Ordinance 678CABLE TELEVISION FRANCHISE ORDINANCE
City of Chanhassen, Minnesota
and
CMN-RUS, INC.
August 23, 2021
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ORDINANCE NO.678
AN ORDINANCE GRANTING A FRANCHISE TO CMN-RUS, INC. 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 Council of the City of Chanhassen ordains:
STATEMENT OF INTENT AND PURPOSES
The City of Chanhassen intends, by the adoption of this Franchise, to bring about the construction
of an all fiber Cable System and the continued operation of it. Such an all fiber Cable System 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.
FINDINGS
In the review of the request for a franchise 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, character and
other municipal franchise experience 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, to the best of their knowledge,
with the existing applicable State statutes, federal laws and regulations; and
4. The Franchise granted to Grantee is nonexclusive.
SECTION 1. SHORT TITLE AND DEFINITIONS
1.1 Short Title. This Franchise shall be known and cited as the Cable Television 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 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.
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(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
(ii) other programming service; and 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:
(i) 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;
(iv) An open video system that complies with Section 653 of the Cable Act; or
(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.
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(g) "QV" 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) "Council' means the City Council of the City of Chanhassen, Minnesota.
(i) "Dr2f' means the cable that connects the ground block on the Subscriber's
residence to the nearest feeder cable of the System.
0) "Dwelling Unit' means any residential single family and multi -family home or unit
(consistent with City Code Section 7.20) or business located within the City that is capable
of receiving Grantee's Cable Service without the need for Grantee to obtain any private
property rights from a third party or that has access to Cable Service through a fiber -to -the -
premises network.
(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 Governmental Authority on a Grantee or cable Subscriber, or both, solely
because of their status as such. The term "Franchise Fee" does not include: (i) any tax, fee
or assessment of general applicability (including any such tax, fee or assessment imposed
on both utilities and cable operators or their services but not including a tax, fee, or
assessment which is unduly discriminatory against cable operators or cable Subscribers);
(ii) capital costs which are required by the Franchise 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 ("EITF") 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 CMN-RUS, Inc., its agents and employees, lawful successors,
transferees or assignees.
(q) "Gross Revenues" 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,
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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, set -top box 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 GAAP.
(r) "Headend" means the point of origination and processing for most of the signals
received by the Cable System from external content providers.
(s) "Initial Service Area" means a geographic area that represents at least eighty-five
percent (85%) of the Dwelling Units in the City.
(t) "hvstallation" means the connection of the System from feeder cable to the point of
connectivity.
(u) "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.
(v) "Normal Operating, Conditions" means those service conditions which are within
the control of the Grantee. Those conditions which are not within the control of the Grantee
include, but are not limited to, natural disasters, civil disturbances, power outages,
telephone network outages, and severe or unusual weather conditions. Those conditions
which are ordinarily within the control of the Grantee include, but are not limited to, special
promotions, pay -per -view events, rate increases, regular peak or seasonal demand periods,
and maintenance or upgrade of the System.
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(w) "PEG" means public, educational and governmental.
(x) "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.
(y) "Public. Educational or Governmental 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.
(z) "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.
(aa) "Service Interruption" means the loss of picture or sound on one (1) or more Cable
Channels.
(bb) "Standard Installation" means the first Two Hundred Fifty (250) feet of residential
Drop.
(cc) "State" means the State of Minnesota.
(dd) "Street" means the area on, below, or above a public roadway, highway, street,
cartway, bicycle lane or public sidewalk in which the city has an interest, including other
dedicated rights -of -way for travel purposes and utility easements of the city. "Street"
shall not include any real or personal City property that is not specifically described in the
previous sentence and shall not include City buildings, fixtures and other structures or
improvements, regardless of whether they are situated in the public right-of-way.
(cc) "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.
(ff) "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 Channels of video programming in the
City.
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
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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: CMN-RUS, Inc.
8837 Bond Street
Overland Park, KS 66214
Attn: Legal Department
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: (i) the provisions of this non-exclusive Franchise to provide Cable Service
within the City; and (ii) 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: (i) providing
services other than Cable Services to the extent not prohibited by Applicable Law; or (ii)
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 prohibited
by Applicable Law and no provision herein shall be construed to limit or give up any right to
regulate.
