HomeMy WebLinkAboutOrd. 466 - Cable FranchiseCITY OF ANDOVER
COUNTY OF ANOKA
STATE OF MINNESOTA
ORDINANCE NO. 466
AN ORDINANCE GRANTING A FRANCHISE TO QWEST BROADBAND SERVICES,
INC. D/B/A CENTURYLINK, TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE
SYSTEM IN THE CITY OF ANDOVER, MINNESOTA FOR THE PURPOSE OF PROVIDING
CABLE SERVICE; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE
FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM AND THE
PUBLIC RIGHTS-OF-WAY IN CONJUNCTION WITH THE CITY'S RIGHT-OF-WAY
ORDINANCE, IF ANY, AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE
PROVISIONS HEREIN.
The City Council of the City of Andover, Minnesota ordains:
STATEMENT OF INTENT AND PURPOSE
The City intends, by the adoption of this Franchise, to bring about the development of a competitive
Cable System, and the operation of it. Such development can contribute significantly to the
communication needs and interests of the residents and citizens of the City and the public generally.
Further, the City may achieve better utilization and improvement of public services and enhanced
economic development with the development and operation of a Cable System.
Adoption of this Franchise is, in the judgment of the Council, in the best interests of the City and its
residents.
FINDINGS
In the review of the franchise application by Grantee and negotiations related thereto, and as
recommended by the Quad Cities Cable Communications Commission and as a result of a public
hearing, the City Council makes the following findings:
1. The Grantee's technical ability, financial condition, legal qualifications, and
character were considered and approved in a full public proceeding after due notice
and a reasonable opportunity to be heard;
2. Grantee's plans for constructing, and operating the System were considered
and found adequate and feasible;
The Franchise granted to Grantee by the City complies with the existing applicable
Minnesota Statutes, federal laws and regulations; and
4. The Franchise granted to Grantee is nonexclusive.
SECTION 1.
SHORT TITLE AND DE
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I.I. Short Title. This Franchise Ordinance shall be known and cited as the
"CeuturyLink Cable Franchise Ordinance."
1.2 Definitions. For the purposes of this Franchise, the following terms, phrases,
words, abbreviations and their derivations shall have the meaning given herein.
When not inconsistent with the context, words used in the present tense include
the future tense; words in the plural number include the singular number; words in
the singular number include the plural; and the masculine gender includes the
feminine gender. Unless otherwise expressly stated, words not defined herein or in
the City Code shall be given the meaning set forth in applicable law and, if not
defined therein, the words shall be given their common and ordinary meaning.
The word "shall" is always mandatory and not merely directory. The word "may"
is directory and discretionary and not mandatory.
1.3 "Actual Cost' means the lowest legally -permissible incremental cost to the Grantee
of materials, capitalized labor, and borrowing necessary to install and construct
fiber-optic lines, coaxial cable and/or equipment.
1.4 "Affiliate" means any Person who owns or controls, is owned or controlled by, or is
under common ownership or control with the Grantee.
1.5 "Basic Cable Services" 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).
1.6 "Cable Service" or "Service" means (1) the one-way transmission to Subscribers
of video programming or other programming services; and (2) Subscriber interaction,
if any, which is required for the selection or use of such video programming or other
programming services. Cable Service shall also include any video programming
service for which a franchise from a local government is required under state law.
1.7 "Cable System" or "System" means the facilities of the Grantee, which, together
with the facilities of an affiliate of the Grantee, consist of a set of closed
transmission paths and associated signal generation, reception and control
equipment that is designed to provide Cable Service, which includes video
programming and which is provided to multiple Subscribers within the City. A
reference to the System in this Franchise refers to any part of such System including,
without limitation, Set Top Boxes as defined herein. The definition of "Cable
System" or "System" shall not be deemed to circumscribe or limit the valid authority
of the City to regulate or franchise the activities of any other communications
system or provider of communications service to the full extent permitted by law.
"Cable System" or "System" as defined herein shall not be inconsistent with the
definitions set forth in applicable law. Unless otherwise specified, the term shall
refer to the System utilized under this Franchise.
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1.8 "City" means City of Andover, Minnesota, a municipal corporation, in the
State of Minnesota, acting by and through its City Council, or its lawfully appointed
designee.
1.9 "City Code" means the Andover City Code, as amended from time to time.
1.10 "City Council' means the governing body of the City.
1.11 "Commission" means the Quad Cities Cable Communications Commission, a
municipal joint powers commission comprised of the municipalities of Andover,
Anoka, Champlin and Ramsey, Minnesota. In the event the City lawfully withdraws
from the Commission, any reference to the Commission in this Franchise shall
thereafter be deemed a reference to the City, and the rights and obligations related
thereto shall, where possible, accrue pro rata to the City, pursuant to a transition
agreement to be negotiated at such time by and between the City, the Commission
and the Grantee. The total burden of Grantee's obligations under this Franchise and
the Grantee's Franchise with the other member cities of the Commission shall not be
increased as a result of any such withdrawal.
1.12 "Demarcation Point" means the physical point at which the System enters a
Subscriber's home or building, or institution building receiving Service under this
Franchise.
1.13 "Drop" means the cable that connects the ground block on the Subscriber's residence or
institution to the nearest feeder cable of the System.
1.14 "Educational Access Channel" or "Educational Channel" means any channel on the
System set aside by the Grantee, the Commission and/or the City for Noncommercial
educational use by educational institutions, as contemplated by applicable law.
1.15 "FCC" means the Federal Communications Commission, its designee, and any legally
appointed, designated or elected agent or successor.
1.16 "Franchise" or "Cable Franchise" means this ordinance, as may be amended from time
to time, any exhibits attached hereto and made a part hereof, and the regulatory and
contractual relationship established hereby.
1.17 "Governmental Access Channel" or "Governmental Channel" means any channel
on the System set aside by the Grantee, the Commission and/or the City for
Noncommercial use by the City or its delegatee.
1.18 "Grantee" is Qwest Broadband Services, Inc. d/b/a CenturyLink, and its lawful
successors, transferees or assignees.
1.19 "Gross Revenue" means any and all revenues arising from or attributable to, or in any
way derived directly or indirectly by the Grantee or its Affiliates, subsidiaries, or parent, or
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by any other entity that owns or operates the System, from the provision of Cable
Services (including cash, credits, property or other consideration of any kind or nature).
Gross Revenues include, by way of illustration and not limitation, monthly fees charged to
Subscribers for any basic, optional, premium, per -channel, or per -program service, or other
Cable Service as defined under applicable law; Installation, disconnection, reconnection,
and change -in-service fees; Lockout Device fees; Leased Access Channel fees; late fees
and administrative fees; fees, payments or other consideration received from programmers for
carriage of programming on the System and accounted for as revenue under Generally
Accepted Accounting Principles (GAAP); revenues from rentals or sales of Set Top Boxes or
other equipment; fees related to commercial and institutional usage of the System; net
advertising revenues; interest; barter; revenues from program guides; franchise fees; and
revenues to the System from home shopping, bank -at-home channels and other revenue
sharing arrangements. Gross Revenues shall include revenues received by an entity other
than the Grantee, an Affiliate or another entity that operates the System where necessary to
prevent evasion or avoidance of the Grantee's obligation under this Franchise to pay the
franchise fee. Gross Revenues shall not include: (i) to the extent consistent with generally
accepted accounting principles, actual bad debt write-offs, provided, however, that all or part
of any such actual bad debt that is written off but subsequently collected shall be included
in Gross Revenues in the period collected; (ii) any taxes on services furnished by the Grantee
imposed by any municipality, state or other governmental unit, provided that franchise fees
shall not be regarded as such a tax; (iii) FCC regulatory fees; (iv) Subscriber credits,
adjustments or refunds; or (v) refundable Subscriber deposits.
1.20 "Installation" means the connection of the System from feeder cable to the point of
connection with the Subscriber Set Top Box or other terminal equipment.
1.21 "Leased Access Channel" means channels on the System which are designated or
dedicated for use by a Person unaffiliated with the Grantee pursuant to 47 U.S.C. § 532.
1.22 "Living Unit" means a distinct address as tracked in the QC network inventory database,
used by Grantee to identify existing or potential Subscribers. This includes, but is not limited
to, single family homes, multi -dwelling units (e.g., apartment buildings and condominiums)
and business locations.
1.23 "Lockout Device" means an optional mechanical or electrical accessory to a Subscriber's
terminal which inhibits the viewing of a certain program, certain channel, or certain
channels provided by way of the Cable System.
1.24 "Mosaic Channel" means a channel which displays miniaturized media screens and related
information for a particular group of channels with common themes. The Mosaic Channel
serves as a navigation tool for Subscribers, and, with respect to PEG Channels, displays the
group of access channels on a single channel screen and also provides for easy navigation to a
chosen access channel in the group.
1.25 "Remote Terminal' means a facility that is located in a neighborhood, which houses the
electronics used to support the provision of Cable Services.
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1.26 "Noncommercial' means, in the context of PEG channels, that particular products and
services are not promoted or sold. This term shall not be interpreted to prohibit a PEG
channel operator or programmer from soliciting and receiving financial support to produce
and transmit video programming on a PEG channel, or from acknowledging a contribution.
1.27 "Normal Operating Conditions" means those service conditions that are within the
control of the Grantee. Conditions that are ordinarily within the control of the Grantee
include, but are not limited to, special promotions, pay-per-view events, rate increases,
regular peak or seasonal demand periods, maintenance, or upgrade of the System. Conditions
that are not within the control of the Grantee include, but are not limited to, natural
disasters, civil disturbances, power outages, telephone network outages, and severe or
unusual weather conditions.
1.28 "PEG" means public, educational, and governmental.
1.29 "Person" means any individual, partnership, association, joint stock company,
joint venture, domestic or foreign corporation, stock or non -stock corporation, limited
liability company, professional limited liability corporation, or other organization of
any kind, or any lawful successor or transferee thereof, but such term does not
include the City.
1.30 "Public Access Channel(s)" means any channels on the System set aside by the
Grantee, the Commission and/or the City for Noncommercial use by the general public,
as contemplated by applicable law.
1.31 C" means Qwest Corporation, a wholly owned subsidiary of CenturyLink, Inc. and an
Affiliate of Grantee.
1.32 "Quad Cities Franchise Area" means the geographic area consisting of the
Minnesota cities of Andover, Anoka, Champlin and Ramsey.
1.33 "Qualified Living Unit" means a Living Unit which meets the minimum technical
qualifications defined by Grantee for the provision of Cable Service. A Living Unit
capable of receiving a minimum of 25 Mbps downstream will be generally capable of
receiving Cable Service subject to Grantee performing certain network grooming and
conditioning.
1.34 "Right -of -Way" or "Rights -of -Way" means the surface, air space above the surface
and the area below the surface of any public street, highway, lane, path, alley,
sidewalk, avenue, boulevard, drive, court, concourse, bridge, tunnel, park,
parkway, skyway, waterway, dock, bulkhead, wharf, pier, easement or similar
property or waters within the City owned by or under control of the City, or dedicated
for general public use by the City, including, but not limited to, any riparian right,
which, consistent with the purposes for which it was created, obtained or dedicated,
may be used foT the purpose of installing, operating and maintaining a System. No
reference herein to a "Right -of -Way" shall be deemed to be a representation or
guarantee by the City that its interest or other right to control or use such property
is sufficient to permit its use for the purpose of installing, operating and maintaining
the System.
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1.35 "Right -of -Way Ordinance" means any ordinance of the City codifying
requirements regarding regulation, management and use of Rights -of -Way in the
City, including registration, fees, and permitting requirements.
1.36 "Set Top Box" means an electronic device which converts signals to a frequency
acceptable to the television receiver of a Subscriber, and by an appropriate Channel
selector, also permits a Subscriber to view all signals included in the package purchased
by the Subscriber.
1.37 "Standard Installation" means any installation to a Qualified Living Unit
1.38 "State" means the State of Minnesota, its agencies and departments.
1.39 "Subscriber" means any Person who lawfully receives service via the System. In
the case of multiple office buildings or multiple dwelling units, the term
"Subscriber" means the lessee, tenant or occupant.
1.40 "System Upgrade" means the improvement or enhancement in the technology or service
capabilities made by the Grantee to the System as more fully described in this Franchise.
SECTION 2.
GRANT OF AUTHORITY AND GENERAL PROVISIONS
2.1 Grant of Franchise.
This Franchise is granted pursuant to the terms and conditions contained herein and in
applicable law. The Grantee shall comply with all provisions of this Franchise and
applicable laws, regulations and codes. Failure of the Grantee to construct, operate and
maintain a System as described in this Franchise, or to meet obligations and comply with
all provisions herein, may be deemed a violation of this Franchise.
2.2 Grant of Nonexclusive Authority.
2.2.1 Subject to the terms of this Franchise, the City hereby grants the Grantee the right
to own, construct, operate and maintain a System along the Rights -of -Way. The
grant of authority set forth in this Franchise applies only to the Grantee's provision
of Cable Service; provided, however, that nothing herein shall limit the Grantee's
ability to use the System for other purposes not inconsistent with applicable law or
with the provision of Cable Service; and provided further, that any local, State and
federal authorizations necessary for the Grantee's use of the System for other
purposes are obtained by the Grantee. This Franchise does not confer any rights
other than as expressly provided herein, or as provided by federal, State or local
law. No privilege or power of eminent domain is bestowed by this Franchise or
grant. The System constructed and maintained by Grantee or its agents pursuant to
this Franchise shall not interfere with other uses of the Rights -of -Way. The Grantee
shall make use of existing poles and other aerial and underground facilities
available to the Grantee to the extent it is technically and economically feasible to
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do so. However, the City and Grantee acknowledge that QC owns and operates
facilities in the Rights -of -Way which will be utilized by Grantee to provide Cable
Services. So long as QC does not provide Cable Service to Subscribers in the City,
QC will not be subject to applicable law and the terms and conditions contained in
this Franchise. QC's installation and maintenance of facilities in the Rights -of -
Way is governed by applicable local, state and federal law. To the extent Grantee
constructs and installs facilities in the Rights -of -Way, such facilities and operation
of such facilities will be subject to the terms and conditions contained in this
Franchise. The City and Company agree that to the extent QC violates any
applicable federal, state, or local laws, rules, and regulations, the City shall seek
compliance directly from QC. In the event, the City cannot resolve these violations
or disputes with QC, the City may look to Grantee to ensure such compliance.
