Ordinance 280•
•
THE CITY OF CHANHASSEN, MINNESOTA
CABLE TELEVISION
REGULATORY ORDINANCE
MAY 269 1998
ORDINANCE 280
Prepared by:
BRIAN T. GROGAN, ESQ.
Moss & Barnett
A Professional Association
4800 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402-4129
(612) 347-0340
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SECTION 1.1.
SECTION 1.2.
SECTION 1.3.
SECTION 1.4.
SECTION 1.5.
SECTION 1.6.
SECTION 1.7.
SECTION 1.8.
SECTION 1.9.
SECTION 1.10.
SECTION 1.11.
SECTION 1.12.
SECTION 1.13.
SECTION 1.14.
SECTION 1.15.
SECTION 1.16.
SECTION 1.17.
SECTION 1.18.
SECTION 1.19.
SECTION 1.20.
SECTION 1.21.
SECTION 1.22.
SECTION 1.23.
SECTION 1.24.
SECTION 1.25.
SECTION 1.26.
SECTION 1.27.
SECTION 1.28.
SECTION 1.29.
SECTION 1.30.
SECTION 1.31.
SECTION 1.32.
SECTION 1.33.
SECTION 1.34.
SECTION 1.35.
SECTION 1.36.
SECTION 1.37.
TABLE OF CONTENTS
INTENT.................................................................................................1
DEFINITIONS.......................................................................................1
FRANCHISE TO INSTALL AND OPERATE.........................................5
FRANCHISE REQUIRED.....................................................................5
TERM OF THE FRANCHISE................................................................5
FRANCHISE TERRITORY...................................................................6
FEDERAL, STATE AND CITY JURISDICTION....................................6
FRANCHISE NON-TRANSFERABLE..................................................6
CITY'S RIGHT TO PURCHASE SYSTEM............................................8
PURCHASE BY CITY UPON EXPIRATION OR REVOCATION ..........
8
EMERGENCYUSE..............................................................................9
GEOGRAPHICAL COVERAGE............................................................9
NONEXCLUSIVE FRANCHISE............................................................9
MULTIPLE FRANCHISES..................................................................10
FRANCHISE APPLICATIONS............................................................10
CONSIDERATION OF INITIAL APPLICATIONS................................11
FRANCHISE RENEWAL....................................................................12
CONSUMER PROTECTION AND SERVICE STANDARDS..............12
RATEREGULATION..........................................................................15
FRANCHISEFEE...............................................................................15
DESIGN AND CONSTRUCTION REQUIREMENTS ..........................16
TECHNICAL STANDARDS................................................................19
TRIMMINGOF TREES.......................................................................20
USE OF GRANTEE FACILITIES........................................................20
PROGRAMMING DECISIONS............................................................
20
INDEMNIFICATION............................................................................20
INSURANCE.......................................................................................20
RECORDS REQUIRED AND GRANTOR'S RIGHT TO INSPECT .....
21
ANNUALREPORTS...........................................................................22
FRANCHISE VIOLATION...................................................................23
FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM ............
24
ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY .......
24
EXTENDED OPERATION AND CONTINUITY OF SERVICES ..........
25
RECEIVERSHIP AND FORECLOSURE............................................25
RIGHTS RESERVED TO GRANTOR.................................................26
RIGHTS OF INDIVIDUALS.................................................................26
SEVERABILITY..................................................................................
27
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ORDINANCE NO. 28I
• THE CITY COUNCIL OF THE CITY OF CHANHASSEN,
MINNESOTA DOES HEREBY ORDAIN AS FOLLOWS:
The following Chapter is added to the City of Chanhassen, MN Municipal Code:
CHAPTER 7.5 CABLE TELEVISION REGULATORY ORDINANCE
SECTION 1.1. INTENT.
a. The City of Chanhassen, Minnesota, pursuant to Applicable Laws, is
authorized to grant one or more nonexclusive Franchises to construct, operate, maintain
and reconstruct Cable Television Systems within the City limits.
b. The City Council finds that the development of Cable Television Systems
has the potential of having great benefit and impact upon the residents of the City.
Because of the complex and rapidly changing technology associated with cable
television, the City Council further finds that the public convenience, safety and general
welfare can best be served by establishing regulatory powers which should be vested in
the City or such Persons as the City shall designate. It is the intent of this Ordinance
and subsequent amendments to provide for and specify the means to attain the best
• possible cable television service to the public and any Franchises issued pursuant to
this Ordinance shall be deemed to include this finding as an integral part thereof.
•
SECTION 1.2. DEFINITIONS.
For the purpose of this Ordinance, the following terms, phrases, words and their
derivations shall have the meaning given herein. Words used in the present tense
include the future, words in the plural number include the singular number, and words in
the singular number include the plural number. All capitalized terms used in the
definition of any other term shall have their meaning as otherwise defined in this
Section. The words "shall" and "will" are mandatory and "may" is permissive. Words
not defined shall be given their common and ordinary meaning.
a. "Applicable Laws" 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.
b. 'Basic Cable Service" means any service tier which includes the
retransmission of local television broadcast signals. Basic Cable Service as defined
herein shall not be inconsistent with 47 U.S.C. § 543(b)(7)(1993).
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C. "Cable Act' means the Cable Communications Policy Act of 1984, Pub. L.
• No. 98-549, 98 Stat. 2779 (1984) (codified at 47 U.S.C. §§ 521-611 (1982 & Supp. V
1987)) as amended by the Cable Television Consumer Protection and Competition Act
of 1992, Pub. L. No. 102-385 and the Telecommunications Act of 1996, Pub. L. No.
104-458 and as the same may, from time to time, be amended.
d. "Cable Television System." "System' or "Cable 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:
1. A facility that serves only to retransmit the television signals of one
(1) or more television broadcast stations;
2. A facility that serves subscribers without using any public rights -of -
way;
3. A facility of a common carrier which is subject, in whole or in part,
to the provisions of 47 U.S.C. §§ 201-226, except that such facility shall be
considered a Cable System (other than for purposes of 47 U.S.C. § 541) 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;
• 4. An open video system that complies with Section 653 of the Cable
Act; or
5. Any facilities of any electric utility used solely for operating its
electric utility system.
e. "Cable Service" means:
1. The one-way transmission to Subscribers of (i) video programming,
or (ii) other programming service; and
2. Subscriber interaction, if any, which is required for the selection or
use of such video programming or other programming service.
f. "Channel' or "Cable 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 Federal Communications Commission.
g. "Council' means the City Council of the City of Chanhassen, Minnesota.
h. "Franchise" means an initial authorization, or renewal thereof, issued by
the City, whether such authorization is designated as a Franchise, permit, license,
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resolution, contract, certificate, agreement or otherwise, which authorizes the
• construction or operation of a Cable System over publicly owned rights -of -way.
i. "Franchise Agreement" means a Franchise granted pursuant to this
Ordinance containing the specific provisions of the Franchise granted, including
references, specifications, requirements and other related matters.
j. "Franchise Fee" means any tax, fee or assessment of any kind imposed
by the City or any other Governmental Authority on a Grantee or cable Subscriber, or
both, solely because of their status as such. The term "Franchise Fee" does not
include: (i) any tax, fee or assessment of general applicability (including any such tax,
fee or assessment imposed on both utilities and cable operators or their services but not
including a tax, fee, or assessment which is unduly discriminatory against cable
operators or cable subscribers); (ii) capital costs which are required by the Franchise
Agreement to be incurred by the Grantee for PEG Access Facilities; (iii) requirements or
charges incidental to the awarding or enforcing of the Franchise, including payments for
bonds, security funds, letters of credit, insurance, indemnification, penalties or liquidated
damages; or (iv) any fee imposed under Title 17 of the United States Code.
k. "Governmental Authority" means any Court or other federal, state, county,
municipal or other governmental department, commission, board, agency or
instrumentality.
I. "Grantee " means any Person receiving a Franchise pursuant to this
• Ordinance and its agents, employees, officers, designees, or any lawful successor,
transferee or assignee.
•
M. "Grantor or " 't " means the City of Chanhassen, Minnesota as
represented by the Council or any delegate acting within the scope of its jurisdiction.
The City Administrator shall be responsible for the continuing administration of the
franchise.
n. "Gross Revenues" means all revenue received directly or indirectly by the
Grantee, its affiliates, subsidiaries, parents, or any Person in which Grantee has a
financial interest of five percent (5%) or more arising from or attributable, to the
provision of Cable Service by the Grantee within the City including, but not limited to,
monthly fees charged to Subscribers for Basic Cable Service; monthly fees charged to
Subscribers for any optional service; monthly fees charged to Subscribers for any tier of
service other than Basic Cable Service; Installation, disconnection and reconnection
fees; leased Channel fees; converter and remote revenues; advertising revenues; and
revenues from home shopping Channels. Gross Revenues shall be the basis for
computing the Franchise Fees imposed pursuant to Section 1.20 hereof. Grantee shall
not be required to pay a franchise fee on gross revenues derived from any Person
receiving free Cable Service pursuant to a Franchise Agreement. Gross Revenues
shall include franchise fees collected by Grantee on behalf of the City.
