HomeMy WebLinkAbout2612-21 - ADMIN Ordinance - City Council - 2021/04/19
Ordinance No. 2612-21
An ordinance renewing the grant of a franchise to Comcast of Minnesota, LLC to
operate and maintain a cable system in the City of St. Louis Park, Minnesota;
setting forth conditions accompanying the grant of a franchise; providing for city
regulation and administration of the cable system; terminating the prior
franchise
Whereas, the City of St. Louis Park, Minnesota (“City”), pursuant to applicable federal
and state law, is authorized to grant one (1) or more nonexclusive cable television franchises to
construct, operate, maintain and reconstruct cable television systems within the City limits.
Whereas, Comcast of Minnesota, LLC (“Grantee”) has operated a Cable System in the
City, under a cable television franchise granted pursuant to a Cable Television Franchise
Ordinance approved on or about February 3, 2006.
Whereas, negotiations between Grantee and the City have been completed and the
franchise renewal process followed in accordance with Minnesota Statutes Chapter 238 and the
Cable Act (47 U.S.C. §546).
Whereas, the City has determined that it is in the best interest of the City and its
residents to renew the cable television franchise with Grantee.
Whereas, the Franchise granted to Grantee by the City is nonexclusive and complies
with existing applicable Minnesota Statutes, federal laws and regulations.
The City of St. Louis Park does ordain that a franchise is hereby granted to Comcast of
Minnesota, LLC to operate and maintain a Cable System in the City upon the following terms
and conditions:
SECTION 1 Definitions
For the purpose of this Franchise, the following, terms, phrases, words, derivations and their
derivations shall have the meanings given herein. When not inconsistent with the context,
words used in the present tense include the future tense, words in the plural number include
the singular number and words in the singular number include the plural number. The word
“shall” is always mandatory and not merely directory. The word “may” is directory and
discretionary and not mandatory.
1.1 “Affiliate” means any Person controlling, controlled by or under common control of
Grantee.
1.2 “Applicable Law(s)” means any law, statute, charter, ordinance, rule, regulation, code,
license, certificate, franchise, permit, writ, ruling, award, executive order, directive,
requirement, injunction (whether temporary, preliminary or permanent), judgment, decree or
other order issued, executed, entered or deemed applicable by any governmental authority of
competent jurisdiction.
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1.3 “Basic Cable Service” means any service tier which includes the lawful retransmission of
local television broadcast, as set forth in Applicable Law, currently 47 U.S.C. § 522(3).
1.4 “Cable Act” means the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et
seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as
further amended by the Telecommunications Act of 1996, as further amended from time to
time.
1.5 “Cable Service” means (a) the one-way transmission to Subscribers of (i) Video
Programming or (ii) other programming service, and b) Subscriber interaction, if any, which is
required for the selection or use of such Video Programming or other programming service, as
set forth in Applicable Law, currently 47 U.S.C. § 522(6). For the purposes of this definition,
“other programming service” means information that a cable operator makes available to all
Subscribers generally.
1.6 “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:
(a) a facility that serves only to retransmit the television signals of one (1) or more
television broadcast stations;
(b) a facility that serves Subscribers without using any Right-of-Ways;
(c) 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;
(d) an open video system that complies with 47 U.S.C. § 573; or
(e) any facilities of any electric utility used solely for operating its electric utility
system.
Unless otherwise specified, it shall in this document refer to the Cable System constructed and
operated in the City under this Franchise.
1.7 “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 FCC by
regulation, as set forth in Applicable Law, currently 47 U.S.C. § 522(4).
1.8 “City” means the City of St. Louis Park, a municipal corporation in the State of
Minnesota, acting by and through its City Council, or its lawfully appointed designee .
1.9 “City Code” means the Municipal Code of the City of St. Louis Park, Minnesota, as may
be amended from time to time.
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1.10 “Converter” means an electronic device, including Digital Transport Adapters, which
converts signals to a frequency not susceptible to interference within the television receiver of
a Subscriber, and by an appropriate Channel selector also permits a Subscriber to view all Cable
Service signals.
1.11 “City Council” means the governing body of the City of St. Louis Park, Minnesota.
1.12 “Day” means a calendar day, unless otherwise specified.
1.13 “Drop” means the cable that connects the Subscriber terminal to the nearest feeder
cable of the cable.
1.14 “Effective Date” means May 14, 2021.
1.15 “FCC” means the Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
1.16 “Franchise” means the right granted by this Franchise Ordinance and the regulatory and
contractual relationship established hereby.
1.17 “Franchise Area” means the entire geographic area within the City as it is now
constituted or may in the future be constituted.
1.18 “Franchise Fee” means the fee assessed by the City to Grantee, in consideration of
Grantee’s right to operate the Cable System within the City’s Right-of-Ways, determined in
amount as a percentage of Grantee’s Gross Revenues and limited to the maximum percentage
allowed for such assessment by federal law. The term Franchise Fee does not include the
exceptions noted in 47 U.S.C. §542(g)(2)(A-E).
1.19 “GAAP” means generally accepted accounting principles as promulgated and defined by
the Financial Accounting Standards Board (“FASB”), Emerging Issues Task Force (“EITF”) and/or
the U.S. Securities and Exchange Commission (“SEC”).
