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CHAPTER 3 Article 1 – Telephone Section
3.1.01
Right to Use Street Golden
West, a corporation, its successors and assigns, are hereby granted the right to
use and occupy the streets, alleys, and other public places of the City for the
purpose of constructing, maintaining, and operating a general telephone and
telegraph system within said City.
Section
3.1.02
Rights Granted The
rights herein granted are subject to the exercise of the police power as the
same now is or may hereafter be conferred upon said City.
Section
3.1.03
Binding Contract This
Article shall be in full force and effect and shall constitute a binding
contract between the City and Golden West when the same shall have been approved
by majority of the electors of said City voting thereon at the election provided
for herein, and when the provisions hereof shall have been accepted in writing
by Golden West and such acceptance filed with the City Finance Officer.
Article 2 – Cable TV Section
3.2.01
Grant of Non-Exclusive Authority In
consideration of its past performance in operating the cable television system
in the City and the performance and observance of the conditions which are
hereinafter specified, the non-exclusive right is hereby continued, extended and
granted to Mid-continent Cable Systems Company of South Dakota and to its
successors, assigns, or designees, to erect, maintain, and operate in, under,
over, along, across, and upon the present and future streets, lanes, avenues,
sidewalks, alleys, bridges, highways, easements dedicated for compatible uses
and other public places in the City and subsequent additions thereto, towers,
poles, lines, cables, wires, manholes, and all other fixtures and equipment
necessary for the maintenance and operation in the City of a cable television
system for the purpose of transmission and distribution of audio, visual,
electronic and electric impulses in order to furnish television and radio
programs and various other communications services to the public by what is
commonly called a Community Antenna Television System, for a period of
twenty-four (24) years, expiring October 19, 2011. The right to
use and occupy said streets, alleys, public ways, and places for the purposes
herein set forth shall not be exclusive.
Section
3.2.02
Compliance The
Grantee shall, during the term hereof, except in those areas that have been
preempted by the Cable Communications Policy Act of 1984 or which are regulated
by the Federal Communications Commission, be subject to all lawful exercise of
the regulating and police powers of the City.
Section
3.2.03
Territorial Area This
Article relates to the present territorial limits of the City and to any area
annexed thereto during the term of this Ordinance.
Section
3.2.04
Liability and Indemnification Grantee
shall, at all times, keep in effect the following types of insurance coverage: A.
Workmen's Compensation upon its employees engaged in any manner in the
installation or servicing of its plant and equipment within the City. B.
Property Damage Liability insurance to the extent of two hundred fifty
thousand (250,000) dollars as to each occurrence and two hundred fifty thousand
(250,000) dollars aggregate, and personal injury liability insurance to the
extent of five hundred thousand (500,000) dollars as to each occurrence and five
hundred thousand (500,000) dollars aggregate. Excess bodily injury and property damage of one million
(1,000,000) dollars each occurrence and one million (1,000,000) dollars
aggregate. Automobile bodily injury
and property damage liability combined one million (1,000,000) dollars each
occurrence. Grantee shall
indemnify, protect, and save harmless the City from and against losses and
physical damage to property and bodily injury or death to persons, including
payments made under any Workman's Compensation Law which may arise out of the
erection, maintenance, presence, use or removal of said attachments or poles
within the City, or by any act of Grantee, its agents or employees.
Grantee shall carry insurance in the above described amounts to protect
the parties hereto from and against all claims, demands, actions, judgments,
costs, expenses, and liabilities which may arise or result, directly or
indirectly, from or by reason of such loss, injury or damage.
Grantee shall also carry such insurance as it deems necessary to protect
it from all claims under the Workmen's Compensation Laws in effect that may be
applicable to Grantee. All
insurance required shall be and remain in full force and effect for the entire
life of the rights granted hereunder. A
certificate evidencing such insurance shall be deposited with and kept on file
by the City Finance Officer. These damages
or penalties shall include, but shall not be limited to, damages arising out of
copyright, infringements, and all other damages arising out of the installation,
operation, or maintenance omission complained of is authorized, allowed, or
prohibited by this Article.
Section
3.2.05
System Channels Grantee will
construct, maintain, and operate a system with a minimum capacity of thirty-five
(35) channels (300 MHz). The
facilities used by the Grantee shall be capable of distributing color TV
signals, and when the signals the Grantee distributes are received in color,
they shall be distributed in color where technically feasible.