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o. "Initial Service Area" means the area of the City which will receive Cable
• Service initially, as set forth in any Franchise Agreement.
P. "Installation" means the connection of the System to a Subscriber and the
provision of Cable Service.
q. "Normal Business Hours" means those hours (8 a.m.-5 p.m. Monday -
Friday) 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
night per week and/or some weekend hours.
r. "Normal Operating Conditions" means those service conditions which are
within the control of the Grantee. Those conditions which are not within the control of
the Grantee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions. Those
conditions which are ordinarily within the control of the Grantee include, but are not
limited to, special promotions, pay -per -view events, rate increases, regular peak or
seasonal demand periods, and maintenance or upgrade of the System.
S. "Person" means any individual or any association, firm, general
partnership, limited partnership, joint stock company, joint venture, trust, corporation,
limited liability company or other legally recognized entity, private or public, whether for -
profit or not -for -profit.
• t. "Public. Educational or Government Access Facilities" or "PEG Access
Faci iti " means:
1. Channel capacity designated for public, educational or
governmental use; and
2. Facilities and equipment for the use of such Channel capacity.
U. "Section" means any Section, subsection or provision of this Ordinance.
V. "Service Area" or "Franchise Area" means the entire geographic area
within the City as it is now constituted or may in the future be constituted, unless
otherwise specified in the Franchise Agreement.
W. "Service Interruption" means the loss of picture or sound on one or more
Cable Channels.
X. "State' means the State of Minnesota.
Y. "Street' or "publicly owned right of way" means each of the following which
have been dedicated to the public or are hereafter dedicated to the public and
maintained under public authority or by others and located within the City limits: streets,
roadways, highways, avenues, lanes, alleys, sidewalks, easements, rights -of -way and
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similar public property and areas that the Grantor shall permit to be included within the
• definition of Street from time to time.
Z. "Subscriber" means any Person who or which lawfully elects to subscribe
to, for any purpose, a service provided by the Grantee by means of or in connection
with the Cable System whether or not a fee is paid for such service.
SECTION 1.3. FRANCHISE TO INSTALL AND OPERATE.
a. A Franchise granted by the City under the provisions of this Ordinance
shall encompass the following purposes:
1. To engage in the business of providing Cable Service, and such
other lawful services as may be permitted by the City, to Subscribers within the
Service Area.
2. To erect, install, construct, repair, rebuild, reconstruct, replace,
maintain and retain cables, lines, related electronic equipment, supporting
structures, appurtenances and other property in connection with the operation of
a Cable System in, on, over, under, upon, along and across Streets within the
Service Area.
3. To maintain and operate said Franchise properties for the
origination, reception, transmission, amplification and distribution of television
• and radio signals for the delivery of Cable Services.
4. To set forth the obligations of a Grantee under the Franchise
Agreement.
b. Nothing contained in this Ordinance relieves a Person from liability arising
out of failure to exercise reasonable care to avoid injuring Grantee's facilities while
performing work connected with grading, regarding or changing the line of a Street or
public place or with the construction or reconstruction of a sewer or water system.
SECTION 1.4. FRANCHISE REQUIRED.
It shall be unlawful for any Person, other than the City unless specifically required
by Applicable Laws, to construct, install or operate a Cable Television System in the
City in, on, over, under, upon, along or across any Street or publicly owned right of way
without a Franchise properly granted pursuant to the provisions of this Ordinance.
SECTION 1.5. TERM OF THE FRANCHISE.
a. A Franchise granted hereunder shall be for the term established in the
Franchise Agreement and shall not exceed fifteen (15) years.
•b. A Franchise granted hereunder may be renewed upon application by the
Grantee pursuant to the provisions of this Ordinance and Applicable Laws.
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SECTION 1.6. FRANCHISE TERRITORY.
• Any Franchise granted pursuant to this Ordinance shall be valid within the
Service Area.
SECTION 1.7. FEDERAL, STATE AND CITY JURISDICTION.
a. This Ordinance shall be construed in a manner consistent with Applicable
Laws.
b. This Ordinance shall apply to all Franchises granted or renewed after the
effective date of this Ordinance. This Ordinance shall further apply to the extent
permitted by Applicable Laws to all existing Franchises granted prior to the effective
date of this Ordinance.
C. The rights of all Grantees are subject to the policing powers of the City to
adopt and enforce ordinances necessary to the health, safety and welfare of the public.
All Grantees shall comply with all Applicable Laws enacted by the City pursuant to that
power.
d. No Grantee shall be relieved of its obligation to comply with any of the
provisions of this Ordinance or any Franchise granted pursuant to this Ordinance by
reason of any failure of the City to enforce prompt compliance.
• e. This Ordinance and any Franchise granted pursuant to this Ordinance
shall be construed and enforced in accordance with the substantive laws of the City,
State of Minnesota and applicable federal laws, including the Cable Act.
f. This Ordinance together with any Franchise granted hereunder shall
comply with the Minnesota franchise standards contained in Minnesota Statutes Section
238.084.
g. Grantee and the City shall conform to state laws and rules regarding cable
communications not later than one year after they become effective, unless otherwise
stated, and shall conform to federal laws and regulations regarding cable
communications as they become effective.
SECTION 1.8., FRANCHISE NON -TRANSFERABLE.
a. Grantee shall not voluntarily or involuntarily, by operation of law or
otherwise, sell, assign, transfer, lease, sublet or otherwise dispose of, in whole or in
part, the Franchise and/or Cable System or any of the rights or privileges granted by the
Franchise, without the prior written consent of the Council and then only upon such
terms and conditions as may be prescribed by the Council with regard to the proposed
transferee's legal, technical and financial qualifications, which consent shall not be
unreasonably denied or delayed. Any attempt to sell, assign, transfer, lease, sublet or
otherwise dispose of all or any part of the Franchise and/or Cable System or Grantee's
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rights therein without the prior written consent of the Council shall be null and void and
shall be grounds for termination of the Franchise pursuant to Section 1.30 hereof and
the applicable provisions of any Franchise Agreement.
b. Without limiting the nature of the events requiring the Council's approval
under this Section, the following events shall be deemed to be a sale, assignment or
other transfer of the Franchise and/or Cable System requiring compliance with this
Section: (i) the sale, assignment or other transfer of all or a majority of Grantee's assets
or the assets comprising the Cable System to any Person; (ii) the merger of the Grantee
or any of its parents with or into another Person (including the merger of Grantee or any
parent with or into any parent or subsidiary corporation or other Person); (iii) the
consolidation of the Grantee or any of its parents with any other Person; (iv) the creation
of a subsidiary corporation or other entity; (v) the sale, assignment or other transfer of
capital stock or partnership, membership or other equity interests in Grantee or any of
its parents by one or more of its existing shareholders, partners, members or other
equity owners so as to create a new Controlling Interest in Grantee; (vi) the issuance of
additional capital stock or partnership, membership or other equity interest by Grantee
or any of its parents so as to create a new Controlling Interest in Grantee; and (vii) the
entry by the Grantee into an agreement with respect to the management or operation of
the Grantee, any of Grantee's parents and/or the System or the subsequent amendment
thereof. The term "Controlling Interest" as used herein is not limited to majority equity
ownership of the Grantee, but also includes actual working control over the Grantee,
any parent of Grantee and/or the System in whatever manner exercised.
• C. Grantee shall notify Grantor in writing of any foreclosure or any other
judicial sale of all or a substantial part of the property and assets comprising the Cable
System of the Grantee or upon the termination of any lease or interest covering all or a
substantial part of said property and assets. Such notification shall be considered by
Grantor as notice that a change in control or ownership of the Franchise has taken
place and the provisions under this Section governing the consent of Grantor to such
change in control or ownership shall apply.
d. For the purpose of determining whether it shall consent to such change,
transfer or acquisition of control, Grantor may inquire into the qualifications of the
prospective transferee or controlling party, and Grantee shall assist Grantor in any such
inquiry. In seeking Grantor's consent to any change of ownership or control, Grantee
shall have the responsibility of insuring that the transferee completes an application in
form and substance reasonably satisfactory to Grantor, which application shall include
the information required under this Ordinance and Applicable Laws. The transferee
shall be required to establish to the satisfaction of the City that it possesses the legal,
technical and financial qualifications to operate and maintain the System and comply
with all Franchise requirements for the remainder of the term of the Franchise. If, after
considering the legal, financial, character and technical qualities of the transferee and
determining that they are satisfactory, the Grantor finds that such transfer is acceptable,
the Grantor shall permit such transfer and assignment of the rights and obligations of
such Franchise as may be in the public interest. The consent of the Grantor to such
transfer shall not be unreasonably denied.
