Mediacom Franchise Agreement� F
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CABLE TELEVISION FRANCHISE ORDINANCE
City of Chanhassen, Minnesota
December 9, 2013
Prepared by:
BRIAN T. GROGAN, ESQ.
Moss & Barnett
A Professional Association
4800 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4129
(612) 877-5340
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SECTION 5 SERVICE ?R(CDVffSN(GNS-0000000000000000000000000000000000000000000000G000000G000c0000000c000000000000000000 �2
SECTION 6 PUBLIC ACCESS IFR(DVISI(ONSOOOOOOOOOOOOOOOOOO00000000000000000000000000000000000000000000000000000 n
SECTION 9 SALE, ABANDONMENT, TRANSFER and REVO(CA7DN.00000000000000000000000 23
SECTION 10 M�SCELLANEOUS PROVISIONS 000*0009000000**00*000*00000000000000000000000000000000000000000020
SEC71ON 11 PUBLICA71ON E771, ECIIT_�,_VE !DATE; ACCE27ANCE A11D
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Exhibit A
Description of System
Exhibit B
PEG Access Facilities and Equipment
Exhibit C
Service to Public Facilities
Exhibit D
Two -Way Capability to Public Facilities
Exhibit E
Franchise Fee Payment Worksheet
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AN ORDINANCE GRANTING A FRANCHISE TO MEDIACOM MINNESOTA LLC TO
CONSTRUCT, OPERATE, AND MAINTAIN A CABLE SYSTEM IN THE CITY OF
CHANHASSEN, MINNESOTA; SETTING FORTH CONDITIONS ACCOMPANYING THE
GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE
SYSTEM; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF ITS PROVISIONS.
The City Councifl, of the City of Chanhassen ordains.
The City of Chanhassen intends, by the adoption of this Franchise, to bring about the
development of a Cable System, and the continued operation of it. Such a development can
contribute significantly to the communications needs and desires of the residents and citizens of
the City and the public generally. Further, City may achieve better utilization and improvement
of public services and enhanced economic development with the development and operation of a
Cable System.
In the review of the request for renewal by Grantee and negotiations related thereto, and as a
result of a public hearing, the City Council makes the following findings:
1. 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 Cable 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 City complies with the existing applicable State
atre.
statutes, federal laws and regulations; and
4. The Franchise granted to Grantee is nonexclusive.
SECTION I
SHORT TITLE AND DEFINITIONS
1.1 Short Title. This Franchise shall be known and cited as the Cable Teievision
Franchise Ordinance.
1.2 Definitions. For purposes of this Franchise, 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
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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 local law, or federal or State statute, law,
regulation or other final legal authority governing any of the matters addressed in this
Franchise.
(b) "Basic Cable Service" means any service tier which includes the lawful
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).
(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 Service" or "Service" means:
(i) The one-way transmission to Subscribers of (i) video
programming, or (H) other programming service; and
(ii) Subscriber interaction, if any, which is required for the selection or
use of such video programming or other programming service.
(e) "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:
(1) A facility that serves only to retransmit the television signals of
one (1) or more television broadcast stations;
(ii) A facility that serves Subscribers without using any public rights-
of-way;
(iii) 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;
Act; or
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(v) Any facilities of any electric utility used solely for operating its
electric utility system.
(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) "City" means the City of Chanhassen, Minnesota as represented by the
Council or any delegate acting within the scope of its jurisdiction. The City Manager
shall be responsible for the continuing administration of this Franchise.
(h) "Converter" means an electronic device which converts signals to a
frequency acceptable to a television receiver of a Subscriber and by an appropriate
seiector permits a Subscriber to view all Subscriber signals included in the service.
(i) "Council" means the City Council of the City of Chanhassen, Minnesota.
0) 66 95 means the cable that connects the ground block on the
Subscriber's residence to the nearest feeder cable of the System.
(k) "FCC" means the Federal Communications Commission and any legally
appointed, designated or elected agent or successor.
(1) "Franchise" means this Franchise and the regulatory and contractual
relationship established hereby.
(m) "Franchise Fee" means any tax, fee or assessment of any kind imposed by
the City or any other 0 ovemmental 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 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.
(n) "GAAP" means generally accepted accounting principles as promulgated
and defined by the Financial Accounting Standards Board ("FASB"), Emerging Issues
Task Force (6" E ATF") and/or the U.S. Securities and Exchange Commission ("SEC").
(o) "Governmental Authority" means any court or other federal, State, county,
municipal or other governmental department, commission, board, agency or
instrumentality.
(P) "Grantee" is Mediacom Minnesota LLC, its agents and employees, lawful
successors, transferees or assignees.
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(q) "Gross Revenues5l means any and all revenues derived by the Grantee
from the operation of the Cable System to provide Cable Services in the Service Area.
Gross Revenues shall include, by way of example but not limitation, revenues from Basic
Cable Service, all Cable Service fees, premium, pay-per-view, pay television, late fees,
guides, home shopping revenue, Installation and reconnection fees, revenues from
program guides and electronic guides, additional outlet fees, Franchise Fees required by
this Franchise, upgrade and downgrade fees, advertising revenue, Converter rental fees
and lockout device fees and any and all other revenue derived by the Grantee from the
operation of Grantee's Cable System to provide Cable Services in the City. Copyright
fees or other license fees paid by Grantee shall not be subtracted from Gross Revenues
for purposes of calculating Franchise Fees. Gross Revenues shall include revenue
received by any affiliated entity where that affiliated entity receives revenue from the
operation of the Cable System to provide Cable Services in the Service Area. Revenues
which are not directly attributable to specific customers, such as advertising revenue and
home shopping commissions, shall be allocated to systems and jurisdictions on a per
subscriber basis measured in a consistent manner from period to period. "Gross
Revenues" shall not be net of (1) any operating expense; (2) any accrual, including,
without limitation, any accrual for commissions; or (3) any other expenditure, regardless
of whether such expense, accrual or expenditure reflects a cash payment. "Gross
Revenues", however, shall not be double counted. Revenues of both Grantee and an
affiliated entity that represent a transfer of funds between the Grantee and the affiliated
entity, and that would otherwise constitute Gross Revenues of both the Grantee and the
affiliated entity, shall be counted only once for purposes of determining Gross Revenues.
Similarly, operating expenses of the Grantee which are payable from Grantee's revenue
to an affiliated entity and which may otherwise constitute revenue of the affiliated entity,
shall not constitute additional Gross Revenues for purposes of this Franchise. "Gross
Revenues shall not include any taxes, fees or assessments of general applicability
imposed or assessed by any Governmental Authority. A Franchise Fee is not such a tax,
fee or assessment. The City acknowledges and accepts that Grantee shall maintain its
books and records in accordance with GAA1111.
(r) "Headend" means the point of origination and processing for most of the
signals received by the Cable System from external content providers.
(s) "Installation" means the connection of the System from feeder cable to the
point of connectivity.
(t) "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.
(U) "Normal O-Peratimiz Conditions" means those service conditions which are
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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
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limited to, special promotions, pay-per-view events, rate increases, regular peak or
seasonal demand periods, and maintenance or upgrade of the System.
(v) "PEG" means public, educational and governmental.
(w) "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.
(x) "Public, Educational or Government Access Facilities" or "PEG Access
Facilities" means:
(i) Channel capacity designated for public, educational or
governmental use; and
(ii) Facilities and equipment for the use of such Channel capacity.
(Y) "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 this Franchise.
(z) "Service Interruption" means the loss of picture or sound on one (1) or
more Cable Channels.
(aa) "Standard Installation" means the first Two Hundred Fifty (250) feet of
residential Drop.
