HomeMy WebLinkAboutOrd 309 Franchise Agreement Midco •
SUMMARY PUBLICATION
ORDINANCE NO. 309
CITY OF ORONO
HENNEPIN COUNTY, MINNESOTA
AN ORDINANCE ADOPTING FRANCHISE AGREEMENT FOR NEW CABLE SERVICES
The City Council of the city of Orono, Minnesota approved an agreement with Midcontinent
Communications (Midco) on December 9, 2024 that gives the private company rights to use
public property in order to provide its services to residents, giving residents a second option for
television, internet, and phone services. The complete text of this ordinance is available at city hall
or www.oronomn.gov.
CITY OF ORONO
/s/Dennis Walsh, Mayor
Attest:
/s/Christine Lusian, City Clerk
CITY OF ORONO, MINNESOTA
CABLE TELEVISION FRANCHISE ORDINANCE
December 9, 2024
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TABLE OF CONTENTS
SECTION 1 STATEMENT OF INTENT AND PURPOSES 3
SECTION 2 SHORT TITLE AND DEFINITIONS 3
SECTION 3 GRANT OF AUTHORITY AND GENERAL PROVISIONS 8
SECTION 4 CONSTRUCTION STANDARDS 12
SECTION 5 DESIGN PROVISIONS 16
SECTION 6 SERVICES PROVISIONS 17
SECTION 7 PUBLIC ACCESS PROVISIONS 17
SECTION 8 OPERATION AND ADMINISTRATION PROVISIONS 18
SECTION 9 SALE,ABANDONMENT,TRANSFER,AND REVOCATION 25
SECTION 10 MISCELLANEOUS PROVISIONS 29
SECTION 11 PUBLICATION,EFFECTIVE DATE AND ACCEPTANCE 32
Exhibit A System Extension Area
Exhibit B Ownership
Exhibit C Description of System
Exhibit D Consumer Protection and Customer Service Standards
Exhibit E PEG Access Facilities and Equipment
Exhibit F Service to Public Facilities
Exhibit G Public Buildings to be Provided with Two-Way Capability
Exhibit H Franchise Fee Payment Worksheet
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CITY OF ORONO
HENNEPIN COUNTY,MINNESOTA
ORDINANCE NO. 309
AN ORDINANCE GRANTING A FRANCHISE TO MIDCONTINENT
COMMUNICATIONS TO CONSTRUCT, OPERATE,AND MAINTAIN A CABLE
COMMUNICATIONS SYSTEM IN THE CITY OF ORONO,MINNESOTA; SETTING
FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE;
PROVIDING FOR REGULATION AND USE OF THE SYSTEM; AND PRESCRIBING
PENALTIES FOR THE VIOLATION OF ITS PROVISIONS
The City Council of the City of Orono ("Franchising Authority") ordains:
STATEMENT OF INTENT AND PURPOSES
The City of Orono intends,by the adoption of this Franchise,to provide for the continued operation
about the development of Midcontinent Communication's Cable System, and the improvement and
enhancement of it. Such a development can contribute significantly to the communications' needs
and desires of the residents and citizens of the City and the public generally. Further, City may
achieve better utilization and improvement of public services and enhanced economic development
with the development and operation of the Cable System. •
FINDINGS
In the review of the application of Midcontinent Communications, ("Grantee"), and as a
result of a public hearing,the Franchising Authority makes the following findings:
(1) The Grantee's technical ability, financial condition, legal qualifications, and character were
considered and approved in a full public proceeding after due notice and a reasonable
opportunity to be heard;
(2) Grantee's plans for operating the System were considered and found adequate and feasible in
a full public proceeding after due notice and a reasonable opportunity to be heard;
(3) The Franchise granted to Grantee is nonexclusive;
(4) The Franchise granted to Grantee complies with the existing applicable Minnesota Statutes,
federal laws, and regulations.
SECTION 1
SHORT TITLE AND DEFINITIONS
(1) Short Title. This Franchise shall be known and cited as the Midcontinent Communications
Cable Television Franchise Ordinance.
(2) Definitions. For purposes of this Franchise, the following terms, phrases, words and their
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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) "Actual Cost" means Grantee's cost without any increase due to overhead, interest,
profit, or administrative expense.
(b) "Applicable Laws"means any local law, or federal or State statute, law,regulation,
or other final legal authority governing any of the matters addressed in this Franchise.
(c) "Basic Cable Service" means any service tier which includes the lawful
retransmission of local television broadcast signals and any public, educational, and
governmental access programming required by the Franchise to be carried on the
basic tier. Basic Cable Service as defined herein shall not be inconsistent with 47
U.S.C. §543(b)(7).
(d) "Cable Act" means the Cable Communications Policy Act of 1984, Pub. L. No. 98-
549, 98 Stat. 2779 (1984) (codified at 47 U.S.C. §§ 521-611 (1982 & Supp. V 1987))
as amended by the Cable Television Consumer Protection and Competition Act of
1992, Pub. L. No. 102-385 and the Telecommunications Act of 1996, Pub. L. No.
104-458 and as the same may, from time to time, be amended.
(e) "Cable Service" or "Service" means the one-way transmission to Subscribers of
Video Programming, or other programming service, and Subscriber interaction, if
any, which is required for the selection of such Video Programming or other
programming service.
(f) "Cable System" or "System" means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control equipment
that is designed to provide Cable Service which includes Video Programming, and
which is provided to multiple Subscribers within a community, but such term does
not include:
(i) A facility that serves only to retransmit the television signals of one or more
television broadcast stations;
(ii)A facility that serves Subscribers without using any public right-of-way;
(iii) A facility of a common carrier which is subject, in whole or in part, to the
provisions of 47 U.S.C. §§201 et seq., except that such facility shall be considered a
Cable System (other than for purposes of 47 U.S.C. §541 (c) to the extent such facility is
used in the transmission of Video Programming directly to Subscribers, unless the extent
of such use is solely to provide interactive on demand services;
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(iv)An open video system that complies with 47 U.S.C. §653; or
(v) Any facilities of any electric utility used solely for operating its electric utility
systems.
(g) "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.
(h) "City" means the City of Orono, Minnesota as represented by the Council or any
official delegate of the Council acting within the scope of its jurisdiction.
(i) "Converter" means an electronic device which converts signals to a frequency
acceptable to a television receiver of a Subscriber and by an appropriate selector
permits a Subscriber to view all Subscriber signals included in the service.
(j) "Council"means the City Council of the City of Orono, Minnesota.
(k) "Drop" means the fiber optical cable that connects the ONT at the Subscriber's
residence to the nearest Node of the System.
(1) "FCC" means the Federal Communications Commission and any legally appointed,
designated, or elected agent or successor.
(m) "Feeder Cable"means trunk fiber optic cables that run along Streets within the served
area and connects between the individual Nodes which serve the Drops.
(n) "Franchise"means an initial authorization, or renewal thereof(including a renewal of
an authorization which has been granted subject to 47 U.S.C. §546) issued by a
franchising authority, 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 or an MVPD System.
(o) "Franchise Fee"means any tax, fee or assessment of any kind imposed by the City or
any other Governmental Authority on a Grantee or cable Subscriber, or both, solely
because of their status as such. The term "Franchise Fee" does not include: (i) any
tax, fee or assessment of general applicability (including any such tax, fee or
assessment imposed on both utilities and cable operators or their services but not
including a tax, fee, or assessment which is unduly discriminatory against cable
operators or cable Subscribers); (ii) capital costs which are required by the Franchise
to be incurred by the Grantee for PEG Access Facilities; (iii) requirements or charges
incidental to the awarding or enforcing of the Franchise, including payments for
bonds, letters of credit, insurance, indemnification, penalties or liquidated damages;
or(iv) any fee imposed under Title 17 of the United States Code.
(p) "GAAP" means generally accepted accounting principles as promulgated and defined
by the Financial Accounting Standards Board ("FASB"), Emerging Issues Task Force
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("EITF") and/or the U.S. Securities and Exchange Commission("SEC").
(q) "Governmental Authority" means any court or other federal, State, county, municipal
or other governmental department,commission, board, agency or instrumentality.
(r) "Grantee" is Midcontinent Communications, its agents and employees, lawful
successors,transferees, or assignees.
(s) "Gross Revenue"means any and all revenues received by the Grantee from or in
connection with the operation of the Cable System to provide Cable Services in the
Service Area. Gross Revenues shall include, by way of example but not limitation,
revenues from Basic Cable Service, all Cable Service fees,premium,pay-per-view,
Pay Television, Franchise Fees, late fees, guides, home shopping revenue, Installation
and reconnection fees, upgrade and downgrade fees, advertising revenue, Converter
rental fees and Lockout Device fees. Gross Revenue shall not include fees for the
sale, leasing or servicing of equipment, network capacity and facilities rent for the
provision of non-cable services (voice or data services), any fees itemized and passed
through as a result of Franchise imposed requirements,tower rent, refundable
deposits, bad debt, investment income, or any taxes, fees or assessments of general
applicability imposed or assessed by any Governmental Authority. A Franchise Fee is
not such a tax, fee, or assessment. Gross Revenues shall not include any PEG Fees
billed to or collected from Subscribers. The City acknowledges and accepts that
Grantee shall maintain its books and records in accordance with GAAP.
(t) "Headend" means the point of origination and processing for most of the signals
received by the Cable System from external content providers.
(u) "Installation" means the connection of the System from Feeder Cable to the point of
connectivity.
(v) "Node" means a remote point in the Cable System connecting fiber optic cable to the
Feeder and Fiber Drops.
(w) "Non-Standard Installation"means any Drop in excess of five hundred feet (500) feet
for a residential property.
(x) "Normal Business Hours" means those hours during which most similar businesses in
the City are open to serve customers. In all cases, "Normal Business Hours" must
include some evening hours at least one (1) night per week and/or some weekend
hours.
(y) "Normal Operating Conditions" means those service conditions which are within the
control of the Grantee. Those conditions which are not within the control of the
Grantee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions. Those
conditions which are ordinarily within the control of the Grantee include, but are not
limited to, special promotions, pay-per-view events, rate increases, regular peak or
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seasonal demand periods, and maintenance or upgrade of the System.
