HomeMy WebLinkAbout1704CITY OF COLUMBIA HEIGHTS, MINNESOTA
ORDINANCE GRANTING A CABLE TELEVISION FRANCHISE
TO
COMCAST OF MINNESOTA, INC.
September 9, 2024
TABLE OF CONTENTS
PAGE
SECTION 1 DEFINITIONS ........................................................................................................ 2
SECTION 2 FRANCHISE ........................................................................................................... 6
SECTION 3 OPERATION IN STREETS AND RIGHTS-OF-WAY...................................... 9
SECTION 4 REMOVAL OR ABANDONMENT OF SYSTEM ........................................... 13
SECTION 5 SYSTEM DESIGN AND CAPACITY ................................................................ 14
SECTION 6 PROGRAMMING AND SERVICES ................................................................. 16
SECTION 7 LOCAL PEG PROGRAMMING........................................................................ 18
SECTION 8 REGULATORY PROVISIONS .......................................................................... 24
SECTION 9 BOND ..................................................................................................................... 24
SECTION 10 LETTER OF CREDIT ....................................................................................... 25
SECTION 11 DEFAULT ........................................................................................................... 28
SECTION 12 FORECLOSURE AND RECEIVERSHIP ....................................................... 30
SECTION 13 REPORTING REQUIREMENTS .................................................................... 30
SECTION 14 CUSTOMER SERVICE POLICIES ................................................................ 32
SECTION 15 COMPENSATION AND FINANCIAL PROVISIONS .................................. 38
SECTION 16 MISCELLANEOUS PROVISIONS ................................................................. 41
EXHIBIT A FREE SERVICE TO PUBLIC BUILDINGS ................................................. A-1
EXHIBIT B PEG TRANSPORT ............................................................................................B-1
EXHIBIT C FRANCHISE FEE PAYMENT WORKSHEET ........................................... C-1
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ORDINANCE NO. 1704
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, FOR THE PURPOSE OF PROVIDING CABLE
SERVICE; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE
FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM AND THE
RIGHTS-OF-WAY IN CONJUNCTION WITH THE CITY’S RIGHT-OF-WAY ORDINANCE,
IF ANY; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE PROVISIONS
HEREIN.
The City Council of the City of 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 bring about the further development of a Cable System and the continued operation of it. Such
development can contribute significantly to the communication needs and interests of the
residents and citizens of the City and the public generally. Further, the City may achieve better
utilization and improvement of public services and enhanced economic growth with the
development and operation of a Cable System.
Adoption of this Franchise is, in the judgment of the Council, in the best interests of the City and
its residents.
FINDINGS
In the review of the request and proposal for renewal by Grantee and negotiations related thereto,
and as a result of a public hearing, the City Council makes the following findings:
1. The Grantee’s technical ability, financial condition, legal qualifications, and character were
considered and approved in a full public proceeding after due notice and a reasonable
opportunity to be heard;
2. Grantee’s plans for constructing and operating the System were considered and found
adequate and feasible in a full public proceeding after due notice and a reasonable
opportunity to be heard;
3. The Franchise granted to Grantee by the City complies with the existing applicable
Minnesota Statutes, federal laws, and regulations; and
4. The Franchise granted to Grantee is nonexclusive.
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SECTION 1 DEFINITIONS
For the purpose of this Franchise, the following, terms, phrases, words, derivations and their
derivations shall have the meanings 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 and words in the singular number include the plural number. The word “shall” is always
mandatory and not merely directory. The word “may” is directory and discretionary and not
mandatory.
1.1 “Affiliate” means any Person who owns or controls, is owned or controlled by, or is under
common ownership or control with Grantee.
1.2 “Applicable Law(s)” means any law, statute, charter, ordinance, rule, regulation, code,
license, certificate, franchise, permit, writ, ruling, award, executive order, directive, requirement,
injunction (whether temporary, preliminary or permanent), judgment, decree or other order issued,
executed, entered or deemed applicable by any governmental authority of competent jurisdiction.
1.3 “Basic Cable Service” means any service tier which includes the lawful retransmission of
local television broadcast.
1.4 “Cable Act” means the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et
seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as
further amended by the Telecommunications Act of 1996, as further amended from time to time.
1.5 “Cable Operator” means any Person or group of Persons (A) who provides Cable Service
over a Cable System and directly or through one or more Affiliates owns a significant interest in
such Cable System, or (B) who otherwise controls or is responsible for, through any arrangement,
the management and operation of such a Cable System.
1.6 “Cable Service” means (a) the one-way transmission to Subscribers of (i) Video
Programming or (ii) other programming service, and b) Subscriber interaction, if any, which is
required for the selection or use of such Video Programming or other programming service, as set
forth in Applicable Law, currently 47 U.S.C. § 522(6). For the purposes of this definition, “other
programming service” means information that a Cable Operator makes available to all Subscribers
generally, as set forth in Applicable Law, currently 47 U.S.C. § 522(14).
1.7 “Cable System” or “System” means a facility, 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 a community, but such term does not include:
a) a facility that serves only to retransmit the television signals of one (1) or more
television broadcast stations;
b) a facility that serves Subscribers without using any Right-of-Ways;
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c) a facility of a common carrier which is subject, in whole or in part, to the provisions
of 47 U.S.C. § 201 et seq., except that such facility shall be considered a Cable System
other than for purposes of 47 U.S.C. § 541(c)) to the extent 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;
d) an open video system that complies with 47 U.S.C. § 573; or
e) any facilities of any electric utility used solely for operating its electric utility
system.
Unless otherwise indicated by the context, it shall in this document refer to the Cable System
constructed and operated in the City under this Franchise.
1.8 “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 defined by the FCC by
regulation, as set forth in Applicable Law, currently 47 U.S.C. § 522(4).
1.9 “City” means the City of Columbia Heights, a municipal corporation in the State of
Minnesota, acting by and through its City Council, or its lawfully appointed designee.
1.10 “City Code” means the Municipal Code of the City of Columbia Heights, Minnesota, as
may be amended from time to time.
1.11 “Converter” means an electronic device, including digital transport adapters, which
converts signals to a frequency not susceptible to interference within the television receiver of a
Subscriber, and by an appropriate Channel selector also permits a Subscriber to view all Cable
Service signals.
1.12 “City Council” means the governing body of the City of Columbia Heights, Minnesota.
1.13 “Day” means a calendar day, unless otherwise specified.
1.14 “Drop” means the cable that connects the Subscriber terminal to the nearest feeder cable
of the cable.
1.15 “FCC” means the Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
1.16 “Franchise” means the authorization granted by this Franchise Ordinance and the
regulatory and contractual relationship established hereby.
1.17 “Franchise Area” means the entire geographic area within the City as it is now constituted
or may in the future be constituted.
1.18 “Franchise Fee” means the fee assessed by the City to Grantee, in consideration of
Grantee’s right to operate the Cable System within the City’s Right-of-Ways, determined in
amount as a percentage of Grantee’s Gross Revenues and limited to the maximum percentage
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allowed for such assessment by federal law. The term Franchise Fee does not include the
exceptions noted in 47 U.S.C. §542(g)(2)(A-E).
1.19 “GAAP” means generally accepted accounting principles as promulgated and defined by
the Financial Accounting Standards Board (“FASB”), Emerging Issues Task Force (“EITF”)
and/or the U.S. Securities and Exchange Commission (“SEC”).
1.20 “Gross Revenues” means and shall be construed broadly to include all amounts, in any
form and from all sources, derived directly or indirectly by Grantee and/or an Affiliate from the
operation of Grantee’s Cable System to provide Cable Services within the City.
a) Gross Revenues include, by way of illustration and not limitation:
i) monthly fees for Cable Services, regardless of whether such Cable Services
are provided to residential or commercial customers, including revenues derived
from the provision of all Cable Services (including but not limited to pay or
premium Cable Services, pay-per-view, pay-per-event, and video-on-demand
Cable Services) and other video products that are found to be subject to franchise
fees in accordance with Applicable Law;
ii) fees paid to Grantee for Channels or bandwidth designated for
commercial/leased access use, which shall be allocated on a pro rata basis using
total Cable Service Subscribers within the City;
iii) Converter, digital video recorder, remote control, and all other Cable
Service equipment rentals, leases, or sales;
iv) installation, disconnection, reconnection, change-in service, “snow-bird”
fees;
v) Advertising Revenues as defined herein;
vi) late fees, convenience fees, and administrative fees;
vii) other service fees such as HD fees, convenience fees, broadcast fees,
regional sports fees, home tech support fees, bill payment fees for in-person or
phone payments, additional outlet fees, and related charges relating to the
provisions of Cable Service;
viii) revenues from program guides and electronic guides;
ix) Franchise Fees;
x) All federal regulatory fees (e.g., FCC regulatory fees);
xi) except as provided in subsection (c) below, any fee, tax or other charge
assessed against Grantee by municipality, which Grantee chooses to pass through
and collect from its Subscribers; and
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xii) commissions from home shopping channels and other Cable System
revenue sharing arrangements, which shall be allocated on a pro rata basis using
total Cable Service Subscribers within the City.
b) “Advertising Revenues” shall mean revenues received or derived by Grantee and/or
Affiliates from sales of advertising that are made available to Grantee’s Cable System
Subscribers within the City, which shall be allocated on a pro rata basis using total Cable
Service Subscribers reached by the advertising. Additionally, Grantee agrees that Gross
Revenues subject to Franchise Fees shall include, but not limited to, all commissions,
representative fees, Affiliated entity fees, or rebates paid to National Cable
Communications and Effectv or their successors associated with sales of advertising
available on the Cable System within the City allocated according to this paragraph using
total Cable Service Subscribers reached by the advertising.
c) “Gross Revenues” shall not include:
i) actual bad debt write-offs, except any portion that is subsequently collected,
which shall be allocated on a pro rata basis using Cable Services revenue as a
percentage of total Subscriber revenues within the City; and
ii) unaffiliated third-party advertising sales agency fees which are reflected as
a deduction from revenues.
d) Grantee shall allocate fees and revenues generated from bundled packages and
services to cable revenues pro rata based on current published rate card for the packaged
services delivered on a stand-alone basis as follows:
i) To the extent revenues are received by Grantee for the provision of a
discounted bundle of services which includes Cable Services and non-Cable
Services, Grantee shall calculate revenues to be included in Gross Revenues using
a GAAP methodology that allocates revenue, on a pro rata basis when comparing
the bundled service price and its components to the sum of the published rate card,
except as expressly required by specific federal, state or local law (for example, it
is expressly understood that equipment may be subject to inclusion in the bundled
price at full rate card value). The City reserves its right to review and to challenge
Grantee’s calculations.
ii) Grantee reserves the right to change the allocation methodologies set forth
in this section in order to meet the standards required by governing accounting
principles as promulgated and defined by the Financial Accounting Standards
Board (“FASB”), Emerging Issues Task Force (“EITF”) and/or the U.S. Securities
and Exchange Commission (“SEC”). Grantee will explain and document the
required changes to the City upon request or as part of any audit or review of
Franchise Fee payments, and any such changes shall be subject to subsection (iii)
below.
iii) Resolution of any disputes over the classification of revenue should first be
attempted by agreement of the parties, but should no resolution be reached, the
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parties agree that reference shall be made to GAAP as promulgated and defined by
the FASB, EITF and/or the SEC. Notwithstanding the foregoing, the City reserves
its right to challenge Grantee’s calculation of Gross Revenues, including the
interpretation of GAAP as promulgated and defined by the FASB, EITF and/or the
SEC.
1.21 “Normal Business Hours” means those hours during which most similar businesses in the
City are open to serve customers. In all cases, “Normal Business Hours” must include some
evening hours, at least one (1) night per week and/or some weekend hours.
1.22 “Normal Operating Conditions” means those Service conditions which are within the
control of Grantee. Those conditions which are not within the control of Grantee include, but are
not limited to, natural disasters, civil disturbances, power outages, telephone network outages, and
severe or unusual weather conditions. Those conditions which are ordinarily within the control of
Grantee include, but are not limited to, special promotions, pay-per-view events, rate increases,
regular peak or seasonal demand periods, and maintenance or upgrade of the Cable System.
1.23 “PEG” means public, education and government.
1.24 “Person” means any natural person and all domestic and foreign corporations, closely-held
corporations, associations, syndicates, joint stock corporations, partnerships of every kind, clubs,
businesses, common law trusts, societies and/or any other legal entity.
1.25 “Public Right-of-Way or Right-of-Way” means the area on, below, or above a public
roadway, alleyway, highway, street, cartway, bicycle lane or public sidewalk in which the City has
an interest, including other dedicated rights-of-way for travel purposes and utility easements of the
City, but only to the extent the City has the right, interest or authority to authorize use thereof for
the installation of a Cable System for the provision of Cable Service. A Right-of-Way does not
include the airwaves above a Right-of-Way with regard to cellular or other nonwire
telecommunications or broadcast service.
1.26 “Subscriber” means a Person who lawfully receives Cable Service.
1.27 “Video Programming” means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
SECTION 2 FRANCHISE
2.1 Grant of Franchise. The City hereby authorizes Grantee to occupy or use the City’s
Right-of-Ways to construct a Cable System to provide Cable Service within the City subject to: 1)
the provisions of this non-exclusive Franchise; and 2) all applicable provisions of the City Code.
Unless this Franchise has expired pursuant to Section 2.8 herein or this Franchise is otherwise
terminated pursuant to Section 11.2 herein, said Franchise shall constitute both an authorization
and an obligation to provide Cable Services as required by the provisions of this Franchise.