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 (180) days after the
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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 so long as Grantee has received written authorization from
pole/facility owner prior to installation. The City shall have no responsibility in assisting
Grantee with acquiring said authorization. Nothing in this section authorizes the Grantee
to construct 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, subject to approval by the City based on location and depth. 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,
and consistent with Minn. Stat. § 238.086, to the extent there is a conflict in language
between this Franchise and a City ordinance regulating the Grantee's use of the Streets,
the terms of this Franchise shall prevail. Subject to express federal and state preemption,
the material terms and conditions contained in this Franchise may not be unilaterally altered
by the City through subsequent amendments to the City Code, ordinances or any regulation
of City, except in the lawful exercise of City's police power. Grantee acknowledges that
the City may modify its regulatory policies by lawful exercise of the City's police powers
throughout the term of this Franchise. Grantee agrees to comply with such lawful
modifications to the City Code; however, Grantee reserves any rights it may have to
challenge such modifications to the City Code whether arising in contract or at law. The
City reserves all of its rights and defenses to such challenges whether arising in contract or
at law.
(f) Nothing in this Franchise shall (i) abrogate the right of the City to perform any
public works or public improvements of any description, (ii) be construed as a waiver of
any codes or ordinances promulgated by the City or (iii) 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 Minn.
Stat. § 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.
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2.4 Term. The initial term of this Franchise shall be for the period of ten (10) years from the
date of acceptance by Grantee, unless renewed, revoked or, terminated sooner as herein provided
("Initial Tern"). 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 Reserved.
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 have
the capability to serve, every dwelling unit and commercial building in the Initial Service
Area. Grantee shall deploy Cable Services throughout the Initial Service Area no later than
thirty-six (36) months from the start of physical construction of the System. Thereafter,
Grantee shall not be required to extend the Cable System beyond the Initial Service Area
unless there is a minimum density equivalent of thirty (30) homes per cable mile of System,
as measured from the nearest splitter on the Cable System. After Service has been
established by activating trunk and/or distribution cables in the Initial Service Area as such
area may be extended over time, Grantee shall provide Cable Service to any requesting
Subscriber within the Initial Service Area within thirty (30) days from the date of request,
provided that the Grantee is able to secure access to all rights -of -way and any other rights
necessary to extend Service to such Subscriber within such thirty (30) day period on
reasonable terms and conditions.
(b) Grantee shall bury all Drops to Subscribers' dwellings when required by local
construction standards within a reasonable time period. 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 1' of each year.
SECTION 3. CONSTRUCTION STANDARDS
3.1 Permits. Grantee shall not construct any Cable System facilities until Grantee has secured
the necessary permits from City or other Governmental Authority. Grantee shall comply with
Section 17 of the City Code. The City and Grantee agree that the permit application requirements
set forth at: Permits / Licenses I Chanhassen. MN - Official Website and Exhibit A set forth all of
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the information the Grantee will be required to submit to the City to obtain a construction permit
from the City. Further, City agrees that Exhibit A attached hereto satisfies the requirements of
Section 17.78(2) of the City Code. Within thirty (30) business days of the submittal of a complete
application, as determined by the City, for a construction permit, the City will issue Grantee a
blanket construction permit to install aerial and underground facilities within City Streets. Each
blanket construction permit will cover a large geographic area of the City consisting of up to one
thousand (1,000) homes and/or businesses. Submission of blanket construction permits shall be
staggered to allow the City adequate time for review. Pursuant to 47 U.S.C. § 531, the City has
requested and Grantee has agreed to provide, institutional dark fiber connections to City owned
facilities as specified in a separate agreement between the parties ("Fiber Agreement"). As
consideration for the Fiber Agreement, the City shall not charge Grantee any permitting fees for
the initial construction of the System so long as the terms of the Fiber Agreement are met by
Grantee. If Grantee fails to comply with the Fiber Agreement or is otherwise legally prohibited
from complying with the Fiber Agreement, Grantee agrees to promptly pay the City permit fees,
at the City's then current rates, for all previously submitted permit applications and, thereafter,
shall pay the City permit fees for all future permit applications. The City and Grantee shall
undertake reasonable steps to meet its obligations under this paragraph.
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) When installing its facilities underground, Grantee will install its fiber utilizing
boring technology and procedures. In areas with high construction costs and/or where the
deployment of conduit is not cost effective or feasible, on a case -by -case basis, subject to
City approval, which approval will not be arbitrarily, discriminatorily, or unreasonably
withheld, conditioned or delayed, Grantee may install its fiber utilizing open trench or
micro -trenching technology and procedures.