1.20 “Gross Revenues” means and shall be construed broadly to include all revenues derived
directly or indirectly by Grantee and/or an Affiliated entity that is the cable operator of the
Cable System, from the operation of Grantee’s Cable System to provide Cable Services within
the City. Gross Revenues include, by way of illustration and not limitation:
(a) monthly fees for Cable Services, regardless of whether such Cable Services are
provided to residential or commercial customers, in cluding revenues derived from the
provision of all Cable Services (including but not limited to pay or premium Cable
Services, pay-per-view, pay-per-event, and video-on-demand Cable Services);
(b) fees paid to Grantee for Channels designated for commercial/lea sed access use
and shall be allocated on a pro rata basis using total Cable Service Subscribers within the
City;
(c) Converter, digital video recorder, remote control, and other Cable Service
equipment rentals, leases, or sales;
(d) installation, disconnection, reconnection, change-in service, “snow-bird” fees;
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(e) Advertising Revenues as defined herein;
(f) late fees, convenience fees, and administrative fees;
(g) other service fees such as HD fees, convenience fees, broadcast fees, regional
sports fees, home tech support fees, bill payment fees for in-person or phone payments,
additional outlet fees, and related charges relating to the provisions of Cable Service;
(h) revenues from program guides and electronic guides;
(i) Franchise Fees;
(j) FCC regulatory fees;
(k) except as provided in subsection (ii) below, any fee, tax or other charge assessed
against Grantee by municipality, which Grantee chooses to pass through and collect
from its Subscribers; and
(l) commissions from home shopping channels and other Cable Service revenue
sharing arrangements, which shall be allocated on a pro rata basis using total Cable
Service Subscribers within the City.
(i) “Advertising Revenues” shall mean revenues derived from sales of
advertising that are made available to Grantee’s Cable System Subscribers within
the City and shall be allocated on a pro rata basis using total Cable Service
Subscribers reached by the advertising. Additionally, Grantee agrees that Gross
Revenues subject to Franchise Fees shall include all commissions, representative
fees, Affiliated entity fees, or rebates paid to National Cable Communications
and Comcast Spotlight or their successors associated with sales of advertising on
the Cable System within the City allocated according to this paragraph using total
Cable Service Subscribers reached by the advertising.
(ii) “Gross Revenues” shall not include:
1. actual bad debt write-offs, except any portion which is
subsequently collected, which shall be allocated on a pro rata basis using
Cable Services revenue as a percentage of total Subscriber revenues
within the City;
2. Public, Education and Government (PEG) Fees; and
3. unaffiliated third-party advertising sales agency fees which are
reflected as a deduction from revenues.
Grantee shall allocate fees and revenues generated from bundled packages and services
to cable revenues pro rata based on current published rate card for the packaged
services delivered on a stand-alone basis as follows:
(i) To the extent revenues are received by Grantee for the provision of a
discounted bundle of services which includes Cable Services and non-Cable
Services, Grantee shall calculate revenues to be included in Gross Revenues
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using a GAAP methodology that allocates revenue, on a pro rata basis when
comparing the bundled service price and its components to the sum of the
published rate card, except as required by specific federal, state or local law (for
example, it is expressly understood that equipment may be subject to inclusion
in the bundled price at full rate card value). The City reserves its right to review
and to challenge Grantee’s calculations.
(ii) Grantee reserves the right to change the allocation methodologies set
forth in this section in order to meet the standards required by governing
accounting principles as promulgated and defined by the Financial Accounting
Standards Board (“FASB”), Emerging Issues Task Force (“EITF”) and/or the U.S.
Securities and Exchange Commission (“SEC”). Grantee will explain and
document the required changes to the City upon request or as part of any audit
or review of Franchise Fee payments, and any such changes shall be subject to
the next subsection below.
(iii) Resolution of any disputes over the classification of revenue should first
be attempted by agreement of the parties, but should no resolution be reached,
the parties agree that reference shall be made to GAAP as promulgated and
defined by the Financial Accounting Standards Board (“FASB”), Emerging Issues
Task Force (“EITF”) and/or the U.S. Securities and Exchange Commission (“SEC”).
Notwithstanding the foregoing, the City reserves its right to challenge Grantee’s
calculation of Gross Revenues, including the interpretation of GAAP as
promulgated and defined by the FASB, EITF and/or the SEC.
1.21 “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.
1.22 “Normal Operating Conditions” means those Service conditions which are within the
control of Grantee. Those conditions which are not within the control of 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 Grantee include, but are not limited to, special promotions, pay-per-view
events, rate increases, regular peak or seasonal demand periods, and maintenance or upgrade
of the Cable System.
1.23 “PEG” means public, education and government.
1.24 “Person” means any natural person and all domestic and foreign corporations, closely-
held corporations, associations, syndicates, joint stock corporations, partnerships of every kind,
clubs, businesses, common law trusts, societies and/or any other legal entity.
1.25 “Public Right-of-Way or Right-of-Way” means the area on, below, or above a public
roadway, alleyway, highway, street, cartway, bicycle lane or public sidewalk in which the City
has an interest, including other dedicated rights-of-way for travel purposes and utility
easements of the City. A Right-of-Way does not include the airwaves above a Right-of-Way
with regard to cellular or other nonwire telecommunications or broadcast service.
