HomeMy WebLinkAboutOrd. 238 - AT&T
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ORDINANCE NO. 238
CITY OF ANDOVER, MINNESOTA
CABLE TELEVISION FRANCHISE ORDINANCE
Date: December 5
,2000
Prepared by:
Thomas D. Creighton
Stephen J. Guzzetta
Creighton, Bradley & Guzzetta, LLC
5402 Parkdale Drive
Suite 102
Minneapolis, Minnesota 55416
Telephone: (763) 543-1400
Facsimile: (763) 543-8866
creighton@ creightonbradley.com
guzzetta@ creightonbradley.com
TABLE OF CONTENTS
STATEMENT OF INTENT AND PURPOSE................................................................................1
FINDINGS 1
SECTION 1. SHORT TITLE AND DEFINITIONS......................................................................2
SECTION 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS.................................7
2.1 Grant of Franchise....... ..... ..................... ..............................................,....................... 7
2.2 Grant of Nonexclusive Authority...... ..................,................................................. ......7
2.3 Lease or Assignment Prohibited.......,................,........................................................8
2.4 Franchise Term..........,... .... ............ .......... .......................................... .......... ............ ...8
2.5 Previous Franchises........ ..... ............. ....................... ...................................................8
2.6 Compliance with Applicable Laws, Resolutions and Ordinances ..............................9
2.7 Rules of Grantee ....................."................................................................................1'0
2.8 Territorial Area Involved ..........".................,............................................................1 0
2.9 Written Notice......."......".., ................ .............. ........,................................. ...............10
2.10 Effective Date ...........................................................................................................11
SECTION 3. CONSTRUCTION STANDARDS.........................................................................11
3,1 Registration, Permits and Construction Codes ......,..................................................11
3.2 Restoration of Rights-of- Way and Property .............................................................12
3.3 Conditions of Right-of-Way Use ..............................................................................12
3.4 Use of Existing Poles and Undergrounding of Cable ...............................................14
3.5 Installation of Facilities.............,....... .............."........................."............. ............... .14
3.6 Safety Requirements ,.......................,....................,.......,.,........".........................",...15
3.7 City Use of Facilities ............,..........,........................................................................15
3.8 Removal of Facilities at Expiration of Franchise .....................................................15
SECTION 4. DESIGN PROVISIONS .........................................................................................16
4.1 System Facilities and Equipment..............................................................................16
4.2 High-Speed Services... ......... .............,................. .......... .................. ........................, ,20
4.3 System and Institutional Network Construction Timetable......................................21
4.4 Periodic Progress Reporting .....................................................................................21
4.5 Line Extension Requirements ,.......................,................"..............,.........................22
4.6 System Maintenance .....",...........,..................................................,..........................24'
4.7 System Tests and Inspections; Special Testing ........................................................24
4.8 Drop Replacement .....,..",.........,....,.........,......."........,....."..,.............,.,.,..................25
4.9 FCC Reports.............................,.............................................................,... ...............25
4.10 Nonvoice Return Capability .",.............................................................................,..,25
4.11 Lockout Device ..............................,............................................,.............................25
4.12 Types of Service ......... ..... .......................... ..................................... ........... ....... ....... .25
4.13 Uses of System.............."..... ..... ...... ......... ....... ................................. .............,......... ..25
4.14 Additional Capacity.......... ........ ............ .......... ....................,.,............ ..... .............. ....26
SECTION 5. SERVICE PROVISIONS ..................................................................................,....26
5.1 Customer Service Standards .....................................................................................26
5 .2 Video Programming.,....... ...... ........ ....... ...........................,... .................. ...................26
5.3 Regulation of Service Rates ..................... .........,.................................. ............ .........26
5.4 Sales Procedures......,....... .......... ....., ........ .........,............................. .........,."..... ...... ..27
5.5 Subscriber Inquiry and Complaint Procedures .........................................................27
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5.6 Subscriber Contracts......... ...................................................,... ......... ..... .................. .28
5.7 Service Credit...............,..... ...;............................ ...................................................... .28
5.8 Refunds or Credits ....................................................................................................28
5.9 Late Fees.......................... ....... ........... ............... .................,.,................................... .29
5.10 Notice to Subscribers ......................................................,.........................................29
5.11 Exclusive Contracts and Anticompetitive Acts Prohibited.......................................30
5.12 Office Availability and Drop Boxes .........................................................................30
SECTION 6. ACCESS CHANNEL(S) PROVISIONS ................................................................30
