HomeMy WebLinkAboutTITLE 15 Franchises
TITLE 15
FRANCHISES
Subject Chapter
Natural Gas Franchise ............................................... 1
Cable Service ............................................................ 2
CenterPoint Energy
Gas Franchise Ordinance
AN ORDINANCE GRANTING CENTERPOINT ENERGY RESOURCES CORP., d/b/a
CENTERPOINT ENERGY MINNESOTA GAS (“CENTERPOINT ENERGY”), ITS
SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE TO CONSTRUCT,
OPERATE, REPAIR AND MAINTAIN FACILITIES AND EQUIPMENT FOR THE
TRANSPORTATION, DISTRIBUTION, MANUFACTURE AND SALE OF GAS ENERGY FOR
PUBLIC AND PRIVATE USE AND TO USE THE PUBLIC WAYS AND GROUNDS OF THE
CITY OF ANDOVER, COUNTY, MINNESOTA, FOR SUCH PURPOSE; AND, PRESCRIBING
CERTAIN TERMS AND CONDITIONS THEREOF
THE CITY COUNCIL OF THE CITY OF ANDOVER, ANOKA COUNTY, MINNESOTA,
ORDAINS:
SECTION 1. DEFINITIONS.
For purposes of this Ordinance, the following capitalized terms listed in alphabetical order shall
have the following meanings:
City. The City of Andover, County of Anoka, State of Minnesota.
City Utility System. Facilities used for providing public utility service owned or operated by City
or agency thereof, including sanitary sewer, storm sewer, water service, street lighting and traffic signals,
but excluding facilities for providing heating, lighting, or other forms of energy.
Commission. The Minnesota Public Utilities Commission, or any successor agency or agencies,
including an agency of the federal government, which preempts all or part of the authority to regulate gas
retail rates now vested in the Minnesota Public Utilities Commission.
Company. CenterPoint Energy Resources Corp., d/b/a CenterPoint Energy Minnesota Gas
(“CenterPoint Energy”) its successors and assigns including all successors or assigns that own or operate
any part or parts of the Gas Facilities subject to this Franchise.
Gas Energy. Gas Energy includes both retail and wholesale natural, manufactured or mixed gas.
Gas Facilities. Gas transmission and distribution pipes, lines, ducts, fixtures, and all necessary
equipment and appurtenances owned or operated by the Company for the purpose of providing Gas Energy
for retail or wholesale use.
Notice. A writing served by any party or parties on any other party or parties. Notice to Company
shall be mailed to CenterPoint Energy, Minnesota Division Vice President, 800 LaSalle Avenue,
Minneapolis, Minnesota 55402. Notice to the City shall be mailed to City of Andover, City Clerk, 1685
Crosstown Blvd. NW, Andover, MN. 55304. Any party may change its respective address for the purpose
of this Ordinance by written Notice to the other parties.
Ordinance. This gas franchise ordinance, also referred to as the Franchise.
Public Way. Any highway, street, alley or other public right-of-way within the City.
Public Ground. Land owned or otherwise controlled by the City for utility easements, park, trail,
walkway, open space or other public property, which is held for use in common by the public or for public
benefit.
SECTION 2. ADOPTION OF FRANCHISE.
2.1 Grant of Franchise. City hereby grants Company, for a period of 20 years from the date
this Ordinance is passed and approved by the City, the right to import, manufacture, distribute and sell Gas
Energy for public and private use within and through the limits of the City as its boundaries now exist or as
they may be extended in the future and also the right to transport Gas Energy through the limits of the City
for use outside of the City limits. For these purposes, Company may construct, operate, repair and maintain
Gas Facilities in, on, over, under and across the Public Ways and Public Grounds, subject to the provisions
of this Ordinance. Company may do all reasonable things necessary or customary to accomplish these
purposes, subject, however, to such reasonable regulations as may be imposed by the City pursuant to a
Public Right-of-Way Management Ordinance also identified title eight, chapter two, of City Code, so long
as such City Code and/or Ordinances comply with state law. If any term contained in a City Ordinance or
City Code is not in compliance with state law, state law shall control as to such noncompliant term.
2.2 Effective Date; Written Acceptance. This Franchise shall be in force and effect from and
after the passage of this Ordinance and publication as required by law and its acceptance by Company. If
Company does not file a written acceptance with the City within 60 days after the date the City Council
adopts this Ordinance, or otherwise inform the City, at any time, that the Company does not accept this
Franchise, the City Council by resolution shall revoke this Franchise.
2.3. Service and Gas Rates. The terms and conditions of service and the rates to be charged by
Company for Gas Energy in City are subject to the exclusive jurisdiction of the Commission.
2.4. Publication Expense. Company shall pay the expense of publication of this Ordinance.
2.5. Dispute Resolution. If either party asserts that the other party is in default in the
performance of any obligation hereunder, the complaining party shall notify the other party of the default
and the desired remedy. The notification shall be written. Representatives of the parties must promptly
meet and attempt in good faith to negotiate a resolution of the dispute. If the dispute is not resolved within
30 days of the written Notice, the parties may jointly select a mediator to facilitate further discussion. The
parties will equally share the fees and expenses of this mediator. If a mediator is not used or if the parties
are unable to resolve the dispute within 30 days after first meeting with the selected mediator, either party
may commence an action in District Court to interpret and enforce this Franchise or for such other relief as
may be permitted by law or equity.
2.6. Continuation of Franchise. If the City and the Company are unable to agree on the terms
of a new franchise by the time this Franchise expires, this Franchise will remain in effect until a new
franchise is agreed upon, or until 90 days after the City or the Company serves written Notice to the other
party of its intention to allow Franchise to expire. However, in no event shall this Franchise continue for
more than one year after expiration of the 20-year term set forth in Section 2.1.
SECTION 3. LOCATION, OTHER REGULATIONS.
3.1. Location of Facilities. Gas Facilities shall be located, constructed, and maintained so as not
to interfere with the safety and convenience of ordinary travel along and over Public Ways and so as not to
disrupt normal operation of any City Utility System. Gas Facilities may be located on Public Grounds in a
location selected by the City. The location and relocation of Gas Facilities shall be subject to regulations of
the City consistent with authority granted the City to manage its Public Ways and Public Grounds under
state law, to the extent not inconsistent with a specific term of this Franchise.
3.2. Street Openings. Company shall not open or disturb the surface of any Public Way or
Public Ground for any purpose without first having obtained a permit from the City, as required by title
eight, chapter two, of City Code, for which the City may impose a fee, unless the City is receiving a
franchise fee pursuant to this Ordinance, in which case all permit fees will be waived, so long as such City
Code and/or Ordinances comply with state law. If any term contained in a City Ordinance or City Code is
not in compliance with state law, state law shall control as to such noncompliant term. Permit conditions
imposed on Company shall not be more burdensome than those imposed on other public-right-of-way users
for similar facilities or work. Company may, however, open and disturb the surface of any Public Way or
Public Ground without a permit if (i) an emergency exists requiring the immediate repair of Gas Facilities
and (ii) Company gives telephone, email or similar Notice to the City before commencement of the
emergency repair, if reasonably possible. Within three business days after commencing the repair,
Company shall apply for any required permits and pay any required fees.
3.3. Restoration. After undertaking any work requiring the opening of any Public Way or
Public Ground, the Company shall restore the Public Ways or Public Grounds in accordance with
Minnesota Rules, 7819.1100 and City Code title eight, chapter two, so long as such City Code and/or
Ordinances comply with state law. If any term contained in a City Ordinance or City Code is not in
compliance with state law, state law shall control as to such noncompliant term.
Company shall restore the Public Ground to as good a condition as formerly existed, and shall maintain the
surface in good condition for six months thereafter. All work shall be completed as promptly as weather
permits, and if Company shall not promptly perform and complete the work, remove all dirt, rubbish,
equipment and material, and put the Public Ground in the said condition, the City shall have, after demand
to Company to cure and the passage of a reasonable period of time following the demand, but not to exceed
five days, the right to make the restoration of the Public Ways or Public Grounds at the expense of
Company. Company shall pay to the City the cost of such work done for or performed by the City. The
Company shall be required to post a construction performance bond.
3.4. Avoid Damage to Gas Facilities. The Company must take reasonable measures to prevent
the Gas Facilities from causing damage to persons or property. The Company must take reasonable
measures to protect the Gas Facilities from damage that could be inflicted on the Gas Facilities by persons,
property, or the elements. The Company must take protective measures when the City performs work near
the Gas Facilities, if given reasonable Notice by the City of such work prior to its commencement.
3.5. Notice of Improvements to Streets. The City will give Company reasonable written
Notice of plans for improvements to Public Ways and Public Grounds where the City has reason to believe
that Gas Facilities may affect or be affected by the improvement. The Notice will contain: (i) the nature
and character of the improvements, (ii) the Public Ways or Public Grounds upon which the improvements
are to be made, (iii) the extent of the improvements, (iv) the time when the City will start the work, and (v)
if more than one Public Way or Public Grounds is involved, the order in which the work is to proceed. The
Notice will be given to Company a sufficient length of time, considering seasonal working conditions, in
advance of the actual commencement of the work to permit Company to make any additions, alterations or
repairs to its Gas Facilities the Company deems necessary.
3.6 Mapping Information. If requested by City, the Company must promptly provide
complete and accurate mapping information for any of its Gas Facilities in accordance with the
requirements of Minnesota Rules 7819.4000 and 7819.4100 and title eight, chapter two of City Code, so
long as such City Code and/or Ordinances comply with state law. If any term contained in a City
Ordinance or City Code is not in compliance with state law, state law shall control as to such noncompliant
term.
3.7. Emergency Response. As emergency first-responders, when a public safety concern exists
both the City and Company shall respond to gas emergencies within the City without additional direct fee
or expense to either City or Company.
SECTION 4. RELOCATIONS.