Failure by Grantee to ensure QC's or any other Affiliate's compliance with
applicable local, state and federal laws, rules, and regulations shall be deemed a
material breach of this Franchise by Grantee.
2.2.2 Notwithstanding the above grant to use Rights -of -Way, no Right -of -Way shall be
used by the Grantee if the City determines that such use is inconsistent with the
terms, conditions, or provisions by which such Right -of -Way was created or
dedicated, or with the present use of the Right -of -Way.
2.2.3 This Franchise and the right it grants to use and occupy the Rights -of -Way shall
not be exclusive and this Franchise does not, explicitly or implicitly, preclude
the issuance of other franchises or similar authorizations to operate Cable
Systems within the City. Provided, however, that the City shall not authorize or
permit another Person to construct, operate or maintain a Cable System on material
terms and conditions which are, taken as a whole, more favorable or less burdensome
than those applied to the Grantee.
2.2.4 This Franchise authorizes only the use of Rights -of -Way. Therefore, the grant
of this Franchise and the payment of franchise fees hereunder shall not exempt
the Grantee from the obligation to pay compensation or fees for the use of City
property, both real and personal, other than the Rights -of -Way; provided, however,
that such compensation or fees are required by City ordinance, regulation or policy
and are nondiscriminatory.
2.2.5 Should any other multichannel video programming distributor ("MVPD") over
which the City has regulatory jurisdiction provide Cable Service in the current Cable
Service area, the City shall not grant more favorable terms, taken as a whole, to such
MVPD than are granted to the Grantee. In the event that another Person operates a
Cable System authorized by the City on terms and conditions that are, taken as a
whole, more favorable or less burdensome than the terms and conditions applicable
to the Grantee under this Franchise, the City shall adjust any such terms and
conditions in any other Person's authorization or this Franchise so that the terms
and conditions under which such Person operates, taken as a whole, are not more
favorable or less burdensome than those that are applied to the Grantee.
2.3 Lease or Assignment Prohibited.
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No Person may lease Grantee's System for the purpose of providing Cable Service until
and unless such Person shall have first obtained and shall currently hold a valid Franchise
or other lawful authorization containing substantially similar burdens and obligations to
this Franchise, including, without limitation, a requirement on such Person to pay franchise
fees on such Person's use of the System to provide Cable Services, to the extent there
would be such a requirement under this Franchise if the Grantee itself were to use the
System to provide such Cable Service. Any assignment of rights under this Franchise
shall be subject to and in accordance with the requirements of this Franchise.
2.4 Franchise Term.
The Franchise term shall commence on the Effective Date specified in this Franchise. The
term of this Franchise shall be ten (10) years from the Effective Date specified in this
Franchise.
25 Compliance with Applicable Laws, Resolutions and Ordinances.
2.5.1 The terms of this Franchise shall define the contractual rights and obligations of
the Grantee with respect to the provision of Cable Service and operation of
the System in the City. However, the Grantee shall at all times during
the term of this Franchise be subject to the lawful exercise of the police
powers of the City, the City's the right to adopt and enforce additional
generally applicable ordinances and regulations, and lawful and applicable
zoning, building, permitting and safety ordinances and regulations. The
grant of this Franchise does not relieve the Grantee of its obligations to
obtain any generally applicable licenses, permits or other authority as may
be required by the City Code, as it may be amended, for the privilege of
operating a business within the City or for performing work on City property
or within the Rights -of -Way, to the extent not inconsistent with this
Franchise. Except as provided below, any modification or amendment to
this Franchise, or the rights or obligations contained herein, must be within the
lawful exercise of the City's police powers, as enumerated above, in which
case the provision(s) modified or amended herein shall be specifically
referenced in an ordinance of the City authorizing such amendment or
modification. This Franchise may also be modified or amended with the
written consent of the Grantee as provided in this Franchise. In no event
shall the City adopt or amend any City ordinance or regulation so as to modify
the build out requirements set forth in Sections 4.3.1(ii) and 4.3.1(iii) herein
without the Grantee's consent.
2.5.2 The Grantee shall comply with the terms of any City ordinance or
regulation of general applicability which addresses usage of the Rights -of -
Way within the City which may have the effect of superseding, modifying
or amending the terms of Section 3 and/or Section 8.5.3 herein; except that
the Grantee shall not, through application of such City ordinance or
regulation of Rights -of -Way, be subject to additional burdens with respect to
usage of Rights -of -Way that exceed burdens on similarly situated Right -of -
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Way users. In no event shall the City adopt or amend any City ordinance or
regulation so as to modify the build out requirements set forth in Sections
4.3.1(ii) and 4.3.1(iii) herein without the Grantee's consent.
2.5.3 In the event of any conflict between Section 3 and/or Section 8.5.3 of this
Franchise and any lawfully applicable City ordinance or regulation which
addresses usage of the Rights -of -Way, the conflicting terms in Section 3
and/or Section 8.5.3 of this Franchise shall be superseded by such City
ordinance or regulation; except that the Grantee shall not, through
application of such City ordinance or regulation of Rights -of -Way, be
subject to additional burdens with respect to usage of Public Rights -of -Way
that exceed burdens on similarly situated Right -of -Way users. Section 4 of
this Franchise shall not be superceded by any allegedly conflicting provision
of a City ordinance or regulation.
2.5.4 In the event any lawfully applicable City ordinance or regulation which
addresses usage of the Rights -of -Way adds to, modifies, amends, or
otherwise differently addresses issues addressed in Section 3 and/or Section
8.5.3 of this Franchise, the Grantee shall comply with such ordinance or
regulation of general applicability, regardless of which requirement was first
adopted; except that the Grantee shall not, through application of such City
ordinance or regulation of Rights -of -Way, be subject to additional burdens
with respect to usage of Rights -of -Way that exceed burdens on similarly situated
Rights -of -Way users. Section 4 of this Franchise shall not be superceded by
any allegedly conflicting provision of a City ordinance or regulation.
2.5.5 In the event the Grantee cannot determine how to comply with any Right -of -Way
requirement of the City, whether pursuant to this Franchise or other requirement,
the Grantee shall immediately provide written notice of such question, including
the Grantee's proposed interpretation, to the City. The City shall provide a written
response within ten (10) business days of receipt indicating how the requirements
cited by the Grantee apply. The Grantee may proceed in accordance with its
proposed interpretation in the event a written response is not received within
thirteen (13) business days of mailing or delivering such written question.
2.6 Rules of Grantee.
The Grantee shall have the authority to promulgate such rules, regulations, terms and
conditions governing the conduct of its business as shall be reasonably necessary to enable
said Grantee to exercise its rights and perform its obligations under this Franchise and
applicable law, and to assure uninterrupted service to each and all of its Subscribers;
provided that such rules, regulations, terms and conditions shall not be in conflict with
provisions of this Franchise or applicable law.
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2.7 Territorial Area Involved.
This Franchise is granted for the corporate boundaries of the City, as they exist from time
to time.
2.8 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 the Grantee or the City's
designated Franchise administrator, or forty-eight (48) hours after it is deposited in the
United States mail in a sealed envelope, with registered or certified mail postage prepaid
thereon, addressed to the party to whom notice is being given, as follows:
If to City: City of Andover, Minnesota
Attn: City Administrator
1685 Crosstown Boulevard NW
Andover, MN 55304
With copies to: Executive Director
Quad Cities Cable Communications Commission
12254 Ensign Avenue North
Champlin, MN 55316
And to: Kennedy & Graven, Chartered
Attn: Robert J. V, Vose
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
If to Grantee: Qwest Broadband Services, Inc d/b/a CenturyLink
Attn: Public Policy
1801 California Street, 10"' Floor
Denver, Colorado 80202
With copies to: Qwest Broadband Services, Inc d/b/a CenturyLink
Attn: Public Policy
200 South Fifth Street, 21" Floor
Minneapolis, MN 55402
Such addresses may be changed by either party upon notice to the other party given as
provided in this Section.
2.10 Effective Date.
This Franchise shall become effective after: (i) all conditions precedent to its
effectiveness as an ordinance of the City have occurred; (ii) all conditions precedent to its
execution are satisfied; (iii) it has been approved by the City Council in accordance with
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applicable law; and (iv) it has been accepted and executed by the Grantee and the City
(the "Effective Date").
SECTION 3.
CONSTRUCTION STANDARDS
3.1 Registration, Permits and Construction Codes.
3.1.1 The Grantee shall strictly adhere to all applicable State and local laws,
regulations and policies adopted by the City Council applicable to the location,
construction, installation, operation or maintenance of the System in the City. The
City has the right to supervise all construction or installation work performed in the
Rights -of -Way as it shall find necessary to ensure compliance with the terms of this
Franchise and other applicable provisions of law and regulations.
3.1.2 Failure to obtain permits or to comply with permit requirements shall be
grounds for revocation of this Franchise, or any lesser sanctions provided
herein or in any other applicable law, code or regulation.
3.2 Restoration of Rights -of -Way and Property.
Any Rights -of -Way, or any sewer, gas or water main or pipe, drainage facility, electric,
fire alarm, police communication or traffic control facility of the City, or any other
public or private property, which is disturbed, damaged or destroyed by Grantee during
the construction, repair, replacement, relocation, operation, maintenance, expansion,
extension or reconstruction of the System shall be promptly and fully restored,
replaced, reconstructed or repaired by the Grantee, at its expense, to the same
condition as that prevailing prior to the Grantee's work, to the extent consistent with
applicable statutes and rules. It is agreed that in the normal course, with respect to
fire and police department facilities and equipment, and water and sewer facilities,
and other essential utilities and services, as determined by the City, such restoration,
reconstruction, replacement or repairs shall be commenced immediately after the
damage, disturbance or destruction is incurred, and the Grantee shall take diligent
steps to complete the same, unless an extension of time is obtained from the
appropriate City agency or department. In all other cases, reconstruction,
replacement, restoration or repairs shall be commenced within no more than three (3)
days after the damage, disturbance or destruction is incurred, and shall be completed
as soon as reasonably possible thereafter. If the Grantee shall fail to perform the
repairs, replacement, reconstruction or restoration required herein, the City shall
have the right to put the Rights -of -Way, public, or private property back into good
condition. In the event City determines that the Grantee is responsible for such
disturbance or damage, the Grantee shall be obligated to fully reimburse the City
for required repairs, reconstruction and restoration.
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3.3. Conditions on Right of Way Use.
3.3.1 Nothing in this Franchise shall be construed to prevent the City from
constructing, maintaining, repairing or relocating sewers; grading, paving,
maintaining, repairing, relocating and/or altering any Right -of -Way;
constructing, laying down, repairing, maintaining or relocating any water
mains; or constructing, maintaining, relocating, or repairing any sidewalk or
other public work.
3.3.2 All System transmission and distribution structures, lines and equipment
erected by the Grantee within the City shall be located so as not to obstruct
or interfere with the use of Rights -of -Way except for normal and
reasonable obstruction and interference which might occur during
construction and to cause minimum interference with the rights of property
owners who abut any of said Rights -of -Way and not to interfere with existing
public utility installations.
3.3.3 The Grantee shall, at its sole expense, by a reasonable time specified by the
City, protect, support, temporarily disconnect, relocate or remove any of its
property when required by the City by reason of traffic conditions; public
safety; Rights -of -Way construction; street maintenance or repair (including
resurfacing or widening); change in Right -of -Way grade; construction,
installation or repair of sewers, drains, water pipes, power lines, signal
lines, tracks or any other type of government-owned communications or
traffic control system, public work or improvement of government-owned
utility; Right -of -Way vacation; or for any other purpose where the
convenience of the City would be served thereby. If the Grantee fails,
neglects, or refuses to comply with the City's request, the City may protect,
support, temporarily disconnect relocate or remove the appropriate
portions of the System at the Grantee's expense for any of the City's
incremental costs incurred as a result of the Grantee's failure to comply.
Except for the City's gross negligence, the City shall not be liable to the
Grantee for damages resulting from the City's protection, support,
disconnection, relocation or removal, as contemplated in the preceding
sentence.
3.3.4 The Grantee shall not place poles, conduits, or other fixtures of the System
above or below ground where the same will interfere with any gas, electric,
telephone, water or other utility fixtures and all such poles, conduits, or other
fixtures placed in any Right -of -Way shall be so placed as to comply with all
lawful requirements of the City.
3.3.5 The Grantee shall, upon request of any Person holding a moving permit
issued by the City, temporarily move its wires or fixtures to permit the moving
of buildings with the expense of such temporary removal to be paid by the
Person requesting the same (except in the case where the requesting Person
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is the City for the purpose of moving a City -owned building, in which case
no payment shall be required). The Grantee shall be given not less than ten
(10) days' advance written notice to arrange for such temporary wire changes.
3.3.6 To the extent consistent with generally applicable City Code provisions, rules
and regulations, the Grantee shall have the right to remove, cut, trim and keep
clear of its System trees or other vegetation in and along or overhanging the
Rights -of -Way. However, in the exercise of this right, the Grantee agrees
not to cut or otherwise injure said trees to any greater extent than is
reasonably necessary. This Franchise does not give the Grantee any authority
to remove trees on private property in the City. All trimming shall be
performed at no cost to the City.
3.3.7 The Grantee shall use its best efforts to give prior notice to any adjacent
private property owners who will be negatively affected or impacted by
Grantee's work in the Rights -of -Way.
3.3.8 If any removal, relaying or relocation is required to accommodate
the construction, operation or repair of the facilities of a Person that is
authorized to use the Rights -of -Way, the Grantee shall, after thirty (30) days'
advance written notice, and payment of all costs by such Person, commence
action to effect the necessary changes requested by the responsible entity. If
multiple responsible parties are involved, the City may resolve disputes as
to the responsibility for costs associated with the removal, relaying or
relocation of facilities among entities authorized to install facilities in the
Rights -of -Way if the parties are unable to do so themselves, and if the matter is not
governed by a valid contract between the parties or any State or federal law or
regulation.