(z) "Open Video System" or"OVS" means any video programming Services provided to
any person by a Person certified by the FCC to operate an Open Video System
pursuant to Section 47 U.S.C. 573, as may be amended, regardless of the facilities
used.
(aa) "Pay Television" means the delivery over the System of pay-per-channel or pay-per-
program audio-visual signals to Subscribers for a fee or charge, in addition to the
charge for Basic Cable Service or Cable Programming Services.
(bb) "PEG" means public, educational and governmental.
(cc) "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.
(dd) "Public, Educational or Government Access Facilities" or "PEG Access Facilities"
means:
(i) Channel capacity designated for public, educational or governmental use; and
(ii) Facilities and equipment for the use of such Channel capacity.
(ee) "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.
(ff) "Service Interruption" means the loss of picture or sound on one (1) or more Cable
Channels.
(gg) "Standard Installation" means any residential installation which can be completed
using a Drop of five hundred (500) feet or less.
(hh) "State"means the State of Minnesota.
(ii) "Street" means any street, alley, other land or waterway, dedicated or commonly used
for utility purposes, including general or utility easements in which the City has the
right and authority to authorize, regulate or permit the location of facilities other than
those of the City. "Street" shall not include any real or personal City property that is
not specifically described in the previous sentence and, shall not include City
buildings, fixtures and other structures or improvements, regardless of whether they
are situated in the public right-of-way.
(jj) "Subscriber" means any Person who lawfully elects to subscribe to Cable Service via
the System. In the case of multiple office buildings or multiple dwelling units, the
"Subscriber" means the lessee,tenant or occupant.
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(kk) "Tap"means a device which connects a Drop to the Feeder Cable.
(11) "Video Programming" means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
(mm) "Wireline MVPD" means a multichannel video programming distributor that utilizes
the Streets to install cable or fiber and is engaged in the business of making available
for purchase, by Subscribers,multiple Channels of video programming in the City.
(3) Written Notice. All notices, reports or demands required or permitted to be given under this
Franchise shall be in writing and shall be deemed to be given when delivered personally to
the party designated below, or when five (5) days have elapsed after it has been deposited in
the United States mail in a sealed envelope, with registered or certified mail, postage
prepaid thereon, or on the next business day if sent by express mail or nationally recognized
overnight air courier addressed to the party to which notice, report or demand is being
given, as follows:
If to City: City Administrator
City of Orono City Hall
2750 Kelley Parkway
Orono, MN 55356
Copy to: City Attorney
Soren M. Mattick
Campbell Knutson, P.A.
Grand Oak Office Center I
860 Blue Gentian Road, Suite 290
Egan, MN 55121
If to Grantee: Midcontinent Communications
Attn: Legal
4020 W Cayman Street
Sioux Falls, SD 57107
Ph. (605)271-4144
Such addresses may be changed by either party upon notice to the other party given as
provided in this section.
SECTION 2
GRANT OF AUTHORITY AND GENERAL PROVISIONS
(1) Franchise Required. It shall be unlawful for any Person, unless specifically
required by Applicable Laws,to construct, operate or maintain a Cable System or
an MVPD System to provide Cable Service or Video Programming, including
OVS, in the Franchising Authority unless such Person or the Person for whom
such action is being taken shall have first obtained and shall currently hold a valid
franchise.
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(2) Grant of Franchise. This nonexclusive Franchise is granted pursuant to the
terms and conditions contained herein. The City hereby authorizes Grantee to
occupy or use the City's Streets subject to: 1)the provisions of this non-exclusive
Franchise to provide Cable Service within the City; and 2)all applicable
provisions of the City Code. Said Franchise shall constitute both a right and an
obligation to provide Cable Services as required by the provisions of this
Franchise.Nothing in this Franchise shall be construed to prohibit Grantee from:
(1)providing services other than Cable Services to the extent not prohibited by
Applicable Law; or(2) challenging any exercise of the City's legislative or
regulatory authority in an appropriate forum. The City hereby reserves all of its
rights to regulate such other services to the extent not prohibited by Applicable
Law and no provision herein shall be construed to limit or give up any right to
regulate.
(3) Grant of Nonexclusive Authority/Competitive Equity.
a. The Franchise granted herein shall be nonexclusive. The City specifically
reserves the right to grant, at any time,,such additional franchises for a Cable
System as it deems appropriate provided, however, such additional grants
shall not operate to materially modify, revoke, or terminate any rights
previously granted to Grantee other than as described herein. If any other
Wireline MVPD enters into any agreement with the City to provide multi
channel video programming or its equivalent to residents in the City, the City,
upon written request of the Grantee, shall permit the Grantee to construct
and/or operate its Cable System and provide multi channel video
programming or its equivalent to Subscribes in the City under the same
material terms as applicable to the new MVPD with the goal of competitive
equity, taking into consideration the City's capital contribution towards
System extension as set forth in Section 3 of this Franchise. Within one
hundred eighty (180) days after the Grantee submits a written request to the
City, the Grantee and the City shall enter into an agreement or other
appropriate authorization (if necessary) containing any modified terms and
conditions to this Franchise. In no event shall this provision be used by
Grantee to avoid the System extension obligations or Performance Bond
obligations contained in this Franchise.
b. The Cable System constructed and maintained by Grantee or its agents shall
not interfere with other uses of Streets. Grantee shall make use of existing
poles and other facilities available to Grantee to the extent commercially
reasonable. Nothing in this section authorizes the Grantee to construct poles
in the City without prior City consent consistent with the City Code.
c. Notwithstanding the above grant to use Streets, no Street shall be used by
Grantee if City, in its sole opinion, determines that such use is inconsistent
with the terms, conditions, or provisions by which such Street was created or
dedicated, or with the present use of the Street.
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d. Grantee shall have the authority to use Streets for the distribution of
Grantee's System. The City may require all developers of future subdivisions
to allow and accommodate the construction of the System as part of any
provisions for utilities to serve such subdivisions.
e.
f. The Grantee specifically agrees to comply with the lawful provisions of the
City Code and applicable regulations of the City. Subject to the police power
exception below, in the event of a conflict between A) the lawful provisions
of the City Code or applicable regulations of the City and B) this Franchise,
the express provisions of the City Code shall govern. Subject to express
federal and state preemption, the material terms and conditions contained in
this Franchise may not be unilaterally altered by the City through subsequent
amendments to the City Code, ordinances or any regulation of City, except in
the lawful exercise of City' s police power. Grantee acknowledges that the
City may modify its regulatory policies by lawful exercise of the City' s
police powers throughout the term of this Franchise. Grantee agrees to
comply with such lawful modifications to the City Code; however, Grantee
reserves any rights it may have to challenge such modifications to the City
Code whether arising in contract or at law. The City reserves all of its rights
and defenses to such challenges whether arising in contract or at law.
g. Nothing in this Franchise shall (A) abrogate the right of the City to perform
any public works or public improvements of any description, (B) be
construed as a waiver of any codes or ordinances promulgated by the City, or
(C) be construed as a waiver or release of the rights of the City in and to the
Streets.
h. This Franchise complies with the Minnesota franchise standards set forth in
Minnesota Statutes Section 238.084. The City and the Grantee shall conform
to Minnesota laws promulgated subsequent to the date of this Franchise. The
City and the Grantee shall conform to federal laws and regulations as they
become effective.
(2) Franchise Term.
a. This Franchise shall be in effect for a period of ten (10) years from the date of
acceptance by Grantee, unless renewed, revoked, or terminated sooner as
herein provided ("Initial Term"). The Initial Term shall be extended for an
additional five (5) years if Grantee has substantially complied with the
material terms and conditions of this Franchise. Grantee shall provide written
notice to City at least twelve (12) months prior to the end of the Initial Term
indicating its compliance with the material terms and conditions of this
Franchise. City shall respond within six (6) months of such notice from
Grantee by either granting the five (5) year extension or stating in writing any
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objection the City may have to the five (5) year extension. The parties shall
work in good faith to address any issues or concerns on mutually acceptable
terms.
b. In the event Franchising Authority grants one or more additional Franchises
or one or more non-franchised MVPD's commence providing Video
Programming in the Franchising Authority, Grantee shall have the right to
modify this Franchise as provided herein, terminate the Franchise, or reduce
the term of this Franchise in its sole discretion. All Franchises granted or
renewed after the date of this Franchise shall have the same substantive terms
and conditions as this Franchise in order that one MVPD not be granted a
competitive advantage over another. Nothing in this provision shall be
constructed in such a way as to limit the Franchising Authority's authority to
enter into other Franchises.
c. In the event a MVPD commences operation without a Franchise or is granted
a Franchise or permit to operate by the Franchising,Authority, the terms and
conditions of which do not comply with this Franchise, Grantee shall notify
the Franchising Authority whether it wishes to modify its Franchise (in
addition to any rights it may have to modify its Franchise under state or
federal law), terminate the Franchise or reduce the term of this Franchise in
its sole discretion. The Franchising Authority and the Grantee shall work
together in good faith to develop Franchise modifications which address any
competitive inequity, and the Franchising Authority shall adopt those
modifications within ninety (90) days after receiving notice from Grantee.
Failure to adopt the modifications shall allow Grantee to unilaterally opt into
the competitor's Franchise or to otherwise reduce or eliminate any obligations
imposed by this Franchise which are not imposed on a competitor in its sole
discretion. A MVPD is not an entity that provides direct broadcast satellite
services for purposes of this Section. Notwithstanding any provisions of this
Section to the contrary, if the Franchising Authority does not possess
authority under applicable laws to require a Franchise from any Person, the
provisions of this Section shall not apply.
(4) Previous Franchises. Upon acceptance by Grantee as required by Section 11(2)
herein, this Franchise shall supersede and replace any previous Ordinance or
Agreement granting a Franchise to Grantee to own, operate and maintain a Cable
System within the City.
(5) Ownership of Grantee. Grantee represents and warrants to City that the
corporate structure of the Grantee, including all affiliated companies and ultimate
parent company,are as set forth in the organizational chart attached hereto as
Exhibit B.
(6) Rules of Grantee. The Grantee shall have the authority to promulgate such
rules, regulations,terms, and conditions governing the conduct of its business as
shall be reasonably necessary;provided that such rules, regulations,terms and
conditions shall not be in conflict with Applicable Law.
