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City Council Ordinance 183Ordinance No. 183 THE CITY OF Monticello , MINNESOTA, DOES ORDAIN AS FOLLOWS: ORDINANCE NO. 183 OF THE CITY ENTITLED CABLE COMMUNICATIONS ORDINANCE IS HEREBY AMENDED AS FOLLOWS: 1. ARTICLE III, Section 8 is amended by addition as follows: The Grantee its successors or assigns will not be required to implement the "narrow -casting requirements" until the earlier of (a) the renewal of the Franchise Ordinance by the City or the Commission, or (b) the sale or transfer of the system. 2. ARTICLE III, Section 9 is amended by addition as follows: The obligation of Grantee to implement a "regional channel" will be stayed and deferred for at least two years from the date of this Ordinance No. 183. Future stays or deferrals of this obligation are subject to further approval by the City. 3. ARTICLE VI, Section 4.B. is amended by addition as follows: (1) Throughout the term of this Franchise, Grantee shall pay to the City or its designee, within sixty (60) days after the end of each fiscal year of Grantee, an annual Franchise Fee of five percent (5%) of all Gross Revenues. EXHIBIT 1 Ordinance Amendment No. 183 This change in the annual Franchise Fee shall be effective as of September 1, 1989. No payment will be allowed of any Franchise Fee that is different from five percent (5%), other than the filing fee and payment required of the successful applicant as established by City to recover the cost of franchising and any other additional payments which are required by the terms of this Franchise. (2) Payment will be made to City or its designee with an itemization of the Gross Revenues. 4. ARTICLE VII, Section 4 is amended as follows: A. At the time of eeeeptdnee of this Frenehise; Grantee shall deliver to Eity Commission an irrevocable and unconditional Letter of Credit, in form and substance acceptable to the Eity Commission from a National or State bank approved by Eity Commission, in the amount of Ten Thousand Dollars ($10,000.00)Tr naming City as one of the drawers thereon_ B. The Letter of Credit shall provide that funds will be paid to City or Commission upon written demand of City or Commission and in an amount solely determined by City or Commission in payment for penalties charged pursuant to this section, in payment for any monies owed by Grantee pursuant to its obligations under this Franchise, or in payment for any damage incurred as a result of any acts or omissions by Grantee pursuant to this Franchise. - 2 - Ordinance Amendment No. 183 C. In addition to recovery of any monies owed by Grantee to City or Commission or damages to City or Commission as a result of any acts or omissions by Grantee pursuant to the Franchise, City or Commission in its sole discretion may charge to and collect from the Letter of Credit the following penalties: (1) For failure beyond the reasonable control of Grantee to complete System construction in accordance with Grantee's initial service area plan, unless City or Commission approved the delay, the penalty shall be Two Hundred Fifty Dollars ($250.00) per day for each day, or part thereof, such failure occurs or continues. (2) For failure to provide data, documents, re- ports or information after adequate notice or to co- operate with City or Commission during an application process or System review, the penalty shall be One Hundred Dollars ($100.00) per day for each day, or part thereof, such failure occurs or continues. (3) For failure to reasonably comply with any of the provisions of this Franchise for which a penalty is not otherwise specifically provided pursuant to this Paragraph C, the penalty shall be One Hundred Dollars ($100.00) per day for each day, or part thereof, such failure occurs or continues. (4) For failure to test, analyze and report on the performance of the System within sixty days following a MM Ordinance Amendment No. 183 request by City or Commission the penalty shall be One Hundred Dollars ($100.00) per day for each day, or part thereof, such failure occurs or continues. (5) For failure beyond the reasonable control of Grantee to modify the System or to provide additional services within sixty days after required by binding arbitration the penalty shall be Two Hundred Fifty Dollars ($250.00) per day for each day, or part thereof, such failure occurs or continues. (6) Forty-five days following notice from City or Commission of a failure beyond Grantee's reasonable control of Grantee to comply with operation or main- tenance standards and sixty days following notice from City or Commission of a failure beyond Grantee's reasonable control of Grantee to comply with construc- tion