1.26 “Subscriber” means a Person who lawfully receives Cable Service.
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1.27 “Video Programming” means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
1.28 “Wireline MVPD” means any entity, including the City, that utilizes the Right -of-Ways 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, which could also include the
City. For purposes of this Franchise, the term “Wireline MVPD” shall not be limited to entities
defined by the FCC as “multichannel video programming distributors” and shall include entities
that provide multiple Channels of Video Programming via open video systems, as defined by
the FCC, but it is the intent of the Grantee and the City that the term Wireline MVPD shall not
include small cell providers, unless the City has the legal authority under Applicable Law to
regulate or to impose cable franchise obligations upon such small cell providers.
SECTION 2 Franchise
2.1 Grant of Franchise. The City hereby authorizes Grantee to occupy or use the City’s
Right-of-Ways 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. Unless this Franchise
has expired pursuant to Section 2.8 herein or this Franchise is otherwise terminated pursuant
to Section 11.2 herein, 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.
2.2 Reservation of Authority. 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 this Franchise
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 all 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. 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 of general applicability promulgated by the City, or (C) be construed as a waiver or
release of the rights of the City in and to the Right-of-Ways.
2.3 Franchise Term. The term of this Franchise shall be ten (10) years from the Effective
Date, unless renewed, amended or extended by mutual written consent in accordance with
Section 17.7 or terminated sooner in accordance with this Franchise.
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2.4 Franchise Area. This Franchise is granted for the Franchise Area defined herein.
Grantee shall extend its Cable System to provide Service to any residential unit in the City in
accordance with Section 6.8 herein.
2.5 Franchise Nonexclusive. 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 in Section 17.18. The grant of any additional franchise shall not of itself be deemed
to constitute a modification, revocation, or termination of rights previously granted to Grantee.
Any additional cable franchise grants shall comply with Minnesota Statutes § 238.08 and any
other applicable federal level playing field requirements.
2.6 Periodic Public Review of Franchise. The City may conduct a public review of the
Franchise. The purpose of any such review shall be to ensure, with the benefit of full
opportunity for public comment that the Grantee continues to effectively serve the public in
accordance with Applicable Law, and considering any new cable technology, Grantee’s
performance with the requirements of this Franchise, local regulatory environment, community
needs and interests, and other such factors. So long as Grantee receives reasonable notice,
Grantee shall cooperate in good faith. The review shall not operate to modify or change any
provision of this Franchise without mutual written consent in accordance with Section 17.7 of
this Franchise. The City and Grantee shall each be responsible for their own costs regarding the
conduct of, or cooperation with, any such periodic review.
2.7 Transfer of Ownership.
(a) A sale or transfer of this Franchise, including a sale or transfer by means of a
“fundamental corporate change,” as defined by Minnesota Statutes §238.083 Subd. 1,
or the sale or transfer of stock in Grantee so as to create a new “controlling interest,” as
defined in Minnesota Statutes §238.083 Subd. 6, in the Cable System, shall require the
written approval of the City. Grantee shall submit a written request to the City for
approval, provided, however, that said approval shall not be required where Grantee
grants a security interest in its Franchise and assets to secure an indebtedness. The
written approval of the City shall not be required under this section for internal
corporate reorganizations involving Affiliates or pledges of the Franchise as collateral o r
security for any loan or other debt instrument.
(b) City shall approve or deny in writing the sale or transfer request. City shall set
forth in writing with particularity its reason(s) for denying approval. City shall not
unreasonably withhold its approval.
(c) Any sale or transfer of stock in Grantee so as to create a new controlling interest
in the System shall be subject to the requirements of this Section 2.7. The term
“controlling interest” as used herein is not limited to majority stock ownership but
includes actual working control in whatever manner exercised. In no event shall a
transfer or assignment of ownership or control be approved without the transferee
becoming a signatory to this Franchise and assuming all rights and obligations
thereunder, and assuming all other rights and obligations of the transferor to the City.
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(d) In accordance with Minnesota Statutes § 238.084, Subd. 1(y), the City shall have
the right to purchase the System in the event the Franchise or System is proposed to be
transferred or sold on the same terms and conditions as the offer pursuant to which
transfer notice was provided pursuant to this section . The City shall have thirty (30)
Days from receipt of an application for consent under this Section 2.7 in which to give
notice of its intention to consider exercising such right.
(e) If the City has issued a written notice of franchise violation in accordance with
the terms of this Franchise, the transfer may be conditioned upon the transferee
agreeing to a mutually acceptable remediation plan. The approval of any transfer of
ownership pursuant to this section shall not be deemed to waive any rights of the City
to subsequently enforce noncompliance issues relating to this Franchise even if such
issues predated the approval, whether known or unknown to the City.
2.8 Expiration. Upon expiration of the Franchise, the City shall have the right at its own
election and subject to Grantee’s rights under Section 626 of the Cable Act to:
(a) extend the Franchise, though nothing in this provision shall be construed to
require such extension;
(b) renew the Franchise, in accordance with Applicable Laws;
(c) invite additional franchise applications or proposals;
(d) terminate the Franchise subject to any rights Grantee has under Section 626 of
the Cable Act; or
(e) take such other action as the City deems appropriate.