4.1. Relocation in Public Ways and Public Grounds. The Company and City shall comply
with the provisions of Minnesota Rules 7819.3100 and title eight, chapter two of City Code, with respect to
requests for the Company to relocate Gas Facilities located in either Public Ways or Public Grounds, so
long as such City Code and/or Ordinances comply with state law. If any term contained in a City
Ordinance or City Code not in compliance with state law, state law shall control as to such noncompliant
term.
4.2. Projects with Federal Funding. Relocation, removal, or rearrangement of any Company
Gas Facilities made necessary because of the extension into or through City of a federally aided highway
project shall be governed by the provisions of Minnesota Statutes Sections 161.45 and 161.46 and title
eight, chapter two of City Code, so long as such City Code and/or Ordinances comply with state law. If any
term contained in a City Ordinance or City Code is not in compliance with state law, state law shall control
as to such noncompliant term.
SECTION 5. INDEMNIFICATION.
5.1. Indemnity of City. Company shall indemnify and hold the City harmless from any and all
liability, on account of injury to persons or damage to property occasioned by the construction,
maintenance, repair, inspection, the issuance of permits, or the operation of the Gas Facilities located in the
Public Ways and Public Grounds. The City shall not be indemnified for losses or claims occasioned
through its own negligence or otherwise wrongful act or omission except for losses or claims arising out of
or alleging the City's negligence as to the issuance of permits for, or inspection of, Company's plans or
work.
5.2. Defense of City. In the event a suit is brought against the City under circumstances where
this agreement to indemnify applies, Company at its sole cost and expense shall defend the City in such suit
if written Notice thereof is promptly given to Company within a period wherein Company is not prejudiced
by lack of such Notice. If Company is required to indemnify and defend, it will thereafter have control of
such litigation, but Company may not settle such litigation without the consent of the City, which consent
shall not be unreasonably withheld. This section is not, as to third parties, a waiver of any defense or
immunity otherwise available to the City. The Company, in defending any action on behalf of the City,
shall be entitled to assert in any action every defense or immunity that the City could assert in its own
behalf. This Franchise agreement shall not be interpreted to constitute a waiver by the City of any of its
defenses of immunity or limitations on liability under Minnesota Statutes, Chapter 466.
SECTION 6. VACATION OF PUBLIC WAYS AND PUBLIC GROUNDS.
The City shall give Company at least two weeks prior written Notice of a proposed vacation of a
Public Ways or Public Grounds. The City and the Company shall comply with Minnesota Rules 7819.3100
and Minnesota Rules 7819.3200 with respect to any request for vacation.
SECTION 7. CHANGE IN FORM OF GOVERNMENT.
Any change in the form of government of the City shall not affect the validity of this Ordinance.
Any governmental unit succeeding the City shall, without the consent of Company, succeed to all of the
rights and obligations of the City provided in this Ordinance.
SECTION 8. FRANCHISE FEE.
8.1. Form. During the term of the franchise hereby granted, the City may charge the Company a
franchise fee. The Company will administer the collection and payment of franchise fees to City, or other
fees that may otherwise be imposed on the Company in relation to its operations as a public utility in the
City. The franchise fee will be collected on a flat per meter basis, or by some other method that is mutually
acceptable to both City and Company for each retail customer within the corporate limits of the City. The
amount of the fee collected may differ for each customer class. The City will use a formula that provides a
stable and predictable amount of fees, without placing the Company at a competitive disadvantage. Such
fee shall not exceed any amount that the Company may legally charge to its customers prior to payment to
the City. If the Company claims that the City required fee formula is discriminatory or otherwise places the
Company at a competitive disadvantage, the Company will provide a formula that will produce a
substantially similar fee amount to the City. If the City and Company are unable to agree, the disagreement
shall be subject to the Dispute Resolution provisions of this Ordinance.
8.2. Separate Ordinance. The franchise fee shall be imposed by separate ordinance duly
adopted by the City Council, which ordinance shall not be adopted until at least sixty (60) days after written
Notice enclosing such proposed ordinance has been served upon the Company by certified mail. The
Company is not required to collect a franchise fee if the terms of the fee agreement are inconsistent with
this franchise or state law, provided the Company notifies the City Council of the same within the sixty (60)
day period.
8.3. Condition of Fee. The separate ordinance imposing the fee shall not be effective against
the Company unless it lawfully imposes a fee of the same or substantially similar amount on the sale of
energy within the City by any other energy supplier, provided that, as to such supplier, the City has the
authority or contractual right to require a franchise fee or similar fee through an agreed-upon franchise.
8.4. Collection of Fee. The franchise fee shall be payable not less than quarterly during
complete billing months of the period for which payment is to be made. The franchise fee formula may be
changed from time to time, however, the change shall meet the same Notice and acceptance requirements
and the fee may not be changed more often than annually. Such fee shall not exceed any amount that the
Company may legally charge to its customers prior to payment to the City. Such fee is subject to
subsequent reductions to account for uncollectibles and customer refunds incurred by the Company. The
Company shall not be responsible to pay City fees that Company is unable to collect under Commission
rules or order. The Company agrees to make available for inspection by the City at reasonable times all
records necessary to audit the Company’s determination of the franchise fee payments.
8.5. Continuation of Franchise Fee. If this franchise expires and the City and the Company
are unable to agree upon terms of a new franchise, the franchise fee, if any being imposed by the City at the
time this franchise expires, will remain in effect until a new franchise is agreed upon. However, the
franchise fee will not remain in effect for more than one year after the franchise expires as stated in Section
2.6 of this Franchise. If for any reason the franchise terminates, the franchise fee will terminate at the same
time.
SECTION 9. ABANDONED FACILITIES.
The Company shall comply with Minnesota Statutes, Section 216D.01 et seq. and Minnesota
Rules 7819.3300, as they may be amended from time to time with respect to abandoned facilities located
in Public Ways and Public Grounds. The Company shall maintain records describing the exact location
of all abandoned and retired Gas Facilities within the Public Ways and Public Grounds produce such
records at the City’s request and comply with the location requirements of Section 216D.04 with respect
to all Gas Facilities, including abandoned and retired Gas Facilities not located in Public Ways and
Public Grounds.
SECTION 10. PROVISIONS OF ORDINANCE.
10.1. Severability. Every section, provision, or part of this Ordinance is declared separate
from every other section, provision, or part; and if any section, provision, or part shall be held invalid, it
shall not affect any other section, provision, or part. Where a provision of any other City ordinance
conflicts with the provisions of this Ordinance, the provisions of this Ordinance shall prevail.
10.2. Limitation on Applicability. This Ordinance constitutes a franchise agreement between
the City and Company as the only parties. No provisions herein shall in any way inure to the benefit of
any third person (including the public at large) so as to constitute any such person as a third party
beneficiary of this Ordinance or of any one or more of the terms hereof, or otherwise give rise to any
cause of action in any person not a party hereto.
SECTION 11. AMENDMENT PROCEDURE.
Either party may propose at any time that this Franchise Ordinance be amended. Franchise
Ordinance may be amended at any time by the City passing a subsequent ordinance declaring the provisions
of the amendment, which amendatory ordinance shall become effective upon the filing of Company’s
written consent thereto with the City Clerk within 60 days after the effective date of the amendatory
ordinance. If the Company does not consent to the amendment, the ordinance containing the amendment
shall be revoked by City.
CHAPTER 2
Cable Service
ORDINANCE NO._____
AN ORDINANCE GRANTING A FRANCHISE TO MEDIAONE NORTH CENTRAL
COMMUNICATIONS CORPORATION, D/B/A AT&T BROADBAND, 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-OR-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 further development of a
Cable System, and the continued 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
the 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 request and proposal for renewal by Grantee and negotiations related
thereto, 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, upgrading, and operating the System were
considered and found adequate and feasible in a full public proceeding after due
notice and a reasonable opportunity to be heard;
3. The Franchise granted to Grantee by the City complies with the existing applicable
Minnesota Statutes, federal laws and regulations; and
4. The Franchise granted to Grantee is nonexclusive.
SECTION 1.
SHORT TITLE AND DEFINITIONS
1.1 Short Title. This Franchise Ordinance shall be known and cited as the “Cable
Franchise Ordinance.”
1.2 Definitions. For the purpose 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 not mandatory.
1.3 “Actual Cost” means the 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 Service” means any service tier that 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 Modem” means an electronic device, commonly referred to as such, at a
minimum, containing a modulator and demodulator, tuner, interface, media access
control mechanism and CPU, which acts as an interface between a Subscriber’s
customer premises equipment and the System and is capable of converting analog
signals to digital signals and digital signals to analog to analog signals, thereby allowing
data communications to be carried over System facilities.
1.7 “Cable Service” or “Service” means (1) the one-way transmission to Subscribers of
video programming or other programming services; and (2) Subscribers interaction, if
any, which is required for the selection or use of such video programming or other
programming services. For purposes of this Franchise, “Cable Service” includes, but is
not limited to, the provision of Internet service over the System, Institutional Network
services and any other services or capabilities, but only to the extent consistent with the
definition of “Cable Service” pursuant to federal or State law or applicable regulations.
1.8 “Cable System” or “ System” means the facility of the Grantee consisting 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, but such
term does not include: (1) a facility that only serves to retransmit the television signals of
one or more television broadcast stations; (2) a facility that serves Subscribers without
using any Rights-of-Way; (3) a facility of a common carrier which is subject, in whole or
in part, to the provisions of the Title II of the Communications Act, except that such
facility shall be considered a System if such facility is used in the transmission of video
programming directly to Subscribers, unless the extent of such use is solely to provide
interactive on-demand services; (4) an open video system that complies with 47 U.S.C.
§ 573; (5) any facilities of any electric utility used solely for operating its electric utility
system; or (6) a translator system which receives and rebroadcasts over-the-air signals.