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SECTION 3
CONSTRUCTION STANDARDS
(1) Territorial Area Involved. This Franchise is granted for the corporate
boundaries of Franchising Authority, as it exists from time to time. It shall be the
responsibility of the Franchising Authority to notify Grantee of the annexation of
new territories into the corporate boundaries. In the event of annexation by
Franchising Authority, or as development occurs, any new territory shall become
part of the area covered,provided, however,that Grantee shall not be required to
extend service beyond its present System boundaries unless there is a minimum of
forty(40)homes per cable mile as measured from the last fiber node or
terminating amplifier. Access to Cable Service shall not be denied to any group of
potential residential cable Subscribers because of the income of the residents of the
area in which such group resides. Grantee shall be given a reasonable period of
time to construct and activate cable plant to service annexed or newly developed
areas.
(2) Construction Standards.
a. Grantee shall obtain all required permits from Franchising Authority before
commencing any construction upgrade or extension of the System, including
the opening or disturbance of any Street, or private or public property within
Franchising Authority.
(3) Service to Residences.
a. Grantee shall provide Cable Service to any qualified requesting Subscriber
within the Service Area that requires a Standard Installation within thirty (30)
days from the date of request, provided that the Grantee is able to secure
access to all rights-of-way necessary to extend Service to such Subscriber on
reasonable terms and conditions.
b. If a Subscriber requires a non-Standard Installation (e.g. a Drop in excess of
500 feet), Grantee shall, upon request, provide a quote for construction of the
non- Standard Installation and shall establish a mutually acceptable payment
schedule not to exceed one (1) calendar year. For residential Installations
only, Grantee shall be responsible for all costs of the Standard Installation and
the Subscriber shall be responsible for one half (1/2) of the Actual Cost of
any construction required beyond the cost of the Standard Installation;
Grantee shall be responsible for the balance of the costs for the non-Standard
Installation.
c. Grantee shall promptly bury all Drops to Subscribers' dwellings and restore
the property to its original condition. In the event the ground is frozen or
otherwise unsuitable to permit immediate burial,Grantee shall be permitted to
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delay such burial until the ground becomes suitable for burial and shall
complete said burial no later than July 1st of each year.
d. Grantee shall ensure that all Installations and Drops are properly grounded
and that the Cable System meets or exceeds the applicable requirements of
the most current editions of the National Electrical Code (NFRA 70) and the
National Electrical Safety Code (ANSI C2).
(4) System Extensions.
a. Grantee shall construct and activate the Cable System at its sole cost and
expense to areas depicted on Exhibit A.
b. Grantee shall be obligated to extend plant to all areas of the City where the
density reaches or exceeds forty (40) homes per cable mile as measured from
the nearest Node or terminating amplifier required to deliver a signal that
complies with the FCC Technical Standards.
(5) Permits and Permit Fees. Grantee shall not construct any Cable System facilities until
Grantee has secured the necessary permits from the City , subject to any right-of-way
permit fee. Grantee and Subscribers shall not be required to pay a permit fee for
Drops or System Extensions that do not involve work within road or street rights-of-
way.
(6) City Code. Grantee shall comply with all relevant City Codes in the course of
fulfilling its obligations under this Franchise.
(7) Grantee's Facilities and Equipment.
a. In those areas of the City where transmission or distribution facilities of all or
a majority of the public utilities providing telephone and electric power
service are underground, the Grantee likewise shall construct, operate and
maintain its System underground, not including Subsection (7)(d) facilities
below.
b. Grantee shall be granted access to any easements granted to a public utility,
municipal utility or utility district in any areas annexed by City or new
developments.
c. In those areas of the City where Grantee's cables are located on the above-
ground transmission or distribution facilities of the utility providing telephone
or electric power service, and in the event that the facilities of both such
utilities subsequently are placed underground, then the Grantee likewise shall
remove its overhead facilities from any affected poles and construct, operate
and maintain its transmission and distribution facilities underground, at
Grantee's cost.
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d. Certain of Grantee's equipment, such as pedestals, amplifiers and power
supplies (but not antennae), which normally are placed above ground, may
continue to remain in above-ground enclosures, however, the City specifically
reserves all of its rights to approve above-ground or underground locations
for pedestals subject to Applicable Laws.
e. Grantee shall comply with Minnesota Statutes §216D (the Gopher State One
Call process).
(8) New Residential Developments. 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:
a. The developer shall be responsible for contacting Grantee to provide Cable
Service to that development.
b. The developer shall accommodate all Wireline MVPD's in the joint utilities
trench on the same terms and conditions.
c. Grantee will install infrastructure in all new developments planned by the
City, however, said infrastructure may be limited to a conduit only system.
Grantee reserves the right to participate in the common trench or to dig its
own trench. If Grantee chooses to dig its own trench, nothing in this section
requires Grantee to allow others to use Grantee's trench absent an agreement.
Grantee shall be required to complete its infrastructure no later than ninety
(90) days after it receives notice from the City that the first certificate of
occupancy has been issued for a particular development, subject to the
completion of any required plant construction under Section 3.4(a).
d. The developer shall provide at least ten (10) business days' notice of the date
that utility trenches will be open to Grantee. Grantee shall not be required to
use utility trenches provided by a developer and reserves the right to install its
System in a separate trench at its own expense, subject to its compliance with
applicable permitting requirements. Developer shall submit evidence to City
that:
i. It has notified Grantee that underground utility trenches are to be open as
of an estimated date, and that Grantee is allowed access to such trenches,
including trenches from proposed Streets to individual homes or home
sites, on the same terms and conditions as other Wireline MVPD's; and
ii. It has received a written notification from Grantee that 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.
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(9) Use of Streets and Property. Any and all Streets or public property or private
property, which are disturbed or damaged during the construction, repair,
replacement,relocation, operation,maintenance or reconstruction of the System
shall be promptly and fully restored by Grantee, at its expense,to a condition as
good as that prevailing prior to Grantee's work, as approved by City in the case of
Streets and other public property. If Grantee shall fail to promptly perform the
restoration required herein, City shall have the right, subject to Applicable Law,to
put the Streets,public, or private property back into good condition. City reserves
its rights to pursue reimbursement for such restoration from Grantee in accordance
with Applicable Law and the terms of this Franchise.
a. Nothing in this Franchise shall be construed to prevent City from
constructing, maintaining, repairing or relocating sewers; grading, paving,
maintaining, repairing, relocating and/or altering any Street; constructing,
laying down, repairing, maintaining or relocating any water mains; or
constructing, maintaining, relocating, or repairing any sidewalk or other
public work.
b. The Grantee shall furnish to and file with City Administrator strand maps of
the System, including the location of 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. City shall have right to travel to
Grantee's office, within reasonable proximity of the City, to review an as-built
map in accordance with Section 7(3) of this Franchise.
c. If at any time during the period of this Franchise, the City shall elect to alter,
or change the grade or location of any Street, alley or other public way, the
Grantee shall, at its own expense, upon reasonable notice by City, remove and
relocate its poles, wires, cables, conduits, manholes and other fixtures of the
System, and in each instance comply with the standards and specifications of
City. If City reimburses other occupants of the Street, Grantee shall be
likewise reimbursed.
d. The Grantee shall, 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 in advance of the work being performed, and the
Grantee shall be given not less than ten (10) days advance notice to arrange
for such temporary changes.
(10) Tree Trimming. Grantee shall have the authority to trim trees, in accordance
with all applicable utility restrictions, ordinance and easement restrictions, upon
and hanging over Streets and public places of the City so as to prevent the
branches of such trees from coming in contact with the wires and cables of
Grantee. City representatives shall have authority to supervise and approve all
trimming of trees conducted by Grantee. Grantee will contact the owners of
private easements prior to engaging in the trimming of trees or shrubs adjacent to
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Grantee's System. Grantee will make reasonable accommodations with and for the
property owner to ensure Grantee's System and cable plant is safe and secure as
well as that the property owner's trees and shrubs are trimmed in accordance with
established standards of the National Arborist Association.
(11) Protection of facilities.Nothing contained in this section shall relieve any
Person from liability arising out of the failure to exercise reasonable care to avoid
damaging Grantee's facilities while performing any work connected with grading,
regrading or changing the line of any Rights-of-Way or public place or the
construction or reconstruction of any sewer or water system.
SECTION 4
DESIGN PROVISIONS
(1) Minimum Channel Capacity.
a. Grantee shall provide a System utilizing fiber optic cable to provide an IPTV
Cable System which shall be capable of delivering a minimum of eighty (80)
video program Channels.
b. All programming decisions remain the sole discretion of Grantee subject to
City's rights pursuant to 47 U.S.C. § 545.
(2) Technical Standards. The System shall at all times meet or exceed 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
System specifications are outlined in Exhibit C for information purposes.
(3) Special Testing. City may require special testing of a location or locations
within the System if there is a particular matter of controversy or unresolved
complaints pertaining to such location(s). Demand for such special tests may be
made on the basis of complaints received or other evidence indicating an
unresolved controversy or noncompliance. Such tests shall be limited to the
particular matter in controversy or unresolved complaints. The City shall
endeavor to so arrange its request for such special testing so as to minimize
hardship or inconvenience to Grantee or to the Subscribers caused by such
testing. Before ordering such tests, Grantee shall be afforded thirty(30) days to
correct problems or complaints upon which tests were ordered. The City shall
meet 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 control. If the testing reveals the difficulties to be caused by factors
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which are beyond Grantee's control then the cost of said test shall be borne by
City.
(4) FCC Reports. Upon request, the results of tests required to be filed by Grantee
with the FCC shall also be copied to City within ten(10) days of the conduct of the
date of the test.
(5) Emergency Alert Capability. At all times during the term of this Franchise,
Grantee shall provide and maintain an Emergency Alert System (EAS) consistent
with applicable federal law and regulations including 47 C.F.R., Part 11, and any
Minnesota State Emergency Alert System requirements. The City may identify
authorized emergency officials for activating the EAS consistent with the
Minnesota State Emergency Statewide Plan("EAS Plan"). The City may also
develop a local plan containing methods of EAS message distribution, subject to
Applicable Laws and the EAS Plan. Nothing in this section is intended to expand
Grantee's obligations beyond that which is required by the EAS Plan and
Applicable Law.