6,1 Public, Educational and Government Access ...........................................................30
6.2 PEG Support Obligations......... ........... ......,.......,........................................... ............32
6.3 Regional Channel 6 .........................................,...................................,., ,.... ..., ,... ......34
6.4 Leased Access Channels............,............... .................. ..........,..................................34
6.5 Universal PEG Tier..,...... ................................. ...................... ................ ...................34
6.6 Costs and Payments not Franchise Fees ...................................................................35
SECTION 7. INSTITUTIONAL NETWORK (I-NET) PROVISIONS AND RELATED
COMMITMENTS............................,. ..,................................................................ ... .... ......... .........36
7.1 Institutional Network Facilities and Capacity...........................................................36
7.2 Grantee's Use of I-Net Capacity...............................................................................38
7.3 I-Net Performance Standards ..........".............................."..................................... ...38
7.4 Institutional Network Security .......,....................................,............................... ......38
7.5 Interconnection and Use of Adjacent Institutional Networks...................................39
7.6 Subscriber Network Drops to Designated Buildings ................................................40
SECTION 8. OPERATION AND ADMINISTRATION PROVISIONS ....................................40
8.1 Administration of Franchise .......... .................................. .......,.................................40
8.2 Delegated Authority....,. ........ ,............... ..............................,.....................................40
8.3 Franchise Fee................ ......... ....................... ......, ............... ......................................40
8.4 Access to Records ..,..........................................................,.......................................42
8.5 Reports and Maps to be Filed with City ...................................................................42
8.6 Periodic Evaluation....,........................................................,..,..........................,.......42
SECTION 9, GENERAL FINANCIAL AND INSURANCE PROVISIONS .............................43
9.1 Performance Bond......,.... ,............ ............. ............ ...................................................43
9.2 Letter of Credit ............,..............,.. ................ .........,.. ....... .........................................44
9.3 Indemnification of City ..........,...........................,...........................................,. ...... ...46
9.4 Insurance............. ............................... ......................... .........., ,......, ...........................47
SECTION 10. SALE, ABANDONMENT, TRANSFER AND REVOCATION OF
FRANCHISE .,........................................................................................................................ .......48
10.1 City's Right to Revoke...........................................................,..................................48
10.2 Procedures for Revocation ................................................ ..............................., ..... ...48
10.3 Abandonment of Service... ............... ..... ......... ............................ .............................. .49
10.4 Removal After Abandonment, Termination ofForfeiture........................................49
10.5 Sale or Transfer of Franchise................................,..................,. ".............................49
SECTION 11. PROTECTION OF INDNIDUAL RIGHTS .......................................................51
11.1 Discriminatory Practices Prohibited .........................................................................51
11.2 Subscriber Privacy ................,.......................................,........................................ ...51
SECTION 12. UNAUTHORIZED CONNECTIONS AND MODIFICATIONS........................52
12.1 Unauthorized Connections or Modifications Prohibited ..........................................52
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12.2 Removal or Destruction Prohibited ..........................................................................52
12.3 Penalty..................... .......... .......................,...........,. ..........."."" ......"......"..............., .52
SECTION 13. MISCELLANEOUS PROVISIONS.....................................................................53
13.1 Franchise Renewal......... .............................. ..... .......,................................................53
13 .2 Work Performed by Others ................................... ......................."................ ....~... ...53
13.3 Amendment of Franchise Ordinance ........................................................................53
13.4 Compliance with Federal, State and Local Laws......................................................53
13.5 Nonenforcement by City ........................,...........,........."".........................................54
13.6 Rights Cumulative ....... .......... ......... .........,............................ ................................... .54
13.7 Grantee Acknowledgment of V alidity of Franchise .................................................55
13. 8 Force Maj eure .. ..................................................................... ......"......................... ...5 5
13.9 Governing Law ..................................................................................................... ....55
13.10 Captions and References.................,................. .....................,..,........"................... ..55
13.11 Rights of Third Parties ..............................................................................................55
13.12 Merger of Documents ...............................................................................................56
SECTION 14, PUBLICATION EFFECTNE DATE; ACCEPTANCE AND EXHIBITS .........56
14.1 Publication .............. ..... ............................ ........... ..............,.. ................... ..................56
14.2 Acceptance ... ........ ...................................... ....... ........................,............................ ...56
14.3 Binding Acceptance..........,....................................................... ......... .......................56
IV
ORDINANCE NO.