A reference to the System in this Franchise refers to any part of such System including,
without limitation, Converters. The foregoing definition of “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. Any reference to “Cable
System” or “System” herein, which system is owned or operated by a Person other than
the Grantee, shall be as defined herein.
1.9 “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.
1.10 “City Code” means the Andover City Code, as amended from time to time.
1.11 “City Council” means the governing body of the City.
1.12 “Class IV Cable Channel” means the signaling path provided by a Cable System to
transmit signals of any type from a Subscriber terminal to another point in the System.
1.13 “Commission” means the Quad Cities Cable Commission, a municipal joint powers
consortium 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.
1.14 “Converter” means an electronic device (sometimes referred to as a receiver) which
may serve as an interface between a System and a Subscriber’s television monitor, and
which may convert signals to a frequency acceptable to a television monitor of a
Subscriber, and may be an appropriate selector, permit a Subscriber to view all signals
of a particular service.
1.15 “CPI” means the annual average of the Consumer Price Index for all Urban Consumers
(CPI-U) for the Minneapolis-St. Paul CMSA, as published by the Bureau of Labor
Statistics.
1.16 “Drop” means the cable that connects the ground block on the Subscriber’s residence
or institution to the nearest feeder cable of the System.
1.17 “Educational Access Channel” or “Educational Channel” means any 6 MHz
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 the
applicable law.
1.18 “FCC” means the Federal Communications Commission, its designee, and any legally
appointed, designated or elected agent or successor.
1.19 “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.
1.20 “Governmental Access Channel” or “ Governmental Channel” means any 6 MHz
channel on the System set aside by the Grantee, the Commission and/or the City for
Noncommercial use by the City or its delegate.
1.21 “Grantee” is MediaOne North Central Communications Corporation, d/b/a AT&T
Broadband, and its lawful successors, transferees or assignees.
1.22 “Gross Revenues” 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 by any other entity that is a cable operator of the System, from the operation
of the Grantee’s System to provide 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
including, without limitation, Internet access and Cable Modem service fees charged to
Subscribers, to the extent such services are offered as a Cable Service 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 GAAP; revenues from
rentals or sales of Converters or other equipment; fees related to commercial and
institutional usage of the System or the I-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.
1.23 “Installation” means the connection of the System from feeder cable to the point of
connection with the Subscriber Converter or other terminal equipment.
1.24 “Institutional Network” or “I-Net” means the discrete bidirectional communications
network and services related to such network provided by the Grantee to identified
institutions as required by the Franchise, and as further described herein.
1.25 “Leased Access Channel” means channels on the System that are designated or
dedicated for use by a Person unaffiliated with the Grantee pursuant to 47 U.S.C. § 532.
1.26 “Lockout Device” means an optional mechanical or electrical accessory to a
Subscriber’s terminal that inhibits the viewing of a certain program, certain channel, or
certain channels provided by way of the Cable System.
1.27 “Node” means the transition point between optical light transmission (fiber-optic cable)
and the RF transmission (coaxial cable) of video and data signals being delivered to
and received from the Subscriber’s home, or in the case of the Institutional Network,
signals being delivered to and received from Institutional Network sites and all
necessary equipment related to such transition point.
1.28 “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 or programmer from soliciting and receiving financial support to produce and
transmit video programming on a PEG channel, or from acknowledging a contribution.
1.29 “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, and
the development, operation or maintenance of the Grantee’s telephone 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.
1.30 “PEG” means public, educational, and governmental.
1.31 “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.
1.32 “Public Access Channel(s)” means any 6 MHz 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.
1.33 “Quad Cities Franchise Area” means the geographic area consisting of the Minnesota
cities of Andover, Anoka, Champlin, and Ramsey.
1.34 “Quad Cities System” means the Cable System operated pursuant to this Franchise
and located in the member municipalities of the Commission.
1.35 “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 for 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.
1.36 “Right-of-Way Ordinance” means any ordinance of the City codifying requirements
regarding regulation, management and use of right-of-way in the City, including
registration, fees, and permitting requirements.
1.37 “Standard Installation” means any residential Installation that can be completed using
a Drop of 150 feet or less.
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 right-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
right-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 do so.
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 us 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 right-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 right-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 multi-channel 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.
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.
This Franchise shall be in effect for a period of fifteen (15) years, such term
commencing on the effective date specified in this Franchise, unless sooner
renewed, extended, revoked or terminated as herein provided.
2.5 Previous Franchises.
As of the effective date, this Franchise shall supercede and replace any previous
ordinance, as amended, of the City granting a Franchise to Grantee, including any
agreement(s) of the parties related thereto, except the Grantee shall continue to be
bound by any previously accrued but unfulfilled obligations under Ordinance No. 59
(the “Prior Franchise”) for which the Grantee had notice. The Grantee shall remain
liable for payments of all franchise fees and other amounts owed, and for all
unfulfilled actions that the Grantee was notified of and required to take under the
prior Franchise up to the effective date of this Franchise. The grant of this Franchise
shall have no effect on the Grantee’s duty under the prior franchise to indemnify or
insure the City against acts and omissions occurring during the period that the Prior
Franchise was in effect. This Franchise incorporates, amends and replaces that
Memorandum of Understanding dated December 22, 1994.
2.6 Compliance with Applicable Laws, Resolutions and Ordinances.
2.6.1 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
right-of-way, to the extent not inconsistent with this Franchise. Except as
provided below, any modifications 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.
2.6.2 The Grantee shall comply with the terms of any City ordinance or regulation
of general applicability which addresses usage of the right-of-way within the
City which may have the effect of superceding, 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-way users.
2.6.3 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 right-of-way, the conflicting terms in Section 3 and/or
Section 8.5.3 of this Franchise shall be superceded by such City ordinances
or regulations; except that the Grantee shall not, through application of such
City ordinance or regulation of right-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.
2.6.4 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.
2.6.5 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.
2.7 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 hereto, the rules of the FCC, the laws of the State of
Minnesota, the City, or any other body having lawful jurisdiction.
2.8 Territorial Area Involved.
This Franchise is granted for the corporate boundaries of the City, as they exist from
time to time, provided, however, that the Grantee shall not be required to extend
service beyond its present System boundaries except pursuant to the line extension
requirement set forth in this Franchise.
2.9 Written Notice.
All notices, reports, or demands required to be given in writing under this Franchise
shall be deemed to be given when delivered personally to any officer of 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
1685 Crosstown Blvd. NW
Andover, Minnesota 55304
Attention: City Manager/Administrator
With copies to: Franchise Administrator
Quad Cities Cable Commission
737 East River Road
Anoka, Minnesota 55303
And to: Thomas D. Creighton, Esq.
Creighton, Bradley & Guzzetta, LLC
5402 Parkdale Drive
Suite 102
Minneapolis, Minnesota 55416
If to Grantee: General Manager
AT&T Broadband
10 River Park Plaza
St. Paul, Minnesota 55107
With copies to: John F. Gibbs, Esq.
Robins, Kaplan, Miller & Ciresi, LLP
280 LaSalle Plaza
800 LaSalle Avenue South
Minneapolis, Minnesota 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 applicable law; (iv) an Ordinance containing terms and conditions equivalent to this
Ordinance has been approved by each member city of the Commission; and (v) it has
been accepted and executed by the Grantee and the City (“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 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 deconstruction 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.
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 right-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 right-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 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 regulations.
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 wire holding 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 are
just 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,
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 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 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
Franchise, the Grantee shall identify the location of its facilities for the City at no
charge to the City.
3.7 City Use of Facilities.
The City, after consultation with the Grantee, shall have the right to use for its sole
noncommercial purposes the Grantee’s poles, conduits, ducts, and manholes free of
charge provided that such current or continued use will not unreasonably interfere with
the present or future needs or operations of the Grantee.
3.8 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 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, all portions of the System, or any part thereof, 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.
1.1.1 Upon completion of the System Upgrade, 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 standby power generating capacity at the headend. The Grantee
shall maintain motorized 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 motorized 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
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 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 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, which capability shall be
activated and used on or before the completion of the System
Upgrade;
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. For example, the
headend should include equipment that will transmit color video
signals received at the headend in color, stereo audio signals
received at the headend in BTSC stereo format, and a signal
received with a secondary audio track with both audio tracks;
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;
4.1.1.13 facilities and equipment capable of operating within the temperature
ranges typical to the climate of the Quad Cities Franchise Area 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 an Institutional Network hub,
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
4.1.1.15 the Grantee must have TDD/TYY (or equivalent) equipment at the
company office, and a publicly listed telephone number for such
equipment, that will allow hearing impaired customers to contact
the company.
4.1.2 The Grantee is authorized and required to continue to operate
Grantee’s Cable System substantially as it exists on the date hereof,
and to provide service substantially equivalent to its existing service,
within the territorial limits of the City as of the effective date of this
Franchise, until such time as the System is upgraded, as provided
herein.
4.1.3 The Grantee shall complete a System Upgrade in accordance with the
schedule set forth in this Franchise providing at least the following
characteristics:
4.1.3.1 upon completion of the System Upgrade, the System shall
include a hybrid fiber-coaxial architecture, with fiber-optic
cable from the headend to the hubs, and from hubs to
Nodes. Nodes System-wide shall serve on average 350
dwelling units or less, with a minimum of three (3) fibers
connecting such a 350-home average Node to System
headends and hubs. Individual Nodes may serve cable
passing a number of dwelling units in excess of 350,
provided there is no adverse effect on the performance
characteristics of the System serving Subscribers from that
Node;
4.1.3.2 segmentation of the System so that sufficient capacity is
available for interactive services at all times;
4.1.3.3 activation of the bandwidth from 5 to 40 MHz for upstream
transmissions;
4.1.3.4 no more that four (4) amplifiers per coaxial cable in each
cascade from any Node;
4.1.3.5 a capacity rating of at least 870 MHz for all active and
passive components;
4.1.3.6 audio control units shall be utilized for each channel for
volume control on analog service, excluding off-air broadcast
channels or channels that are locally processed in the hub
serving the geographical area. The control equipment shall
be located at the master headend location and monitored
twenty-four hours a day, seven days a week; and
4.1.3.7 electronic transmission and powering equipment connecting
the hub(s) in the Quad Cities System to the Grantee’s other
hubs and/or headend facilities in the Twin Cities metropolitan
area shall be of a redundant design.
