2. Update on Franchise Renewal, Triax Cablevision
C ITV OF
CHANHASSEN
;2.
"-
690 COULTER DRIVE. P.O. BOX 147. CHANHASSEN, MINNESOTA 55317
(612) 937-1900 . FAX (612) 937-5739
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TO:
Mayor and City Council
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Don Ashworth, City Manager yA\ t.:. ~4J
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MEMORANDUM
FROM:
DATE:
December 2, 1997
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Update on Franchise Renewal, Triax Cablevision
Interpreting Federal Communications Commission (FCC) regulations/rulings, preparation of
franchise documents, and completing the various filings required by the FCC all represent specialty
attorney services. I only know of three firms in the State of Minnesota that specialize in this field
and I continue to be very happy with our selection of Brian Grogan of Moss and Barnett. Brian did
an excellent job of presenting where the city currently is in the process of Triax Cablevision
franchise renewal, as well as the process which will need to be followed (see attached
memorandum).
I have asked Triax to begin this item with a presentation as to what physical and monetary
commitments they are willing to make if we can achieve a renewed franchise. The presentation
should include a physical map showing those areas of the community where fiber will be buried,
sonic ring locations, and how this will improve service levels; total dollars that will be committed to
Chanhassen; as well as to what services could eventually be provided through their lines. I have also
asked Dave MacKenzie to be present Monday evening. Mr. MacKenzie is an expert in the area of
telecommunications and was used by the city to review the technological standards that were being
proposed by Triax and to provide advice as to whether their proposal was in keeping with current
technology. Mr. MacKenzie will be present to answer council questions following Triax's
presentation. The second portion of this item is proposed to be a review by Brian Grogan as to
where we legally stand in the franchise process and to answer city council questions in regards to the
franchise itself (Wayzata's examples attached).
At the end of this item, I would hope that a short discussion would occur to finalize the credits that
should be offered from Triax back to Chanhassen customers for outages occurring this past summer.
No action is required; however, Monday evening should be an excellent opportunity to have the city
council provide feedback to both Brian and myself as to whether we are on the right track in regards
to franchise renewal.
g: \mgr\triaxfranc hiserenew .doc
Lake Minnetonka, MN System Upgrade Overview
The need for an enhanced network
Triax' system currently serving the area, while still functional, is operating near its
designed channel capacity. In order to respond to requests for additional services from
our customers, it is necessary to increase the available capacity of the system.
Beyond traditional cable television video service, there are a host of other services that
can be supported by an upgraded network. High speed data, Internet access, cost-
effective telecommunications across the network, and even telephony can be
implemented according to the needs of the communities served.
Along with the potential for increasing the number of services supported by the network,
increased reliability and picture quality will be major priorities. Individual communities
can be isolated on the network so that unexpected outages in one area do not affect
several other areas, as is the case in many conventional coaxial cable television systems
The same techniques that allow additional signals to be carried, and keep service
interruptions to a minimum, provide an added benefit of improving the quality of pictures
seen by our customers. In every coaxial cable television system, picture quality is
degraded as the signal moves further out into the system, passing through amplifier after
amplifier. In an upgraded network, there are significantly less amplifiers between the
origination site and the customer, resulting in better picture quality regardless of where
the customer may be in the system.
What the new network will look like
The proposed upgraded HFC (hybrid fiber/coax) network will be designed to operate
with a bandwidth of5MHz to 750MHz, with 50MHz to 550MHz being allocated for 77
conventional analog channels. The remaining upper 200MHz of bandwidth will be
reserved for compressed digital signals Through the use of digital compression, as many
as 12 channels can be carried in the same space as one analog channel. The result is a
large number of available channels, with plenty of additional capacity for future needs.
The network will be capable of not only sending signals out to customers, but returning
signals back to the origination site from anywhere in the system, as well This "return"
capability utilizes spectrum from 5MHz to 40MHz, and will be activated on both the
coaxial and optical systems. The return system can be used to transmit both data and
video, and may be used for insertion of locally-originated programming, monitoring of
certain key components in the network, and transmission of data from set-top terminals
used for pay-per-view and other customer services.
1
Fiber optic transmitters, cable, and optical receivers will be used to transport the signals
from the origination site, to at least one receiving location, or "node", in each community.
There will be a maximum of 500 homes served from each node, which is an accepted
industry standard used when considering implementation of future services. This
separation of communities on the optical network allows for "narrowcasting" or the
distribution of certain specialized kinds of programming to communities that have an
interest. For example, one community would not have to receive the local programs
originated by a distant community.
After each node, the number of active electronics, or amplifiers, would be reduced to the
minimum required to reach the limits of the community, while still maintaining
measurable picture quality better than current FCC requirements "Standby" power
supplies will automatically provide battery power to the coaxial system for several hours
in the event of a commercial power interruption. The batteries are automatically
recharged after power is restored.
Each customer will use an "addressable" set-top terminal to access programming carried
on the network. Special programming, such as "impulse pay-per-view" will be available
simply by pressing a button to authorize the purchase
Fiber optics and coaxial plant in the network
The optical transmission system will be the backbone of the new network, providing the
primary means of moving signals from the origination site out to each community. At the
origination site, all the programming to be carried on the system will be converted to
optical signals, and transmitted out into the system by a network of fiber optic cables
The combination of optical transmitters and cables allow more reliable, higher-quality
pictures to be received in each community. Earlier means of transmission, involving
many miles of metal-sheathed coaxial cable, and cascades of amplifiers, created the
potential for service interruptions anywhere along the transmission route. A problem
appearing at one point mid-way into the system affected all customers beyond that point.
Power outages, lightning storms, isolated outages, vandalism, and isolated equipment
failure will have much less of an effect on the new network than on the coaxial system in
the past.
In each community, at least one optical node will be placed, to convert the optical signal
back into the normal signals used in the coaxial system. Each node will serve a
maximum of 500 homes via coaxial cable This limitation on node size insures that the
more reliable optical plant is as large as possible, and that coaxial electronics are kept to
the minimum required to deliver a good-quality picture to all customers
The optical network will provide 6 individual fibers to each node location. Although it
currently requires only one of these fibers to provide all the programming required by the
network, extra fibers are included for return transmission, and any special or future
requirements, on an as-needed basis.
2
The coaxial portion of the plant will begin at the node itself, where signals will be
distributed over a short coax network, consisting of modern, high-quality network
amplifiers. These amplifiers are specifically designed for use in HFC networks, and
incorporate return-transmission capability, surge protection, and remote monitoring
capability.
Since most of the currently existing coaxial cable is still serviceable and electrically
sound, it will be reused along most of the coaxial portion of the network. Reuse of the
cable will, in many cases, eliminate the need for construction in residential areas, causing
fewer upgrade construction issues
All of the electronic components in the existing coaxial system will be replaced with new
750MHz devices This insures a complete 750MHz network, and provides a simpler
construction solution should any future upgrade work be required.
The upgrade process
There will be a considerable amount of work required to upgrade the entire existing
system to the new network. Since the upgrade work will be performed on an already-
active system, care must be taken to keep customers and communities well-informed, and
service interruptions to a minimum.
The first step will be to install the fiber optic network alongside the existing coaxial
system. Normally, this work does not affect the operation of the existing system. In
areas where the cables are already carried on utility poles, the new fiber will be attached
to the existing cables In areas where existing cables are underground, additional
construction will be required to install the new fiber optic cables. Any new coaxial cable
required by the network design, in the path of the fiber optic cable, will be installed at the
same time
Once the fiber "backbone" is in place, the optical receivers are installed. The optical
system is then activated and tested. When testing of the optical network is complete, then
the upgrading of the coaxial plant in each community can begin.
When the coaxial plant is upgraded, each existing amplifier and distribution device are
removed, and replaced with a newer, 750MHz device. The new equipment is activated,
and any customers served from that equipment are switched to the new equipment. This
process begins at the node, branching out through each leg of the coaxial plant. It is this
portion of the upgrade that causes several brief interruptions in service. As the upgrade
crews move further out into the coaxial system, fewer and fewer customers experience
the interruptions in service. When the upgrade of a node is finally complete, all
customers served from that node are now receiving service from the new network.
After the primary upgrade of each node is complete, installation upgrade crews sweep
through the same area, inspecting each ofthe service lines that connect customers' homes
to the distribution system. Connections are checked, updated splitting equipment is
3
installed if necessary, and in some cases, the entire line is replaced. At this point, the
upgrade of that node is complete, and work moves on to the next node area.
Community access and use of the network
The upgraded network will allow for individual communities to produce their own local
programming, and place it on an available channel on the system. Normally, one site in a
community is designated as a "studio" where local programs are taped for later broadcast,
or transmitted "live" over the system. It is also possible for the community to originate
informational services, such as public service messaging, school information, or other
items of community interest.
The video feed from the community would be inserted on the network on a special
channel, and transmitted via the return system - through the coaxial network back to the
node, and transmitted optically from the node back to the origination site. From there,
the signal would be reprocessed and retransmitted back through the normal network,
available to customers
Since each of the nodes are community-based, it is possible to allow communities
transmit their own programming to only the residents of that community, if they desire.
The addressable converter system
The "addressable set-top terminals" used in the network are computer-controlled "smart"
converters To the customers, they function very much the same as the normal converters
they are accustomed to. In reality, they are very sophisticated computer terminals that
allow for the processing of programming information both to and from the customer
The converter system is controlled by a master computer connected to Triax' billing
system. The master computer is then connected to the network, by either a direct
connection or a satellite link. Information regarding the operation of each one of the
converters is continually transmitted over the network, and received by the converters.
If a customer calls one of our service centers, and orders HBO, the information regarding
the change in services is keyed into the billing system. Since the billing system and
master computer are connected, information about that transaction is immediately
transmitted to the network, and the customers converter receives immediate authorization
to receive HBO The entire process takes just a few seconds, and the customer has
immediate access to the programming that was ordered, without the need to wait for a
visit from a service technician. Services can be added, changed, or removed in the same
manner
Additionally, customers will have access to multiple channels of "impulse pay-per-view"
This is one of the most popular features of the converter. The "impulse" feature takes
advantage of the return system on the network, allowing a request for a pay-per-view
event to be processed immediately. The customer simply tunes to the channel desired,
4
and presses a button to purchase the program. There is no need to make a phone call, and
no order to place in advance
The addressable converters are equipped with several self-diagnostic and security
features. If the converter is not functioning properly, it will display a diagnostic code for
troubleshooting. The master computer communicates with each converter at regular
intervals, and can alert service personnel if a problem is found. There are signal security
safeguards built into each converter, to prevent unauthorized tampering. The converter
recognizes its "home" network, and will not function properly if removed without
authorization.
Potential for future expansion
The upgraded network is completely expandable, due to its fiber optic backbone. The
optical system incorporates extra fibers that run to each node, along with additional extra
fibers along main routes. As communities grow, there will be capacity available to serve
their residents.
There will be further additional fibers at each of the four corners of the network, to
accommodate interconnection with other neighboring systems, communities, or
businesses, as needs arise.
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TRIA><
'Ir CABLEVISION
1504 2nd St. S.E., P.O. Box 110, Waseca, MN 56093
507/835.5975 FAX 507.835.4567
December 2, 1997
Mr. Don Ashworth
City Manager
City of Chanhassen
POBox 147
Chanhassen, MN 55317-0147
Dear Mr. Ashworth:
Triax Cablevision would like to finalize its proposal to issue a 20% credit to all subscribers
associated with the attached street listing; a final listing is attached for your review.
Also, attached is a brief narrative overview of Triax Cablevision's proposed system
upgrade/rebuild plans for the City of Chanhassen. We currently have field personnel completing
all the necessary field survey work, and therefore, I am not able to provide you with the specific
design mapping and total cost estimate This portion of the project will be finalized in the months
ahead and will be presented for your review at a later date.
Mr Ashworth, I look forward to meeting with you and the Members of City Council on
December 8, 1998, to discuss this information in greater detail. In the meantime, if I can answer
any questions, please feel free to contact me at (507) 835-5975.
Sincerely,
tMf~
Paul R. Pecora
Regional Manager
cc Ms. Jane Bremer
Mr Brian Grogan
Mission Hills Subdivision
Mission Hills Drive/Court/Lane
Mission Hills Way W.
Mission Hills Way E
Marshland Trail
Frisco Court
Mayfield Court
Tigua Lane
Monk Court
Rice Court
Blackbird Court
Heartland Court
300 Block to 900 Block of 86th St.
Chanhassen Hills Subdivision
Chanhassen Hills Drive S
Chanhassen Hills Drive N.
Mary Jane Circle
Lake Susan Court
Lake Susan Drive
Barbara Court
Oak Side Circle
Lyman Court
Commerce Drive
Spoonbill Circle
Mallard Court
Kingfisher Court
Audubon Road
7900 to 9000 Block of Great Plains Blvd.
Lake Susan Hills Subdivision
Essex Road
Suffolk Drive
Lake Susan Hills Drive
West Lake Court
West Lake Drive
Dove Court
Drake Court
Egret Court
Pelican Court
Powers Place
Tern Court
Flamingo Drive
Merganser Court
Thrush Court
Ibis Court
Bluebill Trial
Osprey Lane
Heron Drive
Swan Court
Bittern Court
Kurvers Point Subdivision
Willow View Cove
Kurvers Point Rd.
Twin Maple Lane
Basswood Circle
Alisa Lane
Alisa Court
Lake Drive West
Ridgetrail North
Ridgetrail South
Valley View
Valley View Court
Valley View Place
Sunridge Trail
Valley Ridge Trail
LAW OFFICES
BRIAN T. GROGAN
~612) 347-0340
E-MAIL.GroganB@moss-bamett.com
MOSS & BARNETT
A PROFESSIONAL ASSOCIATION
4800 NORWEST CENTER
90 SOUTH SEVENTH STREET
MINNEAPOLIS, MINNESOTA 55402-4129
TELEPHONE (612) 347-0300
FACSIMILE (612) 339-6686
November 14, 1997
Mr. Don Ashworth
City Manager
City of Chanhassen
690 Coulter Drive
P.O. Box 147
Chanhassen, MN 55317
Mr. Edward Shukle
City Manager
City of Mound
5341 Maywood Road
Mound,MN 55364-1687
Mr. Bruce Eisenhauer
City Administrator
City ofWaconia
109 South Elm Street
Waconia, MN 55387
Re: Model Franchise Documentation
Dear Gentlemen:
I have enclosed herewith further revised franchise documents which have been prepared
as a result of extensive negotiations between Triax and the City of Wayzata. I anticipate that
these documents will be near completion in the next couple of weeks, at which time we should be
in a position to move forward to tailor these documents for your communities. As soon as I have
final franchise documents for your review and consideration, I will forward them on to you.
Please recognize that agreements reached by Triax and the City ofWayzata are,
obviously, not binding on your communities and all issues will be open and subject to
negotiation as we proceed with the renewal process in each of your respective communities.
However, the Wayzata documents should provide us with a solid foundation to move forward
with negotiations inasmuch as many of the legal issues will have already been addressed.
If you should have any immediate questions, please feel free to contact me.
Very truly yours,
MOSS & BARNETT,
A Professional Association
D:;::'("!>""";HI"":"Q
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73~
Brian T. Grogan
'"n' . 1 7 'g" 97
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BTG/trc
cc: Mr. Paul Pecora (w/o Enclosures)
Ms. Jane Bremer (w/o Enclosures)
Mr. David Frischmon (w/o Enclosures)
144414/33F$01 LDOC
LAW OFFICES
BRIAN T. GROGAN
(612) 347-0340
E-MAIL.GroganB@moss-bamett.com
MOSS & BARNETT
A PROFESSIONAL AsSOCIATION
4800 NORWEST CENTER
90 SOUTH SEVENTH STREET
MINNEAPOLIS, MINNESOTA 55402-4129
TELEPHONE (6121 347-0300
FACSIMILE (612) 339-6686
October 31, 1997
VIA FACSIMILE
Mr. Don Ashworth
Cit:r.Manager
690 Coulter Drive
P.O. Box 147
Chanhassen, MN 55317
Re: Franchise Renewal
Dear Don:
, I wanted to provide you with an update regarding my ongoing negotiations with Triax for
renewal of several of their cable television systems in the southwestern metropolitan area. As
you know, in addition to your City, I am representing Mound, Waconia and Wayzata, who are all
facing franchise renewal requests from Triax. At the present time, I have been working most
aggressively with the City ofWayzata to address Triax's franchise renewal request.
Dave Frischmon ofWayzata and myself have conducted numerous negotiation sessions
with both Paul Pecora and Jane Bremer representing Triax. The focus of our negotiations has
been on two model franchise documents which I had originally presented to all four of the
communities.