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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-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 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 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.
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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 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 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 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. S 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 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) Subscriber 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 Intemet 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.
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1.8
"Cable Svstem" or "Svstem" 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 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 ~perated 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
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may by 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 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 delegatee.
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 Mfiliates, 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
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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.
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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 this Franchise, and as further described herein.
1.25 "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. S 532.
1.26 "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.
1.27 "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 operator or programmer from soliciting and receiving financial support to produce
-and transmit video programming on a PEG channel, or from acknowledging a contribution.
1.29 "Normal Operatin!!: 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.
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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 Svstem" means the Cable System operated pursuant to this Franchise and
located in the member municipalities of the Commission.
1.35 "Ri!!:ht-of-Wav" or "Ri!!:hts-of-Wav" 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 ofthe 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 "Ri!!:ht-of-Wav 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.
1.37 "Standard Installation" means any residential Installation which 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 "Svstem Up!!:rade" 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.
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SECTION 2.
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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, maybe 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
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 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
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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 tenus
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 Assi!!:nment 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, revokc::d
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
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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 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.
2.6.2 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. .
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 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 spall 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.
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
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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 ofthe FCC, the laws ofthe 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 ofthe 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, asfollows:
If to City:
City of Andover
1685 Crosstown Boulevard NW
Andover, Minnesota 55304
Attention: City Manager/Administrator
With copies to:
Franchise Administrator
Quad Cities Cable Commission
737 East River Road
Anoka, MN 55303
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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 (the "Effective Date").
SECTION 3.
CONSTRUCTION STANDARDS
3.1 Re!!:istration, 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 copstruction 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 oflaw and regulations.
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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.
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3.2 Restoration of Ri!!:hts-of-Wav 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 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.
3.3 Conditions on Ri!!:ht-of-Wav 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);
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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
ofthe 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
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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.
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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 Existin!!: Poles and Under!!:roundin!!: 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,
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.
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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
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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.
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SECTION 4.
DESIGN PROVISIONS
4.1 Svstem Facilities and EQuipment.
4.1.1 Upon completion of the System Upgrade, the System generally shall have at least
the following characteristics:
4.1.1.1
4.1.1.2
4,1.1.3
4.1.1.4
4.1.1.5
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;
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;
facilities of good and durable quality, generally used in high-
quality, reliable systems of similar design;
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;
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
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4.1.1.6
4.1.1.7
4.1.1.8
4.1.1.9
4.1.1.10
4.1.1.11
4.1.1.12
(B) National Electrical Safety Code (NESC), as amended from
time to time.
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;
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;
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;
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;
antenna supporting structures designed in accordance with any
applicable governrnental 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;
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;
the Grantee shall provide adequate security provisions in its
Subscriber site equipment to permit parental control over the use of
Grantee's Cable Service. The Grantee, however, shall bear no
responsibility for the exercise of parental controls and shall incur
no liability for any Subscriber's or viewer's exercise or failure to
exercise such controls;
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4.1.1.13
4.1.1.14
4.1.1.15
facilities and equipment capable of operating within the
temperature ranges typical to the climate of the Quad Cities
Franchise Area over the calendar year;
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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 ofthe Grantee; and
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
4.1.3.2
4.1.3.3
4.1.3.4
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;
segmentation of the System so that sufficient capacity is available
for interactive services at all times;
activation of the bandwidth from 5 to 40 MHz for upstream
transmissions;
no more than four (4) amplifiers per coaxial cable in each cascade
from any Node;
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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 upgraded 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
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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.
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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 Hi!!:h-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 (I) 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 City that is passed by the cable distribution network; and (ii) all governmental
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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 Svstem 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 which 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 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 ofthe 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 Pro!!:ress Reportin!!:.
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
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and provide an update on the progress of the System Upgrade or other
construction.
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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
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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
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.
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4.6
Svstem Maintenance.
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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 Svstem Tests and Inspections: Special Testin!!:.
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
--------pmblemsor-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, who shall certify all records of tests provided
to the City.
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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 nonvoice 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 Tvpes 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 Svstem.