Section
3.2.06
Technical Standards Grantee shall
be governed by technical standards established by the FCC.
Section
3.2.07
Operation and Maintenance of System The Grantee
shall render efficient service, make repairs promptly, and interrupt service
only for good cause and for the shortest possible time.
Such interruptions, insofar as possible, shall be preceded by notice and
shall occur during periods of minimum use of the system.
Section
3.2.08
Service to Schools and City The Grantee
shall provide basic cable service to public and parochial school buildings
within the City, subject to the line extension provisions of Section 3.2.12, at
one junction terminal per building, for educational purposes upon request of the
school system. Grantee shall also
furnish to those buildings basic cable service to all sets connected within such
school to the terminal junction at no monthly service charge. Grantee
shall, subject to the line extension provisions of Section 3.2.12, also provide
to the City at four City-owned buildings other than nursing homes, apartments,
hospitals, or buildings at the airport, to be selected by the Council of the
City without charge, one junction terminal to each of said buildings at a
location therein to be selected by the City.
Grantee shall also furnish to those buildings, basic cable service to all
sets connected within such buildings to the terminal junction at no monthly
service charge. The Grantee
shall allocate on channel to the City as a public, educational or governmental
access channel. Until such time as
the City files a written request with Grantee for full-time use of the channel,
Grantee shall have the right to use the portion of the channel capacity that is
not being used by the City. Grantee
shall have a reasonable period of time after notification to vacate its use of
the channel. Grantee shall assist
the City in obtaining the necessary licenses and frequency clearance to enable
the City to use said channel.
Section
3.2.09
Emergency Use of Facilities In the case
of any emergency or disaster, the Grantee shall, upon request of the Mayor or
his designee, make available its facilities to the City for emergency use during
the emergency or disaster. If the
City wishes to operate a Civil Emergency Alert System on a plan that is mutually
acceptable to the City and Grantee and provides Grantee with the necessary
equipment for such system, Grantee will permit the system to be used on the
cable system.
Section
3.2.10
Safety Requirements The Grantee
shall, at all times, employ ordinary care and shall use and maintain commonly
accepted methods and devices for preventing failures and accidents which are
likely to cause damages, injuries or nuisances to the public.
Section
3.2.11
Limitations on Rights Granted A.
All transmissions and distribution structures, lines and equipment
erected by the Grantee within the City shall be so located as to cause minimum
interference with the proper use of streets, alleys and other public ways and
places, and to cause minimum interference with the rights and reasonable
convenience of property owners who join any of the said streets, alleys or other
public ways and places, and said poles or towers shall be removed by Grantee
whenever the City Superintendent or Engineer reasonably finds that the same
restrict or obstruct the operation or location of any future streets or public
places in the City. B.
Construction and maintenance of the transmission distribution system
shall be in accordance with the provisions of the National Electrical Safety
Code, prepared by the National Bureau of Standards, the National Electrical Code
of the National Board of Fire Underwriters, and such applicable ordinances and
regulations of the City affecting electrical installation, which may be
presently in effect, or changed by future ordinances. C.
In case of disturbance of any street, sidewalk, alley, public way, or
paved area, the Grantee shall, at its own cost and expense and in manner
approved by the City Superintendent or Engineer, replace and restore such
street, sidewalk, alley, public way, or paved areas in as good a condition as
before the work involving such disturbance was done.
Grantee shall not be required to pay a fee for street openings. D.
If at any time during the period of this Ordinance, the City shall
lawfully elect to alter or change the grade of any street, sidewalk, alley or
other public way, the Grantee, upon reasonable notice by the City, shall remove,
relay and relocate its poles, wires, cables, underground conduits, manholes and
other fixtures at its own expense. E.
The Grantee shall, on the request of any person holding a building moving
permit issued by the City or any person who wishes to remove trees or structures
from their property, temporarily raise or lower its wires to permit the moving
of buildings or tree removal. The
expense of such temporary removal or raising or lowering of the wires shall be
paid by the person requesting the same, and the Grantee shall have the authority
to require such payment in advance. The
Grantee shall be given not less than forty-eight (48) hours advance notice to
arrange for such temporary wire changes. F.
The Grantee shall have the authority to trim trees upon the overhanging
streets, alleys, sidewalks and public ways and places of the City so as to
prevent the branches of such trees from coming in contact with the wires and
cables of the Grantee, except that at the option of the City, such trimming may
be done by it or under its supervision and direction at the expense of the
Grantee. G.