(c) Grantee shall have the right to pothole in a paved driveway, sidewalk, trail or street
to locate other buried utilities. Grantee shall not be required to remove and replace full or
half street sections as a result of pothole operations. In extraordinary circumstances,
removal of full joint to joint panels may be warranted. Grantee shall use commercially
reasonable standards and efforts to restore any driveway, walkway or Street to the same,
or substantially similar, condition that existed before Grantee's excavation.
Notwithstanding the foregoing, Grantee shall be allowed to locate its underground facilities
at a depth of 18" to 24" in the right of way and at a depth of 36" under a Street unless, in
the opinion of the City, there are other facilities located at or near that depth or locating at
that depth will pose a safety hazard.
(d) Grantee shall be granted access to any easements granted to a public utility,
municipal utility or utility district following standard lot lines in any areas annexed by City
or new developments, subject to any other restrictions that may be placed on the easements.
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(e) 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.
(f) 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 and Construction.
(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) During construction of the System in the Initial Service Area, Grantee will
implement a construction communications plan and will use commercially reasonable
efforts to meet the following timelines and standards, as they relate to each approved
construction application permit area:
(i) At least thirty (30) days, but no more than forty-five (45) days, prior to the
commencement of construction in a residential area, Grantee will send a detailed
letter to the residential addresses in that area advising occupants of upcoming
construction activities.
(ii) At least fourteen (14) days, but no more than thirty (30) days, prior to the
commencement of construction in a residential area, Grantee will send postcard
reminder to the residential addresses in that area reminding occupants of upcoming
construction activities.
(iii) At least three (3) days, but no more than seven (7) days, prior to the
commencement of construction in a residential area, Grantee will send out street
teams to place signs in the yards of those residential properties where Grantee will
commence with construction activities.
(iv) Each communication sent to a residential address will include the URL to
Grantee's construction website: metronetinc.com/construction. On this website
residents can find additional information regarding the construction plans in their
area. Following construction, property owners will also be able to use this website
to submit damage claims in the event Grantee inadvertently causes damage to their
property.
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(c) Consistent with Applicable 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 as it shall find necessary to ensure compliance with the terms of this
Franchise and Applicable Law.
3.4 Revair of Streets and Property.
(a) 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. Any disputes Grantee may have with property owners shall not serve
to unreasonably delay the City's processing of permits for construction of the System.
(b) Consistent with Section 17 of the City Code, Grantee will use commercially
reasonable efforts to restore property within three (3) business days of the disturbance,
subject to factors beyond Grantee's reasonable control. Consideration will be given to the
amount of restoration needed with each boring and Grantee will endeavor to conduct
borings in a manner which requires the least amount of restoration (e.g. when appropriate
using streets and sidewalks for equipment rather than lawns, etc.). After boring under the
street / curb and sidewalks, Grantee will inspect for any heaving that may have occurred
form the boring process. City reserves its right to inspect Grantee's restoration work in
accordance with Chapter 17 of the City Code.
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 shall at all
times comply with Section 17-92 of the City Code. 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, 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.
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(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 (10) days advance notice to arrange for such
temporary changes.
3.6 Tree Trimming. Upon advance notice and approval by City, 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.
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.
3.9 Construction Hours. Grantee and its contractors may perform construction activities
including, but not limited to, boring, aerial construction, pulling cable, splicing and clean-up work
("Construction Activities") from 7 AM until 7 PM, Monday through Friday and 8 AM until 5 PM
Saturday. Upon advanced request by Grantee the City may provide permission for Grantee and
its contractors to perform work on Sundays.
SECTION 4. DESIGN PROVISION
4.1 Minimum Channel Capacity.
(a) Grantee shall develop, construct and continue to provide for the term of this
Franchise a fiber -to -the -premises Cable System which is engineered and activated so as to
be capable of delivering a minimum of eighty (80) video programmed 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 that are applicable to a fiber -to -the -premises system as they may be amended from
time to time and shall be operated so as to minimize disruption of signal to Subscribers. Grantee
shall construct a fiber -to -the -premises network designed, constructed, routinely inspected, and
maintained to guarantee that the Cable System meets or exceeds the requirements of the most
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current editions of the National Electrical Code (NFRA 70) and the National Electrical Safety
Code (ANSI C2). Grantee shall use equipment used in high -quality, reliable, modem Cable
Systems of similar design.