standards, the penalty shall be Two Hundred Fifty Dollars ($250.00) per day for each day, or part thereof, such failure occurs or continues. (7) For failure beyond the reasonable control of Grantee to provide the services Grantee has proposed or their equivalent, including but not limited to the implementation and the utilization of the access chan- nels and the making available for use of the equipment and other facilities, the penalty shall be Two Hundred Fifty Dollars ($250.00) per day for each day, or part thereof, such failure occurs or continues. - 4 - Ordinance Amendment No. 183 (8) Each violation of any provision of this Fran- chise shall be considered a separate violation for which a separate penalty can be imposed, but in no event shall the City or Commission maximum daily penalty exceed One Thousand Dollars ($1,000.00) per day. D. Whenever City or Commission finds that Grantee has violated one or more terms, conditions or provisions this Franchise, a written notice shall be given to Grantee informing it of such violation. At any time after twenty days following local receipt of notice provided Grantee remains in violation of one or more terms, conditions or provisions of this Franchise, in the sole opinion of City or Commission, City or Commission may draw from the Letter of Credit all penalties and other monies due City or Commission. E. Whenever a penalty has been assessed, Grantee may, within thirty days of local receipt of notice, notify City or Commission that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by Grantee to City or Commission shall specify with particularity the matters disputed by Grantee. (1) City or Commission shall hear Grantee's dispute at the next regularly scheduled Council or Commission meeting. City or Commission shall supplement the Council or Commission decision with written findings of fact. - 5 - Ordinance Amendment No. 183 (2) Upon determination by City or Commission that no violation has taken place, City or Commission shall refund to Grantee without interest all monies drawn from the Letter of Credit by reason of the alleged violation. F. If said Letter of Credit or any subsequent Letter of Credit delivered pursuant hereto expires prior to 15 months after the expiration of the term of this Franchise, it shall be renewed or replaced during the term of this Franchise to provide that it will not expire earlier than 15 months after the expiration of this Franchise. The renewed or replaced Letter of Credit shall be on the same form and with a bank authorized herein and for the full amount stated in paragraph A of this section. Failure to renew or replace the Letter of Credit shall be grounds for termination of this Franchise. G. If City or Commission draws upon the Letter of Credit or any subsequent Letter of Credit delivered pursuant hereto, in whole or in part, Grantee shall replace the same within fifteen days and shall deliver to City or Commission a like replacement Letter of Credit for the full amount stated in paragraph A of this section as a substitution of the previous Letter of Credit. H. If any Letter of Credit is not so replaced, City or Commission may draw on said Letter of Credit for the whole amount thereof and hold the proceeds, without interest, and use the proceeds to pay costs incurred by City or Commission Ordinance Amendment No. 183 in performing and paying for any or all of the obligations, duties and responsibilities of Grantee under this Franchise that are not performed or paid for by Grantee pursuant hereto, including attorneys' fees incurred by City or Commission in so performing and paying. The failure to replace any Letter of Credit may also, at the option of the City or Commission be deemed a default by Grantee under this Franchise. The drawing on the Letter of Credit by City or Commission and use of the money so obtained for payment or performance of the obligations, duties and responsibilities of Grantee which are in default, shall not be a waiver or release of such default. I. The collection by City or Commission of any damages, monies or penalties from the Letter of Credit shall not affect any other right or remedy available to City or Commission nor shall any act, or failure to act, by City or Commission pursuant to the Letter of Credit, be deemed a waiver of any right of City or Commission pursuant to this Franchise or otherwise. - 7 - Ordinance Amendment No. 183 Passed and adopted this 26th day of February 1 19-2-Q. ATTEST: CITY OF MONTICELLO By ��-- M y 6 r This Franchise, as amended, is accepted, and we agree to be bound by all its terms and conditions subject to federal, state and local laws. JONES INTERCABLE, INC. By Its Date: By Its Date: