HomeMy WebLinkAboutOrdinance No. 1583 it .1
ORDINANCE NO. 1583
CITY OF COLUMBIA HEIGHTS, MINNESOTA
CABLE TELEVISION FRANCHISE ORDINANCE
Date: August 9, 2010
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ORDINANCE NO. 1583
AN ORDINANCE GRANTING A FRANCHISE TO COMCAST OF MINNESOTA, INC. TO
CONSTRUCT, OPERATE, AND MAINTAIN A CABLE SYSTEM IN THE CITY OF
COLUMBIA HEIGHTS, MINNESOTA TO PROVIDE 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 LIQUIDATED DAMAGES FOR THE VIOLATION OF THE PROVISIONS
HEREIN.
The City Council of the City of Columbia Heights, Minnesota ordains:
STATEMENT OF INTENT AND PURPOSE
The City of Columbia Heights, Minnesota (the "City ") intends, by the adoption of this Franchise,
to allow for the continued operation of a Cable System within easements dedicated for compatible
uses and Rights -of Way to the extent authorized by law and regulation. Such continued operation
can contribute significantly to the communication needs and desires 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 continued 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
After considering the Grantee's request and proposal for renewal, 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 maintaining 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 applicable Minnesota
Statutes, federal laws and regulations; and
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4. The Franchise granted to Grantee is nonexclusive.
SECTION 11.101
SHORT TITLE AND DEFINITIONS
(A) Short Title. This Franchise Ordinance shall be known and cited as the "Cable
Communications Code."
(B) Definitions. For the purposes of this Franchise, the following terms, phrases, words, 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 Title
47 of the United States Code, as amended, or Chapter 238 of Minnesota Statutes, as
amended 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) "Actual Cost" means the direct incremental cost to the Grantee of materials
(including any contractor materials) and capitalized labor (including capitalized
contractor labor) necessary to install and construct fiber -optic lines, coaxial cable,
copper wire and /or equipment.
(2) "Affiliate" means any Person who owns or controls, is owned or controlled by, or is
under common ownership and control with the Grantee.
(3) "Basic Cable Service" means any service tier which includes the retransmission of
local television broadcast signals, all PEG Access Channels that may be required by
47 U.S.C. § 543(b)(7)(A) and State law to be provided to Subscribers and any
additional video programming signals or services the Grantee chooses to provide on
the basic tier.
(4) "Cable Service" or "Service" means (1) the one -way transmission to Subscribers of
(a) video programming or (b) other programming services; and (2) Subscriber
interaction, if any, which is required for the selection or use of such video
programming, or other programming services. Cable Service, as defined herein,
does not include any service that is only classified as an information service or a
telecommunications service under applicable laws, orders and regulations. The
City and Comcast shall conform the definition of Cable Service herein to any
binding changes in applicable laws and regulations defining Cable Service or to any
binding orders or decisions defining Cable Service.
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(5) "Cable System" or "System" means the facility of the Grantee consisting of a set of
closed transmission paths and associated signal generation, reception and control
equipment that is designed to provide Cable Service, which includes video
programming and which is provided to multiple Subscribers within the City, but
such term does not include: (1) a facility that only serves to retransmit the television
signals of one or more television broadcast stations; (2) a facility that serves
Subscribers without using any Rights -of -Way; (3) a facility of a common carrier
which is subject, in whole or in part, to the provisions of Title II of the
Communications Act, except that such facility shall be considered a System (other
than for purposes of 47 U.S.C. § 541(c)) 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. The term "Cable System" or "System" also
includes a cable communications system as defined in Minn. Stat. § 238.02, subd.
3. The foregoing definitions of "Cable System" or "System" shall not be deemed to
circumscribe or limit the valid authority of the City to regulate or franchise the
activities of any other communications or information system or provider of
communications service or information service to the full extent permitted by law.
(6) "Channel" means a portion of the electromagnetic frequency spectrum which is
used in a Cable System and which is capable of delivering a television channel (as
television channel is defined by the Federal Communications Commission by
regulation) whether in an analog or digital format.
(7) "City" means City of Columbia Heights, a municipal corporation, in the State of
Minnesota, acting by and through its City Council, or its lawfully appointed
designee.
(8) "City Code" means the Columbia Heights City Code, as amended from time to
time.
(9) "City Council" means the governing body of the City.
(10) "Converter" means an electronic device (sometimes referred to as a receiver, set -top
unit or set -top box) which converts, decodes and/or decrypts signals to a frequency
or format acceptable to a television receiver or television monitor of a Subscriber
and by an appropriate selector permits a Subscriber to view all Subscriber signals of
a particular service.
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(11) "Drop" means the cable that connects the ground block on the Subscriber's
residence or institution to the nearest feeder cable of the System.
(12) "Educational Access Channel" or "Educational Channel" means any Channel(s) on
the System set aside by the Grantee for educational use by educational institutions,
as contemplated by applicable law.
(13) "FCC" means the Federal Communications Commission, its designee, and any
legally appointed, designated or elected agent or successor.
(14) "Franchise" or "Cable Franchise" means this agreement, as may be amended from
time to time, any exhibits attached hereto and made a part hereof, and any related
ordinance adopted by the City Council approving this agreement and awarding this
Franchise to the Grantee for the express purposes specified herein.
(15) "Governmental Access Channel" or "Governmental Channel" means any
Channel(s) on the System set aside by the Grantee for use by the City or its
designee(s).
(16) "Grantee" is Comcast of Minnesota, Inc. and its lawful and permitted successors,
transferees or assignees.
(17) "Gross Revenue" means all revenue derived directly or indirectly by the Grantee or
its Affiliates, subsidiaries or parent from the operation of the Cable System in the
City to provide Cable Services. Gross Revenue includes, but is not limited to,
basic, premium, pay - per -view and other video fees, gross advertising revenues and
home shopping revenues, Installation, disconnection, and reconnection fees and
charges, equipment rental fees, equipment sale revenues, programming guide
revenues, Lockout Device revenues, FCC regulatory fees, leased access channel
fees, late fees and administrative fees and franchise fees. Gross Revenue shall not
include refundable deposits, bad debt (provided that bad debt that is written off but
subsequently collected shall be included in Gross Revenues in the period collected),
investment income, programming launch support payments, advertising sales
commissions paid to unaffiliated entities, nor any taxes, fees or assessments directly
imposed or assessed by any governmental authority on the Grantee's services that
are collected by the Grantee on a governmental entity's behalf, provided that
franchise fees shall not be regarded as such taxes, fees or assessments. The City
acknowledges that Comcast maintains its financial books and records, including
those books and records pertaining to the City and the calculation of Gross
Revenues, in accordance with Generally Accepted Accounting Principles.
In the event that the Grantee shall, during the term of this Franchise or any
extension(s) thereof, bundle, tie or combine Cable Services (which are subject to
the franchise fee provisions hereof) with non -Cable Services that are not subject to
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the franchise fee provisions hereof, so that Subscribers pay a single fee for more
than one class or type of service or receive a discount on Cable Services, a pro rata
share of the revenue received for the bundled, tied, or combined services shall, to
the extent reasonable, be allocated to Gross Revenues for purposes of computing
the franchise fee. To the extent there are published charges or a la carte prices and
they are reasonable under applicable law, the pro rata share of revenues allocated to
Gross Revenues shall be computed on the basis of the published charge or a la
carte price for each of the bundled, tied, or combined services, when purchased
separately. Throughout the term of this Franchise, the Grantee agrees that it will
not intentionally or unlawfully allocate service revenues for the purpose of evading
or reducing the franchise fee payments required herein.
If particular non -Cable Services and the revenues derived therefrom may be
lawfully included in Gross Revenues for the purpose of assessing a franchise fee at
any time after the Effective Date of this Franchise, the City may immediately
commence, though on a reasonable implementation schedule, the assessment of a
franchise fee on such services to the maximum amount permitted by applicable law.
(18) "Installation" means the connection of the System from feeder cable to the point of
connection with the Subscriber Converter, television monitor /receiver or other
terminal equipment.
(19) "Institutional Network" or "I -Net" means any discrete communications network,
regardless of transmission media used (e.g., coaxial cable and fiber -optic cable),
and services related to such network provided by the Grantee or its Affiliate to
identified institutions as required by this Franchise and any binding and effective
network services agreement between the City and the Grantee or its Affiliate.
(20) "Lockout Device" means an optional mechanical or electrical accessory to a
Subscriber's terminal which inhibits the viewing of a certain program, certain
Channel, certain Channels or certain signals provided by way of the Cable System.
(21) "Memorandum of Understanding" or "MOU" means that certain agreement dated
November 14, 1994, by and between Meredith/New Heritage Strategic Partners,
L.P., North Central Cable Communications Corporation and Group W. Cable of
Columbia Heights, Inc., Grantee's predecessor(s) in interest, and the City regarding
equipment replacement, universal PEG service, creation of a "PEG" fee and certain
rate regulatory issues.
(22) "Node" means the transition point between optical light transmission and RF
transmission of signals being delivered to and received from the Subscriber's
premises, or in the case of an Institutional Network, signals being delivered to and
received from Institutional Network sites, or in the case of a fiber -to- the - premises
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system, the transition point between the backbone network and the individual
premise connection.
(23) "Normal Business Hours" means those hours during which most similar businesses
in the community are open to serve customers. In all cases, "normal business
hours" must include some evening hours at least one night per week and/or some
weekend hours.
(24) "Normal Operating Conditions" means those service conditions that are within the
control of the Grantee. Conditions that are ordinarily within the control of the
Grantee include, but are not limited to, special promotions, pay - per -view events,
rate increases, regular peak or seasonal demand periods, and the maintenance or
upgrade of the System (including any I -Net). 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.
(25) "PEG" or "PEG Access" means public, educational and governmental access
programming. For purposes of this Franchise, "governmental" includes (but is not
limited to) public libraries, the State, the City Council and City agencies and
departments, and the signals generated and transmitted by those entities.
(26) "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.
(27) "Public Access Channel(s)" means any Channel(s) on the System set aside by the
Grantee for use by the general public, as contemplated by applicable law.
(28) "Right -of -Way" or "Rights -of -Way" means the area on, below, or above a public
roadway, highway, street, cartway, bicycle lane, and public sidewalk in which the
City has an interest, including other dedicated rights -of -way for travel purposes and
utility easements of the City which, consistent with the purposes for which they
were created, obtained or dedicated, may be used for the purpose of installing,
operating and maintaining a System and any I -Net. A Right -of -Way does not
include the airwaves above a Right -of -Way with regard to cellular or other non -
wire telecommunications or broadcast services. 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 or the I -Net
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(29) "Right -of -Way Ordinance" means the ordinance codifying requirements regarding
regulation, management and use of Rights -of -Way in the City, including
registration and permitting requirements.
(30) "Standard Installation" means any installation which can be completed using an
underground Drop of 125 feet or less or an aerial Drop of 250 feet or less.
(31) "State" means the State of Minnesota and its agencies and departments.
(32) "Subscriber" means any Person or entity that lawfully receives Service via the
System. In the case of office buildings or multiple dwelling units, the "Subscriber"
means the lessee, tenant or occupant.
SECTION 11.102
GRANT OF AUTHORITY AND GENERAL PROVISIONS
(A) 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 and all applicable laws and regulations,
may be deemed a violation of this Franchise.
(B) Grant of Nonexclusive Authority.
(1) Subject to the terms of this Franchise, the City hereby grants the Grantee the
nonexclusive right to own, construct, operate and maintain a System in, along,
among, upon, across, above, over, or under 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 and lawful 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. The City makes no representation or guarantee that its interest in or right to
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control any Right -of -Way is sufficient to permit the Grantee's use, and the Grantee
shall gain only those rights to use that are within the City's power to convey.
(2) Notwithstanding the above grant to use Rights -of -Way, no Right -of -Way shall be
used by 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.
(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 and
other video networks in the City.
(4) This Franchise authorizes only the use of Rights -of -Way for the provision of Cable
Service. Therefore, the grant of this Franchise and the payment of franchise fees
hereunder shall not exempt the Grantee from the obligation to pay compensation or
fees for the use of City property, both real and personal, other than the Rights -of-
Way; provided, however, that such compensation or fees are required by City
ordinance, regulation or policy and are lawful and nondiscriminatory.
(C) Lease or Assignment Prohibited. No Person or governmental body may lease Grantee's
System for the purpose of providing Cable Service to Subscribers 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 or governmental body'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 Section 11.110(E).
(D) Franchise Term. The term of this Franchise shall extend from the date of acceptance by
the Grantee until December 31, 2015, unless sooner renewed, revoked or terminated as
herein provided, or unless extended by the City.
(E) Previous Franchise.
(1) As of the Effective Date, this Franchise shall supersede and replace any previous
ordinance, as amended, of the City granting a Franchise to Grantee, including
Ordinance No. 982, amending Chapter 11 of Ordinance No. 853, passed November
9, 1981, and Ordinance No. 1202, passed June 25, 1990 (collectively, the "Prior
Franchise "). Except as otherwise specifically provided in this Franchise and the
letter agreement dated July 8, 2010, the Grantee shall remain liable for payments of
all franchise fees and other amounts owed under the Prior Franchise and for all
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unfulfilled actions that the Grantee was required to take under the Prior Franchise
up to the Effective Date of this Franchise, except where such obligations are
expressly superseded by 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.
(2) With respect to the MOU, the parties agree that, as of the Effective Date of the
Franchise, no new Universal PEG Service customers will be added. Existing
Universal PEG Service customers will be served until such time as the Grantee
provides Basic Cable Service in digital format only. At that time, current Universal
PEG Service customers will be offered the option of receiving Basic Cable Service
at a reduced rate of 50% off the standard rate card rate then in effect for a period of
six months. The Grantee may recover the cost of any such discount in any manner
allowed by law.
(F) Compliance with Applicable Laws, Resolutions and Ordinances.
(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 all lawful exercise of the police powers of the City. The
grant of this Franchise does not relieve the Grantee of its obligations to obtain any
generally applicable licenses, permits and other authorizations as may be required
by the City Code, as it may be amended, for the privilege of operating a business
within the Rights -of -Way, to the extent not inconsistent with this Franchise. Except
as provided below, any unilateral modification or unilateral amendment to this
Franchise, or the rights or obligations contained herein, must be within the lawful
exercise of City's police powers, 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 Grantee as provided in Section 11.113(C)
herein.
(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 11.103 and /or Section 11.108(E)(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 which exceed
burdens placed on similarly situated Rights -of -Way users. Nothing in this Section
shall prohibit Grantee from lawfully challenging any ordinance or regulation in a
manner consistent with applicable law.
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(3) In the event of any conflict between Section 11.103 and/or Section 11.108(E)(3) of
this Franchise and any City ordinance or regulation which addresses usage of the
Rights -of -Way, conflicting terms in Section 11.103 and /or Section 11.108(E)(3) of
this Franchise shall be superseded by such City ordinance or regulation, except that
the Grantee shall not, through application of such City ordinance or regulation of
Right -of -Way, be subject to additional burdens with respect to usage of Rights -of-
Way which exceed burdens placed on similarly situated Right -of -Way users.
Nothing in this Section restricts Grantee's right to lawfully challenge any ordinance
under applicable law.
(4) In the event any City ordinance or regulation which addresses usage of the Rights -
of -Way adds to, modifies, amends, or otherwise differently addresses issues
addressed in Section 11.103 and/or Section 11.108(E)(3) of this Franchise, the
Grantee shall comply with such ordinance or regulation of general applicability,
regardless of which requirement was first adopted except that the Grantee shall not,
through application of such City ordinance or regulation of Rights -of -Way, be
subject to additional burdens with respect to usage of Rights -of -Way which exceed
burdens placed on similarly situated Rights -of -Way users. Nothing in this Section
restricts any right or cause of action Comcast may have to lawfully challenge in a
court of competent jurisdiction any Right -of -Way Ordinance or regulation adopted
by the City which adds to, modifies, amends or differently addresses issues covered
in Section 11.103 and /or Section 11.108(E)(3) of this Franchise. Notwithstanding
the foregoing, the City does not waive or limit in any way all immunities,
arguments, remedies, defenses and causes of action it may have under the
Minnesota Constitution, this Franchise and applicable laws, regulations, orders, and
decisions.
(G) Territorial Area Involved. This Franchise is granted for the corporate boundaries of the
City, as they exist from time to time. In the event of annexation by the City, or as
development occurs, any new territory shall become part of the territory for which this
Franchise is granted. The Grantee shall construct and extend its System so that it is able
provide Cable Service to: (i) all areas located within the City as they exist on the Effective
Date of this Franchise; and (ii) any areas which may be acquired, developed or annexed by
the City during the Franchise term, or otherwise added to the City's jurisdiction during the
Franchise term, or any extension thereof. Access to Cable Service shall not be denied to
any group of potential cable Subscribers because of the income of the residents of the area
in which such group resides. 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 to exceed twelve (12) months from notice thereof by the City.
(H) Written Notice. Except as otherwise provided herein, all notices, reports, or demands
required to be given in writing under this Franchise shall be deemed to be given when
delivered personally to any officer of the Grantee or the City's designated Franchise
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administrator, via courier or e-mail, or forty-eight (48) hours after it is deposited in the
United States mail in a sealed envelope, with registered or certified mail postage prepaid
thereon, addressed to the party to whom notice is being given, as follows:
If to City: City of Columbia Heights, Minnesota
590 40 Avenue N.E.
Columbia Heights, Minnesota 55421 -3878
Attention: City Manager
With copies to: Stephen J. Guzzetta
Bradley & Guzzetta, LLC
55 East Fifth Street
Suite 1220
St. Paul, Minnesota 55101
If to Grantee: Comcast
10 River Park Plaza
St. Paul, Minnesota 55107
Attention: Regional Vice - President
With copies to: Director of Government Affairs
Comcast
10 River Park Plaza
St. Paul, Minnesota 55107
Such addresses may be changed by either party upon notice to the other party given as provided in
this Section.
(I) Free Subscriber Network Drops and Cable Service to Designated Buildings and
Institutions.
(1) The Grantee shall provide, or continue to provide, free of charge, Installation
of one (1) subscriber network Drop, one (1) cable outlet,
one (1) Converter, if necessary, one (1) remote control, if necessary, all necessary
ports and monthly Basic Cable Service, the next highest level of Cable Service
available to all Subscribers, and any other service tier, regardless of transmission
format, that provides local broadcast and public, educational and /or government
services and /or programming, without charge to the institutions identified on and
consistent with Exhibit B attached hereto and made a part hereof, and such other
public, governmental or educational institutions subsequently designated by the
City which are located one hundred -fifty (150) feet or less from the existing
subscriber network, in the case of underground connections, or two hundred -fifty
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(250) feet or less from the existing subscriber network, in the case of aerial
connections. Any such institution located more than one hundred -fifty (150) feet
from the nearest feeder cable, where an underground connection is requested or
required, or two hundred -fifty (250) feet from the nearest feeder cable, where an
aerial connection is requested or permitted, shall be connected if such institution
agrees to reimburse the Grantee for the Grantee's Actual Costs in excess of the
Actual Costs of the initial one hundred -fifty (150) fee or two hundred -fifty (250)
feet of construction, as the case may be. The Grantee shall have three (3) months
from the Effective Date of this Franchise to complete the construction of Drops and
outlets not already installed, unless weather or other conditions beyond the control
of the Grantee require more time. Free Drops, outlets, equipment and commercial
Cable Service programming provided pursuant to this paragraph shall not
intentionally be made available for regular use or viewing by the general public,
except as specifically provided on Exhibit B. For purposes of the foregoing
sentence, the term "general public" does not include the City's employees, elected
and appointed officials, commissioners and agents.
(2) Additional subscriber network Drops and /or outlets provided to any of the
institutions and locations identified on Exhibit B may be installed by the Grantee at
the Grantee's Actual Cost, subject to verified technical limitations and Comcast's
reasonable business practices concerning scheduling of Installations, provided that
additional Drops and/or outlets requested under this Section 11.102(I)(2) shall be
given priority status. Alternatively, said institution may add additional Drops and/or
outlets at its own expense, as long as such Installation meets the Grantee's
standards. Equipment that may be necessary to utilize additional Drops and /or
outlets shall be furnished by an institution at its own expense. The Grantee shall
have three (3) months from the date of City designation of additional institution(s)
and locations to complete construction of the Drop and outlet unless weather or
other conditions beyond the control of the Grantee require more time. The
provision of any Institutional Network service is addressed in Section 11.107
herein.
(3) If there is a change in the Grantee's technology that affects the ability of municipal,
public and educational institutions to receive Basic Cable Service, the next highest
level of Cable Service available to all Subscribers, and any other service tier that
provides Iocal broadcast and PEG services /programming, the Grantee shall be
required to replace, at the Grantee's cost, all the Converters and remote controls
provided to municipal, public and educational institutions pursuant to Section
11.102(I)(1). The equipment provided pursuant to this paragraph shall not
intentionally be made available for regular use by the general public, other than to
view non - commercial Cable Service programming, as provided by Exhibit B. For
purposes of the foregoing sentence the term "general public" does not include the
City's employees, elected and appointed officials, commissioners and agents.
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(4) In exchange for other consideration provided for in this Franchise, the Grantee
voluntarily agrees that any and all costs and expenses associated with the provision
of Basic Cable Service, cable programming service, Drops, outlets, Converters,
ports and remote controls pursuant to this Section 11.102(I)(1), (2) and (3) shall not
be offset against franchise fees paid to the City.
(J) Effective Date. This Franchise shall become effective on (the "Effective Date "),
provided that: (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 and adopted by the City Council in accordance with applicable law; and (iv) it
has been accepted and signed by the Grantee and the City in accordance with Section
11.114.
(K) Competitive Equity.
(1) Any Cable Service Franchise granted by the City shall be nonexclusive and shall
not preclude the City from granting other or further Cable Service franchises. The
City reserves the right to grant one (1) or more additional Cable Service franchises.
The City shall amend this Franchise, as requested by the Grantee, if it grants
additional Cable Service franchises or similar authorizations that contain material
terms or conditions which are substantially more favorable or less burdensome to
the additional franchise holder than the material terms and conditions herein. A
word for word identical franchise or authorization for a competitive entity is not
required so long as the regulatory and financial burdens on each entity are generally
equivalent.
(2) Notwithstanding any provision to the contrary, at any time prior to the
commencement of the Grantee's thirty-six (36) month renewal window under
Section 626 of the Cable Communications Policy Act of 1984, as amended, 47
U.S.C. § 546, that a non - wireless facilities based entity, legally authorized by State
or federal law, makes available for purchase by Subscribers or customers, Cable
Services within the City without a Cable Service franchise or other similar lawful
authorization granted by the City, then the Grantee shall have a right to request
Franchise amendments that relieve it of regulatory burdens that create a substantial
competitive disadvantage to the Grantee. In requesting amendments, the Grantee
shall file a petition seeking to amend this Franchise. Such petition shall: (a)
indicate the presence of such wireline competitor and identify the competitor and
the scope of its service area; (b) describe the Cable Services offered to Subscribers
or customers by the competitor; (c) identify the Franchise terms and conditions for
which Grantee is seeking amendments; (d) provide the text of all proposed
Franchise amendments to the City, along with a written explanation and
justification as to why the proposed amendments are necessary; and (e) identify all
material terms or conditions in the applicable State or federal authorization which
are substantially more favorable or less burdensome to the competitive entity.
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Provided the Grantee fully cooperates with the City and provides all requested data,
the City shall act on the petition within 120 calendar days, unless the parties agree
to an extension of time. The City may consider all relevant factors, evidence and
circumstances in making its decision under this paragraph.
(3) In the event an application for an additional Cable Service franchise is filed with the
City, the City shall notify the Grantee.
SECTION 11.103
CONSTRUCTION STANDARDS
(A) Registration, Permits and Construction Codes.
(1) Grantee shall strictly adhere to all State and local laws and building and zoning
codes currently or hereafter applicable to the location, construction, installation,
operation or maintenance of the System and any I -Net in the City and give due
consideration at all times to the aesthetics of public and private property.
(2) Repeated 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.
(B) Repair of Rights -of -Way and Property. Any Rights -of -Way, or any sewer, gas or water
main or pipe, drainage facility, electric, fire alarm, police communication or traffic control
facility of the City, or any other public or private property, which is disturbed, damaged or
destroyed during the construction, repair, replacement, relocation, operation, maintenance,
expansion, extension or reconstruction of the System shall be promptly and fully restored,
replaced, reconstructed or repaired by the Grantee, at its expense, to the same condition as
that prevailing prior to the Grantee's work and shall maintain the surface in good condition
for six months thereafter, to the extent consistent with applicable statutes and rules and to
the extent required of other utilities making use of the Rights -of- Way. 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 as
quickly as possible under the circumstances 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, and to remove all
dirt, rubbish and material, the City shall have the right to put the Rights -of -Way, public or
15
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. This remedy shall
be in addition to any other remedy available to the City for noncompliance with the City
Code, the Right -of -Way Ordinance, State law and applicable rules, regulations, standards
and requirements.
(C) Conditions on Right -of -Way Use.
(1) Nothing in this Franchise shall be construed to prevent 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.
(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) The Grantee shall, at its sole expense, by a reasonable time specified by the City,
protect, support, temporarily disconnect, relocate or remove any of its property
when required by the City by reason of traffic conditions; public safety; Rights -of-
Way construction; street maintenance or repair (including resurfacing or widening);
change in Right -of -Way grade; construction, installation or repair of sewers, drains,
water pipes, power lines, signal lines, tracks or any other type of government -
owned communications or traffic control system, public work or improvement of
government -owned utility; Right-of-Way vacation; or for any other purpose where
the convenience of the City would be served thereby. If the Grantee fails, neglects
or refuses to comply with the City's request, the City may protect, support,
temporarily disconnect, relocate or remove the appropriate portions of the System,
and /or any I -Net at the Grantee's expense. 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, except where
such damage is the result of the City's gross negligence or willful misconduct.