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e. Any financial institution having a security interest in any and all of the
• property and assets of Grantee as security for any loan made to Grantee or any of its
affiliates for the construction and/or operation of the Cable System must notify the
Grantor that it or its designee satisfactory to the Grantor shall take control of and
operate the Cable Television System, in the event of a default in the payment or
performance of the debts, liabilities or obligations of Grantee or its affiliates to such
financial institution. Further, said financial institution shall also submit a plan for such
operation of the System within thirty (30) days of assuming such control that will insure
continued service and compliance with all Franchise requirements during the term the
financial institution or its designee exercises control over the System. The financial
institution or its designee shall not exercise control over the System for a period
exceeding one (1) year unless extended by the Grantor in its discretion and during said
period of time it shall have the right to petition the Grantor to transfer the Franchise to
another Grantee.
f. In addition to the aforementioned requirements in this Section 1.8, the City
and Grantee shall, at all times, comply with the requirements of Minnesota Statutes
Section 238.083 regarding the sale or transfer of a franchise and with all other
Applicable Laws.
SECTION 1.9. CITY'S RIGHT TO PURCHASE SYSTEM.
The City shall have a right of first refusal to purchase the Cable System in the
• event the Grantee receives a bona fide offer to purchase the Cable System from any
Person. Bona fide offer as used in this Section means a written offer which has been
accepted by Grantee, subject to the City's rights under this Ordinance and any
Franchise Agreement. The price to be paid by the City shall be the amount provided for
in the bona fide offer, including the same terms and conditions as the bona fide offer.
The City shall notify Grantee of its decision to purchase within sixty (60) days of the
City's receipt from Grantee of a copy of the written bona fide offer and such other
relevant and pertinent information as the City shall deem appropriate.
SECTION 1.10. PURCHASE BY CITY UPON EXPIRATION OR
REVOCATION.
•
Consistent with Section 627 of the Cable Act and all other Applicable Laws, at
the expiration, cancellation, revocation or termination of any Franchise Agreement, the
City shall have the option to purchase, condemn or otherwise acquire and hold the
Cable System.
SECTION 1.11. EMERGENCY USE.
In the case of any emergency or disaster, Grantee shall, upon request of the City
or emergency management personnel, make its Cable System and related facilities
available to the City for emergency use.
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SECTION 1.12. GEOGRAPHICAL COVERAGE.
a. Grantee shall design, construct and maintain the Cable Television System
to have the capability to pass every dwelling unit in the Service Area, subject to any
Service Area line extension requirements of the Franchise Agreement.
b. After service has been established by activating trunk and/or distribution
cables for any Service Area, Grantee shall provide Cable Service to any requesting
Subscriber within that Service Area within thirty (30) days from the date of request,
provided that the Grantee is able to secure access to all rights -of -way necessary to
extend service to such Subscriber within such thirty (30) day period on reasonable
terms and conditions.
C. No Subscriber shall be refused service arbitrarily. However, for unusual
circumstances such as the existence of more than 150 feet of distance from distribution
cable to connection of service to Subscribers, or a density equivalent of less than 40
homes per mile, service may be made available on the basis of a capital contribution in
aid of construction, including cost of material, labor and easements. For the purpose of
determining the amount of capital contribution in aid of construction to be borne by the
Grantee and Subscribers in the area in which service may be expanded, the Grantee
will contribute an amount equal to the construction and other costs per mile, multiplied
by a fraction whose numerator equals the actual number of residences per mile, and
whose denominator equals 40 residences. Subscribers who request service hereunder,
• will bear the remainder of the construction and other costs on a pro rata basis. The
Grantee may require that the payment of the capital contribution in aid of construction
borne by such potential subscribers be paid in advance.
d. Grantee shall immediately bury all drops to subscribers dwellings when
required by local construction standards. In the event the ground is frozen or otherwise
unsuitable to permit immediate burial, Grantee shall be permitted to delay such burial
until the ground becomes suitable for burial and shall complete said burial no later than
June 1st of each year.
SECTION 1.13. NONEXCLUSIVE FRANCHISE.
Any Franchise granted under this Ordinance shall be nonexclusive. The Grantor
specifically reserves the right to grant, at any time, such additional Franchises for a
Cable Television System as it deems appropriate on terms and conditions no more
favorable nor less burdensome than those imposed in previously granted Franchises,
subject to Applicable Laws. The Grantor also specifically reserves the right to operate a
municipal Cable Television System pursuant to Applicable Laws.
SECTION 1.14. MULTIPLE FRANCHISES.
a. Grantor may grant one or more Franchises for a Service Area. Grantor
• may, in its sole discretion, limit the number of Franchises granted, based upon, but not
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necessarily limited to, the requirements of Applicable Laws and specific local
considerations; such as:
1. The capacity of the public rights -of -way to accommodate multiple
coaxial cables in addition to the cables, conduits and pipes of the utility systems,
such as electrical power, telephone, gas and sewage.
2. The impact on the City of having multiple Franchises.
3. The disadvantages that may result from Cable System competition,
such as the requirement for multiple pedestals on residents' property, and
the disruption arising from numerous excavations of the rights -of -way.
4. The financial capabilities of the applicant and its guaranteed
commitment to make necessary investment to erect, maintain and operate the
proposed System for the duration of the Franchise term.
b. Each Grantee awarded a Franchise to serve the entire City shall offer
service to all residences in the City, in accordance with construction and service
schedules mutually agreed upon between Grantor and Grantee, and consistent with
Applicable Laws.
C. The City may, in its sole discretion, require developers of new residential
housing with underground utilities to provide conduit to accommodate cables for a
minimum of two (2) Cable Systems in accordance with the provisions of Section 1.21(d).
d. Grantor may require that any new Grantee be responsible for its own
underground trenching and the costs associated therewith, if, in Grantor's opinion, the
rights -of -way in any particular area cannot feasibly and reasonably accommodate
additional cables.
e. Any additional Franchise granted by the City to provide Cable Service in a
part of the City in which a Franchise has already been granted and where an existing
Grantee is providing service shall require the new Grantee to provide service throughout
its Service Area within a reasonable time and in a sequence which does not
discriminate against lower income residents.
SECTION 1.15. FRANCHISE APPLICATIONS.
Any Person, other than the City unless specifically required by Applicable Laws,
desiring an initial Franchise for a Cable Television System shall file an application with
the City. A reasonable nonrefundable application fee in an amount established by the
City shall accompany the initial application. Such application fee shall not be deemed to
be "franchise fees" within the meaning of Section 622 of the Cable Act (47 U.S.C. §
5421/, Und suc" paymcntc churl not be deemed to be (i) "payments in kind" or any
involuntary payments chargeable against the Franchise Fees to be paid to the City by
Grantee pursuant to Section 1.20 hereof and applicable provisions of a Franchise
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•
Agreement, or (ii) part of the Franchise Fees to be paid to the City by Grantee pursuant
to Section 1.20 hereof and applicable provisions of a Franchise Agreement.
An application for an initial Franchise for a Cable Television System shall be in a
form reasonably acceptable to Grantor and shall contain, where applicable:
a. A statement as to the proposed Service Area.
b. A resume of prior history of applicant, including the legal, technical and
financial expertise of applicant in the cable television field.
C. A list of the general and limited partners of the applicant, if a partnership,
or the shareholders, if a corporation.
d. The percentage ownership of the applicant of each of its partners,
shareholders or other equity owners;
e. A list of officers, directors and managing employees of applicant or its
general partner, as applicable, together with a description of the background of each
such Person;
f. The names and addresses of any parent or subsidiary of applicant or any
other business entity owning or controlling applicant in whole or in part, or owned or
controlled in whole or in part by applicant;
g. A current financial statement of applicant verified by an audit or otherwise
certified to be true, complete and correct to the reasonable satisfaction of the City;
h. Proposed construction and service schedule.
i. Any additional information that the City deems applicable.
SECTION 1.16. CONSIDERATION OF INITIAL APPLICATIONS.
a. Upon receipt of any application for an initial Franchise, the City
Administrator shall prepare a report and make his or her recommendations respecting
such application to the City Council.
b. A public hearing shall be set prior to any initial Franchise grant, at a time
and date approved by the Council. Within thirty (30) days after the close of the hearing,
the Council shall make a decision based upon the evidence received at the hearing as
to whether or not the Franchise(s) should be granted, and, if granted subject to what
conditions. The Council may grant one (1) or more initial Franchises, or may decline to
grant any Franchise.