4.1.4 The upgrade System shall initially have a minimum analog channel
capacity of at least 78 channels, downstream to all Subscribers, plus
additional capacity for digital and other services.
4.1.5 The System shall be designed and constructed in order to allow
narrowcasting of Government Access Channels discretely by
municipality. The Grantee shall provide and maintain all equipment
and facilities necessary to accomplish this narrowcasting, at no cost
to the City or the Commission.
4.1.6 All power supplies for the System shall be equipped with standby
power capability in accordance with Section 4.1.1.2. Additionally,
the Grantee shall use status monitoring equipment at all power
supply locations in the System. Such equipment shall have the
capabilities described in Section 4.1.1.8.
4.1.7 PEG channels shall not be channel mapped without the prior
approval of the Commission. As to all other channels, the Grantee
shall make good faith efforts to avoid channel mapping unless that
mapping is required to deliver a high-quality signal or to comply with
applicable laws or regulations. In the event mapping of non-PEG
channels is required to deliver a high quality signal or to comply with
applicable laws or regulations, the Grantee agrees to map as few
channels as possible.
4.1.8 Emergency Alert System.
4.1.8.1 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.
4.1.8.2 The System shall be capable of allowing a representative of
the City to remotely activate the EAS and to override the
audio and video on all channels on the System that may be
lawfully overridden (subject to any contractual or other rights
of broadcasters) without the assistance of the Grantee, for
emergency broadcasts from a location designated by the
City.
4.1.9 During the design, walkout and preliminary construction activities
related to the System Upgrade, the Grantee shall seek to identify
the non-video interests of the business community within the City
and shall seek to quantify business community demand for non-
video services. Prior to making any final determination of such
demand, the Grantee shall solicit input from the City regarding the
location of business corridors that may desire such services. The
Grantee shall, in connection with the System Upgrade, install
conduit adequately sized to address future System rebuilds or
System additions, with the intent to obviate the need to reopen the
rights-of-way for construction and installation work.
4.1.10 The City may request, as part of the System Upgrade, that the
Grantee remove from the rights-of-way, at its own expense, existing
equipment, plant and facilities that will not be used in the future,
whether activated or not. If any unused or deactivated equipment
remains in rights-of-way after such City request and the Grantee’s
reasonable opportunity to remove, the City may remove such plant,
facilities and equipment at the Grantee’s expense. The Grantee
may appeal any request to remove existing equipment, plant and
facilities to the City Council and thereby stay City action until a final
decision is issued by the City Council. In the event existing facilities,
plant and equipment are left underground in the rights-of-way, the
City may require the Grantee to provide accurate maps showing the
location and the nature of the deactivated or unused facilities, plant
and equipment, if such information has not already been provided to
the City.
4.1.11 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 High-Speed Services.
4.2.1 To the extent the Grantee can lawfully provide high-speed Internet service via the
System as a Cable Service, the System shall provide such a service if the
System is technically capable of providing that service.
4.2.2 The Grantee shall offer one (1) free residential Cable Modem or its equivalent
and free monthly Cable Modem service, including Internet access, to the
following entities if they cannot use the Institutional Network for high-speed data
transmission or Internet access: (i) each elementary and secondary school
located in the City that is passed by the cable distribution network; and (ii) all
governmental institutions designated in Exhibit A. The specified Cable Modems
and monthly Cable Modem service shall be made available, upon request, to
every school and governmental institution within six (6) months of the date that
two-way high-speed Internet access is introduced to Subscribers on a
commercial basis.
4.3 System and Institutional Network Construction Timetable.
4.3.1 Grantee shall complete all construction related to the System Upgrade (including
the Institutional Network) and shall fully activate the upgraded System no later
than December 31, 2002. The Grantee shall provide for phased activation
launches of the subscriber network as Nodes are completed. Failure to timely
complete such construction shall be a violation of this Franchise.
4.3.2 Within ninety (90) days after the Effective Date of this Franchise, the Grantee
shall commence application for necessary permits, licenses, certificates and
authorizations that are required in the conduct of its business.
4.3.3 Within ninety (90) days after the Effective Date of this Franchise, Grantee shall
commence System preliminary construction, walkout, electronic design, fiber
design, and other associated System Upgrade steps, and shall give written
notice to the City upon commencement of such activities.
4.3.4 All construction shall be performed in accordance with applicable laws and
regulations, except where specifically waived by the City.
4.3.5 The Grantee shall provide the City with notice prior to commencement of steps of
the System Upgrade in which possible service disruptions or physical
construction activities may occur, including but not limited to: (i) tap pedestal
replacements; (ii) amplifier/line extender pedestal replacements; (iii) underground
duct replacement; (iv) overlashing of aerial fiber optic lines; and (v) underground
placement or replacement of coaxial cables.
4.3.6 Upon completion of the System Upgrade initial design, the Grantee shall make
available to the City for review, on a confidential basis, a concise description of
the facilities proposed to be erected or installed, and subscriber network network
design prints/map(s), which shall include at least the following elements: (i) trunk
and feeder design; (ii) fiber routes; (iii) Node locations; (iv) standby power supply
locations; and (v) areas of the City to be served by each Node.
4.3.7 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 Reporting.
4.4.1 Following commencement of construction of the System Upgrade or any similar
major construction, the Grantee shall, upon request of the City, meet with the
City and provide an update on the progress of the System Upgrade or other
construction.
4.4.2 Public Notification. Prior to the beginning of the System Upgrade and
periodically during each phase, the Grantee shall inform the public and its
Subscribers, through various means, about: (i) the progress of the System
Upgrade or major construction; (ii) areas where construction crews will be
working; and (iii) any expected temporary interruptions to existing services which
may occur.
4.4.3 Delays in the System Upgrade. The Grantee shall not be excused from the
timely performance of its obligation to begin and complete any System Upgrade
within the time specified herein, except for the following occurrences:
4.4.3.1 Any “Force Majeure” situation, as described herein; and
4.4.3.2 Unreasonable failure or delay by the City to issue any permits or
permission upon a timely and complete application submitted to the City
by the Grantee or its contractor representative and tender of any required
permit fee.
4.4.4 Consequences of Delays. Absent a showing of excusable delay pursuant to
Subsection 4.4.3 above, should the Grantee be unable to demonstrate the
commencement or timely completion of the System Upgrade by the times
specified herein, or be unable to reasonably justify any delays, then the Grantee
shall be in violation of a material provision of this Franchise and the City may, in
its sole discretion, either grant the Grantee an extension of time to complete such
construction, or implement any enforcement measures or penalties specified in
this Franchise or the City Code, including but not limited to revocation of the
Franchise. In the event of excusable delay pursuant to Subsection 4.4.3, the
time for completion will be extended by the period of such delay.
4.5 Line Extension Requirements.
4.5.1 Subject to Subsection 4.5.2, the Grantee shall make Cable Service available to
all residences, businesses and other structures within the City, including multiple
dwelling unit buildings, whose owners or occupants request Cable Service,
except for multiple dwelling unit buildings to which the Grantee, after best efforts,
has not obtained authorization to access.
4.5.2 Within the City’s boundaries; including any areas annexed after the effective date
of this Franchise, the Grantee must extend its System upon request to provide
service to any Person or business upon request, without charging such Person or
business more than the Standard Installation charges for the individual
Subscriber’s Drop, as long as the following conditions are satisfied, unless the
Grantee demonstrates to the City’s satisfaction that a waiver of this requirement
is justified due to extraordinary circumstances:
4.5.2.1 the new Subscriber requesting service is located 150 feet or less from the
termination of the Cable System; and
4.5.2.2 the area of the City in which the new Subscriber resides has a density of
at least thirty-five (35) dwelling units per mile of feeder cable, excluding
Drop footage, when aerial construction is required for an extension, and at
least forty (40) dwelling units per mile of feeder cable, excluding Drop
footage, when underground construction is required for an extension. All
areas that reach the applicable density requirement at any time during the
requirement at any time during the Franchise term shall be provided
service upon reaching the minimum density. The City, for its part, shall
facilitate the extension of service by requiring developers and utility
companies to provide the Grantee with at least fifteen (15) days advance
notice of an available open trench for the placement of necessary cable,
but in no event shall the City have any liability for its failure to require any
Person to provide notice, or for any developer’s or utility company’s failure
to provide advance notice hereunder.
4.5.3 In the event that the requirements set forth in Subsection 4.5.2 are not met,
Persons requesting service can be required to bear the remainder of the total
construction costs on a pro rata basis.
4.5.3.1 The “total construction costs” are defined as the Actual Cost to construct
the entire extension including electronics, pole make-ready charges, and
labor, but not the cost of the house Drop.
4.5.3.2 In the event the number of Subscribers in a particular area of the City
reaches the density specified in Section 4.5.2.2 within three (3) years from
the date construction of the extension is completed, the Grantee shall
return to the then existing Subscribers, pro rata, the full amount of their
contributions for the extension.
4.5.4 Irrespective of the density requirements set forth in this Section 4.5, the Grantee
shall continue to offer Service to all dwelling units serviceable prior to the System
Upgrade.
4.5.5 The Grantee shall be given a reasonable period of time to construct and activate
cable plant to service annexed or newly developed areas, but in no event shall
the applicable timeframe exceed twelve (12) months from notice thereof by the
City to Grantee, and qualification of the area requesting service pursuant to
Section 4.5.2.2.
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 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 Testing.