Nothing in this Franchise shall be construed to prohibit Grantee from: (1) providing services, other
than the Cable Services authorized by this Franchise, to the extent permitted by Applicable Law;
or (2) challenging any exercise of the City’s legislative or regulatory authority in an appropriate
forum. The City hereby reserves all of its rights to regulate such other services to the extent not
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prohibited by Applicable Law and no provision herein shall be construed to limit or give up any
right to regulate.
2.2 Reservation of Authority. The Grantee specifically agrees to comply with the lawful
provisions of the City Code and applicable regulations of the City. Subject to the police power
exception below, in the event of a conflict between: A) the lawful provisions of the City Code or
applicable regulations of the City; and B) this Franchise, the express provisions of this Franchise
shall govern. Subject to express federal and state preemption, the material terms and conditions
contained in this Franchise may not be unilaterally altered by the City through subsequent
amendments to the City Code, ordinances or any regulation of City, except in the lawful exercise
of City’s police power. Grantee acknowledges that the City may modify its regulatory policies by
lawful exercise of the City’s police powers throughout the term of this Franchise. Grantee agrees
to comply with such lawful modifications to the City Code; however, Grantee reserves all rights it
may have to challenge such modifications to the City Code whether arising in contract or at law.
The City reserves all of its rights and defenses to such challenges whether arising in contract or at
law. Nothing in this Franchise shall (A) abrogate the right of the City to perform any public works
or public improvements of any description, (B) be construed as a waiver of any codes or ordinances
of general applicability promulgated by the City, or (C) be construed as a waiver or release of the
rights of the City in and to the Right-of-Ways.
2.3 Franchise Term. The term of this Franchise shall be ten (10) years from the Effective
Date, unless extended by mutual written consent in accordance with Section 16.7 or terminated
sooner in accordance with this Franchise.
2.4 Franchise Area. This Franchise is granted for the Franchise Area defined herein. Grantee
shall extend its Cable System to provide Service to any residential unit in the City in accordance
with Section 6.7 herein.
2.5 Franchise Nonexclusive. The Franchise granted herein shall be nonexclusive. The City
specifically reserves the right to grant, at any time, such additional franchises for a Cable System
as it deems appropriate provided, however, such additional grants shall not operate to materially
modify, revoke, or terminate any rights previously granted to Grantee other than as described in
Section 16.19. The grant of any additional franchise shall not of itself be deemed to constitute a
modification, revocation, or termination of rights previously granted to Grantee. Any additional
cable franchise grants shall comply with Minnesota Statutes § 238.08 and any other applicable
federal level playing field requirements.
2.6 Periodic Public Review of Franchise. The City may conduct a public review of the
Franchise. The purpose of any such review shall be to ensure, with the benefit of full opportunity
for public comment that the Grantee continues to effectively serve the public in accordance with
Applicable Law, and considering any new cable technology, Grantee’s performance with the
requirements of this Franchise, local regulatory environment, community needs and interests, and
other such factors. So long as Grantee receives reasonable notice, Grantee shall cooperate in good
faith. The review shall not operate to modify or change any provision of this Franchise without
mutual written consent in accordance with Section 16.7 of this Franchise. The City and Grantee
shall each be responsible for their own costs regarding the conduct of, or cooperation with, any
such periodic review.
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2.7 Transfer of Ownership.
a) No sale, transfer, assignment or “fundamental corporate change”, as defined in
Minn. Stat. § 238.083, of this Franchise shall take place until the parties to the sale, transfer,
or fundamental corporate change files a written request for, and receives approval from,
City, provided, however, that said approval shall not be required where Grantee grants a
security interest in its Franchise and assets to secure an indebtedness.
b) City shall approve or deny in writing the sale or transfer request. City shall set forth
in writing with particularity its reason(s) for denying approval. City shall not unreasonably
withhold its approval.
c) Any sale or transfer of stock in Grantee so as to create a new controlling interest in
the System shall be subject to the requirements of this Section 2.7. The term “controlling
interest” as used herein is not limited to majority stock ownership, but includes actual
working control in whatever manner exercised.
d) In no event shall a transfer or assignment of ownership or control be approved
without the transferee becoming a signatory to this Franchise and assuming all authority
and obligations thereunder, and assuming all other authority and obligations of the
transferor to the City.
e) In accordance with Minnesota Statutes § 238.084, Subd. 1(y), the City shall have
the right to purchase the System in the event the Franchise or System is proposed to be
transferred or sold on the same terms and conditions as the offer pursuant to which transfer
notice was provided pursuant to this section. The City shall have thirty (30) Days from
receipt of an application for consent under this Section 2.7 in which to give notice of its
intention to consider exercising such right.
f) 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.
g) Grantee shall pay upon request the City’s incidental costs and fees and any other
lawful fees and costs associated with reviewing and/or acting on a request filed under
subsection (a) of this Section 2.7.
2.8 Expiration. Upon expiration of the Franchise, the City shall have the right at its own
election and subject to Grantee’s rights under Section 626 of the Cable Act to:
a) extend the Franchise, though nothing in this provision shall be construed to require
such extension;
b) renew the Franchise, in accordance with Applicable Laws;
c) invite additional franchise applications or proposals;
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d) terminate the Franchise subject to any rights Grantee has under Section 626 of the
Cable Act; or
e) take such other action as the City deems appropriate.
2.9 Right to Require Removal of Property. At the expiration of the term for which this
Franchise is granted, provided no renewal is granted, or upon its forfeiture or revocation as
provided for herein, the City shall have the right to require Grantee to remove, at Grantee’s own
expense, all or any part of the Cable System from all Public Right-of-Ways within the Franchise
Area within a reasonable time. If Grantee fails to do so, the City may perform the work and collect
the cost thereof from Grantee. However, Grantee shall have no obligation to remove the Cable
System where it utilizes the System to provide other non-Cable Services and has express authority
under Applicable Law to maintain facilities in the Public Rights-of-Way, or where Grantee is able
to find a purchaser of the Cable System who holds such authorization.
2.10 Continuity of Service Mandatory. It shall be the right of all Subscribers to receive Cable
Service in accordance with the terms of this Franchise and Applicable Law. In the event that
Grantee elects to overbuild, rebuild, modify, or sell the System, or the City revokes or fails to
renew the Franchise, Grantee shall make its best effort to ensure that all Subscribers receive
continuous uninterrupted service, regardless of the circumstances, while the Franchise remains
effective. In the event of expiration, revocation/termination, purchase, lease-purchase,
condemnation, acquisition, taking over or holding of plant and equipment, sale, lease, or other
transfer to any other Person, including any other grantee of a cable franchise, the current Grantee
shall cooperate fully to operate the System in accordance with the terms and conditions of this
Franchise for a temporary period sufficient in length to maintain continuity of service to all
Subscribers.
SECTION 3 OPERATION IN STREETS AND RIGHTS-OF-WAY
3.1 Use of Right-of-Ways.
a) Grantee may, subject to the terms of this Franchise and the City Code, erect, install,
construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along
the Right-of-Ways within the City such lines, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, pedestals, attachments and other property and equipment
as are necessary and appurtenant to the operation of a Cable System to provide Cable
Service within the City. Without limiting the foregoing, Grantee expressly agrees that it
will construct, operate and maintain its Cable System in compliance with, and subject to,
the requirements of the City Code, including by way of example and not limitation, those
requirements governing the placement of Grantee’s Cable System, and with other
applicable City Codes, and will obtain, pay for and maintain all permits and bonds required
by the City Code in addition to those required in this Franchise.
b) All wires, conduits, cable and other property and facilities of Grantee shall be so
located, constructed, installed and maintained as not to endanger or unnecessarily interfere
with the usual and customary trade, traffic and travel upon, or other use of the Right-of-
Ways of City. Grantee shall keep and maintain all of its property in good condition, order
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and repair so that the same shall not menace or endanger the life or property of any Person.
Grantee shall affix to its above ground facilities a label or marker that identifies the specific
facility as Grantee’s. Consistent with the mapping requirements in Section 4.5 of this
Franchise, Grantee shall keep accurate maps and records of all of its wires, conduits, cables
and other property and facilities located, constructed and maintained in the City.
c) All wires, conduits, cables and other property and facilities of Grantee, shall be
constructed and installed in an orderly and professional manner in accordance with all
applicable requirements of the City Code and Applicable Law. All wires, conduits and
cables shall be installed, where possible, parallel with electric and telephone lines.
Multiple cable configurations shall be arranged in parallel and bundled with due respect
for engineering considerations.
d) Nothing in this Franchise shall be construed to prevent the City from constructing,
maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing,
relocating and/or altering any Right-of-Way; constructing, laying down, repairing,
maintaining or relocating any water mains; or constructing, maintaining, relocating, or
repairing any sidewalk or other public work.
3.2 Construction or Alteration. Grantee shall in all cases comply with applicable sections of
the City Code, City resolutions and City regulations regarding the acquisition of permits and/or
such other items as may be reasonably required in order to construct, alter or maintain the Cable
System. Grantee shall, upon request, provide information to the City regarding its progress in
completing or altering the Cable System.
3.3 Non-Interference. Grantee shall exert its best efforts to construct and maintain a Cable
System so as not to interfere with other uses of Right-of-Ways. Grantee shall, where possible in
the case of above ground lines, make use of existing poles and other facilities available to Grantee.
When residents receiving underground service or who will be receiving underground service will
be affected by proposed construction or alteration, Grantee shall provide such notice as set forth
in the permit or in City Code of the same to such affected residents.
3.4 Consistency with Designated Use. Notwithstanding the above grant to use Right-of-
Ways, no Right-of-Way shall be used by Grantee if the City, in its sole opinion, determines that
such use is inconsistent with the terms, conditions or provisions by which such Right-of-Way was
created or dedicated, or presently used under Applicable Laws.
3.5 Undergrounding. Grantee shall in all cases comply with applicable sections of the City
Code, City resolutions and City regulations when installing facilities underground.
a) Grantee shall place underground all of its transmission lines which are located or
are to be located above or within the Right-of-Ways of the City in the following cases:
i) all other existing utilities are required to be placed underground by statute,
resolution, policy or other Applicable Law;
ii) Grantee is unable to get pole clearance;
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iii) underground easements are obtained from developers of new residential
areas; or
iv) utilities are overhead but residents prefer underground (undergrounding
provided at cost paid by benefitted residents).
b) If an ordinance is passed which involves placing underground certain utilities
including Grantee’s cable plant which is then located overhead, Grantee shall participate
in such underground project and shall remove poles, cables and overhead wires if requested
to do so and place facilities underground. Nothing herein shall mandate that City provide
reimbursement to Grantee for the costs of such relocation and removal. However, if the
City makes available funds for the cost of placing facilities underground, nothing herein
shall preclude the Grantee from participating in such funding to the extent consistent with
the City Code or Applicable Laws. If non-City funds, such as funds from state or federal
grant funding, are made available to place electric or telephone lines underground, nothing
herein shall prohibit Grantee from participating in such funding.
c) Grantee shall use conduit or its functional equivalent to the greatest extent possible
for undergrounding, except for Drops from pedestals to Subscribers’ homes and for cable
on other private property where the owner requests that conduit not be used. Cable and
conduit shall be utilized which meets the highest industry standards for electronic
performance and resistance to interference or damage from environmental factors. Grantee
shall use, in conjunction with other utility companies or providers, common trenches for
underground construction wherever available.
3.6 Maintenance and Restoration.
a) Restoration. In case of disturbance of any Right-of-Way, paved area or public
improvement, Grantee shall, at its own cost and expense and in accordance with the
requirements of the City Code, restore such Right-of-Way, paved area or public
improvement to substantially the same condition as existed before the work involving such
disturbance took place. All requirements of this section pertaining to public property shall
also apply to the restoration of private easements and other private property. Grantee shall
perform all restoration work within a reasonable time and with due regard to seasonal
working conditions. If Grantee fails, neglects or refuses to make restorations as required
under this section and any applicable City Code provision, then the City may do such work
or cause it to be done, and the cost thereof to the City shall be paid by Grantee. If Grantee
causes any damage to private property in the process of restoring facilities, Grantee shall
repair such damage.
b) Maintenance. Grantee shall maintain all above ground improvements that it places
on City Right-of-Ways pursuant to the City Code and any permit issued by the City. In
order to avoid interference with the City’s ability to maintain the Right-of-Ways, Grantee
shall provide such clearance as is required by the City Code and any permit issued by the
City. If Grantee fails to comply with this provision, and by its failure, property is damaged,
Grantee shall be responsible for all damages caused thereby.
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c) Disputes. In any dispute over the adequacy of restoration or maintenance relative
to this section, final determination shall be the prerogative of the City, Department of
Engineering and consistent with the City Code and any permit issued by the City.
3.7 Work on Private Property. Grantee, with the consent of property owners, shall have the
authority, pursuant to the City Code, to trim trees upon and overhanging Right-of-Ways, alleys,
sidewalks, and public ways so as to prevent the branches of such trees from coming in contact with
the wires and cables of Grantee, except that at the option of the City, such trimming may be done
by it or under its supervision and direction at the reasonable expense of Grantee.
3.8 Relocation.
a) Public Property. Grantee shall relocate its System and facilities in accordance with
the City Code. In addition, if, during the term of the Franchise, the City or any government
entity elects or requires a third party to alter, repair, realign, abandon, improve, vacate,
reroute or change the grade of any Right-of-Way or other public property; or to construct,
maintain or repair any public improvement; or to replace, repair install, maintain, or
otherwise alter any cable, wire, conduit, pipe, line, pole, wire-holding structure, structure,
or other facility, including a facility used for the provision of utility or other services or
transportation of drainage, sewage or other liquids, for any public purpose, Grantee shall,
upon request, except as otherwise hereinafter provided, at its sole expense remove or
relocate as necessary its poles, wires, cables, underground conduits, vaults, pedestals,
manholes and any other facilities which it has installed. Nothing herein shall mandate that
City provide reimbursement to Grantee for the costs of such relocation and removal.