3.3.9 In the event the System creates or is contributing to an imminent danger to health,
safety or property, as reasonably determined by the City, the City, after providing
notice to the Grantee, if it is reasonably feasible to do so, may remove or relocate any
or all parts of the System at no expense to the City, other than the City's costs to act
on such determination.
3.4 Use of Existing Poles and Undergrounding of Cable.
3.4.1 Where existing poles, underground conduits, ducts or wire holding structures are
available for use by the Grantee, but it does not make arrangements for such use, the
City may require, through the established permit, or any other applicable procedure,
the Grantee to use such existing poles and wireholding structures if the City determines
that the public convenience would be enhanced thereby and the terms available to the
Grantee for the use of such poles and structures arejust and reasonable.
3.4.2 The Grantee agrees to place its cables, wires or other like facilities underground,
in the manner as may be required by the provisions of the City Code and City
policies, procedures, rules and regulations, as amended from time to time, where all
utility facilities are placed underground. The Grantee shall not place facilities,
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489250v3 RN QU21"
equipment or fixtures where they will interfere with any existing gas, electric,
telephone, water, sewer or other utility facilities or with any existing installations of
the City, or obstruct or hinder in any manner the various existing utilities serving
the residents of the City. To the extent consistent with the City Code, City
policies, procedures, rules and regulations, System cable and facilities may be
constructed overhead where poles exist and electric or telephone lines or both are
now overhead. However, in no case may the Grantee install poles in areas of the
City where underground facilities are generally used by the utilities already
operating. If the City, at a future date, requires all electric and telephone lines to
be placed underground in all or part of the City, the Grantee shall, within a
reasonable time, similarly move its cables and lines, at no expense to the City, and
shall not seek damages from the City for such compliance.
3.5 Installation of Facilities.
3.5.1 No poles, towers, conduits, amplifier boxes, pedestal mounted terminal boxes,
similar structures, or other wire -holding structures shall be erected or installed by the
Grantee without obtaining any required permit or other authorization from the City.
3.5.2 No placement of any pole or wire holding structure of the Grantee is to be
considered a vested fee interest in the Rights -of -Way or in City property.
Whenever feasible, all transmission and distribution structures, lines, wires,
cables, equipment and poles or other fixtures erected by the Grantee within the City
are to be so located and installed as to cause minimum interference with the rights
and convenience of property owners.
3.6 Safety Requirements.
3.6.1 All applicable safety practices required by law shall be used during Grantee's
construction, maintenance and repair of the System. The Grantee agrees, at all
times, to employ ordinary and reasonable care and to install and maintain in use
commonly accepted methods and devices for preventing failures and accidents that
are likely to cause damage or injuries to the public or to property. All structures
and all lines, equipment and connections in the Rights -of -Way shall at all times be
kept and maintained in a safe condition, consistent with applicable safety codes.
3.6.2 The Grantee's construction, operation or maintenance of the System shall be
conducted in such a manner as not to interfere with City communications
technologies related to the health, safety and welfare of City residents.
3.6.3 The Grantee shall install and maintain such devices as will apprise or warn
Persons using the Rights -of -Way of the existence of work being performed on the
System in Rights -of -Way.
3.6.4 The Grantee, or its Affiliate, shall be a member of the One Call Notification System
(otherwise known as "Gopher State One Call") or its successor, and shall field mark
the locations of its underground facilities upon request. Throughout the term of this
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Franchise, the Grantee shall identify the location of its facilities for the City at no
charge to the City.
3.7 Removal of Facilities at Expiration of Franchise.
At the expiration of the term for which this Franchise is granted, or upon the expiration of any
renewal or extension period which may be granted, the City shall have the right to require
the Grantee, at the Grantee's sole expense: (i) to remove all portions of the System System
used exclusively for the provision of Cable Service from all Rights -of -Way within the City;
and (ii) to restore affected sites to their original condition. Should the Grantee fail, refuse or
neglect to comply with the City's directive, any portions of the System used exclusively for
the provision of Cable Service may at the option of the City become the sole property of the
City, at no expense to the City, or be removed, altered or relocated by the City at the cost of
the Grantee. The City shall not be liable to the Grantee for damages resulting from such
removal, alteration or relocation.
SECTION 4.
DESIGN PROVISIONS
4.1 System Facilities and Equipment.
4.1.1 The System generally shall have at least the following characteristics:
4.1.1.1 A modern design when built, utilizing an architecture that will
permit additional improvements necessary for high-quality and
reliable service throughout the Franchise term, and the capability to
operate continuously on a twenty-four hour a day basis without severe
material degradation during operating conditions typical to the
Minneapolis/St. Paul metropolitan area;
4.1.1.2 Grantee shall maintain standby power generators capable of
powering all headend equipment for at least twenty-four (24)
hours. The back-up power supplies serving the System shall be
capable of providing power to the System for not less than three (3)
hours per occurrence measured on an annual basis according to
manufacturer specifications in the event of an electrical outage.
The Grantee shall maintain sufficient portable generators to be
deployed in the event that the duration of a power disruption is
expected to exceed three (3) hours;
4.1.1.3 Facilities of good and durable quality, generally used in
high-quality, reliable systems of similar design;
4.1.1.4 A System that conforms to or exceeds all applicable FCC technical
performance standards, as amended from time to time, which
standards are incorporated herein by reference, and any other
applicable technical performance standards. End of the line
15
48925ov3 R V QU21M
performance must meet or exceed FCC specifications at the end of the
Subscriber Drop;
4.1.1.5 A System shall, at all times, comply with applicable federal, State
and local rules, regulations, practices and guidelines pertaining to
the construction, upgrade, operation, extension and maintenance of
Cable Systems, including, by way of example (but not limitation):
(A) National Electrical Code, as amended from time to time; and
(B) National Electrical Safety Code (NESC), as amended from
time to time.
4.1.1.6 Facilities and equipment sufficient to cure violations of
applicable FCC technical standards and to ensure that
Grantee's System remains in compliance with the standards
specified in subsection 4.1.1.5;
4.1.1.7 Such facilities and equipment as necessary to maintain, operate and
evaluate the Grantee's System for compliance with applicable FCC
technical and customer service standards, as such standards may
hereafter be amended;
4.1.1.8 Status monitoring equipment to alert the Grantee when and where
back-up power supplies are being used;
4.1.1.9 All facilities and equipment required to properly test the System
and conduct an ongoing and active program of preventative
maintenance and quality control, and to be able to quickly respond to
customer complaints and resolve System problems;
4.1.1.10 Antenna supporting structures designed in accordance with any
applicable governmental building codes, as amended, and painted,
lighted and erected and maintained in accordance with all
applicable rules and regulations of the Federal Aviation
Administration, the Federal Communications Commission and all
other applicable codes and regulations;
4.1.1.11 Facilities and equipment at the headend allowing the Grantee to
transmit or cablecast signals in substantially the form received,
Without substantial alteration or deterioration;
4.1.1.12 The Grantee shall provide adequate security provisions in its
Subscriber site equipment to permit parental control over the use of
Grantee's Cable Service. The Grantee, however, shall bear no
responsibility for the exercise of parental controls and shall incur no
liability for any Subscriber's or viewer's exercise or failure to
exercise such controls;
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4.1.1.13 Facilities and equipment capable of operating within the
temperature ranges typical to the climate over the calendar year;
4.1.1.14 The System shall be so constructed and operated that there is no
perceptible deterioration in the quality of Public, Educational or
Governmental Access Channel signals after delivery of such
signals to the first interface point with Grantee's headend or the
subscriber network, whichever is applicable, as compared with the
quality of any other channel on the System. As used in this
paragraph, "deterioration" refers to delivery that is within the control
of the Grantee; and
4.1.2 The Grantee is authorized to operate the System within the territorial limits of the
City as of the Effective Date of this Franchise.
4.1.3 The System shall provide sufficient capacity for interactive services at all times and
have capacity materially equivalent to at least 870 MHz for all active and passive
components.
4.1.4 The System shall initially have a minimum channel capacity to provide at
least 78 channels downstream to all Subscribers, plus additional capacity for
other services.
4.1.5 The System shall be designed and constructed in order to allow distribution of
PEG Channels as provided in this Franchise.
4.1.6 All power supplies for the System shall be equipped with standby
power capability in accordance with this Section 4.1, and shall use status
monitoring equipment at all power supply locations.
4.1.7 Emergency Alert System. The Grantee shall install and thereafter maintain an
Emergency Alert System ("EAS") fully compliant with local, state and
federal EAS requirements. This EAS shall at all times be operated in
compliance with FCC regulations. The System shall be capable of allowing
authorized officials to override the audio and video on all channels on the
System that may be lawfully overridden.
4.1.8 The Grantee shall not assert or otherwise raise any claim before a court of
competent jurisdiction or any administrative agency alleging that, as of the
Effective Date of this Franchise, the minimum System design and performance
requirements set forth in this Franchise are unenforceable under or
inconsistent with then current applicable laws or regulations, or any orders or
decisions of the FCC.
4.2 [Intentionally deleted.]
4.3 System Construction Timetable.
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4.3.1 Reasonable Build -Out of the Entire City. The Parties recognize that Grantee,
or its affiliate QC, has constructed a legacy communications system throughout
the City that is capable of providing voice grade service. The Parties further
recognize that Grantee or its affiliate QC must upgrade its existing legacy
communications system and construct new facilities to make it capable of
providing Cable Service. The Parties agree that the following is a reasonable
build -out schedule taking into consideration Grantee's desire for a standard based
on market success and the requirements of Minnesota state law.
(i) Complete Equitable Build -Out. Grantee aspires to provide Cable Service
to all households in the City within five (5) years of the Effective Date. In
addition, Grantee commits that a significant portion of its investment will
be targeted to areas below the median income in the City.
(ii) Initial Minimum Build -Out Commitment. Grantee agrees to be capable of
serving a minimum of fifteen percent (15%) of the City's households with
Cable Service during the first two (2) years of the initial Franchise term,
provided, however that Grantee will make its best efforts to complete such
deployment within a shorter period of time; Grantee shall make available
and offer Cable Service to all Qualified Living Units identified in the
reports and maps, as required below showing the number of Qualified
Living Units in the City as of the Effective Date. The parties
acknowledge and agree that Qualified Living Units identified as of the
Effective Date may materially exceed fifteen percent (15%) of City's
households. This initial minimum build -out commitment shall include
deployment equitably throughout the City and to a significant number of
households below the medium income in the City. Nothing in this
Franchise shall restrict Grantee from serving additional households in the
City with Cable Service.
(iii) Additional Build -Out Based on Market Success. If, at any quarterly
meeting, as required below, Grantee is actually serving twenty seven and
one-half percent (27.5%) of the Qualified Living Units, then Grantee
agrees the minimum build -out commitment shall increase to include an
additional fifteen (15%) of the total households in the City, which Grantee
agrees to serve within two (2) years from the quarterly meeting; provided,
however, the Grantee shall make its best efforts to complete such
deployment within a shorter period of time. For example, if, at a quarterly
meeting with the Commission's Executive Director, Grantee shows that
sixty percent (60%) of the households in the City are Qualified Living
Units and Grantee is actually serving thirty percent (30%) of those
households with Cable Service, then Grantee shall serve an additional
fifteen percent (15%) of the total households in the City no later than 2
years after that quarterly meeting (a total of seventy-five (75%) of the total
households). This additional build -out based on market success shall
continue until every household in the City is served.
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4892500 RN QU210-6
(iv) Quarterly Meetings. Commencing the first calendar quarter after the
Effective Date, and continuing throughout the term of this Franchise,
Grantee shall, unless otherwise directed by the Commission, meet
quarterly with the Executive Director of the Commission. At each
quarterly meeting, Grantee shall present information acceptable to the
City/Commission showing the number of Qualified Living Units Grantee
presently capable of receiving Cable Service and the number of Qualified
Living Units that Grantee is actually serving with Cable Service. Grantee
shall also present information acceptable to the City/Commission that
Grantee is equitably serving all portions of the City in compliance with
this subsection 4.3.1. In order to permit the City/Commission to monitor
and enforce the provisions of this section and other provisions of this
Franchise, the Grantee shall promptly, upon reasonable demand, show to
the City/Commission (to the City/Commission's reasonable satisfaction)
maps and provide other documentation showing exactly where within the
City the Grantee is currently providing Cable Service.
(v) Specifically, the Grantee shall present reports and maps showing the
Commission the following information:
a. The total number of Living Units throughout the City;
b. The total number of Qualified Living Units throughout the City
both as of the Effective Date and the then -current calendar quarter;
C. The total number of Qualified Living Units, in the City,
subscribing to the Cable Service provided by the Grantee;
d. Locations of all Qualified Living Units throughout the City.
4.3.2 All construction shall be performed in accordance with applicable laws
and regulations, except where specifically waived by the City.
4.3.3 The Grantee shall make best efforts to provide the City with notice prior to its
commencement of steps of the System construction in which possible service
disruptions or physical construction activities may occur.
4.3.4 No System Node shall be activated until it is tested, and the Grantee
determines that all applicable technical standards have been met or exceeded.
4.4 Periodic Progress Report.
4.4.1 Public Notification. The Grantee shall establish and maintain some
reasonable means by which to inform the public and its Subscribers about:
Cable Service availability.
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489250V3 RJV QU210-6
4.5 Line Extension Requirements.
4.5.1 Subject to subsection 4.3 above, the Grantee shall make Cable Service available
to all Qualified Living Units within the City, including multiple dwelling unit
buildings except for multiple dwelling unit buildings to which the Grantee,
after best efforts, has not obtained authorization to access.
Grantee shall have a line extension obligation a reasonable time after the first date
by which Grantee is providing Cable Service to more than fifty percent (50%) of
all subscribers receiving facilities based Cable Service from both the Grantee and
any other provider(s) of Cable Service within the City based on such Subscriber
count information as City may possess, including information available to the
City on a trade -secret or non-public basis. At that time, the City, in its reasonable
discretion and after meeting with Grantee, shall discuss the timeframe to complete
deployment to the remaining households in the City subject to a Line Extension
requirement that is the same or similar to the requirement of the incumbent
franchised cable operator.