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. In 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
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 that 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 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 incapable of passing the full 870 MHz System
capacity at the time a Subscriber upgrades service to a level which requires a signal
above the 550 MHz spectrum.
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 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 non-voice return communications.
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 Converter.
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.
4.14 Additional Capacity.
The Grantee shall notify the City in writing, in advance of the installation of any fiber
optic capacity not contemplated by the initial design or System Upgrade, so that additional
fibers may be installed on an Actual Cost basis for government and institutional use. If the City
wishes to request additional fiber, it may notify the Grantee within fifteen (15) days of receipt of
the Grantee’s notification.
SECTION 5.
SERVICE PROVISIONS
5.1 Customer Service Standards.
The Grantee shall at all times comply with 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 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.
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
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.
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.
5.6 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.
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. Late fee amounts on file with the Commission shall not be adjusted by
the Grantee without the Commission’s prior approval.
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 material:
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, internet/Cable Modem policies
and privacy rights (only at installation of such service), delinquent
Subscriber disconnect and reconnect procedures and any other of
its policies applicable to Subscribers.
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 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 Drop Boxes.
5.12.1 The Grantee shall install, maintain and operate, throughout the term of this
Franchise, a single drop box at a location agreed upon by the Commission and
the Grantee. Additional drop boxes may be installed at other locations. Drop
boxes shall be emptied at least once a day, Monday through Friday, with the
exception of legal holidays, and payments shall be posted to Subscribers’
accounts within forty-eight (48) hours of pick-up. Subscribers shall not be
charged a late fee or otherwise penalized for any failure by the Grantee to empty
a drop box as specified herein, or to properly credit a Subscriber for a payment
timely made.
5.12.2 After consultation with the Commission, the Grantee shall provide Subscribers
with at least sixty (60) days’ prior notice of any change in the location of the
customer service center(s) serving the Quad Cities System, which notice shall
apprise Subscribers of the customer service center’s new address, and the date
the changeover will take place.
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 The Grantee shall continue to dedicate and make available four (4) 6 MHz
analog video channels for public, educational, governmental and religious use.
The four (4) 6 MHz PEG Access Channels shall be allocated as follows on the
Effective Date of this Franchise:
6.1.2.1 one (1) full-time 6 MHz analog video channel for Noncommercial City
Government Access Channel use, designed, constructed and activated for
discrete transmissions;
6.1.2.2 one (1) full-time 6 MHz analog video channel for Noncommercial Public
Access Channel use; and
6.1.2.3 two (2) full-time 6 MHz analog video channels for Noncommercial Public,
Educational, religious and/or Government Access Channel use, to be
programmed by the Commission, in its sole discretion.
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 Public Access Channel 15 and Government Access Channel 16 shall not be
relocated without the consent of the Commission. If the Commission agrees to
change the channel designation for Public Access Channel 15 and/or
Government Access Channel 16, the Grantee must provide at least three (3)
months notice to the Commission prior to implementing the change, and 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 Prior to the completion of the System Upgrade, the Grantee shall have the right
to relocate each of the PEG channels (other than Public Access Channel 15 and
Government Access Channel 16), one time without the Commission’s consent,
and without reimbursing the City or the Commission for any costs it incurs as a
result of the relocation. If a qualified PEG channel has been relocated once
without Commission approval, that channel may not be moved again unless: (i)
the Commission has consented to the move; and (ii) the Grantee reimburses the
Commission, the City and/or a PEG entity for all reasonable costs of such move,
as described below, and provides at least three (3) months notice to the
Commission, the City and/or PEG entity before making the change in channel
designation. After the System Upgrade is completed, no PEG channel shall be
relocated without the mutual consent of the Commission and the Grantee. If the
Grantee and the Commission agree to change the channel designation for a
PEG channel, the Grantee must provide at least three (3) months notice to the
Commission prior to implementing the change, and 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 City and/or the Commission
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. Notwithstanding anything to the contrary, the Grantee shall not be
required to repay any school for any on-premises school expenses that arise out
of any PEG channel relocation.
6.1.5 As long as the Grantee’s System carries Basic Cable Service channels in analog
form, the Grantee must make the PEG channels available in analog form to
Subscribers within the City. If and when the Grantee’s Cable System carries
PEG channels in digital form, those digital PEG channels must be made
available as a digital service to all Subscribers in the City. At all times, the
Grantee’s Cable System must make the PEG channels available to all Basic
Cable Service Subscribers residing within the City in at least one format (digital
or analog); thus, the Grantee shall make the PEG channels available to all such
Subscribers in analog form unless and until it makes Basic Cable Service
channels available to Subscribers only in digital form. If the Grantee opts to carry
PEG channels in a digital format, it shall assume the cost of replacing all
equipment necessary to ensure that PEG signals can be produced and
transmitted on the Grantee’s digital service tier.
6.1.6 In the event the Grantee makes any change in the System and 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.
6.1.7 All PEG channels shall be transmitted in the same format as all other Basic
Cable Service channels and shall be carried on the Basic Service tier.
6.1.8 The Commission shall be responsible for switching PEG signals and Institutional
Network transmissions.
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 2.5 percent of its Gross
Revenues (the “Quarterly Support Grant”). Payment of the Quarterly Support
Grant shall be made to the Commission within thirty (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 Quarterly Support Grant. All amounts paid under this
paragraph shall be subject to audit and re-computation by the Commission in
accordance with the rights provided to the City pursuant to Section 8.3 of this
Franchise.
6.2.2 In addition to the Quarterly Support Grant, the Grantee shall make the following
capital support payments:
6.2.2.1 a one-time payment of $200,000 (the “Initial Capital Support Grant”) to be
used for PEG facilities and/or PEG equipment (including, but not limited
to, studio and portable production equipment, editing equipment and
program playback equipment). Payment of the Initial Capital Support
Grant shall be made to the Commission in one lump sum within fifteen
(15) days after the Effective Date of this Franchise. The Commission, in
its sole discretion, shall allocate the Initial Capital Support Grant.
6.2.2.2 a one-time payment of $300,000 (“Supplemental Capital Support Grant I”)
to be used for PEG facilities and/or equipment (including, but not limited
to, studio and portable production equipment, editing equipment and
program playback equipment). Payment of Supplemental Capital Support
Grant I shall be made to the Commission in one lump sum ninety (90)
days after the Effective Date of this Franchise. The Commission, in its
sole discretion, shall allocate Supplemental Capital Support Grant I.
6.2.2.3 a one-time payment of $200,000 (“Supplemental Capital Support Grant
II”), adjusted by CPI, to be used for PEG facilities and/or equipment
(including, but not limited to, studio and portable production equipment,
editing equipment and program playback equipment). Payment of
Supplemental Capital Support Grant II shall be made to the Commission
in one lump on the second anniversary of the Effective Date of this
Franchise.
The Commission, in its sole discretion, shall allocate Supplemental Capital
Support Grant II.
6.2.2.4 an annual equipment grant of $40,000 (the “Equipment Grant”), to be
allocated by the Commission in its sole discretion. The Equipment Grant
shall be increased by CPI on an annual basis, and shall be paid to the
Commission no later than January 15 of each year beginning in 2001.
6.2.2.5 The Grantee may (i) treat the Initial Capital Support Grant, Supplemental
Capital Support Grant I, Supplemental Capital Support Grant II and the
Equipment Grant as a franchise requirement and (ii) pass the amount paid
pursuant to this paragraph through to Subscribers as an external cost, and
may itemize the amount attributable to these grants on Subscribers’
monthly bills, either as part of the PEG Fee or as a separate line item, all
in accordance with applicable federal law.
6.2.3 In the event any payment required by this Section 6.2 is not made on or before
the required date, the Grantee shall pay, during the period such unpaid amount is
owed, additional compensation and interest charges computed from such due
date, at an annual rate of ten percent (10%). The Grantee waives any rights to
claim that any interest or penalties imposed hereunder constitute franchise fees
within the meaning of 47 U.S.C. §542. Failure to pay required amounts shall also
be a violation of this Franchise, subject to all sanctions herein.
6.2.4 The Grantee and the City agree that in the event of a federal or State statutory
change that entirely eliminates the Grantee’s obligation to pay a franchise fee,
then the Grantee shall continue to pay to the City as PEG support an amount
equivalent to the prior year’s franchise fee. Said PEG support shall continue for
one (1) year during which time the Grantee and the City shall engage in good
faith negotiations regarding PEG support obligations. This paragraph shall not
apply if the Grantee is required to pay a franchise fee to another entity (including,
but not limited to, the State) rather than to the City.
6.2.5 The Grantee shall provide, at the time of the System Upgrade, at no cost to the
City, the Commission and I-Net Users, the fiber-optic or other cabling, switching
systems and other electronics, equipment, software and other materials
necessary to route (i) PEG signals from their origination point through the
Commission’s master control to the appropriate subscriber network channel,
including channels provided discretely, and (ii) I-Net signals to and from
institutions and to and from institutions to Subscribers. The Grantee shall
continue to have this obligation regardless of where the Commission’s master
control or the pertinent headend or hub is located. Provided, however, if the
Commission moves its master control from 737 East River Road, Anoka,
Minnesota, it shall reimburse the Grantee for the Actual Cost of any additional
facilities that need to be constructed or provided to transport the signals to the
new location.
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 provided Leased Access Channels as required by federal and
State law.
6.5 Universal PEG Tier.
6.5.1 The Grantee shall offer the following services and benefits to all current and
potential Subscribers whose dwelling units are passed by cable plant: (i) the
Universal PEG Tier, free of charge; (ii) free Installation of a service Drop; and (iii)
one free cable television outlet.
6.5.2 The Universal PEG Tier shall be offered by the Grantee for the term of the
Franchise, unless the Grantee (or its successors) and the Commission mutually
agree to suspend or terminate the Universal PEG Tier program.