(bb) "State" means the State of Minnesota.
(cc) "Street" means any street, alley, other land or waterway, dedicated or
commonly used for utility purposes, including general or utility easements in which the
City has the right and authority to authorize, regulate or permit the location of facilities
other than those of the City. "Street" shall not include any real OTpersonal City property
that is not specifically described in the previous sentence and shall nail not include City
buildings, fixtures and other structures or improvements, regardless of whether they are
situated in the public right-of-way.
(dd) "Subscriber" means any Person who lawfully elects to subscribe to Cable
Service via the System. In the case of multiple office buildings or multiple dwelling
units, the "Subscriber" means the lessee, tenant or occupant.
(ee) "Wireline MVPD" means a multichannel video programming distributor
that utilizes the Streets to install cable or fiber and is engaged in the business of making
available for purchase, by Subscribers, multiple Cnanneis of video programming in the
City.
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1.3 -Written Notice. All notices, reports or demands required or permitted to be given
under this Franchise shall be in writing and shall be deemed to be given when delivered
personally to the party designated below, or when five (5) days have elapsed after it has been
deposited in the United States mail in a sealed envelope, with registered or certified mail,
postage prepaid thereon, or on the next business day if sent by express mail or nationally
recognized overnight air courier addressed to the party to which notice, report or demand is
being given, as follows:
If to city: City Clerk
7700 Market Boulevard, P.O. Box 147
Chanhassen, MN 55317
If to Grantee.- William Jensen
Regional Vice President
Mediacom Minnesota LLC
1504 2nd Street SE
Waseca, MN 56093
Bruce Gluckman, Esq.
Mediacom Communications Corporation
One Mediacom Way
Mediacom Park, NY 10918
Such addresses may be changed by either party upon notice to the other party given as provided
in this section.
SECTION 2
GRANT OF AUTHORITY
2.1 Franchise Required. It shall be unlawful for any Person, unless specifically
required by Applicable Laws, to construct, install, operate or maintain a Cable System or to offer
Cable Service in the City, unless such Person or the Person for whom such action is being taken
shall have first obtained and shall currently hold a valid franchise.
2.2 Grant of Franchise. This nonexclusive Franchise is granted pursuant to the terms
and conditions contained herein. The City hereby authorizes Grantee to occupy or use the City's
Streets subject to: 1) the provisions of this non-exclusive Franchise to provide Cable Service
within the City; and 2) all applicable provisions of the City Code. Said Franchise shall constitute
both a right 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 Cable Services to the extent not prohibited by Applicabie 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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right to regulate.
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2.3 Grant of Nonexclusive Authority.
(a) 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 herein. If any other Wireline MVPD enters into any agreement with the
City to provide multi channel video programming or its equivalent to residents in the
City, the City, upon written request of the Grantee, shall permit the Grantee to construct
and/or operate its Cable System and provide multi channel video programming or its
equivalent to Subscribers in the City under the same material terms as applicable to the
new MVPD as determined in the City's sole discretion. Within one hundred eighty (1 8o)
days after the Grantee submits a written request to the City, the Grantee and the City shall
enter into an agreement or other appropriate authorization (if necessary) containing any
modified terms and conditions to this Franchise.
(b) The Cable System constructed and maintained by Grantee or its agents
shall not interfere with other uses of Streets. Grantee shall make use of existing poles
and other facilities available to Grantee to the extent commercially reasonable. Nothing
in this section authorizes the Grantee to constvact poles in the City without prior City
consent consistent with the City Code.
(c) Notwithstanding the above grant to use Streets, no Street shall be used by
Grantee if City, in its sole opinion, determines that such use is inconsistent with the
terms, conditions, or provisions by which such Street was created or dedicated, or with
the present use of the Street.
(d) Grantee shall have the authority to use Streets for the distribution of
Grantee's System. The City may require all developers of future subdivisions to allow
and accommodate the construction of the System as part of any provisions for utilities to
serve such subdivisions.
(e) 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 related to the management of City rights of
ways and Streets and B) this Franchise, the express provisions of the City Code 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
I I City Code;-howeve U 1 -9 .011
Me r5 ��rantee reserves any riglits it may nave to enanenge sucti
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.
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(f) 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 promulgated by the City, or (C) be construed as a
waiver or release of the rights of the City in and to the Streets.
(g) This Franchise complies with the Minnesota franchise standards set forth
in Minnesota Statutes Section 238.084. The City and the Grantee shall conform to
Minnesota laws promulgated subsequent to the date of this Franchise. The City and the
Grantee shall conform to federal laws and regulations as they become effective.
2.4 Term. The initial term of this Franchise shall be for the period often (10) years
from the date of acceptance by Grantee, unless renewed, revoked or, ,terminated sooner as herein
provided ("Initial Term"). Upon mutual agreement by City and Grantee, the Initial Term may be
extended for an additional five (5) years. Grantee shall provide written notice to the City at least
eighteen (18) months prior to the end of the Initial Term requesting such five (5) year extension.
City shall respond within ninety (90) days of such written notice from Grantee by either granting
the five (5) year extension or stating in writing any objection the City may have to the five (5)
year extension. Nothing herein shall serve to waive Grantee's right to renewal of the Franchise
under Applicable Law.
2.5 Previous Franchise. Upon acceptance of this Franchise by Grantee as required in
Section 11.2 herein, this Franchise shall supersede and replace any previous Franchise granting a
franchise to Grantee to own, operate and maintain a Cable System within the City. Franchise
Ordinance No. 280 is hereby repealed.
2.6 Rules of Grantee. The Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable said Grantee to exercise its rights and perform its obligation under this
Franchise and to assure uninterrupted service to each and all of its Subscribers; provided that
such rules, regulations, terms and conditions shall not be in conflict with provisions hereto, the
City Code or Applicable Law.
2.7 Territorial Area Involved. This Franchise is granted for the Service Area.
(a) Grantee shall design construct and maintain the Cable System to pass, and
9 A. I
have the capability to serve, every dwelling unit and commercial building in the Service
Area. Grantee shall extend plant to all areas of the City where the density reaches or
exceeds twenty (20) homes per cable mile as measured from the nearest node or tap
required to deliver a signal that complies with the FCC Technical Standards.
(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,
inrovided that the Grantee is able to secure access to all rights-of-way necessary to extend
.1 rights-of-way
Service to such Subscriber within such thirty (30) day period on reasonable terms and
conditions.
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(c) 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 I't of each year.
SECTION 3
CONSTRUCTION STANJDAP,�D]
3.1 Permits. Grantee shall not construct any Cable System facilities until Grantee has
secured the necessary permits from City or other Governmental Authority.
3.2 Grantee's Facilities and Equipment.
(a) 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.
(b) Grantee shall be granted access to any easements granted to a public
utility, municipal utility or utility district in any areas annexed by City or new
developments.
(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.
(d) 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.
3.3 System Upgrades/Extensions.
(a) 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.
(b) Consistent with Aoolicable Law. the City shall have the right to inspect all
construction or installation work performed pursuant to the provisions of this Franchise
and to make such tests at its own expense as it shall find necessary to ensure compliance
with the terms of this Franchise and Applicable Law.
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3.4 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 consistent with Applicable Law.
3.5 Conditions on Street Use.
(a) 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.
(b) The Grantee shall furnish to, and file with City Manager, the maps
showing the location of the physical plant constructed, including underground facilities,
and Grantee shall file with City updates of such maps, annually if changes have been
made in the System, and any other information the parties mutually agree upon.
(c) If at any time during the period of this Franchise, the 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.