2.9 Right to Require Removal of Property. At the expiration of the term for which this
Franchise is granted, provided no renewal is granted, or upon its forfeiture or revocation as
provided for herein, the City shall have the right to require Grantee to remove at Grantee’s own
expense all or any part of the Cable System from all Right-of-Ways and public ways within the
Franchise Area within a reasonable time. If Grantee fails to do so, the City may perform the
work and collect the cost thereof from Grantee. However, Grantee shall have no obligation to
remove the Cable System where it utilizes the System to provide other non-Cable Services and
has any other authority under Applicable Law to maintain facilitates in the Public Rights-of-
Way, or where Grantee is able to find a purchaser of the Cable System who holds such
authorization.
2.10 Continuity of Service Mandatory. It shall be the right of all Subscribers to receive Cable
Service in accordance with the terms of this Franchise and Applicable Law. In the event that
Grantee elects to overbuild, rebuild, modify, or sell the System, or the City revokes or fails to
renew the Franchise, Grantee shall make its best effort to ensure that all Subscribers receive
continuous uninterrupted service, regardless of the circumstances, while the Franchise remains
effective. In the event of expiration, revocation/termination, purchase, lease -purchase,
condemnation, acquisition, taking over or holding of plant and equipment, sale, lease, or other
transfer to any other Person, including any other grantee of a cable franchise, the current
Grantee shall cooperate fully to operate the System in accordance with the terms and
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conditions of this Franchise for a temporary period sufficient in length to maintain continuity of
service to all Subscribers.
SECTION 3 Operation in Streets and Rights-of-Way
3.1 Use of Right-of-Ways.
(a) Grantee may, subject to the terms of this Franchise and the City Code, erect,
install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across
and along the Right-of-Ways within the City such lines, cables, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other
property and equipment as are necessary and appurtenant to the operation of a Cable
System within the City. Without limiting the foregoing, Grantee expressly agrees that it
will construct, operate and maintain its Cable System in compliance with, and subject to,
the requirements of the City Code, including by way of example and not limitation,
those requirements governing the placement of Grantee’s Cable System; and with other
applicable City Codes, and will obtain, pay for and maintain all permits and bonds
required by the City Code in addition to those required in this Franchise.
(b) All wires, conduits, cable and other property and facilities of Grantee shall be so
located, constructed, installed and maintained as not to endanger or unnecessarily
interfere with the usual and customary trade, traffic and travel upon, or other use of the
Right-of-Ways of City. Grantee shall keep and maintain all of its property in good
condition, order and repair so that the same shall not menace or endanger the life or
property of any Person. Consistent with the mapping requirements in Section 4.6 of this
Franchise, Grantee shall keep accurate maps and records of all of its wires, conduits,
cables and other property and facilities located, constructed and maintained in the City.
(c) All wires, conduits, cables and other property and facilities of Grantee, shall be
constructed and installed in an orderly and professional manner in accordance with all
applicable requirements of the City Code and Applicable Law. All wires, conduits and
cables shall be installed, where possible, parallel with electric and telephone lines.
Multiple cable configurations shall be arranged in parallel and bundled with due respect
for engineering considerations.
(d) Nothing in this Franchise shall be construed to prevent the City from
constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining,
repairing, relocating and/or altering any Right-of-Way; constructing, laying down,
repairing, maintaining or relocating any water mains; or constructing, maintaining,
relocating, or repairing any sidewalk or other public work.
3.2 Construction or Alteration. Grantee shall in all cases comply with applicable sections of
the City Code, City resolutions and City regulations regarding the acquisition of permits and/or
such other items as may be reasonably required in order to construct, alter or maintain the
Cable System. Grantee shall, upon request, provide information to the City regarding its
progress in completing or altering the Cable System.
3.3 Non-Interference. Grantee shall exert its best efforts to construct and maintain a Cable
System so as not to interfere with other uses of Right-of-Ways. Grantee shall, where possible in
the case of above ground lines, make use of existing poles and other facilities available to
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Grantee. When residents receiving underground service or who will be receiving underground
service will be affected by proposed construction or alteration, Grantee shall provide such
notice as set forth in the permit or in City Code of the same to such affected residents.
3.4 Consistency with Designated Use. Notwithstanding the above grant to use Right-of-
Ways, no Right-of-Way shall be used by Grantee if the City, in its sole opinion, determines that
such use is inconsistent with the terms, conditions or provisions by which such Right-of-Way
was created or dedicated, or presently used under Applicable Laws.
3.5 Undergrounding. Grantee shall in all cases comply with applicable sections of the City
Code, City resolutions and City regulations when installing facilities underground.
(a) Grantee shall place underground all of its transmission lines which are located or
are to be located above or within the Right-of-Ways of the City in the following cases:
(i) all other existing utilities are required to be placed underground by
statute, resolution, policy or other Applicable Law;
(ii) Grantee is unable to get pole clearance;
(iii) underground easements are obtained from developers of new residential
areas; or
(iv) utilities are overhead but residents prefer underground (undergrounding
provided at cost paid by benefitted residents).