6.5.3 The Grantee agrees to provide, at no cost to Universal PEG Tier Subscribers, an
A/B switch and all cable-related equipment necessary to allow reception of local
broadcast stations on a Universal PEG Tier Subscriber’s television receiver,
provided said television receiver is capable of receiving broadcast television
signals. For purposes of this provision the term “cable-related equipment” shall
not include antennas, antenna wires, video cassette recorders or similar devices.
6.5.4 The Grantee and the City agree that the rates charged to Subscribers will not
increase as a result of the Grantee’s implementation of the Universal PEG Tier
program, except that the Grantee may pass the expense of the Universal PEG
Tier through to Subscribers as an external cost, and may itemize the amount
attributable to the Universal PEG Tier on Subscribers’ monthly billing statements.
The amount recovered by the Grantee each month shall not exceed $0.07 per
Subscriber, and shall not reduce the amount of the PEG support furnished to the
Commission and the City under this Franchise. The Grantee shall, on an annual
basis, provide the City with a reconciliation of amounts collected and expended
related to the provision of the Universal PEG Tier. The Grantee agrees to adjust
the Universal PEG Tier fee for any overpayment or underpayment.
6.5.5 Notice of the availability of the Universal PEG Tier shall be provided in the
informational package that is provided to Subscribers on an annual basis, and in
promotional materials that shall be sent to potential Subscribers each year.
6.5.6 Should a Universal PEG Tier Subscriber require or request a set-top terminal
device or other equipment not essential to the reception of the Universal PEG
Tier, or should a Universal PEG Tier Subscriber require a Drop that exceeds 150
feet in length, the Universal PEG Tier Subscriber shall be responsible for paying
the regulated charges for such equipment, and for the additional costs
associated with installing a drop in excess of 150 feet. “Additional costs,” as
used in this paragraph, shall mean the Grantee’s total Installation costs, less the
Installation costs that the Grantee would incur by constructing a standard 150-
foot Drop.
6.5.7 For purposes of this Section 6.5, the following definitions shall apply:
6.5.7.1 “Universal PEG Tier” shall mean all PEG channels identified in this
Franchise or subsequently added pursuant to the Franchise.
6.5.7.2 “Drop” shall mean an aerial or underground cable, not to exceed 150 feet
in length, that runs from the nearest connection point on a feeder cable to
the point of connection in a Subscriber’s dwelling unit.
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 or the Institutional Network pursuant to Section 6 and 7 of this
Franchise do not constitute and are not part of a franchise fee and fall within one or
more of the exceptions to 47 U.S.C. § 542.
SECTION 7.
INSTITUTIONAL NETWORK (I-NET) PROVISIONS
AND RELATED COMMITMENTS
7.1 Institutional Network Facilities and Capacity.
7.1.1 The Grantee shall, at no cost to the City (and its agencies and departments), the
Commission and the institutions designated in Exhibit A to receive Institutional
Network service (collectively, the “I-Net Users”), construct, activate and maintain
an Institutional Network that consists of the following facilities; (i) six (6) bi-
directional fiber optic lines to each I-Net Node; and (ii) bi-directional coaxial cable
links between the sites designated in Exhibit A to receive Institutional Network
service (the “I-Net Sites”) and the nearest I-Net Node. If a new City Hall facility is
constructed or established during the term of this Franchise, the Grantee shall
connect the new site to the Institutional Network, free of charge. The City (and
its departments and agencies), the Commission and all institutions located at the
I-Net Sites shall have exclusive use of all I-Net capacity, to the extent provided in
subsection 7.2. I-Net Users may not sell or resell services or capacity to any
third party. However, I-Net Users may provide video, voice and data services to
themselves, including those which the Grantee otherwise sells to others. The
limitations of this paragraph shall not prevent I-Net Users from subleasing,
bartering, selling, reselling or giving away capacity on the Institutional Network to
any other public or nonprofit entity for noncommercial purposes that do not
directly compete with any products or services offered by the Grantee.
7.1.2 The I-Net shall provide 450 MHz of activated capacity with no less than 54
standard video (6 MHz) channels (at least 23 upstream channels and at least 31
downstream channels) to the I-Net Sites. The entire I-Net shall be tested before
the date of I-Net activation. If any segment does not pass the Grantee’s
performance test(s), the Grantee shall take all steps necessary to meet
applicable standards, and the affected segment shall be retested. At the
Commission’s request, the Grantee shall send the Commission the results of
each test conducted under this paragraph.
7.1.3 All I-Net distribution system power supplies shall have the standby capability of
providing at least three (3) hours of backup power. Prior to battery failure, the
Grantee shall connect I-Net power supplies to portable generators capable of
producing adequate electrical current until commercial power is restored.
7.1.4 The Grantee shall connect the I-Net Sites to the Institutional Network pursuant to
Exhibit A, at no cost to the City, the Commission or I-Net Users. Other
governmental, public or educational institutions subsequently designated by the
City shall be connected to the I-Net via coaxial cable, free of charge, if the
designated institution is located less than five hundred (500) feet from the
existing I-Net, or if such designated institution agrees to reimburse the Grantee
for its Actual Costs in excess of the cost of the first 500 feet of such installation.
Notwithstanding the foregoing, any new City Hall facilities shall be connected to
the I-Net via coaxial cable at no charge to the City, the Commission or any other
I-Net Users.
7.1.5 Notwithstanding anything to the contrary in this Franchise, the Grantee shall
connect the Ramsey Fire Department building located at 15050 Armstrong
Boulevard , NW, Ramsey, Minnesota (the “Ramsey Fire Hall”) to the I-Net (the
“Ramsey Fire Hall I-Net Connection”). In accordance with this Franchise, the
Ramsey Fire Hall I-Net Connection shall be completed and successfully activated
consistent with the diagram attached as Exhibit C no later than December 31,
2002. If at the time of the I-Net upgrade the Ramsey Fire Hall will continue to
house Ramsey’s City Council chambers for a period of at least twelve more
months, the Grantee shall construct, equip and activate the Ramsey Fire Hall I-
Net Connection at no charge to the City, the Commission or other I-Net Users.
However, if at the time of the I-Net Upgrade Ramsey’s City Council chambers will
continue to be housed in the Ramsey Fire Hall for less than twelve months, the
Commission or the appropriate I-Net User shall reimburse the Grantee for its
Actual Cost of installing the Ramsey Fire Hall I-Net Connection in excess of the
Actual Cost of the first 500 feet of construction from the existing Institutional
Network. Prior to the activation of the Ramsey Fire Hall I-Net Connection, the
Grantee shall provide Ramsey with the following: (i) sufficient upstream
bandwidth on the subscriber network to transport a 6 MHz analog video channel
to Grantee’s headend or hub, as appropriate; and (ii) all transmission equipment
and materials necessary to originate and transmit video signals from the Ramsey
Fire Hall through the Grantee’s System to Ramsey’s discrete Governmental
Access Channel (collectively, the “Temporary Upstream Feed”) and then on to
Subscribers. The Grantee shall complete and activate the Temporary Upstream
Feed no later than the Effective Date of this Franchise. The Temporary
Upstream Feed shall remain fully operational until such time as the Ramsey Fire
Hall I-Net Connection passes all applicable tests, as specified in subsection
7.1.2, and is successfully activated. At all times, the combination of the
downstream subscriber network and the Temporary Upstream Feed or the
Ramsey Fire Hall I-Net Connection shall meet or exceed FCC technical
standards at all Subscriber locations. The Grantee shall provide, install and
maintain the Temporary Upstream Feed at no charge to the City, the
Commission or I-Net Users. The Grantee may pass all direct costs associated
with the Ramsey Fire Hall I-Net Connection and the Temporary Upstream Feed
through to all Subscribers as an external cost and may itemize such costs on all
Subscribers’ monthly billing statements as part of the PEG Fee or as a separate
line item entitled “institutional network,” all in accordance with applicable law.
7.1.6 I-Net Users shall be responsible for providing any end-user or interface
equipment needed for transmission or reception of signals. Notwithstanding the
foregoing, the Grantee shall, at the Commission’s request, provide at no charge
to the City, the Commission or I-Net Users up to twenty (20) new modulators for
City and/or Commission use.
7.2 Grantee’s Use of I-Net Capacity.
The I-Net shall be for the exclusive use of the City, the Commission and other I-Net
Users throughout the term of the Franchise. Notwithstanding the foregoing, the Grantee
may use capacity on the I-Net, including for lease or other commercial purposes,
provided that the City, the Commission and I-Net Users are not using such capacity and
further provided that the Grantee’s use does not interfere with use of the I-Net by the
City, the Commission, or I-Net Users. Upon receiving oral or written notice from the
Commission, the Grantee or a lessee shall immediately cease using the I-Net for any
purpose that the Commission, in its sole discretion, determines is interfering with I-Net
Users’ communications. Use of the I-Net by the City, the Commission and I-Net Users
shall, at all times, have priority over any use(s) by the Grantee or any lessee. The
Grantee or a lessee shall terminate its use of any channel capacity on the I-Net within
three (3) months after receiving notice from the Commission that the City, the
Commission or any I-Net User has determined to use such capacity. Any agreement
entered into by the Grantee and a third party for the lease of I-Net capacity shall be
subject to the terms and conditions of this Franchise.
7.3 I-Net Performance Standards.
The Grantee shall maintain the I-Net in accordance with technical and performance
standards set forth in Exhibit B (I-Net Performance Standards), which is made a part
hereof. The Grantee shall provide the City, or its designee, upon request, with reports
of the performance of the I-Net and the Grantee’s compliance with the aforementioned
technical and performance standards.
7.4 Institutional Network Security.
The Grantee and the Commission shall at all times use reasonable efforts to protect the
security of the Institutional Network. For purposes of this paragraph, “to protect
security” means to protect those physical elements of the Institutional Network under
the party’s direct control from unauthorized intrusion, signal theft, tampering,
wiretapping or other actions that might: (i) compromise the integrity of or degrade the
signals carried over the Institutional Network; or (ii) result in the unauthorized
interception and disclosure of information.