(d) 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 other fixtures placed in any
Street shall be so placed as to comply with the City Code.
(e) 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 (l 0) days advance notice to arrange
for such temporary changes.
3.6 Tree Trimming. 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.
3.7 Protection of facilities. Nothing contained in this section shall relieve any Person
from liability arising out of the failure to exercise reasonable care to avoid damaging Grantee's
facilities while performing any work connected with grading, regrading or changing the line of
any Rights -of -Way or public place or the construction or reconstruction of any sewer or water
system.
10
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3.8 Use of Grantee's 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 in Grantee's sole discretion.
4.1 Minimum Channel Capacity.
(a) Grantee shall provide a System utilizing a 750 MHz fiber/coaxial hybrid
Cable System which shall be capable of delivering a minimum of eighty (80) video
program Channels.
(b) All programming decisions remain the sole discretion of Grantee subject
to City's rights pursuant to 47 U.S.C. § 545.
(c) Grantee shall comply with federal law regarding notice to City and
Subscribers prior to any Channel additions, deletions, or realignments.
4.2 Technical Standards. The System shall at all times meet the technical standards
established by the FCC as they may be amended from time to time and shall be operated so as to
minimize disruption of signal to Subscribers. Exhibit A hereto includes a summary of the FCC
technical specifications.
4.3 Special Testing. City may require special testing of a location or locations within
the System if there is a particular matter of controversy or unresolved complaints 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. The City shall endeavor
to so arrange its request for such special testing so as to minimize hardship or inconvenience to
Grantee or to the Subscribers caused by such testing. Before ordering such tests,, Grantee shall
be afforded thirty (30) days to correct problems or complaints upon which tests were ordered.
The City shall meet will. -'k GranteeP -4Lo discuss the need for such and
with to requiring special tests
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 by a qualified engineer selected by City. In the event that special testing is
required by City to determine the source of technical difficulties, the cost of said testing shall be
borne by the Grantee if the testing reveals the source of the technical difficulty to be within
Grantee's reasonable control. If the testing reveals the difficulties to be caused by factors which
are beyond Grantee's reasonable control then the cost of said test shall be borne by City.
4.4 FCC ReDorts. The results of tests reauired to be filed by the FCC must he, filed
�& X
within ten (10) days of the conduct of the tests with the City.
4.5 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
11
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federal 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 consistent with the Minnesota State Emergency Statewide Plan ("EAS Plan"). The City
may also develop a local plan containing methods of EAS message distribution, subject to
Applicable Laws and the EAS Plan. Nothing in this section is intended to expand Grantee's
obligations beyond that which is required by the EAS Plan and Applicable Law.
4.6 Parental Control Lock. Grantee shall provide, for sale or lease, to Subscribers,
upon request, a parental control locking device or digital code that permits inhibiting the video
and audio portions of any Channels offered by Grantee.
4.7 Right of Inspection. Nothing herein shall prevent City's right to inspect all
construction, reconstruction or installation work performed by Grantee pursuant to all applicable
provisions of the City Code.
SECTION 5
;-�ERVICE ]PROVISIGNS
5.1 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 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. The City
and Grantee acknowledge that upon the effective date of this Franchise the Grantee is subject to
effective competition as determined by the FCC.
5.2 Leased Channel Service. Grantee shall offer leased channel service on reasonable
terms and conditions and in accordance with Applicable Laws.
5.3 Consumer Protection and Service Standards. Grantee shall maintain a convenient
local customer service or billpayment location for receiving Subscriber payments; provided,
however, nothing herein shall require Grantee to maintain an office in the City. Grantee shall
also maintain or arrange for a location where equipment can be dropped off or exchanged as is
p
necessary or, in the alternative, establish a system for having Subscriber equipment picked uat
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.
(i) 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.
1. Trained Grantee representatives will be available to
respond to customer telephone inquiries during Normal Business Hours.
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2. After Normal Business Hours, the access line maybe
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.
(ii) 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.
(iii) 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.
(iv) Under Normal Operating Conditions, the customer will receive a
busy signal less than three percent (3%) of the time.
(v) Customer service center and bill payment locations will be open at
least during Normal Business Hours and will be conveniently located.
(b) 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:
(i) 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 two hundred fifty (250) feet from the existing distribution system.
(ii) 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.
(iii) 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.)
(iv) Grantee may not cancel an appointment with a customer after the
close of business on the business day prior to the scheduled appointment.
(v) 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
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customer will be contacted. The appointment will be rescheduled, as necessary,
at a time which is convenient for the customer.
(c) Communications between Grantee and Subscribers:
either:
(i) Refunds. Refund checks will be issued promptly, but no later than
1. The customer's next billing cycle following resolution of
the request or thirty (30) days, whichever is earlier, or
2. The return of the equipment supplied by Grantee if Cable
Service is terminated.
(ii) 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.
(d) Billing:
(i) 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 char es. Bills will also clearly delineate all activity during the billing
g
period, including optional charges, rebates and credits.
(ii) In case of a billing dispute, Grantee must respond to a written
complaint from a Subscriber within thirty (30) days.
(e) Subscriber Information. Grantee will 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:
(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 cable office.
Subscribers shall be advised of the procedures for resolution of complaints
about theq uality of the television signal delivered by Grantee, including the
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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 5.3(e).
(f) Notice or Rate Programming Change. In addition to the requirement of
this subparagraph (f) regarding advance notification to Subscribers of any changes in
rates, programming services or Channel positions, Grantee shall give thirty (30) days
written notice to both Subscribers and the City before implementing any rate or Service
change. Such notice shall state the precise amount of any rate change and briefly explain
in readily understandable fashion the cause of the rate change (e.g., inflation, change in
external costs or the addition/deletion of Channels). When the change involves the
addition or deletion of Channels, each Channel added or deleted must be separately
identified. 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.
(g) Subscriber Contracts. Grantee shall, upon written request,p rovide 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 shall be maintained on file with City and shall be
available for public inspection.
(h) 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.
(i) Late Fees. Grantee shall comply with all applicable state and federal 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.
0) 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
Commission of the City.
(k) Customer Bills. Customer bills shall be designed in such a way as to
present the information contained therein clearly and comprehensibly to Customers, and
in a way that (A) isnot misleading and (B) does not omit material information.
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Notwithstanding anything to the contrary in Section 5.3(d), above, Grantee may, in its
sole discretion, consolidate costs on Customer bills as may otherwise be permitted by
Section 622(c) of the Cable Act (47 U.S.C. §542(c)).
(1) 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.
(m) Maintain a Complaint Phone Line. Grantee shall maintain a local or toll-
free telephone Subscriber complaint line, available to its Subscribers twenty-four (24)
hours per day, seven (7) days a week.
(n) 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 5.3(e), the twenty-four (24) hour Grantee phone number for Subscriber
complaints. Additionally, Grantee shall provide information to customers 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.
(o) Subscriber Privacy.
(i) To the extent required by Minn. Stat. §238.084 Subd. 1(s) Grantee
shall comply with the following: 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 maybe 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
p
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
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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.
(p) 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.
SECTION 6
PUBLIC ACCESS PROVISIONS
6.1 Public, Educational and Government Access. City or its designee is hereby
designated to operate, administer, promote, and manage public, educational, and governmental
programming (hereinafter "PEG Access") to the Cable System established pursuant to this
Section 6. Grantee shall have no responsibility whatsoever for PEG Access except as expressly
stated in this Section 6.