The first document is the Cable Television Regulatory Ordinance which each city will
adopt as part of their local code and which will govern all cable television operators seeking to
provide service within your community. In other words, to the extent a competitor comes into
the market and attempts to provide cable television services in Chanhassen, this Regulatory
Ordinance will govern this competitor in a manner consistent with the city's regulation of Triax.
The Regulatory Ordinance addresses the more standard operating issues such as technical
standards, customer service standards, indemnification and insurance, procedure to obtain a
franchise and other related matters.
The second document which I am negotiating with Triax is the Cable Television
Franchise Agreement. This document will address the unique relationship between each giveIl....,., :~Q
city and Triax. In the case of Chanhassen, it will contain issues regarding system upgrad~f{J'i:J ';' '~.
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MOSS & BARNETT
A PROFESSIONAL ASSOCIATION
Mr. Don Ashworth
September 3, 1997
Page 2
provision of local programming support and services, franchise fee support, and other related
matters. If more than one operator seeks to provide cable television services in a community, the
same basic Franchise Agreement will be used for all operators but will reflect the differences in
the types of systems and services each will provide.
The progress I have made in the Wayzata negotiations will allow the City of Chanhassen
to "hit the ground running" on this process as we will not have to duplicate our efforts on
standard issues such as definition of key terms and the more standard contractual provisions
which shouid be fairly uniform for all of the communities I represent. In the City of Chanhassen,
we will be focusing on your local programming needs and other issues unique to Chanhassen
such as service to your schools and any internal communication needs which the cable system
might be able to address.
Don, as your office has been busy addressing the City's concerns with Triax regarding
customer service issues, I realize the franchise renewal issues may not be on the top of your list.
However, Triax is proposing a complete system rebuild to be completed at the end of next year
which is an opportunity I believe you and the City of Chanhassen have fought very hard for
throughout this past year. As a result of your efforts to push Triax to improve the system,
necessary funding has been appropriated and it is now simply a matter of insuring that the needed
franchise documents are in place so that the capital can be used for the above described purpose.
You and I have worked on contracting issues such as this before and have been fortunate
to have always benefited from efficient and concise negotiations targeted at the specific needs of
Chanhassen so that the City's goals can be realized sooner rather than later. I trust that this
approach will serve us well as we sit down with Triax to modify the Wayzata model documents
to address your local issues. Your input to date on the franchise documentation has been
extremely helpful in my negotiations with Triax for the City ofWayzata. Therefore, I do not
anticipate having to duplicate those steps for the City of Chanhassen.
At this point in time I simply need to know how you and the City Council desire to
proceed on franchise negotiations. I believe we have a window of opportunity available to us to
address these issues, but clearly you need to be satisfied with Triax's response to the customer
service issues and the City Council must be comfortable proceeding with these negotiations
before time and effort is wasted.
MOSS & BARNETT
A PROFESSIONAL ASSOCIATION
Mr. Don Ashworth
September 3, 1997
Page 3
I look forward to your response and to establishing a timetable that will meet the City's
needs and interests. If you should have any immediate questions, please feel free to contact me.
Very truly yours,
MOSS & BARNETT,
A Professional Association
~;~
Brian T. Grogan
BTG/cll
141484/316401 !.DOC
[CITY OF CHANHASSEN LETTERHEAD]
November _,1997
Mr. Paul Pecora
Triax Midwest Associations, L.P.
1504 Second Street, S.E.
VVaseca,MN 56093
Re: City of Chanhassen, Minnesota/Subscriber Credits
Dear Paul:
At the Chanhassen City Council meeting on October 27, 1997, the Council met to
consider Triax's proposal to provide credits to subscribers who were affected by excessive
outages throughout the summer of 1997. After considerable debate and discussion regarding this
matter, the City believes the appropriate credit to provided to all affected subscribers should be
25% of one month's cable bill. In addition to those affected subscribers you have noted in your
earlier correspondence, the neighborhoods surrounding the east side of Lotus Lake should be
added to the list as they have clearly been affected by numerous outages over the past several
months and are deserving of a credit consistent with that which will be provided to the other
affected areas.
Please provide written confirmation regarding the manner in which these credits will be
administered to Chanhassen subscribers including timing, number of subscribers, all affected
neighborhoods and other relevant information so the City can follow up on this matter.
On behalf of the City of Chanhassen, I appreciate Triax' s willingness to work with the
City through this difficult process to insure that the positive relationship we have had with your
company is maintained. This is particularly true given the issues which we will be considering in
the near future regarding Triax's proposal to address the future cable related needs and intl;lrests
in the City of Chanhassen.
If you should have any questions regarding this matter, please feel free to contact either
myself or Todd Garhart.
Sincerely,
Don Ashworth
City Manager
cc: Brian Grogan
Jane Bremer
141478/315yOl !.DOC
CABLE TELEVISION REGULATORY ORDINANCE
W AYZATA, MINNESOTA
November 14, 1997
Prepared by:
Brian T. Grogan, Esq.
Moss & Barnett
A Professional Association
4800 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402-4129
(612) 347-0340
TABLE OF CONTENTS
SECTION 1.1. INTENT. ........................................... 1
SECTION 1.2. DEFINITIONS. ...................................... 1
SECTION 1.3. FRANCHISE TO INSTALL AND OPERATE. .................4
SECTION 1.4. FRANCHISE REQUIRED. ...............................4
SECTION 1.5. TERM OF THE FRANCHISE. ............................4
SECTION 1.6. FRANCHISE TERRITORY. ..............................5
SECTION 1.7. FEDERAL, STATE AND CITY JURISDICTION. .............5
SECTION 1.8. FRANCHISE NON-TRANSFERABLE. .......................5
SECTION 1.9. CITY'S RIGHT TO PURCHASE SYSTEM. ..................7
SECTION 1.10. PURCHASE BY CITY UPON EXPIRATION OR REVOCATION. ..7
SECTION 1.11. EMERGENCY USE. ...... ........... ..................7
SECTION 1.12. GEOGRAPHICAL COVERAGE. ...........................7
SECTION 1.13. NONEXCLUSIVE FRANCHISE. ..........................8
SECTION 1.14. MULTIPLE FRANCHISES. .............................8
SECTION 1.15. FRANCHISE APPLICATIONS. ..........................9
SECTION 1.16. CONSIDERATION OF INITIAL APPLICATIONS. ...........9
SECTION 1.17. FRANCHISE RENEWAL. ...............................9
SECTION 1.18. CONSUMER PROTECTION AND SERVICE STANDARDS. ......10
SECTION 1.19. RATE REGULATION. ................................ 12
SECTION 1. 20. FRANCHISE FEE. .................................. 12
SECTION 1.21. DESIGN AND CONSTRUCTION REQUIREMENTS. ...........13
SECTION 1.22. TECHNICAL STANDARDS. ............................15
SECTION 1.23. TRIMMING OF TREES. ............. ...... ..... ......16
SECTION 1.24. USE OF GRANTEE FACILITIES. ......................16
SECTION 1.25. PROGRAMMING DECISIONS. ..........................16
SECTION 1.26. INDEMNIFICATION. ................................16
SECTION 1.27. INSURANCE. ...................................... 17
SECTION 1.28. RECORDS REQUIRED AND GRANTOR'S RIGHT TO INSPECT. 17
SECTION 1.29. ANNUAL REPORTS. ................................. 18
SECTION 1.30. FRANCHISE VIOLATION. ............................18
SECTION 1.31. FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM. .. 19
SECTION 1.32. ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY. ...19
SECTION 1.33. EXTENDED OPERATION AND CONTINUITY OF SERVICES. ..20
SECTION 1.34. RECEIVERSHIP AND FORECLOSURE. ...................20
SECTION ~~. RIGHTS RESERVED TO GRANTOR. ................ 21
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SECTION ~ ~. RIGHTS OF INDIVIDUALS. ..................... 21
SECTION ~ ~. SEVERABILITY. .............................. 22
ORDINANCE NO.
THE CITY COUNCIL OF THE CITY OF W A YZA T A, MINNESOTA
DOES HEREBY ORDAIN AS FOLLOWS:
The following Chapter is added to the City ofWayzata, MN Municipal Code:
CHAPTER
CABLE TELEVISION REGULATORY ORDINANCE
SECTION 1.1.
INTENT.
a. The City ofWayzata, Minnesota, pursuant to Applicable Laws, is authorized to
grant one or more nonexclusive Franchises to construct, operate, maintain and reconstruct Cable
Television Systems within the City limits.
b. The City Council finds that the development of Cable Television Systems has the
potential of having great benefit and impact upon the residents of the City. Because of the
complex and rapidly changing technology associated with cable television, the City Council
further finds that the public convenience, safety and general welfare can best be served by
establishing regulatory powers which should be vested in the City or such Persons as the City shall
designate. It is the intent of this Ordinance and subsequent amendments to provide for and specify
the means to attain the best possible cable television service to the public and any Franchises
issued pursuant to this Ordinance shall be deemed to include this finding as an integral part
thereof.
SECTION 1.2.
DEFINITIONS.
For the purpose of this Ordinance, the following terms, phrases, words and their
derivations shall have the meaning given herein. Words used in the present tense include the
future, words in the plural number include the singular number, and words in the singular number
include the plural number. All capitalized terms used in the definition of any other term shall have
their meaning as otherwise defined in this Section. The words "shall" and "will" are mandatory
and "may" is permissive. Words not defined shall be given their common and ordinary meaning.
a. "Applicable Laws" means any law, statute, charter, ordinance, rule, regulation,
code, license, certificate, franchise, permit, writ, ruling, award, executive order, directive,
requirement, injunction (whether temporary, preliminary or permanent), judgment, decree or other
order issued, executed, entered or deemed applicable by any Governmental Authority.
b. "Basic Cable Service" means any service tier which includes the retransmission of
local television broadcast signals. Basic Cable Service as defined herein shall not be inconsistent
with 47 V.S.C. S 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 V.S.C. SS 521-611 (1982 & Supp. V 1987)) as amended
by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No.1 02-385
and the Telecommunications Act of 1996, Pub. L. No. 104-458 and as the same may, from time to
time, be amended.
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d. "Cable Television System", "System" or "Cable System" means a facility,
consisting of a set of closed transmission paths and associated signal generation, reception and
control equipment that is designed to provide Cable Service which includes video programming
and which is provided to multiple Subscribers within a community, but such term does not
include:
1. A facility that serves only to retransmit the television signals of one (I) or
more television broadcast stations;
2. A facility that serves subscribers without using any public rights-of-way;
3. A facility of a common carrier which is subject, in whole or in part, to the
provisions of 47 U.S.c. ~~ 201-226, except that such facility shall be considered a Cable
System (other than for purposes of 47 U.S.C. ~ 541) to the extent such facility is used in
the transmission of video programming directly to subscribers; unless the extent of such
use is solely to provide interactive on-demand services;
4. An open video system that complies with Section 653 of the Cable Act; or
5. Any facilities of any electric utility used solely for operating its electric
utility system.
e. "Cable Service" means:
1. The one-way transmission to Subscribers of (i) video programming, or (ii)
other programming service; and
2. Subscriber interaction, if any, which is required for the selection or use of
such video programming or other programming service.
f. "Channel" or "Cable Channel" means a portion of the electromagnetic frequency
spectrum which is used in a Cable System and which is capable of delivering a television Channel
as defined by the Federal Communications Commission.
g. "Council" means the City Council of the City ofWayzata, Minnesota.
h. "Franchise" means an initial authorization, or renewal thereof, issued by the City,
whether such authorization is designated as a Franchise, permit, license, resolution, contract,
certificate, agreement or otherwise, which authorizes the construction or operation of a Cable
System over publicly owned rights-of-way.
i. "Franchise A~reement" means a Franchise granted pursuant to this Ordinance
containing the specific provisions of the Franchise granted, including references, specifications,
requirements and other related matters.
j. "Franchise Fee" means any tax, fee or assessment of any kind imposed by the City
or any other Governmental Authority on a Grantee or cable Subscriber, or both, solely because of
their status as such. The term "Franchise Fee" does not include: (i) any tax, fee or assessment of
general applicability (including any such tax, fee or assessment imposed on both utilities and cable
operators or their services but not including a tax, fee, or assessment which is unduly
discriminatory against cable operators or cable subscribers); (ii) capital costs which are required by
the Franchise Agreement to be incurred by the Grantee for PEG Access Facilities; (iii)
requirements or charges incidental to the awarding or enforcing of the Franchise, including
payments for bonds, security funds, letters of credit, insurance, indemnification, penalties or
liquidated damages; or (iv) any fee imposed under Title 17 of the United States Code.
k. "Governmental Authority" means any Court or other federal, state, county,
municipal or other governmental department, commission, board, agency or instrumentality.
1. "Grantee" means any Person receiving a Franchise pursuant to this Ordinance and
its agents, employees, officers, designees, or any lawful successor, transferee or assignee.
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m. "Grantor" or ~ means the City ofWayzata, Minnesota as represented by the
Councilor any delegate acting within the scope of its jurisdiction. The City Administrator shall be
responsible for the continuing administration of the franchise.
n. "Gross Revenues" means all revenue received directly or indirectly by the Grantee,
its affiliates, subsidiaries, parents, or any Person in which Grantee has a financial interest of five
percent (5%) or more arising from or attributable, to the provision of Cable Service by the Grantee
within the City including, but not limited to, monthly fees charged to Subscribers for Basic Cable
Service; monthly fees charged to Subscribers for any optional service; monthly fees charged to
Subscribers for any tier of service other than Basic Cable Service; Installation, disconnection and
reconnection fees; leased Channel fees; fees, converter and remote revenues; advertising revenues;
and revenues from home shopping Channels. Gross Revenues shall be the basis for computing the
Franchise Fees imposed pursuant to Section 1.20 hereof. Grantee shall not be required to pay a
franchise fee on gross revenues derived from any Person receiving free Cable Service pursuant to a
Franchise Agreement. Gross Revenues shall include franchise fees collected by Grantee on behalf
of the City. There shall be no deductions from Gross Revenues for any other items unless
specifically authorized herein.
o. "Initial Service Area" means the area of the City which will receive Cable Service
initially, as set forth in any Franchise Agreement.
p. "Installation" means the connection of the System to a Subscriber and the provision
of Cable Service.
q. "Normal Business Hours" means those hours during which most similar businesses
in the City are open to serve customers. In all cases, "Normal Business Hours" must include some
evening hours at least one night per week and/or some weekend hours.
r. "Normal Operatin~ Conditions" means those service conditions which are within
the control of the Grantee. Those conditions which are not within the control of the Grantee
include, but are not limited to, natural disasters, civil disturbances, power outages, telephone
network outages, and severe or unusual weather conditions. Those conditions which are ordinarily
within the control of the Grantee include, but are not limited to, special promotions, pay-per-view
events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the
System.
s. "Person" means any individual or any association, firm, general partnership, limited
partnership, joint stock company, joint venture, trust, corporation, limited liability company or
other legally recognized entity, private or public, whether for-profit or not-for-profit.
t. "Public. Educational or Government Access Facilities" or "PEG Access Facilities"
means:
and
1. Channel capacity designated for public, educational or governmental use;
2. Facilities and equipment for the use of such Channel capacity.
u. "Section" means any Section, subsection or provision of this Ordinance.
v. "Service Area" or "Franchise Area" means the entire geographic area within the
City as it is now constituted or may in the future be constituted, unless otherwise specified in the
Franchise Agreement.
w. "Service Interruption" means the loss of picture or sound on one or more Cable
Channels.
x. "State" means the State of Minnesota.
-3-
y. "Street" or "publicly owned ri~ht of way" means each of the following which have
been dedicated to the public or are hereafter dedicated to the public and maintained under public
authority or by others and located within the City limits: streets, roadways, highways, avenues,
lanes, alleys, sidewalks, easements, rights-of-way and similar public property and areas that the
Grantor shall permit to be included within the definition of Street from time to time.
z. "Subscriber" means any Person who or which lawfully elects to subscribe to, for
any purpose, a service provided by the Grantee by means of or in connection with the Cable
System whether or not a fee is paid for such service.
SECTION 1.3.
FRANCHISE TO INSTALL AND OPERATE.
a. A Franchise granted by the City under the provisions of this Ordinance shall
encompass the following purposes:
1. To engage in the business of providing Cable Service, and such other lawful
services as may be permitted by the City, to Subscribers within the Service Area.
2. To erect, install, construct, repair, rebuild, reconstruct, replace, maintain and
retain cables, lines, related electronic equipment, supporting structures, appurtenances and
other property in connection with the operation of a Cable System in, on, over, under,
upon, along and across Streets within the Service Area.
3. To maintain and operate said Franchise properties for the origination,
reception, transmission, amplification and distribution of television and radio signals for
the delivery of Cable Services.