(4) All poles, conduits, or other fixtures placed in any Right -of -Way shall be so placed
as to comply with all reasonable and lawful requirements of the City.
(5) The Grantee shall, upon request of any Person holding a moving permit issued by
City, temporarily move its wires or fixtures to permit the moving of buildings with
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the expense of such temporary removal to be paid by the Person requesting the
same, and the Grantee shall be given not less than ten (10) days' advance written
notice to arrange for such temporary changes.
(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. All
trimming shall be performed at no cost to the City or a homeowner.
(7) Grantee shall use its best efforts to give reasonable prior notice to any adjacent
private property owners who will be negatively affected or impacted by Grantee's
work in the Rights -of -Way.
(8) If any removal, relaying or relocation of the System is required to accommodate
the construction, operation or repair of the facilities of a Person that is authorized
to use the Rights -of -Way, the Grantee shall, after thirty (30) days' advance
written notice and payment of all costs by such Person, commence action to effect
the necessary changes requested by the responsible entity. If multiple responsible
parties . are involved, the City may resolve disputes as to the responsibility for
costs associated with the removal, relaying or relocation of facilities among
entities authorized to install facilities in the Rights -of -Way if the parties are
unable to do so themselves, and if the matter is not governed by a valid contract
between the parties or any State or federal law or regulation.
(9) In the event the System is contributing to an imminent danger to health, safety or
property, as reasonably determined by the City, after providing actual notice to
the Grantee, if it is reasonably feasible to do so, the City may remove or relocate
any or all parts of the System and /or the I -Net at the Grantee's expense.
(D) Undergrounding of Cable.
(1) Where existing poles, underground conduits, ducts or wire - holding structures are
available for use by the Grantee, but it does not make arrangements for such use,
the City may require, through the established permit, or any other applicable
procedure, the Grantee to use such existing poles and wire - holding structures if
the City determines that the public convenience would be enhanced thereby. The
Grantee may decline to use such third -party structures after (i) demonstrating to
the City that such use would be incompatible with the Grantee's regular
requirements for aerial or underground facilities, and (ii) receiving the City's
approval, which shall not be unreasonably withheld.
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(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, the Right-
of-Way Ordinance 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, the Right -of -Way Ordinance, and 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. If the City reimburses or
otherwise compensates any Person using the Rights -of -Way for the purpose of
defraying the cost of any of the foregoing, the City shall also reimburse the
Grantee in the same manner in which other Persons affected by the requirement
are reimbursed. If the funds are controlled by another governmental entity, the
City shall not oppose or otherwise hinder any application for or receipt of such
funds on behalf of the Grantee.
(E) Installation of Facilities.
(1) No poles, conduits, ducts, cabinets, pedestal mounted boxes, similar structures, or
other wire - holding structures shall be erected or installed by the Grantee without a
required City permit or other authorization from the City.
(2) No placement of any pole, cabinet, box, equipment or wire - holding structure of
the Grantee is to be considered a vested fee interest in the Rights -of -Way or in
City property. Whenever feasible, all transmission and distribution structures,
lines, wires, cables, equipment and poles or other fixtures erected by the Grantee
within the City are to be so located and installed as to cause minimum
interference with the rights and convenience of property owners.
(F) Safety Requirements.
(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
18
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.
(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) The Grantee shall install and maintain such devices as will apprise or warn
Persons and governmental entities using the Rights -of -Way of the existence of
work being performed on the System in Rights -of -Way.
(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, free
of charge.
(G) 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, subject to any other lawful and valid authorizations the
Grantee may have to use the System in Public Rights -of -Way, 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. The City may not order removal the System, or portions thereof, until the
parties have exhausted all applicable processes governing cable television franchise
renewals set forth in 47 U.S.C. § 546. Should the Grantee fail, refuse or neglect to
comply with the City's directive, all portions of the System, or any part thereof, may at
the option of the City become the sole property of the City, at no expense to the City, or
be removed, altered or relocated by the City at the cost of the Grantee. The City shall not
be liable to the Grantee for damages resulting from such removal, alteration or relocation.
SECTION 11.104
DESIGN PROVISIONS
(A) System Capacity and Technical Design.
(1) The Grantee's System generally shall have at least the following characteristics:
(a) a modern design, 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 (24) hour a day basis without severe material degradation
during operating conditions typical to the Minneapolis /St. Paul
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metropolitan area;
(b) 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;
(c) a System that conforms to or exceeds all applicable FCC technical
performance standards, which standards are incorporated herein by
reference, industry standards and manufacturers' specifications concerning
the transmission and reception of analog and digital video programming
and other programming services, and any other applicable technical
performance standards. Upstream signals shall at all times meet or exceed
manufacturers' specifications for successful operation of upstream
equipment provided by the Grantee or approved for use by the Grantee at
any Subscriber's premises. End of the line performance must meet or
exceed FCC specifications at the end of the Subscriber Drop;
(d) a System that shall, at all times, comply with applicable, then - current
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):
(i) National Electrical Code, as amended from time to time; and
(ii) National Electrical Safety Code (NESC), as amended from time to
time.
(e) facilities and equipment sufficient to cure violations of FCC technical
standards and to ensure that Grantee's System is in compliance with the
standards specified in subsection 11.104(A)(1)(d);
(f) such facilities and equipment as are 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;
(g) status monitoring equipment to alert the Grantee when and where back -up
power supplies are being used;
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(h) antenna supporting structures designed in accordance with any applicable,
then - current governmental building codes, as amended, and painted,
lighted and erected and maintained in accordance with all applicable rules
and regulations of the Federal Aviation Administration, the FCC and all
other applicable codes and regulations;
(i) 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;
(j) facilities and equipment capable of operating within the temperature
ranges typical to the climate of the City over the calendar year;
(k) the System shall be constructed and operated (i) so that there is no
material deterioration in the quality of Public Access Channel, Educational
Access Channel 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, and (ii) so that PEG signals
are at the same or better level of technical quality and reliability as
commercial signals carried by the Grantee on its System, so long as the
PEG signal comes to the Grantee at that level of quality. All processing
equipment used by the Grantee for processing PEG signals will be of
similar quality to the processing equipment used for commercial
Channels; and
(1) the Grantee shall insure that the System complies with FCC rules and
regulations pertaining to signal leakage and shall ensure there is no
degradation of picture quality delivered to Subscribers.
(2) The System operated by the Grantee shall have at least the following
characteristics:
(a) active two -way plant for Subscriber interaction, if any, required for the
selection or use of Cable Service;
(b) The System shall have a minimum Channel capacity of at least 200
Channels, downstream to all Subscribers, plus additional capacity capable
of supporting digital and other services; and
(c) an initial analog passband of 750 MHz.
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(3) The System shall be designed, constructed and activated in order to facilitate
narrowcasting of the PEG Access Channels solely within the City, except that the
Educational Access Channel and the Government Access Channel programmed
by the City library system may be transmitted to and viewed on the Cable System
serving the City of Hilltop, Minnesota. The Grantee shall provide and maintain
all equipment and facilities necessary to accomplish this narrowcasting, at no cost
to the City or any PEG Access Channel manager and programmer.
(4) All power supplies for the System shall be equipped with standby power
capability in accordance with Section 11.104(A)(1)(b). 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 11.104(A)(1)(g).
(5) Emergency Alert System.
The Grantee shall 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.
(6) The Grantee shall, in connection with any new underground System construction,
install conduit adequately sized to address future System rebuilds or System
additions, with the intent to limit the need to reopen Rights -of -Way for
construction and installation work.
(7) 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, rules or decisions
of the FCC.
(B) System Construction and Line Extension.
(1) The Grantee shall construct and operate its System so that it is able to offer and
provide Cable Service to all Persons within the City as of the Effective Date of
this Franchise, upon request, without charging such Persons more than the
Standard Installation charges for the individual Drop. Notwithstanding anything
to the contrary in this Franchise, the Grantee shall continue to offer Cable Service
to all locations serviceable prior to the Effective Date of this Franchise. The
requirements in this paragraph may be waived in writing by the City, in its sole
discretion, upon request.
(2) Except as otherwise provided herein, the Grantee shall be given a reasonable
period of time to construct and activate cable plant to service annexed or newly
22
developed areas in the City, but in no event shall the applicable timeframe exceed
twelve (12) months from notice thereof by the City to the Grantee.
(3) All System construction and maintenance shall be performed in accordance with
applicable laws, procedures, standards and regulations.
(4) The Grantee shall provide the City with notice prior to commencement of all steps
of System construction or maintenance in which possible service disruptions or
major physical construction activities may occur, including but not limited to: (i)
pedestal and cabinet placements or replacements; (ii) underground duct
placements or replacements; (iii) overlashing of aerial fiber optic, coaxial or
copper lines; and (iv) underground placement or replacement of vaults and cables.
(5) The Grantee shall maintain complete and comprehensive strand maps of the
System throughout the Franchise term, and shall make them available to the City
for inspection, upon request, on a confidential basis, to the extent confidential
treatment is permitted by law. Such maps shall be updated as changes occur in
the System. The Grantee shall provide to the City, upon request, (including any
electronic form regularly maintained in the normal course of business) copies of
all strand maps showing the Grantee's facilities and equipment in the Rights -of-
Way, and on private property where necessary to investigate citizen complaints or
to determine Franchise compliance. The Grantee shall also maintain throughout
the Franchise term a full set of headend, hub, and Node routing diagrams,
showing routing from source input to combiner output and routing between
headends, hubs, and Nodes for all System and I -Net signal transport. Such
routing diagrams shall be made available to the City for inspection, upon request,
on a confidential basis, to the extent confidential treatment is permitted by law. In
addition, the Grantee shall, upon request, provide the City with all data and
information specified in Minnesota Rules, Part 7819.4100. At the City's request,
the Grantee shall provide existing data on its existing facilities within the Rights -
of -Way in the form maintained by the Grantee at the time the request was made, if
available.
(6) Following commencement of any major System construction or I -Net
construction, the Grantee shall, upon request of the City, meet with the City and
provide an update on the progress of the System or I -Net construction. Prior to
the beginning of the System construction or I -Net construction, and periodically
during each phase of construction, the Grantee shall inform the public and its
Subscribers, through various means, about: (i) the progress of the construction;
(ii) areas where construction crews will be working; and (iii) any expected
temporary interruptions to existing services which may occur.
(C) System Maintenance.
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(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. If service is
interrupted for more than twenty -four (24) consecutive hours, Subscribers shall be
credited pro rata for such interruption, upon notifying Comcast orally or in
writing.
(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.
(D) Technical Standards. The technical standards used in the operation of the System shall
comply, at minimum, with the technical standards promulgated by the FCC relating to
Cable Systems pursuant to Title 47, Section 76.601, et seq., as may be amended or
modified from time to time, which regulations are expressly incorporated herein by
reference, as well as applicable industry standards (e.g., NTSC and ATSC),
manufacturers' specifications and good engineering practices. The results of tests
required by the FCC shall be retained by the Grantee in a manner consistent with
applicable law, and shall be made available to the City for inspection upon written
request or as otherwise permitted by applicable law, including Minn. Stat. § 238.084,
Subd. 1(q).
(E) System Tests and. Inspections; Special Testing.
(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.
(2) The City shall have the right to inspect all construction or installation work
performed pursuant to the provisions of the Franchise. In addition, the City may
require special testing of a location or locations within the System if there is a
regular pattern of controversy or unresolved complaints regarding such
construction or installation work or pertaining to such location(s). Demand for
such special tests may be made on the basis of complaints received or other
evidence indicating a regular pattern of unresolved controversy or noncompliance.
Such tests shall be limited to the particular matter in controversy or unresolved
complaints. The City shall endeavor to so arrange its request for such special
testing so as to minimize hardship or inconvenience to Grantee or to the
Subscribers caused by such testing.
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(3) Before ordering such tests, Grantee shall be afforded thirty (30) days following
receipt of written notice to investigate and, if necessary, correct problems or
complaints upon which tests were ordered. The City shall meet with 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
unresolved complaints, the tests shall be conducted at Grantee's expense by a
qualified engineer selected by City and Grantee shall cooperate in such testing.
Any costs and expenses associated with testing or retesting the System shall not
be considered franchise fees and shall not be deducted from or offset against
franchise fee payments or other payments made to the City.
(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.
(5) The Grantee shall provide the City with at least two (2) business days' prior
written notice of, and opportunity to observe, any special tests required by the
City pursuant to subparagraph (2) of this Section and performed on the System.
(a) Test results shall be provided to the City within fourteen (14) days of a
written request by the City, unless otherwise required by the terms of this
Franchise.
(b) 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. Any costs associated with testing or retesting the System shall
not be considered franchise fees and shall not be deducted from or offset
against franchise fee payments or other payments made to the City.
(F) 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 City also be made available to the City for review at Comcast's local
offices within ten (10) days of the request.
(G) Lockout Device. Upon the request of a Subscriber, Grantee shall make available a
Lockout Device at its regular and nondiscriminatory charge to Subscribers.