6.2 Grantee Support for PEG Usage. In accordance with the provisions of the Cable
Act and Minnesota Statutes Section 238.084, Grantee shall provide and make available for PEG
Access usage within the Service Area the following:
(a) Provision and use of the grant funds and Channels designated in Exhibit B
of this Franchise for local educational and governmental programming and access use at
no charge in accordance with the requirements of Exhibit B.
(b) Maintenance of the PEG Access Facilities and Channels, and support of
educational and governmental programming to the extent specified in Exhibit B of this
Franchise.
(c) Provision of free public building Installation and Cable Service and the
provision of two-way capability as more clearly specified in Exhibit B.
(d) PEG Access Facilities shall be operated by the City.
SECTION 7
*PERATEON AND ADMffNISTRAT13N PROVEKONS
7.1 Franchise Fee.
(a) During the terra of the Franchise, Grantee shall pay quarterly to the City a
Franchise Fee of five percent (5%) of Gross Revenues. If any such law, regulation or
valid rule alters the five percent (5%) Franchise Fee ceiling enacted by the Cable Act,
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then the City shall have the authority to (but shall not be required to) increase the
Franchise Fee accordingly, provided such increase is for purposes not inconsistent with
Applicable Law. In the event Grantee bundles or combines Cable Services (which are
subject to the Franchise Fee) with non -Cable Services (which are not subject to the
Franchise Fee) so that Subscribers pay a single fee for more than one (1) class of service
resulting in a discount on Cable Services, Grantee agrees that for the purpose of
calculation of the Franchise Fee, it shall allocate to Cable Service revenue no less than a
pro rata share of the revenue received for the bundled or combined services. The pro rata
share shall be computed on the basis of the published charge for each service in the
bundled or combined classes of services when purchased separately.
(b) Each Franchise Fee payment shall be paid quarterly not later than forty-
five (45) days following the end of a given quarter and each payment shall be
accompanied by a report in such form as the City may reasonably request showing the
computation of the Franchise Fee as it relates specifically to the City's Franchise Area
(CUID # MN0577) for the preceding calendar quarter and such other relevant facts as
maybe required by the City, including the completion of a Franchise Fee Payment
Worksheet in the form attached hereto as Exhibit E.
(c) Except as otherwise provided bylaw, no acceptance of any payment by
the City shall be construed as a release or as an accord and satisfaction of any claim the
City may have for further or additional sums payable as a Franchise Fee under this
Franchise or for the performance of any other obligation of the Grantee.
(d) Any Franchise Fees owing pursuant to this Franchise which remain unpaid
more than forty-five (45) days after the end of a given quarter shall be delinquent and
shall immediately thereafter accrue interest at twelve percent (12%) per annum or two
percent (2%) above prime lending rate as quoted by Wall Street Journal, whichever is
greater. Enforcement of unpaid Franchise Fees shall be handled in accordance with
Section 9.6, however, Grantee shall in all cases be subject to interest on any payment
more than forty-five (45) days after the end of a given quarter.
(e) Upon ten (10) days prior written notice, City 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 City
all applicable Franchise Fees due and payable together with 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.
7.2 Not Franchise Fees.
(a) Grantee acknowledges and agrees that the Franchise Fees payable by
Grantee to the City pursuant to Section 7.1 hereof shall take precedence over all other
J I`
payments, contributions, Services, equipment, facilities, support, resources or other
activities to be provided or performed by the Grantee pursuant to this Franchise and that
the Franchise Feesp rovided for in Section 7.1 of this Franchise shall not be deemed to be
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in the nature of a tax, and shall be in addition to any and all taxes of general applicability
and other fees and charges which the Grantee shall be required to pay to the City and/or
to any other Governmental Authority, all of which shall be separate and distinct
obligations of Grantee.
(b) Grantee shall not apply or seek to apply or make any claim that all or any
part of the Franchise Fees or other payments or contributions to be made by Grantee to
City pursuant to this Franchise and shall be deducted from or credited or offset against
any taxes, fees or assessments of general applicability levied or imposed by the City or
any other Governmental Authority, including any such tax, fee or assessment imposed on
both utilities and cable operators or their services.
(c) Grantee shall not apply or seek to apply all or any part of any taxes, fees
or assessments of general applicability levied or imposed by the City or any other
Governmental Authority (including any such tax, fee or assessment imposed on both
utilities and cable operators or their services) as a deduction or other credit from or
against any of the Franchise Fees or other payments or contributions to be paid or made
pursuant by Grantee to City to this Franchise, each of which shall be deemed to be
separate and distinct obligations of the Grantee.
7.3 Periodic Evaluation, Review and Modification. City and Grantee acknowledge
and agree that the field of cable television is rapidly changing and one which may see many
regulatory, technical, financial, marketing and legal changes during the term of this Franchise.
Therefore, in order to provide for the maximum degree of flexibility in this Franchise, and to
help achieve a continued, advanced and modern Cable System, the following evaluation
provisions will apply:
(a) The City reserves the right to adopt rules and regulations controlling the
procedures as set forth below and the subjects for evaluation sessions. In the absence of
any City action taken to exercise these rights, Grantee shall be subject to the procedures
and the subjects described in this Section 7.3.
(b) The City may require, in its sole discretion, that the Grantee participate in
evaluation sessions with the City at any time and from time to time during the term of
this Franchise; provided, however, there shall not be more than one (1) evaluation session
during any calendar year.
(c) Topics which may be discussed at any evaluation session include, but are
not limited to, rates, Channel capacity, the System performance, programming, PEG
Access, municipal uses of the System, Subscriber complaints, judicial rulings, FCC
rulings and any other topics the City or Grantee may deem relevant.
(d) During an evaluation session, Grantee shall fully cooperate with the City
and shall pro��ide without cost and in a timely manner such infolll atio�l and documents as
the City may request to perform the evaluation.
(e) As a result of an evaluation session, the City or Grantee may determine
that an amendment in the terms of this Franchise may be required, that the requirements
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of the System or this Franchise should be updated, changed or revised, and/or that
additional services should be provided by Grantee (collectively a Proposed
Modification"). If the Proposed Modification is consistent with the terms of this
Franchise, the needs of the City and existing state-of-the-art technology, including what
isp rovided by Grantee in other systems owned, operated or managed by it, its parent
company affiliated company, Grantee and the City will, in good faith, review the
p Y or any
terms of the Proposed Modification and consider amending this Franchise accordingly
7.4 Reports.
(a) All reports and records required under this Franchise shall be furnished at
the sole expense of Grantee, except as otherwise provided in this Franchise.
(b) Grantee shall provide City with an annual statement, within ninety (90)
days of the close of each calendar year end, certified by an officer of the Grantee,
reflecting the total amounts of Gross Revenues and all payments, and computations of the
Franchise Fee for the previous calendar year.
7.5 Records Required and City'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 and shall provide such information to City upon no less than
thirty (30) days advance written request:
(i) a summary of service calls, identifying the number, general nature
and disposition of such calls, in a form reasonably acceptable to the City; and
(ii) a summary of Grantee's compliance with the terms and provision
of the customer service requirements set forth in Section 5.3 of this Franchise.
(b) 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 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. Neither City nor Grantee shall unreasonably demand or withhold information
requested pursuant with the terms of this Franchise.
(c) 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 this Franchise.
7.6 Recovery of Processing Costs.
To aid in the analysis and resolution of any future disputed matters relative to this
Franchise, the City and Grantee may, by mutual written agreement (both as to whether to
hire and whom to hire), employ the services of technical, financial and/or legal
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consultants, as mediators. All reasonable fees of the consultants incurred by the City
and/or the Grantee in this regard shall, unless the parties otherwise agree, be borne
equally by City and Grantee.