4. To set forth the obligations of a Grantee under the Franchise Agreement.
b. Nothing contained in this Ordinance relieves a Person from liability arising out of
failure to exercise reasonable care to avoid injuring Grantee's facilities while performing work
connected with grading, regarding or changing the line of a Street or public place or with the
construction or reconstruction of a sewer or water system.
c. Nothin~ contained in this Ordinance shall allow a Grantee to lease capacity on its
System without the prior written consent of the City. unless specifically authorized under
Applicable Laws.
SECTION 1.4. FRANCHISE REQUIRED.
It shall be unlawful for any Person, other than the City unless specifically required by
Applicable Laws, to construct, install or operate a Cable Television System in the City in, on,
over, under, upon, along or across any Street or publicly owned right of way without a Franchise
properly granted pursuant to the provisions of this Ordinance.
SECTION 1.5.
TERM OF THE FRANCHISE.
a. A Franchise granted hereunder shall be for the term established in the Franchise
Agreement and shall not exceed fifteen (15) years.
b. A Franchise granted hereunder may be renewed upon application by the Grantee
pursuant to the provisions of this Ordinance and Applicable Laws.
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SECTION 1.6.
FRANCHISE TERRITORY.
Any Franchise granted pursuant to this Ordinance shall be valid within the Service Area.
SECTION 1.7.
FEDERAL, STATE AND CITY JURISDICTION.
a. This Ordinance shall be construed in a manner consistent with Applicable Laws.
b. This Ordinance shall apply to all Franchises granted or renewed after the effective
date of this Ordinance. This Ordinance shall further apply to the extent permitted by Applicable
Laws to all existing Franchises granted prior to the effective date of this Ordinance.
c. The rights of all Grantees are subject to the policing powers of the City to adopt
and enforce ordinances necessary to the health, safety and welfare of the public. All Grantees
shall comply with all Appiicable Laws enacted by the City pursuant to that power.
d. No Grantee shall be relieved of its obligation to comply with any ofthe provisions
of this Ordinance or any Franchise granted pursuant to this Ordinance by reason of any failure of
the City to enforce prompt compliance.
e. This Ordinance and any Franchise granted pursuant to this Ordinance shall be
construed and enforced in accordance with the substantive laws of the City, State of Minnesota
and applicable federal laws, including the Cable Act.
f. This Ordinance together with any Franchise granted hereunder shall comply with
the Minnesota franchise standards contained in Minnesota Statutes Section 238.084.
g. Grantee and the City shall conform to state laws and rules regarding cable
communications not later than one year after they become effective, unless otherwise stated, and
shall conform to federal laws and regulations regarding cable communications as they become
effective.
SECTION 1.8.
FRANCHISE NON-TRANSFERABLE.
a. Grantee shall not voluntarily or involuntarily, by operation of law or otherwise, sell,
assign, transfer, lease, sublet or otherwise dispose of, in whole or in part, the Franchise and/or
Cable System or any of the rights or privileges granted by the Franchise, without the prior written
consent of the Council and then only upon such terms and conditions as may be prescribed by the
Council with re~ard to the proposed transferee's lel!al. 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 1.30 hereof and the
applicable provisions of any Franchise Agreement.
b. Without limiting the nature of the events requiring the Council's approval under this
Section, the following events shall be deemed to be a sale, assignment or other transfer of the
Franchise and/or Cable System requiring compliance with this Section: (i) the sale, assignment or
other transfer of all or a majority of Grantee's assets or the assets comprising the Cable System to
any Person; (ii) the merger ofthe Grantee or any of its parents with or into another Person
(including the merger of Grantee or any parent with or into any parent or subsidiary corporation or
other Person); (iii) the consolidation of the Grantee or any of its parents with any other Person; (iv)
the creation of a subsidiary corporation or other entity; (v) the sale, assignment or other transfer of
capital stock or partnership, membership or other equity interests in Grantee or any of its parents
-5-
by one or more of its existing shareholders, partners, members or other equity owners so as to
create a new Controlling Interest in Grantee; (vi) the issuance of additional capital stock or
partnership, membership or other equity interest by Grantee or any of its parents so as to create a
new Controlling Interest in Grantee; and (vii) the entry by the Grantee into an agreement with
respect to the management or operation of the Grantee, any of Grantee's parents and/or the System
or the subsequent amendment thereof. The term "Controlling Interest" as used herein is not
limited to majority equity ownership of the Grantee, but also includes actual working control over
the Grantee, any parent of Grantee and/or the System in whatever manner exercised.
c. Grantee shall notify Grantor in writing of any foreclosure or any other judicial sale
of all or a substantial part of the property and assets comprising the Cable System of the Grantee
or upon the termination of any lease or interest covering all or a substantial part of said property
and assets. Such notification shall be considered by Grantor as notice that a change in control or
ownership of the Franchise has taken place and the provisions under this Section governing the
consent of Grantor to such change in control or ownership shall apply.
d. For the purpose of determining whether it shall consent to such change, transfer or
acquisition of control, Grantor may inquire into the qualifications of the prospective transferee or
controlling party, and Grantee shall assist Grantor in any such inquiry. In seeking Grantor's
consent to any change of ownership or control, Grantee shall have the responsibility of insuring
that the transferee completes an application in form and substance reasonably satisfactory to
Grantor, which application shall include the information required under this Ordinance and
Applicable Laws. The transferee shall be required to establish to the satisfaction of the City that it
possesses the legal, technical and financial qualifications to operate and maintain the System and
comply with all Franchise requirements for the remainder of the term of the Franchise. If, after
considering the legal, financial, character and technical qualities of the transferee and determining
that they are satisfactory, the Grantor finds that such transfer is acceptable, the Grantor shall
permit such transfer and assignment of the rights and obligations of such Franchise as may be in
the public interest. The consent of the Grantor to such transfer shall not be unreasonably denied.
e. Any financial institution having a security interest in any and all of the property and
assets of Grantee as security for any loan made to Grantee or any of its affiliates for the
construction and/or operation of the Cable System must notify the Grantor that it or its designee
satisfactory to the Grantor shall take control of and operate the Cable Television System, in the
event of a default in the payment or performance of the debts, liabilities or obligations of Grantee
or its affiliates to such financial institution. Further, said financial institution shall also submit a
plan for such operation of the System within thirty (30) days of assuming such control that will
insure continued service and compliance with all Franchise requirements during the term the
financial institution or its designee exercises control over the System. The financial institution or
its designee shall not exercise control over the System for a period exceeding one (1) year unless
extended by the Grantor in its discretion and during said period of time it shall have the right to
petition the Grantor to transfer the Franchise to another Grantee.
f. In addition to the aforementioned requirements in this Section 1.8, the City and
Grantee shall, at all times, comply with the requirements of Minnesota Statutes Section 238.083
regarding the sale or transfer of a franchise and with all other Applicable Laws.
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SECTION 1.9. CITY'S RIGHT TO PURCHASE SYSTEM.
The City shall have a right of first refusal to purchase the Cable System in the event the
Grantee receives a bona fide offer to purchase the Cable System from any Person. Bona fide offer
as used in this Section means a written offer which has been accepted by Grantee, subject to the
City's rights under this Ordinance and any Franchise Agreement. The price to be paid by the City
shall be the amount provided for in the bona fide offer, including the same terms and conditions as
the bona fide offer. The City shall notify Grantee of its decision to purchase within sixty (60) days
of the City's receipt from Grantee of a copy of the written bona fide offer and such other relevant
and pertinent information as the City shall deem appropriate.
SECTION 1.10. PURCHASE BY CITY UPON EXPIRATION OR
REVOCATION.
Consistent with Section 627 of the Cable Act and all other Applicable Laws, at the
expiration, cancellation, revocation or termination of any Franchise Agreement, the City shall have
the option to purchase, condemn or otherwise acquire and hold the Cable System.
SECTION 1.11. EMERGENCY USE.
In the case of any emergency or disaster, Grantee shall, upon request of the City or
emergency management personnel, make its Cable System and related facilities available to the
City for emergency use.
SECTION 1.12. GEOGRAPHICAL COVERAGE.
a. Grantee shall design, construct and maintain the Cable Television System to have
the capability to pass every dwelling unit in the Service Area, subject to any Service Area line
extension requirements of the Franchise Agreement.
b. After service has been established by activating trunk and/or distribution cables for
any Service Area, Grantee shall provide Cable Service to any requesting Subscriber within that
Service Area within thirty (30) days from the date of request, provided that the Grantee is able to
secure all rights-of-way necessary to extend service to such Subscriber within such thirty (30) day
period on reasonable terms and conditions.
c. No Subscriber shall be refused service arbitrarily. However, for unusual
circumstances such as the existence of more than 150 feet of distance from distribution cable to
connection of service to Subscribers, or a density equivalent of less than 40 homes per mile,
service may be made available on the basis of a capital contribution in aid of construction,
including cost of material, labor and easements. For the purpose of determining the amount of
capital contribution in aid of construction to be borne by the Grantee and Subscribers in the area in
which service may be expanded, the Grantee will contribute an amount equal to the construction
and other costs per mile, multiplied by a fraction whose numerator equals the actual number of
residences per mile, and whose denominator equals 40 residences. Subscribers who request
service hereunder, will bear the remainder of the construction and other costs on a pro rata basis.
The Grantee may require that the payment of the capital contribution in aid of construction borne
by such potential subscribers be paid in advance.
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d. Grantee shall immediately bury all drops to subscribers dwellings when required by
local construction standards. In the event the ground is frozen or otherwise unsuitable to permit
immediate burial, Grantee shall be permitted to delay such burial until the ground becomes
suitable for burial which in no event shall be later than sixty (€iO) ealendar days from the first date
eOl'lditiofls permit ul'ldergroNJ'ld burial. June 1 st.
SECTION 1.13. NONEXCLUSIVE FRANCHISE.
Any Franchise granted under this Ordinance shall be nonexclusive. The Grantor
specifically reserves the right to grant, at any time, such additional Franchises for a Cable
Television System as it deems appropriate on terms and conditions no more favorable nor less
burdensome than those imposed in previously ~ranted Franchises. subject to Applicable Laws.
The Grantor also specifically reserves the right to operate a municipal Cable Television System
pursuant to Applicable Laws.
SECTION 1.14. MULTIPLE FRANCHISES.
a. Grantor may grant one or more Franchises for a Service Area. Grantor may, in its
sole discretion, limit the number of Franchises granted, based upon, but not necessarily limited to,
the requirements of Applicable Laws and specific local considerations; such as:
1. The capacity of the public rights-of-way to accommodate multiple coaxial
cables in addition to the cables, conduits and pipes of the utility systems, such as electrical
power, telephone, gas and sewage.
2. The impact on the City of having multiple Franchises.
3. The disadvantages that may result from Cable System competition, such as
the requirement for multiple pedestals on residents' property, and the disruption arising
from numerous excavations of the rights-of-way.
4. The financial capabilities of the applicant and its guaranteed commitment to
make necessary investment to erect, maintain and operate the proposed System for the
duration of the Franchise term.
b. Each Grantee awarded a Franchise to serve the entire City shall offer service to all
residences in the City, in accordance with construction and service schedules mutually agreed
upon between Grantor and Grantee, and consistent with Applicable Laws.
c. The City may, in its sole discretion, require developers of new residential housing
with underground utilities to provide conduit to accommodate cables for a minimum of two (2)
Cable Systems in accordance with the provisions of Section 1.21 (d).
d. Grantor may require that any new Grantee be responsible for its own underground
trenching and the costs associated therewith, if, in Grantor's opinion, the rights-of-way in any
particular area cannot feasibly and reasonably accommodate additional cables.
e. Any additional Franchise granted by the City to provide Cable Service in a part of
the City in which a Franchise has already been granted and where an existing Grantee is providing
service shall require the new Grantee to provide service throughout its Service Area within a
reasonable time and in a sequence which does not discriminate against lower income residents.
-8-
SECTION 1.15. FRANCHISE APPLICATIONS.
Any Person, other than the City unless specifically required by Applicable Laws, desiring
an initial Franchise for a Cable Television System shall file an application with the City. A
reasonable nonrefundable application fee in an amount established by the City shall accompany
the initial application. Such application fee shall not be deemed to be "franchise fees" within the
meaning of Section 622 of the Cable Act (47 U.S.C. 9 542), and such payments shall not be
deemed to be (i) "payments in kind" or any involuntary payments chargeable against the Franchise
Fees to be paid to the City by Grantee pursuant to Section 1.20 hereof and applicable provisions of
a Franchise Agreement, or (ii) part of the Franchise Fees to be paid to the City by Grantee
pursuant to Section 1.20 hereof and applicable provisions of a Franchise Agreement.
An application for an initial Franchise for a Cable Television System shall be in a form
reasonably acceptable to Grantor and shall contain, where applicable:
a. A statement as to the proposed Service Area.
b. A resume of prior history of applicant, including the legal, technical and financial
expertise of applicant in the cable television field.
c. A list of the general and limited partners of the applicant, if a partnership, or the
shareholders, if a corporation.
d. The percentage ownership of the applicant of each of its partners, shareholders or
other equity owners;
e. A list of officers, directors and managing employees of applicant or its general
partner, as applicable, together with a description of the background of each such Person;
f. The names and addresses of any parent or subsidiary of applicant or any other
business entity owning or controlling applicant in whole or in part, or owned or controlled in
whole or in part by applicant;
g. A current financial statement of applicant verified by an audit or otherwise certified
to be true, complete and correct to the reasonable satisfaction of the City;
h. Proposed construction and service schedule.
1. Any additional information that the City deems applicable.
SECTION 1.16. CONSIDERATION OF INITIAL APPLICATIONS.
a. Upon receipt of any application for an initial Franchise, the City Administrator
shall prepare a report and make his or her recommendations respecting such application to the City
Council.
b. A public hearing shall be set prior to any initial Franchise grant, at a time and date
approved by the Council. Within thirty (30) days after the close of the hearing, the Council shall
make a decision based upon the evidence received at the hearing as to whether or not the
Franchise(s) should be granted, and, if granted subject to what conditions. The Council may grant
one (1) or more initial Franchises, or may decline to grant any Franchise.
SECTION 1.17. FRANCHISE RENEWAL.
Franchise renewals shall be in accordance with Applicable Laws. Grantor and Grantee, by
mutual consent, may enter into renewal negotiations at any time during the term of the Franchise.
To the extent consistent with Applicable Laws, a reasonable non-refundable renewal application
fee in an amount established by the City may be required to accompany any renewal application.
-9-
Such application fee shall not be deemed to be "franchise fees" within the meaning of Section 622
of the Cable Act (47 U.S.C. ~ 542), and such payments shall not be deemed to be (i) "payments in
kind" or any involuntary payments chargeable against the Franchise Fees to be paid to the City by
Grantee pursuant to Section 1.20 hereof and applicable provisions of a Franchise Agreement, or
(ii) part of the Franchise Fees to be paid to the City by Grantee pursuant to Section 1.20 hereof and
applicable provisions of a Franchise Agreement.
SECTION 1.18. CONSUMER PROTECTION AND SERVICE
STANDARDS.
EKee13t as otherwise provided ia the fFaflehise :\gr~eR'leat, Grantee shall maintain eBe-ef
mere a convenient local customer service or bill payment offiees at eoa'/eaieHt leeations withia the
Serviee :\rea to location for receivin~ Subscriber payments. Grantee shall also maintain or arrange
for a location where equipment can be dropped-off or exchan~ed as is necessary or. in the
alternative. establish a system for havin~ Subscriber equipment picked-llP at the Subscriber
residence free-of-char~e. Grantee shall also provide the necessary facilities, equipment and
personnel to comply with the following consumer protection standards under Normal Operating
Conditions:
a. Cable System office hours and telephone availability:
1. Grantee will maintain a local, toll-free or collect call telephone access line
which will be available to its Subscribers 24 hours a day, seven (7) days a week.
(i) Trained Grantee representatives will be available to respond to
customer telephone inquiries during Normal Business Hours.
(ii) After Normal Business Hours, the access line may be answered by a
service or an automated response system, including an answering machine.
Inquiries received after Normal Business Hours must be responded to by a trained
Grantee representative on the next business day.
2. Under Normal Operating Conditions, telephone answer time by a customer
representative, including wait time, shall not exceed thirty (30) seconds when the
connection is made. If the call needs to be transferred, transfer time shall not exceed thirty
(30) seconds. These standards shall be met no less then ninety (90%) percent of the time
under Normal Operating Conditions, measured on a quarterly basis.
3. The Grantee will not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards above unless an historical
record of complaints indicates a clear failure to comply.
4. Under Normal Operating Conditions, the customer will receive a busy
signal less than three percent (3%) of the time.