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(H) Types of Service. Any change in programs or services offered shall comply with all
lawful conditions and procedures contained in this Franchise and in applicable laws or
regulations.
(I) Uses of System. The Grantee shall, upon request of the City, advise the City of all active
uses of the System, for both entertainment and other purposes, and the City shall have the
right to conduct unannounced audits of such usage.
SECTION 11.105
SERVICE PROVISIONS
(A) Customer Service Standards. The Grantee shall at all times comply with FCC customer
service standards and all applicable State standards, which standards are incorporated into
and made a part of this Franchise. Applicable customer service standards in effect on the
Effective Date of this Franchise include, but are not limited to, those customer service
requirements set forth in this Section 11.105 and Exhibit A, which is attached hereto and
incorporated herein. Nothing in this Franchise shall limit the City's ability to adopt and
enforce additional or stricter customer service standards than those delineated in federal
law to the extent permitted by applicable law. The parties acknowledge that Comcast may
pass through to Subscribers direct and verifiable costs attributable to complying with
such additional or stricter customer service standards adopted by the City in any manner
consistent with and permitted by applicable law.
(B) Video Programming. Except as otherwise provided in this Franchise or in applicable
law, all video programming decisions remain the discretion of the Grantee, provided that
the Grantee notifies the City 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 City, and
use best efforts to provide all Subscriber notices to the City prior to delivery to
Subscribers.
(C) Regulation of Service Rates.
(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.
(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
26
requirement is specifically waived by governing law. Bills must be clear, concise
and understandable, with itemization of all charges.
(D) Subscriber Contracts. Upon written request, the Grantee shall provide the City any
standard form Subscriber contract utilized by the Grantee then in effect. If no such
written contract exists, Grantee shall provide the City with 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) and current Subscriber rates and
charges shall be available for public inspection at Grantee's offices during Normal
Business Hours.
(E) Service Credit.
(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.
(2) If, for any reason, Service is interrupted for more than twenty -four (24)
consecutive hours in any thirty (30) day period, Subscribers shall be credited pro
rata for such interruption upon notifying Comcast orally or in writing.
(F) Refunds or Credits.
(1) Any refund checks shall be issued promptly, but not later than either:
(a) the Subscriber's next billing cycle following resolution of the request or
thirty (30) days, whichever is earlier; or
(b) the return of the equipment supplied by the Grantee if Service is
terminated.
(2) Any credits for Cable Service shall be issued no later than the Subscriber's next
billing cycle following the determination that a credit is warranted.
(G) Late Fees. Fees for the late payment of bills shall not be assessed until after the Service
has been fully provided and, as of the due date of the bill notifying Subscriber of an
unpaid balance, the bill remains unpaid. The Grantee shall comply with all State and local
consumer protection laws and regulations pertaining to late fees, and such fees shall not
exceed any amount permitted by State or local law.
(H) Notice to Subscribers. Subscriber notices shall comply with those FCC regulations then
in effect and with the requirements set forth in Exhibit A.
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(I) Anticompetitive Acts Prohibited.
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 or other
multichannel video programming services in the City.
(J) Office Availability and Drop Boxes.
(1) Grantee shall maintain a location in the City or in a contiguous jurisdiction for
receiving Subscriber inquiries and bill payments. The location must be staffed by
a Person capable of receiving inquiries and bill payments. In addition, Grantee
shall maintain a local drop box in the City for receiving Subscriber payments after
hours at a location agreed upon by the City and the Grantee. The drop box 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.
(2) The Grantee shall, at the request of a Subscriber, deliver or retrieve electronic
equipment (e.g., Converters and remote controls) to or from the Subscriber's
premises. The rate(s) or charge(s) for such delivery or retrieval shall not exceed
the amounts permitted by rate regulation rules and applicable law.
(3) The Grantee shall provide Subscribers and the City with at least sixty (60) days'
prior notice of any change in the location of the customer service center serving
the City, which notice shall apprise Subscribers of the customer service center's
new address, and the date the changeover will take place.
SECTION 11.106
PEG ACCESS PROVISIONS
(A) Public, Educational and Government Access Capacity on the System.
(1) The City or its designee is hereby designated to operate, administer, promote, and
manage PEG Access (public, educational, and governmental) programming and
PEG Access Channels on the Cable System. The City may designate one (1) or
more entities, including a non - profit access corporation or a municipal joint
powers commission, to operate, manage, administer, promote and /or program any
Public Access Channel, Governmental Access Channel or Educational Access
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Channel. As of the Effective Date, Independent School District #13 is designated
to operate, manage, administer, promote and program any Educational Access
Channel or Educational Access Channel capacity on the Cable System. The City
may change the designation of a PEG Access manager at any time, in its sole
discretion.
(2) For as long as any PEG Access Channel is delivered to Subscribers in an analog
format, the Grantee shall make available sufficient capacity on the System to
deliver to Subscribers each analog PEG Channel signal as received, with no
material degradation of quality, in accordance with Section 11.104(A)(1)(k)
above. The City or its designee(s) shall allocate the PEG Access Channels in its
sole discretion. As of the Effective Date of this Franchise, the Grantee shall
dedicate and provide four (4) Channels for PEG use, which shall initially be
allocated as follows:
(a) One Channel for City Government Access Channel use, designed,
constructed and activated for discrete transmissions within the City;
(b) One Channel for Educational Access Channel use, designed, constructed
and activated for discrete transmissions within the City; and
(c) One Channel for Governmental Access Channel use by the public library
system in the City, designed, constructed and activated for discrete
transmissions within the City.
Comcast shall maintain one additional Channel in reserve for PEG use as of the
Effective Date. The parties acknowledge that Comcast may use this Channel to
provide commercial programming subject to reclamation by the City. The City
may reclaim the loaned PEG Channel for PEG use in accordance with Section
11.106(A)(3) of this Franchise.
If Comcast elects to offer PEG Access Channels in a digital format during the
Franchise term or any extension(s) thereof, those PEG Channels shall be delivered
to Subscribers over the System in a manner consistent with the standards set forth
in Section 11.104(A)(1)(k). Digital PEG Access Channels shall also be
transmitted to Subscribers with a picture resolution consistent with the standards
set forth in Section 11.104(A)(1)(k). All Subscribers who receive all or any part
of the total services offered on the System shall be eligible to receive such PEG
Channels at no additional charge, other than any generally applicable and lawful
equipment charges. The PEG Access Channel(s) shall be activated upon the
Effective Date of this Franchise and thereafter maintained. The City may rename,
reprogram, or otherwise change the use of the PEG Channels in its sole discretion,
provided such use is lawful, and retains the general purpose of the provision of
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PEG communications. The City may secure additional PEG Channel capacity
pursuant to Minn. Stat. § 238.084, which is expressly incorporated herein by
reference. The City shall provide ninety (90) days' prior written notice to the
Grantee of the City's intent to activate an additional PEG Access Channel.
(3) With respect to the three (3) initial PEG Access Channels provided under this
Franchise, Grantee may utilize any unused PEG Access Channel, or portion
thereof, which is allocated under this Section 11.106, upon request, and after
written approval by the City. The City shall act expeditiously on any such request
and shall not unreasonably withhold approval. Upon a determination of need by
the City, in its sole discretion, the City shall request return of such Channel or
capacity or portion thereof, by delivering written notice to the Grantee and in such
case the Grantee shall cease use of the Channel or capacity within two (2) months
after receipt by the Grantee of such written notice, and take all steps necessary to
enable the City's designated user to program and otherwise utilize the Channel or
capacity.
(4) Any PEG Access Channel reassignment must be to a Channel that meets or
exceeds the service and technical standards required by this Franchise.
(5) As long as the Grantee's System carries Basic Cable Service Channels in analog
format, the Grantee must make the PEG Access Channels available in analog
format to Subscribers within the City. If and when the Grantee's Cable System
carries PEG Access Channels in digital format, those digital PEG Channels must
be made available to all Subscribers in the City. If the Grantee opts to carry PEG
Access Channels in a digital format, it shall assume the cost of replacing all
equipment necessary to ensure that once the PEG Access signals leave the City's
or programmer's router, the signals can be transmitted on the Grantee's
appropriate service tier.
(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 Access Channel programming or
PEG Access services to fall below the service quality or technical levels provided
for in Section 11.104(A)(1)(k), 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 Access
programming facilities may be used as intended, including, among other things,
so that live and recorded programming can be produced, edited, encoded and
transmitted efficiently to Subscribers and so that Subscribers receive PEG Access
programming which has technical characteristics (e.g., picture quality and audio
quality) that comply with the requirements set forth in Section 11.104(A)(1)(k).
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(7) All PEG Channels shall be either transmitted in the same format as provided to
Comcast, or Comcast shall bear the cost of converting the PEG Access Channels
for carriage on its System. All PEG Access Channels shall be carried on the
Basic Cable Service tier to the extent required by applicable laws and/or
regulations. In the event the Basic Cable Service tier lawfully ceases to exist, all
PEG Access Channels shall be carried as provided by applicable laws and
regulations.
(B) Charges for Use. Channel time and playback of prerecorded programming on the PEG
Access Channel(s) must be provided without charge to the City, PEG Access
programmers and PEG Access managers. The Grantee shall also provide downstream
transmission of the PEG Channels at no charge to the City, PEG Access programmers
and PEG Access managers.
(C) PEG Access Rules. The City may adopt reasonable rules and procedures regarding the
use of PEG Channels pursuant to Section 611(d) of the Cable Communications Policy
Act of 1984, as amended, 47 U.S.C. § 531(d), and Chapter 238 of Minnesota Statutes.
The City may, in its sole discretion, delegate the authority to promulgate such rules to an
entity managing a particular PEG Access Channel. The City shall have the sole authority
to resolve any disputes regarding allocation or utilization of PEG Access Channels.
(D) PEG Support Obligations.
(1) Within thirty (30) days of the Effective Date of this Franchise, the Grantee shall
voluntarily pay the sum of ONE HUNDRED NINETY -FOUR THOUSAND
EIGHT HUNDRED FORTY -TWO DOLLARS AND 00 /100 ($194,842.00) to the
City for PEG Access capital purposes, to the extent required by applicable law,
including (but not limited to) capital construction costs related to the I -Net and the
acquisition of PEG Access equipment (the "PEG Grant "). The City, in its sole
discretion, shall allocate this PEG Grant to one or more entities managing PEG
Access in the City. The voluntary PEG Grant set forth in this paragraph shall be
in addition to the franchise fees paid to the City, and all other obligations of the
Grantee. Comcast may recover the PEG Grant, in addition to any permissible
interest not to exceed 4.5 percent, over a term of sixty (60) months or less
commencing on the Effective Date, in its rate base and /or via a line item on
Subscribers' bills to the extent permitted by and consistent with applicable laws .
and regulations. After the PEG Grant has been fully recovered, Comcast shall
completely eliminate the PEG Grant from its rate base and rate structure, and
immediately cease including the PEG Grant (and any associated interest charges)
in the PEG line item on Subscriber bills for the remaining teen of this Franchise,
and any extension thereof. Upon written notification to the City, the Grantee shall
have the right to review the City's use of the PEG Grant to ensure compliance
with any applicable "capital use" requirements of this Franchise. Any such
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a ,
review shall be limited to a period that does not exceed three (3) calendar years
preceding the date of any written request from Comcast to perform a PEG Grant
review. Once Comcast has performed a PEG Grant review for a specified period
of time its review right for that period is permanently extinguished.
(2) In the event the payment required by paragraph 11.106(D)(1) 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 %) or the maximum rate
permitted by law. The Grantee waives any right to claim that any interest or
penalties imposed hereunder constitute franchise fees within the meaning of 47
U.S.C. § 542. Failure to pay required the PEG Grant in a timely manner shall
also be a material violation of this Franchise, subject to all sanctions and remedies
herein, and the City may, at its discretion, declare this Franchise void and of no
further force and effect.
(3) The Grantee agrees that if it utilizes an electronic programming guide or visual
interface under its control on its System for all Channels, the PEG Access
Channels shall be clearly identified so that Subscribers will have ready access to
all PEG Access Channels.
(4) Any reduction in PEG - related costs incurred by the Grantee in this Franchise as
compared to the Prior Franchise shall be accurately reflected in the Grantee's
rates and charges and shall be passed through to Subscribers. Upon request, the
Grantee shall provide the City with a report and supporting documentation, in a
form and by a deadline specified by the City, clearly showing how PEG - related
cost reductions have been passed through to Subscribers.
(5) The Grantee knowingly, intelligently, permanently and irrevocably waives and
extinguishes any claim or cause of action it may have to recover any legitimate
and documented under - collection of PEG costs it incurred during the Prior
Franchise.
(E) Return Feeds From PEG Access Signal Origination Sites to the Grantee's Headend.