7.5 Interconnection and Use of Adjacent Institutional Networks.
7.5.1 Concurrent with the System Upgrade, the Grantee shall construct interconnection
links to the Institutional Networks of Grantee’s Systems serving: (i) the City of
Coon Rapids, Minnesota; (ii) the member cities of the North Metro
Telecommunications Commission; and (iii) the member cities of the Northwest
Suburban Cable Communication Commission (“Adjacent Institutional Networks”).
Each interconnection link shall be completed within a reasonable timeframe
mutually agreed upon by the Commission and the Grantee, unless an extension
is granted upon petition by the Grantee. The Grantee shall be responsible for
switching all signals carried over the interconnection links described in this
paragraph, including signals that are originated by or intended for the City,
Commission or I-Net Users.
7.5.2 Every interconnection link established pursuant to this Section 7.5 shall, at a
minimum: (A) use a fiber optic transmission medium (B) allow for the seamless
transmission of all required I-Net signals on both systems; and (C) provide, for
the Commission’s exclusive use, at least one (1) 6 MHz analog channel for
forward video purposes, one (1) 6 MHz analog channel for return video
purposes, one (1) 6 MHz channel for forward data and/or other purposes and
one (1) 6 MHz analog channel for return data and/or other purposes.
7.5.3 The Grantee shall cooperate with any interconnection corporation, regional
interconnection authority, or state or federal agency which may be hereafter
established for the purpose of regulating, facilitating, financing or otherwise
providing for the interconnection of cable systems beyond the boundaries of the
City.
7.5.4 At the Commission’s request, the Grantee shall use its best efforts to obtain any
required authorization from the North Metro Telecommunications Commission,
the Northwest Suburban Cable Commission and the City of Coon Rapids,
Minnesota (the “Adjacent Commissions”) that is necessary to allow the
Commission, the City and I-Net Users to utilize capacity on the Adjacent
Institutional Networks. In the event the Grantee is unable to obtain such
authorization after using its best efforts, or if the Adjacent Institutional Networks
are not under the control of the Adjacent Commissions, the Grantee shall provide
the Commission, the City and/or I-Net Users with available bandwidth on the
Adjacent Institutional Networks, free of charge, as follows: if capacity on the
Adjacent Institutional Networks is available and under the Grantee’s control (or if
the Grantee has I-Net capacity available to it under the terms of its franchises
with the Adjacent Commissions) the Grantee shall dedicate and furnish for
Commission, City or I-Net User use the greater of 12 MHz of bandwidth, or the
maximum amount of bandwidth available and under Grantee’s control, up to 12
MHz. Upon request, the Grantee shall make additional Adjacent Institutional
Network capacity available to the Commission, the City and I-Net Users at Actual
Cost, provided that additional bandwidth is available and under the Grantee’s
control. In no event shall Grantee have any obligation or be responsible for
providing any additional equipment as a result of this subsection.
7.6 Subscriber Network Drops to Designated Buildings.
7.6.1 Grantee shall provide, free of charge, Installation and activation of one (1)
subscriber network Drop, and one (1) cable outlet at those institutions currently
receiving such facilities, and the institutions identified and designated for such
facilities in Exhibit A, which is attached hereto and made a part hereof.
7.6.2 The Grantee shall provide Basic Cable Service and any equipment necessary to
receive such service, free of charge, to those institutions currently receiving
Basic Cable Service, and the institutions identified and designated for such
service in Exhibit A. Institutions currently receiving additional Cable Services
from the Grantee, free of charge, shall continue to receive those same services,
or comparable services, during the term of this Franchise, free of charge.
7.6.3 Additional subscriber network Drops and/or outlets will be installed at designated
institutions by the Grantee on an Actual Cost basis. Alternatively, said institution
may add outlets at its own expense, as long as such Installation meets the
Grantee’s standards. The Grantee shall have three (3) months from the date of
City designation of additional institution(s) to complete construction of the Drop
and outlet, unless weather or other conditions beyond the control of the Grantee
require more time.
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
delegate 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
delegate a Franchise fee in an amount equal to five percent (5%) of its 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 re-computation 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 borne
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 borne 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 re-computation 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 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 re-computation 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.
8.4 Access to Records.
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 If required by the City, the Grantee shall furnish to and file with the City the maps,
plats, and permanent records of the location and character of all facilities
constructed, including underground facilities, and Grantee shall file with the City
updates of such maps, plats and permanent records annually if changes have
been made in the System.
8.6 Periodic Evaluation.
8.6.1 The City may require evaluation sessions at any time during the term of this
Franchise, upon fifteen (15) days written notice to the Grantee.
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 that
are both economically and technically feasible.
.
SECTION 9.
GENERAL FINANCIAL AND INSURANCE PROVISIONS
9.1 Performance Bond.
9.1.1 At the time the Franchise becomes effective 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 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
attorney’s fees and costs, up to the full amount of the bond, and further
guaranteeing payment by the Grantee of claims, liens and taxes due 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 On the Effective Date of this Franchise, 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
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 Upgrade 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.
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 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 Whenever the Letter of Credit is drawn upon, the Grantee may, within seven (7)
days of the withdrawal, 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 and the City may continue to
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.
9.2.6.2 Upon the determination of the City that no violation has taken place, the
City shall refund to Grantee, without interest, all monies drawn from the
Letter of Credit by reason of the alleged violation.
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 that 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 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 Nothing in this Franchise relieves a Person, except the City, from liability arising
out of the failure to exercise reasonable care to avoid injuring the Grantee’s
facilities while performing work connected with grading, re-grading, or changing
the line of a Right-of-Way or public place or with the construction or
reconstruction of a sewer or water system.
9.3.4 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, including
broadcaster’s/cablecaster’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 $1,000,000.00 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, $1,000,000.00 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 maintained by Grantee in full force
and effect during the entire term of the Franchise. Each policy of insurance shall
contain a statement on its face that the insurer will not cancel the policy or fail to
renew the policy, whether for nonpayment of premium, or otherwise, and whether
at the request of Grantee or for other reasons, except after sixty (60) days
advance written notice have been provided to the City.
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.
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 of this Franchise; or
10.1.1.2 Grantee has attempted to evade any of the provisions of the Franchise; or
10.1.1.3 Grantee has practiced fraud or deceit upon the 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.
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 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 Minnesota/Wisconsin
Systems provided there is no change in the controlling interests that could
materially alter the financial responsibilities for the Grantee.
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 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:
10.5.3.1 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;
10.5.3.2 A list detailing all documents filed with any state or federal agency related
to the transaction including, but not limited to, the MPUC, the FCC, the
FTC, the SEC or MnDOT. Upon request, Grantee shall provide City with a
complete copy of any such document; and
10.5.3.3 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:
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 the 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 that
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 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
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 that
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.
12.3 Penalty.
Any firm, Person, group, company, or corporation found guilty of violating this section
may be fined not less than Twenty Dollars ($20.00) and the costs of the action nor more
than Five Hundred Dollars ($500.00) and the costs of the action for each and every
subsequent offense. Each continuing day of the violation shall be considered a
separate occurrence.
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 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 change in federal,
State or local laws. Provided, however, nothing herein shall restrict the City’s exercise
of its police powers or the City’s authority to unilaterally amend Franchise provisions 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 Person 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 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.
13.4.4 The 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 Non-enforcement 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 public, the rights-of-way, public property or private property.
13.9 Governing Law.
This Franchise shall be governed in all respects by the laws of the State of
Minnesota.
13.10 Captions and References.
13.10.1 The captions and headings of 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:
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 5th day of December, 2000.
ATTEST: CITY OF ANDOVER, MINNESOTA
By:_________________________ By:__________________________
Its:_________________________ Its:__________________________
ACCEPTED: This Franchise is accepted and we agree to be bound by its terms and
conditions.
MEDIAONE NORTH CENTRAL
COMMUNICATIONS CORPORATION
d/b/a AT&T BROADBAND
Dated:_______________________ By:__________________________
Its:__________________________
Exhibit B
Quad Cities I-Net Performance Standards
Upon completion of the I-Net upgrade specified in Section 7 of the Franchise:
I. Video Transmission
A. Video transmission will comply with the following performance standards:
1. Carrier to noise ratio = 45dB or better
2. Carrier to composite triple beat = 53dB or better
3. Carrier to composite second order = 55dB or better
4. Carrier to cross modulation = 55dB or better
5. System signal level variations (peak to valley) = n/10+2 or better for all
coaxial cable portions of the I-Net (where N = the number of amplifiers in
cascade).
B. Testing will occur twice yearly following the timing established in 47 C.F.R. §
76.601 and 76.605.
1. From the institution to the longest subscriber cascade.
2. From the institution through the applicable headend/hub site returning
back to the same institution.
3. Performed using existing I-Net carriers active at the time of the testing,
which will subject them to service interruptions.
4. Completed at Grantee-designated entry demarcation point at the
institution.
5. The system will meet calculated worst case fully loaded video and audio
measurements, taking into consideration existing I-Net data loading at the
time the measurement is taken.
6. Under ordinary operating conditions.
II. Digital Transmission
A. For I-Net that is 50% or more coaxial cable, a Bit Error Rate of 1x10(-8) at the
demarcation point.
1. Outage times not included
2. Ordinary operating conditions
B. For I-Net that is 50% or more fiber optic cable, a Bit Error Rate of 1x10(-9) at the
demarcation point.
1. Outage times not included
2. Ordinary operating conditions
C. For both coaxial and fiber network, the company will meet or exceed a reliability
factor of 99.965% on an annual basis.
D. Testing will occur twice yearly, during the months of January/February and
July/August.