SECTION 8
GENERAL FINANCIAL AND INSURANCE PROVISIONS
8.1 Security Fund.
(a) Upon acceptance of this Franchise, Grantee shall establish and provide to
City a security fund, as security for the full and timely payment and performance by
Grantee of all of its obligations under this Franchise in the amount of Ten Thousand and
No/ 100 Dollars ($10,000) in the form of an irrevocable letter of credit, established in a
local bank and maintained throughout the term of this Franchise. City may, in its sole
discretion, reduce the amount of the security fund. If, at any time during the term of this
Franchise, Grantee seeks consent to a transfer or assignment of its rights hereunder, City
may unilaterally increase the security fund up to Twenty Thousand Dollars ($20,000) if it
so chooses.
(b) The security fund maybe drawn upon by City for those purposes specified
in Section 9.6 hereof. Grantee's recourse, in the event Grantee believes that City's
actions in taking any security funds is improper, shall be through legal action after the
security has been drawn upon. Actions brought by Grantee hereunder maybe subject to
47 U.S.C. §555A —Limitations of Franchising Authority Liability —which is hereby
incorporated by reference as if fully set forth herein.
(c) Nothing herein shall be deemed a waiver of the normal permit
requirements made of all contractors working within the City's rights-of-way.
8.2 Liability Insurance.
(a) Grantee shall with its acceptance of this Franchise, and 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, the City and their 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 Two Million
Dollars ($2,000,000.00). The following endorsements shall be attached to the liability
po icy -e
(i) The policy shall provide coverage on an "occurrence" basis.
The policy shall cover personal injury as well as bodily injury.
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(iii) 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.
(iv) Broad form property damage liability shall be afforded.
(v) The City shall be named as an additional insured on the policy.
(vi) An endorsement shall be provided which states that the coverage is
primary insurance and that no other insurance maintained by the City will be
called upon to contribute to a loss under this coverage.
(vii) Standard form of cross -liability shall be afforded.
(viii) An endorsement stating that the policy shall not be canceled
without thirty (30) days notice of such cancellation given to the City.
(b) Grantee shall submit to City documentation of the required insurance,
including a certificate of insurance signed by the insurance agent and companies named,
as well as all properly executed endorsements.
8.3 Indemnification.
(a) Grantee shall indemnify, defend and hold City, its officers, boards,
commissions agents and employees (collectively the "Indemnified Parties") harmless
from and an against and all lawsuits, claims, causes of action, actions, liabilities,
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demands
judgments, damages, settlements, disability, losses, expenses (including
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attorney's fees and disbursements of counsel) and costs of any nature that any of the
Indemnified Parties may at any time suffer, sustain or incur arising out of, based upon or
in any Y a connected with the grant of this Franchise, the operation of Grantees System,
the breach by Grantee of its obligations under this Franchise and/or the activities of
Grantee its subcontractor, employees and agents hereunder. Grantee shall be solely
responsible for and shall indemnify, defend and hold the Indemnified Parties harmless
from and against any and all matters relative to payment of Grantee's employees,
including compliance with Social Security and withholdings.
(b) The indemnification obligations of Grantee set forth in this Franchise are
not limited in any wayb the amount or type of damages or compensation payable by or
Y
for Grantee under Workers' Compensation, disability or other employee benefit acts,
acceptance of insurance certificates required under this Franchise, or the terms,
applicability or limitations of any insurance held by Grantee.
(c) City does not, and shall not, waive any rights against Grantee which it
may Y have b reason of the indemnification provided for in this Franchise, because of the
acceptance b Cit or the deposit with City by Grantee, of any of the insurance policies
P Y Y�
described in this Franchise.
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(d) The indemnification of City by Grantee provided for in this Franchise
shall apply to all damages and claims for damages of any kind suffered by reason of any
of the Grantee's operations referred to in this Franchise, regardless of whether or not such
insurance policies shall have been determined to be applicable to any such damages or
claims for damages.
(e) Grantee shall not be required to indemnify City for negligence or
misconduct on the part of City or its officials, boards, commissions, agents, or
employees. City shall hold Grantee harmless, subject to the limitations in Minnesota
Statutes Chapter 466, for any damage resulting from the negligence or misconduct of the
City or its officials, boards, commissions, agents, or employees in utilizing any PEG
Access Channels, equipment, or facilities and for any such negligence or misconduct by
City in connection with work performed by City and permitted by this Franchise, on or
adjacent to the Cable System.
8.4 Grantee's Insurance. Grantee shall not commence any Cable System
reconstruction work or permit any subcontractor to commence work until all insurance required
under this Franchise has been obtained. Said insurance shall be maintained in full force and
effect until the expiration of this Franchise.
8.5 Workers' Compensation Insurance. Grantee shall obtain and maintain Workers'
Compensation Insurance for all of Grantee's employees, and in case any work is sublet, Grantee
shall require any subcontractor similarly to provide Workers' Compensation Insurance for all of
their employees, all in compliance with State laws, and to fully indemnify the City from and
against any and all claims arising out of occurrences on the work. Grantee hereby indemnifies
City for any and all costs, expenses (including attorneys' fees and disbursements of counsel),
damages and liabilities incurred by City as a result of any failure of either Grantee or any
subcontractor to take out and maintain such insurance. Grantee shall provide the City with a
certificate of insurance indicating Workers' Compensation coverage upon its acceptance of this
Franchise.
SECTION 9
SALE, ABANDONMENT, TRANSFER AND REVOCATION
9.1 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 �r.,able System or Grantee's
otherwise V
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 9.6 hereof and the
applicable provisions of any Franchise.
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(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
p g
parents with or into another Person (including the merger of Grantee or any parent with
or into an parent or subsidiary corporation or other Person); (iii) the consolidation of the
Y
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 The term "Controlling
p ent thereof.
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 City 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 City 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 City 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, City may inquire into the qualifications of the
prospective transferee or controlling party, and Grantee shall assist City in any such
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inq ui . In seeking City'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 City, which application shall include the
information required under this Franchise and Applicable Laws. The transferee shall be
required to establish to the satisfaction of the City that it possesses the legal, technical
and financialq ualifications to operate and maintain the System and comply with all
Franchise requirements for the remainder of the term of this Franchise. If, after
consideringthe legal, financial, character and technical qualities of the transferee and
determining that they are satisfactory, the City finds that such transfer is acceptable, the
City shall permit such transfer and assignment of the rights and obligations of this
Franchise as may be in the public interest. The consent of the City to such transfer shall
not be unreasonably denied.
(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
p Y
affiliates for the construction and/or operation of the Cable System must notify the City
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that it or its designee satisfactory to the City shall take control of and operate the Cable
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 City
in its discretion and during said period of time it shall have the right to petition the City to
transfer the Franchise to another Grantee.
(f) In addition to the aforementioned requirements in this Section 9. 1, 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.
9.2 City's Right to Purchase System.
(a) 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 Franchise. 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.
(b) Consistent with Section 627 of the Cable Act and all other Applicable
Laws, at the expiration, cancellation, revocation or termination of this Franchise, the City
shall have the option to purchase, condemn or otherwise acquire and hold the Cable
System.
9.3 Abandonment or Removal of Franchise Property.
(a) Grantee may not abandon the Cable System or any portion thereof without
having first given three (3) months written notice to the City. Grantee may not abandon
the Cable System or any portion thereof without compensating the City for damages
resulting from the abandonment.
(b) 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.
(c) City; upon such terms as City 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 Franchise, the Grantee
shall remove all abandoned facilities and equipment upon receipt of written notice from
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City 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
b or on behalf of Grantee and shall leave all Streets and other public ways and places in
Y
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. City
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 Franchise and any security fund
provided for in this Franchise 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.