4.5.2 Within the City's boundaries, including any areas annexed after the Effective
Date of this Franchise, the Grantee must provide Service to a Qualified Living
Unit upon request.
4.6 System Maintenance.
4.6.1 The Grantee shall interrupt Service only for good cause and for the shortest time
possible. Such interruption shall occur during periods of minimum use of the
System. The Grantee shall use its best efforts to provide the City with at least
twenty-four (24) hours' prior notice of a planned service interruption, except for a
planned service interruption which will have a minimal impact on Subscribers,
usually meaning affecting less than one hundred (100) Subscribers or less than a
fifteen (15) minute interruption.
4.6.2 Maintenance of the System shall be performed in accordance with the applicable
technical performance and operating standards established by FCC rules and
regulations. Should the FCC choose to abandon this field and does not preempt the
City's entry into this field, the City may adopt such technical performance and
operating standards as its own, and the Grantee shall comply with them at all times.
4.7 System Tests and Inspections; Special Testine.
4.7.1 Grantee shall perform all tests necessary to demonstrate compliance with the
requirements of the Franchise and other performance standards established by law or
regulation.
4.7.2 The City shall have the right to inspect all construction or installation work
performed pursuant to the provisions of this Franchise. hi addition, the City may
require special testing of a location or locations within the System if there is a
particular matter of controversy or unresolved complaints regarding System
construction, operations or installation work pertaining to such location(s). Such
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4892500 RN QU210-6
tests shall be limited to the particular matter in controversy. The City shall
endeavor to so arrange its request for such special testing so as to minimize
hardship or inconvenience to the Grantee or to the Subscribers of such testing.
4.7.3 Before ordering such tests, the Grantee shall be afforded thirty (30) days
following receipt of written notice to investigate and, if necessary, correct
problems or complaints upon which tests were ordered. The City shall meet with the
Grantee prior to requiring special tests to discuss the need for such and, if possible,
visually inspect those locations which are the focus of concern. If, after such
meetings and inspections, the City wishes to commence special tests and the thirty
(30) days have elapsed without correction of the matter in controversy or resolution
of complaints, the tests shall be conducted at the Grantee's expense by a qualified
engineer selected by the City and the Grantee, and Grantee shall cooperate in such
testing.
4.7.4 Unless otherwise provided in this Franchise, tests shall be supervised by the
Grantee's chief technical authority, or designee, who shall certify all records of
tests provided to the City.
4.7.5 The Grantee shall provide the City with at least two (2) business days' prior
written notice of, and opportunity to observe, any tests performed on the System.
4.7.6 Test results shall be filed with the City within fourteen (14) days of a written
request by the City.
4.7.7 If any test indicates that any part or component of the System fails to meet
applicable requirements, the Grantee, without requirement of additional notice or
request from the City, shall take corrective action, retest the locations and advise
the City of the action taken and the results achieved by filing a written report
certified by the Grantee's chief technical authority.
4.8 Drop Replacement.
The Grantee shall replace, at no separate charge to an individual Subscriber, all Drops
and/or associated passive equipment in accordance with applicable law including FCC
regulations.
4.9 FCC Reports.
Unless otherwise required by the terms of this Franchise, the results of any tests required to
be filed by Grantee with the FCC or in the Grantee's public file as it relatres to this Franchise
shall upon request of the City also be filed with the City within ten (10) days of the request.
4.10 Nonvoice Return Capability.
Grantee is required to use cable and associated electronics having the technical capacity
for nonvoice return communications.
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4892500 R V QU210,6
4.11 Lockout Device.
Upon the request of a Subscriber, the Grantee shall make a Lockout Device available at no
additional charge, other than a charge for a Set Top Box.
4.12 Types of Service.
Should the Grantee desire to change the selection of programs or services offered on any of
its tiers, it shall maintain the mix, quality and level of services provided over the
System. Any change in programs or services offered shall comply with all lawful
conditions and procedures contained in this Franchise and in applicable law or
regulations.
4.13 Uses of System.
The Grantee shall, upon request of the Commission, advise the Commission of all active
uses of the System, for both entertainment and other purposes, and the Commission
shall have the right to conduct unannounced audits of such usage.
SECTION 5.
SERVICE PROVISIONS
5.1 Customer Service Standards.
The Grantee shall at all times comply with applicable FCC customer service
standards. In addition, the Grantee shall at all times satisfy all additional or
stricter customer service requirements included in this Franchise and any
customer service requirements set forth in any ordinance or regulation lawfully
enacted by the City.
5.2 Video Programming.
Except as otherwise provided in this Franchise or in applicable law, all programming
decisions remain the discretion of the Grantee, provided that the Grantee notifies the
Commission and Subscribers in writing thirty (30) days prior to any channel additions,
deletions, or realignments unless otherwise permitted under applicable federal, State
and local laws and regulations. Grantee shall cooperate with the Commission and use
best efforts to provide all Subscriber notices to the Commission prior to
delivery to Subscribers. Location and relocation of the PEG channels shall be
governed by Sections 6.1.3-6.1.4.
5.3 Regulation of Service Rates.
5.3.1 The City may regulate rates for the provision of Cable Service, equipment, or
any other communications service provided over the System to the extent
allowed under federal or State law(s). The City reserves the right to regulate
rates for any future services to the extent permitted by law.
5.3.2 The Grantee shall provide at least one billing cycle prior written notice (or
such longer period as may be specified in FCC regulations) to Subscribers and
to the City of any changes in rates, regardless of whether or not the Grantee
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49250v3 RN QU2106
believes the affected rates are subject to regulation, except to the extent
such notice requirement is specifically waived by governing law. Bills must
be clear, concise, and understandable, with itemization of all charges.
5.4 Sales Procedures.
The Grantee shall not exercise deceptive sales procedures when marketing Services
within the City. In its initial communication or contact with a Subscriber or a non -
Subscriber, and in all general solicitation materials marketing the Grantee or its Services
as a whole, the Grantee shall inform the non -Subscriber of all levels of Service available,
including the lowest priced and free service tiers. The Grantee shall have the right to
market door-to-door during reasonable hours consistent with local ordinances and
regulations. Grantee may satisfy the provisions of this paragraph by providing a toll free
telephone number where a Person may inquire and be informed about all levels of
Service (including the lowest cost level) offered by the Grantee and the associated
charges.
5.5 Subscriber Inquiry and Complaint Procedures.
5.5.1 The Grantee shall have a publicly listed toll-free telephone number which shall be
operated so as to receive general public and Subscriber complaints, questions and
requests on a twenty-four (24) hour -a -day, seven (7) days -a -week, 365 days a year
basis. Trained representatives of the Grantee shall be available to respond by
telephone to Subscriber and service inquiries.
5.5.2 The Grantee shall maintain adequate numbers of telephone lines and personnel to
respond in a timely manner to schedule service calls and answer Subscriber
complaints or inquiries in a manner consistent with regulations adopted by the
FCC and the City where applicable and lawful. 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.
5.5.3 Subject to the Grantee's obligations pursuant to law regarding privacy of certain
information, the Grantee shall prepare and maintain written records of all
complaints received from the City and the Commission and the resolution of such
escalated complaints, including the date of such resolution. Such written records
shall be on file at the office of the Grantee. The Grantee shall provide the City
or Commission with a written summary of such complaints and their resolution upon
request of the City or Commission. As to Subscriber complaints, Grantee shall
comply with FCC record-keeping regulations, and make the results of such
record-keeping available to the City or Commission upon request.
23
489250v3 RN QU210L
5.5.4 Excluding conditions beyond the control of the Grantee, the Grantee shall
commence working on a service interruption within twenty-four (24) hours after the
service interruption becomes known and pursue to conclusion all steps reasonably
necessary to correct the interruption. The Grantee must begin actions to correct
other service problems the next business day after notification of the service
problem, and pursue to conclusion all steps reasonably necessary to correct the
problem.
5.5.5 The Grantee may schedule appointments for Installations and other service calls
either at a specific time or, at a maximum, during a four-hour time block during the
hours of 9:00 a.m. to 8:00 p.m., Monday through Friday, and 9:00 a.m. to 5:00 p.m.
on Saturdays. The Grantee may also schedule service calls outside such hours for
the convenience of customers. The Grantee shall use its best efforts to not cancel an
appointment with a customer after the close of business on the business day prior to
the scheduled appointment. If the installer or technician is late and will not meet
the specified appointment time, he/she must use his/her best efforts to contact the
customer and reschedule the appointment at the sole convenience of the
customer. Service call appointments must be met in a manner consistent with FCC
standards.
5.5.6 The Grantee shall respond to written complaints from the City and the
Commission in a timely manner, and provide a copy of each response to the City
and the Commission within thirty (30) days. In addition, the Grantee shall
respond to all written complaints from Subscribers within (30) days of receipt of the
complaint.
5.5.7. The Grantee shall have TDD= (or equivalent) equipment, and a publicly listed
telephone number for such equipment, that will allow hearing impaired customers to
contact the Grantee.
5.6 Subscriber Contracts.
The Grantee shall file with the Commission any standard form Subscriber contract
utilized by Grantee. If no such written contract exists, the Grantee shall file with the
Commission a document completely and concisely stating the length and terms of the
Subscriber contract offered to customers. The length and terms of any Subscriber
contract(s) shall be available for public inspection during the hours of 9:00 a.m. to 5:00
p.m., Monday through Friday.
5.7 Service Credit.
5.7.1 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 cycle.
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5.7.2 If, for any reason, Service is interrupted for a total period of more than twenty-
four (24) hours in any thirty (30) day period, Subscribers shall, upon request, be
credited pro rata for such interruption.
5.8 Refunds or Credits.
5.8.1 Any refund checks shall be issued promptly, but not later than either:
5.8.1.1 The Subscriber's next billing cycle following resolution of the
request or thirty (30) days, whichever is earlier; or
5.8.1.2 The return of the equipment supplied by the Grantee if
Service is terminated.
5.8.2 Any credits for Service shall be issued no later than the Subscriber's next
billing cycle following the determination that a credit is warranted.
5.9 Late Fees.
Fees for the late payment of bills shall not be assessed until after the Service has
been fully provided.
5.10 Notice to Subscribers.
5.10.1 The Grantee shall provide each Subscriber at the time Cable Service is
installed, and at least every twelve (12) months thereafter, the following
materials:
5.10.1.1 Instructions on how to use the Cable Service;
5.10.1.2. Billing and complaint procedures, and written instructions for
placing a service call, filing a complaint, or requesting an
adjustment (including when a Subscriber is entitled to refunds for
outages and how to obtain them);
5.10.1.3 A schedule of rates and charges, channel positions and a
description of products and services offered, including any free
or universal service;
5.10.1.4 Prices and options for programming services and conditions
of subscription to programming and other services; and
5.10.1.5 A description of the Grantee's installation and service
maintenance policies, Subscriber privacy rights, and privacy
rights (only at installation of such service), delinquent Subscriber
disconnect and reconnect procedures and any other of its
policies applicable to Subscribers.
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489250V3 RN QU2106
5.10.2 Copies of materials specified in the preceding subsection shall be provided to the
Commission upon request.
5.10.3 All Grantee promotional materials, announcements and advertising of Cable
Service to Subscribers and the general public, where price information is listed
in any manner, shall be reasonably clear, concise, accurate and understandable.
5.11 Exclusive Contracts and Anticompetitive Acts Prohibited.
5.11.1 The Grantee may not require a residential Subscriber to enter into an exclusive
contract as a condition of providing or continuing Cable Service.
5.11.2 The Grantee shall not engage in acts prohibited by federal or State law that have
the purpose or effect of limiting competition for the provision of Cable Service in the
City.
5.12 Office Availability and Payment Centers.
5.12.1 The Grantee shall install, maintain and operate, throughout the term of this
Franchise, a single staffed payment center in the Quad Cities Franchise Area with
regular business hours at a location agreed upon by the Commission and the
Grantee. Additional payment centers may be installed at other locations. The
purpose of the payment center(s) shall be to receive Subscriber payments. All
Subscriber remittances at a payment center shall be posted to Subscribers'
accounts within forty-eight (48) hours of remittance. Subscribers shall not be
charged a late fee or otherwise penalized for any failure by the Grantee to
properly credit a Subscriber for a payment timely made.
5.12.2 The Grantee shall, at the request of the Subscriber, deliver or retrieve
equipment at no delivery charge in association with a request for service
repair, or retrieval charge in association with the discontinuation of Service,
(e.g., Set Top Boxes and remote controls). Grantee will not charge a Subscriber
for the replacement of a defective Set Top Box or for the return of a Set Top Box
when the Subscriber discontinues service.
SECTION 6.
ACCESS CHANNEL(S) PROVISIONS
6.1. Public, Educational and Government Access.
6.1.1 The City or its designee shall operate, administer, promote, and manage PEG access
programming on the Cable System.
6.1.2 Within one hundred eighty (180) days from the Effective Date, the Grantee shall
dedicate and make available seven (7) video channels for public, educational,
governmental and religious use; provided, however, that the Grantee shall not be
required to provide more, nor shall provide fewer, such channels than the
incumbent franchise. Use of the seven (7) PEG Access Channels shall be
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determined by the Commission. The Commission shall have the right to rename,
reprogram or otherwise change the use of these channels at any time, in its sole
discretion, provided such use is Noncommercial and public, educational,
governmental or religious in nature. Nothing herein shall diminish any rights
of the Commission to secure additional PEG channels pursuant to Minn. Stat.
§ 238.084, which is expressly incorporated herein by reference.
6.1.3 Upon designating the location (i.e. channel number) of the PEG channels, the
channels shall not be relocated without the consent of the Commission. Grantee
shall make reasonable efforts to minimize relocations of the PEG channels.
Grantee must request any channel relocation at least three (3) months prior to
seeking to implement the channel relocation. Grantee shall reimburse the City, the
Commission and/or PEG entity for any reasonable costs incurred for: (i)
purchasing or modifying equipment, business cards, and signage; (ii) any marketing
and notice of the channel change that the Commission, the City and/or PEG entity
reasonably determines is necessary; (iii) logo changes; and (iv) promoting,
marketing and advertising the channel location of the affected PEG channel(s)
during the twelve-month period preceding the effective date of the channel change.