However, if the City makes available funds for the cost of placing facilities underground,
nothing herein shall preclude the Grantee from participating in such funding to the extent
consistent with the City Code or Applicable Laws. If non-City funds, such as funds from
state or federal grant funding, are made available to place electric or telephone lines
underground, nothing herein shall prohibit Grantee from participating in such funding.
b) Utilities and Other Franchisees. If, during the term of the Franchise, another entity
which holds a franchise or any utility (other than the City) requests Grantee to remove or
relocate such facilities to accommodate the construction, maintenance or repair of the
requesting party’s facilities, or their more efficient use, or to “make ready” the requesting
party’s facilities for use by others, or because Grantee is using a facility which the
requesting party has a right or duty to remove, Grantee shall do so. The companies
involved may decide among themselves who is to bear the cost of removal or relocation,
pursuant to City Code, and provided that the City shall not be liable for such costs.
c) Notice to Remove or Relocate. Any Person requesting Grantee to remove or
relocate its facilities shall give Grantee no less than forty-five (45) Days’ advance written
notice advising Grantee of the date or dates removal or relocation is to be undertaken,
unless Applicable Law provides for a different period of time; provided that no advance
written notice shall be required in emergencies or in cases where public health and safety
or property is endangered.
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d) Failure by Grantee to Remove or Relocate. If Grantee fails, neglects or refuses to
remove or relocate its facilities as directed by the City; or in emergencies or where public
health and safety or property is endangered, the City may do such work or cause it to be
done, and the cost thereof to the City shall be paid by Grantee. If Grantee fails, neglects
or refuses to remove or relocate its facilities as directed by another franchisee or utility,
that franchisee or utility may do such work or cause it to be done, and if Grantee would
have been liable for the cost of performing such work, the cost thereof to the party
performing the work or having the work performed shall be paid by Grantee.
e) Procedure for Removal of Cable. Grantee shall not remove any underground cable
or conduit which requires trenching or other opening of the Right-of-Ways along the
extension of cable to be removed, except as hereinafter provided. Grantee may remove
any underground cable from the Right-of-Ways which has been installed in such a manner
that it can be removed without trenching or other opening of the Right-of-Ways along the
extension of cable to be removed. Subject to Applicable Law, Grantee shall remove, at its
sole cost and expense, any underground cable or conduit by trenching or opening of the
Right-of-Ways along the extension thereof or otherwise which is ordered to be removed
by the City based upon a determination, in the sole discretion of the City, that removal is
required in order to eliminate or prevent a hazardous condition. Underground cable and
conduit in the Right-of-Ways which is not removed shall be deemed abandoned and title
thereto shall be vested in the City.
f) Movement of Buildings. Grantee shall, upon request by any Person holding a
building moving permit, franchise or other approval issued by the City, temporarily
remove, raise or lower its wire to permit the movement of buildings. The expense of such
removal, raising or lowering shall be paid by the Person requesting same, and Grantee shall
be authorized to require such payment in advance. The City shall require all building
movers to provide not less than fifteen (15) Days’ notice to the Grantee to arrange for such
temporary wire changes.
SECTION 4 REMOVAL OR ABANDONMENT OF SYSTEM
4.1 Removal of Cable System . In the event that: (l) the use of the Cable System to provide
Cable Service is discontinued for any reason for a continuous period of twelve (12) months; or (2)
the Cable System has been installed in a Right-of-Way without complying with the requirements
of this Franchise or the City Code, Grantee, at its expense shall, at the demand of the City remove
promptly from the Right-of-Ways all of the Cable System other than any which the City may
permit to be abandoned in place. In the event of any such removal Grantee shall promptly restore
the Right-of-Way to a condition as nearly as possible to its prior condition or other public places
in the City from which the System has been removed. However, Grantee shall have no obligation
to remove the Cable System where it utilizes the System to provide other non-Cable Services and
has express authority under Applicable Law to maintain facilities in the Right-of-Way, which
includes authority under Minn. Stat. § 237.162, to the extent applicable, or where Grantee is able
to find a purchaser of the Cable System who holds such authorization.
4.2 Abandonment of Cable System. In the event of Grantee’s abandonment of the Cable
System, City shall have the right to require Grantee to conform to the state right-of-way rules,
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Minnesota Rules, Chapter 7819. The Cable System to be abandoned in place shall be abandoned
in the manner prescribed by the City. Grantee may not abandon any portion of the System without
having first given three (3) months written notice to the City. Grantee may not abandon any portion
of the System without compensating the City for damages resulting from the abandonment.
4.3 Removal after Abandonment or Termination. If Grantee has failed to commence
removal of System, or such part thereof as was designated by City, within thirty (30) Days after
written notice of City’s demand for removal consistent with Minnesota Rules, Chapter 7819, is
given, or if Grantee has failed to complete such removal within twelve (12) months after written
notice of City’s demand for removal is given, City shall have the right to apply funds secured by
the performance bond required by Section 9 and the Letter of Credit required by Section 10 of this
Franchise, toward removal and/or declare that the City shall have all right, title, and interest in and
to the Cable System, with all rights of ownership including, but not limited to, the right to operate
the Cable System or transfer the Cable System to another for operation by it.
4.4 City Options for Failure to Remove Cable System.
a) If Grantee has failed to complete such removal within the time given after written
notice of the City’s demand for removal is given, the City shall have the right to exercise
one of the following options:
i) Declare all right, title and interest to the System for the City or its designee
with all rights of ownership including, but not limited to, the right to operate the
System or transfer the System to another for operation by it; or
ii) Declare the System abandoned and cause the System, or such part thereof
as the City shall designate, to be removed at no cost to the City. The cost of said
removal shall be recoverable from the performance bond, Letter of Credit,
indemnity and penalty section provided for in this Franchise or from Grantee
directly.
b) Upon termination of service to any Subscriber, Grantee shall promptly remove all
facilities and equipment from within the dwelling of a Subscriber who owns such dwelling
upon his or her written request, except as provided by Applicable Law. Such Subscribers
shall be responsible for any costs incurred by Grantee in removing the facilities and
equipment.
4.5 System Maps and Layout. In addition to any generally applicable mapping requirements
included in the City Code and required of other utilities, Grantee shall maintain complete and
accurate system maps, which shall include trunks, distribution lines, and nodes. Such maps shall
include up-to-date route maps showing the location of the Cable System adjacent to the Right-of-
Ways. Grantee shall make all maps available for review by the appropriate City personnel.
SECTION 5 SYSTEM DESIGN AND CAPACITY
5.1 Availability of Signals and Equipment.
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a) The Cable System utilizes a fiber to the fiber node architecture, with fiber optic
cable deployed from Grantee’s headend to Grantee’s fiber nodes, tying into Grantee’s
coaxial Cable System serving Subscribers. The System shall pass a minimum of 750 MHz
with a minimum passband of between 50 and 750 MHz) and shall be maintained to provide
to Subscribers a minimum of at least two hundred (200) or more activated downstream
video Channels, or such comparable video viewing capability as is provided in light of
developing technologies and video distribution practices in the future.
b) The entire System shall be technically capable of transmitting industry-standard
digital television signals in a manner and quality consistent with applicable FCC
regulations.
c) Grantee agrees to maintain the Cable System in a manner consistent with, or in
excess of the specifications in Section 5.1 (a) and (b) throughout the term of the Franchise
with sufficient capability and technical quality to enable the implementation and
performance of all requirements of this Franchise, including the exhibits hereto, and in a
manner which meets or exceeds FCC technical quality standards at 47 C.F.R. § 76 Subpart
K, regardless of the particular format in which a signal is transmitted.
5.2 Equal and Uniform Service. Grantee shall provide access to equal and uniform Cable
Service throughout the City consistent with Applicable Law.
5.3 System Specifications.
a) System Maintenance. In all construction and service provision activities, Grantee
shall meet or exceed the construction, technical performance, extension and service
requirements set forth in this Franchise and in applicable FCC rules and regulations.
b) Emergency Alert Capability. At all times during the term of this Franchise, Grantee
shall provide and maintain an Emergency Alert System (“EAS”) consistent with
Applicable Law and regulations including 47 C.F.R., Part 11, and any Minnesota State
Emergency Alert System requirements. The City may identify authorized emergency
officials for activating the EAS insofar as the City’s process is consistent with the
Minnesota State Emergency Statewide Plan (“EAS Plan”). The City may also develop a
local plan containing methods of EAS message distribution, insofar as the local plan is
consistent with Applicable Laws and the EAS Plan.
c) Standby Power. Grantee shall provide standby power generating capacity at the
Cable System control center and at all hubs. Grantee shall maintain standby power system
supplies, rated for at least two (2) hours’ duration, throughout the trunk and distribution
networks. In addition, Grantee shall have in place throughout the Franchise term a plan,
and all resources necessary for implementation of the plan, for dealing with outages of
more than two (2) hours.
d) Technical Standards. The technical standards used in the operation of the Cable
System shall comply, at minimum, with the technical standards promulgated by the FCC
relating to Cable Systems pursuant to Title 47, Section 76, Subpart K of the Code of Federal
Regulations, as may be amended or modified from time to time, which regulations are
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expressly incorporated herein by reference. The Cable System shall be installed and
maintained in accordance with standard engineering practices and shall conform with the
National Electric Code, National Electrical Safety Code and all other Applicable Laws
governing the construction of the Cable System, including the FCC’s rules and regulations.
5.4 Performance Testing. Grantee shall perform all system tests at the intervals required by
the FCC, and all other tests reasonably necessary to determine compliance with technical standards
required by this Franchise. These tests may include, at a minimum:
a) Initial proof of performance for any construction;
b) Semi-annual compliance tests;
c) Tests in response to Subscriber complaints; and
d) Tests reasonably requested by the City to demonstrate Franchise compliance.
e) Written records of all system test results performed by or for Grantee shall be
maintained, and shall be available for City inspection upon request.
5.5 Special Testing.
a) Throughout the term of this Franchise, City shall have the right to inspect all
construction or installation work performed pursuant to the provisions of the Franchise. In
addition, City may require special testing of a location or locations within the System if
there is a particular matter of controversy or unresolved complaints regarding 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 an
unresolved controversy or noncompliance. Such tests shall be limited to the particular
matter in controversy or unresolved complaints. 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 impacted by such testing.
b) 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. 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, 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 Grantee’s
qualified engineer. The City shall have a right to participate in such testing by having an
engineer of City’s choosing, and at City’s expense, observe and monitor said testing.
SECTION 6 PROGRAMMING AND SERVICES
6.1 Categories of Programming Service. Grantee shall provide Video Programming services
in at least the following broad categories:
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Local Broadcast (subject to federal carriage requirements)
Public Broadcast
News and Information
Sports
General Entertainment
Arts/Performance/Humanities
Science/Technology
Children/Family/Seniors
Foreign Language/Ethnic Programming
PEG Programming (to the extent required by the Franchise)
Movies
Leased Access, as required by Applicable Law
6.2 Changes in Programming Services. Grantee shall provide at least thirty (30) Days’ prior
written notice to Subscribers and to the City of Grantee’s request to effectively delete any broad
category of programming or any Channel within its control, including all proposed changes in
bandwidth or Channel allocation and any assignments including any new equipment requirements
that may occur as a result of these changes.
6.3 Parental Control Device or Capability. Upon request by any Subscriber, Grantee shall
make available, at no additional cost to any Subscriber, a parental control or lockout device or
functionality that will enable the Subscriber to block all access to any and all Channels without
affecting those not blocked. Grantee shall inform Subscribers of the availability of the lockout
device or functionality at the time of original subscription and annually thereafter.
6.4 FCC Reports. The results of any tests required to be filed by Grantee with the FCC shall
also be copied to City within ten (10) Days of the conduct of the date of the tests.
6.5 Free Cable Service to Public Buildings.
a) The parties acknowledge that as of the Effective Date of this Franchise, Grantee
continues to provide, free of charge, Basic Cable Service (including the PEG Channels) to
certain schools, libraries and public institutions within the Franchise Area as set forth in
Exhibit A (“Complimentary Services”). Subject to subsection (b) of this Section 6.5,
Grantee shall continue to provide the Complimentary Services to the schools, libraries and
public institutions listed in Exhibit A at their current or any future locations throughout the
term of this Franchise.
b) In the event Grantee elects, to the extent permitted by Applicable Laws, to deduct
the cost of Complimentary Services from Franchise Fees, the Grantee agrees that it will do
so only after providing City with ninety (90) days prior written notice. The amount
deducted shall be consistent with Applicable Law, which as of the Effective Date is defined
as the Grantee’s marginal cost to provide the Complimentary Services. Grantee will
disclose in writing its calculation of the amount to be deducted, including documentation
to support that calculation, if requested by the City. Grantee and the City shall agree in
writing on the amount of the deduction before Grantee takes any deductions from the
Franchise Fee. The amount to be deducted may include all applicable fees and taxes only
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to the extent Grantee remits such fees and taxes to a regulatory or taxing entity. City may
remove locations or change the level of Cable Service indicated on Exhibit A at any time
upon written notice to Grantee. For any locations no longer receiving Complimentary
Service, Grantee shall immediately cease all deductions from the Franchise Fee related to
such locations. For changes to the level of Cable Service, Grantee and the City shall follow
the process set forth in this subsection (b) to agree in writing on the new amount of the
deduction before Grantee takes any deductions from the Franchise Fee.