(1) The Grantee shall provide without charge (except for properly invoiced and
verified construction, operation and installation charges associated with any I-
Net) facilities and equipment so that PEG Access signals can be routed from the
origination sites identified in Exhibit B onto an appropriate PEG Channel on the
Cable System. Upstream transmission provided by the Grantee under this Section
shall include all equipment and facilities necessary for amplification, optical
conversion, receiving, transmitting, switching, and headend processing of
upstream PEG signals from each PEG Access signal origination site. All such
equipment, including but not limited to the electronics at each PEG Access signal
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origination site, shall be installed, repaired, and maintained in good working order
by the Grantee on the Grantee's side of the point of interconnection, provided,
however, that the Grantee shall not be responsible for the cost of repairing any
damage caused by the owner or operator of the PEG Access signal origination site
or its agents or invitees. The reasonably certain and quantifiable incremental costs
of construction of such upstream PEG Access signal transmission facilities and of
associated equipment may be recovered from Subscribers as a separate line item
on Subscriber bills in any manner consistent with and to the extent permitted by
applicable law. Any and all incremental costs incurred by Comcast under this
paragraph may not be recovered or itemized on Subscribers' bills more than once.
(2) The Grantee shall be responsible for ensuring that signals for each PEG Access
Channel are correctly routed from each PEG access signal origination site set
forth on Exhibit B on to the correct PEG Channel for distribution to Subscribers.
(3) Every upstream feed provided pursuant to this Section 11.106(E) shall ensure that
the quality of PEG Access signals delivered to Subscribers shall meet the
standards provided by Section 11.104(A)(1)(k).
(F) Backup Facilities and Equipment. Subject to Section 11.106(E), the Grantee shall design,
build and maintain all PEG upstream feeds, interconnection and distribution facilities so
that such feeds function as reliably as the Grantee's Cable System as a whole within the
City, and are no more likely to fail than is the Grantee's Cable System as a whole within
the City.
(G) Editorial Control. Except as expressly permitted by federal law, the Grantee shall not
exercise any editorial control over the content of programming on the designated PEG
Channels (except for such programming as the Grantee may produce and cablecast on
such Channels).
(H) Regional Channel 6. The Grantee shall designate standard VHF Channel 6 for uniform
regional Channel usage, to the extent required by applicable law.
(I) Leased Access Channels. The Grantee shall provide leased access Channels as required
by federal and State law.
(J) PEG Obligations. Except as expressly provided in this Franchise, the Grantee shall not
make any changes in PEG Access support or in the transmission, reception and carriage
of PEG Access Channels and equipment associated therewith, without the prior consent
of the City.
(K) Costs and Payments Not Franchise Fees. The parties agree that any and all costs and
expenses to the Grantee and payments from the Grantee associated with the provision of
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PEG Access Channels /capacity, PEG Access Channel /capacity signal transport, PEG
facilities and equipment, PEG programming, interconnection, Universal PEG Service
and/or the I -Net pursuant to Sections 11.102(E), 11.106 and 11.107 of this Franchise are
voluntary and cable - related, and are not intended to constitute and are not part of a
franchise fee and fall within one or more of the exceptions to 47 U.S.C. § 542.
SECTION 11.107
INSTITUTIONAL NETWORK (I -NET) PROVISIONS
(A) Institutional Network Facilities and Capacity.
(1) Upon written request from the City, Comcast shall construct an Institutional
Network for the City. Once constructed, the I -Net facilities and all I -Net capacity
may be exclusively utilized by the City for any lawful, non - commercial use for
governmental or educational purposes, as determined in the City's sole discretion,
including (but not limited to) the transmission of video, voice and data. The
limitations of this paragraph shall not prevent the City from installing and
operating wireless Internet access points connected to the Institutional Network in
government buildings.
(2) After receiving a written request for the construction of the I -Net from the City,
Comcast shall commence and complete construction, and activate the I -Net, in
accordance with a reasonable construction schedule agreed to by the parties.
Failure to timely complete and activate the I -Net shall be a material violation of
this Franchise. The City may, in its sole discretion, require Comcast to post a
construction bond in connection with any I -Net construction. The amount of the
bond shall be reasonable given the nature of the construction involved and shall
be with such sureties as are acceptable to the City. This bond will be conditioned
upon the faithful performance and completion by the Grantee of any I -Net
construction and upon the further condition that in the event the Grantee shall fail
to comply with any applicable I -Net requirements in this Franchise, there shall be
recoverable jointly and severally from the principal and surety of the bond any
damages or loss suffered by City as a result. The rights reserved by the City with
respect to any construction bond are in addition to all other rights and remedies
the City may have under the Franchise or any other law, regulation, order or
decision. Once any I -Net construction has been completed and accepted by the
City, the construction bond may be eliminated.
(3) The I -Net shall be a dedicated, point to point fiber network interconnecting the
sites identified below, and shall be capable of carrying data, voice and video
signals at the service levels set forth in this Section 11.107(A)(3).
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(a) The I -Net shall provide at least 60 Mbps service from the Public Safety
Facility located at 825 40 Avenue, NE and Jackson Street (the "Public
Safety Facility") to the following remote sites:
(i) at least 20 Mbps from the Municipal Liquor Store located at 2105
37 Avenue N.E. to the Public Safety Facility;
(ii) at least 20 Mbps from the Municipal Liquor Store located at 5225
University Avenue N.E. to the Public Safety Facility; and
(iii) at least 20 Mbps from the Municipal Liquor Store located at 4950
Central Avenue N.E. to the Public Safety Facility (collectively, the
"Municipal Liquor Stores ").
(b) The I -Net shall also provide a 100 Mbps Internet Access Network
Interface from the Public Safety Facility to the public Internet.
The Public Safety Facility and the Municipal Liquor Stores are collectively
referred to herein as the "I -Net Sites" or individually as an "I -Net Site."
(4) The I -Net shall include Comcast -owned interface equipment at all I -Net Sites,
which equipment shall be located on Comcast's side of the demarcation point. In
addition, the I -Net shall include up to thirty -two (32) routable static Internet
Protocol addresses, if justified by the City.
(5) Upon written request from the City, Comcast shall construct the I -Net for a total
cost not to exceed $69,842.00, payable by the City prior to the commencement of
construction. The individual cost for constructing the I -Net to specific I -Net Sites
shall be as follows:
(a) the Public Safety Facility: a cost not to exceed $19,756.69;
(b) the Municipal Liquor Store located at 2105 37 Avenue N.E.: a cost not
to exceed $23,409.46;
(c) the Municipal Liquor Store located at 5225 University Avenue N.E.: a
cost not to exceed $16,800.79; and /or
(d) the Municipal Liquor Store located at 4950 Central Avenue N.E.: a cost
not to exceed $9,875.11.
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The City may, in its sole discretion, utilize all or a portion of the PEG Grant to
pay for applicable I -Net construction costs. Alternatively, the City may pay for
specified I -Net construction costs out of its general fund or any other fund, budget
or grant that may be used for this purpose.
(6) Comcast shall retain ownership of all fiber -optic lines and equipment located on
Comcast's side of the demarcation points at all I -Net Sites.
(7) Until such time as the I -Net is fully operational and accepted by the City,
Comcast shall continue to provide free cable modem service /Internet access to the
City at the Municipal Liquor Stores, the City Hall building located at 590 40
Avenue N.E. and the City Gymnasium located at 1300 49 Avenue N.E.
(8) The I -Net shall not be considered completed and accepted until all applicable
cabling and construction standards have been met or exceeded. The Grantee shall
notify the City, or its designee, in writing, at least ten (10) days in advance of
completion of construction of each I -Net Site. The notice shall include the date
the Grantee is prepared to conduct applicable tests on the site. The City or its
designee shall have the option of attending any tests conducted pursuant to this
paragraph. All tests must be successfully completed. If any I -Net Site does not
pass the Grantee's performance test, the Grantee shall take all steps necessary to
meet applicable standards, and the affected site shall be retested prior to
activation. The Grantee shall send the City the results of each test conducted
under this paragraph.
(9) The City, or its designee, shall have the option of conducting a physical
inspection of the construction and connections to all the I -Net Sites. This
inspection shall be conducted no later than the date of the test in subsection
11.107(A)(8).
(B) I -Net Performance Standards. Comcast, or its Affiliate, shall at all times operate, repair,
maintain and manage the I -Net in accordance with an executed network services
agreement and its "Ethernet Dedicated Internet Service Technical Description." The
network services agreement shall set forth monthly fees for services, and all other
material terms and conditions relative to Comcast's or its Affiliate's provision of I -Net
services to the City. Where an executed network services agreement conflicts with any
term or condition of this Franchise, the executed network services agreement shall
prevail.
(C) I -Net Use. The I -Net shall be for the exclusive use of the City throughout the term of this
Franchise, and any extension(s) hereof.
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SECTION 11.108
OPERATION AND ADMINISTRATION PROVISIONS
(A) Administration of Franchise. The City Manager or other designee shall have continuing
regulatory jurisdiction and supervision over the System and the Grantee's operation
under the Franchise. The City, or its designee, 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.
(B) Delegated Authority. The City may appoint a citizen advisory body or a Joint Powers
Commission, or may delegate to any other body or Person authority to administer and
enforce the Franchise and to monitor the performance of the Grantee pursuant to the
Franchise. The Grantee shall cooperate with any such delegatee of the City.
(C) Franchise Fee.
(1) During the term of the Franchise, Grantee shall pay quarterly to the City a
franchise fee in an amount equal to five percent (5 %) of its quarterly Gross
Revenues, in a manner consistent with federal law, or such other amounts as are
subsequently permitted by federal or State law.
(2) Any payments due under this provision shall be payable quarterly. The payment
shall be made within forty five (45) 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, which information shall be furnished directly to the City, subject to
the confidentiality provisions of this Franchise, so long as such information is
maintained in the ordinary course of business. In addition, the Grantee shall file
with the City an annual report showing all Gross Revenues for the prior calendar
year. This report shall be filed with the City within thirty (30) days of the end of
each calendar year.
(3) All amounts paid shall be subject to review or 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 and /or its designee(s) all documents, records and certifications
necessary to confirm the accurate payment of franchise fees, regardless of
whether such documents and records are held by the Grantee, an Affiliate or any
other agent of the Franchisee. The Grantee shall maintain such documents and
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 or review discloses an overpayment or underpayment of
37
franchise fees, the City shall notify the Grantee of such overpayment or
underpayment. The City's audit/review 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 or
review 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/review 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 or review determines that there has been an
overpayment by the Grantee, the Grantee may credit any overpayment against its
next quarterly franchise fee payment.
(4) In the event any franchise fee payment or recomputation amount is not made on
or before the required date, the Grantee shall pay, during the period such unpaid
amount is owed, the additional compensation and interest charges computed from
such due date, at an annual rate of ten percent (10 %).
(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.
(6) The franchise fee payments required by this Franchise shall be in addition to any
and all taxes or fees of general applicability and all direct or indirect PEG and I-
Net support costs, expenses and payments. 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 payments and 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 payments,
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 costs, expenses and payments, and 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.
(D) Access to Records. The City, in its sole discretion, shall have the right to inspect, upon
reasonable notice and during Normal Business Hours, or require the Grantee to provide
within a reasonable time, copies of any records maintained by Grantee or an Affiliate or
subsidiary of the Grantee which relate to System operations including (but not limited to)
the Grantee's accounting and financial records.
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(E) Reports and Maps to be Filed with the City.
(1) The Grantee shall file with the City, at the time of payment of the franchise fee, a
report of all Gross Revenues in substantially the form as attached as Exhibit C.
(2) The Grantee shall prepare and furnish to the City, upon request, such information
and data that are reasonably necessary for the City to enforce the terms and
conditions of this Franchise and applicable law. The Grantee shall not be required
to create new reports under this Section, but shall supply all requested data and
information that are maintained in the ordinary course of business, regardless of
format or form, in a manner that can be viewed by the City, subject to the
confidentiality provisions of Section 11.108(H).
(3) If required by the City, the Grantee shall furnish to the City the maps, plats, and
permanent records of those strand maps identifying the general location and
character of Cable System facilities constructed, including underground facilities,
and shall update said maps from time to time upon written request. In addition,
the Grantee must promptly provide mapping information for any of its
underground facilities in accordance with Minnesota Rules, Parts 7819.4000 and
7819.4100.
(F) Periodic Evaluation.
(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.
(2) Topics which may be discussed at any evaluation session may include, but are not
limited to, application of new technologies, System and I -Net performance,
programming offered, PEG Access Channel capacity, 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.
(3) Nothing in this Section shall require the change or modification of any provision
of this Franchise, except as may be agreed to in writing by the Grantee and the
City.
(G) Review of PEG and I -Net Cost Recovery. The City may review the Grantee's pass -
through and recovery of PEG - related and I- Net - related costs and expenses included in any
line item on Subscribers' bills and /or in the Grantee's rate base. Subject to the
confidentiality provisions of this Franchise, the Grantee shall be responsible for providing
the City and /or its designee(s) all documents, records and certifications maintained in the
ordinary course of business and necessary to confirm the accurate pass- through and
39
recovery of PEG - related and I -Net related costs incorporated in its rate base and/or
itemized on Subscriber billing statements, regardless of whether such documents and
records are held by the Grantee, an Affiliate or any other agent of the Grantee. The
Grantee shall maintain such documents and 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 a review discloses an over - recovery of PEG - related
and/or I- Net - related costs, the City shall notify the Grantee of such over - recovery and may
order Subscriber refunds. Any refunds owed to Subscribers shall be made by Comcast
within ninety (90) calendar days of receiving an order from the City, or such other time
period as may be provided for in applicable laws or regulations.