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SECTION 1.17. FRANCHISE RENEWAL.
• Franchise renewals shall be in accordance with Applicable Laws. Grantor and
Grantee, by mutual consent, may enter into renewal negotiations at any time during the
term of the Franchise. To the extent consistent with Applicable Laws, a reasonable
non-refundable renewal application fee in an amount established by the City may be
required to accompany any renewal application. Such application fee shall not be
deemed to be "franchise fees" within the meaning of Section 622 of the Cable Act (47
U.S.C. § 542), and such payments shall not be deemed to be (i) "payments in kind" or
any involuntary payments chargeable against the Franchise Fees to be paid to the City
by Grantee pursuant to Section 1.20 hereof and applicable provisions of a Franchise
Agreement, or (ii) part of the Franchise Fees to be paid to the City by Grantee pursuant
to Section 1.20 hereof and applicable provisions of a Franchise Agreement.
SECTION 1.18. CONSUMER PROTECTION AND SERVICE
STANDARDS.
Grantee shall maintain a convenient local customer service or bill payment
location for receiving Subscriber payments. Grantee shall also maintain or arrange for a
location where equipment can be dropped -off or exchanged as is necessary or, in the
alternative, establish a system for having Subscriber equipment picked -up at the
Subscriber residence free -of -charge. Grantee shall also provide the necessary
facilities, equipment and personnel to comply with the following consumer protection
standards under Normal Operating Conditions:
a. Cable System office hours and telephone availability:
1. Grantee will maintain a local, toll -free or collect call telephone
access line which will be available to its Subscribers 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.
2. 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 then
ninety (90%) percent of the time under Normal Operating Conditions, measured
• on a quarterly basis.
175338/1 12
3. The Grantee will 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.
4. Under Normal Operating Conditions, the customer will receive a
busy signal less than three percent (3%) of the time.
5. Customer service center and bill payment locations will be open at
least during Normal Business Hours.
b. Installations outages and service calls. Under Normal Operating
Conditions, each of the following four standards will be met no less than ninety-five
percent (95%) of the time measured on a quarterly basis:
1. 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 125 feet from the existing distribution system. Grantee has agreed
to 150 feet at Section 1.12(c).
2. Excluding conditions beyond the control of Grantee, Grantee will
begin working on "service interruptions" promptly and in no event later than 24
hours after the interruption becomes known. The Grantee must begin actions to
correct other service problems the next business day after notification of the
service problem.
3. The "appointment window" alternatives for Installations, service
calls, and other Installation activities will be either a specific time or, at maximum,
a four-hour time block during Normal Business Hours. (The Grantee may
schedule service calls and other Installation activities outside of Normal Business
Hours for the express convenience of the customer.)
4. Grantee may not cancel an appointment with a customer after the
close of business on the business day prior to the scheduled appointment.
5. 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 prior to the time of the scheduled appointment. The
appointment will be rescheduled, as necessary, at a time which is convenient for
the customer.
C. Communications between Grantee and Subscribers:
1. Notifications to Subscribers:
(i) The Grantee shall provide written information on each of the
following areas at the time of Installation of service, at least annually to all
• Subscribers, and at any time upon request:
175338/1 13
(A) Products and services offered;
(B) Prices and options for programming services and
conditions of subscription to programming and other services;
(C) Installation and service maintenance policies;
(D) Instructions on how to use the Cable Service;
(E) Channel positions of the programming carried on the
System; and
(F) Billing and complaint procedures, including the
address and telephone number of the Grantee's office within the
Service Area.
(ii) Customers 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 changes are within the control of the
Grantee. In addition, the Grantee shall notify subscribers thirty (30) days
in advance of any significant changes in the other information required by
this Section 1.18(c)(1)(i). Grantee shall not be required to provide prior
notice of any rate changes as a result of a regulatory fee, franchise fee, or
other fees, tax, assessment or charge of any kind imposed by any federal
agency, state or franchising authority on the transaction between the
operator and the subscriber.
2. Billing:
(i) Bills will be clear, concise and understandable. Bills must be
fully itemized, with itemizations including, but not limited to, basic and
premium service charges and equipment charges. Bills will also clearly
delineate all activity during the billing period, including optional charges,
rebates and credits.
(ii) In case of a billing dispute, the Grantee must respond to a
written complaint from a Subscriber within thirty (30) days.
3. 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 the Grantee if
service is terminated.
175338/1 14
4. Credits: Credits for service will be issued no later than the
customer's next billing cycle following the determination that a credit is
warranted.
Grantee shall provide City with a quarterly customer service compliance report
specific to the system serving the City of Chanhassen in a form mutually agreed to,
which report shall, at a minimum, describe in detail Grantee's compliance with each and
every term and provision of this Section 1.18 and any additional customer service
requirements contained in Grantee's Franchise and shall outline and summarize all
subscriber complaints received by Grantee during the preceding calendar quarter.
SECTION 1.19. RATE REGULATION.
The City reserves the right to regulate rates for Basic Cable Service and any
other services offered over the Cable System, to the extent not prohibited by Applicable
Laws. The Grantee shall be subject to the rate regulation provisions provided for
herein, and those of the Federal Communications Commission (FCC) at 47 C.F.R., Part
76, Subpart N, as the same may be amended from time to time. The City shall follow
the rules relating to cable rate regulation promulgated by the FCC at 47 C.F.R., Part 76,
Subpart N, as the same may be amended from time to time.
SECTION 1.20. FRANCHISE FEE.
a. Following the issuance and acceptance of a Franchise, the Grantee shall
ofpay to the Grantor a Franchise Fee in the amount set forth in the Franchise Agreement.
b. The Grantor, on an annual basis, shall be furnished a statement within
ninety (90) days of the close of the calendar year, certified by the Company controller or
chief financial officer, reflecting the total amounts of Gross Revenues and all payments,
and computations of the Franchise Fee for the previous calendar year. Upon ten (10)
days prior written notice, Grantor shall have the right to conduct an independent audit of
Grantee's records. If such audit indicates a Franchise Fee underpayment of five
percent (5%) or more, the Grantee shall assume all of City's out-of-pocket costs
associated with the conduct of such an audit and shall remit to Grantor all applicable
Franchise Fees due and payable together with interest thereon at the lesser of the
maximum rate permitted by Applicable Laws or 18% per annum.
C. Except as otherwise provided by law, no acceptance of any payment by
the Grantor shall be construed as a release or as an accord and satisfaction of any
claim the Grantor may have for further or additional sums payable as a Franchise Fee
under this Ordinance or any Franchise Agreement or for the performance of any other
obligation of the Grantee.
d. In the event that any Franchise Fee payment or recomputed amount is not
made on or before the dates specified in the Franchise Agreement, Grantee shall pay
as additional compensation an interest charge, computed from such due date, at an
•
175338/1 15
annual rate equal to the lesser of the maximum rate permitted by Applicable Laws or
• 18% per annum during the period for which payment was due.
e. Franchise Fee payments shall be made in accordance with the schedule
indicated in the Franchise Agreement.
SECTION 1.21. DESIGN AND CONSTRUCTION REQUIREMENTS.
a. Grantee shall not construct any Cable System facilities until Grantee has
secured the necessary permits from Grantor, or other applicable Governmental
Authorities.
b. In those areas of the City where transmission or distribution facilities of all
the public utilities providing telephone and electric power service are underground, the
Grantee likewise shall construct, operate and maintain its transmission and distribution
facilities therein underground.
C. In those areas of the City where Grantee's cables are located on the
above -ground transmission or distribution facilities of the public utility providing
telephone or electric power service, and in the event that the facilities of both such
public utilities subsequently are placed underground, then the Grantee likewise shall
construct, operate and maintain its transmission and distribution facilities underground,
at Grantee's cost. Certain of Grantee's equipment, such as pedestals, amplifiers and
• power supplies, which normally are placed above ground, may continue to remain in
above -ground closures, however, the City specifically reserves all of its rights to
approve above -ground or underground locations for pedestals subject to Applicable
Laws.
d. In new residential developments in which all the electric power and
telephone utilities are underground, the City may, in its sole discretion, require that the
following procedure apply with respect to access to and utilization of underground
easements:
1. The developer shall be responsible for contacting and surveying all
Grantees to ascertain which Grantees desire (or, pursuant to the terms and
provisions of this Ordinance and any Franchise Agreement, may be required)
to provide Cable Service to that development. The developer may establish a
reasonable deadline to receive responses from Grantees. The final development
map shall indicate the Grantees which have agreed to serve the development.
