit with the City Administrator to assure publication prior to
adoption. Company shall, if it accepts this Franchise and the rights and
obligations hereby granted, file a written acceptance of the rights hereby
granted with the City Administrator within thirty (30) days after the final
passage and any required publication of this Ordinance. Failing to receive such
acceptance, this Ordinance shall be deemed null and void. An amendment to this
Ordinance shall be subject to Company's acceptance.
Upon written request of the City,
Company shall file a report with the City if Company makes contributions or
expenditures, other than usual civic, charitable contribution, and normal
authorized business expenses in an aggregate amount in excess of $10,000 in any
calendar year as for the purpose of directly influencing any resident or
elected or appointed official of the city with respect to the Franchise or the
subject matter thereof; provided, however, that Company shall not be required
to disclose contributions or expenditures related to actual or anticipated
action of the City, its residents, elected or appointed officials, or any other
party promoting, encouraging, or advancing Municipal takeover (i.e. condemnation) of Company’s property
located in and around the City. The City
may not limit or restrict Company’s contributions or expenditures in any manner
not permitted by state or federal law.
Article 15. Defaults
If Company shall be in default in the
performance of any of the material terms and conditions of this Ordinance, and
shall continue in default for more than thirty (30) days (or fails to initiate
the cure of the default within said period and diligently pursue said cure, if
the cure of the default cannot reasonably be accomplished within said 30 days)
after receiving notice from the City of such default, the City may, following a
public hearing thereon, elect to either cure such default and charge Company
for the costs thereof, or seek equitable relief for the enforcement of this Ordinance.
The said notice of default shall be in writing, shall specify the provisions of
this Ordinance and the performance of which it is claimed that Company is in
default and the date of the public hearing required to be held, which date
shall be not less than thirty (30) days nor more than sixty (60) days from the
date of such notice. Such notice shall be served in the manner provided by the
laws of
It shall not be a breach or default under this franchise if either party
fails to perform its obligations hereunder due to Force Majeure. Force Majeure shall
include, but not be limited to, the following:
1) physical events such as acts of God, landslides, lightning,
earthquakes, fires, freezing, storms, floods, washouts, explosions, breakage or
accident or necessity of repairs to machinery, equipment or distribution or
transmission lines; 2) acts of others
such as strikes, work-force stoppages, riots, sabotage, insurrections or wars; 3) governmental actions such as necessity for
compliance with any court order, law, statute, ordinance, executive order, or
regulation promulgated by a governmental authority having jurisdiction; and any
other causes, whether of the kind herein enumerated or otherwise not reasonably
within the control of the affected party to prevent or overcome. Each party shall make reasonable efforts to
avoid Force Majeure and to resolve such event as
promptly as reasonably possible once it occurs in order to resume performance;
provided, however, that this provision shall not obligate a party to settle a
labor strike.
This Franchise is granted and is
intended to be performed in the State of
Article 18. Severability
If any clause, sentence or
section of this Ordinance is deemed invalid, the remaining provisions shall not
be affected.
Article 19. Non Waiver
Any waiver of any
obligation or default under this Ordinance shall not be construed as a waiver
of any future defaults, whether of like or different character.
Article 20.
Repeal of Conflicting Ordinances
All ordinances or franchises or parts of ordinances or
franchises in conflict herewith are hereby repealed.
Passed and adopted this 1st day of August, 2000
Approved this 1st day of August, 2000
________________________
Mayor
__________________________
City Clerk
First
Second
Published: August 9, 2000