4.3 Special Testing. City may require Grantee to conduct 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. 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 with Grantee prior to requiring special tests
to discuss the need for such and, if possible, visually inspect those locations which are the focus
of concern. Nothing in this Section 4.3 shall waive the City's rights to enforce Grantee's
compliance with the requirements of the City Code.
4.4 FCC Reports. To the extent applicable to Grantee's Cable System, the results of tests
required to be filed by the FCC shall also be copied to the City 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 federal law
and regulations including 47 C.F.R., Part 11, and any Minnesota State EAS 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. SERVICE PROVISIONS
5.1 Rate Regulation. The City reserves the right to regulate rates for Basic Cable Service and
any other Cable 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.
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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. The following customer service standards
shall apply once Grantee provides Cable Service to its first Subscriber in the City. Grantee shall
maintain a convenient local customer service or bill payment 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 necessary or, in the alternative, establish a system for having Subscriber equipment
picked up at the Subscriber residence free -of -charge. Grantee shall also provide the necessary
facilities, equipment and personnel to comply with the following consumer protection standards
under Normal Operating Conditions:
(a) Cable System office hours and telephone availability.
(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.
(2) After Normal Business Hours, the access line may be answered by
a service or an automated response system, including an answering
machine. Inquiries received after Normal Business Hours must be
responded to by a trained Grantee representative on the next business day.
(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:
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(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, Grantee shall
use commercially reasonable efforts to promptly contact the customer. The
appointment will be rescheduled, as necessary, at a time which is convenient for
the customer.
(c) Communications between Grantee and Subscribers:
(i) Refunds. Refund checks will be issued promptly, but no later than either:
(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) Billine.
(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
charges. Bills will also clearly delineate all activity during the billing period,
including optional charges, rebates and credits.
(ii) In case of a billing dispute, Grantee must respond to a written complaint
from a Subscriber within thirty (30) days of receipt of the complaint.
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(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.
(1) Subscribers shall be advised of the procedures for resolution of
complaints about the quality of the television signal delivered by Grantee,
including the address of the responsible officer of the City. Subscribers will
be notified of any changes in rates, programming services or Channel
positions as soon as possible in writing. Notice must be given to
Subscribers a minimum of thirty (30) days in advance of such changes if
the change is within the control of Grantee. In addition, Grantee shall notify
Subscribers thirty (30) days in advance of any significant changes in the
information required by this Section 5.3(e).
(2) Unless otherwise mandate by federal law, for purposes of this
Section, the availability of the foregoing information on Grantee's website
shall constitute compliance.
(f) Notice or Rate Programming Change. In addition to the requirement of this
subparagraph 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, provide the City with
any standard form residential Subscriber contract utilized by Grantee. If no such written
contract exists, Grantee shall file with the City a document completely and concisely
stating the length and terms of the Subscriber contract offered to customers. The length
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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
(i) is not misleading and (ii) does not omit material information. 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. Grantee shall comply with all Applicable Laws related to the
protection of a Subscriber's privacy including, but not limited to, 47 U.S.C. § 551 and
Minn. Stat. §238.084 Subd. 1(s).
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(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.
6.2 Grantee Support for PEG Usage. In accordance with the provisions of the Cable Act and
Minn, Stat. § 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. OPERATION AND ADMINISTRATION PROVISIONS
7.1 Franchise Fee.
(a) During the term 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, 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
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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 for the preceding
calendar quarter and such other relevant facts as may be 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 by law, 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 thirty (30) days prior written notice, City shall have the right to conduct an
independent audit of Grantee's records. City shall not audit any period of time more than
once. 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 Non 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 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
Fees provided for in Section 7.1 of this Franchise shall not be deemed to be 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
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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 modem 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
provide without cost and in a timely manner such information and documents as the City
may reasonably 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 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 is provided by Grantee in other
systems owned, operated or managed by it, its parent company or any affiliated company,
Grantee and the City will, in good faith, review the 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
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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) Upon request of the City but no less than annually, Grantee shall provide the
following information to the City:
(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
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 home 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 Fifty Thousand and No/100
Dollars ($50,000) in the form of a performance bond, established in a local bank and
maintained throughout the term of this Franchise. At such time as a majority of Grantee's
construction in the Initial Service Area is substantially complete, and provided Grantee is
not in default under this Agreement and there are no uncured issues related to construction,
the amount of the performance bond shall be reduced to Ten Thousand Dollars ($10,000)
for the remainder of the Franchise term.