6.6 Annexation. Unless otherwise provided by Applicable Law, including the City Code,
upon the annexation of any additional land area by City, the annexed area shall thereafter be subject
to all the terms of this Franchise upon sixty (60) Days written notification to Grantee of the
annexation by City. Unless otherwise required by Applicable Laws, nothing herein shall require
the Grantee to expand its Cable System to serve, or to offer Cable Service to any area annexed by
the City if such area is then served by another Cable System.
6.7 Line Extension.
a) Grantee shall construct and operate its Cable System so as to offer and provide
Cable Service to all Persons within the Franchise Area 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 of this paragraph may be
waived in writing by the City, in its sole discretion, upon request.
b) Except as otherwise provided herein, Grantee shall be given a reasonable period of
time to construct and activate cable plant to service annexed or newly developed areas in
the City, but in no event shall the applicable timeframe exceed twelve (12) months from
notice thereof by the City to Grantee.
6.8 Nonvoice Return Capability. Grantee is required to use cable and associated electronics
having the technical capacity for nonvoice return communications.
SECTION 7 LOCAL PEG PROGRAMMING
7.1 Number of PEG Channels.
a) Grantee shall continue to make available a minimum of three (3) PEG Channels
carried in Standard Definition (“SD”) and two (2) PEG Channels in High Definition (HD).
Throughout the term of this Franchise Grantee shall provide the PEG Channels on every
Cable Service tier offered by Grantee, including the Basic Cable Service, in accordance
with Applicable Law.
7.2 HD PEG Channels.
a) Within ninety (90) Days of a written request, Grantee shall make one (1) of the
existing PEG Channels available in both SD and HD format, for a total of three (3) SD
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PEG Channels and three (3) HD PEG Channels. The City shall have the sole discretion to
determine whether and which of its Channels will be simulcast in HD
b) Nothing herein shall diminish any rights of the City to secure additional PEG
Channels pursuant to Minnesota Statutes Section 238.084, which is expressly incorporated
herein by reference.
c) If Grantee terminates all SD Channels and SD Cable Services and provides all
Cable Services to all Subscribers in HD only, and after ninety (90) Days written notice to
Commission, Grantee shall provide four (4) PEG Channels in HD.
d) The City acknowledges that receipt of an HD format PEG Channel may require
Subscribers to buy or lease special equipment or pay additional HD charges applicable to
all HD services.
e) The City is responsible for acquiring all equipment necessary to produce
programming in HD, which equipment may be paid for out of PEG funds.
f) Grantee shall have the right to use any technology to deploy or deliver HD signals
including selection of compression, utilization of IP and other processing characteristics)
so long as it produces signal quality for the consumer that is comparable (from the viewer’s
standpoint) and functionally equivalent to similar commercial HD signals carried on the
Cable System.
7.3 Control of PEG Channels. The control and administration of the PEG Channels shall rest
with the City. The City may delegate, from time to time over the term of this Franchise, such
control and administration to various entities as determined in City’s sole discretion.
7.4 Transmission of PEG Channels. PEG Channels may be used for transmission of non-
video signals in compliance with Applicable Laws. This may include downstream transmission
of data using a protocol such as TCP/IP or current industry standards. Should Grantee develop the
capability to provide bi-directional data transmission, spectrum capacity shall be sufficient to allow
Subscribers to transmit data to PEG facilities.
7.5 PEG Channel Locations.
a) PEG Channels shall be carried on the Basic Cable Service tier as set forth in Section
7.1 herein. Nothing herein precludes the Grantee from charging Subscribers for equipment
needed for Basic Cable Service. Grantee shall continue cablecasting PEG access
programming on the Cable System on the same Channel designations as such programming
is cablecast within the City as of the Effective Date unless circumstances beyond Grantee’s
reasonable control require relocation. In no event shall any PEG Channel relocations be
made prior to ninety (90) Days written notice to the City by Grantee, except for
circumstances beyond Grantee’s reasonable control. If relocated, the PEG Channels will
be located on consecutive Channel numbers in the SD Channel lineups as applicable and
within reasonable proximity to other local broadcast Channels, excluding pay-per-view
programming offered by Grantee in the City. For new HD PEG Channels that are provided
pursuant to this Franchise, Grantee shall make reasonable commercial efforts to assign the
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PEG Channels a number near the other HD local broadcast Channels if such Channel
positions are not already taken, or if that is not possible, near HD news/public affairs
programming Channels if such Channel positions are not already taken, or if not possible,
as reasonably close as available Channel numbering will allow. As of the Effective Date,
the PEG Channels are located on Channels 16, 18 and 19.
b) Grantee agrees not to encrypt the PEG Channels differently than other commercial
Channels available on the Cable System.
c) Grantee shall make reasonable efforts to locate both SD and HD PEG Channels in
its lineup in a manner that is easily accessible to Subscribers. In the event an SD PEG
Channel is moved, Grantee shall provide a rebranding reimbursement grant of One
Thousand Five Hundred and No/100 Dollars ($1,500) per relocated Channel.
7.6 Navigation to PEG Channels and Electronic Programming Guide. Grantee agrees that
if it utilizes any navigation interfaces under its control on its Cable System for all Channels, the
PEG Channels shall be treated in a non-discriminatory fashion consistent with Applicable Laws
so that Subscribers will have ready access to PEG Channels. Grantee will maintain the existing
ability of the City to place PEG Channel programming information on the interactive Channel
guide via the electronic programming guide (“EPG”) vendor (“EPG provider”) that Grantee
utilizes to provide the guide service. Grantee will be responsible for providing the designations
and instructions necessary for the PEG Channels to appear on the EPG. All costs and operational
requirements of the EPG provider shall be the responsibility of the City. City acknowledges that
the EPG may not be technically possible for all PEG programming, and that Grantee is not
responsible for operations of the EPG provider.
7.7 Ownership of PEG Channels. Grantee does not relinquish its ownership of or ultimate
right of control over a Channel by designating it for PEG use. A PEG access user, whether an
individual, education or government user, acquires no property or other interest by virtue of the
use of a Channel position so designated. Grantee shall not exercise editorial control over any
public, education, or government use of a Channel position, except Grantee may refuse to transmit
any public access program or portion of a public access program that contains obscenity,
indecency, or nudity in violation of Applicable Law.
7.8 PEG Monitoring. Grantee shall provide the capability, without charge, for the locations
listed in Exhibit B to monitor and verify the audio and visual quality of PEG Channels received
by Subscribers. This will include equipment comparable to that deployed to residential cable
Subscribers that will allow the City to verify the accuracy of EPG listings for the PEG Channels.
Grantee shall also maintain one (1) feed to the City Hall to provide the ability to monitor Subscriber
services and address Subscriber concerns, which feed shall include all cable boxes and platforms
i.e. Xfinity X1).
7.9 PEG Transport. During the term of this Franchise, Grantee will provide PEG transport
as follows:
a) Grantee shall maintain the existing fiber paths/equipment and existing PEG
connectivity to the locations listed in Exhibit B to permit the City to transport PEG
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programming during the term of this Franchise, without additional charge and with no
recurring, monthly costs or offsets, except that, to the extent permitted under Applicable
Law, Grantee may recover from the City any marginal costs of necessary repairs or
maintenance, which shall not exceed Five Thousand and No/100 Dollars ($5,000) per year
and which shall be estimated to the City in advance whenever possible. Grantee shall
document its marginal costs and work with the City should there be any dispute regarding
the amount of such costs. The City may opt, in its sole discretion, to be invoiced by Grantee
for such costs or to allow Grantee to deduct such costs from its Franchise Fee payment to
the extent permitted under Applicable Law.
b) In addition to the deduction permitted in subsection (a), Grantee reserves any rights
it may have under Applicable Law to deduct from Franchise Fees other costs of PEG
transport and associated equipment as outlined in this paragraph, but only to the extent such
deductions are also taken by Grantee in all other Minnesota local franchising authorities
where Grantee has similar PEG transport obligations. In the event Grantee elects to take a
deduction, the amount deducted shall be consistent with Applicable Law, which as of the
Effective Date is defined as the Grantee’s marginal cost to provide the PEG transport, and
Grantee and the City shall follow the process set forth in Section 6.5(b) to agree on the
amount of the deduction. Grantee agrees that any costs incurred by the City under this
Section 7.9 shall be considered a PEG capital cost unless prohibited by Applicable Law.
7.10 Future PEG Transport. At such time that the City determines:
a) that the City desires the capacity to allow Subscribers in the City to receive PEG
programming (video or character generated) which may originate from schools, City
facilities, other government facilities or other designated facilities (other than those
indicated in Section 7.9); or
b) that the City desires to establish or change a location from which PEG programming
is originated; or
c) that the City desires to upgrade the connection to Grantee from an existing signal
point of origination,
the City will give Grantee written notice detailing the point of origination and the capability sought
by the City. Grantee will implement any necessary Cable System changes within a reasonable
period of time. Nothing herein prevents the City, or a private contractor retained by the City, from
constructing said connection, which shall be a PEG capital cost.
7.11 Interconnection. Grantee shall make the fiber loop known as the PRIMSA Ring available
to the City until the network equipment servicing the PRIMSA Ring as of the Effective Date is at
the end of life. The City can use the PRIMSA Ring to send and receive live and recorded
programming for playback. Grantee shall provide the City access to the PRIMSA Ring at an agreed
upon Demarcation Point. Grantee will provide use of and maintain the PRIMSA Ring free of
charge, but Grantee will not be obligated to replace network equipment on the PRISMA Ring or
for any equipment on the City’s side of the Demarcation Point. To the extent technically feasible,
Grantee will allow necessary interconnection with any newly constructed City and school fiber for
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noncommercial programming to be promoted and administered by the City as allowed under
Applicable Laws and at no additional cost to the City or schools. This may be accomplished
through a patch panel or other similar facility and each party will be responsible for the fiber on
their respective sides of the Demarcation Point. Grantee reserves its right to review on a case-by-
case basis the technical feasibility of the proposed interconnection. Based on this review Grantee
may condition the interconnection on the reasonable reimbursement of Grantee's incremental
costs, with no markup for profit, to recoup Grantee's construction costs only.
7.12 PEG Channel Carriage.
a) Grantee shall provide all necessary transmission equipment, at no cost to the City,
from the demarcation point and throughout Grantee’s distribution system in order to deliver
the PEG Channels. Any and all costs associated with any modification of the PEG
Channels or signals after the PEG Channels/signals leave the City’s designated playback
facilities, or any designated playback center authorized by the City, shall be borne entirely
by Grantee. Grantee shall not cause any programming to override PEG programming on
any PEG Channel, except by oral or written permission from the City, with the exception
of emergency alert signals.
b) The City or its designee shall be responsible for developing, implementing,
interpreting and enforcing rules for PEG Channel use.
c) The Grantee shall monitor the PEG Channels for technical quality to ensure that
they meet FCC technical standards including those applicable to the carriage of PEG
Channels, provided however, that the Grantee is not responsible for the production quality
of PEG programming productions. The City, or its designee, shall be responsible for the
production and quality of all PEG programming. Grantee shall carry all components of the
SD/HD PEG Channel(s) including, but not limited to, closed captioning, stereo audio and
other elements associated with the programming.
7.13 PEG Programming Financial Support.
a) During the term of the Franchise, Grantee shall pay quarterly to the City a PEG Fee
in an amount equal to two percent (2.0%) of its quarterly Gross Revenues, for the duration
of this Franchise. Payments pursuant to this subsection shall be paid to the City on the
same schedule and including the same payment worksheets as the Franchise Fee payments
set forth in Section 15.1 of this Franchise.
b) The PEG Fee may be used by City to fund PEG expenditures in accordance with
Applicable Law.
c) The PEG Fee is not part of the Franchise Fee and instead falls within one or more
of the exceptions in 47 U.S.C. § 542. The PEG Fee may be categorized, itemized, and
passed through to Subscribers as permissible, in accordance with 47 U.S.C. § 542 or other
Applicable Laws.
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d) Any PEG Fees owing pursuant to this Franchise that remain unpaid more than
twenty-five (25) Days after the date the payment is due shall be delinquent and shall
thereafter accrue interest at ten percent (10%) per annum.
7.14 PEG Technical Quality and Support.
a) Grantee will deliver the SD/HD PEG Channels to Subscribers so that they are
viewable without degradation, provided that it is not required to deliver a PEG Channel at
a resolution higher than the highest resolution used in connection with the delivery of local
broadcast signals to the public. Grantee shall not be required to carry a PEG Channel in a
higher quality format than that of the Channel signal delivered to Grantee, but Grantee shall
not implement a change in the method of delivery of PEG Channels that results in a material
degradation of signal quality or impairment of viewer reception of PEG Channels, provided
that this requirement shall not prohibit Grantee from implementing new technologies also
utilized for broadcast Channels carried on its Cable System. Grantee shall meet FCC signal
quality standards when offering PEG Channels on its Cable System and shall continue to
comply with closed captioning pass-through requirements. There shall be no significant
deterioration in a PEG Channels signal from the point of origination upstream to the point
of reception (hub or head end) or downstream to the Subscriber on the Cable System.
b) Within eight (8) hours of a written or e-mailed request from City to the Grantee
identifying a technical problem with a PEG Channel and requesting assistance, Grantee
will provide technical assistance or diagnostic services to determine whether or not a
problem with a PEG signal is the result of matters for which Grantee is responsible and if
so, Grantee will take prompt corrective action. If the problem persists and there is a dispute
about the cause, then the parties shall meet with engineering representation from Grantee
and the City in order to determine the course of action to remedy the problem.
c) If changes in the technology used by the Grantee require additional equipment for
reception of PEG Channels, the Grantee shall make such equipment available free of
charge and at no cost to the City.