(b) If an ordinance is passed which involves placing underground certain utilities
including Grantee’s cable plant which is then located overhead, Grantee shall participate
in such underground project and shall remove poles, cables and overhead wires if
requested to do so and place facilities underground. Nothing herein shall mandate that
City provide reimbursement to Grantee for the costs of such relocation and removal.
However, if the City makes available funds for the cost of placing facilities underground,
nothing herein shall preclude the Grantee from participating in such funding to the extent
consistent with the City Code or Applicable Laws. If non-City funds, such as funds from
state or federal grant funding, are made available to place electric or telephone lines
underground, nothing herein shall prohibit Grantee from participating in such funding.
(c) Grantee shall use conduit or its functional equivalent to the greatest extent
possible for undergrounding, except for Drops from pedestals to Subscribers’ homes
and for cable on other private property where the owner requests that conduit not be
used. Cable and conduit shall be utilized which meets the highest industry standards for
electronic performance and resistance to interference or damage from environmental
factors. Grantee shall use, in conjunction with other utility companies or providers,
common trenches for underground construction wherever available.
3.6 Maintenance and Restoration.
(a) Restoration. In case of disturbance of any Right-of-Way, public way, paved area
or public improvement, Grantee shall, at its own cost and expense and in accordance
with the requirements of the City Code restore such Right-of-Way, public way, paved
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area or public improvement to substantially the same condition as existed before the
work involving such disturbance took place. All requirements of this section pertaining
to public property shall also apply to the restoration of private easements and other
private property. Grantee shall perform all restoration work within a reasonable time
and with due regard to seasonal working conditions. If Grantee fails, neglects or refuses
to make restorations as required under this section and any applicable City Code
provision, then the City may do such work or cause it to be done, and the cost thereof to
the City shall be paid by Grantee. If Grantee causes any damage to private property in
the process of restoring facilities, Grantee shall repair such damage.
(b) Maintenance. Grantee shall maintain all above ground improvements that it
places on City Right-of-Ways pursuant to the City Code and any permit issued by the
City. In order to avoid interference with the City’s ability to maintain the Right -of-Ways,
Grantee shall provide such clearance as is required by the City Code and any permit
issued by the City. If Grantee fails to comply with this provision, and by its failure,
property is damaged, Grantee shall be responsible for all damages caused thereby.
(c) Disputes. In any dispute over the adequacy of restoration or maintenance
relative to this section, final determination shall be the prerogative of the City,
Department of Engineering and consistent with the City Code and any permit issued by
the City.
3.7 Work on Private Property. Grantee, with the consent of property owners, shall have the
authority, pursuant to the City Code, to trim trees upon and overhanging Right -of-Ways, alleys,
sidewalks, and public ways so as to prevent the branches of such trees from coming in contact
with the wires and cables of Grantee, except that at the option of the City, such trimming may
be done by it or under its supervision and direction at the reasonable expense of Grantee.
3.8 Relocation.
(a) Public Property. Grantee shall relocate its System and facilities in accordance
with the City Code. In addition, if, during the term of the Franchise, the City or any
government entity elects or requires a third party to alter, repair, realign, abandon,
improve, vacate, reroute or change the grade of any Right-of-Way or other public
property; or to construct, maintain or repair any public improvement; or to replace,
repair install, maintain, or otherwise alter any cable, wire conduit, pipe, line, pole, wire-
holding structure, structure, or other facility, including a facility used for the provision of
utility or other services or transportation of drainage, sewage or other liquids, for any
public purpose, Grantee shall, upon request, except as otherwise hereinafter provided,
at its sole expense remove or relocate as necessary its poles, wires, cables, underground
conduits, vaults, pedestals, manholes and any other facilities which it has installed.
Nothing herein shall mandate that City provide reimbursement to Grantee for the costs
of such relocation and removal. However, if the City makes ava ilable funds for the cost
of placing facilities underground, nothing herein shall preclude the Grantee from
participating in such funding to the extent consistent with the City Code or Applicable
Laws. If non-City funds, such as funds from state or federal grant funding, are made
available to place electric or telephone lines underground, nothing herein shall prohibit
Grantee from participating in such funding.
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(b) Utilities and Other Franchisees. If, during the term of the Franchise, another
entity which holds a franchise or any utility requests Grantee to remove or relocate such
facilities to accommodate the construction, maintenance or repair of the requesting
party’s facilities, or their more efficient use, or to “make ready” the requesting party’s
facilities for use by others, or because Grantee is using a facility which the requesting
party has a right or duty to remove, Grantee shall do so. The companies involved may
decide among themselves who is to bear the cost of removal or relocation, pursuant to
City Code, and provided that the City shall not be liable for such costs.
(c) Notice to Remove or Relocate. Any Person requesting Grantee to remove or
relocate its facilities shall give Grantee no less than forty-five (45) Days’ advance written
notice advising Grantee of the date or dates removal or relocation is to be undertaken,
provided that no advance written notice shall be required in emergencies or in cases
where public health and safety or property is endangered.