Alternatively, the Grantee may choose to supply necessary equipment itself,
provided such equipment is satisfactory to the City, the Commission or PEG entity.
6.1.4 Grantee shall make all PEG channels available in standard definition (SD),
digital format, and in high definition (HD) provided that the signal received from
the Commission, City or PEG entity by the -Grantee is in HD, and provided that
the Grantee shall not be required to provide the PEG channels at a resolution
higher than the highest resolution used in connection with the Grantee's delivery
of other channels. Grantee may implement HD carriage of the PEG channels in
any manner (including selection of compression, utilization of IP, amount of
system capacity or bandwidth, and other processing characteristics) that produces
a signal as accessible, functional, useable and of a quality comparable (meaning
indistinguishable to the viewer) to broadcast HD channels carried on the cable
system. The Commission acknowledges that HD programming may require the
viewer to have special viewer equipment (such as an HDTV and an HD -capable
digital device/receiver), but any subscriber who can view an HD signal delivered
via the cable system at a receiver shall also be able to view the HD PEG channel
at that receiver, without additional charges or equipment.
All of the Access Channels will be made available through a multi -channel
display (i.e. a picture in picture feed) on a single TV screen called a "mosaic" (the
"Quad Cities Mosaic"), where a cable subscriber can access via an interactive
video menu one of any of the seven (7) Access Channels. The Quad Cities
Mosaic will be located on Channel 40. The seven (7) Access Channels will be
located at Channels 8440-8445 and 8049 (SD), and 8940-8945 and 8549 (HD).
The Quad Cities Mosaic will contain only Access Channels authorized by the
Commission, provided that the Commission may add to its Mosaic channels
originated by other franchising authorities with consent of such originator if
programming on such channel(s) is of public interest within the Quad Cities
Franchise Area. Grantee shall not include any other programming or Channels on
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the Quad Cities Mosaic, or any Quad Cities originated programming on another
PEG producer's Mosiac, without the Commission's written consent.
6.1.5 As the Grantee innovates and improves the functionality and interactivity and/or
adds capability for personalization of the Mosaics, the Grantee will provide the
same nagivational, interactive and personalization features for the Quad Cities
Mosaic Channel as are available to Subscribers for every other commercial
Mosaic Channel. (For example, if a Subscriber has the capability to add selected
sports or news Channels to the Sports or News Mosaics, then that Subscriber shall
also be able to add a PEG Channel to any of the Mosaics.
If through technology changes or innovation in the future, the Grantee
discontinues the use of Mosaic presentations for other Channels including
broadcast channels and commercial cable/satellite Channels (such as the News
Mosiac, the Sports Mosaic, and/or the Children's Mosaic), then Grantee will
either continue to support the Quad Cities Mosaic Channel as determined in the
Commission's sole discretion or reach mutual agreement with the Commission
regarding how to accommodate the Quad Cities Mosaic Channel to ensure PEG
Channels are treated no less favorably than commercial channels provided by
Grantee.
6.1.6 Grantee will make its electronic programming guide vendor ("EPG provider")
available giving the Commission or City the ability to place PEG channel
programming information on the Grantee's interactive channel guide. Grantee
will be responsible for providing the designations and instructions necessary to
ensure the channels will appear on the programming guide and for any System
costs associated therewith. The Commission shall be responsible for providing
programming information to the EPG provider and for any costs the EPG
provider charges to programmers who utilize its service.
6.1.7 In the event the Grantee makes any change in the System or related equipment and
facilities or in signal delivery technology, which change directly or indirectly
causes the signal quality or transmission of PEG channel programming or PEG
services to fall below technical standards under applicable law, the Grantee shall,
at its own expense, provide any necessary technical assistance, transmission
equipment, and training of PEG personnel, and in addition, provide necessary
assistance so that PEG facilities may be used as intended, including, among other
things, so that live and taped programming can be cablecasted efficiently to
Subscribers. Grantee shall carry all components of the PEG Channels offered by
the City and Commission including closed captioning, multichannel sound, DVR
capability, etc.
6.1.8 All PEG channels shall be carried on the Basic Service tier.
6.2 PEG Support Obligations.
6.2.1 In addition to the franchise fee required under this Franchise, the Grantee shall
collect from Subscribers via an itemization on customer bills ("PEG Fee") and pay
quarterly to the Commission an amount equal to three percent (3%) of its Gross
RevenuesPayment of the PEG Fee shall be made to the Commission within thirty
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(30) days of the end of each of the Grantee's fiscal quarters together with a
report showing the basis for the computation. The Commission shall have the
right to require further supporting information for each payment. All amounts
paid under this paragraph shall be subject to audit and recomputation by the
Commission in accordance with the rights provided to the City pursuant to Section
8.3 of this Franchise. In the event the PEG Fee amount or structure paid by the
incumbent cable provider to the City or Commission is modified during the term of
this Franchise, then the City shall so notify the Grantee of any such change and the
parties will meet to determine if the Grantee's PEG Fee structure should be modified
to ensure that Grantee's PEG Fee payment obligations hereunder do not exceed
those of the incumbent cable provider.
6.2.2 The Grantee and the City agree comply with any federal or State statutory change
that entirely eliminates the Grantee's obligation to pay a franchise fee.
6.2.3 The Grantee acknowledges that the franchise held by the incumbent
franchised cable provider within the Franchise Area includes obligations for
an Institutional Network for the benefit of the City and other institutions and to
facilitate PEG uses of the I -Net. The parties acknowledge that the public
interest would not be served by duplicating existing I -Net facilities or services
provided under other franchises. Grantee agrees that if any other cable
operator franchised within the Franchise Area provides additional I -Net
facilities or services which results in additional costs incurred by such other
franchised cable operator, the Grantee shall meet with the Commission upon
request of the Commission to determine a fair and equitable contribution of I -
Net facilities by the Grantee to proportionately match said I -Net obligations. If
the City and Grantee are not able to reach mutual agreement to resolve this
issue, the Grantee and the City agree to enter into a binding mediation to
determine a fair and equitable contribution by the Grantee to proportionately
match (on a per month, per subscriber basis) said I -Net obligations.
6.3 Regional Channel 6.
The Grantee shall designate standard VHF Channel 6 for uniform regional channel usage to
the extent required by State law.
6.4 Leased Access Channels.
The Grantee shall provide Leased Access Channels as required by federal and State law.
6.5 Universal Service Tier.
The Grantee shall not have a Universal PEG Tier obligation until the first date by
which Grantee is providing Cable Service to more than fifty percent (50%) of all
subscribers receiving facilities based Cable Service from both the Grantee and any
other provider(s) of Cable Service within the City. At that time, the City, in its
reasonable discretion and after meeting with Grantee, shall determine the
timeframe required to comply with the requirements of this Section 6.5.
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6.6 Costs and Payments not Franchise Fees.
The parties agree that any costs to the Grantee associated with the provision of
support for PEG access pursuant too Section 6 of this Franchise does not constitute
and is not part of a franchise fee and falls within one or more of the exceptions to 47
U.S.C. § 542.
SECTION 7.
ACCESS CHANNEL DISTRIBUTION
7.1 PEG Programming Connectivity.
Grantee acknowledges that the City has acquired Institutional Network (I -Net) capacity,
facilities, interconnection, services and resources from the incumbent franchised cable
provider to, among other things, facilitate institutions' deliver of PEG programming to
the Commission's master control facility. The I -Net capacity the City has acquired
includes dedicated fiber capacity, facilities, interconnection, services and resources.
Grantee shall provide additional connectivity for such PEG access programming purposes
as provided herein, provided that the parties acknowledge that the public interest would
not be served by duplicating existing I -Net facilities or services already provided under
the incumbent's franchise. To the extent required for delivery of PEG programming due
to elimination of I -Net capacity provided by the incumbent provider, Grantee shall
provide and maintain, free of charge and without fees or costs imposed, a direct fiber
connection from an agreed upon demarcation point at City Hall to the agreed upon
demarcation point at the Commissions master control or Grantee's headend within 180
days of the City's written request.
7.2 Subscriber Network Drops to Designated Buildings.
7.2.1 Grantee shall provide, free of charge, installation and activation of one (1)
subscriber network Drop, and one (1) outlet to the Commission's office. Grantee
shall make best efforts to provide within a reasonable period time, taking market
based success and Grantee's System expansion and Service activation progress
into consideration, free of charge, one (1) subscriber network Drop, and one (1)
cable outlet to City Hall. In addition, Grantee shall provide the foregoing free
service and facilities to the institutions identified and designated for such facilities in
Exhibit A, which is attached hereto and made a part hereof, provided such locations
are Qualified Living Units and not receiving similar service from another provider.
7.2.2 The Grantee shall provide Basic Cable Service free of charge to institutions as
provided in Section 7.2.1, provided, however, that the City or Commission may
disconnect the other provider and require Grantee to meet the obligations herein if
the location is a Qualified Living Unit. Grantee shall provide up to three (3) Set
Top Boxes per institution free of charge and may charge for additional Set Top
Boxes provided, however, that Grantee will provide an additional five (5) Set Top
Boxes to serve additional outlets at institutional locations at the Commission or
City's discretion, provided further, however, that City Hall will receive up to
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seven (7) Set Top Boxes free of charge. Grantee will provide free Service at City
Hall even if the site is served by another provider. The Set Top Boxes or other
equipment provided to receive Service shall permit reception of SD, HD and video on
demand services.
7.2.3 Institutions may add outlets at their own expense, as long as the Installation meets
the Grantee's standards. The Grantee shall have three (3) months from the date of
City designation of additional institution(s) to provide a Drop and outlet to a
Qualified Living Unit that is not receiving similar service from another provider,
unless weather or other conditions beyond the control of the Grantee require more
time.
7.2.4 Grantee agrees that if any broadband service is required in order to receive the
Complimentary Service obligations set forth, Grantee will provide such broadband
service free of charge for the provision of free Cable Service. Grantee agrees that
it will not offset, deduct or reduce its payment of past, present or future Franchise
Feces required as a result of its obligations required herein.
7.3 Broadband.
Throughout the term of the Franchise, and as the term may be extended, Grantee shall
provide the Commission high speed internet service with a modem and up to five (5) static
IP addresses, with Grantee's highest available upstream bandwidth at such location
("Commission Broadband Service"), which may be used by the Commission for public use
and various PEG purposes as determined in Commission's sole discretion. The
Commission Broadband Service shall be provided by Grantee free of charge and at no cost
to the Commission for both the monthly service and equipment.
7.4 Interconnection.
7.4.1 The System serving the Commission and the City of Andover shall be completely
interconnected.
7.4.2 Grantee shall provide a discreet, non-public, video interconnect network, from an
agreed upon Demarcation Point at the Commission's master control facility at the
Commission's office to Grantee's headend. The video interconnect network shall
provide sufficient allocated bandwidth to allow PEG operators that have agreed
with Grantee to share (send and receive) live and recorded programming for
playback on their respective systems, provided that such allocated bandwidth
shall be not less than 50 Mbps. Where available the Grantee shall provide the
video interconnect network and the network equipment necessary, for the high-
priority transport of live multicast HD/SD video streams as well as lower -priority
file -sharing. Grantee shall provide sufficient bandwidth for each participating
PEG entity to send its original programming, receive at least two (2) additional
multicast HD/SD streams from any other participating PEG entity, and all the
transfer of files. Each participating PEG entity is responsible for encoding its
own SD/HD content in suitable bit rates to be transported by the video
interconnect network without exceeding the allocated bandwidth.
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7.4.3 Grantee shall make available for Interconnection purposes one (1) channel for
forward video purposes, one (1) Channel for return video purposes, between the
System serving the City and all other Cable systems under common ownership
with Grantee that participate in the Twin Cities Metro PEG Interconnect Network.
SECTION 8.
OPERATION AND ADMINISTRATION PROVISIONS
8.1 Administration of Franchise.
The City's designated cable television administrator shall have continuing regulatory
jurisdiction and supervision over the System and the Grantee's operation under the Franchise.
The City may issue such reasonable rules and regulations concerning the construction,
operation and maintenance of the System as are consistent with the provisions of the
Franchise and law.
8.2 Delegated Authority.
The City may appoint a citizen advisory body or may delegate to any other body or Person
authority to administer the Franchise and to monitor the performance of the Grantee pursuant
to the Franchise. The Grantee shall cooperate with any such delegatee of the City.
8.3 Franchise Fee.
8.3.1 During the term of the Franchise, the Grantee shall pay quarterly to the City or its
delegatee a Franchise fee in an amount equal to five percent (5%) of Gross
Revenues.
8.3.2 Any payments due under this provision shall be payable quarterly. The payment
shall be made within thirty (30) days of the end of each of Grantee's fiscal quarters
together with a report showing the basis for the computation. The City shall have the
right to require further supporting information for each franchise fee payment.
8.3.3 All amounts paid shall be subject to audit and recomputation 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. The Grantee shall be responsible for providing the City all
records necessary to confirm the accurate payment of franchise fees. The Grantee
shall maintain such records for five (5) years, unless in the Grantee's ordinary
course of business specific records are retained for a shorter period, but in no event
less than three (3) years. If an audit discloses an overpayment or underpayment of
franchise fees, the City shall notify the Grantee of such overpayment or
underpayment. The City's audit expenses shall be home by the City unless the audit
determines that the payment to the City should be increased by more than five
percent (5%) in the audited period, in which case the costs of the audit shall be bome
by the Grantee as a cost incidental to the enforcement of the Franchise. Any
additional amounts due to the City as a result of the audit shall be paid to the City
within thirty (30) days following written notice to the Grantee by the City of the
underpayment, which notice shall include a copy of the audit report. If the
recomputation results in additional revenue to be paid to the City, such amount shall
be subject to a ten percent (10%) annual interest charge. If the audit determines that
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there has been an overpayment by the Grantee, the Grantee may credit any
overpayment against its next quarterly payment.