(b) The security fund may be 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
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taking any security funds is improper, shall be through legal action after the security has
been drawn upon. Actions brought by Grantee hereunder may be 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 policy:
(i) The policy shall provide coverage on an "occurrence" basis.
(ii) The policy shall cover personal injury as well as bodily injury.
(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 ten (10) days' notice in the
event of nonpayment)
(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.
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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 against
any and all lawsuits, claims, causes of action, actions, liabilities, demands, damages,
judgments, settlements, disability, losses, expenses (including 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 way connected with
the grant of this Franchise, the operation of Grantee's 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 way by the amount or type of damages or compensation payable by or 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 have by
reason of the indemnification provided for in this Franchise, because of the acceptance by
City, or the deposit with City by Grantee, of any of the insurance policies described in this
Franchise.
(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 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
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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 Cable System or Grantee's 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.
(b) Without limiting the nature of the events requiring the Council's approval under
this section, the following events shall be deemed to be a sale, assignment or other transfer
of the Franchise and/or Cable System requiring compliance with this section: (i) the sale,
assignment or other transfer of all or a majority of Grantee's assets or the assets comprising
the Cable System to any Person; (ii) the merger of the Grantee or any of its parents with or
into another Person (including the merger of Grantee or any parent with or into any parent
or subsidiary corporation or other Person); (iii) the consolidation of the Grantee or any of
its parents with any other Person; (iv) the creation of a subsidiary corporation or other
entity; (v) the sale, assignment or other transfer of capital stock or partnership, membership
or other equity interests in Grantee 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 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,
and/or the System or the subsequent amendment thereof. The term "Controlling Interest"
as used herein is not limited to majority equity ownership of the Grantee, but also includes
actual working control over the Grantee, 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
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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 inquiry. 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 financial qualifications to
operate and maintain the System and comply with all Franchise requirements for the
remainder of the term of this Franchise. If, after considering the 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) The prior written consent of the City shall not be required under this Section 9.1 for
internal corporate reorganizations involving any entity that is controlled or under common
control with Grantee or pledges of the Franchise as collateral or security for any loan or
other debt instrument.
(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 Minn. Stat. § 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 fast refusal to purchase the Cable System in the event
the Grantee receives a bona fide offer to purchase the Cable System from any Person
provided, however, that if Grantee is authorized to provide telecommunications services
on the System pursuant to state or federal law or provides information services on the
System, the City may not purchase any portion of the System used to provide such
telecommunications or information services. Bona fide offer as used in this section means
a written offer which has been accepted by Grantee, subject to the City's tights 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.
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9.3 Abandonment or Removal of Franchise Property.
(a) Grantee may not abandon the Cable System or any portion thereof without having
fast 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. Grantee shall not be required to
remove those portions of the System utilized to provide telecommunications or
information services which the Grantee is legally authorized to provide under Applicable
Law.
(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 shall restore any
affected Street to its former state at the time such facilities and equipment were installed,
so as not to impair its usefulness. In removing its plant, structures and equipment, Grantee
shall refill, at its own expense, any excavation made by or on behalf of Grantee and shall
leave all Streets and other public ways and places in as good condition as that prevailing
prior to such removal without materially interfering with any electrical or telephone cable
or other utility wires, poles or attachments. 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 provided, however, that if Grantee is authorized to provide
telecommunications services on the System pursuant to state or federal law or provides
information services on the System, Grantee shall not be required to remove those portions
of the System utilized to provide such telecommunications or information services.
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(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 in place
so long as it does not materially interfere with the use of the Street or public rights -of -way
in which such property is located or with the use thereof by any public utility or other cable
operator.
9.4 Extended Operation and Continuity of Services. 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 provided, however, that if Grantee is
authorized to provide telecommunications services on the System pursuant to state or federal law
or provides information services on the System, Grantee shall not be required to remove those
portions of the System utilized to provide such telecommunications or information services.
Failure by the Grantee to remove its cable, wires, and appliances as referenced herein shall be
subject to the requirements 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 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
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6659937v5
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 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.
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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 Riehht of Individuals.
(a) Grantee shall not deny service, deny access, or otherwise discriminate against
Subscribers, Channel users, or general citizens on the basis of race, color, religion,
disability, national origin, age, gender or sexual preference. Grantee shall comply at all
times with all other Applicable Laws, relating to nondiscrimination.