(d) Upon abandonment of any Franchise property in place, the Grantee, if
required by the City, shall submit to City a bill of sale and/or other an instrument,
satisfactory in form and content to the City, transferring to the City the ownership of the
Franchise property abandoned.
(e) At the expiration of the term for which this Franchise is granted, or upon
its earlier revocation or termination, as provided for herein, in any such case without
renewal, extension or transfer, the City shall have the right to require Grantee to remove,
at its own expense, all above -ground portions of the Cable 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.
(f) Notwithstanding anything to the contrary set forth in this Franchise, the
Grantee may, with the consent of the City, abandon any underground Franchise property
inp lace 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 operator.
9.4 Extended Operation and Continuity of Services.
(a) Upon termination or forfeiture of this Franchise, 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 rements of Section 9.3 of
this Franchise.
9.5 Receivership and Foreclosure.
(a) The Franchise granted hereunder shall, at the option of City, 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
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hundred twenty (120) days after their election or appointment, fully complied with all the
terms and provisions of this 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 this Franchise or provided a plan for the remedy of such defaults and
violations which is satisfactory to the City; 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 this Franchise.
(b) In the case of a foreclosure or other judicial sale of the Franchise property,
or any material part thereof, City may give notice of termination of this Franchise upon
Grantee and the successful bidder at such sale, in which the event this Franchise and all
rights and privileges of the Grantee hereunder shall cease and terminate thirty (30) days
after such notice has been given, unless (1) City shall have approved the transfer of the
Franchise in accordance with the provisions of this Franchise; and (2) such successful
bidder shall have covenanted and agreed with City to assume and be bound by all terms
and conditions of this Franchise.
9.6 Procedure for Enforcing Franchise.
(a) In the event the City Council finds that a material violation or breach
exists and that Grantee has not cured the same in a satisfactory manner, has not diligently
commenced correction of such violation or breach or has not diligently proceeded to fully
remedy such violation or breach, the City Council may impose liquidated damages,
assessable from the security fund, of up to One Hundred and Seventy -Five Dollars ($175)
per day or per incident for all violations or breaches of this Franchise, provided that all
violations or breaches of a similar nature occurring at the same time shall be considered
one (1) incident.
(b) In the event City believes that Grantee has breached or violated any
material provision of this Franchise, City may act in accordance with the following
procedures:
(i) City 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 City under this 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 City shall then give written notice of not less than
fourteen (14) days of a public hearing to be held before the City Council. Said
notice shall specify the violations or breaches alleged to have occurred. At the
public hearing, the City Council shall hear and consider relevant evidence and
thereafter render findings and its decision. In the event the City 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
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breach after notice thereof from City and is not diligently proceeding to fully cure
such violation or breach, the City Council may impose penalties from the security
fund or may terminate this Franchise. If the City chooses to terminate this
Franchise, the following additional procedure shall be followed:
1. The City shall provide Grantee with written notice of the
City's intention to terminate this 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 this Franchise.
3. In the event that City determines to terminate this
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.
9.7 Reservation of Rights. City and Grantee reserve all rights that they may possess
under Applicable Laws unless expressly waived herein.
SECTION 10
MISCELLANEOUS PROVISIONS
10.1 Franchise Renewal. Any renewal of this Franchise shall be in accordance with
Applicable Laws. The term of any renewed Franchise shall be limited to a period not to exceed
fifteen (15) years.
10.2 Amendment of Franchise. Grantee and City may agree, from time to time, to
amend this Franchise. Such written amendments may be made subsequent to a review session
pursuant to Section 7.4 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 Applicable
Laws. City shall act pursuant to local law pertaining to the ordinance amendment process.
10.3 Right 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 otherApplicable Laws, relating to nondiscrimination.
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24316341
(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. S ection 5 51, 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) 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
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.
(e) 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
renewable 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.
(i) 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.
(ii) 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
biiiing. Confidentiality of this information is subject to paragraph (i) above.
(iii) For purposes of this Section 10.3, a "class IV cable
communications channel" means a signaling path provided by a System to
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transmit signals of any type from a Subscriber terminal to another point in the
System.
10.4 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 which is required to be
reserved by a provision of this Franchise.
10.5 Severability. If any provision of this Franchise 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 Franchise, 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 City and Grantee, provided that City shall give Grantee thirty (30) days written notice of such
change before requiring compliance with said provision or such longer period of time as may be
reasonably required for Grantee to comply with such provision.
10.6 Force Majeure. In the event Grantee's performance of any of the terms,
conditions, obligations or requirements of this Franchise is prevented or impaired due to any
cause beyond its reasonable control, such inability to perform shall be deemed to be excused for
the period of such inability and no penalties or sanctions shall be imposed as a result thereof,
provided Grantee has notified City in writing within ten (10) days of its discovery of the
occurrence of such an event. Such causes beyond Grantee's reasonable control shall include, but
shall not be limited to acts of God, civil emergencies and labor unrest or strikes, untimely
delivery of equipment, inability of Grantee to obtain access to an individual's property and
inability of Grantee to secure all necessary permits to utilize utility poles and conduit so long as
Grantee utilizes due diligence to timely obtain said permits.
SECTION 11
PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
11.1 Publication; Effective Date. This Franchise shall be published in accordance with
Applicable Law. The effective date of this Franchise shall be the date of acceptance by Grantee
in accordance with the provisions of Section 11.2.
11.2 Acceptance. Grantee shall accept this Franchise within thirty (30) of its
enactment by the City Council, unless the time for acceptance is extended by City. Such
acceptance by the Grantee shall be deemed the grant of this Franchise for all purposes. In the
event acceptance does not take place, this Franchise and any and all rights previously granted to
Grantee shall be null and void.
(a) Upon acceptance of this Franchise, Grantee shall be bound by all the terms
and conditions contained herein.
(b) Grantee shall accept this Franchise in the following manner:
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(i) This Franchise will be properly executed and acknowledged by
Grantee and delivered to City.
(ii) With its acceptance, Grantee shall also deliver any, , security fund
and insurance certificates required herein that have not previously been delivered.
Passed and adopted this -q-tA_ day of t<4 r -,.-...6-A 2011
ABy:
Thomas A. Furlong, Mayor
ATTES
A fy
By*
Todd Gerhardt, City Clerk/Manager
ACCEPTED: This Franchise is accepted, and we agree to be bound by its terms and conditions.
MEDIACOM MINNESOTA LLC
Dated: 201-3
By: I'Lv�
Its:
V
SW04N TO BEFORE ME this
2
..�rezl day of 12013
Jenna M. Guarino
Nay Publio In State of Now York
QuaRW In Orange County
Notary Public Rego Noe 02GU6237733
My 0munMion Expires:, 3/2S/2o,,
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EXHIBIT A
DESCRIPTION OF SYSTEM
1. The Cable System shall be designed, constructed, routinely inspected, and maintained to
guarantee that the Cable System meets or exceeds the requirements of the most current editions
of the National Electrical Code (NFRA 70) and the National Electrical Safety Code (ANSI C2).
In all matters requiring interpretation of either of these codes, the City's interpretation shall
control over all other sources and interpretations.
2. General Requirements. Grantee shall use equipment used in high-quality, reliable,
modern Cable Systems of similar design.
3. General Description. The Cable System shall provide Subscribers with a technically
advanced and reliable Cable System. The System shall have at least 750 MHz of bandwidth
capacity, capable of delivering approximately 80 analog Channels of programming. The System
will be two-way active, and it will be designed to have capability to transmit return signals
upstream in the 5-40 MHz spectrum. The design will provide the benefits of proven 80 -Channel
electronics while positioning the System for expansion of bandwidth and Channel capacity as
technology and future services develop.