(6) Stand-by Power. Grantee shall as necessary to operate the system, maintain
standby power system supplies,rated for at least two and one-half(2.5)hours
duration at all optical Node locations in the distribution network.
(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.
SECTION 5
SERVICES PROVISIONS
(1) Rate Regulation. The City reserves the right to regulate rates for Basic Cable Service and
any other services offered over the Cable System, to the extent not prohibited by
Applicable Laws
(2) Consumer Protection and Customer Service Standards. Grantee shall comply with the
consumer protection standards attached hereto as Exhibit D under Normal Operating
Conditions.
SECTION 6
PUBLIC ACCESS PROVISIONS
(1) Public, Educational and Government Access. City or its designee is hereby designated to
operate, administer, promote, and manage public, educational, and governmental
programming (hereinafter "PEG Access") for the Cable System established pursuant to
this Section 6. Grantee shall have no responsibility whatsoever for PEG Access except as
expressly stated in this Section 6.
(2) Grantee Support for PEG Usage. In accordance with the provisions of the Cable Act and
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Minnesota Statutes Section 238.084, Grantee shall provide and make available for PEG
Access usage within the Service Area in accordance with Exhibit E hereto.
a. PEG Access Facilities shall be operated by the City.
b. Community Access/PEG Programming. Subject to the legal, financial, and
technical feasibility of same, Grantee shall, upon request from the City provide
carriage of the Lake Minnetonka Cable Commission (LMCC) PEG programming
originating from the LMCC and the Cities of Wayzata and Medina. Grantee will
work with the City to explore the feasibility of broadcasting programming
originating from the City in the future.
SECTION 7
OPERATION AND ADMINISTRATION PROVISIONS
(1) Franchise Fee.
a. During the term of the Franchise, Grantee shall pay monthly to the City a
Franchise Fee of five percent (5%) of Gross Revenues or a lower percentage
amount as established by the City Council from time to time. Grantee and City
may mutually agree to increase the Franchise Fee subject to Applicable Law. In
the event Grantee bundles or combines Cable Services (which are subject to the
Franchise Fee) with non-Cable Services (which are not subject to the Franchise
Fee) so that Subscribers pay a single fee for more than one (1) class of service
resulting in a discount on Cable Services, Grantee agrees that for the purpose of
calculation of the Franchise Fee, it shall allocate to Cable Service revenue no less
than a pro rata share of the revenue received for the bundled or combined
services. The pro rata share shall be computed on the basis of the published
charge for each service in the bundled or combined classes of services when
purchased separately.
b. Each Franchise Fee payment shall be paid monthly not later than thirty (30) days
following the end of a given month and each payment shall be accompanied by
the Franchise Fee Payment Worksheet in the form attached hereto as Exhibit H.
c. Except as otherwise provided by law, no acceptance of any payment by the City
shall be construed as a release or as an accord and satisfaction of any claim the
City may have for further or additional sums payable as a Franchise Fee under
this Franchise or for the performance of any other obligation of the Grantee.
d. Any Franchise Fees owing pursuant to this Franchise which remain unpaid more
than thirty (30) days after the end of a given quarter shall be delinquent and shall
immediately thereafter accrue simple interest at twelve percent (12%)per annum.
Enforcement of unpaid Franchise Fees shall be handled in accordance with
Section 9(7), however, Grantee shall in all cases be subject to interest on any
payment more than thirty (30) days after the end of a given month.
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e. Upon ten (10) days prior written notice, City shall have the right to conduct an
independent audit of Grantee's records. If such audit indicates a Franchise Fee
underpayment of five percent (5%) or more of the Franchise Fee due, the Grantee
shall assume all of City's out-of-pocket costs associated with the conduct of such
an audit. Grantee shall remit to City all applicable Franchise Fees and PEG fees
due and payable together with all accrued interest as set forth in paragraph 7.1 (d)
above within 30 days of receiving the audit statement.
f. Grantee acknowledges and agrees that the Franchise Fees payable by Grantee to
City pursuant to this section shall take precedence over all other material
provisions of the Franchise and shall not be deemed to be in the nature of a tax,
and shall be in addition to any and all taxes of general applicability and other fees
and charges which do not fall within the definition of a Franchise Fee under 47
U.S.C. § 542.
g. Grantee shall not apply or seek to apply all or any part of any taxes, fees or
assessments of general applicability levied or imposed by the City or (including
any such tax, fee or assessment imposed on both utilities and cable operators or
their services) that do not fall within the definition of a Franchise Fee under 47
U.S.C. § 542 as a deduction or other credit from or against any of the Franchise
Fees or other payments or contributions to be paid or made by Grantee to City
pursuant to this Franchise which shall be deemed to be separate and distinct
obligations of Grantee.
(2) Periodic Evaluation, Review and Modification. City and Grantee acknowledge and agree
that the field of cable television is rapidly changing and one which may see many
regulatory, technical, financial, marketing, and legal changes during the term of this
Franchise. Therefore, in order to provide for the maximum degree of flexibility in this
Franchise, and to help achieve an advanced and modern Cable System, the following
evaluation provisions will apply:
a. The City reserves the right to adopt rules and regulations controlling the
procedures as set forth below and the subjects for evaluation sessions. In the
absence of any City action taken to exercise these rights, Grantee shall be subject
to the procedures and the subjects described in this Section.
b. The City may require, in its sole discretion, that the Grantee participate in
evaluation sessions with the City at any time and from time to time during the
term of this Franchise; provided, however, there shall not be more than one (1)
evaluation session in any three (3) year period during the Term. However,
nothing shall prohibit Grantee and City from mutually agreeing to have informal
reviews as requested or deemed advisable by either party.
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.
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d. As a result of an evaluation session, the City or Grantee may determine that an
amendment in the terms of this Franchise may be required, that the requirements
of the System or this Franchise should be updated, changed or revised, and/or that
additional services should be provided by Grantee (collectively a "Proposed
Modification"). If the Proposed Modification is consistent with the terms of this
Franchise, the needs of the City and existing state-of-the-art technology,
including what is provided by Grantee in other systems owned, operated or
managed by it, its parent company or any affiliated company, Grantee and the
City will, in good faith, review the terms of the Proposed Modification and
consider amending this Franchise according to Section 10(2)herein.
(3) Records Required and City's Right to Inspect.
a. Grantee shall make available upon request, at its sole cost and expense,
the following records and information relating specifically to the Cable
System serving the City:
i. A full and complete set of plans, records and"as-built" drawings
and/or maps which shall be updated annually showing the
location of the Cable System installed or in use in the City,
exclusive of Subscriber service Drops and equipment provided in
Subscribers'homes. Such plans, records and"as-built" drawings
shall be labeled as"Trade-Secret"and kept non-pubic in
accordance with applicable statutes.
ii. A summary of trouble calls or complaints, 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 City
within thirty(30) days following its request in a form reasonably
acceptable to the City.
b. Upon reasonable notice and during Normal Business Hours, Grantee shall
permit examination by any duly authorized representative of the City of
all Franchise property and facilities,together with any appurtenant
property and facilities of Grantee situated within or without the City, and
those records relating to this Franchise, that enable the City to carry out
its regulatory responsibilities under Applicable Laws and this Franchise.
Grantee shall have the right to be present at any such examination.
(2) Reports. All reports required under this Franchise shall be furnished at the sole
expense of Grantee.
a. During the first three (3)years following the Effective Date of this
Franchise, Grantee shall provide City with a quarterly report evidencing
the progress of System construction and extension as set forth in Section
3(4) of this Franchise.
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b. Grantee shall provide City with an annual statement,within ninety (90)
days of the close of each calendar year end, certified by an Officer of the
Grantee, reflecting the total amounts of Gross Revenues and all payments
and computations of the Franchise Fee and the PEG Fee for the previous
calendar year.
(3) Duty to Cooperate. Each of Grantee and City shall use its commercially
reasonable efforts to communicate and promptly and in good faith resolve any
issues that may arise pursuant to this Franchise.
SECTION 8
GENERAL FINANCIAL AND INSURANCE PROVISIONS
(1) Security Fund.
(a) At the time of acceptance of this Franchise, Grantee shall provide, from a
financial institution mutually acceptable to the Parties, and in a form and substance
mutually acceptable to the Parties, an irrevocable and unconditional Letter of Credit in
the sum of Ten Thousand and No/100 Dollars ($10,000.00) for the benefit of the City to
ensure compliance by Grantee with all terms of the Franchise ("Security Fund"). Grantee
shall maintain this Security Fund throughout the term of this Franchise and pursuant to
Section 9(3)(b), and until such time as Grantee has liquidated all of its obligations with
City.
(b) The Security Fund shall provide that funds will be paid to City, upon
written demand of City, and after the procedures of this section have been complied with
in payment for liquidated damages charged pursuant to this section, in payment for any
monies owed by Grantee pursuant to its obligations under this Franchise, or in payment
for any damage incurred as a result of any acts or omissions by Grantee pursuant to this
Franchise.
(c) In addition to recovery of any monies owed by Grantee to City or damages
to City as a result of any acts or omissions by Grantee pursuant to the Franchise, City in
its sole discretion may charge to and collect from the Security Fund the following
mutually agreed upon liquidated-damages:
(i) For failure to timely complete system upgrades as provided in this
Franchise unless the City has approved delays, and for failure to comply with
construction, operation or maintenance standards and requirements, the penalty
shall be Five Hundred and No/100 Dollars ($500)per day for each day, or part
thereof, such failure occurs or continues.
(ii) For failure to meet the customer service standards and
requirements as set forth in this Franchise and the exhibits hereto the penalty shall
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be Three Hundred and No/100 Dollars ($300)per day for each day, or part
thereof, such failure occurs or continues.
(iii) For failure to comply with any of the provisions of this Franchise,
or other City ordinance related to Franchise operations for which a penalty is not
otherwise specifically provided pursuant to this subparagraph(c),the penalty
shall be One Hundred Fifty and No/100 Dollars ($150)per day for each day, or
part thereof, such failure occurs or continues.
(d) Each violation of any provision of this Franchise shall be considered a
separate violation for which a separate penalty can be imposed.