(b) Grantee shall adhere to the applicable equal employment opportunity requirements
of Applicable Laws, as now written or as amended from time to time including 47 U.S.C.
Section 551, Protection of Subscriber Privacy.
(c) Unless otherwise allowed by Applicable Law, 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, set -top box, 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
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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 billing.
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 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 Severabilitv. 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 Maieure. 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, pandemics, disease, 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.
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6689937v5
SECTION 11. PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND
EXHIBITS
11.1 Publication: Effective Date. This Franchise shall be published in accordance with
Applicable Law. The Summary of Ordinance for Publication, attached hereto as Exhibit F, shall
be published at least once in the official newspaper of the City, at Grantee's sole cost, to clearly
inform the public of the intent of the ordinance. 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.
(a) Grantee shall accept this Franchise within thirty (30) days 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.
(b) Upon acceptance of this Franchise, Grantee shall be bound by all the terms and
conditions contained herein.
(c) The City's "Notice of Intent to Consider an Application for a Franchise" ("Notice")
provided, consistent with Minn. Stat. §238.081 subd. 8, that applicants would be required
to reimburse the City for all necessary costs of processing a cable communications
franchise. Grantee submitted an application fee with its application to the City. The Notice
further provided that any unused portion of the application fee would be returned, and any
additional fees required to process the application and franchise, beyond the application
fee, would be assessed to the successful applicant. The Grantee shall therefore submit to
the City at the time of acceptance of this Franchise, a check made payable to the City of
Chanhassen, Minnesota for all additional fees and costs incurred by the City. Within thirty
(30) days of City Council approval, the City shall provide Grantee with a letter specifying
such additional costs following approval of this Franchise by the City Council.
(d) Grantee shall accept this Franchise in the following manner:
(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 23`d day of August, 2021 by the City Council of the City
of Chanhassen, Minnesota.
Laurie Hokkanen, City Manager
r
/. ! LLB/iLl
(Summary Ordinance 678 published in the Chanhassen Villager on September 2, 2021)
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6689937v5
ACCEPTED: This Franchise is accepted, and we agree to be bound by its terms and conditions.
CMN-RUS, INC.
Dated: Dc -Fobe r 2S , 2021
By: OL r"4MA
Its: 6, ehel'a Cou nee,
SWORN TO BEFORE ME this
c day of , 2021
Notary Public
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32
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6689937v5
EXHIBIT B
PEG ACCESS FACILITIES AND EQUIPMENT
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. 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 may be 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 low-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 Minn. Stat. §
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. 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. Grantee
shall carry all PEG Access Channels in a standard digital format in Grantee's Basic Cable
Service package. 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
B-1
6689937v5
Channels may not be available on the Basic Cable tier of service. Grantee shall have no
obligation to cant' 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 City will no longer provide the PEG Access Channel 8 in a 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.
3. 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.
b. Grantee agrees not to encrypt the PEG Access Channels differently than other
commercial Channels available on the Cable System.
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
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.
B-2
6689937v5
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 determine the 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 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. PEG ACCESS OPERATING SUPPORT.
a. Upon commencement of Cable Service by the Grantee to its first Subscriber in
the City and through the end of the term of this Franchise, Grantee shall collect on behalf
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of City a per Subscriber fee of Sixty cents (60¢) per month solely to fund public,
educational and governmental access expenditures (hereinafter "PEG Fee"). Upon
ninety (90) days advance written notice from the City to the Grantee, the City shall have
the unilateral right to impose either a per Subscriber, per month PEG Fee or a percentage
of Cross Revenues PEG Fee that is higher or lower than the existing PEG Fee. The City
agrees that it will impose an identical PEG Fee upon any other cable operator holding a
cable franchise issued by the City. The purpose of this provision is to ensure that all
cable operators holding a cable franchise in the City will remit the same PEG Fee to the
City.
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 may
be 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.
11. SERVICE TO PUBLIC FACILITIES.
a. Upon the City's request, for the duration of this Franchise, Grantee shall provide,
free of charge, one (1) service Drop, 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 the sites listed on Exhibit C attached hereto that are not
currently receiving service from another franchised cable operator.
b. The City, however, shall have the right to request the disconnection of the other
cable franchised operator's complimentary services and require Grantee to provide
Complimentary Service to that location provided the City maintains a fair distribution of
service to public buildings between all franchised cable operators serving the City. 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. In
the event the Grantee elects to charge or offset the value of such service from the
Franchise Fee payable to the City as may be permitted by Applicable Law, it may only
do so under this Franchise if Grantee also imposes similar charges or offsets for other
local franchising authorities served by the Grantee in the state of Minnesota, and only
then following one hundred twenty (120) days advance written notice to City.