4. Desi The design of the System shall be based upon a "Fiber to the node" architecture
that will deliver the signals by fiber optics directly to each neighborhood. Grantee's initial
design includes a minimum of six (6) fibers to each node site having a neighborhood group
average of approximately three hundred (300) homes. If Grantee splits nodes into smaller sizes,
fewer fibers will extend to such smaller nodes. There shall be no more than seven (7) active
amplifiers in a cascade from each node to the residential dwelling. The incorporation of stand-by
power supplies, strategically placed throughout the system including all hubs, will further reduce
the likelihood of Service Interruptions.
5. Technical Standards. The System shall meet or exceed FCC requirements. In no event
shall the System fall below the following standards:
a. The System shall be capable of meeting the following distortion parameters:
1. Carrier to RMS Noise 48 dB
2. Carrier to Second Order 53 dB
3. Carrier to Cross Modulation 51 dB
4. Carrier to Composite Triple Beat 53 dB
b. The frequency response of a single Channel as measured across any 6 MHz
analog Channel shall not exceed +/- 2 dB.
c. rque respo g f e entire passband shall not exceed N/10+ 2 dB for
the entre y� �n�w ere is the number of amplifiers in cascade.
s .
d. The System shall- '-deli
such that at a minimum all technical specifications
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of this Franchisle4t'� 1_y `
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e. The System shall be designed such that no noticeable degradation in signal quality
will appear at the Subscriber terminal.
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a
EXHIBIT B
PEG ACCESS FACILITIES AND EQUIPMENT
1. PUBLIC, EDUCATIONAL AND GOVERNMENT (PEG) ACCESS CHANNELS.
a) Grantee shall provide to each of its Subscribers who receive some or all of the
Services offered on the Cable System, reception on at least one (1) specially designated
government access channel. No sooner than January 1, 2017 and with at least ninety (90)
days advance written notice to Grantee (which notice maybe sent no sooner than October
15 2016), the City shall have the right to require that Grantee provide one (1) additional
access channel (for a total of two (2) PEG Access Channels). The VHF spectrum must
be used for at least one (1) of the PEG Access Channels required in this paragraph. No
charges may be made for Channel time or playback of prerecorded programming on the
specially designated access Channels. Personnel, equipment and production costs maybe
assessed, however, for live studio presentations exceeding five (5) minutes in length.
Charges for those production costs and fees for use of other public access Channels must
be consistent with the goal of affording the public a loes-cost means of television access.
b) Whenever the PEG Access Channels are in use during eighty percent (80%) of the
weekdays, Monday to Friday, for eighty percent (80%) of the time for any consecutive
three (3) hour period for six (6) weeks running, and there is demand for use of an
additional Channel for the same purpose, the Grantee shall then have six (6) months in
which to provide a new PEG Access Channel for the same purpose, provided that
provision of the additional Channel or Channels must not require the Cable System to
install Converters.
C) The PEG Access Channels shall be dedicated for PEG use for the term of the
Franchise, provided that Grantee may, utilize any portions of the PEG Access Channels
not scheduled for PEG use. City shall establish rules and procedures for such scheduling
in accordance with Section 611 of the Cable Act (47 U.S.C. § 531).
d) Grantee shall also designate the standard VHF Channel 6 for uniform regional
channel usage currently provided by "Metro Channel 6" as required by Minnesota
Statutes Section 238.43. Programming on this regional channel shall include a broad
range of informational, educational, and public service programs and materials to cable
television subscribers throughout the Twin Cities metropolitan area.
e) Grantee shall have no obligation to provide programming on any PEG Access
Channel.
2. ANALOG, DIGITAL AND HD PEG CARRIAGE REQUIREMENTS.
a) Grantee shall provide the PEG Access Channels on the Basic Cable Service tier or
the lowest tier of service offered by Grantee in accordance with the Cable Act. At such
time as Grantee no longer offers Basic Cable Service in an analog format, Grantee shall
carry all PEG Access Channels in a standard digital format in Grantee's Basic Cable
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0
Servicep ackage, unless the parties agree to an earlier conversion date. Thereafter, and
upon ninety (90) days notice from the City, Grantee shall make PEG Access Channel 8
available in high definition (HD) format, provided that Grantee receives a satisfactory
HD signal from the program originator and provided City understands HD Channels may
not be available on the Basic Cable tier of service. Grantee shall have no obligation to
carry any PEG Access Channels in more than one format; i.e. dual carriage.
b) The City acknowledges that receipt of an HD format Access Channel may require
Subscribers to buy or lease special equipment, or pay additional HD charges applicable to
all HD services.
C) Upon ninety (90) days written notice to Grantee, the City may provide PEG
Access Channel 8 in only HD format to the demarcation point to provide the signal to
Grantee and as such the Cit will no longer provide the PEG Access Channel 8 in a
City g
standard definition digital format. Grantee shall provide all necessary transmission
equipment from the demarcation point to the headend, in order to receive and retransmit
the PEG Access Channels. Access Channel signals delivered in HD format to Grantee
shall not require Grantee to deliver such HD signals to Subscribers except as set forth
herein and shall not be required to be carried on the Basic Cable tier of service or on a
dual carriage basis.
ACCESS CHANNEL LOCATIONS.
a) Grantee shall make every reasonable effort to coordinate the cablecasting of PEG
Access programming on the Cable System on the same Channel designations as such
programming is currently cablecast within the City. In no event shall any PEG Access
Channel reallocations be made prior to ninety (90) days written notice to the City by
Grantee, except for circumstances beyond Grantee's reasonable control. The PEG
Access Channels will be located in the channel neighborhood within reasonable
proximity (4-7 channel slots) to other commercial video or broadcast Channels, excluding
pay-per-view programming offered by Grantee in the City.
d) Grantee agrees not to encrypt the PEG Access Channels differently than other
commercial Channels available on the Cable System.
e) In conjunction with each Access Channel(s) relocation, Grantee shall provide an
aggregate maximum of Five Thousand Dollars ($5,000) of in-kind air time per event on
advertiser supported Channels (e.g. USA, TNT, TBS, Discovery Channel, or other
comparable Channels) for the purpose of airing City's, or its designees', pre -produced
thirty (30) second announcement explaining the change in location. If more than one
PEG Access Channel is moved at one time the total amount for such move shall not
exceed Five Thousand ($5,000).
4. ANCILLARY EQUIPMENT. Any ancillary equipment owned and operated by Grantee
for the benefit of PEG Access Channels beyond the demarcation point(s) of each building which
received Complimentary Service on Grantee's fiber paths or Cable System, whether referred to
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switchers, routers or other equipment, will be maintained by Grantee, at no cost to the City or
schools for the life of the Franchise. Grantee is responsible for any ancillary equipment on its
side of the demarcation point and the City or school is responsible for all other
production/playback equipment.
5. PEG TECHNICAL QUALITY.
Grantee shall not be required to carry a PEG Access 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 Access Channels that results in a material degradation of signal
quality or impairment of viewer reception of PEG Access Channels, provided that this
requirement shall not prohibit Grantee from implementing new technologies also utilized for
commercial Channels carried on its Cable System.
a) Grantee shall meet FCC signal quality standards when offering Access Channels
on its Cable System and shall continue to comply with closed captioning pass-through
requirements.
b) Within twenty-four (24) hours of a written request from City to the Grantee
identifying a technical problem with a Access 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 deterninethe course of action to remedy the problem.