(e) Whenever City finds that Grantee has violated one (1) or more terms,
conditions or provisions of this Franchise, a written notice shall be given to Grantee,
specifying with particularity the alleged violation. At any time after thirty (30) days (or
such additional reasonable time which is necessary to cure the alleged violation)
following local receipt of notice,provided Grantee remains in violation of one (1) or
more material terms, conditions or provisions of this Franchise, City may draw from the
Security Fund all penalties and other monies due City from the date of the local receipt of
notice.
(f) Whenever notice of an alleged violation has been received by Grantee,
Grantee may, within thirty (30) days of local receipt of notice, notify City that there is a
dispute as to whether a violation or failure has, in fact, occurred. Such notice by Grantee
to City shall toll the running of the time frames for cure and the accrual of any penalties
herein and shall specify with particularity the matters disputed by Grantee. City shall
hear Grantee's dispute at its next regularly scheduled Council meeting or as soon
thereafter as possible pursuant to this Section 8(1). In no event shall City delay hearing
Grantee's dispute for more than ninety (90) days from receipt of Grantee's notice.
Grantee shall be afforded a reasonable notice of the meeting and afforded a reasonable
opportunity to participate in and be heard at the meeting. City shall supplement its
decision with a written order sustaining or overruling the decision, and shall specify with
particularity the factual and legal basis for its decision.
(g) Upon determination by City that no violation has taken place, City shall
withdraw the notice alleging a violation. Upon determination that a violation has
occurred, Grantee shall have 30 days to cure said violation before penalties shall accrue.
(h) Grantee shall have the right to challenge in a court of competent
jurisdiction the City's findings that Grantee has violated one (1) or more terms,
conditions or provisions of this Franchise or has failed to substantially cure such
violation.
(i) If said Security Fund or any subsequent security fund delivered pursuant
thereto expires prior to the expiration of the Franchise, it shall be renewed or replaced
during the term of this Franchise to provide that it will not expire earlier than the
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expiration of this Franchise. The renewed or replaced security fund shall be for the full
amount stated in paragraph(a) of this section.
(j) If City draws upon the Security Fund or any subsequent security fund
delivered pursuant hereto, in whole or in part, Grantee shall replenish or replace the same
within fifteen(15) days and shall deliver to City a like replacement security fund for the
full amount stated in paragraph (a) of this section as a substitution of the previous
security fund.
(k) If any Security Fund is not so replenished or replaced, City may draw on
said security fund for the whole amount thereof and hold the proceeds, without interest,
and use the proceeds to pay costs incurred by City in performing and paying for any or all
of the obligations, duties and responsibilities of Grantee under this Franchise that are not
performed or paid by Grantee pursuant hereof, including attorneys' fees incurred by the
City in so performing and paying.
(1) The collection by City of any damages, monies or penalties from the
security fund shall not affect any other right or remedy available to City, nor shall any
act, or failure to act, by City pursuant to the security fund, be deemed a waiver of any
right of City pursuant to this Franchise or otherwise.
(1) Liability Insurance.
a. Grantee shall with its acceptance of this Franchise, and at its sole
expense,take out and maintain during the term of this Franchise
comprehensive general liability insurance with a company licensed to do
business in the State of Minnesota with a rating by A.M. Best& Co. of
not less than "A-"that shall protect the Grantee,the City and their
officials, officers, directors, employees and agents from any and all
claims which may arise from operations under this Franchise,whether
such operations be by the Grantee, its officials, officers, directors,
employees and agents or any subcontractors of Grantee. This liability
insurance shall include, but shall not be limited to,protection against
claims arising from bodily and personal injury and damage to property,
resulting from Grantee's vehicles,products and operations. The amount of
insurance for single limit coverage applying to bodily and personal injury
and property damage shall not be less than Two Million Dollars
($2,000,000.00).
b. The following endorsements shall be attached to the liability policy:
i. The policy shall provide coverage on an "occurrence" basis.
ii. The policy shall cover personal injury as well as bodily injury.
iii. The policy shall cover blanket contractual liability subject to the
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standard universal exclusions of contractual liability included in
the carrier's standard endorsement as to bodily injuries,personal
injuries and property damage.
iv. Broad form property damage liability shall be afforded.
v. The City shall be named as an additional insured on all policies
required under this Franchise.
vi. An endorsement shall be provided which states that the coverage
is primary insurance and that no other insurance maintained by
the City will be called upon to contribute to a loss under this
coverage.
vii. Standard form of cross-liability shall be afforded.
viii. An endorsement stating that the policy shall not be canceled
without thirty (30) days' notice of such cancellation given to the
City.
ix. Grantee shall submit to City a certificate of insurance signed by
the insurance agent and companies named.
x. All insurance shall be effective within thirty days after the
Franchise is executed by Grantee and shall continue in full force
and effect for the duration of the Franchise and per Section
9(3)(b) of the Franchise.
(2) Workers' Compensation Insurance. Grantee shall obtain and maintain Workers'
Compensation Insurance for all of Grantee's employees, and in case any work is
sublet, Grantee shall require any subcontractor similarly to provide Workers'
Compensation Insurance for all of their employees, all in compliance with State
laws, and to fully indemnify the City from and against any and all claims arising
out of occurrences on Grantee's work. Grantee hereby indemnifies City for any
and all costs, expenses (including attorneys'fees and disbursements of counsel),
damages and liabilities incurred by City as a result of any failure of either
Grantee or any subcontractor of Grantee to take out and maintain such insurance.
Grantee shall provide the City with a certificate of insurance indicating Workers'
Compensation coverage upon its acceptance of this Franchise.
(3) Indemnification.
a. Grantee shall indemnify, defend and hold City, its officers, boards,
commissions, agents and employees (collectively the"Indemnified
Parties")harmless from and against any and all lawsuits, claims,causes
of action, actions, liabilities, demands, damages,judgments, settlements,
disability, losses, expenses (including attorney's fees and disbursements
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of counsel) and costs of any nature ("Claims")that any of the Indemnified
Parties may at any time suffer, sustain or incur arising out of, based upon
or in any way connected with the grant of this Franchise,the operation of
Grantee's System,the breach by Grantee of its obligations under this
Franchise and/or the activities of Grantee, its subcontractor, employees
and agents hereunder. Grantee shall be solely responsible for and shall
indemnify, defend and hold the Indemnified Parties harmless from and
against any and all matters relative to payment of Grantee's employees,
including compliance with Social Security and withholdings.
i. The indemnification obligations of Grantee set forth in this
Franchise are not limited in any way by the amount or type of
damages or compensation payable by or for Grantee under
Workers' Compensation, disability or other employee benefit acts,
acceptance of insurance certificates required under this Franchise,
or the terms, applicability or limitations of any insurance held by
Grantee.
ii. City does not, and shall not,waive any rights against Grantee
which it may have by reason of the indemnification provided for
in this Franchise, because of the acceptance by City, or the
deposit with City by Grantee, of any of the insurance policies
described in this Franchise.
iii. The indemnification of City by Grantee provided for in this
Franchise shall apply to all damages and claims for damages of
any kind suffered by reason of any of the Grantee's operations
referred to in this Franchise, regardless of whether or not such
insurance policies shall have been determined to be applicable to
any such damages or claims for damages.
iv. City shall hold Grantee harmless, subject to the limitations in
Minnesota Statutes Chapter 466, for any damage resulting from
the negligence or misconduct of the City or its officials, boards,
commissions, agents, or employees in utilizing any PEG Access
Channels, equipment, or facilities and for any such negligence or
misconduct by City in connection with work performed by City
and permitted by this Franchise, on or adjacent to the Cable
System.
SECTION 9
SALE, ABANDONMENT, TRANSFER,AND REVOCATION
(1) Franchise Non-transferable.
(a) Grantee shall not voluntarily or involuntarily, by operation of law or otherwise,
sell, assign, transfer, lease,,sublet or otherwise dispose of, in whole or in part, the
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Franchise and/or Cable System or any of the rights or privileges granted by the
Franchise, without the prior written consent of the Council, which consent shall
not be unreasonably denied or delayed.
(b) Without limiting the nature of the events requiring the Council's approval under
this section,the following events shall be deemed to be a sale, assignment or
other transfer of the Franchise and/or Cable System requiring compliance with
this section: (i)the sale,assignment or other transfer of all or a majority of
Grantee's assets or the assets comprising the Cable System to any Person; (ii)the
merger of the Grantee or any of its parents with or into another Person (including
the merger of Grantee or any parent with or into any parent or subsidiary
corporation or other Person); (iii)the consolidation of the Grantee or any of its
parents with any other Person; (iv)the creation of a subsidiary corporation or
other entity; (v)the sale, assignment or other transfer of capital stock or
partnership, membership or other equity interests in Grantee or any of its parents
by one or more of its existing shareholders,partners, members or other equity
owners so as to create a new Controlling Interest in Grantee; (vi)the issuance of
additional capital stock or partnership, membership or other equity interest by
Grantee or any of its parents so as to create a new Controlling Interest in Grantee;
and(vii)the entry by the Grantee into an agreement with respect to the
management or operation of the Grantee, any of Grantee's parents and/or the
System or the subsequent amendment thereof. The term "Controlling Interest" as
used herein is not limited to majority equity ownership of the Grantee, but also
includes actual working control over the Grantee in whatever manner exercised.
(c) Grantee shall notify City in writing of any foreclosure or any other judicial sale of
all or a substantial part of the property and assets comprising the Cable System of
the Grantee or upon the termination of any lease or interest covering all or a
substantial part of said property and assets.
(d) For the purpose of determining whether it shall consent to such change,transfer
or acquisition of control, City may inquire into the qualifications of the
prospective transferee or controlling party. Grantee agrees to provide FCC Form
394 as part of any request for transfer or change of control under this Franchise.
If, after considering the legal, financial, character and technical qualities of the
transferee and determining that they are satisfactory, the City finds that such
transfer is acceptable,the Council shall permit such transfer and assignment of
the rights and obligations of this Franchise as may be in the public interest. The
consent of the Council 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 City that it or its designee satisfactory to the City shall take control of and
operate the Cable System, in the event of a default in the payment or performance
of the debts, liabilities or obligations of Grantee or its affiliates to such financial
institution. Further, said financial institution shall also submit a plan for such
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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 Council in its
discretion and during said period of time it shall have the right to petition the
Council to transfer the Franchise to another Grantee.