(d) Failure by Grantee to Remove or Relocate. If Grantee fails, neglects or refuses to
remove or relocate its facilities as directed by the City; or in emergencies or where
public health and safety or property is endangered, the City may do such work or cause
it to be done, and the cost thereof to the City shall be paid by Grantee. If Grantee fails,
neglects or refuses to remove or relocate its facilities as directed by another franchisee
or utility, that franchisee or utility may do such work or cause it to be done, and if
Grantee would have been liable for the cost of performing such work, the cost thereof
to the party performing the work or having the work performed shall be paid by
Grantee.
(e) Procedure for Removal of Cable. Grantee shall not remove any underground
cable or conduit which requires trenching or other opening of the Right-of-Ways along
the extension of cable to be removed, except as hereinafter provided. Grantee may
remove any underground cable from the Right-of-Ways which has been installed in such
a manner that it can be removed without trenching or other opening of the Right-of-
Ways along the extension of cable to be removed. Subject to Applicable Law, Grantee
shall remove, at its sole cost and expense, any underground cable or conduit by
trenching or opening of the Right-of-Ways along the extension thereof or otherwise
which is ordered to be removed by the City based upon a determination, in the sole
discretion of the City, that removal is required in order to eliminate or prevent a
hazardous condition. In the event this occurs, Grantee shall notify the City and follow
the requirements of the City’s Department of Engineering and City Code. Underground
cable and conduit in the Right-of-Ways which is not removed shall be deemed
abandoned and title thereto shall be vested in the Cit y.
(f) Movement of Buildings. Grantee shall, upon request by any Person holding a
building moving permit, franchise or other approval issued by the City, temporarily
remove, raise or lower its wire to permit the movement of buildings. The expense of
such removal, raising or lowering shall be paid by the Person requesting same, and
Grantee shall be authorized to require such payment in advance. The City shall require
all building movers to provide not less than fifteen (15) Days’ notice to the Grantee to
arrange for such temporary wire changes.
SECTION 4 Removal or Abandonment of System
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4.1 Removal of Cable System. In the event that: (l) the use of the Cable System is
discontinued for any reason for a continuous period of twelve (12) months; or (2) the Cable
System has been installed in a Right-of-Way without complying with the requirements of this
Franchise or the City Code, Grantee, at its expense shall, at the demand of the City remove
promptly from the Right-of-Ways all of the Cable System other than any which the Cit y may
permit to be abandoned in place. In the event of any such removal Grantee shall promptly
restore the Right-of-Way to a condition as nearly as possible to its prior condition or other
public places in the City from which the System has been removed. However, Grantee shall
have no obligation to remove the Cable System where it utilizes the System to provide other
non-Cable Services and has any other authority under Applicable Law to maintain facilities in
the Right-of-Way, or where Grantee is able to find a purchaser of the Cable System who holds
such authorization.
4.2 Abandonment of Cable System. In the event of Grantee’s abandonment of the Cable
System, City shall have the right to require Grantee to comply with the state right-of-way rules,
Minnesota Rules, Chapter 7819. The Cable System to be abandoned in place shall be
abandoned in the manner prescribed by the City. Grantee may not abandon any portion of the
System without having first given three (3) months written notice to the City. Grantee may not
abandon any portion of the System without compensating the City for damages resulting from
the abandonment.
4.3 Removal after Abandonment or Termination. If Grantee has failed to commence
removal of System, or such part thereof as was designated by City, within thirty (30) Days after
written notice of City’s demand for removal consistent with Minnesota Rules, Chapter 7819, is
given, or if Grantee has failed to complete such removal within twelve (12) months after
written notice of City’s demand for removal is given, City shall have the right to apply funds
secured by the performance bond, and any pending letter of credit required by Section 10.1 of
this Franchise, toward removal and/or declare all right, title, and interest to the Cable System
for the City with all rights of ownership including, but not limited to, the right to operate the
Cable System or transfer the Cable System to another for operation by it.
4.4 City Options for Failure to Remove Cable System. If Grantee has failed to complete
such removal within the time given after written notice of the City’s demand for removal is
given, the City shall have the right to exercise one of the following options:
(a) Declare all right, title and interest to the System for the City or its designee with
all rights of ownership including, but not limited to, the right to operate the System or
transfer the System to another for operation by it; or
(b) Declare the System abandoned and cause the System, or such part thereof as
the City shall designate, to be removed at no cost to the City. The cost of said removal
shall be recoverable from the performance bond, indemnity and penalty section
provided for in this Franchise or from Grantee directly.
(c) Upon termination of service to any Subscriber, Grantee shall promptly remove
all facilities and equipment from within the dwelling of a Subscriber who owns such
dwelling upon his or her written request, except as provided by Applicable Law. Such
Subscribers shall be responsible for any costs incurred by Grantee in removing the
facilities and equipment.
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4.5 System Construction and Equipment Standards. The Cable System shall be installed
and maintained in accordance with standard engineering practices and shall conform, when
applicable, with the National Electrical Safety Code, the National Electrical Code and the FCC’s
Rules and Regulations.
4.6 System Maps and Layout. In addition to any generally applicable mapping
requirements included in the City Code and required of other utilities, Grantee shall maintain
complete and accurate system maps, which shall include trunks, distribution lines, and nodes.