5. Customer service center and bill payment locations will be open at least
during Normal Business Hours.
b. Installations. outa~es and service calls. Under Normal Operating Conditions, each
of the following four standards will be met no less than ninety-five percent (95%) of the time
measured on a quarterly basis:
1. Standard Installations will be performed within seven (7) business days
after an order has been placed. "Standard" Installations are those that are located up to 125
feet from the existing distribution system.
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2. Excluding conditions beyond the control of Grantee, Grantee will begin
working on "service interruptions" promptly and in no event later than 24 hours after the
interruption becomes known. The Grantee must begin actions to correct other service
problems the next business day after notification of the service problem.
3. The "appointment window" alternatives for Installations, service calls, and
other Installation activities will be either a specific time or, at maximum, a four-hour time
block during Normal Business Hours. (The Grantee may schedule service calls and other
Installation activities outside of Normal Business Hours for the express convenience of the
customer.)
4. Grantee may not cancel an appointment with a customer after the close of
business on the business day prior to the scheduled appointment.
5. If Grantee's representative is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled, the customer will be
contacted prior to the time of the scheduled appointment. The appointment will be
rescheduled, as necessary, at a time which is convenient for the customer.
c. Communications between Grantee and Subscribers:
I. Notifications to Subscribers:
(i) The Grantee shall provide written information on each of the
following areas at the time of Installation of service, at least annually to all
Subscribers, and at any time upon request:
(A) Products and services offered;
(B) Prices and options for programming services and conditions
of subscription to programming and other services;
(C) Installation and service maintenance policies;
(D) Instructions on how to use the Cable Service;
(E) Channel positions of the programming carried on the
System; and
(F) Billing and complaint procedures, including the address and
telephone number of the Grantee's office within the Service Area.
(ii) Customers will be notified of any changes in rates, programming
services or channel positions as soon as possible in writing. Notice must be given
to Subscribers a minimum of thirty (30) days in advance of such changes if the
changes are within the control of the Grantee. In addition, the Grantee shall notify
subscribers thirty (30) days in advance of any significant changes in the other
information required by this Section 1.18( c)( 1 )(i). Grantee shall not be required to
provide prior notice of any rate changes as a result of a regulatory fee, franchise fee,
or other fees, tax, assessment or charge of any kind imposed by any federal agency,
state or franchising authority on the transaction between the operator and the
subscriber.
2. Billing:
(i) Bills will be clear, concise and understandable. Bills must be fully
itemized. with itemizations includin!!. but not limited to. basic and premium service
charges and equipment charges. Bills will also clearly delineate all activity during
the billing period, including optional charges, rebates and credits.
(ii) In case of a billing dispute, the Grantee must respond to a written
complaint from a Subscriber within thirty (30) days.
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3. Refunds: Refund checks will be issued promptly, but no later than either:
(i) The customer's next billing cycle following resolution of the request
or thirty (30) days, whichever is earlier, or
(ii) The return of the equipment supplied by the Grantee if service is
terminated.
4. Credits: Credits for service will be issued no later than the customer's next
billing cycle following the determination that a credit is warranted.
Grantee shall provide City with a quarterly customer service compliance report specific to
the system serving the City ofWayzata in a form mutually agreed to, which report shall, at a
minimum, describe in detail Grantee's compliance with each and every term and provision ofthis
Section 1.18 and any additional customer service requirements contained in Grantee's Franchise
and shall outline and summarize all subscriber complaints received by Grantee during the
preceding calendar quarter.
SECTION 1.19. RATE REGULATION.
The City reserves the right to regulate rates for Basic Cable Service and any other services
offered over the Cable System, to the extent not prohibited by Applicable Laws. The Grantee shall
be subject to the rate regulation provisions provided for herein, and those of the Federal
Communications Commission (FCC) at 47 C.F.R., Part 76, Subpart N, as the same may be
amended from time to time. The City shall follow the rules relating to cable rate regulation
promulgated by the FCC at 47 C.F.R., Part 76, Subpart N, as the same may be amended from time
to time.
SECTION 1.20. FRANCHISE FEE.
a. Following the issuance and acceptance of a Franchise, the Grantee shall pay to the
Grantor a Franchise Fee in the amount set forth in the Franchise Agreement.
b. The Grantor, on an annual basis, shall be furnished a statement within ninety (90)
days of the close of the calendar year, certified by the Company controller or chief financial
officer,; reflecting the total amounts of Gross Revenues and all payments, and computations of the
Franchise Fee for the previous calendar year. Upon ten (10) days prior written notice, Grantor
shall have the right to conduct an independent audit of Grantee's records. If such audit indicates a
Franchise Fee underpayment of five percent (5%) or more, the Grantee shall assume all of City's
out-of-pocket costs associated with the conduct of such an audit and shall remit to Grantor all
applicable Franchise Fees due and payable together with interest thereon at the lesser of the
maximum rate permitted by Applicable Laws or 18% per annum.
c. Except as otherwise provided by law, no acceptance of any payment by the Grantor
shall be construed as a release or as an accord and satisfaction of any claim the Grantor may have
for further or additional sums payable as a Franchise Fee under this Ordinance or any Franchise
Agreement or for the performance of any other obligation of the Grantee.
d. In the event that any Franchise Fee payment or recomputed amount is not made on
or before the dates specified in the Franchise Agreement, Grantee shall pay as additional
compensation an interest charge, computed from such due date, at an annual rate equal to the
lesser of the maximum rate permitted by Applicable Laws or 18% per annum during the period for
which payment was due.
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e. Franchise Fee payments shall be made in accordance with the schedule indicated in
the Franchise Agreement.
SECTION 1.21. DESIGN AND CONSTRUCTION REQUIREMENTS.
a. Grantee shall not construct any Cable System facilities until Grantee has secured
the necessary permits from Grantor, or other applicable Governmental Authorities.
b. In those areas of the City where transmission or distribution facilities of all the
public utilities providing telephone and electric power service are underground, the Grantee
likewise shall construct, operate and maintain its transmission and distribution facilities therein
underground.
c. In those areas of the City where Grantee's cables are located on the above-ground
transmission or distribution facilities of the public utility providing telephone or electric power
service, and in the event that the facilities of both such public utilities subsequently are placed
underground, then the Grantee likewise shall construct, operate and maintain its transmission and
distribution facilities underground, at Grantee's cost. Certain of Grantee's equipment, such as
pedestals, amplifiers and power supplies, which normally are placed above ground, may continue
to remain in above-ground closures, however, the City specifically reserves all of its rights to
approve above-ground or underground locations for pedestals subject to Applicable Laws.
d. In new residential developments in which all the electric power and telephone
utilities are underground, the City may, in its sole discretion, require that the following procedure
apply with respect to access to and utilization of underground easements:
1. The developer shall be responsible for contacting and surveying all Grantees
to ascertain which Grantees desire (or, pursuant to the terms and provisions of this
Ordinance and any Franchise Agreement, may be required) to provide Cable Service to that
development. The developer may establish a reasonable deadline to receive responses
from Grantees. The final development map shall indicate the Grantees which have agreed
to serve the development.
2. If one (1) or more Grantees wish to provide service within all or part of the
development, they shall be accommodated in the joint utilities trench on a
nondiscriminatory shared basis. If fewer than two (2) Grantees indicate interest, the
developer shall provide conduit to accommodate a minimum oftwo (2) sets of cable
television cables and dedicate to the City any initially unoccupied conduit. The developer
shall be entitled to recover the cost of such initially unoccupied conduit in the event that
Grantor subsequently leases or sells occupancy or use rights to any Grantee.
3. The developer shall provide at least ten (10) business days notice of the date
that utility trenches will be open to the Grantees that have agreed to serve the development.
When the trenches are open, such Grantees shall have two (2) business days to begin the
Installation of their cables, and five (5) business days after beginning Installation to
complete Installation.
4. The final development map shall not be approved until the developer
submits evidence that:
A. It has notified each Grantee that underground utility trenches are to
open as of an estimated date, and that each Grantee will be allowed access to such
trenches, including trenches from proposed Streets to individual homes or home
sites, on specified nondiscriminatory terms and conditions; and
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B. It has received a written notification from each Grantee that the
Grantee intends to install its facilities during the open trench period on the specified
terms and conditions, or such other terms and conditions as are mutually agreeable
to the developer and Grantee, or has received no reply from a Grantee within ten
(10) days after its notification to such Grantee, in which case the Grantee will be
deemed to have waived its opportunity to install its facilities during the open trench
period.
5. Sharing the joint utilities trench shall be subject to compliance with State
regulatory agency and utility standards. If such compliance is not possible, the developer
shall provide a separate trench for the cable television cables, with the entire cost shared
among the participating Grantee(s). With the concurrence of the developer, the affected
utilities and the Grantees, alternative Installation procedures, such as the use of deeper
trenches, may be utilized, subject to the requirements of Applicable Laws.
6. Any Grantee wishing to serve an area where the trenches have been closed
shall be responsible for its own trenching and associated costs and shall repair all property
to the condition which existed prior to such trenching.
e. Construction Codes and Permits.
1. Grantee shall obtain all necessary permits from City before commencing
any construction uP2rade or extension ofthe 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 zonin2 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.
2. The City shall have the right to inspect all construction or installation work
performed pursuant to the provisions of the Franchise and to make such tests at its own
expense as it shall find necessary to ensure compliance with the terms of the Franchise and
applicable provisions of local. state and federal law.
f. Repair of Streets and Property. Any and all Streets or public property or private
property. which are disturbed or damaged during the construction. repair. replacement. relocation.
operation. maintenance or reconstruction of the System shall be promptlv and fully restored by
Grantee. at its expense. to a condition as good as that nrevailing prior to Grantee's work. as
approved by City in the case of Streets and other public property. If Grantee shall fail to promptly
perform the restoration required herein. City shall have the right to put the streets. public. or
private property back into good condition. City reserves its rights to pursue reimbursement for
such restoration from Grantee.
g. Conditions on Street Use.
1. Nothing in this Franchise shall be construed to prevent City from
constructing. maintaining. repairin2 or relocating sewers: grading. pavin2. maintainin2.
repairing. relocating and/or altering any Street: constructin2. layin2 down. repairing,
maintaining or relocating any water mains: or constructing. maintaining. relocating. or
repairing any sidewalk or other public work.
2. All System transmission and distribution structures. lines and equipment
erected by the Grantee within Citv shall be located so as not to obstruct or interfere with
the proper use of Streets. alleys and other public ways and places. and to cause minimum
interference with the ri2hts of property owners who abut any of the said Streets. alleys and
other public ways and places. and not to interfere with existing public utility installations.
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The Grantee shall furnish to and file with City Administrator the maps. plats. and
permanent records ofthe location and character of all facilities constructed. including
underground facilities. and Grantee shall file with City updates of such maps. plats and
permanent records annually if changes have been made in the System.
3. If at any time during the period of this Franchise City shall elect to alter. or
change the grade or location of any Street. alley or other public way. the Grantee shall. at
its own expense. upon reasonable notice by City. remove and relocate its poles. wires.
cables. conduits. manholes and other fixtures of the System. and in each instance comply
with the standards and specifications of City. If City reimburses other occupants of the
Street. Grantee shall be likewise reimbursed.
4. The Grantee shall not place poles. conduits. or other fixtures of System
above or below ground where the same will interfere with any gas. electric. telephone.
water or other utility fixtures and all such poles. conduits. or other fixtures placed in any
Street shall be so placed as to comply with all requirements of City.
5. The Grantee shall. on request of any Person holding a moving permit issued
by City. temporarily move its wires or fixtures to permit the moving of buildings with the
expense of such temporary removal to be paid by the Person requesting the same. and the
Grantee shall be given not less than ten (10) days advance notice to arrange for such
temporary changes.
SECTION 1.22. TECHNICAL STANDARDS.
a. The Grantee shall construct, install, operate and maintain its System in a manner
consistent with all Applicable Laws and the Federal Communications Commission technical
standards, and any standards set forth in its Franchise Agreement. In addition, the Grantee shall
provide to the Grantor, upon request, a copy of the results ofthe Grantee's periodic proof of
performance tests conducted pursuant to Federal Communications Commission standards and
guidelines.
b. Failure to comply with the FCC's technical standards shall entitle the City to utilize
the procedures of Section 1.30 hereof.
c. All construction practices shall be in accordance with all applicable sections of the
Occupational Safety and Health Act of 1970, as amended, as well as all other Applicable Laws.
e g. All Installation of electronic equipment at the time of installation shall be of a
permanent nature, durable and installed in accordance with the provisions of the National
Electrical and Safety Code and National Electrical Code, as amended, and as said code may from
time to time be amended.
a~. Antennae and their supporting structures (towers) shall be painted, lighted, erected
and maintained in accordance with all applicable rules and regulations of the Federal Aviation
Administration and all other Applicable Laws.
e f. All of Grantee's plant and equipment, including, but not limited to, the antenna site,
headend and distribution system, towers, house connections, structures, poles, wire, coaxial cable,
fixtures and appurtenances shall be installed, located, erected, constructed, reconstructed, replaced,
removed, repaired, maintained and operated in accordance with good engineering practices,
performed by experienced maintenance and construction personnel so as not to endanger or
interfere with improvements the City may deem appropriate to make or to interfere in any manner
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with the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian or
vehicular traffic.
f i. Grantee shall at all times employ ordinary care and shall install and maintain in use
commonly accepted methods and devices preventing failures and accidents which are likely to
cause damage, injury or nuisance to the public.
SECTION 1.23. TRIMMING OF TREES.
Grantee shall have the authority to trim trees, in accordance with all applicable utility
restrictions, ordinance and easement restrictions, upon and hanging over Streets and public places
of the City so as to prevent the branches of such trees from coming in contact with the wires and
cables of Grantee. City representatives shall have authority to supervise and approve all trimming
of trees conducted by Grantee.
SECTION 1.24. USE OF GRANTEE FACILITIES.
The City shall, at its own expense, have the right to install and maintain upon the poles and
within the underground pipes and conduits of Grantee, any wires and fixtures desired by the City
to the extent that such installation and maintenance does not interfere with existing operations of
Grantee.
SECTION 1.25. PROGRAMMING DECISIONS.
All programming decisions shall be at the sole discretion of Grantee; provided, however,
that any change in the mix, quality or level of service pursuant to 47 V.S.C. ~ 545(a) shall require
the prior approval of the City. Such approval by the City shall not be unreasonably withheld.
SECTION 1.26. INDEMNIFICATION.
Grantee shall indemnify, defend and hold the City, its officers, boards, commissions,
agents and employees (collectively the "Indemnified Parties") harmless from and against any and
all lawsuits, claims, causes of action, actions, liability, demands, damages, judgments, settlements,
losses, expenses (including reasonable attorneys' fees) and costs of any nature that any of the
Indemnified Parties may at any time, directly or indirectly, suffer, sustain or incur arising out of,
based upon or in any way connected with the grant of a Franchise to Grantee, the operation of
Grantee's System and/or the acts and/or omissions of Grantee or its agents or employees, whether
or not pursuant to the Franchise. This indemnity shall apply, without limitation, to any action or
cause of action for invasion of privacy, defamation, antitrust, errors and omissions, theft, fire,
violation or infringement of any copyright, trademark, trade names, service mark, patent, or any
other right of any Person, whether or not any act or omission complained of is authorized, allowed
or prohibited by this Ordinance or any Franchise Agreement, but shall exclude any claim or action
arising out of the acts or omissions of the Indemnified Parties or related to any City programming
or other access programming for which the Grantee is not legally responsible.
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SECTION 1.27. INSURANCE.
Within sixty (60) days following the grant of a Franchise, the Grantee shall obtain, pay all
premiums for and make available to the City at its request copies of the following insurance
policies:
a. A general comprehensive liability insurance policy insuring, indemnifying,
defending and saving harmless the Indemnified Parties from any and all claims by any Person
whatsoever on account of injury to or death of a Person or Persons occasioned by the operations of
the Grantee under any Franchise granted hereunder, or alleged to have been so caused or occurred
with a minimum coverage of One Million Dollars ($1,000,000) for personal injury or death of one
Person, and Three Million Dollars ($3,000,000) for personal injury or death of any two (2) or more
Persons in anyone occurrence. The policy limits provided for in this Section 1.27(a) shall be
reviewed and adjusted by the city as necessary not more than once every three (3) years.
b. Property damage insurance for property damage occasioned by the operation of
Grantee under any Franchise granted pursuant to this Ordinance, or alleged to have been so caused
or occurred, with minimum coverage of One Million Dollars ($1,000,000) for property damage to
the property of anyone Person and Three Million Dollars ($3,000,000) for property damage to the
property of two or more Persons in anyone occurrence. The policy limits provided for in this
Section 1.27(b) shall be reviewed and adjusted by the city as necessary not more than once every
three (3) years.
c. Workers Compensation Insurance as provided by Applicable Laws.
d. All insurance policies called for herein shall be in a form satisfactory to the City
with a company licensed to do business in the State of Minnesota with a rating by A.M. Best &
Co. of not less than "A," and shall require thirty (30) days written notice of any cancellation to
both the City and the Grantee. The Grantee shall, in the event of any such cancellation notice,
obtain, pay all premiums for, and file with the City, written evidence of the issuance of
replacement policies within thirty (30) days following receipt by the City or the Grantee of any
notice of cancellation.
e. If Grantee sells or transfers the Cable System, or in the event of expiration,
termination or revocation of a Franchise, insurance tail coverage shall be purchased and filed with
the City for the then applicable amounts, providing coverage for the time periods according to
applicable statutes of limitation, insurance for any issues attributable to the period Grantee held its
Franchise.
f. It shall be the obligation of Grantee to promptly notify the City of any pending or
threatened litigation that would be likely to affect the Indemnified Parties.