The Grantee shall, upon request of the Commission, advise the Commission of all active
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uses of the System, for both entertainment and other purposes, and the Commission shall
have the right to conduct unannounced audits of such usage.
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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 Pro!!:rammin!!:.
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 Re!!:ulation 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.
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5.4
Sales Procedures.
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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
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service problem, and pursue to conclusion all steps reasonably necessary to
correct the problem.
5.5.5 The Grantee may schedule appointlnents for Installations and other service calls
either at a specific time or, at a maximum, during a four-hour time block during
the hours of9:00 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 appointlnent with a customer after the close of business on the
business day prior to the scheduled appointlnent. If the installer or technician is
late and will not meet the specified appointlnent time, he/she must use his/her best
efforts to contact the customer and reschedule the appointlnent at the sole
convenience of the customer. Service call appointlnents 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
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thirty (30) days, whichever is earlier; or
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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 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 materials:
5.10.1.1
5.10.1.2
5.10.1.3
5.10.1.4
5.10.1.5
instructions on how to use the Cable Service;
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);
. a schedule of rates and charges, channel positions and a description
of products and services offered, including any free or universal
servIce;
prices and options for programming services and conditions of
subscription to programming and other services; and
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.
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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 Availabilitv 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 6MHz 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
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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.
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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. S 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 Acces.s
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 charmel 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
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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 anyon-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 Obli!!:ations.
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 recomputation by the Commission in accordance with the rights provided to
the City pursuant to Section 8.3 of this Franchise.
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6.2.2 In addition to the Quarterly Support Grant, the Grantee shall make the following
capital support payments:
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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 1") 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' rrionthly 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 right to claim that any
interest or penalties imposed hereunder constitute franchise fees within the meaning
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of 47 U.S.c. S 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 Re!!:ional Channel 6.
The Grantee shall designate standard VHF Channel 6 for uniform regional channel usage to
the extent required by State law.
6.4 Leased Access Channels.
The Grantee shall provide Leased Access Channels as required by federal and State law.
6.5 Universal 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.
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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.
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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 ofthe 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 1 50-foot Drop.
6.5.7 For purposes ofthis 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 Pavrnents not Franchise Fees.
The parties agree that any costs to the Grantee associated with the provision of support for
PEG access Ol"theInstitutional Network pursuant to Sections 6 and 7 ofthis Franchise do not
constitute and are not part of a franchise fee and fall within one or more of the exceptions to
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47 U.S.c. S 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 ofthis 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 compet~
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 ofI-Net
activation. If any segment does not pass the Grantee's performance testes), 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
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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.
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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 1-
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
charmel 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
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Commission or I-Net Users up to twenty (20) new modulators for City and/or
Commission use.
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7.2 Grantee's Use on-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 1-
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 lesset;: shall terminate its use of any channel
capacity on the I-Net within three (3) mo~ths 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 pmposes 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.
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7.5 Interconnection and Use of Adiacent 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
Communications 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") which 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 ofthis subsection.
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7.6
Subscriber Network Drops to Desi!!:nated Buildin!!:s.
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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 ofthis Franchise, free of charge.
7.6.3 Additional subscriber network Drops and/or outlets will be installed at designate4
institutions by the Grantee on an Actual Cost basis. Altematively, 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 Dele!!:ated Authoritv.
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 ofthe Grantee pursuant
to the Franchise. The Grantee shall cooperate with any such delegatee ofthe 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 its Gross
Revenues.
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8.3.2 Any payments due under this provision shall be payable quarterly. The payment shall
be made within thirty (30) days of the end of each of Grantee's fiscal quarters together
with a report showing the basis for the computation. The City shall have the right to
require further supporting information for each franchise fee payment.
8.3.3 All amounts paid shall be subject to audit and recomputation by the City and
acceptance of any payment shall not be construed as an accord that the amount paid is
in fact the correct amount. The Grantee shall be responsible for providing the City all
records necessary to confirm the accurate payment of franchise fees. The Grantee
shall maintain such records for five (5) years, unless in the Grantee's ordinary course
of business specific records are retained for a shorter period, but in no event less than
three (3) years. If an audit discloses an overpayment or underpayment of franchise
fees, the City shall notify the Grantee. of such overpayment or underpayment. The
City's audit expenses shall be 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 often 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.
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8.4
Access to Records.