Grantee shall, at its expense, protect, support, temporarily disconnect,
relocate on the same street, alley or public place, or remove from the street,
alley or public place, any property of Grantee when required by the City by
reason of traffic conditions, public safety, street vacation, freeway and street
construction, change of establishments of street grade, installation of sewers,
drains, water pipes, power lines, signal lines, and tracks or any other types of
structures or improvements by governmental agencies when acting in a
governmental or proprietary capacity, or other structure of public improvement;
provided, however, the Grantee shall in all cases have the privileges and be
subject to the obligations to abandon any property of Grantee in place as
hereinafter provided. H.
In all sections of the City where the City designates an area where all
presently above ground services are to be placed underground, the Grantee shall
place its wires underground on the same time schedule and on the same conditions
that are applicable to the providing of other above ground services in the
designated areas. I.
In the event that the use of any part
of the system is discontinued for any reason for a continuous period of twelve
(12) months, or in the event such systems or property has been installed in any
street or public place without complying with the requirements of this
Ordinance, or the rights granted hereunder have been terminated, cancelled or
have expired, Grantee shall, subject to the rights of the City to acquire or
transfer the system as specified in Section 3.2.17, promptly remove from the
streets, or public places all such property and poles of such in place.
In the event of such removal, Grantee shall promptly restore the street
or other area from which such property has been removed to a condition
satisfactory to the City. J.
Any property of Grantee to be abandoned in place shall be abandoned in
such a manner as the City may prescribe. Upon
permanent abandonment of the property of Grantee in place, it shall submit to
the City an instrument to be approved by the City, transferring to the City the
ownership of such property.
Section
3.2.12
Extension of Facilities Grantee shall
not be obligated to extend service beyond its existing system where it is not
economically feasible to do so, except upon payment by the person requesting
service of the capital costs incurred by the Grantee in bringing service to such
site. Grantee shall evaluate each
such request for service and file with the City a proposal, for its approval,
for furnishing service and the terms of repayment of the cost of furnishing such
service.
Section
3.2.13
Ownership and Removal of Facilities All cable and
passive equipment for cable television reception service installed by Grantee at
a subscriber's location shall remain the property of Grantee and Grantee shall
have the right to remove said cable and equipment. Upon termination of service to any subscriber, the Grantee
shall promptly remove all its above ground facilities and equipment from the
premises of such subscriber upon his request.
Section
3.2.14
Transfer of Article The Grantee
shall not assign this Article to another person without prior approval of the
Council, which approval shall not be unreasonably withheld.
Section
3.2.15
Payment to the City From and
after November 24, 1987, Grantee shall pay to the City annually the sum of three
(3) percent of the total annual gross subscriber revenues of said CATV system,
as compensation for the rights granted herein. "Gross
subscriber revenues" shall consist of those revenues derived from the
monthly service changes paid by subscribers for basic cable service and premium
pay services such as HBO. Subscriber
revenues shall not include revenues received as installation charges and fees
for reconnections, inspection, repairs, or modifications of any installations. Such payments
by Grantee to City shall be in lieu of any occupation tax, license tax, or
similar levy, and shall be paid annually. Nothing
herein contained, however, shall in any way relieve Grantee or its assigns or
successors from the obligation of paying property taxes to the City or any other
general taxes lawfully levied by the State of South Dakota or any governmental
subdivision of the State of South Dakota on the operation of Grantee. Grantee shall
pay the fee required in this Section on a monthly basis based on the preceding
year's gross subscriber revenues as shown by the auditor's statement. Grantee shall
file with the City, within ten (10) days after the completion of the independent
audit of Grantee's parent company, a statement prepared by the auditor showing
the gross subscriber revenues as defined herein. It shall be the duty of Grantee to pay to the City within
fifteen (15) days after the time for filing such statement, the balance due, if
any, for the operating year covered by such statement.
Section
3.2.16
Duration and Renewal The rights
granted to Grantee herein shall, except as provided in this Section, terminate
twenty-four (24) years from October
19, 1987, which shall be subject to renewal pursuant to the provisions of the
Cable Communications Policy Act of 1984, applicable to new ordinances that are
in the nature of a franchise. Pending
final completion of renewal proceedings, the Article shall remain in effect even
if the original fifteen (15) year term has expired. If this Article is not renewed or if it is revoked for cause
by the City, the transfer of Grantee’s system shall be governed by Section 627
of the Cable Communication Policy Act of 1984.