SECTION 1.28. RECORDS REQUIRED AND GRANTOR'S RIGHT TO
INSPECT.
a. Grantee shall at all times maintain the following records and information relating
specifically to the Cable System serving the City as identified by the FCC Community Unit
Identifier ("CUID") as opposed to a regional cable system or other operating unit of Grantee:
1. A full and complete set of plans, records and "as-built" drawings and/or
maps in an electronic form agreed to by City and Grantee which shall be updated annually
showing the location of the Cable Television System installed or in use in the City,
exclusive of Subscriber service drops and equipment provided in Subscribers' homes.
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2. If requested by Grantor, a summary of service calls, identifying the number,
general nature and disposition of such calls, on a monthly basis. A summary of such
service calls shall be submitted to the Grantor within thirty (30) days following its request
in a form reasonably acceptable to the Grantor.
b. Upon reasonable notice, and during Normal Business Hours, Grantee shall permit
examination by any duly authorized representative of the Grantor, of all Franchise property and
facilities, together with any appurtenant property and facilities of Grantee situated within or
without the City, and all records relating to the Franchise, provided they are necessary to enable
the Grantor to carry out its regulatory responsibilities under Applicable Laws, this Ordinance and
the Franchise Agreement. Grantee shall have the right to be present at any such examination.
c. The City shall also have the right to inspect, upon twenty-four (24) hours written
notice, at any time during Normal Business Hours at Grantee's office, all books, records, maps,
plans, financial statements, service complaint logs, performance test results, records of request for
service, and other like materials of Grantee.
d. Copies of all petitions, applications, communications and reports submitted by
Grantee or on behalf of or relating to Grantee to the Federal Communications Commission,
Securities and Exchange Commission, or any other Governmental Authority having jurisdiction
with respect to any matters affecting the Cable System authorized pursuant to this Ordinance and
any Franchise shall, upon request, be submitted, upon request to the City. Copies of responses
from the Governmental Authority to Grantee shall likewise be furnished to the City.
SECTION 1.29. ANNUAL REPORTS.
a. Grantee shall, upon request, within ninety (90) days of each calendar year end,
submit a written end of the year report to Grantor with respect to the preceding calendar year
containing the following information:
1. A Summary of the previous year's (or in the case of the initial reporting
year, the initial year's) activities in development of the Cable System, including but not
limited to, services commenced or discontinued during the reporting year;
2. A list of Grantee's officers, members of its board of directors, and other
principals of Grantee;
3. A list of stockholders or other equity investors holding five percent (5%) or
more of the voting interest in Grantee; and
4. Information as to the number of Subscribers, additional television outlets,
and the number of basic and pay service Subscribers.
b. All reports required under this Ordinance, except those required by law to be kept
confidential, shall be available for public inspection in the Grantee's offices during Normal
Business Hours.
c. All reports and records required under this Ordinance shall be furnished at the sole
expense of Grantee, except as otherwise provided in this Ordinance or the Franchise agreement.
SECTION 1.30. FRANCHISE VIOLATION.
In the event Grantor believes that Grantee has breached or violated any material provision
of this Ordinance or a Franchise granted hereunder, Grantor may act in accordance with the
following procedures:
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Grantor may notify Grantee of the alleged violation or breach and demand that Grantee
cure the same within a reasonable time, which shall not be less than ten (10) days in the case of an
alleged failure of the Grantee to pay any sum or other amount due the Grantor under this
Ordinance or the Grantee's Franchise and thirty (30) days in all other cases. If Grantee fails either
to cure the alleged violation or breach within the time prescribed or to commence correction of the
violation or breach within the time prescribed and thereafter diligently pursue correction of such
alleged violation or breach, the Grantor shall then give written notice of not less than fourteen (14)
days of a public hearing to be held before the Council. Said notice shall specify the violations or
breaches alleged to have occurred. At the public hearing, the Council shall hear and consider
relevant evidence and thereafter render findings and its decision. In the event the Council finds
that a material violation or breach exists and that Grantee has not cured the same in a satisfactory
manner or has not diligently commenced to cure of such violation or breach after notice thereof
from Grantor and is not diligently proceeding to fully cure such violation or breach, the Council
may revoke and terminate the Franchise or impose any other remedy permitted by the Franchise
Agreement or Applicable Laws.
SECTION 1.31. FORCE MAJEURE; GRANTEE'S INABILITY TO
PERFORM.
In the event Grantee's performance of any of the terms, conditions or obligations required
by this Ordinance or a Franchise granted hereunder is prevented by a cause or event not within
Grantee's control, such inability to perform shall be deemed excused for the period of such
inability and no penalties or sanctions shall be imposed as a result thereof. For the purpose of this
Section, causes or events not within the control of Grantee shall include, without limitation, acts of
God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental
agency or court, failure or loss of utilities, explosions, acts of public enemies, and natural disasters
such as floods, earthquakes, landslides and fires.
SECTION 1.32. ABANDONMENT OR REMOVAL OF FRANCHISE
PROPERTY.
a. In the event that the use of any property of Grantee within the Franchise Area or a
portion thereof is discontinued for a continuous period of twelve (12) months, Grantee shall be
deemed to have abandoned that property.
b. Grantor, upon such terms as Grantor may impose, may give Grantee permission to
abandon, without removing, any System facility or equipment laid, directly constructed, operated
or maintained in, on, under or over the Franchise Area. Unless such permission is granted or
unless otherwise provided in this Ordinance, the Grantee shall remove all abandoned facilities and
equipment upon receipt of written notice from Grantor and shall restore any affected Street to its
former state at the time such facilities and equipment were installed, so as not to impair its
usefulness. In removing its plant, structures and equipment, Grantee shall refill, at its own
expense, any excavation made by or on behalf of Grantee and shall leave all streets and other
public ways and places in as good condition as that prevailing prior to such removal without
materially interfering with any electrical or telephone cable or other utility wires, poles or
attachments. Grantor shall have the right to inspect and approve the condition of the streets,
public ways, public places, cables, wires, attachments and poles prior to and after removal. The
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liability, indemnity and insurance provisions of this Ordinance and any security fund provided for
in the Franchise Agreement shall continue in full force and effect during the period of removal and
until full compliance by Grantee with the terms and conditions of this Section.
c. Upon abandonment of any Franchise property in place, the Grantee, if required by
the Grantor, shall submit to Grantor a bill of sale and/or other an instrument, satisfactory in form
and content to the Grantor, transferring to the Grantor the ownership of the Franchise property
abandoned.
d. At the expiration of the term for which the Franchise is granted, or upon its earlier
revocation or termination, as provided for herein and/or in the Franchise Agreement, in any such
case without renewal, extension or transfer, the Grantor shall have the right to require Grantee to
remove, at its own expense, all above-ground portions of the Cable Television System from all
Streets and public ways within the City within a reasonable period of time, which shall not be less
than one hundred eighty (180) days.
e. Notwithstanding anything to the contrary set forth in this Ordinance, the Grantee
may, with the consent of the Grantor, abandon any underground Franchise property in place so
long as it does not materially interfere with the use of the Street or public rights-of-way in which
such property is located or with the use thereof by any public utility or other cable Grantee.
SECTION 1.33. EXTENDED OPERATION AND CONTINUITY OF
SERVICES.
Upon termination or forfeiture of a Franchise. the Grantee shall remove its cable. wires.
and appliances from the streets. alleys. or other public places within the Service Area if the City so
requests. Failure by the Grantee to remove its cable. wires. and appliances as referenced herein
shall be subiect to the requirements of Section 1.32 of this Ordinance.
SECTION 1.34. RECEIVERSHIP AND FORECLOSURE.
a. A Franchise granted hereunder shall, at the option of Grantor, cease and terminate
one hundred twenty (120) days after appointment of a receiver or receivers, or trustee or trustees,
to take over and conduct the business of Grantee, whether in a receivership, reorganization,
bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have been
vacated prior to the expiration of said one hundred twenty (120) days, or unless: (1) such receivers
or trustees shall have, within one hundred twenty (120) days after their election or appointment,
fully complied with all the terms and provisions of this Ordinance and the Franchise granted
pursuant hereto, and the receivers or trustees within said one hundred twenty (120) days shall have
remedied all the defaults and violations under the Franchise and/or this Ordinance or provided a
plan for the re~edy of such defaults and violations which is satisfactory to the Grantor; and (2)
such receivers or trustees shall, within said one hundred twenty (120) days, execute an agreement
duly approved by the court having jurisdiction in the premises, whereby such receivers or trustees
assume and agree to be bound by each and every term, provision and limitation of the Franchise
and this Ordinance.
b. In the case of a foreclosure or other judicial sale of the Franchise property, or any
material part thereof, Grantor may give notice of termination of any Franchise granted pursuant to
this Ordinance upon Grantee and the successful bidder at such sale, in which the event the
Franchise granted and all rights and privileges of the Grantee hereunder shall cease and terminate
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thirty (30) days after such notice has been given, unless (1) Grantor shall have approved the
transfer of the Franchise in accordance with the provisions of the Franchise and this Ordinance;
and (2) such successful bidder shall have covenanted and agreed with Grantor to assume and be
bound by all terms and conditions of the Franchise.
SECTION ~.us.
RIGHTS RESERVED TO GRANTOR.
&.- In addition to any rights specifically reserved to the Grantor by this Ordinance, the
Grantor reserves to itself every right and power which is required to be reserved by a provision of
any ordinance or under the Franchise.
SECTION ~~.
RIGHTS OF INDIVIDUALS.
a. Grantee shall not deny service, deny access, or otherwise discriminate against
Subscribers, Channel users, or general citizens on the basis of race, color, religion, disability,
national origin, age, gender or sexual preference. Grantee shall comply at all times with all other
Applicable Laws, relating to nondiscrimination.
b. Grantee shall adhere to the applicable equal employment opportunity requirements
of Applicable Laws, as now written or as amended from time to time including 47 V.S.C.
Section 551, Protection of Subscriber Privacy.
c. Neither Grantee, nor any Person, agency, or entity shall, without the Subscriber's
consent, tap or arrange for the tapping, of any cable, line, signal input device, or Subscriber outlet
or receiver for any purpose except routine maintenance of the System, detection of unauthorized
service, polling with audience participating, or audience viewing surveys to support advertising
research regarding viewers where individual viewing behavior cannot be identified.
d. In the conduct of providing its services or in pursuit of any collateral commercial
enterprise resulting therefrom, Grantee shall take reasonable steps to prevent the invasion of a
Subscriber's or general citizen's right of privacy or other personal rights through the use of the
System as such rights are delineated or defined by Applicable Laws. Grantee shall not, without
lawful court order or other applicable valid legal authority, utilize the System's interactive two-
way equipment or capability for unauthorized personal surveillance of any Subscriber or general
citizen.
e. No cable line, wire, amplifier, converter, or other piece of equipment owned by
Grantee shall be installed by Grantee in the Subscriber's premises, other than in appropriate
easements, without first securing any required consent. If a Subscriber requests service,
permission to install upon Subscriber's property shall be presumed. Where a property owner or his
or her predecessor was granted an easement including a public utility easement or a servitude to
another and the servitude by its terms contemplates a use such as Grantee's intended use, Grantee
shall not be required to service the written permission of the owner for the Installation of cable
television equipment.
f. No signals of a class IV cable communications channel may be transmitted from a
Subscriber terminal for purposes of monitoring individual viewing patterns or practices without
the express written permission of a Subscriber. The request for permission must be contained in a
separate document with a prominent statement that the Subscriber is authorizing the permission in
full knowledge of its provisions. The written permission must be for a limited period of time not
to exceed one year which is renewal at the option ofthe Subscriber. No penalty may be invoked
-21-
for a Subscribers failure to provide or renew the authorization. The authorization is revocable at
any time by the Subscriber without penalty of any kind. The permission must be required for each
type or classification or class IV cable communications activity planned.
1. No information or data obtained by monitoring transmission of a signal
from a Subscriber terminal, including but not limited to the lists of the names and
addresses of the Subscribers or lists that identify the viewing habits of Subscribers may be
sold or otherwise made available to any Person other than to Grantee and its employees for
internal business use, or to the Subscriber who is the subject of that information, unless the
Grantee has received specific written authorization from the Subscriber to make the data
available.
2. Written permission from the Subscriber must not be required for the
systems conducting system wide or individually addressed electronic sweeps for the
purpose of verifying system integrity or monitoring for the purpose of billing.
Confidentiality of this information is subject to paragraph 1 above.
3. For purposes of this Section 136, a "class IV cable communications
channel" means a signaling path provided by a System to transmit signals of any type from
a Subscriber terminal to another point in the System.
SECTION ~.L3L SEVERABILITY.
If any provision of this Ordinance is held by any Governmental Authority of competent
jurisdiction, to be invalid as conflicting with any Applicable Laws now or hereafter in effect, or is
held by such Governmental Authority to be modified in any way in order to conform to the
requirements of any such Applicable Laws, such provision shall be considered a separate, distinct,
and independent part of this Ordinance, and such holding shall not affect the validity and
enforceability of all other provisions hereof. In the event that such Applicable Laws are
subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof
which had been held invalid or modified is no longer in conflict with such laws, said provision
shall thereupon return to full force and effect and shall thereafter be binding on Grantor and
Grantee, provided that Grantor shall give Grantee thirty (30) days written notice of such change
before requiring compliance with said provision or such longer period of time as may be
reasonably required for Grantee to comply with such provision.
PASSED, APPROVED, AND ADOPTED this
day of
,1997.
THE CITY OF W A YZA T A, MINNESOTA
By:
Its:
ATTEST
-22-
CABLE TELEVISION FRANCHISE AGREEMENT
W AYZATA,MINNESOTA
November 14, 1997
Prepared by:
Brian T. Grogan, Esq.
MOSS & BARNETT
A Professional Association
4800 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402-4129
(612) 347-0340
TABLE OF CONTENTS
SECTION 1. GENERAL PROVISIONS ......................................................... ..... ............. ......... ....4
1.1) Definitions................................................................................................................4
1.2) Written Notice..........................................................................................................4
SECTION 2. RENEWAL OF FRANCHISE.......................................... ....... ......... ................... ......5
2.1) Grant. .......................................................................................................................5
2.2) Right of Grantor to Issue and Renew Franchise. .....................................................5
2.3) Effective Date of Renewal. ............ ............................................... ................ ...........5
2.4) Term. ......... ............................................................................................. ........ ..........6
2.5) Franchise Not Exclusive. .........................................................................................6
2.6) Conflict with Cable Ordinance. .............................Error! Bookmark not defined.
2.7) Ownership of Grantee. ................... ................................ ............ .......... .... ........... .....6
SECTION 3. GENERAL REQUIREMENTS ........... .............. ........ ...... ....................... .......... .........6
3.1) Governing Requirements. ...... ........................................................ ........ ...... ............6
3.2) Franchise Fee. .......................................................................................................... 7
3.3) Not Franchise Fees........ ............. ...... ...... ........ ............. ..................................... ........7
3.4) Recovery of Processing Costs....... ........... ................................................................8
3.5) Liability Insurance. ........ .................... ............ .................... ..... .................... .............8
3.6) Indemnification. .....................................................................................................1 0
3.7) Grantee's Insurance............................................................................................... .11
3 .8) Workers' Compensation Insurance. .......... ......... ........................ ................... ........ .11
3.9) Security Fund. ...................................................................................................... ..11
3.10) Procedure for Enforcing Franchise Agreement......................................................12
3.11) Reservation of Rights............................................................................................ .13
3.12) Annual Report....................................................................................................... .13
SECTION 4. SYSTEM UPGRADE .............. ................. ........................ ..... ................................. .13
4.1) Upgrade. ................................................................................................................ .13
4.2) Emergency Alert Capability. ......... .................................... ........... ..................... ....14
4.3) Parental Control Lock. ......................................................................................... ..15
4.4 ) Technical Standards. ............................................................................................. .15
4.5) Right of Inspection... .............. ........ ...... ........... ........ ................. ............................ ..15
4.6) Periodic Evaluation, Review and Modification. ....................................................15
2.