(H) Confidential Treatment of Certain Information Furnished by Comcast Pursuant to this
Franchise.
The Grantee shall provide books, documents, information and records to the City, and /or
its agents, in accordance with the terms of this Franchise; provided, however, that
requested books, documents, information and records that are confidential or proprietary
may be disclosed to the City and /or its agents pursuant to a non - disclosure agreement, an
example of which is attached hereto as Exhibit D, whereby the information required to
be disclosed under this Franchise will be provided for a specific purpose defined in the
non - disclosure agreement. The intent of the parties is to work cooperatively to insure
that those books, documents, information and records necessary for the City's
monitoring, administration and enforcement of Franchise obligations are provided to the
City, and /or its agents, or made available for review. If the Grantee requests that the
City and /or its agents review particular books, documents, information and /or records at
Comcast's offices, and the City or its agents agree, in their sole discretion, then the
Grantee shall pay all actual costs incurred by the City and /or its representative(s) in
traveling to Comcast's offices and reviewing and analyzing requested documents, books,
records and /or information. To the extent that Grantee furnishes documents, books,
information and /or records directly to the City, City officials agree to protect any
proprietary or confidential books or records, in accordance with the terms of an executed
non- disclosure agreement substantially in the form attached hereto as Exhibit D, to the
extent permitted by law or by any applicable State or federal order or decision. The
Grantee shall be responsible for clearly and conspicuously identifying and marking
confidential or proprietary documents, books, records and information as "confidential"
or "proprietary" consistent with the terms of an executed non - disclosure agreement. If
the City receives a lawful demand from any Person for disclosure of any information
properly and lawfully designated by the Grantee as confidential or proprietary pursuant
to an enforceable non - disclosure agreement then in effect, the City shall, so far as
consistent with applicable law, advise the Grantee and provide the Grantee with a copy
of any written request by the party demanding access to such information within a
reasonable time. If the Grantee believes that the disclosure of such documents by the City
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would cause irreparable harm to the Grantee's rights under federal or State law, the
Grantee may institute an action in Anoka County District Court to prevent the disclosure
by the City of such documents. The Grantee shall join the Person requesting the
documents to such an action. The Grantee shall defend, indemnify and hold the City
harmless from any claim or judgment as well as any costs, expenses, damages, penalties
and attorneys fees incurred in participating in any such proceeding. The Grantee shall also
make arrangements for the return of confidential or proprietary information to the
Grantee's designated offices at Grantee's sole expense, unless otherwise agreed to in
writing by the parties.
SECTION 11.109
GENERAL FINANCIAL AND INSURANCE PROVISIONS
(A) Letter of Credit.
(1) On the Effective Date of this Franchise, the Grantee shall deliver to the City an
irrevocable and unconditional Letter of Credit, in a form and substance acceptable
to the City, from a National or State bank approved by the City, in the amount of
$25,000.00, and maintain such Letter of Credit for the duration of this Franchise,
and any extension(s) thereof. 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 City in payment for any monies, fees and/or taxes 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.
(2) If the Grantee fails to make timely payment to the City of any amount due under
this Franchise or applicable law, the City may, after ten (10) business days written
notice to the Grantee, make a claim against the Letter of Credit for the amount
due, with interest and any applicable penalties.
(3) If the City determines that the Grantee is in default of any provision of this
Franchise which is subject to liquidated damages pursuant to subsection (B)
below, and determines that the collection of liquidated damages is appropriate,
upon ten (10) days' written notice to the Grantee, the City may make a claim
against the Letter of Credit for the amount of the liquidated damages.
(B) Liquidated Damages.
(1) Because it may be difficult to calculate the harm to the City in the event of a
breach of this Franchise by Grantee, the parties agree to liquidated damages as a
reasonable estimation of the actual damages. To the extent that the City elects to
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assess liquidated damages as provided in this Franchise and such liquidated
damages have been paid, such damages shall be the City's sole and exclusive
remedy for time period that liquidated damages have been assessed and collected
by the City. Nothing in this Section is intended to preclude the City from
exercising any other legal or equitable right or remedy with respect to a breach
that continues past the time the City stops assessing liquidated damages for such
breach.
(2) Prior to assessing any liquidated damages, the City shall mail to the Grantee a
written notice by certified or registered mail of the alleged violation(s) and the
proposed liquidated damages, specifying the violation(s) at issue. The Grantee
shall have thirty (30) days from the date of receipt of the written notice to cure or
commence to cure, as is appropriate depending on the nature of the alleged
violation, or to file a written response refuting the alleged violation or explaining
why additional time for cure is necessary. In the case of breaches of requirements
measured on a monthly, quarterly or longer period (such as customer service
standards), Grantee's cure period shall be no less than one such period.
(3) The City may not assess any liquidated damages if the Grantee has reasonably
responded to the City's written notice of violation or cured or commenced to cure,
as may be appropriate, a violation within a reasonable time frame not to exceed
thirty (30) days following receipt of written notice from the City, unless some
other cure period is approved by the City. In the event Grantee fails to cure or
commence to cure, or fails to refute the alleged breach, the City may assess
liquidated damages and shall inform Grantee in writing of the assessment.
Grantee shall have thirty (30) days to pay the damages.
(4) The first day for which liquidated damages may be assessed, if there has been no
cure after the end of the applicable cure period, shall be the day after the end of
the applicable cure period, including any extension of the cure period granted by
the City.
(5) The Grantee may appeal (by pursuing judicial relief or other relief afforded by the °
City) any assessment of liquidated damages within thirty (30) days of receiving
written notice of the assessment. The Grantee's obligation to pay the liquidated
damages assessed shall be stayed pending resolution of the appeal.
(6) In no event may liquidated damages be assessed for a time period exceeding one
hundred twenty (120) days. If after that amount of time the Grantee has not cured
or commenced to cure the alleged breach to the satisfaction of the City, the City
may pursue all other remedies at law or in equity.
(7) Liquidated damages shall be as follows:
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(a) For failure to timely complete I -Net construction as provided in this
Franchise or any side agreement, unless the City approves the delay, the
damages shall be $250.00 per day for each day, or part thereof, such
failure occurs or continues.
(b) For failure to provide data, records, documents, reports or information or
to cooperate with the City during an application process or System review
or as otherwise provided herein, the liquidate damages shall be $150.00
per day for each day, or part thereof, such failure occurs or continues.
(c) For failure of the Grantee to comply with construction, operation or
maintenance standards, the penalty shall be $150.00 per day for each day,
or part thereof, such failure occurs or continues.
(d) For failure to provide the services, equipment, facilities and payments
required by this Franchise, including, but not limited to, the
implementation and the utilization of the PEG Channels /capacity and the
provision of PEG payments, the liquidated damages shall be $250.00 per
day for each day, or part thereof, such failure occurs or continues.
(e) For Grantee's material breach of any written contract or agreement with or
to the City or its designee, the liquidated damages shall be $250.00 per day
for each day, or part thereof, such breach occurs or continues, unless such
breach is addressed by Section 11.109(B)(7)(a).
(f) For failure to comply with any of the material provisions of this Franchise,
customer service standards or City ordinance or regulation for which
liquidated damages are not otherwise specifically provided pursuant to this
paragraph 11.109(B)(7), the liquidated damages shall be 150.00 per day
for each day, or part thereof, such failure occurs or continues.
(8) Each violation of any provision of this Franchise shall be considered a separate
violation for which separate liquidated damages can be imposed.
(9) In the event that Grantee fails to pay liquidated damages pursuant to the
provisions of Section 11.109(B)(7), the City may draw upon the Letter of Credit
or any subsequent Letter of Credit delivered pursuant hereto, in whole or in part.
If the City is obliged to draw upon the Letter of Credit, and the obligation to pay
is not stayed pursuant to Section 111.109(B)(5), 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 11.109(A)(1) as a substitution of the previous Letter
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e ,
of Credit. This shall be a continuing obligation for any withdrawals from the
Letter of Credit.
(10) The collection by the City of any damages, monies, fees, or taxes from the Letter
of Credit shall not affect any other right or remedy available to the City, 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, including
(but not limited to) its right to recover from the Grantee any additional damages,
losses, costs and expenses that are incurred by the City by reason of the Grantee's
breach of this Franchise once the initial 120 -day period for assessing liquidated
damages has expired.
(C) Alternative Remedies.
(1) No provision of this Franchise shall be deemed to bar the right of either party to
seek or obtain judicial relief from a violation of any provision of this Franchise,
applicable law or any rule, regulation, requirement or directive promulgated
Y g q
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thereunder. Neither the existence of other remedies identified in this Franchise
or applicable law nor the exercise thereof shall be deemed to bar or otherwise
limit the right of either party to recover monetary damages, as allowed under
applicable law, or to seek and obtain judicial enforcement of obligations by
means of specific performance, injunctive relief or mandate, or any other
remedy at law or in equity.
(2) The City specifically does not, by any provision of this Franchise, waive any
right, immunity, limitation, defense or protection (including complete damage
immunity) otherwise available to the City and its officers, elected and appointed
officials, boards, commissions, agents, or employees under federal, State, or
local law including by example, but not limitation, Section 635A of the Cable
Act. The Grantee shall not have any monetary recourse against the City, or its
officers, elected and appointed officials, boards, commissions, agents or
employees for any loss, costs, expenses or damages arising out of any provision
or requirement of this Franchise or the enforcement or non - enforcement thereof,
subject to applicable law.
(D) Indemnification of City.
(1) The City, 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 the Grantee's
construction, operation, maintenance, repair or removal of the System and /or any
I -Net or as to any other action of the Grantee with respect to this Franchise.
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(2) The Grantee shall indemnify, defend, and hold harmless the City, its officers,
boards, committees, commissions, elected and appointed officials, employees,
volunteers and agents, from and against all claims, suits, causes of action,
proceedings and judgments, and all liability, damages, fees, costs, and penalties
arising therefrom, which they may legally be required to pay as a result of the
City's award, exercise, administration, or enforcement of the Franchise or the
Grantee's installation, construction, operation and /or maintenance of the System.
(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.
(E) Insurance.
(1) As a part of the indemnification provided in Section 11.109(D), but without
limiting the foregoing, Grantee shall file with the City 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, copyright and trademark liability,
and contractual liability coverage, in protection of the Grantee, the City, and its
officers, elected and appointed officials, boards, commissions, agents, volunteers
and employees for any and all damages, losses, costs, fees and penalties which
may arise as a result of this Franchise. The policy or policies shall name the City
as an additional insured, and in their capacity as such, City officers, elected and
appointed officials, boards, commissions, commissioners, agents, volunteers and
employees.
(2) The policies of insurance shall be in the sum of not less than $1,000,000.00 for
personal injury or death of any one Person, and $2,000,000.00 for personal injury
or death of two or more Persons in any one occurrence, $1,000,000.00 for
property damage to any one person and $2,000,000.00 for property damage
resulting from any one act or occurrence.
(3) The policy or policies of insurance shall be maintained by the Grantee in full
force and effect during the entire term of the Franchise, and any extension(s)
thereof. 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 the Grantee
or for other reasons, except after sixty (60) days' advance written notice have
been provided to the City. The Grantee shall not cancel any required insurance
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policy without submission of proof that the Grantee has obtained alternative
insurance satisfactory to the City which complies with this Franchise.
(4) All insurance policies shall be with sureties qualified to do business in the State,
with an A- or better rating of insurance by Best's Key Rating Guide,
Property/Casualty Edition, and shall be subject to approval by the City or its
designee.
(5) All insurance policies shall be available for review by the City and the Grantee
shall keep on file with the City certificates of insurance.
(6) Failure to comply with the insurance requirements of this Section shall constitute
a material violation of this Franchise.
SECTION 11.110
SALE, ABANDONM ENT, TRANSFER AND REVOCATION OF FRANCHISE
(A) City's Right to Revoke.
(1) In addition to all other rights which the City has pursuant to law or equity, the
City reserves the right to commence proceedings to revoke, terminate or cancel
this Franchise, and all rights and privileges pertaining thereto, if it is determined
by the City that:
(a) the Grantee has violated material provisions(s) of this Franchise; or
(b) the Grantee has attempted to evade any of the provisions of the Franchise;
or
(c) the Grantee has practiced fiaud or deceit upon the City or Subscribers.
The City may revoke this Franchise without the hearing required by Section 11.110(B)(2)
herein if the Grantee is adjudged a bankrupt.
(B) Procedures for Revocation.
(1) The City shall provide the Grantee with written notice of a cause for revocation
and the intent to revoke and shall allow the Grantee sixty (60) 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 of the
revocation.
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(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 sixty (60) day notice provided in subsection 11.110(B)(1)
above. The City shall provide the Grantee with written notice of its decision
together with written findings of fact supplementing said decision.
(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.
(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.