Such maps shall include up-to-date route maps showing the location of the Cable System
adjacent to the Right-of-Ways. Grantee shall make all maps available for review by the
appropriate City personnel.
SECTION 5 System Design and Capacity
5.1 Availability of Signals and Equipment.
(a) The Cable System utilizes a fiber to the fiber node architecture, with fiber optic
cable deployed from Grantee’s headend to Grantee’s fiber nodes, tying into Grantee’s
coaxial Cable System serving Subscribers. The System shall pass a minimum of 750 MHz
(with a minimum passband of between 50 and 750 MHz) and shall be maintained to
provide to Subscribers a minimum of at least two hundred (200) or more activated
downstream video Channels, or such comparable video viewing capability as is provided
in light of developing technologies and video distribution practices in the future.
(b) The entire System shall be technically capable of transmitting industry-standard
digital television signals in a manner and quality consistent with applicable FCC
regulations.
(c) Grantee agrees to maintain the Cable System in a manner consistent with, or in
excess of the specifications in Section 5.1 (a) and (b) throughout the term of the
Franchise with sufficient capability and technical quality to enable the implementation
and performance of all requirements of this Franchise, including the exhibits hereto,
and in a manner which meets or exceeds FCC technical quality standards at 47 C.F.R. §
76 Subpart K, regardless of the particular format in which a signal is transmitted.
5.2 Equal and Uniform Service. Grantee shall provide access to equal and uniform Cable
Service throughout the City consistent with Applicable Law.
5.3 System Specifications.
(a) System Maintenance. In all construction and service provision activities, Grantee
shall meet or exceed the construction, technical performance, extension and service
requirements set forth in this Franchise.
(b) 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 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 insofar as the City’s process is consistent with the
Minnesota State Emergency Statewide Plan (“EAS Plan”). The City may also develop a
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local plan containing methods of EAS message distribution, insofar as the local plan is
consistent with Applicable Laws and the EAS Plan.
(c) Standby Power. Grantee shall provide standby power generating capacity at the
Cable System control center and at all hubs. Grantee shall maintain standby power
system supplies, rated for at least two (2) hours’ duration, throughout the trunk and
distribution networks. In addition, Grantee shall have in place throughout the Franchise
term a plan, and all resources necessary for implementation of the plan, for dealing with
outages of more than two (2) hours.
(d) Technical Standards. The technical standards used in the operation of the Cable
System shall comply, at minimum, with the technical standards promulgated by the FCC
relating to Cable Systems pursuant to Title 47, Section 76, Subpart K of the Co de of
Federal Regulations, as may be amended or modified from time to time, which
regulations are expressly incorporated herein by reference. The Cable System shall be
installed and maintained in accordance with standard engineering practices and shall
conform with the National Electrical Safety Code and all other Applicable Laws
governing the construction of the Cable System.
5.4 Performance Testing. Grantee shall perform all system tests at the intervals required by
the FCC, and all other tests reasonably necessary to determine compliance with technical
standards required by this Franchise. These tests may include, at a minimum:
(a) Initial proof of performance for any construction;
(b) Semi-annual compliance tests;
(c) Tests in response to Subscriber complaints; and
(d) Tests reasonably requested by the City to demonstrate Franchise compliance.
(e) Written records of all system test results performed by or for Grantee shall be
maintained and shall be available for City inspection upon request.
5.5 Special Testing.
(a) Throughout the term of this Franchise, City shall have the right to inspect all
construction or installation work performed pursuant to the provisions of the Franchise.
In addition, City may require special testing of a location or locations within the System
if there is a particular matter of controversy or unresolved complaints regarding such
construction or installation work or 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. 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 impacted by such testing.
(b) Before ordering such tests, Grantee shall be afforded thirty (30) Days following
receipt of written notice to investigate and, if necessary, correct problems or complaints
upon which tests were ordered. City shall meet with Grantee prior to requiring special
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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 at
Grantee’s expense by Grantee’s qualified engineer. The City shall have a right to
participate in such testing by having an engineer of City’s choosing, and at City’s
expense, observe and monitor said testing.
SECTION 6 Programming and Services
6.1 Categories of Programming Service. Grantee shall provide Video programming services
in at least the following broad categories:
Local Broadcast (subject to federal carriage requirements)
Public Broadcast
News and Information
Sports
General Entertainment
Arts/Performance/Humanities
Science/Technology
Children/Family/Seniors
Foreign Language/Ethnic Programming
PEG Programming (to the extent required by the Franchise)
Movies
Leased Access, as required by Applicable Law
6.2 Changes in Programming Services. Grantee shall provide at least thirty (30) Days’ prior
written notice to Subscribers and to the City of Grantee’s request to effectively delete any
broad category of programming or any Channel within its control, including all proposed
changes in bandwidth or Channel allocation and any assignments including any new equipment
requirements that may occur as a result of these changes.
6.3 Parental Control Device or Capability. Upon request by any Subscriber, Grantee shall
make available, at no additional cost to any Subscriber, a parental control or lockout device or
functionality that will enable the Subscriber to block all access to any and all Channels without
affecting those not blocked. Grantee shall inform Subscribers of the availability of the lockout
device or functionality at the time of original subscription and annually thereafter.