(f) In addition to the aforementioned requirements in this Section 9(1),the City and
Grantee shall, at all times, comply with the requirements of Minnesota Statutes
Section 238.083 regarding the sale or transfer of a franchise and with all other
Applicable Laws.
(2) City's Right to Purchase System.
a. Consistent with Section 627 of the Cable Act and all other Applicable Laws, at
the expiration, cancellation,revocation or termination of this Franchise,the City
shall have the option to purchase, condemn or otherwise acquire and hold the
Cable System.
(3) 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. City, upon such terms as City may impose,may give Grantee written
permission to abandon, without removing, any System facility or equipment
laid, directly constructed, operated, or maintained in, on, under or over the
Franchise Area. Unless such permission is granted or unless otherwise
provided in this Franchise, the Grantee shall remove all abandoned facilities
and equipment upon receipt of written notice from City and shall restore any
affected Street to its former state at the time such facilities and equipment
were installed, so as not to impair its usefulness. In removing its plant,
structures and equipment, Grantee shall refill, at its own expense, any
excavation made by or on behalf of Grantee and shall leave all Streets and
other public ways and places in as good condition as that prevailing prior to
such removal without materially interfering with any electrical or telephone
cable or other utility wires,poles, or attachments. City shall have the right to
inspect and approve the condition of the Streets, public ways,public places,
cables,wires, attachments, and poles prior to and after removal. The liability,
indemnity and insurance provisions of this Franchise and any performance
bond provided for in this Franchise shall continue in full force and effect
during the period of removal and until full compliance by Grantee with the
terms and conditions of this section.
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c. Upon abandonment of any Franchise property in place,the Grantee, if
required by the City, shall submit to City a bill of sale and/or other an
instrument, satisfactory in form and content to the City, transferring to the
City the ownership of the Franchise property abandoned.
d. At the expiration of the term for which this Franchise is granted, or
upon its earlier revocation or termination, as provided for herein, in any such
case without renewal, extension or transfer,the City shall have the right to
require Grantee to remove, at Grantee's sole expense, all above-ground
portions of the Cable System from all Streets and public ways within the City
within a reasonable period of time, which shall not be less than one hundred
eighty(180)days.
e. Notwithstanding anything to the contrary set forth in this Franchise,the
Grantee may,with the consent of the City, abandon any underground
Franchise property in place so long as it does not materially interfere with
the use of the Street or public rights-of-way in which such property is
located or with the use thereof by any public utility or other cable operator.
(4) Extended Operation and Continuity of Services. Upon termination or forfeiture of
this Franchise, Grantee shall remove its cable,wires, and appliances from the Streets,
alleys, or other public places within the Service Area if the City so requests. Failure by
the Grantee to remove its cable, wires, and appliances as referenced herein shall be
subject to the requirements of Section 9(3)of this Franchise.
(5) Receivership and Foreclosure. The Franchise granted hereunder shall, at the
option of City, cease and terminate one hundred twenty (120) days after appointment
of a receiver or receivers, or trustee or trustees,to take over and conduct the business
of Grantee, whether in a receivership, reorganization, bankruptcy or other action or
proceeding, unless such receivership or trusteeship shall have been vacated prior to the
expiration of said one hundred twenty (120) days, or unless: (1)such receivers or
trustees shall have, within one hundred twenty (120) days after their election or
appointment, fully complied with all the terms and provisions of this Franchise granted
pursuant hereto, and the receivers or trustees within said one hundred twenty (120)
days shall have remedied all the defaults and violations under this Franchise or
provided a plan for the remedy of such defaults and violations which is satisfactory to
the City; and (2) such receivers or trustees shall,within said one hundred twenty (120)
days, execute an agreement duly approved by the court having jurisdiction in the
premises, whereby such receivers or trustees assume and agree to be bound by each
and every term,provision and limitation of this Franchise.
(6) Performance Bond. Within thirty (30) days of Grantee's execution of this
Franchise Grantee shall provide City with a$100,000 Performance Bond in a form and
with such sureties as are mutually acceptable to the Parties. The Performance Bond
shall be eliminated upon completion of the System extension obligations set forth in
Section 3 of this Franchise which the parties anticipate to be completed thirty-six(36)
months from the Effective Date of the Franchise. The Performance Bond shall ensure
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compliance with all infrastructure requirements of the Franchise. If additional
construction is undertaken in the City, Grantee shall comply with Applicable Law
regarding any bonding requirements.
(7) Procedure for Enforcing Franchise. In the event City believes that Grantee
has breached or violated any provision of this Franchise, City shall act in
accordance with Section 9(1) (c-f).
a. If the City chooses to terminate this Franchise,the following
additional procedure shall be followed:
i. The City shall provide Grantee with written notice of the City's
intention to terminate this Franchise and specify in detail the reason
or cause for the proposed termination. The City shall allow Grantee a
minimum of fifteen (15) days subsequent to receipt of the notice in
which to cure the default.
ii. Grantee shall be provided with an opportunity to be heard at a
regular or special meeting of City prior to any final decision of City
to terminate this Franchise.
iii. In the event that City determines to terminate this Franchise,
the Grantee shall have an opportunity to appeal said decision in
accordance with all Applicable Laws.
iv. If a valid appeal is filed, the Franchise shall remain in full
force and affect while said appeal is pending, unless the term of the
Franchise sooner expires.
(8) Reservation of Rights. City and Grantee reserve all rights that they may
possess under Applicable Laws unless expressly waived herein.
SECTION 10
MISCELLANEOUS PROVISIONS
(1) Franchise Renewal. Any renewal of this Franchise shall be in accordance with
applicable federal, state, and local laws and regulations. The term of any renewed Franchise
shall be limited to a period not to exceed fifteen(15)years.
(2) Amendment of Franchise. Grantee and City may agree, from time to time, to
amend this Franchise. Such written amendments may be made subsequent to a review
session pursuant to Section 7(2) or at any other time if City and Grantee agree that such an
amendment will be in the public interest or if such an amendment is required due to changes
in Applicable Laws. City shall act pursuant to local law pertaining to the ordinance
amendment process.
(3) Rights of Individuals.
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(a) Grantee shall not deny service, deny access, or otherwise
discriminate against Subscribers, Channel users, or general citizens on the basis
of race, color, religion, disability, national origin,age,gender or sexual
preference. Grantee shall comply at all times with all other Applicable Laws,
relating to nondiscrimination.
(b) Grantee shall adhere to the applicable equal employment
opportunity requirements of Applicable Laws, as now written or as amended from
time to time including 47 U.S.C. Section 551, Protection of Subscriber Privacy.
(c) 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 require the written permission of the owner for the
Installation of cable television equipment.
(d) No signals of a class IV cable communications channel may be
transmitted from a Subscriber terminal for purposes of monitoring individual
viewing patterns or practices without the express written permission of a
Subscriber. The request for permission must be contained in a separate
document With a prominent statement that the Subscriber is authorizing the
permission in full knowledge of its provisions. The written permission must be
for a limited period of time not to exceed one year which is renewable at the
option of the Subscriber. No penalty may be invoked for a Subscribers failure to
provide or renew the authorization. The authorization is revocable at any time
by the Subscriber without penalty of any kind. The permission must be required
for each type or classification or class IV cable communications activity planned.
(i) No information or data obtained by monitoring transmission
of a signal from a Subscriber terminal, including but not limited to the lists-of
the names and addresses of the Subscribers or lists that identify the viewing
habits of Subscribers may be sold or otherwise made available to any Person
other than to Grantee and its employees for internal business use, or to the
Subscriber who is the subject of that information, unless the Grantee has
received specific written authorization from the Subscriber to make the data
available.
(ii) Written permission from the Subscriber must not be required
for the Systems conducting system-wide or individually addressed electronic
sweeps for the purpose of verifying system integrity or monitoring for the
purpose of billing. Confidentiality of this information is subject to paragraph
(i) above.
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(iii) For purposes of this Section 10(3), a"class IV cable
communications channel"means a signaling path provided by a System to
transmit signals of any type from a Subscriber terminal to another point in
the System.
(e)
(4) Subscriber Privacy. Grantee shall comply with the terms of 47 U.S.C. §551
relating to the protection of Subscriber privacy.
(5) Rights Reserved to City. In addition to any rights specifically reserved to the
City by this Franchise, the City reserves to itself every right and power which is required to
be reserved by a provision of this Franchise.
(6) Confidential Information. Notwithstanding anything herein to the contrary,
Grantee shall have the right to provide any confidential books and records that it is obligated
to make available to the City pursuant to this Franchise, by allowing the City, or its
designated representative(s), to view the books and records at a mutually agreeable location
and without City obtaining its own copies of such books and records. Alternatively,
Confidential, or proprietary information may be disclosed pursuant to a reasonable mutually
agreeable non-disclosure agreement. The intent of the parties is to work cooperatively to
insure that all books and records reasonably necessary for City's monitoring and enforcement
of Franchise obligations are provided to City.
(7) Severability. If any provision of this Franchise is held by any Governmental
Authority of competent jurisdiction,to be invalid as conflicting with any Applicable Laws
now or hereafter in effect, or is held by such Governmental Authority to be modified in
any way in order to conform to the requirements of any such Applicable Laws, such
provision shall be considered a separate, distinct, and independent part of this Franchise,
and such holding shall not affect the validity and enforceability of all other provisions
hereof In the event that such Applicable Laws are subsequently repealed,rescinded,
amended or otherwise changed, so that the provision hereof which had been held invalid or
nullified is no longer in conflict with such laws, said provision shall thereupon return to full
force and effect and shall thereafter be binding on City and Grantee,provided that City shall
give Grantee thirty (30)days written notice of such change before requiring compliance with
said provision or such longer period of time as may be reasonably required for Grantee to
comply with such provision.
(8) Force Majeure. In the event Grantee's performance of any of the terms,
conditions, obligations or requirements of this Franchise is prevented or impaired due to any
cause beyond its reasonable control, such inability to perform shall be deemed to be excused
for the period of such inability and no penalties or sanctions shall be imposed as a result
thereof,provided Grantee has notified City in writing within a reasonable time 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
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conduit so long as Grantee utilizes due diligence to timely obtain said permits.