(C) 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 11.110(D).
(D) Removal After Abandonment, Termination or Forfeiture.
(1) In the event of termination or forfeiture of the Franchise or abandonment of the
System, the City shall have the right to require the Grantee to remove all or any
portion of the System from all Rights -of -Way and public property within the City,
unless the Grantee is permitted to utilize the entire System and occupy the Rights -
of -Way pursuant to a lawful and valid authorization in effect as of the date of
termination or forfeiture.
(2) if the Grantee has failed to commence removal of the System, or such part thereof
as was designated by 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, or portion thereof, to be in the City with all rights of
ownership including, but not limited to, the right to operate the System, or portion
thereof, or transfer the System to another for operation by it.
(E) Sale or Transfer of Franchise.
(1) No sale or transfer of the Franchise, or sale, transfer, or fundamental corporate
change of or in the Grantee, including, but not limited to, a fundamental corporate
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4
change in the Grantee's parent corporation or any entity having a controlling
interest in the 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 the Grantee
grants a security interest in its Franchise and/or assets to secure an indebtedness.
Approval of a transfer or sale request that is subject to this Section 11.110(E)
shall not be unreasonably withheld.
(2) Any sale, transfer, exchange or assignment of stock in the Grantee, or Grantee's
parent corporation or any other entity having a controlling interest in the Grantee,
so as to create a new controlling interest therein, shall be subject to the
requirements of this Section 11.110(E). The term "controlling interest" as used
herein is not limited to majority stock ownership, but includes actual working
control in whatever manner exercised.
(3) The Grantee shall file all documents, forms and information required to be filed
by applicable law.
(4) The City or its designee shall have such time as is permitted by federal law in
which to review a transfer request.
(5) The parties acknowledge and agree that incidental costs and fees and any other
lawful fees and costs associated with reviewing and/or acting on a Franchise
transfer, sale or transfer of the Grantee or the System, a fundamental corporate
change or change of control may be required in an amount to be established by
resolution of the City Council, to the extent consistent with applicable law.
(6) In no event shall a sale, transfer, corporate change, or assignment of ownership or
control pursuant to subsection (1) or (2) of this Section be approved without the
Grantee remaining, or (if other than the current Grantee) the transferee becoming
a signatory to this Franchise and assuming or continuing to have all rights and
obligations hereunder.
(7) In the event of any proposed sale, transfer, corporate change, or assignment
pursuant to subsection (1) or (2) of this Section, the City shall have the right to
purchase the System and /or the I -Net for the value of the consideration proposed
in such transaction to the extent provided State law. The City's right to purchase
shall arise upon the City's receipt of notice of the material terms of an offer or
proposal for sale, transfer, corporate change, or assignment, which the Grantee
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has accepted. Notice of such offer or proposal must be conveyed to the City in
writing and be separate from any general announcement of the transaction.
(8) The City shall be deemed to have waived its right to purchase the System and /or
the I -Net pursuant to this Section only in the following circumstances:
(a) If the 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 11.110(E)(7) above, its intention
to exercise its right of purchase; or
(b) It approves the assignment or sale of the Franchise as provided within this
Section.
(9) No Franchise may be transferred if the City determines the Grantee is in
noncompliance of the Franchise unless an acceptable compliance program has
been approved by the City. The approval of any transfer of ownership pursuant to
this Section shall not be deemed to waive any rights of the City to subsequently
enforce noncompliance issues relating to this Franchise even if such issues
predated the approval, whether known or unknown to the City.
(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 sale or transfer for which approval would
otherwise be required.
SECTION 11.111
PROTECTION OF INDIVIDUAL RIGHTS
(A) Discriminatory Practices Prohibited. The 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. The Grantee shall comply at all times with all other applicable federal, State,
and City laws, and all executive and administrative orders relating to nondiscrimination.
(B) Subscriber Privacy.
The Grantee shall at all times comply with federal and State laws governing Subscriber
privacy, including, but not limited to, Minn. Stat. § 238.084, Subd. 1(s).
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SECTION 11.112
UNAUTHORIZED CONNECTIONS AND MODIFICATIONS
(A) 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 receive services of the System without the Grantee's authorization.
(B) Removal or Destruction Prohibited. It shall be unlawful for any firm, Person, group,
company, or corporation to willfully interfere, tamper, remove, obstruct, or damage, or
assist thereof, any part or segment of the System for any purpose whatsoever, except for
any rights the City may have pursuant to this Franchise or its police powers.
SECTION 11.113
MISCELLANEOUS PROVISIONS
(A) Franchise Renewal. Any renewal of this Franchise shall be performed in accordance with
applicable federal, State and local laws and regulations. The term of any renewed
Franchise shall be limited to a period not to exceed fifteen (15) years.
(B) Work Performed by Others. Grantee shall ensure that all applicable obligations of this
Franchise are adhered to with regard to work performed by 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 Person performing work obtain any rights
to maintain and operate a System and /or an I -Net or provide Cable Service. Upon
request, the Grantee shall provide notice to the City of the name(s) and address(es) of any
entity, other than the Grantee, which performs substantial services pursuant to this
Franchise.
(C) Amendment of Franchise Ordinance. The Grantee and the City may agree, from time to
time, to amend this Franchise by a written instrument executed by the City and the
Grantee. Such written amendments may be made subsequent to a review session
pursuant to Section 11.108(F) 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 to the extent permitted by law.
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(D) Compliance with Federal, State and Local Laws.
(1) If any federal or State law or regulation shall require or permit the City or the
Grantee to perform any service or act or shall prohibit the City or the 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. The Grantee and the 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.
(2) The Grantee and the City agree that the terms and conditions of this Franchise are
not severable.
(3) The Grantee shall, at all times during the term of this Franchise, including all
extensions or renewals hereof, comply with applicable federal, State and local
laws and regulations.
(E) Nonenforcement by City. The 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 the City
to enforce prompt compliance. The City may only waive its rights hereunder by
expressly so stating in writing. Any such written waiver by the 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.
(F) Rights Cumulative. All rights and remedies given to the City by this Franchise or
retained by the 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 the 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 the City and the exercise of one or more rights or remedies shall not be deemed a
waiver of the right to exercise at the same time or thereafter any other right or remedy.
(G) Grantee Acknowledgment of Validity of Franchise. The Grantee acknowledges that it
has had an opportunity to review the terms and conditions of this Franchise and that
under current law the Grantee believes that said terms and conditions are not
unreasonable, unlawful or arbitrary, and that the Grantee believes the City has the power
to make the terms and conditions contained in this Franchise.
(H) Governing Law. This Franchise shall be governed in all respects by the laws of the State
of Minnesota.
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(I) Force Majeure. The Grantee shall not be deemed in default of provisions of this
Franchise or the City Code where performance was rendered impossible by war or riots,
labor strikes or civil disturbances, floods or other causes beyond the Grantee's control,
and the Franchise shall not be revoked or the Grantee penalized for such noncompliance,
provided that the Grantee, when possible, takes immediate and diligent steps to bring
itself back into compliance and to comply as soon as possible, under the circumstances,
with the Franchise without unduly endangering the health, safety and integrity of the
Grantee's employees or property, or the health, safety and integrity of the public, the
Rights -of -Way, public property or private property.
(J) Rights of Third Parties. This Franchise is not intended to, and shall not be construed to,
grant any rights to or vest any rights in third parties, unless expressly provided herein.
(K) Captions and Headings. The captions and headings of sections throughout this Franchise
are intended solely to facilitate reading and reference to the sections and provisions of
this Franchise. Such captions shall not affect the meaning or interpretation of this
Franchise. When any provision of the City Code is expressly mentioned herein, such
reference shall not be construed to limit the applicability of any other provision of the
City Code that may also govern the particular matter in question.
(L) Merger of Documents. This Franchise, and the attachments hereto, constitute the entire
Franchise agreement between the City and the Grantee, and supersede all prior oral or
written franchises, drafts and understandings.
SECTION 11.114
PUBLICATION; EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
(A) Publications Effective Date. This Franchise shall be published in accordance with
applicable local and Minnesota law.
(B) Acceptance.
(1) The Grantee shall voluntarily accept this Franchise within thirty (30) days of its
adoption by the City Council, unless the time for acceptance is extended by the
City. Such acceptance by the Grantee shall be deemed the grant of this Franchise
for all purposes; provided, however, this Franchise shall not be effective until all
City ordinance adoption procedures are complied with and all applicable timelines
have run for the adoption of a City ordinance. In the event acceptance does not
take place or does not take place in a timely manner, or should all ordinance
adoption procedures and timelines not be completed, this Franchise and any and
all rights granted hereunder to the Grantee shall be null and void.
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(2) Upon acceptance of this Franchise, the Grantee and the City shall be bound by all
the terms and conditions contained herein and in the Charter of the City of
Columbia Heights. Specifically, the Grantee agrees that:
(a) this Franchise is not inconsistent with applicable laws and regulations at
the time it is executed;
(b) it shall be subject to and will perform on its part all of the terms of
Sections 94 -102, inclusive, of the Charter of the City of Columbia
Heights;
(c) it shall not issue any capital stock on account of the Franchise or the value
thereof, and that the Grantee shall have no right to receive, upon
condemnation proceedings brought by the City to acquire the public utility
exercising such Franchise, any return on account of the Franchise or its
value;
(d) notwithstanding anything to the contrary herein, no sale or lease of this
Franchise shall be active until the assignee or lessee hall have filed in the
office of the City Clerk an instrument, duly executed, reciting the fact of
such sale or lease, accepting the terms of the Franchise, and agreeing to
perform all the conditions required of the Grantee hereunder;
(e) notwithstanding anything to the contrary herein, and subject to State laws
and regulations, every grant of permission contained in this Franchise for
the erection of poles, masts, or other fixtures in the Rights -of -Way and for
the attachment of wires thereto, or for the laying of tracks in, or of pipes or
conduits, under places of any permanent or semi - permanent fixtures
whatsoever, shall be subject to the condition that the City Council shall
have the power to require such alternations therein, or relocation or
rerouting thereof, as the City Council may at any time deem necessary for
safety, health, or convenience of the public, and particularly that it shall
have the power to require the removal of poles, masts and other fixtures
bearing wires and the placing underground of poles, masts, and of other
fixtures bearing wires and the placing underground of all wires for
whatsoever purpose used; and
(f) acceptance of this Franchise, and every extension or renewal hereof, in
writing by the Grantee within thirty (30) days after its passage by the City
Council and before its submission to the vote of the people in the case of a
referendum. No such Franchise shall be binding upon the City until its
acceptance by the Grantee. Such acceptance shall be construed to be an
acceptance of and consent to all the terms, conditions and limitations
contained in the ordinance granting this Franchise as well as of the
provisions of the Charter of the City of Columbia Heights.
53
(3) The Grantee shall accept this Franchise in the following manner:
(a) This Franchise will be properly executed and acknowledged by the
Grantee and delivered to the City.
(b) With its acceptance, the Grantee shall also deliver any payments,
performance bond, letter of credit and insurance certificates
required herein that have not previously been delivered.
(4) This Franchise shall bind and benefit the parties hereto and their
respective authorized heirs, beneficiaries, administrators, executors,
receivers, trustees, successors and assigns.
Passed and adopted this 9th day of August , 2010.
This ordinance shall be in full force and effect from and after thirty (30) days after its
passage.
First Reading: July 26, 2010
Second Reading: August 9, 2010
Date of Passage: August 9, 2010
Offered by: Kelzenberg
Seconded by: W i l l i a m s
Roll Call: All ayes
May. Gary L. Peterson
Attest:
( L.--jA \Rail-L (V6, AA < frl
Shelley Hansoi
Secretary
54
ACCEPTED: This Franchise is accepted and we agree to be bound by its terms and conditions.
COMCAST OF ∎ 4 ITA, INC.
Dated: 69.)L1.16 By: i ��� ��
Timo T. Neste
Its: SVP - Finance and Accounting
55
EXHIBIT A
CUSTOMER SERVICE REQUIREMENTS
(1) The Grantee shall have a publicly listed toll -free telephone number which shall be
operated so as to receive public and Subscriber complaints and requests on a
twenty -four (24) hour -a -day, seven (7) days -a -week, 365 days -a -year basis.
During Normal Business Hours, trained representatives of Grantee shall be
available to respond to Subscriber inquiries.
(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 laws and regulations adopted
by the FCC and/or 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. The Grantee shall respond to written complaints with a copy to the City
or its designee within thirty (30) days.
(3) Excluding conditions beyond the control of the Grantee, the Grantee shall
commence working on a service interruption within twenty -four (24) hours after
the service interruption becomes known and pursue to conclusion all steps
reasonably necessary to correct the interruption. The Grantee must begin actions
to correct other service problems the next business day after notification of the
service problem, and pursue to conclusion all steps reasonably necessary to
correct the problem.