2. If one (1) or more Grantees wish to provide service within all or part
of the development, they shall be accommodated in the joint utilities trench on a
nondiscriminatory shared basis. If fewer than two (2) Grantees indicate interest,
the developer shall provide conduit to accommodate a minimum of two (2) sets of
cable television cables and dedicate to the City any initially unoccupied conduit.
The developer shall be entitled to recover the cost of such initially unoccupied
•
175338/1 16
conduit in the event that Grantor subsequently leases or sells occupancy or use
• rights to any Grantee.
3. The developer shall provide at least ten (10) business days notice
of the date that utility trenches will be open to the Grantees that have agreed to
serve the development. When the trenches are open, such Grantees shall have
two (2) business days to begin the Installation of their cables, and five (5)
business days after beginning Installation to complete Installation.
4. The final development map shall not be approved until the
developer submits evidence that:
A. It has notified each Grantee that underground utility trenches
are to open as of an estimated date, and that each Grantee will be allowed
access to such trenches, including trenches from proposed Streets to
individual homes or home sites, on specified nondiscriminatory terms and
conditions; and
B. It has received a written notification from each Grantee that
the Grantee intends to install its facilities during the open trench period on
the specified terms and conditions, or such other terms and conditions as
are mutually agreeable to the developer and Grantee, or has received no
reply from a Grantee within ten (10) days after its notification to such
• Grantee, in which case the Grantee will be deemed to have waived its
opportunity to install its facilities during the open trench period.
5. Sharing the joint utilities trench shall be subject to compliance with
State regulatory agency and utility standards. If such compliance is not possible,
the developer shall provide a separate trench for the cable television cables, with
the entire cost shared among the participating Grantee(s). With the concurrence
of the developer, the affected utilities and the Grantees, alternative Installation
procedures, such as the use of deeper trenches, may be utilized, subject to the
requirements of Applicable Laws.
6. Any Grantee wishing to serve an area where the trenches have
been closed shall be responsible for its own trenching and associated costs and
shall repair all property to the condition which existed prior to such trenching.
e. Construction Codes and Permits.
1. Grantee shall obtain all necessary permits from City before
commencing any construction upgrade or extension of the System, including the
opening or disturbance of any Street, or private or public property within City.
Grantee shall strictly adhere to all state and local laws and building and zoning
codes currently or hereafter applicable to construction, operation or maintenance
of the System in City and give due consideration at all times to the aesthetics of
• the property.
175338/1 17
2. The City shall have the right to inspect all construction or
• installation work performed pursuant to the provisions of the Franchise and to
make such tests at its own expense as it shall find necessary to ensure
compliance with the terms of the Franchise and applicable provisions of local,
state and federal law.
f. Repair of Streets and Property. Any and all Streets or public property or
private property, which are disturbed or damaged during the construction, repair,
replacement, relocation, operation, maintenance or reconstruction of the System shall
be promptly and fully restored by Grantee, at its expense, to a condition as good as that
prevailing prior to Grantee's work, as approved by City in the case of Streets and other
public property. If Grantee shall fail to promptly perform the restoration required herein,
City shall have the right to put the streets, public, or private property back into good
condition. City reserves its rights to pursue reimbursement for such restoration from
Grantee.
g. Conditions on Street Use.
1. Nothing in this Franchise shall be construed to prevent City from
constructing, maintaining, repairing or relocating sewers; grading, paving,
maintaining, repairing, relocating and/or altering any Street; constructing, laying
down, repairing, maintaining or relocating any water mains; or constructing,
maintaining, relocating, or repairing any sidewalk or other public work.
• 2. All System transmission and distribution structures, lines and
equipment erected by the Grantee within City shall be located so as not to
obstruct or interfere with the proper use of Streets, alleys and other public ways
and places, and to cause minimum interference with the rights of property
owners who abut any of the said Streets, alleys and other public ways and
places, and not to interfere with existing public utility installations. The Grantee
shall furnish to and file with City Administrator the maps, plats, and permanent
records of the location and character of all facilities constructed, including
underground facilities, and Grantee shall file with City updates of such maps,
plats and permanent records annually if changes have been made in the System.
3. If at any time during the period of this Franchise City shall elect to
alter, or change the grade or location of any Street, alley or other public way, the
Grantee shall, at its own expense, upon reasonable notice by City, remove and
relocate its poles, wires, cables, conduits, manholes and other fixtures of the
System, and in each instance comply with the standards and specifications of
City. If City reimburses other occupants of the Street, Grantee shall be likewise
reimbursed.
4. The Grantee shall not place poles, conduits, or other fixtures of
System above or below ground where the same will interfere with any gas,
electric, telephone, water or other utility fixtures and all such poles, conduits, or
•
175338/1 18
other fixtures placed in any Street shall be so placed as to comply with all
• requirements of City.
5. The Grantee shall, on request of any Person holding a moving
permit issued by City, temporarily move its wires or fixtures to permit the moving
of buildings with the expense of such temporary removal to be paid by the
Person requesting the same, and the Grantee shall be given not less than ten
(10) days advance notice to arrange for such temporary changes.
SECTION 1.22. TECHNICAL STANDARDS.
a. The Grantee shall construct, install, operate and maintain its System in a
manner consistent with all Applicable Laws and the Federal Communications
Commission technical standards, and any standards set forth in its Franchise
Agreement. In addition, the Grantee shall provide to the Grantor, upon request, a copy
of the results of the Grantee's periodic proof of performance tests conducted pursuant to
Federal Communications Commission standards and guidelines.
b. Failure to comply with the FCC's technical standards shall entitle the City
to utilize the procedures of Section 1.30 hereof.
C. All construction practices shall be in accordance with all applicable
sections of the Occupational Safety and Health Act of 1970, as amended, as well as all
• other Applicable Laws.
d. All Installation of electronic equipment at the time of installation shall be of
a permanent nature, durable and installed in accordance with the provisions of the
National Electrical and Safety Code and National Electrical Code, as amended, and as
said code may from time to time be amended.
e. Antennae and their supporting structures (towers) shall be painted,
lighted, erected and maintained in accordance with all applicable rules and regulations
of the Federal Aviation Administration and all other Applicable Laws.
f. All of Grantee's plant and equipment, including, but not limited to, the
antenna site, headend and distribution system, towers, house connections, structures,
poles, wire, coaxial cable, fixtures and appurtenances shall be installed, located,
erected, constructed, reconstructed, replaced, removed, repaired, maintained and
operated in accordance with good engineering practices, performed by experienced
maintenance and construction personnel so as not to endanger or interfere with
improvements the City may deem appropriate to make or to interfere in any manner with
the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or
vehicular traffic.
g. Grantee shall at all times employ ordinary care and shall install and
maintain in use commonly accepted methods and devices preventing failures and
• accidents which are likely to cause damage, injury or nuisance to the public.
175338/1 19
SECTION 1.23. TRIMMING OF TREES.
• Grantee shall have the authority to trim trees, in accordance with all applicable
utility restrictions, ordinance and easement restrictions, upon and hanging over Streets
and public places of the City so as to prevent the branches of such trees from coming in
contact with the wires and cables of Grantee. City representatives shall have authority
to supervise and approve all trimming of trees conducted by Grantee.
SECTION 1.24. USE OF GRANTEE FACILITIES.
The City shall, at its own expense, have the right to install and maintain upon the
poles and within the underground pipes and conduits of Grantee, any wires and fixtures
desired by the City to the extent that such installation and maintenance does not
interfere with existing operations of Grantee.
SECTION 1.25. PROGRAMMING DECISIONS.
All programming decisions shall be at the sole discretion of Grantee; provided,
however, that any change in the mix, quality or level of service pursuant to 47 U.S.C.
§ 545(a) shall require the prior approval of the City. Such approval by the City shall not
be unreasonably withheld.
SECTION 1.26. INDEMNIFICATION.
Grantee shall indemnify, defend and hold the City, its officers, boards,
commissions, agents and employees (collectively the "Indemnified Parties") harmless
from and against any and all lawsuits, claims, causes of action, actions, liability,
demands, damages, judgments, settlements, losses, expenses (including reasonable
attorneys' fees) and costs of any nature that any of the Indemnified Parties may -at any
time, directly or indirectly, suffer, sustain or incur arising out of, based upon or in any
way connected with the grant of a Franchise to Grantee, the operation of Grantee's
System and/or the acts and/or omissions of Grantee or its agents or employees,
whether or not pursuant to the Franchise. This indemnity shall apply, without limitation,
to any action or cause of action for invasion of privacy, defamation, antitrust, errors and
omissions, theft, fire, violation or infringement of any copyright, trademark, trade names,
service mark, patent, or any other right of any Person, whether or not any act or
omission complained of is authorized, allowed or prohibited by this Ordinance or any
Franchise Agreement, but shall exclude any claim or action arising out of the acts or
omissions of the Indemnified Parties or related to any City programming or other access
programming for which the Grantee is not legally responsible.