SECTION 5. SERVICES AND PROGRAMMING ......................................................................16
5.1) Services and Programming. ...................................................................................16
5.2) Leased Channel Service. ............ ............................... ................................... ..........17
SECTION 6. SUPPORT FOR LOCAL CABLE USAGE ............................................................17
6.1) PEG Access Operating Costs. ................................................................................17
6.2) Grantee Support for PEG Usage. ...........................Error! Bookmark not defined.
6.3) Compliance with Federal Law. ............. ..... ........................ .................................. ..18
SECTION 7 . REGULATION ... ....... ...................... ....................................................................... .19
7.1)
7.2)
7.3)
Franchise Regulation. ........ ............... ................. ........ ........................................... .19
Force Majeure. . .................. ............. ..................... ........ ....... .................................. .19
Rate Regulation... ........... ......... ....................... ...................................................... ..20
EXHIBIT A
EXHIBIT B
EXHIBIT C
EXHIBIT D
EXHIBIT E
EXHIBIT F
GRANTEE'S OWNERSHIP INFORMATION
FRANCHISE FEE PAYMENT WORKSHEET
CORPORATE GUARANTEE
ANNUAL PERFORMANCE REVIEW CHECKLIST
SERVICES OFFERED BY GRANTEE
GRANTEE COMMITMENT TO PEG ACCESS FACILITIES
AND EQUIPMENT
SERVICE TO PUBLIC FACILITIES
PUBLIC BUILDINGS TO BE PROVIDED WITH FREE CABLE
DESCRIPTION OF SYSTEM UPGRADE
EXHIBIT F-l
EXHIBIT F-2
EXHIBIT G
3.
FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT (hereinafter the "Agreement"), made and entered
into this day of ,19_, by and between the City ofWayzata, a
municipal corporation of the State of Minnesota (hereinafter the "City" or "Grantor"), and Triax
Midwest Associates, L.P. (hereinafter the "Grantee").
WITNESSETH
WHEREAS, pursuant to Ordinance No. (the "Ordinance"), the City is
authorized to grant and renew one or more nonexclusive revocable Franchises to operate,
construct, maintain and reconstruct a cable television system within the City; and
WHEREAS, the City, after due evaluation of the Grantee's technical ability, financial
condition and legal qualifications, and after public hearings, has determined that it is in the best
interest of the City and its residents to renew the Franchise held by the Grantee.
NOW, THEREFORE, in consideration of the foregoing premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
hereto agree as follows:
SECTION 1.
GENERAL PROVISIONS
1.1) Definitions.
Capitalized terms used in this Agreement shall be defined as set forth in the Ordinance
unless (i) otherwise defined herein, or (ii) the context otherwise requires.
1.2) Written Notice.
All notices, reports or demands required or permitted to be given under this Agreement
and/or the Ordinance shall be in writing and shall be deemed to be given when delivered
personally to the party designated below, or when five (5) days have elapsed after it has been
deposited in the United States mail in a sealed envelope, with registered or certified mail, postage
prepaid thereon, or on the next business day if sent by express mail or nationally recognized
overnight air courier addressed to the party to which notice, report or demand is being given, as
follows:
If to City:
City Clerk
600 Rice Street
Wayzata. MN 55391
If to Grantee: Regional Manager
Triax Cablevision
4.
212 - 15th Avenue NE
Suite 2010
Waseca, MN 56093
Such addresses may be changed by either party upon notice to the other party given as provided
in this Section.
SECTION 2.
RENEWAL OF FRANCHISE
2.1) Grant.
Upon acceptance of this Franchise by Grantee, the Franchise granted pursuant to
Ordinance No. , passed and adopted on the _ day of , 19_
to, Triax Midwest Associated, L.P., is hereby replaced and superseded by the provisions of the
Ordinance, subject to the terms and conditions of this Agreement. This Franchise hereby
provides Grantee with the authority, right and privilege to construct, reconstruct, operate and
maintain a Cable Television System to provide Cable Services within the Franchise Area.
2.2) Right of Grantor to Issue and Renew Franchise.
Grantee acknowledges and accepts the right of Grantor to issue and/or renew the
Franchise under the law as it existed on the Effective Date hereof and Grantee agrees that it shall
not now or at any time hereafter challenge any lawful exercise of this right by Grantor in any
local, State or Federal court.
2.3) Effective Date of Renewal.
The renewal ofthe Franchise provided for in this Agreement shall be effective on the date
that both parties have executed this Agreement (the "Effective Date"), provided that said date is
no later than thirty (30) days after the date the City Council, by Resolution, approves this
Agreement (the "Approval Date"). The renewal of the Franchise provided for in this Agreement
is further contingent upon the filing by Grantee with the City Clerk of the City, of this
Agreement duly executed by Grantee together with the security fund and insurance certificates
provided for in this Agreement and the Ordinance, except that if such filing does not occur
within sixty (60) days after the Approval Date, the Grantor may, in its sole discretion, declare the
renewal of the Franchise provided for herein to be null and void.
2.4) Term.
The term of the Franchise renewed pursuant to this Agreement shall be for the period of
fifteen (15) () years commencing on the Effective Date, at which time it shall
expire and be of no force or effect unless the Franchise is then renewed in accordance with the
Ordinance and Applicable Laws.
5.
2.5) Franchise Not Exclusive.
The Franchise renewed pursuant to this Agreement shall not be construed as limiting the
right of Grantor, through its proper offices, and in accordance with the Ordinance and Applicable
Law, to grant other Franchises containing terms and conditions that are no more favorable or less
burdensome than those imposed on Grantee in the same Franchise Area the Grantee is entitled to
occupy by this Agreement, permit or otherwise; provided, however, that such additional grants
shall not operate to materially modify, revoke or terminate any rights granted to Grantee herein
and shall be in accord with the provisions of the Ordinance.
2.6) Ownership of Grantee.
Grantee represents and warrants to Grantor that the names of the shareholders, partners,
members or other equity owners of the Grantee and of any of the shareholders, partners,
members and/or other equity owners of Grantee are as set forth in Exhibit A hereto.
SECTION 3.
GENERAL REQUIREMENTS
3.1) Governing Requirements.
Grantee shall comply with all lawful requirements of this Agreement, the Ordinance and
Applicable Laws.
3.2) Franchise Fee.
(a) In consideration of the renewal of the Franchise provided for herein, the Grantee
shall, at all times during the term of this Agreement, pay to Grantor a Franchise Fee of five
percent (5%) of Grantee's Gross Revenues as defined in the Ordinance but excluding any Access
Operating Fee funds collected. The Franchisee Fee shall be payable quarterly within thirty (30)
days of the expiration of the preceding calendar quarter. Each payment shall be certified by aft
offieer of Grantee Grantee's controller or chief financial officer and shall be accompanied by a
report in such form as the City may reasonably request showing the computation of the Franchise
Fee as it relates specifically to the Wayzata franchise area (CUID # MN0569) 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 B.
3.3) [explain vlhy deleting and ""'fl.y elarifieation ear.F1ot be ineluded in the Franehise
Agreement with respeet to '.v hat may or may not be dedueted from franehise fee payments][City
was reimbursed for eosts a year ago they are uncertain why this now has been eliminated from
agreement.[':my delete allo'Ns a good faith diseussioB behveen the hvo parties not mandatory]
Not Franchise Fees.
W Grantee acknowledges and agrees that the Franchise Fees payable by Grantee to
the City pursuant to Section 3.2 hereof shall take precedence over all other payments,
6.
contributions, Services, equipment, facilities, support, resources or other activities to be provided
or performed by the Grantee pursuant to this Agreement and/or the Ordinance and that the
Franchise Fees provided for in Section 3.2 of this A2reement shall not be deemed to be in the
nature of a tax. and shall be in addition to any and all taxes of 2eneral applicability and other fees
and char~es 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 obli2ations of Grantee.
.C1:U.- 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 bv Grantee to Grantor pursuant
to this A2reement and/or the Ordinance shall be deducted from or credited or offset a2ainst any
taxes. fees or assessments of 2eneral applicability levied or imposed by the City or any other
Governmental Authority. includin2 any such tax. fee or assessment imposed on both utilities and
cable operators or their services.
@ Grantee shall not apply or seek to apply all or any part of any taxes. fees or
assessments of 2eneral applicability levied or imposed by the City or any other Governmental
Authority (including any such tax. fee or assessment imposed on both utilities and cable
operators or their services) as a deduction or other credit from or a2ainst any of the Franchise
Fees or other payments or contributions to be paid or made pursuant by Grantee to Grantor to
this A~reement and/or the Ordinance. each of which shall be deemed to be separate and distinct
obligations of the Grantee.
...3.& Recovery of Processin2 Costs.
.uu.. Durin2 the term of this A~reement. if the Grantee initiates a reauest for approval
regarding the transfer of this Franchise or a chanQ:e in control of the Grantee. the Grantee shall. to
the extent permitted by Applicable Laws. reimburse the Grantor for all reasonable out-of-pocket
costs. includin2 attorneys' and consultants' fees and costs. incurred by the Grantor in connection
with Grantor's review and processinQ: of Grantee's request.
(b) To aid in the analysis and resolution of anv future disputed matters relative to this
Agreement. the Grantor and Grantee may. bv mutual written a2reement (both as to whether to
hire and whom to hire). emplov the services of technical. financial and/or legal consultants. as
mediators. All reasonable fees ofthe consultants incurred by the Grantor and/or the Grantee in
this regard shall. unless the parties otherwise aQ:ree. be borne equally by Grantor and Grantee.
3.5) Liability Insurance.
(a) Upon the Effective Date, the Grantee shall, at its sole expense and in addition to
all required insurance under Section 1.27 of the Ordinance, take out and maintain during the term
of this Agreement 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 Grantor and their officials, officers, directors, employees and agents from claims
which may arise from operations under this Agreement, 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
7.
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 attached to the liability policy:
(1) The policy shall provide coverage on an "occurrence" basis.
(2) The policy shall cover personal injury as well as bodily injury.
(3) 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.
(4) Broad form property damage liability shall be afforded.
(5) The Grantor shall be named as an additional insured on the policy.
(6) An endorsement shall be provided which states that the coverage is
primary insurance and that no other insurance maintained by the Grantor
will be called upon to contribute to a loss under this coverage.
(7) Standard form of cross-liability shall be afforded.
(8) An endorsement stating that the policy shall not be canceled without thirty
(30) days notice of such cancellation given to the Grantor.
(b) [feels some periodic adjustment is RecessaT)' to insure aaequate coverage o','er a
length of time] Grantor reserves the ri~ht to adjust the insurance limit coveraie requirements of
this Agreement no more often than once every three (3) years. Any such adiustment by the
Grantor will be no greater than the increase in the State of Minnesota Consumer Price Index (all
consumers) for such three (3) year period.
(c) Grantee shall submit to Grantor 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.
3.6) ['.vhy deleting] Indemnification.
(a) In addition to Grantee's indemnification obligations under Section 1.26 ofthe
Ordinance, Grantee shall indemnify, defend and hold Grantor, 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 Grantee's operations, the
exercise of the Franchise renewed pursuant to this Agreement, the breach by Grantee of its
8.
obligations under this Agreement or the Ordinance 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 Agreement 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 Agreement, or the terms, applicability or limitations of any
insurance held by Grantee.
(c) Grantor does not, and shall not, waive any rights against Grantee which it may
have by reason of the indemnification provided for in this Agreement, because of the acceptance
by Grantor, or the deposit with Grantor by Grantee, of any of the insurance policies described in
this Agreement.
(d) The indemnification of Grantor by Grantee provided for in this Agreement 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 Agreement, 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 Grantor for negligence or misconduct
on the part of Grantor or its officials, boards, commissions, agents, or employees. Grantor shall
hold Grantee harmless, subject to the limitations in Minnesota Statutes Chapter 466, for any
damage resulting from the negligence or misconduct of the Grantor 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 Grantor in connection with work performed by
Grantor and permitted by this Agreement, on or adjacent to the Cable System.
3.7) ['NIly it is unclear vt'hether the indemnification requirement will be assumed by the new
Grantee for prior aets of Tria}(]
Grantee's Insurance.
Grantee shall not commence any Cable System reconstruction work or permit any
subcontractor to commence work until all insurance required under this Agreement and the
Ordinance has been obtained. Said insurance shall be maintained in full force and effect until the
expiration of this Agreement.
3.8) Workers' Compensation Insurance.
Grantee shall obtain and maintain Workers' Compensation Insurance for all of Grantee's
employees, and in case any work is sublet, Grantee shall require any subcontractor similarly to
provide Workers' Compensation Insurance for all of their employees, all in compliance with
State laws, and to fully indemnify the Grantor from and against any and all claims arising out of
occurrences on the work. Grantee hereby indemnifies Grantor for any and all costs, expenses
9.
(including attorneys' fees and disbursements of counsel), damages and liabilities incurred by
Grantor as a result of any failure of either Grantee or any subcontractor to take out and maintain
such insurance. Grantee shall provide the Grantor with a certificate of insurance indicating
Workers' Compensation coverage on the Effective Date.
3.9) Security Fund.
(a) Within sixty (60) days of the Approval Date, Grantee shall establish and provide
to Grantor a security fund, as security for the full and timely payment and performance by
Grantee of all of its obligations under this Agreement and the Ordinance. The security fund shall
consist of two (2) parts. The first part shall be in the amount of One Hundred Thousand Dollars
($100,000) and shall either be in the form of a performance bond, or a corporate guarantee and
which shall be in a form acceptable to Grantor's City Attorney, and essentially similar to the
example provided in Exhibit C. The second part shall be in the amount of at least ~ Ten
Thousand Dollars ($5,00C)) $10,000($10.000) and shall either be in the form of an irrevocable
letter of credit, or a cash deposit established in a local bank in an interest-bearing account
payable to the order of Grantor as trustee for Grantee, with all interest distributed to the Grantee.
(b) The first part of the security fund shall be maintained at the One Hundred
Thousand Dollar ($100,000) level until the System upgrade and/or rebuild provided for in
Section 4.1 hereof is completed, at which time that part of the fund shall be released, provided
there are then no outstanding material violations or breaches of this Agreement or the Ordinance
by Grantee. The second part of the security fund shall be maintained at the Five Thousand
Dollar ($5,000) level. [maintaiB. at same level as ','..flen initially granted] Ten Thousand Dollar
($10.000) level for three (3) years at which time Grantee may request a reduction in the amount
to Five Thousand Dollars ($5.000). If. at any time durinll the term of this Franchise. Grantee
seeks consent to a transfer or assillnment of its rillhts hereunder. Grantor may unilaterally
increase the security fund up to Twenty Thousand Dollars ($20.000) if it so chooses.
(c) The security fund may be drawn upon by Grantor for those purposes specified in
Section 3 .1O( d) hereof, in accordance with the procedures of Section 3.1 0, as the case may be,
provided that Grantee has received written notice and thirty (30) days after receipt of such notice
to cure any material violations or breaches prior to any assessment. [\>A1y deleting] Grantee's
recourse. in the event Grantee believes that Grantor's actions in taking any security funds is
improper. shall be through legal action after the security has been drawn upon. If the Grantor's
action is found to be improper by any court or allency of competent jurisdiction. Grantee shall
only be entitled to a refund of the funds plus interest.
(d) [why deleting] Nothinll herein shall be deemed a waiver of the normal permit and
bonding requirements made of all contractors workinll within the City's rillhts-of-way.
3.10) Procedure for Enforcing Franchise Agreement.
(a) The procedures for enforcing violations or breaches of this Agreement and/or the
Ordinance shall be consistent with the procedures set forth in the Ordinance. In the event of an
alleged violation or breach of this Agreement and/or the Ordinance by Grantee, Grantor, by
10.
action of the City Council, shall first give notice to Grantee of the 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 the failure of the Grantee to pay any sum or other amount due the Grantor
under this Agreement or the Ordinance, and thirty (30) days in all other cases. If Grantee fails to
cure the violation or breach to the Grantor's reasonable satisfaction within the time prescribed or
if Grantee fails to commence corrective action within the time prescribed and diligently proceed
to cure such violation or breach thereafter, the Grantee shall then be given a written notice of not
less than fourteen (14) days of a public hearing to be held before the Council. Said notice shall
specify the violations or breach alleged to have occurred.
(b) At the public hearing, the Council shall hear and consider all relevant evidence,
and thereafter render findings and its decision.
(c) In the event the Council finds that Grantee has cured the violation or breach or has
diligently commenced correction of such violation or breach after notice thereof from Grantor
and is diligently proceeding to fully remedy such violation or breach, or that no material
violation or breach has occurred, the Council shall terminate the hearing and no penalty or other
sanction shall be imposed against Grantee. In determining whether a violation or breach is
material, Grantor shall take into consideration the reliability of the evidence of the violation or
breach, the nature of the violation or breach and the damage, (if any) caused or likely to be
caused thereby to the Grantor, the City's residents or Subscribers, any justifying or mitigating
circumstances and such other matters as the Grantor may deem appropriate.