7.15 Change in Technology. In the event Grantee makes any change in the Cable System and
related equipment and facilities or in its signal delivery technology, which requires the City to
obtain new equipment in order to be compatible with such change for purposes of transport and
delivery of the PEG Channels, Grantee shall, at its own expense and free of charge to City or its
designated entities, purchase such equipment as may be necessary to facilitate the cablecasting of
the PEG Channels in accordance with the requirements of the Franchise.
7.16 Relocation of Grantee’s Headend. In the event Grantee relocates its headend, Grantee
will be responsible for replacing or restoring the existing dedicated fiber connections at Grantee’s
cost so that all the functions and capacity remain available, operate reliably and satisfy all
applicable technical standards and related obligations of the Franchise free of charge to the City
or its designated entities.
7.17 Regional Channel Six. Grantee shall make available Regional Channel Six as long as it
is required to do so by Applicable Law.
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7.18 Compliance with Minnesota Statutes Chapter 238. In addition to the requirements
contained in this Section 7 of this Franchise, Grantee and City shall comply with the PEG
requirements mandated by Minnesota Statutes § 238.084.
SECTION 8 REGULATORY PROVISIONS
8.1 Intent. The City shall have the right to administer and regulate activities under the
Franchise to the full extent permitted by Applicable Law. The City may delegate to any other
body or Person authority to administer the Franchise and to monitor the performance of Grantee
pursuant to the Franchise. Grantee shall cooperate with any such delegates of the City.
8.2 Delegation of Authority to Regulate. The City reserves the right to delegate its regulatory
authority wholly or in part to agents of the City, including, but not limited to, an agency which
may be formed to regulate several franchises in the region in a manner consistent with Applicable
Laws. As of the Effective Date of this Franchise, the City, or any designee thereof, shall have
continuing regulatory jurisdiction and supervision over the Cable System and Grantee’s operation
under the Franchise.
8.3 Regulation of Rates and Charges.
a) Right to Regulate. The City reserves the right to regulate rates or charges for any
Cable Service within the limits of Applicable Law, to enforce rate regulations prescribed
by the FCC, and to establish procedures for said regulation or enforcement.
b) Notice of Change in Rates and Charges. Throughout the term of this Franchise,
Grantee shall give the City and all Subscribers within the City at least thirty (30) Days’
notice of any intended modifications or additions to Subscriber rates or charges. Nothing
in this subsection shall be construed to prohibit the reduction or waiving of rates or charges
in conjunction with promotional campaigns for the purpose of attracting Subscribers or
users.
c) Rate Discrimination Prohibited. Within any category of Subscribers, Grantee shall
not discriminate among Subscribers with regard to rates and charges made for any service
based on considerations of race, color, creed, sex, marital or economic status, national
origin, sexual preference, or (except as allowed by Applicable Law) neighborhood of
residence, except as otherwise provided herein; and for purposes of setting rates and
charges, no categorization of Subscribers shall be made by Grantee on the basis of those
considerations. Nevertheless, Grantee shall be permitted to establish (1) discounted rates
and charges for providing Cable Service to low-income, disabled, or low-income elderly
Subscribers, (2) promotional rates, and (3) bulk rate and package discount pricing. 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.
SECTION 9 BOND
9.1 Performance Bond. Upon the Effective Date of this Franchise and at all times thereafter,
Grantee shall file with the City at its own expense, and maintain in full force and effect, a bond in
the sum of Fifty Thousand and No/100 Dollars ($50,000.00) in such form and with such sureties
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as shall be acceptable to City, conditioned upon the faithful performance by Grantee of this
Franchise and upon the further condition that in the event Grantee shall fail to comply with any
law, ordinance or regulation, there shall be recoverable jointly and severally from the principal
and surety of the bond, any damages or losses suffered by City as a result, including the full amount
of any compensation, indemnification or cost of removal of any property of Grantee, including a
reasonable allowance for attorneys’ fees and costs (with interest at two percent (2%) in excess of
the then prime rate), up to the full amount of the bond, and which bond shall further guarantee
payment by Grantee of all claims and liens against City, or any public property, and taxes due to
City, which arise by reason of the construction, operation, maintenance or use of the Cable System.
9.2 Rights. The rights reserved by City with respect to the bond are in addition to all other
rights the City may have under this Franchise or any other law, and no action, proceeding or
exercise of a right with respect to the performance bond shall affect any other right the City may
have.
9.3 Reduction of Bond Amount. City may, in its sole discretion, reduce the amount of the
bond.
9.4 Procedure to Draw on Bond.
a) The City shall provide Grantee thirty (30) Days written notice of its intent to draw
on the performance bond together with the reason for such draw. Grantee shall have the
right to cure or petition for additional time.
b) The time for Grantee to correct any violation or liability, shall be extended by the
City if the necessary action to correct such violation or liability is, in the sole determination
of the City, of such a nature or character as to require more than thirty (30) Days within
which to perform, provided Grantee provides written notice that it requires more than thirty
30) Days to correct such violations or liability, commences the corrective action within
the thirty (30) Day period and thereafter uses reasonable diligence to correct the violation
or liability.
c) In the event this Franchise is revoked by reason of default of Grantee in accordance
with the procedure set forth in Section 11, the City shall be entitled to collect from the
performance bond any damages incurred by the City as a result of said default or
revocation.
d) Grantee shall be entitled to the return of the performance bond, or portion thereof,
as remains sixty (60) Days after the expiration of the term of the Franchise or revocation
for default thereof, provided the City has not notified Grantee of any damages incurred by
the City as a result of Grantee’s operations pursuant to the Franchise or as a result of said
default.
SECTION 10 LETTER OF CREDIT
10.1 Letter of Credit. If there is an uncured breach by Grantee of a material provision of this
Franchise or a pattern of repeated violations of any provision(s) of this Franchise, then Grantee
shall, upon written request, establish and provide to the City, as security for the faithful
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performance by Grantee of all of the provisions of this Franchise, a letter of credit from a financial
institution satisfactory to the City in the amount of Twenty Thousand and No/100 Dollars
20,000.00) (“Letter of Credit”). In no event shall Grantee fail to post a Twenty Thousand and
No/100 Dollars ($20,000.00) Letter of Credit within ten (10) Days following receipt of a notice of
franchise violation pursuant to this Section 10.1. The form, manner and content of the Letter of
Credit shall be subject to the approval of the City. Failure to post said Letter of Credit shall
constitute a separate material violation of this Franchise, unless the breach is cured within such ten
10) Day period. The Letter of Credit shall serve as a common security for the faithful performance
by Grantee of all the provisions of this Franchise and compliance with all orders, permits and
directions of the City and the payment by Grantee of any claim, liens, costs, expenses and taxes
due the City which arise by reason of the construction, operation or maintenance of the Cable
System. The obligation to establish the security fund required by this paragraph is unconditional.
The fund must be established in those circumstances where Grantee disputes the allegation that it
is not in compliance and maintained for the duration of the dispute. If Grantee fails to establish
the Letter of Credit as required, the City may take whatever action is appropriate to require the
establishment of that fund and may recover its costs, reasonable attorneys’ fees, and an additional
penalty of Five Thousand Dollars ($5,000) in that action.
10.2 Withdrawal of Funds. The Letter of Credit shall permit the City to withdraw funds upon
demand (sight draft). Grantee shall not use the Letter of Credit for other purposes and shall not
assign, pledge or otherwise use the Letter of Credit as security for any purpose.
10.3 Restoration of Funds. Within ten (10) Days after notice to it that any amount has been
withdrawn by the City from the Letter of Credit pursuant to Section 10.8, Grantee shall deposit a
sum of money sufficient to restore such the Letter of Credit to the required amount.
10.4 Liquidated Damages. In addition to recovery of any monies owed by Grantee to City or
damages to City as a result of any acts or omissions by Grantee pursuant to the Franchise, City in
its sole discretion may charge to and collect from the Letter of Credit the following liquidated
damages:
a) For failure to provide data, documents, reports or information or to cooperate with
City during an application process, audit, or System review, the liquidated damage shall be
Two Hundred Fifty Dollars ($250.00) per Day for each Day, or part thereof, such failure
occurs or continues.
b) For failure to comply with any of the provisions of this Franchise for which a
penalty is not otherwise specifically provided pursuant to this Section 10.4, the liquidated
damage shall be Two Hundred Fifty Dollars ($250.00) per Day for each Day, or part
thereof, such failure occurs or continues.
c) For failure to test, analyze and report on the performance of the System following
a request by City, the liquidated damage shall be Two Hundred Fifty Dollars ($250.00) per
Day for each Day, or part thereof, such failure occurs or continues.
d) Forty-five Days following notice from City of a failure of Grantee to comply with
construction, operation or maintenance standards, the liquidated damage shall be Five
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Hundred Dollars ($500.00) per Day for each Day, or part thereof, such failure occurs or
continues.
e) For failure to provide the services Grantee has proposed, including but not limited
to the implementation and the utilization of the PEG Channels, the liquidated damage shall
be Two Hundred Fifty ($250.00) per Day for each Day, or part thereof, such failure occurs
or continues.
f) For failure to provide or replenish the Letter of Credit required by this Section 10,
the liquidated damage shall be Two Hundred Fifty ($250.00) per Day for each Day, or part
thereof, such failure occurs or continues.
10.5 Each Violation a Separate Violation. Each violation of any provision of this Franchise
shall be considered a separate violation for which separate liquidated damages can be imposed.
10.6 Maximum 120 Days. Any liquidated damages for any given violation shall be imposed
upon Grantee for a maximum of one hundred twenty (120) Days. If after that amount of time
Grantee has not cured or commenced to cure the alleged breach to the satisfaction of the City, the
City may pursue all other remedies.
10.7 Withdrawal of Funds to Pay Taxes. If Grantee fails to pay to the City any taxes due and
unpaid, or fails to repay to the City any damages, costs or expenses, which the City shall be
compelled to pay by reason of any act or default of the Grantee in connection with this Franchise;
or fails, after thirty (30) Days’ notice of such failure by the City to comply with any provision of
the Franchise which the City reasonably determines can be remedied by an expenditure of the
Letter of Credit, the City may then withdraw such funds from the Letter of Credit. Payments are
not Franchise Fees as defined in Section 15 of this Franchise.
10.8 Procedure for Draw on Letter of Credit. Whenever the City finds that Grantee has
allegedly violated one (1) or more terms, conditions or provisions of this Franchise, a written notice
shall be given to Grantee. The written notice shall describe in reasonable detail the alleged
violation so as to afford Grantee an opportunity to remedy the violation. Grantee shall post the
Letter of Credit within ten (10) Days of the date of receipt of a written notice of violation, Grantee
shall have thirty (30) Days subsequent to receipt of the notice in which to correct the violation
before the City may require Grantee to make payment of damages, and further to enforce payment
of damages through the Letter of Credit. Grantee may, within ten (10) Days of receipt of notice,
notify the City that there is a dispute as to whether a violation or failure has, in fact, occurred.
Such notice by Grantee shall specify with particularity the matters disputed by Grantee and shall
stay the running of the thirty (30) Day cure period but shall not serve to delay Grantee’s obligation
to post the Letter of Credit within said ten (10) Day period following receipt of the notice of
violation.
a) City shall hear Grantee’s dispute at the next regularly scheduled or specially
scheduled City Council meeting. Grantee shall have the right to speak and introduce
evidence. The City shall determine if Grantee has committed a violation and shall make
written findings of fact relative to its determination. If a violation is found, Grantee may
petition the City Council for reconsideration.
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b) If after hearing the dispute, the claim is upheld by the City, then Grantee shall have
thirty (30) Days within which to remedy the violation before City may require payment of
all liquidated damages due it.
10.9 Time for Correction of Violation. The time for Grantee to correct any alleged violation
may be extended by the City if the necessary action to correct the alleged violation is of such a
nature or character as to require more than thirty (30) Days within which to perform provided
Grantee commences corrective action within fifteen (15) Days and thereafter uses reasonable
diligence, as determined by the City, to correct the violation.
10.10 Grantee’s Right to Pay Prior to Letter of Credit Draw. Grantee shall have the
opportunity to make prompt payment of any assessed liquidated damages and if Grantee fails to
promptly remit payment to the City, the City may resort to a draw from the Letter of Credit in
accordance with the terms of this Section 10 of the Franchise.
10.11 Failure to so Replenish Letter of Credit. If any Letter of Credit is not replaced as
required in this section, City may draw on said security fund for the whole amount thereof and
hold the proceeds, without interest, and use the proceeds to pay costs incurred by City in
performing and paying for any or all of the obligations, duties and responsibilities of Grantee under
this Franchise that are not performed or paid for by Grantee pursuant hereto, including attorneys’
fees incurred by the City in so performing and paying. The failure to so replace any Letter of
Credit may also, at the option of City, be deemed a default by Grantee under this Franchise. The
drawing on the Letter of Credit by City, and use of the money so obtained for payment or
performance of the obligations, duties and responsibilities of Grantee which are in default, shall
not be a waiver or release of such default.
10.12 Collection of Funds Not Exclusive Remedy. The collection by City of any damages or
monies from the Letter of Credit shall not affect any other right or remedy available to City, nor
shall any act, or failure to act, by City pursuant to the Letter of Credit, be deemed a waiver of any
right of City pursuant to this Franchise or otherwise. Notwithstanding this section, however,
should the City elect to impose liquidated damages, that remedy shall remain the City’s exclusive
remedy for the one hundred twenty (120) Day period set forth in Section 10.6, provided that
Grantee has provided the City the Letter of Credit as required in this Section 10. If Grantee fails
to provide or, if needed, replenish the Letter of Credit, then the City may impose liquidated
damages and also pursue any other right or remedy available to City pursuant to this Franchise or
otherwise.