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The City shall have the right to inspect, upon reasonable notice and during Grantee's
administrative office hours, or require Grantee to provide within a reasonable time, on a
confidential and proprietary basis, copies of any records maintained by Grantee or its
Affiliates, including specifically Gross Revenues worksheets, and accounting and financial
records maintained by Grantee which relate to compliance of System operations with this
Franchise or other applicable law.
8.5 Reports and Maps to be Filed with City.
8.5.1 The Grantee shall file with the City, at the time of payment of the Franchise Fee, a
report of all Gross Revenues in a form and substance as required by City.
8.5.2 The Grantee shall prepare and furnish to the City, at the times and in the form
prescribed, such other reports with respect to Grantee's operations pursuant to this
Franchise as the City may require. The City shall use its best efforts to protect
proprietary or trade secret information all consistent with state and federal law.
8.5.3 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
~ffered, access channels, facilities and support, municipal uses of cable, Subscriber
rates, customer complaints, amendments to this Franchise, judicial rulings, FCC
rulings, line extension policies and any other topics the City deems relevant.
8.6.3
As a result of a periodic review or evaluation session, upon notification from City,
Grantee shall meet with City and undertake good faith efforts to reach agreement on
changes and modifications to the terms and conditions of the Franchise which are
both economically and technically feasible.
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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 abandomnent 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 ofthe 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
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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.
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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.
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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 ofthis 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
ofthe 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 ofthis Section.
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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 ofthe 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, 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.
9.3.4 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,
46
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 anyone Person, and $ 2,000,000.00 for personal injury
or death of two or more Persons in anyone occurrence, $ 1,000,000.00 for
property damage to anyone person and $ 2,000,000.00 for property damage
resulting from anyone 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 ofInsurance.
9.4.5 Failure to comply with the insurance requirements of this Section shall constitute
a material violation ofthis Franchise.
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SECTION 10.
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SALE, ABANDONMENT, TRANSFER AND REVOCATION OF FRANCHISE
10.1. City's Ri!!:ht 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, ifit 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.
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.
48
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 oftermination 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 which 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
49
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.
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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 FEC, 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
50
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 Privacv.
11.2.1 No signals, including signals of a Class N 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 oftime not to exceed one (I) 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
51
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.
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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 oftime 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.
12.3 Penaltv.
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
52
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 bv 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 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 LocalLaws.
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.
53
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.
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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 bv Citv.
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 Ri!!:hts 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
54
Passed and adopted this 5th day of December , 2000.
ATTEST:
By: (L-.J;;.u.J ()rf~
Its: i1:.) ~
CITY OF ANDOVER, MINNESOTA
By: ~t.Jn~k~
Its: ~1Iu( rv
ACCEPTED: This Franchise is accepted and we agree to be bound by its terms and conditions.
Dated:
){s4 o[
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Exhibit B
Quad Cities I-Net Performance Standards
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Upon completion ofthe I-Net upgrade specified in Section 7 ofthe Franchise:
I. Video Transmission
A. Video transmission will comply with the following performance standards:
I. Carrier to noise ratio = 45dB or better
2. Carrier to composite triple beat = 53dB or better
3. Carrier to composite second order = 55 dB or better
4. Carrier to cross modulation = 55 dB or better
5. System signal level variations (peak to valley) = n + I 0 + 2 or better for
all coaxial cable portions ofthe 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.
S 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 ofthe 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 1 x 10(-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! x 10(-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 oftechnicians 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 situations that are outside the control
ofthe 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
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 ofthe 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 of 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 oflow usage.
G:\Quad S1470\Renewal\Franchise Ordinance\Exhibit B - I-Net Stnds"doc
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CITY OF ANDOVER
COUNTY OF ANOKA
STATE OF MINNESOTA
Ordinance No. 238
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-OF-WAY IN CONJUNCTION WITH THE
CITY'S RIGHT-OF-WAY ORDINANCE, IF ANY, AND PRESCRIBING PENALTIES FOR THE
VIOLATION OF THE PROVISIONS HEREIN.
Ordinance Copy on file in the Office of the
City Clerk - 1685 Crosstown
Boulevard NW - City of
Andover, Minnesota 55304
Adopted by the City Council of the City of Andover this 5th day of December, 2000.
CITY OF ANDOVER
Attest:
~. (.7/16/(4
. E. McKelvey-Mayor n
~tVb
Victoria Volk - City Clerk