(d) In the event the Council finds that a material violation or breach exists and that
Grantee has not cured the same in a satisfactory manner, has not diligently commenced
correction of such violation or breach or has not diligently proceeded to fully remedy such
violation or breach, the Council may impose liquidated damages, assessable from the security
fund, of up to GfI:e Five Hundred Dollars ($100)($500) per day or per incident, for unexcused
violations or breaches of the System upgrade and/or rebuild completion schedule provided in
Section 4.1 herein, and up to I'i.fty Three Hundred Dollars ~($300) per day or per incident for
all other violations or breaches of this Agreement and/or the Ordinance, provided that all
violations or breaches of a similar nature occurring at the same time shall be considered one (1)
incident.[leave in mOBetary penalties are in liBe with reeeHt decision in Jones IBtercable v
Naperville city's right to termiBate based on material ',iolatioB mtlst be retaiBed.
3.11) Reservation of Rights.
Grantor and Grantee reserve all rights that they may possess under Applicable Laws
unless expressly waived herein.
3.12) Annual Report.
In addition to the requirements of Section 1.20 and 1.29 of the Ordinance, Grantee shall
submit a written end of the year report to Grantor utilizing the format outlined in the Annual
Performance Review Checklist attached hereto as Exhibit D. In addition, Grantee and Grantor
agree that the Annual Performance Review Checklist may be modified from time to time by
11.
Grantor, in its sole discretion, to incorporate additional issues and topics for comment by
Grantee. In accordance with Section 1.18 of the Ordinance, Grantee shall also provide City with
a quarterly customer service compliance report utilizing the format outlined in Exhibit I attached
hereto.
SECTION 4.
DESIGN PROVISION
4.1) Minimum Channel Capacity.
(a) Grantee shall provide a System which is capable of delivering a minimum of
eighty channels (80) Channels by Jan1:laF)' 1, 1999. December 31. 1998.
(b) All programming decisions remain the sole discretion of Grantee provided that
Grantee complies with federal law regarding notice to City and Subscribers prior to any channel
additions, deletions, or realignments, and further subject to Grantee's signal carriage obligations
pursuant to 47 V.S.C. ~~ 531-536, and subject to City's rights pursuant to 47 V.S.C. ~ 545.
Grantee shall conduct programming surveys from time to time to obtain input on programming
decisions from Subscribers.
4.2) System Design.
[provision remains ODen -- as does Exhibit G]
The System required herein will be engineered and built to provide a minimum of eighty
(80) channels using a bandwidth technology or compression technology in tbe discretion of
Grantee. Grantee shall meet with City to review its system design and construction plans prior to
the commencement of construction and shall, at the request of City, participate in a public
meeting designed to inform residents of City of said design and construction plans. In those
residential areas ',mere fiber Fiber optic cable is will be deployed, and the system shall
incorporate multiple strands of fiber and serve an average of five hundred (500) homes per fiber
node. The System shall at all times meet the technical standards established by the FCC as they
may be amended from time to time and shall be operated so as to minimize disruption of signal
to Subscribers. The precise System specifications are outlined in Exhibit G. which is
inc01:porated herein by reference.[want full rebuild not "compression teclmology" wants to
work on revising the description oftlle system upgrade as f-Qund in Exhibit G]
4.3) Operation and Maintenance of System.
The Grantee shall render effective service, make repairs promptly, and interrupt service
only for good cause and for the shortest time possible. Such interruption, to the extent feasible,
shall be preceded by notice in accordance with Section 1.2 herein and all applicable provisions of
the Ordinance. and shall occur during periods of minimum use of the System.[Iacl1:lde
clarification that Grantee 'Nill also eomply with applicable pro':isions of the Ordiaance regarding
technical issues]
12.
4.4) Special Testing.
City may require special testing of a location or locations within the System if there is a
particular matter of controversy or unresolved complaints pertaining to such location(s).
Demand for such special tests may be made on the basis of complaints received or other evidence
indicating an unresolved controversy or noncompliance. Such tests shall be limited to the
particular matter in controversy or unresolved complaints. The City shall endeavor to so arrange
its request for such special testing so as to minimize hardship or inconvenience to Grantee or to
the Subscribers caused by such testing. Before ordering such tests, Grantee shall be afforded
thirty (30) days to correct problems or complaints upon which tests were ordered. The City shall
meet with Grantee prior to requiring special tests to discuss the need for such and, if possible,
visually inspect those locations which are the focus of concern. If, after such meetings and
inspections, City wishes to commence special tests and the thirty (30) days have elapsed without
correction of the matter in controversy or unresolved complaints, the tests shall be conducted by
a qualified engineer selected by City. In the event that special testing is required by City to
determine the source of technical difficulties, the cost of said testing shall be borne by the
Grantee if the testing reveals the source of the technical difficulty to be within Grantee's
reasonable control. If the testing reveals the difficulties to be caused by factors which are beyond
Grantee's reasonable control then the cost of said test shall be borne by City.
4.5) FCC Reports.
The results of tests required to be filed by Grantee with the FCC shall also be copied to
City.
4.6) Emergency Alert Capability.
Grantee shall at all times comply with all Applicable Laws regarding the provision of
emergency alert services. At a minimum. Grantee shall incorporate into its Svstem the capability
for an emergency override alert whereby a designee of the Citv. in times of crisis. may introduce
an audio message on the System. Grantee shall provide. in a convenient location. all equipment
necessary for use of the emergency alert system.
4.7) 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.
4.8) Technical Standards.
Grantee shall, at a minimum, comply at all times with all applicable Federal
Communications Commission (FCC) Rules and Regulations, including but not limited to,
Part 76, Subpart K (Technical Standards), as may be amended from time to time.
13.
4.9) Right ofInspection.
Grantor shall have the right to inspect all construction, reconstruction or installation work
performed by Grantee under the provisions of this Agreement and Applicable Laws, to ensure
Grantee's compliance and to protect the health, safety and welfare of Grantor's citizens.
4.10) Periodic Evaluation, Review and Modification.
Grantor and Grantee acknowledge and agree that the field of cable television is a
relatively new and rapidly changing one which may see many regulatory, technical, financial,
marketing and legal changes during the term of this Agreement. Therefore, in order to provide
for the maximum degree of flexibility in this Agreement, 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 4.10.
(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
Agreement; 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
request to perform the evaluation.
(e) [\V1:1)' is this deleted furt1:1er clarifieation] If at any time durin~ its evaluation. the
City determines that reasonable evidence exists of inadequate System performance. the City may
require Grantee to perform tests and analyses pursuant to Section 4.4 of this Franchise directed
toward such suspected inadequacies. Grantee shall fully cooperate with the City in performin~
such testin~.
(f) As a result of an evaluation session, the City or Grantee may determine that an
amendment in the terms of this Agreement may be required, that the requirements of the System
or this Agreement 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 Agreement, the Ordinance, 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
14.
will, in good faith, review the terms of the Proposed Modification and consider amending this
Agreement accordingly.
SECTION 5.
SERVICES AND PROGRAMMING
5.1) Services and Programming.
Grantee shall provide Grantor with a list of programming services and other services
offered, which list shall be attached hereto as Exhibit E (the "Services List"). The Services List
shall include all applicable charges and pricing schedules. The Services List shall be updated
each time a change is made by Grantee. Grantee shall not alter the number of program services
or other services without thirty (30) days prior written notification to the Grantor and System
Subscribers.
5.2) Leased Channel Service.
Grantee shall offer leased channel service on reasonable terms and conditions and in
accordance with Applicable Laws.
5.3) Periodic Subscriber Survey.
(a) Commencing in 1998 and at least every three (3) years thereafter, Grantee shall,
no earlier than (90) days and no later than thirty (30) days prior to sl:lbmitting the ar.nual report
required pursuant to Seetions 1.20 and 1.29 of the Ordinanee, eonduet a "Titten random survey
of City Subscribers in a f{)rm and mar.ner approyed by the City. Each sur.ey shall be prepared
and eondueted in good faith so as to present reasoaably reliable measures of Subscriber
satisfaction with:
signal quality;
Grantee' response to Subscriber eomplaints;
billing practices;
program services; and
installation praetices.
The survey shall be condl:leted in coaf{)rmity '?lith sueh requirements, including sl:lpervision and
review of retl:lmed Sl:lcveys, as the City may from time to time prescribe. Grantee may satisfy the
requirements of this Section 5.3 through a telephone survey conducted by an independent Person
in the business of regl:llarly eOHductiag telephone To the extent Grantee conducts customer
surveys with respect to all or a portion of the system servin~ the City. it shall provide the City
with all non-confidential information and findings from such surveys.
(b) As a part of each annual report, Grantee shall provide the City with the results of
any survey conducted and shall report in writing what steps Grantee is taking to implement the
findings of the survey, such as correcting problems and expanding services.[Clarify that any
eosts associated '?lith Periodic S1:1bscriber Survey will Hot be borne by the city, passed through to
subscribers, nor dedl:leted from the franchise fee paymems.]
15.
SECTION 6.
PUBLIC ACCESS PROVISIONS
6.1) Public, Educational and Government Access.
(a) City or its designee is hereby designated to operate, administer, promote, and
manage access (public, education, and government programming) (hereinafter "PEG access") to
the cable system established pursuant to this Section 6. Grantee shall have no responsibility
whatsoever for PEG access except as expressly stated in this Section 6.
6.2) Grantee Support for PEG Usage.
In accordance with the provisions of the Cable Act and Minn. Stat. ~ 238.084, Grantee
shall provide and make available for public, educational and governmental (PEG) access usage
within the Service Area the following:
(a) Provision and use of the grant funds and Channels designated in Exhibit F of this
Agreement for local POO educational and governmental programming and access use at no
charge in accordance with the requirements of Exhibit F.
(b) Maintenance of the peg Access Facilities and Channels, and support ofpgff
educational and governmental programming to the extent specified in Exhibit F of this
Agreement.
(c) Provision of free public building Installation and cable service as more clearly
specified in Exhibit F, and provision of two-way capability to the locations specified in
Exhibit F.
(d) POO Access Facilities shall be operated by the City.
The City is uneomf{)rtable including a requirement of f{)rm the "ad'/isery committee" in the
Franchise .^.greement. The City wants to maintain fleJdbility to create and/or dismantle
eommittees as neoessary eliminate reference to committee.
SECTION 7.
REGULATION
7.1) Amendment of Franchise Agreement.
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 H ~ or at any
other time if City and Grantee agree that such an amendment will be in the public interest or if
such an amendment is required due to changes in federal, state or local laws. City shall act
pursuant to local law pertaining to the ordinance amendment process.
16.
7.2) Conflict Between Ordinance and Agreement.
In the event of any conflict between the terms and conditions of this Franchise Agreement
and the provisions of the Ordinance, the provisions of this Franchise Agreement shall control.
Grantee expressly acknowledges and agrees that the City hereby retains all of its police powers
and the City may unilaterally amend the Ordinance in the exercise of its police powers and
Grantee shall comply with said Ordinance as may be amended; provided, however that City
hereby agrees to use reasonable efforts to address public health, welfare and safety needs without
resorting to amending the Ordinance. [Clarify that Grantee accepts all terms of the Ordinance as
presently drafted and will not later assert a conflict between tfie Franchise and Ordiaance unless a
subsequent amendment is incorporated. In other words, if a eenflict e}{ists tell us nO'll or don't
raise it later as a def'8flse. ]
7.3) Force Majeure.
In accordance with Section 1.31 of the Ordinance, in the event Grantee's performance of
any of the terms, conditions, obligations or requirements of this Agreement or the Ordinance 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.. ['Vh)' can't Grantee provide advance v,'i"itten notice once it Ras
disco'lered an event which will prevent its performance of the franckise]. provided Grantee has
notified Grantor in writin~ within ten (10) days of its discovery of the occurrence of such an
event. Such causes beyond Grantee's reasonable control shall include, but shall not be limited to,
acts of God, civil emergencies and labor unrest or strikes, untimely delivery of equipment,
inability of Grantee to obtain access to an individual's property and inability of Grantee to secure
all necessary permits to utilize utility poles and conduit so long as Grantee utilizes due diligence
to timely obtain said permits.
7.4) Rate Regulation.
Nothing in this Agreement shall in any way prevent Grantor from regulating any rates
charged by Grantee. If Grantor elects to so regulate, Grantor shall follow the procedures outlined
in Section 1.19 of the Ordinance or Applicable Laws.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement the day,
month and year first above written.
CITY OF W A YZA T A, MINNESOTA
Dated:
By:
ATTEST:
17.
By:
Its:
(SEAL)
TRIAX MIDWEST ASSOCIATES, L.P.
Dated:
By:
Its:
(CORPORATE SEAL)
STATE OF MINNESOTA)
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me on
, the of the City of
,19_, by
, on behalf of the City.
Notary Public
STATE OF MINNESOTA)
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me on , 19_, by
, the of Triax Midwest Associates, L.P. on behalf of the
Company.
Notary Public
0335118.01 TO UPD.\TE, PRESS F9 142726/324m03!.DOC
18.
EXHIBIT A
OWNERSHIP
TRIAX MIDWEST ASSOCIATES, L.P.
is a [wholly owned subsidiary of parent name].
EXHIBIT B
[GROGAN IS WAITING FOR US TO SUBMIT A PROPOSED ALTERNATIVE FEE PAYMENT
WORKSHEET]
EXHIBIT D
ANNUAL PERFORMANCE REVIEW CHECKLIST[TH!S WILL HA VE TO BE J,IOD!FIED
BASED O.V THE AGREE},IENTS OF' THE ABOVE REFERK",tCED OPEV ISSUES]
1. RATES AND CHARGES
No change
Changed
Notices sent to City and subscriber
Changes in rates and costs identified by attachment
Change "reasonable" and consistent with the standards prescribed by the
FCC
Other (describe in attachment)
2. PROGRAMS AND SERVICES
No change in programs and services
New programs and services added
Identify new programs and services and decision for introduction
The programs and service changes meet demand expressed in customer
satisfaction surveys
Other (describe in attachment)
3. PUBLIC, GOVERNMENTAL AND EDUCATIONAL ACCESS
Check Where
Applicable
4. CUSTOMER SERVICE
Customer service requirements complied with
Summary of complaints (attached)
System outages summary (attached)
Description of new customer services, promotions (attached
5. FILINGS WITH FCC
Summary of all filings with FCC described in attachment
6. PERFORMANCE TEST IN FRANCHISE COMPLETED
Summary of performance test results (attached)
7. FRANCHISE FEE PAYMENTS MADE (ATTACH COMPLETED
FRANCHISE FEE PAYMENT WORKSHEETS - EXHIBIT B TO
FRANCHISE AGREEMENT)
8.
9. COMPLETION OF CONSTRUCTION
Upgrade/rebuild (summary attached)
New technologies incorporated into System
Channel capacity increased
Service extended to new areas
Other
10. NEW SERVICES
No Changes
Services other than programming made available in the subscriber network
(summary attached)
11. TERMS AND CONDITIONS IN THE FRANCHISE AGREEMENT
HAVE BEEN COMPLIED WITH
Company participated in planning studied and Cable Advisory Committee
activities (summary attached
All insurance, bonds and deposits are updated and filed with City
12. OTHER PERFORMANCE HIGHLIGHTS OR PLANS TO BE
INTRODUCED WITHIN THE NEXT TWELVE (12) MONTHS
(SUMMARY ATTACHED)
Dated this _ day of
Officer of []
,19_, by
, a duly authorized
City of
, Minnesota Verification:
The above Annual Performance Review has been filed by Triax Midwest Associates, L.P. as
required. The Office of for the City of has reviewed the
information and finds that the filing is complete lis not complete _' The following
matters are deemed incomplete and require further information and/or compliance by
,19_.
EXHIBIT E
SERVICES OFFERED BY GRANTEE
Service
Description
Rate/
Charge
EXHIBIT F
GRANTEE COMMITMENT TO
PEG ACCESS FACILITIES AND EQUIPMENT
[Review state law and determine whether the number of access channels can be modified
to perhaps eliminate a public access channelfrom a neighboringjurisdiction-Grogan want you
to review J 238.084 subd 3(a)(5) as he believes that provision will provide Wayzata the
flexibility it is lookingfor.)