SECTION 11 DEFAULT
11.1 Basis for Default. City shall give written notice of default to Grantee if City, in its sole
discretion, determines that Grantee has:
a) Violated any material provision of this Franchise or the acceptance hereto or any
rule, order, regulation or determination of the City, state or federal government, not in
conflict with this Franchise;
b) Attempted to evade any provision of this Franchise or the acceptance hereof;
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c) Practiced any fraud or deceit upon City or Subscribers;
d) Made a material misrepresentation of fact in the application for or negotiation of
this Franchise; or
e) Incurred a twelve (12) month or more delay in the construction schedule.
11.2 Default Procedure. If Grantee fails to cure such default within thirty (30) Days after the
giving of such notice (or if such default is of such a character as to require more than thirty (30)
Days within which to cure the same, and Grantee fails to commence to cure the same within said
thirty (30) Day period and thereafter fails to use reasonable diligence, in City’s sole opinion, to
cure such default as soon as possible), then, and in any event, such default shall be a substantial
breach and City may elect to terminate the Franchise. The City may place the issue of revocation
and termination of this Franchise before the City Council at a regular meeting. If City decides
there is cause or reason to terminate, the following procedure shall be followed:
a) City shall provide Grantee with a written notice of the reason or cause for proposed
termination and shall allow Grantee a minimum of thirty (30) Days subsequent to receipt
of the notice in which to correct the default.
b) Grantee shall be provided with an opportunity to be heard at a public hearing prior
to any decision to terminate this Franchise.
c) If, after notice is given and an opportunity to cure, at Grantee’s option, a public
hearing is held, and the City determines there was a violation, breach, failure, refusal or
neglect, the City may declare by resolution the Franchise revoked and of no further force
and effect unless there is compliance within such period as the City may fix, such period
may not be less than thirty (30) Days. No opportunity for compliance need be granted for
fraud or misrepresentation.
11.3 Failure to Enforce. Grantee shall not be relieved of any of its obligations to comply
promptly with any provision of the Franchise by reason of any failure of the City to enforce prompt
compliance, and City’s failure to enforce shall not constitute a waiver of rights or acquiescence in
Grantee’s conduct.
11.4 Compliance with the Laws.
a) If any federal or state law or regulation shall require or permit City or Grantee to
perform any service or act or shall prohibit City or Grantee from performing any service
or act which may be in conflict with the terms of this Franchise, then as soon as possible
following knowledge thereof, either party shall notify the other of the point in conflict
believed to exist between such law or regulation. To the extent required to comply with
such law or regulation, Grantee and City shall conform to state laws and rules regarding
cable communications not later than one (1) year after they become effective, unless
otherwise stated, and shall conform to federal laws and regulations regarding cable as they
become effective.
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b) If any term, condition or provision of this Franchise or the application thereof to
any Person or circumstance shall, to any extent, be held to be invalid or unenforceable, the
remainder hereof and the application of such term, condition or provision to Persons or
circumstances other than those as to whom it shall be held invalid or unenforceable shall
not be affected thereby, and this Franchise and all the terms, provisions and conditions
hereof shall, in all other respects, continue to be effective and complied with, provided the
loss of the invalid or unenforceable clause does not substantially alter the agreement
between the parties. In the event such law, rule or regulation is subsequently repealed,
rescinded, amended or otherwise changed so that the provision which had been held invalid
or modified is no longer in conflict with the law, rules and regulations then in effect, said
provision shall thereupon return to full force and effect and shall thereafter be binding on
Grantee and City.
SECTION 12 FORECLOSURE AND RECEIVERSHIP
12.1 Foreclosure. Upon the foreclosure or other judicial sale of the Cable System, Grantee
shall notify the City of such fact and such notification shall be treated as a notification that a change
in control of Grantee has taken place, and the provisions of this Franchise governing the consent
to transfer or change in ownership shall apply without regard to how such transfer or change in
ownership occurred.
12.2 Receivership. The City shall have the right to cancel this Franchise subject to any
applicable provisions of state law, including the Bankruptcy Act, one hundred twenty (120) Days
after the appointment of a receiver or trustee to take over and conduct the business of Grantee,
whether in receivership, reorganization, bankruptcy or other action or proceeding, unless such
receivership or trusteeship shall have been vacated prior to the expiration of said one hundred
twenty (120) Days, or unless:
a) Within one hundred twenty (120) Days after his election or appointment, such
receiver or trustee shall have fully complied with all the provisions of this Franchise and
remedied all defaults thereunder; and,
b) Such receiver or trustee, within said one hundred twenty (120) Days, shall have
executed an agreement, duly approved by the Court having jurisdiction in the premises,
whereby such receiver or trustee assumes and agrees to be bound by each and every
provision of this Franchise.
SECTION 13 REPORTING REQUIREMENTS
13.1 Quarterly Reports. Within forty (45) Days after the end of each calendar quarter, Grantee
shall submit to the City along with its Franchise Fee payment, a report showing the basis for
computation of the Franchise Fee and PEG Fee payments signed by an authorized representative
of Grantee in form and substance substantially equivalent to Exhibit C attached hereto. This report
shall separately indicate Grantee’s Gross Revenues within the City including, but not limited to
such items as listed in the definition of “Gross Revenues” at Section 1.20 of this Franchise.
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13.2 Monitoring and Compliance Reports. Upon request, but no more than once a year,
Grantee shall provide a written report of any and all FCC technical performance tests for the
residential network required in FCC rules and regulations as now or hereinafter constituted.
13.3 Other Reports. Upon request of the City and in no event later than thirty (30) Days from
the date of receipt of such request, Grantee shall, free of charge, prepare and furnish to the City, at
the times and in the form prescribed, such additional reports with respect to its operation, affairs,
transactions, or property, as may be reasonably necessary to ensure compliance with the terms of
this Franchise. Grantee and City may in good faith agree upon taking into consideration Grantee’s
need for the continuing confidentiality as prescribed herein. Neither City nor Grantee shall
unreasonably demand or withhold information requested pursuant to the terms of this Franchise.
13.4 Open Records. Grantee shall manage the operation of its Cable System in accordance
with a policy of keeping its records open and accessible to the City. The City, upon reasonable
notice, which shall be no less than ten (10) and no more than thirty (30) days, shall have the right
to receive copies of all records of the Grantee and Affiliates necessary to determine compliance
by Grantee with its obligations under this Franchise in a format reasonably required by the City.
Grantee shall not deny the City access to Grantee’s records on the basis that Grantee’s records are
under the control of an Affiliate or a third party, rather than the Grantee.
13.5 Confidential and Trade Secret Information . The City shall follow all Applicable Laws
and procedures for protecting any confidential and trade secret information of Grantee that may
be provided to City. Grantee shall not be relieved of its obligation to provide information or data
required under this Franchise simply because the City may not be able to guarantee its
confidentiality. Grantee acknowledges that the City shall at all times comply with the Minnesota
Government Data Practices Act (“MGDPA”) related to the release of information and nothing
herein shall be read to modify the City’s obligations under the MGDPA.
13.6 Communications with Regulatory Agencies.
a) Upon written request, Grantee shall submit to City copies of any pleading,
applications, notifications, communications and documents of any kind, submitted by
Grantee or its Affiliates to any federal, state or local courts, regulatory agencies and other
government bodies if such documents directly relate to the operations of Grantee’s Cable
System within the Franchise Area. Grantee shall submit such documents to City no later
than thirty (30) Days after receipt of City’s request. Grantee shall not claim confidential,
privileged or proprietary rights to such documents unless under Applicable Law such
documents have been determined to be confidential by a court of competent jurisdiction,
or a federal or state agency. With respect to all other reports, documents and notifications
provided to any federal, state or local regulatory agency as a routine matter in the due
course of operating Grantee’s Cable System within the Franchise Area, Grantee shall make
such documents available to City upon City’s written request.
b) In addition, Grantee and its Affiliates shall within ten (10) Days of any
communication to or from any judicial or regulatory agency regarding any alleged or actual
violation of this Franchise, City regulation or other requirement relating to the System, use
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its best efforts to provide the City a copy of the communication, whether specifically
requested by the City to do so or not.
SECTION 14 CUSTOMER SERVICE POLICIES
14.1 Response to Customers and Cooperation with City. Grantee shall promptly respond to
all requests for service, repair, installation and information from Subscribers. Grantee
acknowledges the City’s interest in the prompt resolution of all cable complaints and shall work
in close cooperation with the City to resolve complaints. Grantee shall provide the City with the
name, address and telephone number of an office that will act as the Grantee’s agent to receive
complaints regarding quality of service, equipment malfunctions, billings, and similar matters.
Grantee will maintain an “escalated complaint process” to address unresolved complaints from
Subscribers. A team of specifically identified employees of Grantee shall be available to the City
via email for reporting issues. These specifically identified employees of Grantee will have the
ability to take actions, and will do so in a timely manner, to resolve Subscriber complaints relating
to billing, property or service restoration, technical appointments, or any other Subscriber matters
when necessary. Grantee will follow-up with the City in writing by email (and by phone when
necessary) with a summary of the results of the complaint(s).
14.2 Customer Service Agreement and Written Information . Grantee shall provide to
Subscribers a comprehensive service agreement and information in writing for use in establishing
Subscriber service. Written information shall, at a minimum, contain the following information:
a) Services to be provided and rates and charges for such services.
b) Billing procedures.
c) Service termination procedure.
d) Change in service notifications.
e) Converter/Subscriber terminal equipment policy.
f) How complaints are handled including Grantee’s procedure for investigation and
resolution of Subscriber complaints.
g) The name, address, and phone number of the Person identified by the City as
responsible for handling cable questions and complaints for the City. This information
shall be prominently displayed, and Grantee shall submit the information to the City for
review and approval as to its content and placement on Subscriber billing statements. A
copy of the written information shall be provided to each Subscriber at the time of initial
connection and any subsequent reconnection.
14.3 Reporting Complaints.
a) The requirements of this Section 14.3 shall be subject to federal law regarding
Subscriber privacy. Grantee shall maintain all Subscriber data available for City
inspection. Subscriber data shall include the date, name, address, and telephone number
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of Subscriber complaints as well as the subject of the complaint, date and type of action
taken to resolve the complaint, any additional action taken by Grantee or the Subscriber.
The Grantee shall provide City with reasonable access to the information maintained by
Grantee pursuant to this Section 14.3, subject to federal law regarding Subscriber privacy.
b) Subject to federal law and upon reasonable request by the City, Grantee shall,
within a reasonable amount of time, provide City with such Subscriber data for its review.
14.4 Customer Service Standards.
a) The City hereby adopts the customer service standards set forth in Part 76,
76.309) of the FCC’s rules and regulations, as amended.
b) Grantee shall, upon request, provide City with information which shall describe in
detail Grantee’s compliance with each and every term and provision of this Section 14.
c) Grantee shall comply in all respects with the customer service requirements
established by the FCC and those set forth herein. The City reserves the right to enact
additional consumer protection laws or requirements as provided in 47 U.S.C. § 552(d).
14.5 Local Office. Grantee shall maintain a convenient local customer service and bill payment
location for matters such as receiving Subscriber payments, handling billing questions, equipment
replacement and customer service information.
14.6 Cable System Office Hours and Telephone Availability. Grantee shall comply with the
standards and requirements for customer service set forth below during the term of this Franchise.
a) Grantee will maintain a local, toll-free or collect call telephone access line which
will be available to its Subscribers twenty-four (24) hours a Day, seven (7) days a week.
i) Trained Grantee representatives will be available to respond to customer
telephone inquiries during Normal Business Hours.
ii) After Normal Business Hours, the access line may be answered by a service
or an automated response system, including an answering machine. Inquiries
received after Normal Business Hours must be responded to by a trained Grantee
representative on the next business day.
b) 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 percent (90%) of the time
under Normal Operating Conditions, measured on a quarterly basis.
c) Grantee shall not be required to acquire equipment or perform surveys to measure
compliance with the telephone answering standards above unless an historical record of
complaints indicates a clear failure to comply.
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d) Under Normal Operating Conditions, the customer will receive a busy signal less
than three percent (3%) of the time.
e) Customer service center and bill payment locations will be open at least during
Normal Business Hours and will be conveniently located.
f) The Grantee shall utilize such equipment and software and keep such records as are
necessary or required to enable the City to determine whether the Grantee is complying
with all telephone answering standards required by applicable customer service regulations
and laws, as amended from time to time.
14.7 Installations, Outages and Service Calls. Under Normal Operating Conditions, each of
the following standards will be met no less than ninety-five percent (95%) of the time measured
on a quarterly basis:
a) Standard Installations will be performed within seven (7) business days after an
order has been placed. “Standard” Installations are those that are located up to one hundred
twenty-five (125) feet from the existing distribution system.
b) Excluding conditions beyond the control of Grantee, Grantee will begin working
on “service interruptions” promptly and in no event later than twenty-four (24) hours after
the interruption becomes known. Grantee must begin actions to correct other Service
problems the next business day after notification of the Service problem.
c) The “appointment window” alternatives for installations, Service calls, and other
installation activities will be either a specific time or, at maximum, a four (4) hour time
block during Normal Business Hours. (Grantee may schedule Service calls and other
installation activities outside of Normal Business Hours for the express convenience of the
customer.)
d) Grantee may not cancel an appointment with a customer after the close of business
on the business day prior to the scheduled appointment.
e) If Grantee’s representative is running late for an appointment with a customer and
will not be able to keep the appointment as scheduled, the customer will be contacted. The
appointment will be rescheduled, as necessary, at a time which is convenient for the
customer.
14.8 Communications between Grantee and Subscribers.
a) Refunds. Refund checks will be issued promptly, but no later than either:
i) The customer’s next billing cycle following resolution of the request or
thirty (30) Days, whichever is earlier, or
ii) The return of the equipment supplied by Grantee if Cable Service is
terminated.