(4) Except as provided in paragraph (3), the Grantee shall schedule appointments for
Installations and other service calls either at a specific time or, at a maximum,
during a four hour time block to commence not later than 8:00 a.m. and end not
earlier than 7:00 p.m. The Grantee shall also schedule service calls outside such
hours for the convenience of customers. The Grantee shall use its best efforts to
not cancel an appointment with a customer after the close of business on the
business day prior to the scheduled appointment. If the installer or technician is
late and will not meet the specified appointment time, he /she must use his/her best
efforts to contact the customer and reschedule the appointment at the sole
convenience of the customer. Service call appointments must be met in a manner
consistent with FCC standards.
(5) 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 made to the City regarding Grantee's service, and provided to
•
Grantee, and the resolution of such complaints, including the date of such
resolution. Such written records shall be on file at the local office of Grantee. The
Grantee shall provide the City with a written summary of such complaints and
their resolution upon request of the City. As to Subscriber complaints, the Grantee
shall comply with FCC record - keeping regulations, and make the results of such
record - keeping available to the City upon request.
(6) The Grantee shall respond to written complaints from the City in a timely manner,
and provide a copy of each response to the City within thirty (30) days. In
addition, the Grantee shall respond to all written complaints from Subscribers
within (30) days of receipt of the complaint.
(7) The Grantee shall provide each Subscriber at the time Cable Service is installed,
and at least every twelve (12) months thereafter, the following materials:
(a) instructions on how to use the Cable Service;
(b) 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);
(c) a schedule of rates and charges, Channel positions and a description of products
and services offered;
(d) prices and options for programming services and conditions of subscription to
programming and other services; and
(e) a description of the Grantee's Installation, Service, maintenance and arbitration
policies, Subscriber privacy rights, high -speed Internet 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.
(8) Copies of materials specified in paragraph (7) shall be provided to the City upon
request.
(9) 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.
A -2
EXHIBIT B
FREE SUBSCRIBER NETWORK DROPS, OUTLETS AND CA1 LE SERVICE TO
INSTITUTIONS, BUILDINGS AND OFFICES
City of Columbia Heights:
Columbia Heights Public Library — 820 40 Avenue, NE **
Columbia Heights City Hall — 590 40 Avenue, NE* *
John P. Murzyn Hall — 530 Mill Street, NE*
Columbia Heights Municipal Service Center — 637 38 Avenue, NE
Columbia Heights Municipal Liquor Store — 4950 Central Avenue, NE
Columbia Heights Municipal Liquor Store — 2105 37 Avenue, NE
Columbia Heights Municipal Liquor Store — 5225 University Avenue, NE
New Public Safety Facility — 825 41 Avenue, NE & Jackson Street
New City Gymnasium — 1300 49 Avenue, NE*
Public School Facilities (I.S.D. #13):
Columbia Heights High School — 1400 49 Avenue, NE**
Central Middle School — 900 49 Avenue, NE
Highland Elementary School — 1500 49 Avenue, NE
Valley View Elementary School — 800 49 Avenue, NE
District Facilities - 1460 49 Avenue, NE
District Center — 1440 49 Avenue, NE
New School District Gymnasium — 1440 49 Avenue, NE*
Private Schools:
Immaculate Conception School — 4053 Quincy Street, NE
Senior Citizen Developments:
Park View Villa — Community Room - 965 40 Avenue, NE*
All facilities, institutions and/or locations specified in this Exhibit B shall be provided with or
continue to be provided with at least a free subscriber network Drop, free outlet, free Converter,
a free remote control and free Cable Service in a non - public location in accordance with
§ 11.102(I) of this Franchise. Only those areas in designated facilities denoted with an asterisk
( *) are recognized as publicly- viewed connections. These specific locations shall be connected to
the Cable System, and shall receive or continue to receive at least a free Basic Cable Service -
only subscriber network Drop and outlet, free Converter, free remote control and free Basic
Cable Service, in accordance with §§ 11.102(I) of the Franchise. Those locations have the
option to subscribe to Comcast Commercial Video Services at the best available rate. Facilities
B -1
♦ p
noted with two asterisks ( * *) are origination sites for PEG Access signals to be inserted on the
System consistent with Section 11.106(E) of the Franchise.
B -2
a
EXHIBIT C
Basic Cable Service
Expanded Basic Service
Digital Service Tiers
Equipment
Guide
Installation
Premium Services
Pay- Per -View
Other Income
Franchise Fee
PEG Fee
FCC Fee
Bad Debt
Late Fee
Shopping _
Ad Sales
Other Non -Sub Revenue
TOTAL
EXHIBIT D
CONFIDENTIALITY AGREEMENT
BY AND BETWEEN
[INSERT NAME],
A N D
COMCAST OF MINNESOTA, INC.
THIS AGREEMENT is made as of the date first written below by Comcast of
Minnesota, Inc. (hereinafter "Comcast "), a Delaware corporation, the City of Columbia
Heights, a Minnesota municipal corporation (the "City ") and [INSERT NAME]
(hereinafter "Consultant ").
WHEREAS, the City of Columbia Heights, Minnesota (the "City ") has granted
Comcast a cable franchise in the form of an ordinance and agreement (the "Ordinance ");
and
WHEREAS, the City has the power to enforce and administer the Ordinance; and
WHEREAS, Section 11.108 of the Ordinance authorizes the City to review and
recompute franchise fees paid by Comcast and to require Comcast to provide all records
necessary to confirm the accurate payment of franchise fees; and
WHEREAS, the City has retained the Consultant to perform a review and
recalculation of any amounts due to the City under the Ordinance ( "Review "); and
WHEREAS, conduct of the Review may require the Consultant to have
access to certain information that may be considered by Comcast to be proprietary and
confidential; and
WHEREAS, in connection with the Review, Comcast may be required to
produce documentation, notwithstanding any claims of confidentiality by Comcast; and
WHEREAS, Comcast and the Consultant (hereinafter collectively the "Parties ")
desire to enter into a working relationship which will permit the review of necessary
documentation so that the Review can be completed, while providing reasonable
assurances to Comcast that any documentation it produces that is legitimately considered
confidential will not be publicly disclosed by the Consultant, to the extent permissible under
applicable laws and regulations or this Agreement.
NOW, THEREFORE, the Parties agree as follows:
1. This Agreement shall apply only to "Confidential Information," as defined
herein. The purpose of the disclosure of Confidential Information
hereunder shall be for the purpose of permitting the Consultant to perform
the Review. The Consultant agrees to use the Confidential Information (defined
i g
below in Section 2) for such purpose and related actions (such as preparation of a
report to City officials, and to enforce the terms of the franchise) in accordance with
the terms of the franchise, the Ordinance and this Agreement.
2. The term "Confidential Information" shall mean and refer to all Comcast
confidential or proprietary information, documents, and materials, whether
printed or in machine - readable form or otherwise, including, but not limited to,
processes, hardware, software, inventions, trade secrets, ideas, designs,
research, know -how, business methods, production plans, marketing and
branding plans, human resource policies, programs, and procedures relating to
and including but not limited to organizational structure, management,
marketing and branding strategies, products and services, customer service, human
resource and employee benefit policies, programs, and services, and internal
communication processes and technology tools. Confidential Information shall
include all Comcast financial information, data, and records legitimately marked by
Comcast as "Confidential" provided to the Consultant.
3. Subject to Sections 4 and 5 hereof:
a. The Consultant agrees to use the same degree of care and scrutiny as they
would use with respect to their own confidential information, but in any case
using no less than a reasonable degree of care, to avoid, to the extent
permissible under applicable law and this Agreement, disclosure,
publication, or dissemination of any or all of the Confidential Information
obtained hereunder; and
b. Confidential Information will be kept confidential for a period of three (3)
years from the date hereof and shall not, without the prior written consent of
Comcast, be disclosed to a third party, except to the extent required or
allowed by law, a court or this Agreement, by the Consultant, in any
manner whatsoever, in whole or in part.
4. Consultant agrees that with respect to Confidential Information they will:
a. Not use the Confidential Information other than in connection with the
Review and related uses contemplated herein;
b. At Comcast's reasonable request and at Comcast's sole cost, return promptly
to Comcast or destroy (and confirm such destruction in writing to Comcast)
any and all portions of the Confidential Information disclosed under this
Agreement (including copies forwarded to subcontractors and /or agents),
together with all copies thereof, that come into their possession; and
c. Prepare a Review report to the City in accordance with Section 8 of this
Agreement. Confidential Information may be used as reasonably necessary
to defend such report's findings against any challenge by Comcast or a third
party, under procedures mutually agreed upon by the Parties to assure
confidentiality to the extent permissible under applicable law or this
Agreement.
D -2
4
5. It is understood, however, that the foregoing provisions in Sections 1, 2, 3, and 4
above shall not apply to any portion of the Confidential Information which:
a. Was previously known to either the the City or Consultant without
obligation of confidentiality pursuant to this Agreement;
b. Is obtained by either the City or Consultant after the date hereof from a third
party lawfully in possession of such information and which is not in
violation of any contractual or legal obligation to Comcast with respect to
such information;
c. Is or becomes part of a public record or the public domain through no
fault of either the City or Consultant or any of its or their respective
employees, subcontractors, or agents;
d. Is required to be disclosed by subpoena, statute, or administrative or
judicial action provided that the City and the Consultant as soon as
reasonably possible after notice of such action notifies Comcast of such
action to give Comcast the opportunity to seek any other legal remedies to
maintain such Confidential Information in confidence prior to the required
disclosure. Comcast shall indemnify and hold harmless the Consultant and
the City from any and all expenses of any type or nature which may occur to
the Consultant or the City by reason of any legal or administrative
proceedings pursued to protect the confidentiality of Comcast's records; or
e. Is approved for disclosure and release by written authorization of Comcast.
6. All the Confidential Information disclosed to, delivered to or acquired by
Consultant from Comcast hereunder shall be and remain the sole property of
Comcast.
7. Disclosure of the Confidential Information disclosed by Comcast to Consultant
shall not constitute any option, grant or license to either the City or Consultant of
such Confidential Information under any patent, know -how, or other rights
heretofore, now, or hereinafter held by Comcast. It is understood and agreed that
the disclosure by Comcast of the Confidential Information hereunder shall not result
in any obligation on the part of either party to enter into any further agreement with
the other with respect to the subject matter hereof or otherwise.
8. Any final Review report prepared by Consultant that references or is
based upon Confidential Information provided shall disclose such information only
to the extent necessary to convey essential report information (e.g., as in a
compilation, abstract or aggregation). Any such disclosure shall not be a violation of
this Agreement. The Consultant shall provide Comcast a copy of their Review report
prior to the public release of such report to the City, and Comcast shall notify
Consultant within five (5) business days of such notice if it reasonably
believes that the Review report contains Confidential Information (other than
Confidential Information expressed as a compilation, abstract or aggregation)
D -3
and the Parties shall negotiate in good faith changes to the Review report to prevent
disclosure of Confidential Information (other than Confidential Information
expressed as a compilation, abstract or aggregation). If disclosure of
Confidential Information (other than Confidential Information expressed as a
compilation, abstract or aggregation) is absolutely essential to the report, the
Parties shall in good faith negotiate toward an agreed manner of presenting the
information while protecting the interests of Comcast and the City. Consultant shall
not release any confidential or proprietary information except in accordance with the
terms of this Agreement. The Consultant shall have reasonable access to all
requested documents. The requested documents shall be delivered to [INSERT
NAMES] at the addresses set forth in Section 10. The Consultant shall be permitted
to view and review such documents to the extent necessary to complete the Review
and any subsequent enforcement proceeding pursuant to the Ordinance, and may take
and retain any handwritten or typewritten (i.e., notes typed on a computer or similar
device) notes they deem necessary. Such notes, to the extent they refer to or contain
Confidential Information (other than Confidential Information expressed as a
compilation, abstract or aggregation) in any manner, shall be deemed within the
scope of this Agreement.
9. This Agreement is binding on the Parties, their successors and assigns. No
modification of this Agreement shall be effective unless in writing and signed by the
Parties hereto.
10. Notices hereunder shall be in writing and shall be deemed to have been
delivered as of the day they are received when delivered personally, via certified
Y Y P Y�
mail, or via nationally recognized overnight courier:
a. if to Consultant: Attention: [INSERT]
b. if to City: Attention: [INSERT]
c. if to Comcast: Attention: Ms. Kathi Donnelly -Cohen
Comcast
10 River Park Plaza
St. Paul, Minnesota 55107
11. Comcast's waiver of any breach or failure to enforce any of the terms and conditions
of this Agreement at any time shall not in any way affect, limit, or waive its right
thereafter to enforce and compel strict compliance with every term and condition
hereof.
12. This Agreement shall be governed, construed and enforced in accordance with
the laws of the State of Minnesota, without regard to its principles of conflicts of
law.
13. This Agreement may be executed in counterparts and constitutes the complete
agreement between the Parties hereto and supersedes and cancels any and all
D -4
prior communications and agreements between the Parties with respect to the
disclosure of Confidential Information related to the purposes described herein and
the subject matter hereof.
IN WITNESS HEREOF, the Parties hereby indicate their agreement this day of
, 2010.
COMCAST OF MINNESOTA, INC.
By:
Title:
[INSERT NAME]
By:
Title:
[INSERT NAME]
:y:
Title:
D -5