1. PUBLIC. EDUCATIONAL AND GOVERNMENT (PEG) ACCESS CHANNELS
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 noncommercial
public access channel available for use by the general public on a first-come, first-served,
nondiscriminatory basis; at least one (1) specially designated access channel for use by local
educational authorities; at least one (1) specially designated access channel available for
government use (hereinafter collectively referred to as the "PEG Channels"); and at least one (1)
specially designated access channel available for lease on a first-come, first-served,
nondiscriminatory basis by commercial and noncommercial users. The VHF spectrum must be
used for at least one (1) of the PEG Channels required in this paragraph. No charges may be
made for channel time or playback of prerecorded programming on the specially designated
noncommercial 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.
Whenever the PEG 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 Channel for
the same purpose, provided that provision of the additional channel or channels must not require
the Cable System to install converters.
The PEG Channels shall be dedicated for PEG use for the term of the Franchise
Agreement, provided that Grantee may, utilize any portions of the PEG Channels not scheduled
for PEG use. Grantor shall establish rules and procedures for such scheduling in accordance with
Section 611 of the Cable Act (47 U.S.C. ~ 531). Grantee acknowledges Grantor's desire to
produce only educational and governmental programming and that Grantor will not be producing
public access prollramming. Grantor acknowledges Grantee's statutox:y obligations with respect
to public access programming and recognizes that public access programming from other
jurisdictions served by Grantee may be cablecast on the City's public access channel. Grantee.
however. shall have the right under Minn. Stat. Chanter 238 to use the channel capacity on the
public access channel for other programming such as mind extension university. the leaminll
channel or any other programming Grantee. in its sole discretion. deems appropriate.
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.
2. PEG OPERATIONS
Grantor 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 Channels. Grantor and Grantee may negotiate an agreement for
management of PEG facilities, if so desired by both parties.
3. TITLE TO PEG EQUIPMENT
Grantor shall retain title to all PEG equipment and facilities purchased or otherwise
acquired pursuant to the previous Wayzata franchise Ordinance No. ).
4. PROMOTION OF PEG ACCESS
Grantee shall allow the Grantor to place bill stuffers in Grantee's Subscriber statements at
a cost to the Grantor not to exceed Grantee's cost, no less frequently than twice per year upon the
written request of the Grantor and at such times that the placement of such materials would not
materially and adversely effect Grantee's cost for the production and mailing of such statements.
The Grantor agrees to pay Grantee in advance for the actual cost of such bill stuffers. Grantee
shall also make available access information provided by Grantor in Subscriber packets at the
time of Installation and at the counter in the System's business office within the Service Area.
Grantee shall also distribute, at no charge to Grantor, through advertising insertion equipment, 28
weekly promotional and awareness commercial spots at randomly selected times in un-purchased
advertising space produced at the Grantor's cost and submitted by the Grantor in a format
compatible with such advertising insertion equipment once Grantee has acquired and activated
such capability. Grantee shall also include a listing of the known programming to be cablecast
on PEG access Channels in or on any program guide of services for the Cable System.
5. SERVICE TO PUBLIC BUILDINGS
(a) One (1) cable drop connection and the highest level of cable service excluding
Pay TV, pay-per-view and pay-per-channel programming shall be provided free of charge to each
public building listed in Exhibit F -1 with no Installation charges or monthly service charges.
Said drop connection and service provision shall be concurrent with the construction schedule
required by Section 4.1 of the Agreement. Grantee shall, in any public building hereinafter built,
provide all materials, design specifications and technical advice for anyone cable outlet to be
installed during the construction of such building, without cost to the Grantor and Grantee shall
provide the same service to such new public building as required in this paragraph (a).
(b) Two-way capability shall be provided to the public buildings listed in Exhibit F-2.
(c) To the extent any educational facilities in the Citv ofOmo. Minnesota desire two-
way capability and Grantee agrees to provide such capability. Grantee is hereby authorized to use
the Grantor's streets. if necessary. to provide such two-way capability. Grantee and Grantor
mutually agree to use their best efforts to ensure the Omo school district. which serves some
Wayzata residents. shall receive the benefits of two-way capability to the extent desired by the
Omo school district.
6. PEG ACCESS OPERATING SUPPORT.
Grantee shall also collect on behalf of City a per Subscriber fee of Cents
L-) per month solely to fund access-related expenditures (hereinafter "Access Operating Fee");
provided, however, that in the event Grantee becomes subject to "effective competition" as that
term is defined in 47 U.S.C. ~ 521.01 et seq., as amended from time to time, and specifically
including Open Video Systems (OVS), as defined from time to time by the FCC, and/or Grantee
experiences a !We 1m percent ~(1 0%) decrease in the number of Expanded Basic Subscribers
in anyone year period calculated upon a yearly comparison of the number of Subscribers on
December 31 st of each year, the Access Operating Fee shall, following ninety (90) days written
notice to City, be reduced to the level of expenditure at which the competitive provider, if any, is
obligated or no less than thirty five cents ~($O. ) per Subscriber per month.
Actual receipts shall be payable on a monthly basis to City. City and Grantee may agree to
increase the Access Operating Fee on an annual basis.
EXHIBIT F-l
SERVICE TO PUBLIC FACILITIES
1. PUBLIC BUILDINGS TO BE PROVIDED WITH TWO- WAY CAPABILITY:
CITY OF W A YZA T A, MINNESOTA BUILDINGS;
City Council Chambers
Wayzata Depot
Wayzata Country Club
Wayzata West Junior High
Wayzata Community Church
Redeemer Church
St. Bart's
Unitarian Church
Fire Station
Wayzata Bay Center
600 Rice Street
402 Lake Street
200 Wayzata Boulevard West
149 Barry Avenue North
125 Wayzata Boulevard East
115 Wayzata Boulevard West
630 Wayzata Boulevard East
605 Rice Street
600 Rice Street
900 Superior Boulevard
EXHIBIT F-2
OTHER PUBLIC BUILDINGS
~ 1. PUBLIC BUILDINGS TO BE PROVIDED WITH PROGR..A~M ORIGIN;\. TION
C:\P;\.BILITY: TWO-WAY CAPABILITY:
0335118.01 CITY OF WA YZATA. MINNESOTA BUILDINGS:
City Council Chambers
Wayzata Depot
Wayzata Countty Club
Wayzata West Junior Hiih
Wayzata Community Church
Redeemer Church
St. Bart's
Unitarian Church
Fire Station
Wayzata Bay Center
600 Rice Street
402 Lake Street
200 Wayzata Boulevard West
149 Barty Avenue North
125 Wayzata Boulevard East
115 Wayzata Boulevard West
630 Wayzata Boulevard East
605 Rice Street
600 Rice Street
900 Superior Boulevard
EXHIBIT G
DESCRIPTION OF SYSTEM UPGRADE
1. General Requirements.
Grantee shall use equipment used in hi~h-Quality. reliable. modem Cable Systems of
similar desi~n. Within 90 days after the Effective Date. Grantee shall provide to the City a plan
for uP2radin~ the current System indicatin~. at least. a ~eneral overview of the construction
schedule.
2. General Description.
The up~rade shall provide Subscribers with a technically advanced and reliable Cable
System. The System shall operate with 750 MHZ of bandwidth. capable of deliverin~ a
minimum of 110 channels of pro~rammin~. It will have a return capacity of 5-30 MHZ. The
desi2n will provide the benefits of proven 11 O-channel electronics while positionin~ the System
for expansion of bandwidth and channel capacity as technolo~y and future services develop. A
purpose of this up~rade. in addition to increasin~ the technical capabilities and reliability of the
System. is to provide the capacity for increased channels of video pro~rammin~ available to
Subscribers.
3. Design.
The desi~n of the System shall be based upon a "Fiber to the Feeder" architecture. This
architecture will deliver the si~nals by fiber optics directly to each nei~hborhood ~roup. With a
nei~hborhood ~roup average of only 500 homes. the resultin~ System will have improved
reliability while deliverin~ a hi~h quality picture. Grantee will place fiber optic cables
throu~hout the City. deliverin~ the si~nals to an ootical node placed in each neighborhood area.
There shall be no more than an avera~e of9.5 active components in a cascade between the
headend and the Subscriber. and an avera~e of no more than 7.5 active components in a cascade
from any node. The lon~est coaxial cascade from a node shall not be lon~er than two (2) miles.
which coaxial cascade shall use no more than nine active components. The headends will be
interconnected to the hubs by a redundant fiber rin~. and the hubs will then feed the nodes.
Should any equipment failures occur at a node. the number of homes which could be affected
would total no more than the number of homes fed from that node. The incor:poration of standby
power supplies. strate2ically placed throu~hout the System includin~ all hubs. will further reduce
the likelihood of service interruptions.
4. Technical Specifications.
(a) The System shall be capable ofmeetinl! the followin~ distortion parameters:
1. Carrier to RMS Noise
2. Carrier to Second Order
47 dB
53 dB
3. Carrier to Cross Modulation
4. Carrier to Composite Beat
53 dB
53 dB
(b) The frequency versus gain response of a single channel as measured across any 6
MHZ spectrum shall not exceed +/-2 dB.
(c) The frequency versus gain response of the entire passband shall not exceed n/ 10+
2 dB for the entire System where N is the number of amplifiers in cascade.
(d) The System shall be desilmed such that at a minimum all technical specifications
of this Franchise A~reement are met.
....
(e) The System shall be designed- such that no noticeable del!radation in signal Quality
will a,ppear at the Subscriber terminal.
142726/324M031 DOC
.;.
Jl
--..
C ITV OF
CHANHASSEN
Y-
,---
690 COULTER DRIVE. P.O. BOX 147. CHANHASSEN, MINNESOTA 55317
(612) 937-1900. FAX (612) 937-5739
MEMORANDUM
TO:
Don Ashworth, City Manager
FROM:
Todd Gerhardt, Assistant City Manager
DATE:
October 27, 1997
SUBJ:
Triax Outage Credit
I received a phone call this past week from Triax requesting venfication regarding the "Cable TV
Outage Credit." This past month Triax submitted a list of street names where they felt the
trouble areas existed and will provide a 20% credit.
Triax has now agreed to the 25% credit as requested by the city council. Ifwe get verification
from the city council at Monday night's meeting, Triax could provide the credit in their next
month's billmg cycle.
I had Brian Grogan (our cable attomey) review the Triax's proposal and asked his opinion on the
settlement. Mr. Grogan recommends that we accept Triax's proposal as, legally, they are not
obligated to give a credit unless "service has been interrupted or discontinued for a total period of
more than 48 hours in any 30 day period." Mr. Grogan is also reluctant to push the issue because
a large percentage of the outages were due to both public and private road projects that cut
Triax's cable (i.e. Lyman Boulevard, Villages on the Pond, etc.).
Councilman Senn would also like to add Kurvers Point, Colonial Grove, Lotus Lake Estates, Fox
Hollow and Near Mountain to the list.
g: \admm \tg\tnaxcredl t.doc
FROM L~RVIN HOFFM~N
09.22.1997 17:35
F'. 5
. .
. .
Triax
Menxrancbn
a .
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1504 2ND ST. S.E., P.O. ROX III
WAS'U:.t\. MN 5609:
(~07) B1t.5'~97.
To:
From;
Date:
Subject:
Jano Bremer and Tom :aordwell
Paul Pecora
September 22, 1997
Chanbassen Service Credits
-
Below is a list of streets whioh we have identified as htJ.ving service related outages during the last few
months. According to our records. there are approximately 560 active homes in these areas.
Minion BJIIt SuWUvlJion
!vfission HiI18 Drive/CowtlLane
Mission Hills Way w.
Mission mus Way E.
Marshland TrEill
Frisco Court
Mayfield Court
TiBua Lane
Monk Court
Rice Court
Blackbird COUrt
Heartland Court
300 Block to 900 Block of 86th St.
~bAnha5SCQ..B.1LIs.- ~~)..dh1Wm
Chanhassen Hill~ Drive S.
Chanhassen Hills Drive N.
Mary Jane Circle
Lake Susan Court
Lak~ Susan Drive
Barbara Court
Oak Side Circle
Lyman Court
Commerce Drive
Spoonbill Cir
Mallard Court
Kingfisher court
Audulx>n Poad
7900 to 9000 Block of Great Plains Boulevard
FROM LRRVIN HOFFMRN
09.22.1997 17:35
F'. E.
Page 2
Chanhassen Service Credits
L-3ke Sn~Rn Hills Sub4ivfsion
Essc'C Road
Suffolk Drive
Lake Susan Hills Drive
West Lake Court
West Lake Drive
DOve Court
Drake Court
Egret Court
Pelican Court
Powers Place
Tern Court
Flamingo Drive
Mer8BnSer Court
Thtush Court
Ibis Court
BluebIll Trial
Osprey Lane
Heron Drive
Swan Court
Bittern Court
A Iisa Lane
Alisa Court
Lake Drive West
Ridgetrail North
RidgctraiJ South
Valley View
Valley Viaw Court
Valley View Place
Sunridse Trail
VaHey Ridge Trail
As we discussed with the Members of City Couneil, T propose giving these subscribers 8. 20% credit on
their total monthly service rate. In addition, I propose giving a 10% credit to those customers who live on
Willow View Cove as they were affected by a bad t:runk amplifi~r. This problem was given to us by
Councilman Sann as he lives in this area. The City Council may also wonder if 8 credit should be given to
the entire community due to an intermittent fiber optic transmitter problem which is listed on the outage
log. To my knowledge. the transmitter has caused 8. problem six times in the last throe months, and as a
result. no additional credit should be given as the effect of this problem was generally short lived.
Please let me know if additional information is needed.
FPOM LRP~IN HOFFMRN
09.22.1997 17:34
P. L
LARKIN. HOFFMAN. DALY & LINDGREN, LTD.
ATTORNEYS AT LAW
J.n. E. Sflmtr
OIR, DIAL (812) 8;8.32117
E-MAIl. Jbr.mtrQ:>>/lldl.com
1500 NORWf:S'r FINANCIAL CENTER
71100 XERXES AVENUE SOUTH
BLOOM/NOTON. MINNESOTA 55431.11;4
TELEPHONE (812) 835'3800
FAX (812) 8118.3333
September 22, 1997
Brian T. Orogan, Esq.
Moss & Barnett
4800 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402..4129
VIA FACSIMILE
Re: City of Chanhassen. Minnesota
Dear Brian:
Thank you for your letter of September 17, 1997, regarding the swnmary ofinfonnation to be provided
by Triax Midwest Associates, L.P., (Triax), to the City ofChanhassen. Our response is in order of the
requested information:
1. Detailed written report regarding service outages and problems have occurred within the City over
the past several weeks. The requested report is attached.
2. Subscriber credit infonnation. See Attached.
3. Triax will provide a plan to provide "pro-active" communication with Todd Gerhardt which should
occur at least twice monthly. Triax would propose that in addition to the reports Todd wUl be
receiving updating outages and problems consIstent with our response to Question No. 1 herein, we
Would suggest a biweekly conference call between Todd and Regional Manager Paul Pecora to
review and discuss any outstanding issues. Further, many communities have found it very helpful to
provide a \\Titten summazy ofa customer complaint for the Company's written response. The
attached form is used by many communities in the metropolitan area and may be something
Mr. Gerhardt Would find more convenient in reporting and tracking customer complaints from
Chanhassen citizens.
S€~.lJi(-(. cJl rtCcfd
1\ ~4"", ~(J
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C \,\i ~"..,,~I tJ..A T
FROM LRRVIN HOFFMRN
(19.22.1997 17:34
P. c.
LARKIN, HOFFMAN, DALY & LINDGREN, LTD.
Brian T. Grogan, Esq.
September 22, 1997
Page 2
We appreciate the opportunity to work cooperatively with the City toward the discussion and resolution
of any issues affecting Chanhassen cable subscribers. We will continue to make ourselves available at
any time and will be happy to answer any questions you might have.
Sincerely,
{Jl{~{!!UID
LARKIN, HOFFMAN, DALY & LINDGREN, Ltd.
Enclosure
cc: Todd Gerhardt (via facsimile)
Rlc Hanson
Paul Pecora (w/enclosures)
0332679.01
1
FROt'l LAPf. IN HOFFfo1AN
Trlax Cablevl"on
Outage SU'mmary · August
Chanhaasen, MN
co -~~ LOCf!!;on
/8/04/97 White pOve Or.
8/09/97 FIber Node
------w T
WJ2Nl. '_. lake R~t~.B'Vd
8/27/97 .. Lake Ri/9~ ~d
8/28/97 FIber Node
~9(97 '-:-- Lake Rlley_ Blvdrrrapllne
09.22.1997 17:35
..
Problem
Bad '-Ine Ext9n~r Ampllfle~ .
'nt8rmrtt~nt SIanQJ Loss.. l.!Pper Channels
Cut Cable.. Road Con~ruet.ioon Crew
Cut Cable.. Road Con~!ruct;on Crew
BepJaoemant of ~~ser TraQsmitter _
Cut Cabla .. Road Construction Crew
1" ... ~ .
P.
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