SECTION 1.27. INSURANCE.
Within sixty (50) days following the grant of a Franchise, the Grantee shall obtain,
pay all premiums for and make available to the City at its request copies of the following
• insurance policies:
175338/1 20
a. A general comprehensive liability insurance policy insuring, indemnifying,
• defending and saving harmless the Indemnified Parties from any and all claims by any
Person whatsoever on account of injury to or death of a Person or Persons occasioned
by the operations of the Grantee under any Franchise granted hereunder, or alleged to
have been so caused or occurred with a minimum coverage of One Million Dollars
($1,000,000) for personal injury or death of one Person, and Three Million Dollars
($3,000,000) for personal injury or death of any two (2) or more Persons in any one
occurrence. The policy limits provided for in this Section 1.27(a) shall be reviewed and
adjusted by the city as necessary not more than once every three (3) years.
b. Property damage insurance for property damage occasioned by the
operation of Grantee under any Franchise granted pursuant to this Ordinance, or
alleged to have been so caused or occurred, with minimum coverage of One Million
Dollars ($1,000,000) for property damage to the property of any one Person and Three
Million Dollars ($3,000,000) for property damage to the property of two or more Persons
in any one occurrence. The policy limits provided for in this Section 1.27(b) shall be
reviewed and adjusted by the city as necessary not more than once every three (3)
years.
C. Workers Compensation Insurance as provided by Applicable Laws.
d. All insurance policies called for herein shall be in a form satisfactory to the
City 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," and shall require thirty (30) days written notice of
any cancellation to both the City and the Grantee. The Grantee shall, in the event of
any such cancellation notice, obtain, pay all premiums for, and file with the City, written
evidence of the issuance of replacement policies within thirty (30) days following receipt
by the City or the Grantee of any notice of cancellation.
11
e. If Grantee sells or transfers the Cable System, or in the event of
expiration, termination or revocation of a Franchise, insurance tail coverage shall be
purchased and filed with the City for the then applicable amounts, providing coverage
for the time periods according to applicable statutes of limitation, insurance for any
issues attributable to the period Grantee held its Franchise.
f. It shall be the obligation of Grantee to promptly notify the City of any
pending or threatened litigation that would be likely to affect the Indemnified Parties.
SECTION 1.28. RECORDS REQUIRED AND GRANTOR'S RIGHT TO
INSPECT.
a. Grantee shall at all times maintain the following records and information
relating specifically to the Cable System serving the City as identified by the FCC
Community Unit Identifier ("CUID") as opposed to a regional'cable system or other
operating unit of Grantee:
175338/1 21
1. A full and complete set of plans, records and "as -built" drawings
and/or maps in an electronic form agreed to by City and Grantee which shall be
updated annually showing the location of the Cable Television System installed
or in use in the City, exclusive of Subscriber service drops and equipment
provided in Subscribers' homes.
2. If requested by Grantor, a summary of service calls, identifying the
number, general nature- and disposition of such calls, on a monthly basis. A
summary of such service calls shall be submitted to the Grantor within thirty (30)
days following its request in a form reasonably acceptable to the Grantor.
b. Upon reasonable notice, and during Normal Business Hours, Grantee
shall permit examination by any duly authorized representative of the Grantor, of all
Franchise property and facilities, together with any appurtenant property and facilities of
Grantee situated within or without the City, and all records relating to the Franchise,
provided they are necessary to enable the Grantor to carry out its regulatory
responsibilities under Applicable Laws, this Ordinance and the Franchise Agreement.
Grantee shall have the right to be present at any such examination.
C. The City shall also have the right to inspect, upon twenty-four (24) hours
written notice, at any time during Normal Business Hours at Grantee's office, all books,
records, maps, plans, financial statements, service complaint logs, performance test
results, records of request for service, and other like materials of Grantee.
• d. Copies of all petitions, applications, communications and reports
submitted by Grantee or on behalf of or relating to Grantee to the Federal
Communications Commission, Securities and Exchange Commission, or any other
Governmental Authority having jurisdiction with respect to any matters affecting the
Cable System authorized pursuant to this Ordinance and any Franchise shall, upon
request, be submitted, upon request to the City. Copies of responses from the
Governmental Authority to Grantee shall likewise be furnished to the City.
•
SECTION 1.29. ANNUAL REPORTS.
a. Grantee shall, upon request, within ninety (90) days of each calendar year
end, submit a written end of the year report to Grantor with respect to the preceding
calendar year containing the following information:
1. A Summary of the previous year's (or in the case of the initial
reporting year, the initial year's) activities in development of the Cable System,
including but not limited to, services commenced or discontinued during the
reporting year;
2. A list of Grantee's officers, members of its board of directors, and
other principals of Grantee;
175338/1 22
3. A list of stockholders or other equity investors holding five percent
• (5%) or more of the voting interest in Grantee; and
4. Information as to the number of Subscribers, additional television
outlets, and the number of basic and pay service Subscribers.
b. All reports required under this Ordinance, except those required by law to
be kept confidential, shall be available for public inspection in the Grantee's offices
during Normal Business Hours.
C. All reports and records required under this Ordinance shall be furnished at
the sole expense of Grantee, except as otherwise provided in this Ordinance or the
Franchise agreement.
SECTION 1.30. FRANCHISE VIOLATION.
a. In the event Grantor believes that Grantee has breached or violated any
material provision of this Ordinance or a Franchise granted hereunder, Grantor may act
in accordance with the following procedures:
b. Grantor may notify Grantee of the alleged violation or breach and demand
that Grantee cure the same within a reasonable time, which shall not be less than ten
(10) days in the case of an alleged failure of the Grantee to pay any sum or other
amount due the Grantor under this Ordinance or the Grantee's Franchise and thirty (30)
• days in all other cases. If Grantee fails either to cure the alleged violation or breach
within the time prescribed or to commence correction of the violation or breach within
the time prescribed and thereafter diligently pursue correction of such alleged violation
or breach, the Grantor shall then give written notice of not less than fourteen (14) days
of a public hearing to be held before the Council. Said notice shall specify the violations
or breaches alleged to have occurred. At the public hearing, the Council shall hear and
consider relevant evidence and thereafter render findings and its decision. In the event
the Council finds that a material violation or breach exists and that Grantee has not
cured the same in a satisfactory manner or has not diligently commenced to cure of
such violation or breach after notice thereof from Grantor and is not diligently
proceeding to fully cure such violation or breach, the Council may impose penalties from
any security fund required in a Franchise Agreement or may terminate Grantee's
Franchise and all rights and privileges of the Franchise. If the City chooses to terminate
Grantee's Franchise, the following additional procedure shall be followed:
1. The City shall provide Grantee with written notice of the City's intention to
terminate the Franchise and specify in detail the reason or cause for the
proposed termination. The City shall allow grantee a minimum of fifteen
(15) days subsequent to receipt of the notice in which to cure the default.
2. Grantee shall be provided with an opportunity to be heard at a regular or
special meeting of City prior to any final decision of City to terminate
Grantee's Franchise.
175338/1 23
3. In the event that City determines to terminate Grantee's franchise, the
• Grantee shall have an opportunity to appeal said decision in accordance
with all Applicable Laws.
4. If a valid appeal is filed, the Franchise shall remain in full force and affect
while said appeal is pending, unless the term of the Franchise sooner
expires.
SECTION 1.31. FORCE MAJEURE; GRANTEE'S INABILITY TO
PERFORM.
In the event Grantee's performance of any of the terms, conditions or obligations
required by this Ordinance or a Franchise granted hereunder is prevented by a cause or
event not within Grantee's control, such inability to perform shall be deemed excused for
the period of such inability and no penalties or sanctions shall be imposed as a result
thereof. For the purpose of this Section, causes or events not within the control of
Grantee shall include, without limitation, acts of God, strikes, sabotage, riots or civil
disturbances, restraints imposed by order of a governmental agency or court, failure or
loss of utilities, explosions, acts of public enemies, and natural disasters such as floods,
earthquakes, landslides and fires.
SECTION 1.32. ABANDONMENT OR REMOVAL OF FRANCHISE
PROPERTY.
• a. In the event that the use of any property of Grantee within the Franchise
Area or a portion thereof is discontinued for a continuous period of twelve (12) months,
Grantee shall be deemed to have abandoned that property.