C) Grantee shall cablecast the entire programming stream of each PEG Access
Channel including any Program Related Material, as defined below in this Paragraph
6(d)), "Program Related Material" shall mean (i) closed -captioning information, (ii)
program identification codes, (iii) program ratings information, (iv) such other material
as may be essential, necessary or appropriate for the delivery or distribution of the signal,
and (v) information and material that is directly related to the subject matter of the
programs on the PEG Access Channels, if such information or material is transmitted
concurrently or substantially concurrently with its associated program content.
6. 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 beyond the demarcation point at City Hall in order to be
compatible with such change for purposes of transport and delivery of the Access Channels,
Grantee shall, at its own expense and free of charge to City, purchase such equipment as may be
necessary to facilitate the cablecasting of the Access Channels in accordance with the
requirements of the Franchise.
7. 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
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reliably and satisfy all applicable technical standards and related obligations of the Franchise free
of charge to the City or its designated entities.
8. PEG OPERATIONS. City may in its sole discretion, negotiate agreements with
neighboring jurisdictions served by the same Cable System, educational institutions or others to
share the operating expenses of the PEG Access Channels. City and Grantee may negotiate an
agreement for management of PEG Access Facilities, if so desired by both parties.
9. TITLE TO PEG EQUIPMENT. City shall retain title to all PEG equipment and facilities
purchased or otherwise acquired.
10. PROMOTIONOF PEG ACCESS. Grantee shall allow the City to place bill stuffers in
Grantee's Subscriber statements solely to promote PEG Access at a cost to the City not to exceed
Grantee's cost, no less frequently than twice per year upon the written request of the City and at
such times that the placement of such materials would not materially and adversely affect
Grantee's cost for the production and mailing of such statements. The City agrees to pay
Grantee in advance for the actual cost of such bill stuffers. Grantee shall also make available
access information provided by City in Subscriber packets at the time of Installation and at the
counter in the System's business office within the Service Area. Grantee shall also include a
listing of the known programming to be cablecast on PEG Access Channels in or on any program
guide of services for the Cable System.
11.
PEG ACCESS OPERATING SUPPORT.
a) No sooner than January 1, 2019 and with at least ninety (90) days advance written
notice to Grantee (which notice maybe sent no sooner than October 1, 2018), the City
shall have the right to require that Grantee shall collect on behalf of City a per Subscriber
fee of Sixty cents (60¢) per month solely to fund public, educational and governmental
access expenditures (hereinafter "PEG Fee").
b) The PEG Fee is not intended to represent part of the Franchise Fee and is intended
to fall within one (1) or more of the exceptions in 47 U.S.C. § 542. The PEG Fee maybe
categorized, itemized, and passed through to Subscribers as permissible, in accordance
with 47 U.S.C. §542 or other Applicable Laws. Grantee shall pay the PEG Fee to the
City quarterly at the same time as the payment of Franchise Fees under Section 7.1 of the
Franchise. Grantee agrees that it will not offset or reduce its payment of past, present or
future Franchise Fees required as a result of its obligation to remit the PEG Fee.
C) Any PEG Fees owing pursuant to this Franchise which remain unpaid more than
forty-five (45) days after the end of a given quarter shall be delinquent and shall
immediately thereafter accrue interest at twelve percent (12%) per annum. Enforcement
of unpaid PEG Fees shall be handled in accordance with Section 9.6 of the Franchise,
however, Grantee shall in all cases be subject to interest on any payment more than forty-
five (45) days after the end of a given quarter.
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12. SERVICE TO PUBLIC BUILDINGS.
a) Throughout the term of this Franchise Grantee shall provide, free of charge, one
(1) service Drop, one (1) Converter, if necessary and requested, and Basic Cable Service
and the next highest penetrated level of Cable Service generally available to all
Subscribers (as of the effective date referred to as Expanded Basic Cable Service)
("Complimentary Service"), to all of the sites listed on Exhibit C attached hereto.
b) The City or the building occupant shall have the right to extend Cable Service
throughout the building to additional outlets without any fees imposed by Grantee for the
provision of Complimentary Service to such additional outlets. If ancillary equipment,
such as a Converter, is required to receive the signal at additional outlets beyond the one
(1) complimentary Converter referenced in paragraph a) above, the institution shall be
required to pay the same monthly rate that Subscribers pay.
C) Notwithstanding anything to the contrary set forth in this section, Grantee shall
not be required to provide Complimentary Service to such buildings unless it is
technically feasible. Outlets and maintenance of said Complimentary Service shall be
provided free of fees and charges.
d) Grantee shall, in any public building hereinafter built, provide all materials,
design specifications and technical advice to provide Complimentary Service to such
building. If the Drop line to such building exceeds three hundred fifty (350) feet, Grantee
will accommodate the Drop up to three hundred fifty (350) feet if the City or other
agency provides the necessary attachment point for aerial service or conduit pathway for
underground service. If the necessary pathway is not provided, the City or other agency
shall pay the incremental cost of such Drop in excess of two hundred fifty (250) feet for
an aerial service Drop, or in excess of one hundred fifty (150) feet for an underground
service Drop. For purposes of this paragraph, "incremental cost" means Grantee's actual
cost to provide the Drop beyond the applicable distances, with no mark-up for profit.
The recipient of the service will secure any necessary right of entry.
e) Throughout the term of this Franchise, Grantee shall provide a total of nine (9)
complimentary Converters, to be allocated as determined by the City, to the following
existing Complimentary Service locations:
i. City Hall
ii. Fire Stations (2)
iii. Public Works Building
iv. Water Treat Plant
V. Recreation Center
f) Two-way capability allowing for live transm�ss�on of PE(r prograirming
upstream to Grantee's headend shall be provided to the public buildings listed in Exhibit
D.
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I.
4
E "XHIBIT C
d
SZRO PUBLIC FACILITIES
CITY BUILDINGS:
City Hall
Fire Station
Public Works
Chanhassen Recreation Center
Other:
Bluff Creek Elementary
Chanhassen Elementary School
St. Hubert's Catholic Church School
Minnetonka Middle School — West
Chapel Hill Academy
Chanhassen High School
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7700 Market Blvd.
7610 Laredo
7901 Park Place
231 d Coulter Drive
(to be determined by mutual consent)
2300 Coulter Blvd.
7600 Laredo Drive
8215 Main Street
6421 Hazeltine Blvd.
306 West 78thStreet
2200 Lyman Blvd.
EXHIBIT D
PUBLIC BUILDINGS TO BE PROVIDED WITH TWO-WAY CAPABILITY
CITY BUILDINGS:
City Hall
Fire Station
Public Works
Chanhassen Recreation Center
Other:
2. SCHOOLS IN CHANHASSEN:
Bluff Creek Elementary
Chanhassen Elementary School
St. Hubert's Catholic Church School
Minnetonka Middle School — West
Chapel Hill Academy
Chanhassen High School
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7700 Market Blvd.
7610 Laredo
7901 Park Place
2310 Coulter Drive
(to be determined by mutual consent)
2300 Coulter Blvd.
7600 Laredo Drive
8215 Main Street
6421 Hazeltine Blvd.
306 West 78th Street
2200 Lyman Blvd.
EXHIBIT E
FRANCHISE FEE PAYMENT WORKSHEET
TRADE SECRET — CONFIDENTL4L
Month/Year Month/Year Month/Year Total
Cable Service Revenue
Installation Charge
Franchise Fee Revenue
Advertising Revenue
Home Shopping_ Revenue
Equipment rental
Other Revenue
REVENUE
Fee Calculated
Franchise Fees
PEG Fee Per Sub
Fee Factor: 5%
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