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b. 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.
C. 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.
d. Throughout the term of this Franchise, Grantee shall provide complimentary set -
top boxes, to be allocated as determined by the City, to the Complimentary Service
locations listed in Exhibit C that are served by the Grantee.
e. Two-way capability allowing for live transmission of PEG programming upstream
to Grantee's headend shall be provided to the public buildings listed in Exhibit D.
66W937v5
EXHIBIT C
SERVICE TO PUBLIC FACILITIES
CITY BUILDINGS:
City Hall 7700 Market Blvd.
Fire Station 7610 Laredo
Fire Station #2 6400 Minnewashta Parkway, Excelsior (location
is in Chanhassen, but has an Excelsior mailing address)
Public Works 7901 Park Place
Chanhassen Recreation Center 2310 Coulter Drive (to be determined by mutual consent)
East Water Treatment Plant 201 West 79a' Street
West Water Treatment Plant 2100 Lake Harrison Road
Other
SCHOOLS IN CHANHASSEN:
Bluff Creek Elementary
230 Coulter Blvd.
Chanhassen Elementary School
7600 Laredo Drive
St. Hubert's Catholic Church School 821 Main Street
Minnetonka Middle School
6421 Hazeltine Blvd.
West Chapel Hill Academy
30 West 7891 Street
Chanhassen High School
2200 Lyman Blvd.
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6689937v5
1.
2.
EXHIBIT D
PUBLIC BUILDINGS TO BE PROVIDED WITH TWO-WAY CAPABILITY
CITY BUILDINGS:
City Hall
Fire Station
Public Works
Chanhassen Recreation Center
Other:
SCHOOLS IN CHANHASSEN:
7700 Market Blvd.
7610 Laredo
7901 Park Place
2300 Coulter Drive
(to be determined by mutual consent)
Bluff Creek Elementary
2300 Coulter Blvd.
Chanhassen Elementary School
7600 Laredo Drive
St. Hubert's Catholic Church School 8215 Main Street
Minnetonka Middle School — West
6421 Hazeltine Blvd.
Chapel Hill Academy
306 West 78d' Street
Chanhassen High School
2200 Lyman Blvd.
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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
VENUE
Fee Calculated
Franchise Fees
PEG Fee Per Sub
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6689937v5
EXHIBIT F
SUMMARY OF ORDINANCE FOR PUBLICATION
AN ORDINANCE GRANTING A FRANCHISE TO CMN-RUS, INC. 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 THE
PUBLIC RIGHTS -OF -WAY; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF
THE PROVISIONS HEREIN.
On August 23, 2021, the City of Chanhassen, Minnesota ("City") adopted an ordinance granting a
Cable Television Franchise to CMN-RUS, Inc. ("Grantee"). The Franchise serves two (2)
purposes. First, it is intended to provide for and specify the means to attain the best possible Cable
Service for the public by providing requirements for cable with respect to technical standards,
customer service obligations, and related matters. Second, it grants a non-exclusive Cable
Television Franchise to Grantee, to operate, construct and maintain a Cable System within the City
and contains specific requirements for Grantee to do so.
The Franchise includes the following: 1) a Franchise Fee of five percent (5%) of Grantee's annual
Gross Revenues; 2) a Franchise term of ten (10) years; 3) a list of schools and public buildings
entitled to receive complimentary Cable Service; 4) dedicated channel capacity for Public,
Educational and Governmental ("PEG") access programming and provides financial support of
such PEG Channels; 5) customer service standards regarding Grantee's Cable Services; and 6) a
performance bond to enforce Grantee's compliance with the franchise.
It is hereby determined that publication of this title and summary will clearly inform the public of
the intent and effect of Ordinance No. 678. A copy of the entire ordinance shall be posted on the
City of Chanhassen website.
It is hereby directed that only the above title and summary of Ordinance No. 678 be published,
conforming to Minn. Stat. § 331A.01, with the following:
NOTICE
Persons interested in reviewing a complete copy of the ordinance may do so at the Chanhassen
City Hall at 7700 Market Boulevard, Chanhassen, MN 55317 during the hours of 8:00 a.m. and
4:30 p.m., Monday through Friday.