•
b. Grantor, upon such terms as Grantor may impose, may give Grantee
permission to abandon, without removing, any System facility or equipment laid, directly
constructed, operated or maintained in, on, under or over the Franchise Area. Unless
such permission is granted or unless otherwise provided in this Ordinance, the Grantee
shall remove all abandoned facilities and equipment upon receipt of written notice from
Grantor and shall restore any affected Street to its former state at the time such facilities
and equipment were installed, so as not to impair its usefulness. In removing its plant,
structures and equipment, Grantee shall refill, at its own expense, any excavation made
by or on behalf of Grantee and shall leave all streets and other public ways and places
in as good condition as that prevailing prior to such removal without materially
interfering with any electrical or telephone cable or other utility wires, poles or
attachments. Grantor shall have the right to inspect and approve the condition of the
streets, public ways, public places, cables, wires, attachments and poles prior to and
after removal. The liability, indemnity and insurance provisions of this Ordinance and
any security fund provided for in the Franchise Agreement shall continue in full force
and effect during the period of removal and until full compliance by Grantee with the
terms and conditions of this Section.
175338/1 24
C. Upon abandonment of any Franchise property in place, the Grantee, if
• required by the Grantor, shall submit to Grantor a bill of sale and/or other an instrument,
satisfactory in form and content to the Grantor, transferring to the Grantor the ownership
of the Franchise property abandoned.
d. At the expiration of the term for which the Franchise is granted, or upon its
earlier revocation or termination, as provided for herein and/or in the Franchise
Agreement, in any such case without renewal, extension or transfer, the Grantor shall
have the right to require Grantee to remove, at its own expense, all above -ground
portions of the Cable Television System from all Streets and public ways within the City
within a reasonable period of time, which shall not be less than one hundred eighty
(180) days.
e. Notwithstanding anything to the contrary set forth in this Ordinance, the
Grantee may, with the consent of the Grantor, abandon any underground Franchise
property in place so long as it does not materially interfere with the use of the Street or
public rights -of -way in which such property is located or with the use thereof by any
public utility or other cable Grantee.
SECTION 1.33. EXTENDED OPERATION AND CONTINUITY OF
SERVICES.
Upon termination or forfeiture of a Franchise, the Grantee shall remove its cable,
• wires, and appliances from the streets, alleys, or other public places within the Service
Area if the City so requests. Failure by the Grantee to remove its cable, wires, and
appliances as referenced herein shall be subject to the requirements of Section 1.32 of
this Ordinance.
SECTION 1.34. RECEIVERSHIP AND FORECLOSURE.
a. A Franchise granted hereunder shall, at the option of Grantor, cease and
terminate one hundred twenty (120) days after appointment of a receiver or receivers,
or trustee or trustees, to take over and conduct the business of Grantee, whether in a
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: (1) such receivers or trustees shall have, within
one hundred twenty (120) days after their election or appointment, fully complied with all
the terms and provisions of this Ordinance and the Franchise granted pursuant hereto,
and the receivers or trustees within said one hundred twenty (120) days shall have
remedied all the defaults and violations under the Franchise and/or this Ordinance or
provided a plan for the remedy of such defaults and violations which is satisfactory to
the Grantor; and (2) such receivers or trustees shall, within said one hundred twenty
(120) days, execute an agreement duly approved by the court having jurisdiction in the
• premises, whereby such receivers or trustees assume and agree to be bound by each
and every term, provision and limitation of the Franchise and this Ordinance.
175338/1 25
b. In the case of a foreclosure or other judicial sale of the Franchise property,
or any material part thereof, Grantor may give notice of termination of any Franchise
granted pursuant to this Ordinance upon Grantee and the successful bidder at such
sale, in which the event the Franchise granted and all rights and privileges of the
Grantee hereunder shall cease and terminate thirty (30) days after such notice has
been given, unless (1) Grantor shall have approved the transfer of the Franchise in
accordance with the provisions of the Franchise and this Ordinance; and (2) such
successful bidder shall have covenanted and agreed with Grantor to assume and be
bound by all terms and conditions of the Franchise.
SECTION 1.35. RIGHTS RESERVED TO GRANTOR.
In addition to any rights specifically reserved to the Grantor by this Ordinance,
the Grantor reserves to itself every right and power which is required to be reserved by
a provision of any ordinance or under the Franchise.
SECTION 1.36. RIGHTS OF INDIVIDUALS.
a. Grantee shall not deny service, deny access, or otherwise discriminate
against Subscribers, Channel users, or general citizens on the basis of race, color,
religion, disability, national origin, age, gender or sexual preference. Grantee shall
comply at all times with all other Applicable Laws, relating to nondiscrimination.
• b. Grantee shall adhere to the applicable equal employment opportunity
requirements of Applicable Laws, as now written or as amended from time to time
including 47 U.S.C. Section 551, Protection of Subscriber Privacy.
C. Neither Grantee, nor any Person, agency, or entity shall, without the
Subscriber's consent, tap or arrange for the tapping, of any cable, line, signal input
device, or Subscriber outlet or receiver for any purpose except routine maintenance of
the System, detection of unauthorized service, polling with audience participating, or
audience viewing surveys to support advertising research regarding viewers where
individual viewing behavior cannot be identified.
d. In the conduct of providing its services or in pursuit of any collateral
commercial enterprise resulting therefrom, Grantee shall take reasonable steps to
prevent the invasion of a Subscriber's or general citizen's right of privacy or other
personal rights through the use of the System as such rights are delineated or defined
by Applicable Laws. Grantee shall not, without lawful court order or other applicable
valid legal authority, utilize the System's interactive two-way equipment or capability for
unauthorized personal surveillance of any Subscriber or general citizen.
e. No cable line, wire, amplifier, converter, or other piece of equipment
owned by Grantee shall be installed by Grantee in the Subscriber's premises, other than
in appropriate easements, without first securing any required consent. If a Subscriber
•requests service, permission to install upon Subscriber's property shall be presumed.
Where a property owner or his or her predecessor was granted an easement including a
175338/1 26
public utility easement or a servitude to another and the servitude by its terms
contemplates a use such as Grantee's intended use, Grantee shall not be required to
service the written permission of the owner for the Installation of cable television
equipment.
f. No signals of a class IV cable communications channel may be
transmitted from a Subscriber terminal for purposes of monitoring individual viewing
patterns or practices without the express written permission of a 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. The written permission must be for a limited period of time not to exceed
one year which is renewal at the option of the Subscriber. No penalty may be invoked
for a Subscribers failure to provide or renew the authorization. The authorization is
revocable at any time by the Subscriber without penalty of any kind. The permission
must be required for each type or classification or class IV cable communications
activity planned.
1. No information or data obtained by monitoring transmission of a
signal from a Subscriber terminal, including but not limited to the lists of the
names and addresses of the Subscribers or lists that identify the viewing habits
of Subscribers may be sold or otherwise made available to any Person other
than to Grantee and its employees for internal business use, or to the Subscriber
who is the subject of that information, unless the Grantee has received specific
written authorization from the Subscriber to make the data available.
2. Written permission from the Subscriber must not be required for the
systems conducting system wide or individually addressed electronic sweeps for
the purpose of verifying system integrity or monitoring for the purpose of billing.
Confidentiality of this information is subject to paragraph 1 above.
3. For purposes of this Section 136, a "class IV cable communications
channel" means a signaling path provided by a System to transmit signals of any
type from a Subscriber terminal to another point in the System.
SECTION 1.37. SEVERABILITY.
If any provision of this Ordinance is held by any Governmental Authority of
competent jurisdiction, to be invalid as conflicting with any Applicable Laws now or
hereafter in effect, or is held by such Governmental Authority to be modified in any way
in order to conform to the requirements of any such Applicable Laws, such provision
shall be considered a separate, distinct, and independent part of this Ordinance, and
such holding shall not affect the validity and enforceability of all other provisions hereof.
In the event that such Applicable Laws are subsequently repealed, rescinded, amended
or otherwise changed, so that the provision hereof which had been held invalid or
modified is no longer in conflict with such laws, said provision shall thereupon return to
•full force and effect and shall thereafter be binding on Grantor and Grantee, provided
that Grantor shall give Grantee thirty (30) days written notice of such change before
175338/1 27
requiring compliance with said provision or such longer period of time as may be
• reasonably required for Grantee to comply with such provision.
•
-0-
PASSED, APPROVED, AND ADOPTED this o?(v 'day of , 1998.
ATTEST:
By: •rj,(,W-
Its: City Administrator
THE CITY OF CHANHASSEN,
MINNESOTA
By: �- �(it (lam c)J
Its:
175338/1 28
CITY OF CHANHASSEN
CARVER AND HENNEPIN COUNTIES, MINNESOTA
CABLE TELEVISION FRANCHISE AGREEMENT AND REGULATORY ORDINANCE
SUMMARY ORDINANCE NO. 280
On May 26, 1998, the City of Chanhassen, Minnesota adopted a Cable Television Regulatory
Ordinance which will govern the operations of the City's current cable television operator, Triax
Cablevision, as well as any other providers which make seek to provide service within the city. The
Regulatory Ordinance addresses general operating requirements for cable television systems, and
includes a procedure to obtain a cable television franchise, consumer protection, and customer service
standards, technical standards, and extension of service to new developments.