8.3.4 In the event any franchise fee payment or recomputation amount is not made on or
before the required date, the Grantee shall pay, during the period such unpaid amount
is owed, the additional compensation and interest charges computed from such due
date, at an annual rate of ten percent (10%).
8.3.5 Nothing in this Franchise shall be construed to limit any authority of the City to
impose any tax, fee or assessment of general applicability.
8.3.6 The franchise fee payments required by this Franchise shall be in addition to any
and all taxes or fees of general applicability. The Grantee shall not have or make
any claim for any deduction or other credit of all or any part of the amount of said
franchise fee payments from or against any of said taxes or fees of general
applicability, except as expressly permitted by law. The Grantee shall not apply nor
seek to apply all or any part of the amount of said franchise fee payments as a
deduction or other credit from or against any of said taxes or fees of general
applicability, except as expressly permitted by law. Nor shall the Grantee apply
or seek to apply all or any part of the amount of any of said taxes or fees of general
applicability as a deduction or other credit from or against any of its franchise fee
obligations, except as expressly permitted by law.
8.3.7 To the extent Grantee or its affiliates, including any affiliate owning all or part of
the System, receives revenues for the provision of a discounted bundle of services
that includes both Cable Services and non -Cable Services, such revenues shall be
included in Grantee's Gross Revenues using a GAAP methodology that allocates
revenue on a pro rata basis when comparing the bundled service price and its
components to the sum of the published rate card, except as required by specific
federal, state or local law (for example, it is expressly understood that equipment
may be subject to inclusion in the bundled price at full rate card value). Such
allocations shall be subject to review and challenge by the Commission or City.
Grantee reserves the right to change the allocation methodologies set forth in this
section in order to meet the standards required by governing accounting principles
as promulgated and defined by the Financial Accounting Standards Board
("FASB"), Emerging Issues Task Force ("BITF") and/or the U.S. Securities and
Exchange Commission ("SEC"). Grantee will give the Commission written
notice of any such changes and Grantee shall, upon request or as part of any audit
or review of franchise fee payments, document the change in allocation
methodology.
Resolution of any disputes over the classification of revenue should first be
attempted by agreement of the Parties. The Commission and City reserve the
right to challenge Grantee's calculation of Gross Revenues, including the
interpretation of GAAP as promulgated and defined by the FASB, EITF and/or
the SEC.
8.4 Access to Records.
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The City shall have the right to inspect, upon reasonable notice and during Grantee's
administrative office hours, or require Grantee to provide within a reasonable time, on a
confidential and proprietary basis, copies of any records maintained by Grantee or its
Affiliates, including specifically Gross Revenues worksheets, and accounting and financial
records maintained by Grantee which relate to compliance of System operations with this
Franchise or other applicable law.
8.5 Reports and Maps to be Filed with City.
8.5.1 The Grantee shall file with the City, at the time of payment of the Franchise Fee, a
report of all Gross Revenues in a form and substance as required by City.
8.5.2 The Grantee shall prepare and furnish to the City, at the times and in the form
prescribed, such other reports with respect to Grantee's operations pursuant to this
Franchise as the City may require. The City shall use its best efforts to protect
proprietary or trade secret information all consistent with state and federal law.
8.5.3 The Grantee shall make available to the City the maps, plats and permanent
records of the location and character of all facilities constructed, including
underground facilities, and Grantee shall make available with the City updates of
such maps, plats and permanent records as provided in Section 4 above.
8.6 Periodic Evaluation.
8.6.1 The City may require evaluation sessions during any quarterly meeting as
provided in Section 4 above.
8.6.2 Topics which may be discussed at any evaluation session may include, but are not
limited to, application of new technologies, System performance, programming
offered, access channels, facilities and support, municipal uses of cable, Subscriber
rates, customer complaints, amendments to this Franchise, judicial rulings, FCC
rulings, line extension policies and any other topics the City deems relevant.
8.6.3 As a result of a periodic review or evaluation session, upon notification from City,
Grantee shall meet with City and undertake good faith efforts to reach agreement
on changes and modifications to the terms and conditions of the Franchise which
are both economically and technically feasible.
SECTION 9.
GENERAL FINANCIAL AND INSURANCE PROVISIONS
9.1. Performance Bond.
9.1.1 Within 30 days of the Effective Date, and at all times thereafter, until the
Grantee has liquidated all of its obligations with the City and the Commission,
the Grantee shall furnish a bond to the Commission in the amount of $100,000.00
in a form and with such sureties as are reasonably acceptable to the Commission.
This bond will be conditioned upon the faithful performance by the Grantee of
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its Franchise obligations 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
Commission or 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 or the Commission which arise by reason of
the construction, operation, or maintenance of the System. The rights reserved
by the City and the Commission with respect to the bond are in addition to all
other rights the City may have under the Franchise or any other law. The City
may, from year to year, in its sole discretion, reduce the amount of the bond.
9.1.2 The time for Grantee to correct any violation or liability shall be extended by
City if the necessary action to correct such violation or liability is, in the
sole determination of City, of such a nature or character as to require more than
thirty (30) days within which to perform, provided Grantee provides written
notice that it requires more than thirty (30) days to correct such violations or
liability, commences the corrective action within the thirty (30) -day cure
period and thereafter uses reasonable diligence to correct the violation or
liability.
9.1.3 In the event this Franchise is revoked by reason of default of Grantee, City
shall be entitled to collect from the performance bond that amount which is
attributable to any damages sustained by City as a result of said default or
revocation.
9.1.4 Grantee shall be entitled to the return of the performance bond, or portion
thereof, as remains sixty (60) days after the expiration of the term of the
Franchise or revocation for default thereof, provided City or the Commission has
not notified Grantee of any actual or potential damages incurred as a result of
Grantee's operations pursuant to the Franchise or as a result of said default.
9.1.5 The rights reserved to City or Commission with respect to the performance
bond are in addition to all other rights of City or Commission whether reserved
by this Franchise or authorized by law, and no action, proceeding or exercise of
a right with respect to the performance bond shall affect any other right City or
the Commission may have.
9.2. Letter of Credit.
9.2.1 Within 30 days of the Effective Date, the Grantee shall deliver to the
Commission an irrevocable and unconditional Letter of Credit, in a form and
substance acceptable to the Commission, from a National or State bank
approved by the Commission, in the amount of $25,000.00.
9.2.2 The Letter of Credit shall provide that funds will be paid to the City upon written
demand of the City, and in an amount solely determined by the City in payment
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for penalties charged pursuant to this Section, in payment for any monies owed by
the Grantee to the City or any Person pursuant to its obligations under this
Franchise, or in payment for any damage incurred by the City or any Person as a
result of any acts or omissions by the Grantee pursuant to this Franchise.
9.2.3 In addition to recovery of any monies owed by the Grantee to the City or any
Person or damages to the City or any Person as a result of any acts or omissions by
the Grantee pursuant to the Franchise, the City in its sole discretion may charge
to and collect from the Letter of Credit the following penalties:
9.2.3.1 For failure to timely complete the System construction as provided in this
Franchise, unless the City or the Commission approves the delay, the
penalty shall be $500.00 per day for each day, or part thereof, such failure
occurs or continues.
9.2.3.2 For failure to provide data, documents, reports or information or to
cooperate with City or the Commission during an application process or
system review or as otherwise provided herein, the penalty shall be
$250.00 per day for each day, or part thereof, such failure occurs or
continues.
9.2.3.3 Fifteen (15) days following notice from City or Commission of a failure of
Grantee to comply with construction, operation or maintenance standards,
the penalty shall be $250.00 per day for each day, or part thereof, such
failure occurs or continues.
9.2.3.4 For failure to provide the services and the payments required by this
Franchise, including, but not limited to, the implementation and the
utilization of the PEG Access Channels, the penalty shall be $250.00 per
day for each day, or part thereof, such failure occurs or continues.
9.2.3.5 For Grantee's breach of any written contract or agreement with or to the
City or the Commission, the penalty shall be $250.00 per day for each day,
or part thereof, such breach occurs or continues.
9.2.3.6 For failure to comply with any of the provisions of this Franchise, or other
City ordinance for which a penalty is not otherwise specifically provided
pursuant to this subsection 9.2.3, the penalty shall be $250.00 per day for
each day, or part thereof, such failure occurs or continues.
9.2.4 Each violation of any provision of this Franchise shall be considered a separate
violation for which a separate penalty can be imposed; provided, however, that
Grantee will not be charged under more than one penalty provision for each separate
violation.
9.2.5 Whenever the City or the Commission determines that the Grantee has violated
one or more terms, conditions or provisions of this Franchise, or for any other
violation contemplated in subsection 9.2.3 above, a written notice shall be given to
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Grantee informing it of such violation. At any time after thirty (30) days (or such
longer reasonable time which, in the determination of the City or the
Commission, is necessary to cure the alleged violation) following local receipt of
notice, provided the Grantee remains in violation of one or more terms, conditions or
provisions of this Franchise, in the sole opinion of the City the City may draw from
the Letter of Credit all penalties and other monies due the City from the date of the
local receipt of notice.
9.2.6 Prior to drawing on the Letter of Credit, the City or the Commission shall give
Grantee written notice that it intends to draw, and the Grantee may, within seven
(7) days thereafter, notify the City in writing that there is a dispute as to whether a
violation or failure has in fact occurred. Such written notice by the Grantee to the
City shall specify with particularity the matters disputed by Grantee. All penalties
shall continue to accrue, but the City or the Commission may not draw from the
Letter of Credit during any appeal pursuant to this subparagraph 9.2.6.
9.2.6.1 City or the Commission shall hear Grantee's dispute within sixty (60)
days and the City shall render a final decision within sixty (60) days
thereafter. Withdrawal from the Letter of Credit may occur only upon a
final decision.
9.2.7 If said Letter of Credit or any subsequent Letter of Credit delivered pursuant
thereto expires prior to thirty (30) 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 thirty (30) months after the expiration of
this Franchise. The renewed or replaced Letter of Credit shall be of the same form
and with a bank authorized herein and for the full amount stated in subsection
9.2.1 of this Section.
9.2.8 If the City draws upon the Letter of Credit or any subsequent Letter of Credit
delivered pursuant hereto, in whole or in part, the Grantee shall replace or replenish
to its full amount the same within ten (10) days and shall deliver to the City a like
replacement Letter of Credit or certification of replenishment for the full amount
stated in Section 9.2.1 as a substitution of the previous Letter of Credit. This shall
be a continuing obligation for any withdrawals from the Letter of Credit.
9.2.9 If any Letter of Credit is not so replaced or replenished, the City may draw on said
Letter of Credit for the whole amount thereof and use the proceeds as the City
determines in its sole discretion. The failure to replace or replenish any Letter of
Credit may also, at the option of the City, be deemed a default by the Grantee under this
Franchise. The drawing on the Letter of Credit by the City, and use of the money
so obtained for payment or performance of the obligations, duties and
responsibilities of the Grantee which are in default, shall not be a waiver or release of
such default.
9.2.10 The collection by City of any damages, monies or penalties from the Letter of
Credit shall not affect any other right or remedy available to it, nor shall any act, or
37
489250v3 RN QU2106
failure to act, by the City pursuant to the Letter of Credit, be deemed a waiver of any
right of the City pursuant to this Franchise or otherwise.
9.3 Indemnification of City.
9.3.1 The City and its officers, boards, committees, commissions, elected and appointed
officials, employees, volunteers 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 Grantee's construction, operation,
maintenance, repair or removal of the System or as to any other action of Grantee
with respect to this Franchise.
9.3.2 Grantee shall indemnify, defend, and hold harmless the City and its officers,
boards, committees, commissions, elected and appointed officials, employees,
volunteers and agents, from and against all liability, damages, and penalties which
they may legally be required to pay as a result of the City's exercise,
administration, or enforcement of the Franchise.
9.3.3 In addition, Grantee shall contemporaneously with this Franchise execute an
Indemnity Agreement in the form of Exhibit B, which shall indemnify, defend
and hold the City harmless for any claim for injury, damage, loss, liability, cost or
expense, including court and appeal costs and reasonable attorneys' fees or
reasonable expenses arising out of the actions of the City in granting this
Franchise. This obligation includes any claims by another franchised cable
operator against the City that the terms and conditions of this Franchise are less
burdensome than another franchise granted by the city or that this Franchise does
not satisfy the requirements of applicable state law(s). Grantee shall additionally
indemnify, defend, and hold harmless 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 City's exercise, administration, or enforcement of the Franchise. On
or before the Effective Date, Grantee shall execute a separate indemnity
agreement in a form acceptable to the City, which shall indemnify, defend and
hold the City harmless for any claim for injury, damage, loss, liability, cost or
expense, including court and appeal costs and reasonable attorneys' fees or
reasonable expenses arising out of the actions of the City in granting this
Franchise. This obligation includes any claims by the incumbent cable operator
against the City that the terms and conditions of this Franchise are less
burdensome than the incumbent's franchise, or that this Franchise does not satisfy
the requirements of applicable state law(s).
9.3.4. Nothing in this Franchise relieves a Person from liability arising out of the failure
to exercise reasonable care to avoid injuring the Grantee's facilities while
performing work connected with grading, regrading, or changing the line of a
Right -of -Way or public place or with the construction or reconstruction of a
sewer or water system.
38
4892500 RN QU2I06
9.3.5 The Grantee shall not be required to indemnify the City for negligence or
misconduct on the part of the City or its officers, boards, committees,
commissions, elected or appointed officials, employees, volunteers or agents,
including any loss or claims.
9.3.6 Related only to PEG programming, the Grantee shall not be required to indemnify
the City for negligence or misconduct on the part of the City or its officers,
boards, committees, commissions, elected or appointed officials, employees,
volunteers or agents, including any loss or claims.
9.4 Insurance.
9.4.1 As a part of the indemnification provided in this Franchise, but without
limiting the foregoing, Grantee shall file with Commission at the time of 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, that covers broadcaster's liability and contractual
liability coverage, in protection of the Grantee, the Commission, the City
and its officers, elected and appointed officials, boards, commissions,
commissioners, agents, employees and volunteers for any and all damages
and penalties which may arise as a result of this Franchise. The policy or
policies shall name the City and the Commission as an additional insured,
and in their capacity as such, City and Commission officers, elected and
appointed officials, boards, commissions, commissioners, agents,
employees and volunteers. The broadcasters/cablecasters' liability
coverage specified in this provision shall be subject to this
Franchise regarding indemnification of the City.