Section
3.2.17
Erection, Removal and Common Use of Poles
A.
No poles or other wire-holding structures shall be erected by the Grantee
without prior approval of the designated representative of the Council with
regard to locations, height, type or any other pertinent aspect, which approval
shall not be unreasonably withheld. However,
no locations of any pole or wire holding structure of the Grantee shall be
removed or modified by the Grantee at its own expense whenever the Council or
its designated representative determines that the public convenience would be
enhanced thereby. B.
Where poles or other wire-holding structures already existing in use in
servicing the City are available for use by Grantee and authorization is being
granted to Grantee to use the poles of the municipal power company, but it does
not make arrangements for such use, the Council may require the Grantee to use
such poles and structures if it determines that the public convenience would be
enhanced thereby and the terms of the use available to the Grantee are just and
reasonable. C.
Where the City or a public utility serving the City desires to make use
of poles or other wire-holding structures of the Grantee but agreement therefore
with the Grantee cannot be reached, the Council may require the Grantee to
permit such use for such consideration as is just and reasonable and upon such
terms as the Council determines the use would enhance the public convenience and
would not unduly interfere with the Grantee's position.
Section
3.2.18
Rates A.
Grantee shall at all times maintain on file with the City Finance Officer
a schedule setting forth all rates and charges to be made to subscribers for
Basic CATV Service, including installation charges. B.
During the term hereof, the City may regulate rates only if authorized to
do so by Federal Communications Commission Regulations and then such regulation
shall only be in accordance with the provisions of such regulations.
In
the event that the City has authority to regulate rates, the following
procedures shall be used:
1.
Before making any changes in the rates and charges to subscribers for
Basic CATV Service, Grantee shall file in writing with the City Finance Officer
a new proposed rate change at least thirty (30) days in advance of the proposed
effective date for such rate change. If
the City takes no action to set the proposed rate change for hearing, said
proposed rate changes shall become effective upon the expiration of the 30-day
notice period. 2.
If the Council wishes to hold a hearing on the proposed rate increase,
the hearing shall be held within forty-five (45) days of the filing of the
proposed rate increase by grantee. Following
the hearing, the Council shall take final action on the proposed increase within
thirty (30) days. C.
Any rate subject to regulation under the above provisions may be
increased without the approval of the City, at the discretion of Grantee by an
amount not to exceed five percent (5%) per calendar year.
In addition, Grantee shall have the right to pass along to subscribers
state and local sales taxes, programming cost increases and copyright fee
increases. D.
The monthly rate set forth in Section 3.2.18 (A) shall be payable in
advance. E.
The Grantee, shall not discriminate in rates between customers of the
same category except to the extent permitted by the Cable Communications Policy
Act of 1984, and Federal Communications Commission Regulations.
Section
3.2.19
Miscellaneous A.
Grantee's legal, financial, technical and other qualifications, and the
adequacy and feasibility of its construction arrangements, if any, have been
approved by the Council after consideration in a full public proceeding
affording due process to all interested person. B.
Complaints regarding the quality of service, equipment malfunctions, and
similar matters shall first be directed to Grantee's office.
Should Grantee fail to satisfy a complaint, it may then be directed to
the City Finance Officer for investigation.
The complaining party and
Grantee shall be afforded a reasonable opportunity to present written statements
of their position. The City Finance
Officer shall attempt to resolve the complaints and, if this cannot be achieved,
he shall submit a recommendation to the Council, which shall:
1.
Dismiss the complaint; or 2.
Specify corrective steps to be taken by Grantee. Appeal from
the Council's actions may be made to the appropriate judicial or administrative
forum.
Section
3.2.20
Modification of Obligations In addition
to any other remedies provided by law or regulation, grantee's obligations under
this Article may be modified, at its request, in accordance with Section 625 of
Cable Communications Policy Act of 1984, as it now exists, or as hereafter
amended.
Section
3.2.21
Unauthorized Receipt of Service, Tampering, and Damage to Property It shall be
unlawful for any person to obtain any cable television services from Grantee,
any firm, or private person, without paying the required fee therefore, or by in
any way damaging grantee's property, or by installing, rearranging or tampering
with any facilities or equipment of grantee unless the same is done with the
written permission of Grantee.
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