The Regulatory Ordinance also addresses several standard operating requirements for cable
television operators including the provision of insurance and indemnification to the city, procedures for
enforcement of the ordinance and any cable television franchise agreement and procedures to be
undertaken to consider a transfer of ownership of the cable operator and renewal of cable televisions
franchises.
The City of Chanhassen, Minnesota also renewed the Cable Television Franchise of Triax
Midwest Associates, L. P., pursuant to applicable Minnesota State Laws. The term of the franchise
shall be for a period of fifteen (15) years and the City shall receive from Triax a franchise fee of Five
Percent (5%) of Triax's gross revenues. The City will also receive public, educational, and
governmental access facilities and equipment as more full described in Exhibit E to the agreement.
The Franchise Agreement requires Triax to rebuild its cable system within 18 months to
provide up to 79 channels of programming with the capability to provide advanced data services. The
cable system will use fiber optic technology to improve signal quality and reliability as well as increase
the number of available channels.
A complete copy of the Regulatory Ordinance and Franchise Agreement are on file with the
City Clerk at 690 City Center Drive, Chanhassen, MN 55317.
Passed and adopted by the Chanhassen City Council this 26th day of May, 1998.
Don Ashworth
City Clerk/Manager
(Published in the Chanhassen Villager on June 25, 1998)
CITY OF CHANHASSEN ,
CARVER AND HENNEPIN
WUN UK - M ;
"
CABLE T' J�V� i
AGRBB Al~ID RBOULA Y
ORDINANCE
SUr1 KARY ORDINANCE NO. 280
On May 26, 19", the City of
Chanhassen, Minnesota adopted a Cable
Television Regulatory Ordinance which
will govern the operations of the City's
current cable television operator, Triax
Cablevision, as well as any other, providers
which make seek to provide service within
the city. The Regulatory Ordinance ad-
dresses general operating requirements for
cable television systems, and includes a
procedure to obtain a cable television fran-
chise, consumer protection, and customer
service standards, technicalstandards, and
extension of service to new developments.
The Regulatory Ordinance also ad-
dresses several standard operating require-
ments for cable television operators in-
cluding the provision of insurance and
indemnification to the city, procedures for
enforcement of the ordinance and any
cable television franchise agreement and
procedures to be undertaken to consider a
transfer of ownership of the cable operator
andrenewalof cable televisions franchises.
The City of Chanhassen, Minnesota
also renewed the Cable Television Fran-
chise of Triax Midwest Associates, L. P.,
pursuant to applicable Minnesota State
Laws. The term. of the franchise shall be
for a period of fifteen (15) years and the
City shallreceive from Triax a franchise fee
of Five Percent (5%) of Triax's gross
revenues. The City will also receive pub-
lic, educational, and governmental access
facilities and equipment as more full de-
scribed in Exhibit E to the agreement.
The Franchise Agreement requires
Triax to rebuild its cable system within 18
monft W pro4-idc up t6 79 of
progra - w� tha cer► fia
s pro-
vi ad>k
st' to
W04 ,0MI&V ad 10I64 as
channels.
A complete copy - of the Regulatory
Ordinance and Franchise Agreement are
on file with the City Clerk at 690 City
Center Drive, Chanhassen, MN 55317.
Passed and adopted by theChanhassen
City Council this 26th day of May, 1998.
Don Ashworth
City Clerk,/Manager
(Published in theChanhassen ouThursday,
July 9, 1998; No. 3203)
Affidavit of Publication
Southwest Suburban Publishing
State of Minnesota)
)SS.
County of Carver )
Stan Rolfsrud, being duly sworn, on oath says that he is the publisher or the authorized agent of
the publisher of the newspapers known as the Chaska Herald and the Chanhassen Villager and
has full knowledge of the facts herein stated as follows:
(A) These newspapers have complied with the requirements constituting qualification as a legal
newspaper, as provided by Minnesota Statute 331A.02, 331A.07, and other applicable laws, as
amended.
(B) The printed public notice that is attached to this Affidavit and identified as Not
was published on the date or dates and in the newspaper stated in the attached Notice and said
Notice is hereby incorporated as part of this Affidavit. Said notice was cut from the columns of
the newspaper specified. Printed below is a copy of the lower case alphabet from A to Z, both
inclusive, and is hereby acknowledged as being the kind and size of type used in the composition
and publication of the Notice:
abcdefghijklmnopgrstuvw
Wan Ro srud, General Manager
Subscribed and sworn before me on
this day of , 1998
Notary Public
RATE INFORMATION
or his designated agent
GWEN M. RADUENZ
NOTARY PUBLIC—MINNESOTA
o MY COMMISSION EXPIRES 1-31-00
Lowest classified rate paid by commercial users for comparable space.... $11.50 per column inch
Maximum rate allowed by law for the above matter ................................. $11.50 per column inch
Rate actually charged for the above matter ................................................. $8.37 per column inch
CITY OF CHANHASSEN
CARVER AND HENNEPIN
COUNTIES, MINNESOTA
CABLE TELEVISION FRANCHISE
AGREEMENT AND REGULATORY ORDINANCE Affidavit of Publication
SUMMARY ORDINANCE NO. 280
On May 26, 1998, the City of Southwest Suburban Publishing
Chanhassen, Minnesota adopted a Cable
Television Regulatory Ordinance which
will govern the operations of the City's State of Minnesota)
current cable television operator, Triax
Cablevision, as well as any otherproviders ) S S.
which make seek to provide service within
the city. The Regulatory Ordinance ad- County of Carver )
dresses general operating requirements for
cable television systems, and includes a
procedure to obtain a cable television fran-
chise, consumer protection, and customer Stan Rolfsrud, being duly sworn, on oath says that he is the publisher or the authorized agent of
service standards, technical standards, and the publisher of the newspapers known as the Chaska Herald and the Chanhassen Villager and
extension ofservice to new developments. has full knowledge of the facts herein stated as follows:
The Regulatory Ordinance also ad-
dresses several standard operatingrequire- (A) These newspapers have complied with the requirements constituting qualification as a legal
ments for cable television operators in- newspaper, as provided by Minnesota Statute 331A.02, 331A.07, and other applicable laws, as
cluding the provision of insurance and amended.
indemnification to the city, procedures for �.
enforcement of the ordinance and any (B) The printed public notice that is attached to this Affidavit and identified as No.
cable television franchise agreement and was published on the date or dates and in the newspaper stated in the attached Notice and said
procedures to be undertaken to consider a Notice is hereby incorporated as part of this Affidavit. Said notice was cut from the columns of
transfer of ownership of the cable operator the newspaper specified. Printed below is a copy of the lower case alphabet from A to Z, both
and renewal ofcable televisions franchises. inclusive, and is hereby acknowledged as being the kind and size of type used in the composition
The City of Chanhassen, Minnesota and publication of the Notice:
also renewed the Cable Television Fran-
chise of Triax Midwest Associates, L. P., abcdefghijklmnopqrstuvwxy
pursuant to applicable Minnesota State
Laws. The term of the franchise shall be
for a period of fifteen (15) years and the
City shallreceivefromTriax afranchisefee By:
of Five Percent (5%) of Triax's gross �JVSA4Rolfsrud, General Manager
revenues. The City will also receive pub- or his designated agent
lic, educational, and governmental access
facilities and equipment as more full de- Subscribed and sworn before me on
scribed in Exhibit E to the agreement.
The Franchise Agreement requires
Triax to rebuild its cable system within 18
months to provide up to 79 channels of this' day of , 1998
programming with the capability to pro-�r.=•-
vide advanced data services. The cable �. f��, q�lJ�lE�?
system will use fiber optic technology to NOTARY PUBLIC-..MINNESOTA
improve signal quality and reliability as My COMMISSION EXPIRES 1-31-Op
well as increase the number of available
channels.
A complete copy of the Regulatory Notary Public
Ordinance and Franchise Agreement are r
on file with the City Clerk at 690 City
Center Drive, Chanhassen, MN 55317.
Passed and adopted by the Chanhassen
City Council this 26th day'of May,1998:
DKin Ashworth RATE INFORMATION
City Clerk/Manager Lowest classified rate paid by commercial users for comparable space.... $11.50 per column inch
(Published in the Chanhassen Villager on
Thursday, June 25, 1998; No. 3191) Maximum rate allowed by law for the above matter ................................. $11.50 per column inch
— Rate actually charged for the above matter ................................................. $8.37 per column inc