9.4.2 The policies of insurance shall be in the sum of not less than $1,500,000.00
for personal injury or death of any one Person, and $2,000,000.00 for
personal injury or death of two or more Persons in any one occurrence,
$1,500,000.00 for property damage to any one person and $ 2,000,000.00
for property damage resulting from any one act or occurrence.
9.4.3 The policy or policies of insurance shall be obtained from a company
licensed to do business in Minnesota. The Grantee shall provide a
certificate of insurance coverage to the City. The policy shall either state
that the City shall be notified in writing by the insurer thirty (30) days in
advance of any cancellation or termination of such policy or, in the
alternative, Grantee shall provide immediate written notice to the City if
a cancellation or termination notice is received by Grantee and Grantee
shall thereafter undertake immediate steps to secure a replacement policy
meeting the requirements set forth herein.
9.4.4 Grantee shall keep on file with the Commission Certificates of Insurance.
9.4.5 Failure to comply with the insurance requirements of this Section shall
constitute a material violation of this Franchise.
39
489250v3 RN QU210-6
SECTION 10.
SALE, ABANDONMENT, TRANSFER AND REVOCATION OF FRANCHISE
10.1. City's Right to Revoke.
10.1.1 In addition to all other rights which City has pursuant to law or equity, City reserves the
right to commence proceedings to revoke, terminate or cancel this Franchise, and all
rights and privileges pertaining thereto, if it is determined by City that:
10.1.1.1 Grantee has violated material provisions(s) of this Franchise; or
10.1.1.2 Grantee has attempted to evade any of the provisions of the
Franchise; or
10.1.13 Grantee has practiced fraud or deceit upon City or the
Commission.
City may revoke this Franchise without the hearing required by Section 10.2.2 herein if
Grantee is adjudged a bankrupt entity.
10.2. Procedures for Revocation.
10.2.1 The City shall provide the Grantee with written notice of a cause for revocation
and the intent to revoke and shall allow Grantee thirty (30) days subsequent to
receipt of the notice in which to correct the violation or to provide adequate
assurance of performance in compliance with the Franchise. In the notice
required herein, the City shall provide the Grantee with the basis for revocation.
10.2.2 The Grantee shall be provided the right to a public hearing affording due
process before the City Council prior to the effective date of revocation, which public
hearing shall follow the thirty (30) day notice provided in subparagraph 10.2.1
above. The City shall provide the Grantee with written notice of its decision
together with written findings of fact supplementing said decision.
10.2.3 Only after the public hearing and upon written notice of the determination by
the City to revoke the Franchise may the Grantee appeal said decision with an
appropriate state or federal court or agency.
10.2.4 During the appeal period, the Franchise shall remain in full force and effect
unless the term thereof sooner expires or unless continuation of the Franchise
would endanger the health, safety and welfare of any Person or the public.
10.3. Abandonment of Service.
The Grantee may not abandon the System or any portion thereof without having
first given three (3) months written notice to the City. The Grantee may not
abandon the System or any portion thereof without compensating the City for
damages resulting from the abandonment, including all costs incident to removal of
the System, if required by the City pursuant to Section 10.4.
40
4892500 RIV QU210-6
10.4. Removal After Abandonment, Termination or Forfeiture.
10.4.1 In the event of termination or forfeiture of the Franchise or abandonment of the
System, the City shall have the right to require the Grantee to remove all or any
portion of the System used exclusively for the provision of Cable Service
from all Rights -of -Way and public property within the City.
10.4.2 If the Grantee has failed to commence removal of the System, or such part
thereof as was designated by the City, within thirty (30) days after written
notice of the City's demand for removal is given, or if the Grantee has failed to
complete such removal within twelve (12) months after written notice of the
City's 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 the 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.
10.5. Sale or Transfer of Franchise.
10.5.1 No sale or transfer of the Franchise, or sale, transfer, or fundamental
corporate change of or in Grantee, including, but not limited to, a fundamental
corporate change in Grantee's parent corporation or any entity having a
controlling interest in Grantee, the sale of a controlling interest in the
Grantee's assets, a merger including the merger of a subsidiary and parent
entity, consolidation, or the creation of a subsidiary or affiliate entity, shall
take place until a written request has been filed with the City requesting
approval of the sale, transfer, or corporate change and such approval has been
granted or deemed granted, provided, however, that said approval shall not
be required where Grantee grants a security interest in its Franchise and/or
assets to secure an indebtedness. Upon notice to the City, Grantee may undertake
legal changes necessary to consolidate the corporate or partnership structures of
its System provided there is no change in the controlling interests which could
materially alter the financial responsibilities for the Grantee and provided Grantee
must seek approval of any transaction constituting a "fundamental corporate
change" under state law.
10.5.2 Any sale, transfer, exchange or assignment of stock in Grantee, or
Grantee's parent corporation or any other entity having a controlling interest
in Grantee, so as to create a new controlling interest therein, shall be
subject to the requirements of this Section 10.5. The term "controlling
interest" as used herein is not limited to majority stock ownership, but includes
actual working control in whatever manner exercised. In any event, as used
herein, a new "controlling interest" shall be deemed to be created upon the acquisition
through any transaction or related group of transactions of a legal or beneficial
interest of fifteen percent (15%) or more by one Person. Acquisition by one
41
4892500 RN QU2I0-6
Person of an interest of five percent (5%) or more in a single transaction shall
require notice to the City.
10.5.3 The Grantee shall file, in addition to all documents, forms and information
required to be filed by applicable law, the following:
10.53.1 All contracts, agreements or other documents that constitute the
proposed transaction and all exhibits, attachments, or other
documents referred to therein which are necessary in order to
understand the terms thereof;
10.53.2 A list detailing all documents filed with any state or federal agency
related to the transaction including, but not limited to, the Minnesota
Public Utilities Commission ("MPUC"), the Federal Communications
Commission ("FCC'), the Federal Trade Commission ("FTC"), the
Federal Election Commission ("FEC'), the Securities and Exchange
Commission ("SEC') or the Minnesota Department of Transporitation
("MaDOT"). Upon request, Grantee shall provide City with a
complete copy of any such document; and
10.533 Any other documents or information related to the transaction as
may be specifically requested by the City.
10.5.4 The City shall have such time as is permitted by federal law in which to review a
transfer request.
10.5.5 Grantee shall reimburse City for all the reasonable legal, administrative,
consulting costs and fees associated with the City's review of any request to
transfer. Nothing herein shall prevent Grantee from negotiating partial or
complete payment of such costs and fees by the transferee. Grantee may not
itemize any such reimbursement on Subscriber bills, but may recover such
expenses in its Subscriber rates.
10.5.6 In no event shall a sale, transfer, corporate change, or assignment of ownership or
control pursuant to subsections 10.5.1 or 10.5.2 of this Section be approved without
the transferee becoming a signatory to this Franchise and assuming all rights and
obligations hereunder.
10.5.7 In the event of any proposed sale, transfer, corporate change, or assignment
pursuant to subsection 10.5.1 or 10.5.2, the City shall have the right to purchase the
System for the value of the consideration proposed in such transaction. The City's
right to purchase shall arise upon City's receipt of notice of the material terms of an
offer or proposal for sale, transfer, corporate change, or assignment, which Grantee
has accepted. Notice of such offer or proposal must be conveyed to City in writing
and separate from any general announcement of the transaction.
10.5.8 The City shall be deemed to have waived its right to purchase the System
pursuant to this Section only in the following circumstances:
42
4892500 RN QU21"
10.5.8.1 If City does not indicate to Grantee in writing, within sixty (60)
days of receipt of written notice of a proposed sale, transfer,
corporate change, or assignment as contemplated in Section 10.5.7
above, its intention to exercise its right of purchase; or
10.5.8.2 It approves the assignment or sale of the Franchise as provided
within this Section.
10.5.9 No Franchise may be transferred if the City determines the Grantee is in
noncompliance of the Franchise unless an acceptable compliance program has been
approved by City. The approval of any transfer of ownership pursuant to this
Section shall not be deemed to waive any rights of City to subsequently enforce
noncompliance issues relating to this Franchise.
10.5.10 Any transfer or sale of the Franchise without the prior written consent of the City
shall be considered to impair the City's assurance of due performance. The granting of
approval for a transfer or sale in one instance shall not render unnecessary
approval of any subsequent transfer or sale for which approval would otherwise be
required.
SECTION 11.
PROTECTION OF INDIVIDUAL RIGHTS
11.1 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, status as to public assistance, affectional preference, or disability. Grantee shall
comply at all times with all other applicable federal, State, and city laws.
11.2. Subscriber Privacy.
11.2.1 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.
11.2.2 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 or its agents for Grantee's service business use or to
City for the purpose of Franchise administration, and also to the Subscriber
43
4892500 RN QU2106
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.
11.2.3 Written permission from the Subscriber shall not be required for the
conducting of System -wide or individually addressed electronic sweeps for the
purpose of verifying System integrity or monitoring for the purpose of
billing. Confidentiality of such information shall be subject to the provision set
forth in subsection 11.2.2.
SECTION 12.
UNAUTHORIZED CONNECTIONS AND MODIFICATIONS
12.1 Unauthorized Connections or Modifications Prohibited.
It shall be unlawful for any firm, Person, group, company, corporation, or
governmental body or agency, without the express consent of the Grantee, to make or
possess, or assist anybody in making or possessing, any unauthorized connection,
extension, or division, whether physically, acoustically, inductively, electronically or
otherwise, with or to any segment of the System or to receive services of the
System without Grantee's authorization.
12.2 Removal or Destruction Prohibited.
It shall be unlawful for any firm, Person, group, company, or corporation to willfully
interfere, tamper with, remove, obstruct, or damage, or assist thereof, any part or
segment of the System for any purpose whatsoever, except for any rights the City
may have pursuant to this Franchise or its police powers.
SECTION 13.
MISCELLANEOUS PROVISIONS
13.1 Franchise Renewal.
Any renewal of this Franchise shall be performed in accordance with applicable
federal, State and local laws and regulations.
13.2 Work Performed by Others.
All applicable obligations of this Franchise shall apply to any subcontractor or others
performing any work or services pursuant to the provisions of this Franchise, however,
in no event shall any such subcontractor or other performing work obtain any rights
to maintain and operate a System or provide Cable Service. The Grantee shall
44
4892500 RN QU210-6
provide notice to the City of the name(s) and address(es) of any entity, other than
Grantee, which performs substantial services pursuant to this Franchise.
13.3 Amendment of Franchise Ordinance.
The 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 8.6 or at any other time if the City and the Grantee agree that such an
amendment will be in the public interest or if such an amendment is required due to
changes in applicable law, provided, however, nothing herein shall restrict the
City's exercise of its police powers or the City's authority to unilaterally amend
Franchise provisions, except the provisions of Section 4 to the extent permitted by
law.
13.4 Compliance with Federal, State and Local Laws.
13.4.1 If any federal or State law or regulation shall require or permit City or
Grantee to perform any service or act or shall prohibit City or Grantee from
performing any service or act which may be in conflict with the terms of this
Franchise, then as soon as possible following knowledge thereof, either party
shall notify the other of the point in conflict believed to exist between
such law or regulation. Grantee and 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.
13.4.2 In the event that federal or State laws, rules or regulations preempt a
provision or limit the enforceability of a provision of this Franchise, the
provision shall be read to be preempted to the extent and for the time, but
only to the extent and for the time, required or necessitated by law. In the
event such federal or State law, rule or regulation is subsequently repealed,
rescinded, amended or otherwise changed so that the provision hereof that
had been preempted is no longer preempted, such provision shall thereupon
return to full force and effect, and shall thereafter be binding on the parties
hereto, without the requirement of further action on the part of the City.
13.4.3 If any term, condition or provision of this Franchise or the application thereof
to any Person or circumstance shall, to any extent, be held to be invalid
or unenforceable, the remainder hereof and the application of such term,
condition or provision to Persons or circumstances other than those as to whom
it shall be held invalid or unenforceable shall not be affected thereby, and this
Franchise and all the terms, provisions and conditions hereof shall, in all other
respects, continue to be effective and complied with provided the loss of the
invalid or unenforceable clause does not substantially alter the agreement
between the parties. In the event such law, rule or regulation is
subsequently repealed, rescinded, amended or otherwise changed so that the
45
48925Ov3 RiV QU210-6
provision which had been held invalid or modified is no longer in conflict
with the law, rules and regulations then in effect, said provision shall
thereupon return to full force and effect and shall thereafter be binding on
Grantee and City without further action by the City.
13.4.4The City and Grantee shall, at all times during the term of this Franchise,
including all extensions and renewals thereof, comply with applicable federal,
State and local laws and regulations.
13.5 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 City to enforce prompt
compliance. City may only waive its rights hereunder by expressly so stating in
writing. Any such written waiver by 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.
13.6 Rights Cumulative.
All rights and remedies given to City by this Franchise or retained by City herein shall
be in addition to and cumulative with any and all other rights and remedies, existing
or implied, now or hereafter available to City, at law or in equity, and such rights
and remedies shall not be exclusive, but each and every right and remedy specifically
given by this Franchise or otherwise existing or given may be exercised from time to
time and as often and in such order as may be deemed expedient by City and the
exercise of one or more rights or remedies shall not be deemed a waiver of the right to
exercise at the same time or thereafter any other right or remedy.
13.7 Grantee Acknowledgment of Validity of Franchise.
The 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 City has the power to
make the terms and conditions contained in this Franchise.
13.8 Force Majeure.
The Grantee shall not be deemed in default of provisions of this Franchise or the City Code
where performance was rendered impossible by war or riots, labor strikes or civil
disturbances, floods, or other causes beyond the Grantee's control, and the Franchise shall
not be revoked or the Grantee penalized for such noncompliance, provided that the Grantee,
when possible, takes immediate and diligent steps to bring itself back into compliance and
to comply as soon as possible, under the circumstances, with the Franchise without
unduly endangering the health, safety and integrity of the Grantee's employees or property,
or the health, safety and integrity of the public, the Rights -of -Way, public property or
private property.