SECTION 11
PUBLICATION,EFFECTIVE DATE AND ACCEPTANCE
(1) Publication; Effective Date. This Franchise shall be published in accordance with
applicable Minnesota law. The "Effective Date" of this Franchise shall be the date of
acceptance by Grantee in accordance with the provisions of Section 11.2.
(2) Acceptance. Grantee shall accept this Franchise within thirty (30) of its enactment by
the City Council, unless the time for acceptance is extended by City. In the event acceptance
does not take place, this Franchise and any and all rights previously granted to Grantee shall
be null and void.
a. Upon acceptance of this Franchise, Grantee shall be bound by all the terms and
conditions contained herein.
b. Grantee shall accept this Franchise in the following manner:
i. This Franchise will be properly executed and acknowledged by Grantee and
delivered to Franchising Authority.
ii. With its acceptance, Grantee shall also deliver any insurance certificates
required herein that have not previously been delivered.
ADOPTED by the City Council of Orono, Minnesota this 9 day of December, 2024 on a vote of
LI ayes and J nays.0ATTEST• CITY OF ORONO
Adamdir.iads, City Administrator Dennis Walsh, Mayor
IP
Posted 11/26/2024
Published 12/14/2024 (summary) The Laker Pioneer
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ACCEPTED: This Franchise is accepted, and we agree to be bound by its terms and conditions.
MIDCONTINENT COMMUNICATIONS
By: Midcontinent Communications Investor,LLC
Its Managing Partner
By: Patrick J. McCann
Its: VP of Legal and General Counsel
Date: , 2024
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EXHIBIT A
SYSTEM EXTENSION AREA
Midcontinent Communications will extend its system in Orono on the following schedule, subject to
availability of right-of-way access on commercially reasonable terms. Phases shall be depicted on the
attached maps.
Phase 1: 2024-2025
Phase 2: 2025-2026
Phase 3: 2026-2027
Build-Out Phase 1
(Map to be inserted)
Build-Out Phase 2
(Map to be inserted)
Build-Out Phase 3
(Map to be inserted)
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EXHIBIT B
OWNERSHIP
Midcontinent Communication is a South Dakota general partnership with the following ownership:
Midcontinent Communications Investor,LLC: 50%
Comcast Midcontinent,LLC: 50%
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EXHIBIT C
DESCRIPTION OF SYSTEM
1. The Cable System shall be designed, constructed, routinely inspected, and maintained
to guarantee that the Cable System meets or exceeds the requirements of the most current
editions of the National Electrical Code (NFRA 70)and the National Electrical Safety Code
(ANSI C2). In all matters requiring interpretation of either of these codes,the City's
interpretation shall control over all other sources and interpretations.
2. General Requirements. Grantee shall use equipment used in high-quality,
reliable, modern Cable Systems of similar design.
3. General Description. The Cable System shall provide Subscribers with a technically
advanced and reliable Cable System. The System shall have at least 750 MHz of bandwidth
capacity, capable of delivering approximately 80 digital channels of programming. The
System will be two-way active, and it will be designed to have capability to transmit return
signals upstream in the 5-40 MHz spectrum. The design will provide the benefits of proven
80-channel electronics while positioning the System for expansion of bandwidth and channel
capacity as technology and future services develop.
4. Design. The design of the System shall be based upon a"Fiber to the Node"
architecture that will deliver the signals by fiber optics directly to each neighborhood.
Grantee's initial design includes a minimum of six(6)fibers to each Node site having a
neighborhood group average of approximately three hundred(300) homes. If Grantee splits
Nodes into smaller sizes, fewer fibers will extend to such smaller Nodes. There shall be no
more than seven (7)active amplifiers in a cascade from each Node to the residential
dwelling. The incorporation of stand- by power supplies,strategically placed throughout
the system including all hubs,will further reduce the likelihood of Service Interruptions.
5. Technical Standards. The System shall meet or exceed FCC requirements.
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EXHIBIT D
CUSTOMER PROTECTION AND CUSTOMER SERVICE STANDARDS
(1) Cable System office hours and telephone availability.
(a) Grantee will maintain a local,toll-free or collect call telephone access
line which will be available to its Subscribers twenty-four(24) hours a day, seven(7)
days a week.
(i) Trained Grantee representatives will be available to respond
to customer telephone inquiries during Normal Business Hours.
(ii) After Normal Business Hours,the access line may be answered
by a service or an automated response system, including an answering machine.
Inquiries received after Normal Business Hours must be responded to by a
trained Grantee representative on the next business day.
(b) Under Normal Operating Conditions,telephone answer time by a
customer representative, including wait time, shall not exceed thirty (30) seconds
when the connection is made. If the call needs to be transferred;transfer time shall not
exceed thirty(30) seconds. These standards shall be met no less than ninety percent
(90%) of the time under Normal Operating Conditions, measured on a quarterly basis.
(c) Grantee shall not be required to acquire equipment or perform surveys
to measure compliance with the telephone answering standards above unless an
historical record of complaints indicates a clear failure to comply.
(d) Under Normal Operating Conditions,the customer will receive a
busy signal less than three percent(3%) of the time.
(2) Installations, Outages and Service Calls. Under Normal Operating
Conditions, each of the following standards will be met no less than ninety-five percent
(95%) of the time measured on a quarterly basis:
(a) Standard Installations will be performed within seven(7) business
days after an order has been placed.
(b) Excluding conditions beyond the control of Grantee, Grantee will begin
working on "Service Interruptions"promptly and in no event later than twenty-four
(24)hours after the interruption becomes known. Grantee must begin actions to
correct other Service problems the next business day after notification of the Service
problem.
(c) The "appointment window" alternatives for Installations, Service calls,
and other Installation activities will be either a specific time or, at maximum, a four(4)
hour time block during Normal Business Hours. (Grantee may schedule Service calls
and other Installation activities outside of Normal Business Hours for the express
convenience of the customer.)
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(d) Grantee may not cancel an appointment with a customer after the close
of business on the business day prior to the scheduled appointment.
(e) If Grantee's representative is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled,the customer will
be contacted. The appointment will be rescheduled, as necessary, at a time which is
convenient for the customer.
(3) Communications between Grantee and Subscribers.
(a) Refunds. Refund checks will be issued promptly, but no later than either:
(i) The customer's next billing cycle following resolution of
the request or thirty(30) days, whichever is earlier, or
(ii) The return of the equipment supplied by Grantee if Cable
Service is terminated.
(b) Credits. Credits for Cable Service will be issued no later than the
customer's next billing cycle following the determination that a credit is
warranted.
(4) Billing.
(a) Consistent with 47 C.F.R. § 76.1619, bills will be clear, concise,and
understandable. Bills must be fully itemized,with itemizations including, but not
limited to, Basic Cable Service and premium Cable Service charges and equipment
charges. Bills will also clearly delineate all activity during the billing period, including
optional charges, rebates and credits.
(b) In case of a billing dispute, Grantee must respond to a written
complaint from a Subscriber within thirty (30) days.
(5) Subscriber Information. Grantee will provide written information on each of
the following areas at the time of Installation of Service, at least annually to all Subscribers,
and at any time upon request:
(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 programming carried on the System; and
(I) Billing and complaint procedures, including the address and
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telephone number of the Grantee's customer service department.
Subscribers shall be advised of the procedures for resolution of complaints about the quality
of the television signal delivered by Grantee, including the address of the responsible officer
of the Grantee. Subscribers will be notified of any changes in rates,programming services or
Channel positions as soon as possible in writing. Notice must be given to Subscribers a
minimum of thirty(30) days in advance of such changes if the change is within the control of
Grantee. In addition, Grantee shall notify Subscribers thirty (30) days in advance of any
significant changes in the information required by this Section (5).
(6) Notice or Rate Programming Change. In addition to the requirement of this
subparagraph (f)regarding advance notification to Subscribers of any changes in rates,
programming services or Channel positions, Grantee shall give thirty(30) days written notice,
if the change is within the control of the Grantee,to both Subscribers and the City before
implementing any rate or Service change. Such notice shall state the precise amount of any
rate change and briefly explain in readily understandable fashion the cause of the rate change
(e.g., inflation, change in external costs or the addition/deletion of Channels). When the
change involves the addition or deletion of Channels, each Channel added or deleted must be
separately identified. For purposes of the carriage of digital broadcast signals, Grantee need
only identify for Subscribers, the television signal added and not whether that signal may be
multiplexed during certain dayparts.
(7) Subscriber Contracts. Grantee shall,upon written request,provide the City with
any standard form residential Subscriber contract utilized by Grantee. If no such written
contract exists, Grantee shall file with the City a document completely and concisely stating
the length and terms of the Subscriber contract offered to customers. The length and terms of
any standard form Subscriber contract(s) shall be available for public inspection during
Normal Business Hours. A list of Grantee's current Subscriber rates and charges for Cable
Service shall be maintained on file with City and shall be available for public inspection.
(8) Refund Policy. If a Subscriber's Cable Service is interrupted or discontinued,
for twenty-four(24) or more consecutive hours, Grantee shall,upon request by the Subscriber,
credit such Subscriber pro rata for such interruption. For this purpose, every month will be
assumed to have thirty(30) days.
(9) Late Fees. Grantee shall comply with all applicable state and federal laws with
respect to any assessment, charge, cost, fee or sum, however characterized,that Grantee
imposes upon a Subscriber for late payment of a bill. The City reserves the right to enforce
Grantee's compliance with all Applicable Laws to the maximum extent legally permissible.
(10) Customer Bills. Customer bills shall be designed in such a way as to present
the information contained therein clearly and comprehensibly to Customers, and in a way that
(A) is not misleading and (B) does not omit material information. Notwithstanding anything
to the contrary in Section(4), above, Grantee may, in its sole discretion, consolidate costs on
Customer bills as may otherwise be permitted by Section 622(c) of the Cable Act(47 U.S.C.
§542(c)).
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(11) Failure to Resolve Complaints. Grantee shall resolve a complaint within thirty
(30) days in a manner deemed reasonable by the City under the terms of the Franchise.