III. Repair and Maintenance
A. Grantee will provide a repair force of technicians capable of responding properly
to all requests for service by I-Net Users and available on a 7x24x365 basis.
B. Under normal operating conditions, the initial page to the technician on call will
be within a 10 minute time frame. Barring situation that are outside the control of
the Grantee (i.e., physical damage to the network caused by third parties not
under the control of the Grantee, weather related restrictions, etc.), the Grantee
will continue to work on a service problem until it is resolved, and complete its its
resolution of such problem within eight (8) hours, if resolution of such problem is
within the control of the Grantee.
C. Fiber, over and above that which is required by Section 7.1 of the Franchise, may
be incorporated, where necessary, to reduce amplifier cascades to meet
performance standards. Where possible, fiber Nodes may be located within the
building or facility of an I-Net User.
D. Preventative and routine maintenance of the I-Net shall be performed in the
same time frame and in the same fashion as routine and preventative
maintenance are performed for the Grantee’s subscriber network. Actual or
potential problems discovered during the course of preventative and routine
maintenance shall be immediately reported to the Commission. After informing
the Commission on an actual or potential problem, the Grantee shall, within a
reasonable period of time, prepare and transmit a report to the Commission
describing the corrective action, if any, that was or will be taken.
E. I-Net Users will be notified at least seven days in advance of any scheduled
maintenance that will interrupt service on the I-Net, unless I-Net Users agree to
waive such time frame. Where possible, such maintenance will be scheduled at
times of low usage.
EXHIBIT A
QUAD CITIES INSTITUTION CONNECTIONS
Institution
Address
Sub-
Net
Footage
To
Extend
Sub-Net
I-Net
(2)
Cable
Modem
(3)
Footage
To
Extend
I-Net
Estimated
Cost Of I-
Net
Extension
(1)
CITY OF
ANDOVER
Andover City
Hall
1685 NW
Crosstown Blvd.
Yes Yes Yes
Andover Fire 1785 NW
Crosstown Blvd.
Yes Yes No
Andover Fire 13875 NE
Crosstown Blvd.
Yes No No 830 $
4,980.00
Andover Fire 16603 NW Valley
Drive
Yes No No 13,000 78,000.00
Andover
Elementary
14950 Hanson
Blvd.
Yes Yes Yes
Oak View Middle
School
15400 Hanson
Blvd.
Yes No Yes 2,800 16,800.00
Crooked Lake
Elementary
2939 NW Bunker
Lake Blvd.
Yes Yes Yes
Meadow Creek
Christian School
2941 Bunker
Lake Blvd.
Yes Yes Yes
Anoka County
Sheriff Station
1530 Bunker
Lake Blvd.
No No No 12,375 74,250.00
New High
School (unbuilt)
148th and
Crosstown
Yes Yes Yes 1,000 6,000.00
New Elementary
School
169th and Verdin Yes No Yes 13,000 78,000.00
CITY OF
ANOKA
Anoka High 3939 7th Ave. Yes Yes Yes
Anoka State
Hospital
3300 4th Ave. No No No 1,000 6,000.00
Anoka Vo-Tech West Highway
10
Yes Yes Yes 200 1,200.00
Fred Moore
Middle School
1523
Washington Ave. Yes Yes Yes
Sandberg Middle
School
1902 2nd Ave. Yes No Yes 200 1,200.00
Franklin Middle
School
215 West Main
Street Yes
No Yes 1,025 6,150.00
Lincoln
Elementary
540 South 5th
Street Yes No Yes 200 1,200.00
Wilson
Elementary
1025 Sunny
Lane
Yes No Yes 3,000 18,000.00
Washington
Elementary
2171 6th Street Yes Yes Yes
Institution
Address
Sub-
Net
Footage
To
Extend
Sub-Net
I-Net
(2)
Cable
Modem
(3)
Footage
To
Extend
I-Net
Estimated
Cost Of I-
Net
Extension
(1)
CITY OF
ANOKA (cont.)
St. Stephen's
School
506 Jackson
Street
Yes Yes Yes
Anoka City Hall 2015 1st Ave. Yes Yes Yes
Anoka Police 2015 1st Ave. Yes Yes No
Anoka
Courthouse 2100 3rd Ave. Yes Yes No
Anoka Elections 325 East Main Yes Yes No
Anoka Fire 2301 3rd Ave. Yes Yes No
Anoka City
Library 2135 3rd Ave. Yes Yes Yes
Anoka Ice Arena 4111 7th Ave. Yes Yes No
Anoka Senior
Drop In Center
Washington &
6th Yes No No
Anoka Senior
Highrise
2 Bridge Street Yes No No
Anoka Liquor 848 East River
Road
Yes Yes No
Anoka Liquor 809 Main Street Yes Yes No
Anoka-Hennepin 1355 West Main Yes No Yes
Alternative Street
QCTV 737 East River
Road
Yes Yes
Learning Center 2727 Ferry Street Yes Yes
Anoka Municipal
Utility 501 Pierce Street No 400 No No 525 3,150.00
Anoka Parks
Department
641 Jacob Lane No 200 No No 660 3,960.00
CITY OF
CHAMPLIN
Champlin City
Hall
11955 Champlin
Drive Yes Yes Yes
Champlin Fire 11955 Champlin
Drive
Yes Yes No
Champlin Ice
Arena
12165 Ensign
Ave. No.
Yes Yes No
Hennepin Co.
Library
12154 Ensign
Ave. No.
Yes Yes Yes
Jackson Jr. High 6000 109th Ave.
No.
Yes Yes Yes
Champlin
Elementary
111 Dean Ave. Yes No Yes 800 4,800.00
Champlin Park
High
6025 109th Ave.
No.
Yes Yes Yes
Oxbow
Elementary
6050 109th Ave.
No.
Yes Yes Yes
Institution
Address
Sub-
Net
Footage
To
Extend
Sub-Net
I-Net
(2)
Cable
Modem
(3)
Footage
To
Extend
I-Net
Estimated
Cost Of I-
Net
Extension
(1)
CITY OF
RAMSEY
Ramsey City
Hall
15153 Nowthen
Blvd. Yes Yes Yes
Ramsey
Elementary
15100 Nowthen
Blvd.
Yes Yes Yes
Ramsey Fire 15153 Nowthen
Blvd.
Yes Yes No
Ramsey Fire 15050 Armstrong
Blvd. NW
Yes Yes
(4)
No 24,460.00
Ramsey Police 15153 Nowthen Yes Yes No
Blvd.
Ramsey Public
Works
14100 Jasper
Street No 5,280 No No 13,750 82,500.00
(1) Estimated at 2000 construction rate of $6.00 per foot, excluding cost of
electronics/additional nodes.
(2) Institutions beyond 500 feet of existing I-Net will be extended with the requesting institution
paying actual cost beyond
500 feet.
(3) Institutions may receive cable modem service if I-Net not available.
(4) I-Net to be extended in accordance with Subsection 15-2-10A5 of this chapter.
4
77
Error! Unknown document property name.
CITY 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;
3. 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 DEFINITIONS
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Error! Unknown document property name.
1.1. 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.
79
Error! Unknown document property name.
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.
80
Error! Unknown document property name.
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 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.
81
Error! Unknown document property name.
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 “QC” 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 for 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.
82
Error! Unknown document property name.
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
83
Error! Unknown document property name.
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.
84
Error! Unknown document property name.
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.
2.5 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-
Way users. In no event shall the City adopt or amend any City ordinance or
85
Error! Unknown document property name.
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:
With copies to:
And to:
City of Andover, Minnesota
Attn: City Administrator
1685 Crosstown Boulevard NW
Andover, MN 55304
Executive Director
Quad Cities Cable Communications Commission
12254 Ensign Avenue North
Champlin, MN 55316
Kennedy & Graven, Chartered
Attn: Robert J. V, Vose
470 U.S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
If to Grantee:
With copies to:
Qwest Broadband Services, Inc d/b/a CenturyLink
Attn: Public Policy
1801 California Street, 10th Floor
Denver, Colorado 80202
Qwest Broadband Services, Inc d/b/a CenturyLink
Attn: Public Policy
200 South Fifth Street, 21st 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 are just 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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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
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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
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liability for any Subscriber's or viewer's exercise or failure to
exercise such controls;
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.
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4.2 [Intentionally deleted.]
4.3 System Construction Timetable.
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
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households). This additional build-out based on market success shall
continue until every household in the City is served.
(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
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reasonable means by which to inform the public and its Subscribers about:
Cable Service availability.
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 Testing.
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. In addition, the City may
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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
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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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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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.
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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/TYY (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
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disconnect and reconnect procedures and any other of its
policies applicable to Subscribers.
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.
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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
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.
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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
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
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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
(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.
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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.
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)
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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 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
Feees 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
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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.
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
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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 borne 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 borne 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
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
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(“FASB”), Emerging Issues Task Force (“EITF”) 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.
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
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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
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
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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
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.
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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
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.
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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
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
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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.
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
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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.
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
10.1.1.3 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.
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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.
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.
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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
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:
10.5.3.1 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;
10.5.3.2 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
(“MnDOT”). Upon request, Grantee shall provide City with a
complete copy of any such document; and
10.5.3.3 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.
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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:
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
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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
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.
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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
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
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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
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.
13.4.4 The 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
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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.
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.
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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:
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 15th day of November, 2016.
ATTEST: CITY OF ANDOVER, MINNESOTA
By: ______________________________ By: ______________________________
Its: Mayor Its: City Administrator
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: ___________________________________
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Its: ___________________________________
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EXHIBIT A
LIST OF INSTITUTIONS
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EXHIBIT B
INDEMNIFICATION AGREEMENT
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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 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
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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.
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QWEST BROADBAND
SERVICES,
INC. d/b/a CenturyLink
Dated: __________________, 2016. By: ______________________________
Its:
_______________________________
STATE OF __________________ )
)
COUNTY OF ________________ )
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: ______________