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b) Credits. Credits for Cable Service will be issued no later than the customer’s next
billing cycle following the determination that a credit is warranted.
14.9 Billing:
a) Consistent with 47 C.F.R. § 76.1619, bills will be clear, concise and
understandable. Bills must be fully itemized, with itemizations including, but not limited
to, Basic Cable Service and premium Cable Service charges and equipment charges. Bills
will also clearly delineate all activity during the billing period, including optional charges,
rebates and credits.
b) In case of a billing dispute, Grantee must respond to a written complaint from a
Subscriber within thirty (30) Days.
14.10 Subscriber Information.
a) Grantee will provide written information on each of the following areas at the time
of installation of Cable Service, at least annually to all Subscribers, and at any time upon
request:
i) Products and services offered;
ii) Prices and options for programming services and conditions of subscription
to programming and other services;
iii) Installation and service maintenance policies;
iv) Instructions on how to use the Cable Service;
v) Channel positions of programming carried on the System; and
vi) Billing and complaint procedures, including the address and telephone
number of the City’s office.
b) Subscribers shall be advised of the procedures for resolution of complaints about
the quality of the television signal delivered by Grantee, including the address of the
responsible officer of the City. Subscribers will be notified of any changes in rates,
programming services or Channel positions as soon as possible in writing. Notice must be
given to Subscribers a minimum of thirty (30) Days in advance of such changes if the
change is within the control of Grantee. In addition, Grantee shall notify Subscribers thirty
30) Days in advance of any significant changes in the information required by this Section
14.10.
14.11 Notice of Rate or Programming Changes. Grantee shall give thirty (30) Days written
notice to both Subscribers and the City before implementing any rate or Service change, unless the
change results from circumstances outside of Grantee’s control (including failed retransmission
consent or program carriage negotiations during the last 30 days of a contract), in which case notice
shall be provided as soon as possible using any reasonable written means at the operator's sole
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discretion, including Channel Slates. Notice of rate changes shall include the precise amount of
the rate change and explain the reason for the change in readily understandable terms. Notice of
changes involving the addition or deletion of channels shall individually identify each channel
affected. For purposes of the carriage of digital broadcast signals, Grantee need only identify for
Subscribers the television signal added and not whether that signal may be multiplexed during
certain dayparts.
14.12 Subscriber Contracts. Grantee shall, upon written request, provide the City with any
standard form residential Subscriber contract utilized by Grantee. If no such written contract
exists, Grantee shall file with the City a document completely and concisely stating the length and
terms of the Subscriber contract offered to customers. The length and terms of any standard form
Subscriber contract(s) shall be available for public inspection during Normal Business Hours. A
list of Grantee’s current Subscriber rates and charges for Cable Service and a current Channel line-
up showing all Channels available in the City shall be maintained on file with City and shall be
available for public inspection. Grantee shall also provide on a monthly basis a copy of a sample
Subscriber bill to the City.
14.13 Refund Policy. If a Subscriber’s Cable Service is interrupted or discontinued, without
cause, for twenty-four (24) or more consecutive hours, Grantee shall, upon request by the
Subscriber, credit such Subscriber pro rata for such interruption. For this purpose, every month
will be assumed to have thirty (30) Days.
14.14 Late Fees. Grantee shall comply with all Applicable Laws with respect to any assessment,
charge, cost, fee or sum, however characterized, that Grantee imposes upon a Subscriber for late
payment of a bill. The City reserves the right to enforce Grantee’s compliance with all Applicable
Laws to the maximum extent legally permissible.
14.15 Disputes. All Subscribers and members of the general public may direct complaints,
regarding Grantee’s service or performance to the chief administrative officer of the City or the
chief administrative officer’s designee, which may be a board or a commission of the City.
14.16 Subscriber Bills. Subscriber bills shall be designed in such a way as to present the
information contained therein clearly and comprehensibly to Subscribers, and in a way that: (A) is
not misleading; and (B) does not omit material information. Grantee may, in its sole discretion,
consolidate costs on Subscriber bills as may be permitted by 47 U.S.C. § 542(c).
14.17 Failure to Resolve Complaints. Grantee shall resolve a complaint within thirty (30) Days
in a manner deemed reasonable by the City under the terms of the Franchise.
14.18 Notification of Complaint Procedure. Grantee shall have printed clearly and
prominently on each Subscriber bill and in the customer service agreement provided for in Section
14.2, the twenty-four (24) hour Grantee phone number for Subscriber complaints. Additionally,
Grantee shall provide information to Subscriber concerning the procedures to follow when they
are unsatisfied with measures taken by Grantee to remedy their complaint. This information will
include the phone number of the City office or Person designated to handle complaints.
Additionally, Grantee shall state that complaints should be made to Grantee prior to contacting the
City.
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14.19 Subscriber Privacy.
a) Grantee shall comply with the Subscriber privacy provisions of 47 U.S.C. §551, as
amended from time to time.
b) To the extent required by Minnesota Statutes § 238.084 Subd. 1(s) Grantee shall
comply with the following:
i) No signals including signals of a Class IV Channel may be transmitted from
a Subscriber terminal for purposes of monitoring individual viewing patterns or
practices without the express written permission of the Subscriber. The request for
permission must be contained in a separate document with a prominent statement
that the Subscriber is authorizing the permission in full knowledge of its provisions.
Such written permission shall be for a limited period of time not to exceed one (1)
year which may be renewed at the option of the Subscriber. No penalty shall be
invoked for a Subscriber’s failure to provide or renew such permission. The
permission shall be revocable at any time by the Subscriber without penalty of any
kind whatsoever.
ii) No information or data obtained by monitoring transmission of a signal
from a Subscriber terminal, including but not limited to lists of the names and
addresses of Subscribers or any lists that identify the viewing habits of Subscribers
shall be sold or otherwise made available to any party other than to Grantee or its
agents for Grantee’s business use, and also to the Subscriber subject of that
information, unless Grantee has received specific written permission from the
Subscriber to make such data available. The request for permission must be
contained in a separate document with a prominent statement that the Subscriber is
authorizing the permission in full knowledge of its provisions. Such written
permission shall be for a limited period of time not to exceed one (1) year which
may be renewed at the option of the Subscriber. No penalty shall be invoked for a
Subscriber’s failure to provide or renew such permission. The permission shall be
revocable at any time by the Subscriber without penalty of any kind whatsoever.
iii) Written permission from the Subscriber shall not be required for the
conducting of system wide or individually addressed electronic sweeps for the
purpose of verifying System integrity or monitoring for the purpose of billing.
Confidentiality of such information shall be subject to the provision set forth in
subparagraph (ii) of this section.
14.20 Grantee Identification. Grantee shall provide all customer service technicians and all
other Grantee employees entering private property with appropriate picture identification so that
Grantee employees may be easily identified by the property owners and Subscribers.
14.21 Subscriber Rates. There shall be no charge for disconnection of any installation or outlet.
If any Subscriber fails to pay a properly due monthly Subscriber fee, or any other properly due fee
or charge, Grantee may disconnect the Subscriber’s service outlet, provided, however, that such
disconnection shall not be affected until after the later of: (i) forty-five (45) Days after the original
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due date of said delinquent fee or charge; or (ii) ten (10) Days after delivery to Subscriber of
written notice of the intent to disconnect. If a Subscriber pays before expiration of the later of (i)
or (ii), Grantee shall not disconnect. After disconnection, upon payment in full of the delinquent
fee or charge and the payment of a reconnection charge, Grantee shall promptly reinstate the
Subscriber’s Cable Service.
14.22 Refunds. Refunds to Subscribers shall be made or determined in the following manner:
a) If Grantee fails, upon request by a Subscriber, to provide any service then being
offered, Grantee shall promptly refund all deposits or advance charges paid for the service
in question by said Subscriber. This provision does not alter Grantee’s responsibility to
Subscribers under any separate contractual agreement or relieve Grantee of any other
liability.
b) If any Subscriber terminates any monthly service because of failure of Grantee to
render the service in accordance with this Franchise, Grantee shall refund to such
Subscriber the proportionate share of the charges paid by the Subscriber for the services
not received. This provision does not relieve Grantee of liability established in other
provisions of this Franchise.
c) If any Subscriber terminates any monthly service prior to the end of a prepaid
period, a proportionate amount of any prepaid Subscriber service fee, using the number of
days as a basis, shall be refunded to the Subscriber by Grantee.
SECTION 15 COMPENSATION AND FINANCIAL PROVISIONS
15.1 Franchise Fees.
a) During the term of the Franchise, Grantee shall pay to the City a Franchise Fee in
an amount equal to five percent (5%) of its Gross Revenues. If any law, regulation or valid
rule alters the five percent (5%) Franchise Fee ceiling established by the Cable Act, then
the City shall have the authority (but shall not be required) to increase the Franchise Fee
accordingly, provided such increase is for purposes not inconsistent with Applicable Law.
b) Franchise Fees shall be paid quarterly. The payments shall be made to the City
within forty-five (45) Days following the end of each calendar quarter. Grantee shall
include with each quarterly payment a Franchise Fee payment worksheet, in form and
substance substantially similar to Exhibit C, signed by an authorized representative of
Grantee. No acceptance of any payment shall be construed as an accord that the amount
paid is in fact, the correct amount, nor shall such acceptance of payment be construed as a
release of any claim which the City may have for further or additional sums payable under
the provisions of this section.
c) Neither current nor previously paid Franchise Fees shall be subtracted from the
Gross Revenue amount upon which Franchise Fees are calculated and due for any period,
unless otherwise required by Applicable Law.
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d) Any Franchise Fees owing pursuant to this Franchise which remain unpaid after the
due dates specified herein shall be delinquent and shall immediately begin to accrue interest
at twelve percent (12%) per annum or two percent (2%) above prime lending rate as quoted
by the Wall Street Journal, whichever is greater.
15.2 Auditing and Financial Records. Throughout the term of this Franchise, the Grantee
agrees that the City or its designee, upon reasonable prior written notice of twenty (20) Days to
the Grantee, may review such of the Grantee’s books and records regarding the operation of the
Cable System and the provision of Cable Service in the Franchise Area which are reasonably
necessary to monitor and enforce Grantee’s compliance with the provisions of this Franchise.
Grantee shall provide such requested information as soon as possible and in no event more than
twenty (20) Days unless Grantee explains that it is not feasible to meet this timeline and provides
a written explanation for the delay and an estimated reasonable date for when such information
will be provided. All such documents pertaining to financial matters that may be the subject of an
inspection by the City shall be retained by the Grantee for a minimum period of seven (7) years,
pursuant to Minnesota Statutes § 541.05. The Grantee shall not deny the City access to any of the
Grantee’s records on the basis that the Grantee’s records are under the control of any parent
corporation, Affiliate or a third party. The City may request in writing copies of any such records
or books that are reasonably necessary, and the Grantee shall provide such copies within thirty
30) Days of the receipt of such request. One (1) copy of all reports and records required under
this or any other section shall be furnished to the City at the sole expense of the Grantee. If the
requested books and records are too voluminous, or for security reasons cannot be copied or
removed, then the Grantee may request, in writing within ten (10) Days of receipt of such request,
that the City inspect them at the Grantee’s local offices or at one of Grantee’s offices more
convenient to City or its duly authorized agent. If any books or records of the Grantee are not kept
in such office and not made available in copies to the City upon written request as set forth above,
and if the City determines that an examination of such records is necessary for the enforcement of
this Franchise, then all reasonable travel expenses incurred in making such examination shall be
paid by the Grantee.
15.3 Review of Record Keeping Methodology. Upon request, Grantee agrees to meet with a
representative of the City or its designee to review its methodology of record-keeping, financial
reporting, computing Franchise Fee obligations, and other procedures the understanding of which
the City deems necessary for understanding the meaning of reports and records.
15.4 Audit of Records. The City or its authorized agent may at any time and at the City’s own
expense conduct an independent audit or review of the revenues of Grantee in order to verify the
accuracy of Franchise Fees or PEG Fees paid to the City. Grantee and each parent company of
Grantee shall cooperate fully in the conduct of such audit or review. In the event it is determined
through such audit or review that Grantee has underpaid Franchise Fees in an amount of five
percent (5%) or more than was due the City, then Grantee shall reimburse the City for the entire
cost of the audit or review within thirty (30) Days of the completion and acceptance of the audit
or review by the City. Grantee shall pay to the City any additional amounts due as a result of the
audit or review, including interest as set forth in Section 15.1, within thirty (30) days following
written notice to Grantee by the City of the underpayment, provided that nothing in this sentence
limits Grantee’s ability to dispute the results of any audit or review.
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15.5 Records to be reviewed. The City agrees to request access to only those books and
records, in exercising its rights under this section, which it deems reasonably necessary for the
enforcement and administration of the Franchise.
15.6 Indemnification by Grantee. Grantee shall, at its sole expense, fully indemnify, defend
and hold harmless the City, and in their capacity as such, the officers, agents and employees thereof
collectively the “Indemnified Parties”), from and against any and all claims, suits, actions,
demands, liability and judgments for damage or otherwise except those arising wholly from
negligence on the part of the Indemnified Parties; for actual or alleged injury to Persons or
property, including loss of use of property due to an occurrence, whether or not such property is
physically damaged or destroyed, in any way arising out of or through or alleged to arise out of or
through the acts or omissions of Grantee or its officers, agents, employees, or contractors or to
which Grantee’s or its officers, agents, employees or contractors acts or omissions in any way
contribute, and whether or not such acts or omissions were authorized or contemplated by this
Franchise or Applicable Law; arising out of or alleged to arise out of any claim for damages for
Grantee’s invasion of the right of privacy, defamation of any Person, or the violation or
infringement of any copyright, trademark, trade name, service mark or patent, or of any other right
of any Person; arising out of or alleged to arise out of Grantee’s failure to comply with the
provisions of any Applicable Law. Nothing herein shall be deemed to prevent the Indemnified
Parties from participating in the defense of any litigation by their own counsel at such parties’
expense. Such participation shall not under any circumstances relieve Grantee from its duty of
defense against liability or of paying any judgment entered against the Indemnified Parties.