(12) Maintain a Complaint Phone Line. Grantee shall maintain a local or toll-free
telephone Subscriber complaint line, available to its Subscribers twenty-four(24) hours per
day, seven(7) days a week.
(13) Notification of Complaint Procedure. Grantee shall have printed clearly and
prominently on each Subscriber bill and in the customer service agreement provided for in
Section(5),the twenty-four(24)hour Grantee phone number for Subscriber complaints.
Additionally, Grantee shall provide information to customers concerning the procedures to
follow when they are unsatisfied with measures taken by Grantee to remedy their complaint.
This information will include the contact information for Grantee's corporate customer service
department as provided in Grantee's Privacy Policy.
(14) Subscriber Privacy.
(a) To the extent required by Minn. Stat. §238.084 Subd. 1(s) Grantee shall
comply with the following: No signals including signals of a Class IV Channel may
be transmitted from a Subscriber terminal for purposes of monitoring individual
viewing patterns or practices without the express written permission of the
Subscriber. The request for permission must be contained in a separate document with
a prominent statement that the Subscriber is authorizing the permission in full
knowledge of its provisions. Such written permission shall be for a limited period of
time not to exceed one (1)year which may be renewed at the option of the Subscriber.
No penalty shall be invoked for a Subscriber's failure to provide or renew such
permission. The permission shall be revocable at any time by the Subscriber without
penalty of any kind whatsoever.
(b) No information or data obtained by monitoring transmission of a signal
from a Subscriber terminal, including but not limited to lists of the names and
addresses of Subscribers or any lists that identify the viewing habits of Subscribers
shall be sold or otherwise made available to any party other than to Grantee or its
agents for Grantee's business use, and also to the Subscriber subject of that
information, unless Grantee has received specific written permission from the
Subscriber to make such data available. The request for permission must be contained
in a separate document with a prominent statement that the Subscriber is authorizing
the permission in full knowledge of its provisions. Such written permission shall be
for a limited period of time not to exceed one (1)year which may be renewed at the
option of the Subscriber. No penalty shall be invoked for a Subscriber's failure to
provide or renew such permission. The permission shall be revocable at any time by
the Subscriber without penalty of any kind whatsoever.
(c) Written permission from the Subscriber shall not be required for the
conducting of system wide or individually addressed electronic sweeps for the purpose
of verifying System integrity or monitoring for the purpose of billing. Confidentiality
of such information shall be subject to the provision set forth in subparagraph(b)of
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this section.
(15) Grantee Identification. Grantee shall provide all customer service technicians
and all other Grantee employees, subcontractors and agents entering private property with
appropriate picture identification so that Grantee employees may be easily identified by the
property owners and Subscribers.
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EXHIBIT E
PEG ACCESS FACILITIES AND EQUIPMENT
(1) Public,Educational, and Government(PEG)Access Channels.
(a) Grantee shall provide to each of its Subscribers who receive some or all of the
Services offered on the Cable System, reception on at least one(1) specially
designated 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 access Channels. Personnel, equipment and production costs may
be assessed, however, for live studio presentations exceeding five (5)minutes
in length. Charges for those production costs and fees for use of other public
access Channels must be consistent with the goal of affording the public a low-
cost means of television access.
(b) Whenever the PEG 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 Conve l iers.
(c) The PEG Channels shall be dedicated for PEG use for the term of the
Franchise,provided that Grantee may, utilize any portions of the PEG
Channels not scheduled for PEG use. City shall establish rules and procedures
for such scheduling in accordance with Section 611 of the Cable Act(47
U.S.C. § 531).
(d) Grantee shall also designate Channel 6 for uniform regional channel usage
currently provided by "Metro Channel 6" as required by Minnesota Statutes
Section 238.43. Programming on this regional channel shall include a broad
range of informational, educational, and public service programs and materials
to cable television Subscribers throughout the Twin Cities metropolitan area.
(e) Grantee shall provide the Access Channels on the Basic Cable Service tier.
Upon written request by the City, Grantee shall provide one (1)PEG Channel
which may be programmed by the City in high definition (HD). City shall
offer a broad array of programming designed to provide a composite of the
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programming available of the PEG Channels. City understands and agrees that
if it exercises this option, Grantee may reduce the number of PEG Channels on
the Basic Tier to two (2)channels in addition to the Regional Channel six(6)
if applicable.
(2) PEG Technical Quality. Grantee shall meet FCC signal quality standards when
offering Access Channels on its Cable System.
(3) Relocation of Grantee's Headend. In the event Grantee relocates its Headend,
Grantee will be responsible for replacing or restoring the existing dedicated fiber
connections at Grantee's cost so that all the functions and capacity remain
available, operate reliably and satisfy all applicable technical standards and related
obligations of the Franchise free of charge to the City or its designated entities.
(4) PEG Operations. City may in its sole discretion,negotiate agreements with
neighboring jurisdictions served by the same Cable System, educational
institutions or others to share the operating expenses of the PEG Channels. City
and Grantee may negotiate an agreement for management of PEG Access
Facilities, if so desired by both parties.
(5) Title to PEG Equipment. City shall retain title to all PEG equipment and facilities
purchased or otherwise acquired.
(6) PEG Access Operating Support.
(a) Upon Grantee's acceptance of this Franchise, Grantee shall collect on behalf of
City a per Subscriber fee of One Dollar and Twenty Cents ($1.20)per month
solely to fund public, educational and governmental access expenditures
(hereinafter "PEG Fee")which shall be payable quarterly and included in the
Fee worksheet Exhibit G. The City Council may reduce the PEG Fee at any
time. The City shall have the right, no'more than every two (2)years during
the term of the Franchise,to increase the PEG Fee by providing Grantee ninety
(90)days advance written notice.No single increase in the PEG Fee shall
exceed fifteen cents ($.15)per subscriber.
(b) The PEG Fee shall be used by City in its sole discretion to fund PEG Access
expenditures in a manner consistent with Applicable Law.
(c) The PEG Fee is not intended to represent part of the Franchise Fee and is
intended to fall within one(1) or more of the exceptions in 47 U.S.C. § 542.
The PEG Fee may be categorized, itemized, and passed through to Subscribers
as permissible, in accordance with 47 U.S.C. §542 or other Applicable Laws.
Grantee shall pay the PEG Fee to the City quarterly at the same time as the
payment of Franchise Fees under Section 7(1) of the Franchise. Grantee agrees
that it will not offset or reduce its payment of past,present or future Franchise
Fees required as a result of its obligation to remit the PEG Fee.
(d) Any PEG Fees owing pursuant to this Franchise which remain unpaid more
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than thirty(30) days after the end of a given quarter shall be delinquent and
shall immediately thereafter accrue interest at the same rate and under the
same terms as late Franchise Fee payments as set forth in Section 7(1) of the
Franchise. Enforcement of unpaid PEG Fees shall be handled in accordance
with Section 9(7) of the Franchise, however, Grantee shall in all cases be
subject to interest on any payment more than thirty (30) days after the end of a
given quarter.
(e) Within thirty(30) days after receipt of notice from the City, Grantee shall pay
City up to Seventy-Five Thousand and no/100ths Dollars ($75,000.00) as a
capital equipment grant("Grant"). Said Grant may be payable in multiple
draws over the course of the term as long as each draw is preceded by thirty
(30) days written notice from the City and the aggregate amount of the Grant
does not exceed Seventy-Five Thousand Dollars and no/100ths ($75,000.00).
Grantee shall recoup said Grant by retaining the PEG Fee until such time as
the capital grant above is recouped. Upon such recoupment, Grantee shall
notify the City and Grantee shall thereafter pay the entire PEG Fee payment to
the City.
(7) Service to Public Buildings.
(a) Throughout the term of this Franchise Grantee shall provide, free of charge,
one (1) service Drop, one outlet, one (1) Converter, if necessary and requested,
and Basic Cable Service and the next highest penetrated level of Cable Service
generally available to all Subscribers (as of the Effective Date referred to as
Expanded Basic Cable Service) ("Complimentary Service"),to two sites which
shall be listed on Exhibit F attached hereto and updated from time to time. City
shall be responsible for the cost of internet services in the event they are
required to receive Grantee's services via Internet Protocol Television(IPTV).
(b) The City or the building occupant shall have the right to extend Cable Service
throughout the building to additional outlets without any fees imposed by
Grantee for the provision of such service to such additional outlets except for
the cost of additional terminal equipment required to receive the signals.
(c) Notwithstanding anything to the contrary set forth in this section, Grantee shall
not be required to provide Complimentary Service to such buildings unless it
is technically feasible.
(d) Grantee shall, in any public building hereinafter built,provide all Drop
materials, design specifications and technical advice to provide service to a
demark point at such building. If the Drop line to such building exceeds five
hundred(500)feet the City or other agency shall pay the Actual Cost of such
Drop in excess of five hundred(500) feet.
(e) Two-way capability allowing for live transmission of PEG programming
upstream to Grantee's Headend shall be provided to the public buildings listed
in Exhibit G at Grantee's expense.
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EXHIBIT F
SERVICE TO PUBLIC FACILITIES
1. City Hall 2750 Kelley Parkway
2. Police 2730 Kelley Parkway
3. Public Works 365 Old Crystal Bay Road N
4. Golf Course 265 Orono Orchard South
5. Public Safety Building 2700 Kelley Parkway
6. Fire Station, Willow Drive 340 Willow Drive N
7. Fire Station,Navarre 3770 Shoreline Drive
8.Navarre Water Plant 2345 Blaine Avenue
9.North Water Plant 2250 Pine Ridge Lane
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EXHIBIT G
PUBLIC BUILDINGS TO BE PROVIDED WITH TWO-WAY CAPABILITY
1. CITY BUILDINGS:
City Hall 2750 Kelley Parkway
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EXHIBIT H
FRANCHISE FEE and PEG FEE PAYMENT WORKSHEET
TRADE SECRET- CONFIDENTIAL
Month/Year Month/Year Month/Year Total
Cable Service Revenue
Installation Charge
Advertising Revenue
Home Shopping Revenue
Other Revenue
Equipment rental
REVENUE
Fee Calculated
Fee Factor: 5%
PEG Fee:
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