Yes No
Mayor Ryan
X
Councilmember McDonald
X
Councilmember Campion
X
Councilmember Rehm
X
Councilmember Schubert
X
Passed by the Chanhassen City Council this 23rd day of August, 2021.
ATTEST:
1,aAMA-t Jkw4 &W
Laurie Hokkanen, City Manager
Elise yan, Mayor
(Published in the Chanhassen Villager on September 2, 2021)
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6689937v5
CITY OF CHANHASSEN
CARVER AND HENNEPIN
COUNTIES, MINNESOTA
SUMMARY OF
ORDINANCE NO. 678
AN ORDINANCE
GRANTING A FRANCHISE TO
CMN-RUS, INC. 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
THE PUBLIC RIGHTS -OF -WAY;
AND PRESCRIBING PENALTIES
FOR THE VIOLATION OF THE
PROVISIONS HEREIN.
On August 23, 2021, the City of
Chanhassen, Minnesota ("City")
adopted an ordinance granting
a Cable Television Franchise
to CMN-RUS, Inc. ("Grantee").
The Franchise serves two (2)
purposes. First, it is intended
to provide for and specify the
means to attain the best possible
Cable Service for the public
by providing requirements for
cable with respect to technical
standards, customer service
obligations, and related matters.
Second, it grants a non-exclusive'
Cable Television Franchise to
Grantee, to operate, construct and
maintain a Cable System within
the City and contains specific
requirements for Grantee to do so.
The Franchise includes the
following: 1) a Franchise Fee of
five percent (5%q)_of Grantee's
annual Gross Revenues; 2) a
Franchise term of ten (10) years;
3) a list of schools and public
buildings entitled to receive
complimentary Cable Service;
4) dedicated channel capacity
for Public, Educational and
Governmental ("PEG") access
programming and provides
financial support of such PEG
Channels; 5) customer service
standards regarding Grantee's
Cable Services; and 6) a
performance bond to enforce
Grantee's compliance with the
franchise.
It is hereby determined that
publication of this title and
summary will clearly inform the
public of the intent and effect
of Ordinance No. 678. A copy
of the entire ordinance shall be
posted on the City of Chanhassen
website.
It is hereby directed that only
the above title and summary of
Ordinance No. 678 be published,
conforming to Minn. Stat. §
331A.01, with the following:
NOTICE
Persons interested in
reviewing a complete copy of
the ordinance may do so at the
Chanhassen City Hall at 7700
Market Boulevard, Chanhassen,
MN 55317 during the hours of
8:00 a.m. and 4:30 p.m., Monday
through Friday.
Yes No
Mayor Ryan X
Councilmember McDonald X
Councilmember Campion X
Councilmember Rehm X
Councilmember Schubert X
PASSED, ADOPTED, AND
APPROVED FOR PUBLICATION
this 23rd day of August, 2021, by
the City Council of the City of
Chanhassen.
Published in the Chanhassen
Villager on Thursday, September
12021 - No. 4101)
Affidavit of Publication
Southwest News Media
State of Minnesota)
)SS.
County of Carver )
Vera Kehl, being duly sworn on oath says that she is an authorized employee for the newspapers
known as the Chaska Herald and the Chanhassen Villager and has full knowledge of the facts
herein stated as follows:
(A) These newspapers have complied with the requirements constituting qualification as a legal
newspaper, as provided by Minnesota Statute 331A.02, 331A.07, and other applicable laws, as
amended.
(B) The printed public notice that is attached to this Affidavit and identified as No. 4 l b
was published on the date or dates and in the newspaper stated in the attached Notice and said
Notice is hereby incorporated as part of this Affidavit. Said notice was cut from the columns of
the newspaper specified. Printed below is a copy of the lower case alphabet from A to Z, both
inclusive, and is hereby acknowledged as being the kind and size of type used in the composition
and publication of the Notice:
abcdefghi;klmnopgrstuvwxyz
By.
Vera Kehl
Subscribed and sworn before me on
this 2 day of V, -, 2021
LAURIE A HARTMANN
NOTARY PUBLIC- MINNESOTA
'
Public MY COMMISSION EXPIRES 01/31/25
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RATE INFORMATION
Lowest classified rate paid by commercial users for comparable space.... $31.20 per column inch
Maximum rate allowed by law for the above matter ................................. $31.20 per column inch
Rate actually charged for the above matter ............................................... $14.74 per column inch