46
489250v3 R V QU210-6
13.9 Governing Law.
This Franchise shall be governed in all respects by the law of the State of Minnesota.
13.10 Captions and References.
13.10.1 The captions and headings sections throughout this Franchise are intended solely to
facilitate reading and reference to the sections and provisions of this Franchise.
Such captions shall not affect the meaning or interpretation of this Franchise.
13.10.2 When any provision of the City Code is expressly mentioned herein, such
reference shall not be construed to limit the applicability of any other provision
of the City Code that may also govern the particular matter in question.
13.11 Rights of Third Parties.
This Franchise is not intended to, and shall not be construed to, grant any rights to or vest any
rights in third parties, unless expressly provided herein.
13.12 Merger of Documents.
This Franchise, and the attachments hereto, constitute the entire Franchise agreement
between the City and the Grantee, and supersede all prior oral or written franchises and
understandings.
SECTION 14.
PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
14.1 Publication.
This Franchise shall be published in accordance with applicable local and Minnesota law.
14.2 Acceptance.
14.2.1 Grantee shall accept this Franchise within thirty (30) days of its enactment by the
City Council and the enactment of a Franchise by the other member
municipalities of the Commission, 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, however, this Franchise shall not be effective until all
City ordinance adoption procedures are complied with and all applicable timelines have
run for the adoption of a City ordinance. 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 granted hereunder to the Grantee shall be null and
void.
14.2.2 Upon acceptance of this Franchise, the Grantee and the City shall be bound by all
the terms and conditions contained herein. The Grantee agrees that this Franchise is
not inconsistent with applicable law or regulations at the time it is executed.
14.2.3 Grantee shall accept this Franchise in the following manner:
47
4892500 R V QU2I0-6
14.2.3.1 This Franchise will be properly executed and acknowledged by
Grantee and delivered to City.
14.2.3.2 With its acceptance, Grantee shall also deliver any grant payments,
performance bond and insurance certificates required herein that are
due but have not previously been delivered.
14.3 Binding Acceptance.
This Franchise shall bind and benefit the parties hereto and their respective
authorized heirs, beneficiaries, administrators, executors, receivers, trustees,
successors and assigns.
Passed and adopted this 15'h day of November, 2016.
ATTEST:
CITY QF ARDOUR, MINNESOTA
By: By:
Its: �er
Its: City dministrato
ACCEPTED: This Franchise is accepted and we agree to be bound by its terms and conditions.
QWEST BROADBAND SERVICES, INC.
d/b/a CENTURYLINK
Dated:
By:
Its:
48
489250v3 RN QU2106
EXHIBIT A
QUAD CITIES INSTITUTION CONNECTIONS
MeaOaw Creek Christian. 29418unker Lake Bkrd
School
Anoka County Sheriff SlaOan 1630 Bunker Lake Blvd
Yes
_
No
Yes
No
Yes
N0
123)6
$ra 260
New11>eh§clhool(urhbutlt
148' and Crosstown
Yee
Yes
Yes
1,000
$6000-
New Elanren School
lWanil Verdn'
Yes
No
Yes
1 13.000
$78,000,
Anoka High
State Hos Ital
3039 7� Ave
33006'Ave
Yes
No
'—
Yes Yes
No No
1000
56000
_Anoka
Anoka Ve-Tec
Wast HwylO -
I Yes.
Yes
I Yes
1200
S1,20D..
Fred kloore Middle School
1523 Washes tort Ave
Yes
Yes
I Yes
SandbcrA Mitldle ScNont
19022" Ave
Yes
Na
Yes
200
51200
Fmnklln Middle School
215 West Mein Street
I Yes
�No
I Yes
1025
$6,150
Utcln Elementary
546 Sgulh Street
I Yes
No
Yes
200
_
$1,200
Wilson Elerriwary
10255unn Lane
Yee
No
Yes
3900
518000
Washington Elatiwntery
21716 Streat
_ Yes
Yes
I Yes
_
St. Stephen 8 School
506 Jackson Street
Yea
Yes
Yes
I Yes
Y Yes
Anoka Cit Hca 201611 Ave Yes
Anoka, Police
_
2015 f A
Yes
Yes
No
_
Anoka Courthouse
21003 Ave
Yes
Yes
No
'.. Anoka Elections -
325 Fast Math
Yes
No
�!
_
hooka Fire2301
3 Avo
_Yes
Yes
Yes
No
_
'.. Anoka C"Lllxa21353
Av's a
Yes
Yes
Yes
'..Anaka Ice Mena
4111 ?7 Ave
Yes
Y
No�
_
Esilmaied at 2000 cansiruclion rate of $8 par foot, excluding cost or elecirontcyeddiliorrel Miles
2. IreINutrons beyond 500 test of misting Mot will be etlended with the regmthng tnadlution paying Actual Cost beyond 500 fact
3. 1miflulfans may receive cable modem service 81•Net not evellsbla
d. f -Net to ba extcndsd at tone of I -Net upgrade It pis Fire Hao 1pedrten wilt contlnue to serve as the City Qi ncll Chamber, Wr et least twelve monlha
r
y
y
0
z
is
I
EXHIBIT A
QUAD CITIES INSTITUTION CONNECTIONS
Anoka -Hering mAltema6ye 135S West halm Street Yee No Yes 500 $3DOD
CCN
737 East River Road
i
Yes
Yea
No
LoorWing Cenler
2727 FerryS rag
Y¢s
Yes
AnakationimDrep, to Center
Washi tin --n&6
'Yes
No
No 200 $1.200
Anoka Senior Hi hrise
2 &Id a Street
Yes
No
No
Anoka Liuuor
848 East River Road
Y9s
Yes
No
Anokg LI or
809 Main Street
Yes
Yes
_
No
Anoka -Hering mAltema6ye 135S West halm Street Yee No Yes 500 $3DOD
CCN
737 East River Road
Yes
Yes
Yea
No
LoorWing Cenler
2727 FerryS rag
Y¢s
Yes
No $24460
Rems Police
Anoka Municipal Utility
501 Plum Street
No 400
�No
No 525
$3160
Make Perks D arimmt
671 Jacob Lana
No 200
No
No 060
53.960
Chemjtin City Hell
11BSS Champlin Drive
Yea
Yes
Yes
ChemplinFbe
11955 Champlin Drive
Yes
Yes
No
—
Cham .lin Ice Arma
12165 Ensign Ave
No
Yea
Yes
No
Henna Co. Library
1 12154 C-n_uann Ave
No _
Yea
Yes
_
Ye
_
dacksmn Jr- Hlmh
I 60D010 Ave"' No
`111
Yes
Yes
Yes
Champlin Elementary
Dean Ave
Yes
No
Yes 800
_
Champlin Park Hloh0
Yes
Yes
Yes
Oxf jm EIq
1 6050 109 Ave No
Yes
Yes
Yes
CC l.11r r'IGII
157000 NUMheIel0N&;lNn Blvd Yes Yea Yes
Rama Fire
NaMheo Blvd
Yes
Yea
No
Ramsey Flre
_15153
15050 ArmSUOM Bbd NW
Yes
IM)
No $24460
Rems Police
15153 NovAhen BW
Yea
Yes
No
Rams Public Warks
f 141 CO JasDer51rea1
No 5290No
No 13.759 $82,500
1. 5stimated at 2ODD construction We of $8 per fool, embliag coat mielacbonicalad6lgnal nodes
2. Ins9knlons beyond 500 feet ordusbng Wet wU be e>bgndad wrlh the requesting insfilullon psying Actual Cost beyond 5D0 feet
3. Institutions may rarelve calla modem service If I-11etm1 available
4. ]-Net Cobs extended al llma of I•Nei uograde Y Ihls F(m Nall laceaon will cominue to serve as Ura Qty Couna3 Chambers fo[ai least [salve months.
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT is made this day of
, 2016, by and between Qwest Broadband Services, Inc., a Delaware
Corporation, party of the first part, hereinafter called "CenturyLink," and the Quad Cities Cable
Communications Commission, a Minnesota municipal joint powers commission, hereinafter
called "Commission," and the City of Andover, hereinafter called "Member City," together party
of the second part.
WITNESSETH:
WHEREAS, the Commission has recommended that the Member City award to Qwest
Broadband Services, Inc. a franchise for the operation of a cable communications system in the
Member City; and
WHEREAS, the Commission has recommended and the Member City has required, as a
condition of its award of a cable communications franchise, that the Commission and Member
City be indemnified with respect to all claims and actions arising from the award of said
franchise.
NOW THEREFORE, in consideration of the foregoing promises and the mutual promises
contained in this agreement and in consideration of entering into a cable television franchise
agreement and other good and valuable consideration, receipt of which is hereby acknowledged,
CenturyLink hereby agrees, at its sole cost and expense, to fully indemnify, defend and hold
harmless the Commission and the Member City, their officers, boards, commissions, employees
and agents against any and all claims, suits, actions, liabilities and judgments for damages, cost
or expense (including, but not limited to, court and appeal costs and reasonable attorneys' fees
and disbursements assumed or incurred by the Commission and the Member City in connection
therewith) arising out of the actions of the Commission and the Member City in granting a
franchise to CenturyLink. This includes any claims by another franchised cable operator against
the City that the terms and conditions of the CenturyLink franchise are less burdensome than
another franchise granted by the Commission or that the CenturyLink Franchise does not satisfy
the requirements of applicable federal, state, or local law(s). The indemnification provided for
herein shall not extend or apply to any acts of the Commission constituting a violation or breach
by the Commission of the contractual provisions of the franchise ordinance, unless such acts are
the result of a change in Applicable Law, the order of a court or administrative agency, or are
caused by the acts of CenturyLink.
The Commission shall give CenturyLink reasonable notice of the making of any claim or the
commencement of any action, suit or other proceeding covered by this agreement. The
Commission shall cooperate with CenturyLink in the defense of any such action, suit or other
proceeding at the request of CenturyLink. The Commission and Member City may participate in
the defense of a claim, but if CenturyLink provides a defense at CenturyLink's expense then
B-1
489250v3 RJV QU210-6
CenturyLink shall not be liable for any attorneys' fees, expenses or other costs that the
Commission and the Member City may incur if it chooses to participate in the defense of a claim,
unless and until separate representation is required. If separate representation to fully protect the
interests of both parties is or becomes necessary, such as a conflict of interest, in accordance with
the Minnesota Rules of Professional Conduct, between the Commission and the counsel selected
by CenturyLink to represent the Commission and/or the Member City, Century Link shall pay,
from the date such separate representation is required forward, all reasonable expenses incurred
by the Commission and the Member City in defending itself with regard to any action, suit or
proceeding indemnified by CenturyLink. Provided, however, that in the event that such separate
representation is or becomes necessary, and the Commission or the Member City desires to hire a
counselor any other outside experts or consultants and desires CenturyLink to pay those
expenses, then the Commission and/or Member City shall be required to obtain CenturyLink's
consent to the engagement of such counsel, experts or consultants, such consent not to be
unreasonably withheld. Notwithstanding the foregoing, the parties agree that the Commission
and/or the Member City may utilize at any time, at its own cost and expense, its own attorney or
outside counsel with respect to any claim brought by another franchised cable operator as
described in this agreement.
The provisions of this agreement shall not be construed to constitute an amendment of the cable
communications franchise ordinance or any portion thereof but shall be in addition to and
independent of any other similar provisions contained in the cable communications franchise
ordinance or any other agreement of the parties hereto. The provisions of this agreement shall
not be dependent or conditioned upon the validity of the cable communications franchise
ordinance or the validity of any of the procedures or agreements involved in the award or
acceptance of the franchise, but shall be and remain a binding obligation of the parties hereto
even if the cable communications franchise ordinance or the grant of the franchise is declared
null and void in a legal or administrative proceeding.
It is the purpose of this agreement to provide maximum indemnification to the Commission and
the Member City under the terms set out herein and, in the event of a dispute as to the meaning
of this Indemnity Agreement, it shall be construed, to the greatest extent permitted by law, to
provide for the indemnification of the Commission and the Member City by CenturyLink. This
agreement shall be a binding obligation of and shall inure to the benefit of, the parties hereto and
their successor's and assigns, if any.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
B-2
4892500 RN QU210,6
Dated:
STATE OF
COUNTY OF
2016. By:
Its:
QWEST BROADBAND SERVICES,
INC. d/b/a CenturyLink
The foregoing instrument was acknowledged before me this day of
2016, by the
of Qwest Broadband Services, Inc. d/b/a
CenturyLink, a Delaware Corporation, on behalf of the corporation.
NOTARY PUBLIC
Print Name:
My Commission Expires:
IC
4892500 R V QU2I0fi
CITY OF ANDOVER
COUNTY OF ANOKA
STATE OF MINNESOTA
ORDINANCE NO. 466 SUMMARY
AN ORDINANCE GRANTING A FRANCHISE TO QWEST BROADBAND SERVICES,
INC. D/B/A CENTURYLINK, TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE
SYSTEM IN THE CITY OF ANDOVER, MINNESOTA FOR THE PURPOSE OF PROVIDING
CABLE SERVICE; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE
FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM AND THE
PUBLIC RIGHTS-OF-WAY IN CONJUNCTION WITH THE CITY'S RIGHT-OF-WAY
ORDINANCE, IF ANY, AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE
PROVISIONS HEREIN
On November 15, 2016, the City of Andover adopted Ordinance No. 466, granting a
franchise to Qwest Broadband Services, Inc. d/b/a/ Centuryl-ink to construct, operate,
and maintain a cable system in the City of Andover for the purpose of providing cable
service; setting forth conditions accompanying the grant of the franchise; provided for
regulation and use of the system and the public rights-of-way in conjunction with the
City's right-of-way ordinance, if any, and prescribing penalties for the violation of the
provisions herein.
Adopted: November 15, 2016.
J li Trude, Mayor
Dickinson, City Administrator
The full ordinance shall be available for inspection during normal business hours
at City Hall.
489861v1 QU210-6