15.7 Grantee Insurance. Upon the Effective Date, Grantee shall, at its sole expense, take out
and maintain during the term of this Franchise public liability insurance with a company licensed
to do business in the State of Minnesota with a rating by A.M. Best & Co. of not less than “A-”
that shall protect the Grantee, City and its officials, officers, directors, employees and agents from
claims which may arise from operations under this Franchise, whether such operations be by the
Grantee, its officials, officers, directors, employees and agents or any subcontractors of Grantee.
This liability insurance shall include, but shall not be limited to, protection against claims arising
from bodily and personal injury and damage to property, resulting from Grantee’s vehicles,
products and operations. The amount of insurance for single limit coverage applying to bodily
and personal injury and property damage shall not be less than Four Million Dollars ($4,000,000).
The liability policy shall include:
a) The policy shall provide coverage on an “occurrence” basis.
b) The policy shall cover personal injury as well as bodily injury.
c) The policy shall cover blanket contractual liability subject to the standard universal
exclusions of contractual liability included in the carrier’s standard endorsement as to
bodily injuries, personal injuries and property damage.
d) Broad form property damage liability shall be afforded.
e) City shall be named as an additional insured on the policy.
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f) An endorsement shall be provided which states that the coverage is primary
insurance with respect to claims arising from Grantee’s operations under this Franchise
and that no other insurance maintained by the City will be called upon to contribute to a
loss under this coverage.
g) Standard form of cross-liability shall be afforded.
h) An endorsement stating that the policy shall not be canceled without thirty (30)
Days’ notice of such cancellation given to City.
i) City reserves the right to adjust the insurance limit coverage requirements of this
Franchise no more than once every three (3) years. Any such adjustment by City will be
no greater than the increase in the State of Minnesota Consumer Price Index (all
consumers) for such three (3) year period.
j) Upon the Effective Date, Grantee shall submit to City a certificate documenting the
required insurance, as well as any necessary properly executed endorsements. The
certificate and documents evidencing insurance shall be in a form acceptable to City and
shall provide satisfactory evidence that Grantee has complied with all insurance
requirements. Renewal certificates shall be provided to City prior to the expiration date of
any of the required policies. City will not be obligated, however, to review such
endorsements or certificates or other evidence of insurance, or to advise Grantee of any
deficiencies in such documents and receipt thereof shall not relieve Grantee from, nor be
deemed a waiver of, City’s right to enforce the terms of Grantee’s obligations hereunder.
City reserves the right to examine any policy provided for under this paragraph or to require
further documentation reasonably necessary to form an opinion regarding the adequacy of
Grantee’s insurance coverage.
SECTION 16 MISCELLANEOUS PROVISIONS
16.1 Posting and Publication. This Franchise shall be published in accordance with Applicable
Law. Grantee shall assume the cost of posting and publication of the Franchise as such posting
and publication is required by law and such is payable upon Grantee’s filing of acceptance of this
Franchise.
16.2 Guarantee of Performance. Grantee agrees that it enters into this Franchise voluntarily
in order to secure and in consideration of the grant from the City of a ten (10) year Franchise.
Performance pursuant to the terms and conditions of this Franchise is guaranteed by Grantee.
16.3 Entire Agreement. This Franchise contains the entire agreement between the parties,
supersedes all prior agreements or proposals except as specifically set forth herein, and cannot be
changed orally but only by an instrument in writing executed by the parties. This Franchise is
made pursuant to Minnesota Statutes Chapter 238 and the City Code and is intended to comply
with all requirements set forth therein.
16.4 Consent. Wherever the consent or approval of either Grantee or the City is specifically
required in this agreement, such consent or approval shall not be unreasonably withheld.
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16.5 Prior Franchise Terminated. The cable franchise originally granted by Ordinance No.
1583 is hereby terminated. Nothing herein shall serve to waive any rights the parties may have
under previous agreements subject only to the applicable state statute of limitations.
16.6 Franchise Acceptance and Effective Date. No later than thirty (30) Days following City
Council approval of this Franchise, Grantee shall execute and return to the City two (2) original
franchise agreements. The date Grantee executes the Franchise shall be the “Effective Date,”
provided that Grantee returns the executed agreements to the City accompanied by performance
bonds, evidence of insurance and any other conditions precedent as provided in this Franchise. In
the event Grantee fails to accept this Franchise, or fails to provide the required documents, this
Franchise shall be null and void.
16.7 Amendment of Franchise. Grantee and City may agree, from time to time, to amend this
Franchise. Such written amendments may be made to address technology changes or advances
subsequent to a review session pursuant to Section 2.6 or at any other time if City and 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 City’s
exercise of its police powers.
16.8 Notice. All notices, reports, or demands required to be given in writing under this
Franchise shall be deemed to be given when delivered personally to any officer of the Grantee or
the City’s administrator of this Franchise during Normal Business Hours 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 Manager
City of Columbia Heights
3989 Central Avenue NE
Columbia Heights, MN 55421
With copies to: Michael R. Bradley
Bradley Werner, LLC
2145 Woodlane Drive
Suite 106
Woodbury, MN 55125
If to Grantee: General Manager
Comcast
10 River Park Plaza
St. Paul, MN 55107
Such addresses may be changed by either party upon notice to the other party given as provided in
this section.
Recognizing the widespread usage and acceptance of electronic forms of communication, emails
will be acceptable as formal notification related to the conduct of general business amongst the
parties to this contract, including but not limited to programming and price adjustment
43
communications. Such communication should be addressed and directed to the Person of record
as specified above.
16.9 Force Majeure. In the event that either party is prevented or delayed in the performance
of any of its obligations, under this Franchise by reason of acts of God, floods, fire, hurricanes,
tornadoes, earthquakes, or other unavoidable casualties, insurrection, war, riot, vandalism, strikes,
delays in receiving permits where it is not the fault of Grantee, sabotage, acts or omissions of the
other party, or any other similar event beyond the reasonable control of that party, it shall have a
reasonable time under the circumstances to perform such obligation under this Franchise, or to
procure a substitute for such obligation to the reasonable satisfaction of the other party.
16.10 Work of Contractors and Subcontractors. Work by contractors and subcontractors is
subject to the same restrictions, limitations and conditions as if the work were performed by
Grantee. Grantee shall be responsible for all work performed by its contractors and subcontractors,
and others performing work on its behalf as if the work were performed by it and shall ensure that
all such work is performed in compliance with this Franchise, the City Code and other Applicable
Law, and shall be jointly and severally liable for all damages and correcting all damage caused by
them. It is Grantee’s responsibility to ensure that contractors, subcontractors or other Persons
performing work on Grantee’s behalf are familiar with the requirements of this Franchise, the City
Code and other Applicable Laws governing the work performed by them.
16.11 Governing Law. This Franchise shall be deemed to be executed in the State of Minnesota,
and shall be governed in all respects, including validity, interpretation and effect, and construed in
accordance with, the laws of the State of Minnesota, as applicable to contracts entered into and
performed entirely within the state.
16.12 Nonenforcement by City. Grantee shall not be relieved of its obligation to comply with
any of the provisions of this Franchise by reason of any failure of the City or to enforce prompt
compliance.
16.13 Captions. The paragraph captions and headings in this Franchise are for convenience and
reference purposes only and shall not affect in any way the meaning of interpretation of this
Franchise.
16.14 Calculation of Time. Where the performance or doing of any act, duty, matter, payment
or thing is required hereunder and the period of time or duration for the performance is prescribed
and fixed herein, the time shall be computed so as to exclude the first and include the last Day of
the prescribed or fixed period or duration of time. When the last Day of the period falls on
Saturday, Sunday or a legal holiday that Day shall be omitted from the computation and the next
business Day shall be the last Day of the period.
16.15 Rights Reserved to City. In addition to any rights specifically reserved to the City by this
Franchise, the City reserves to itself every right and power to which is entitled under Applicable
Law.
16.16 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
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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.
16.17 Grantee Acknowledgment of Validity of Franchise. Grantee acknowledges that it has
had an opportunity to review the terms and conditions of this Franchise and that under current law
Grantee believes that said terms and conditions are not unreasonable or arbitrary, and that Grantee
believes the City has the power to make the terms and conditions contained in this Franchise.
Grantee agrees that it will not, at any time, set up against the City in any claim or proceeding, any
condition or term of the Franchise as unreasonable, arbitrary, void as of the Effective Date of this
Franchise or that the City had no power or authority to make such term or condition.
16.18 Survival of Terms. Upon the termination or forfeiture of the Franchise, Grantee shall no
longer have the right to occupy the Right-of-Ways for the purpose of providing Cable Service.
However, Grantee’s obligations to the City (other than the obligation to provide service to
Subscribers) shall survive according to their terms.
16.19 Competitive Equity.
a) The City reserves the right to grant additional franchises or similar authorizations
to provide Cable Services via Cable Systems. The City intends to treat Cable Operators in
a nondiscriminatory manner to the extent permissible under Applicable Law. If, following
the Effective Date of this Franchise, the City grants such an additional franchise or
authorization to a Cable Operator and Grantee believes the City has done so on terms
materially more favorable than the obligations under this Franchise, then the provisions of
this Section 16.19 will apply.
b) As part of this Franchise, the City and Grantee have mutually agreed upon the
following terms as a condition of granting the Franchise, which terms may place the
Grantee at a significant competitive disadvantage if not required of another Cable Operator:
the obligation to pay to the City a Franchise Fee, Gross Revenues as provided for and
defined in this Franchise, and the obligation to comply with the requirements in this
Franchise regarding PEG funding, PEG Channels, records and reports, security
instruments, audits, dispute resolution, remedies, notice and opportunity to cure, and
customer service obligations (hereinafter “Material Obligations”). The City and Grantee
further agree that this provision shall not require a word for word identical franchise or
authorization for competitive equity so long as the regulatory and financial burdens on each
entity are materially equivalent.
c) Within one (1) year of the adoption of another Cable Services franchise or similar
authorization, Grantee must notify the City in writing of the Material Obligations in this
Franchise that Grantee believes exceed the Material Obligations of the competitor Cable
Operator’s franchise or similar authorization. The City and Grantee agree that they will
use best efforts in good faith to negotiate Grantee’s proposed Franchise modifications, and
that such negotiation will proceed and conclude within a ninety (90) Day time period,
A-1
Exhibit A
LIST OF FREE SERVICE TO BUILDINGS
Building Name Address
1. Columbia Heights Public Library 3939 Central Avenue, NE
2. Columbia Heights City Hall 3989 Central Avenue, NE .
3. John P. Murzyn Hall 530 Mill street, NE
4.
Columbia Heights Municipal
Service Center 637 38 th Avenue, NE
5.
Public Safety Facility 825 41 st Avenue, NE &
Jackson Street
6. City Gymnasium 1300 49th Avenue, NE
7. Columbia Heights High School 1400 49th Avenue, NE
8. Central Middle School 900 49th Avenue, NE
9. Highland Elementary School 1500 49th Avenue, NE
Valley View Elementary School 800 49th Avenue, NE
10. District Facilities 1460 49th Avenue, NE
11. District Center 1440 49th Avenue, NE
12. School District Gymnasium 1440 49th Avenue, NE
13. Immaculate Conception School 4030 Jackson Street, NE
B-1
Exhibit B
PEG Transport
Building Name Address
1. Columbia Heights City Hall 3989 Central Avenue.
2. Columbia Heights Public Library 3939 Central Avenue NE
3. Columbia Heights High School 1400 49th Avenue NE
C-1
Exhibit C
Franchise Fee Payment Worksheet
TRADE SECRET – CONFIDENTIAL
PEG Fee Factor: 2%
PEG Fee
Nothing in this Franchise Fee Payment Worksheet shall serve to modify the definition of “Gross
Revenues” set forth in the Franchise
ORDINANCE SUMMARY
ORDINANCE NO. 1704
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, FOR THE PURPOSE OF PROVIDING CABLE
SERVICE; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE
FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM AND THE
RIGHTS-OF-WAY IN CONJUNCTION WITH THE CITY’S RIGHT-OF-WAY ORDINANCE,
IF ANY; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE PROVISIONS
HEREIN.
The City Council of the City of 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 bring about the further development of a Cable System and the continued operation of it. Such
development can contribute significantly to the communication needs and interests of the
residents and citizens of the City and the public generally. Further, the City may achieve better
utilization and improvement of public services and enhanced economic growth with the
development and operation of a Cable System.
Adoption of this Franchise is, in the judgment of the Council, in the best interests of the City and
its residents.
FINDINGS
In the review of the request and proposal for renewal by Grantee and negotiations related thereto,
and as a result of a public hearing, the City Council makes the following findings:
1. The Grantee’s technical ability, financial condition, legal qualifications, and character were
considered and approved in a full public proceeding after due notice and a reasonable
opportunity to be heard;
2. Grantee’s plans for constructing and operating the System were considered and found
adequate and feasible in a full public proceeding after due notice and a reasonable
opportunity to be heard;
3. The Franchise granted to Grantee by the City complies with the existing applicable
Minnesota Statutes, federal laws, and regulations; and
4. The Franchise granted to Grantee is nonexclusive.
The specific terms and conditions of the Cable Franchise Agreement, Sections 1 to 16, and
Exhibits are available for review at the offices of the City of Columbia Heights, 3989 Central
Ave NE, Columbia Heights, MN 55421.