6.4 FCC Reports. The results of any 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 tests.
6.5 Free Cable Service to Public Buildings.
(a) The parties acknowledge that as of the Effective Date of this Franchise, Grantee
continues to provide, free of charge, Basic Cable Service (including the PEG Channels) to
certain schools, libraries and public institutions within the Franchise Area as set forth in
Exhibit A (“Complimentary Services”). In the event Grantee elects, to the extent
permitted by Applicable Laws, to invoice the City for Complimentary Services, the
Grantee agrees that it will do so only after providing City with one hundred twenty (120)
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Days’ prior written notice. Grantee agrees not to unfairly or unreasonably discriminate
against the City with respect to other Minnesota served local franchising authorities,
with respect to the costs to be imposed for Complimentary Services.
(b) The City shall have right to discontinue receipt of all or a portion of the
Complimentary Service provided by Grantee in the event Grantee elects to impose a
charge against the City for the Complimentary Service as set forth in the preceding
paragraph.
6.6 Limitation on Free Service. Notwithstanding anything to the contrary set forth in this
Section, Grantee shall not be required to provide Complimentary Service to such buildings
unless it is technically feasible. Outlets and maintenance of said Complimentary Service shall
be provided free of fees and charges.
6.7 Annexation. Unless otherwise provided by Applicable Law, including the City Code,
upon the annexation of any additional land area by City, the annexed area shall thereafter be
subject to all the terms of this Franchise upon sixty (60) Days written notification to Grantee of
the annexation by City. Unless otherwise required by Applicable Laws, nothing herein shall
require the Grantee to expand its Cable System to serve, or to offer Cable Service to any area
annexed by the City if such area is then served by another Wireline MVPD franchise to prov ide
multichannel video programming.
6.8 Line Extension.
(a) Grantee shall construct and operate its Cable System so as to provide Cable
Service within the Franchise Area where there exists a density equivalent of seven (7)
dwelling units per one-quarter (1/4) mile of feeder cable as measured from the nearest
active plant of the Cable System if the extension is to be constructed using aerial plant,
and nine (9) dwelling units per one-quarter (1/4) mile of feeder cable as measured from
the nearest active plant if the extension is to be constructed using underground plant.
The City, for its part, shall endeavor to exercise reasonable efforts to require developers
and utility companies to provide the Grantee with at least fifteen (15) Days advance
notice of an available open trench for the placement of necessary cable.
(b) Any residential unit located within one hundred twenty-five (125) feet from the
nearest point of access on the Right-of-Way from which the Cable System is designed to
serve the site shall be connected to the Cable System at no charge other than the
standard installation charge. Grantee shall, within fifteen (15) Days request by any
potential Subscriber residing in City beyond the one hundred twenty-five (125) foot
limit, provide a quote identifying the costs associated with extending service to such
Subscriber. Grantee shall perform the extension of service as soon a reasonably
possible and in no event longer than thirty (30) Days, provided that the Subscriber shall
pay the net additional Drop costs, unless the Grantee agrees to waive said costs. To the
extent consistent with Applicable Laws, Grantee agrees that it shall impose installation
costs for non-standard installations in a uniform and nondiscriminatory manner
throughout the City.
6.9 Nonvoice Return Capability. Grantee is required to use cable and associated electronics
having the technical capacity for nonvoice return communications.
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SECTION 7 Local Peg Programming
7.1 Number of PEG Channels.
(a) Grantee shall continue to make available a minimum of five (5) PEG Channels in
Standard Definition (“SD”) and one (1) PEG Channel in High Definition (“HD”).
Throughout the term of this Franchise Grantee shall provide the PEG Channels on the
Basic Cable Service tier or such other most highly penetrated tier of Cable Service as
may be offered by Grantee in accordance with Applicable Law.
(b) For purposes of this Franchise, HD signal refers to a television signal delivering
picture resolution of either 720p or greater.
7.2 HD PEG Channels.
(a) Throughout the term of this Franchise, Grantee shall continue to make one (1) of
the PEG Channels available in both SD and HD format.
(b) Within ninety (90) Days of the Effective Date of this Franchise, Grantee shall
make a second PEG Channel available in both SD and HD format.
(c) At the time a second HD PEG Channel is provided, the City will give up one (1) SD
PEG Channel, so that the City will then have four (4) SD PEG Channels, and two (2) HD
PEG Channels. The City at its sole discretion will choose the SD PEG Channel that is
given back to Grantee, and the PEG Channel that becomes capable of SD/HD
programming.
(d) Within one hundred eighty (180) Days of the Effective Date of this Franchise, the
City will have the option to give back, upon ninety (90) Days written notice to Grantee, a
second SD PEG Channel and Grantee shall provide SD/HD capability to one of the
remaining SD PEG Channels, so that the City will then have three (3) SD PEG Channels,
and three (3) HD PEG Channels. The City shall determine, in the City’s sole discretion,
which PEG Channel to give back, and which PEG Channel shall then be capable of SD/HD
programming.
(e) Nothing herein shall diminish any rights of the City to secure additional PEG
Channels pursuant to Minnesota Statutes Section 238.084, which is expressly
incorporated herein by reference.
(f) At such time as eighty percent (80%) of the Grantee’s Basic Service tier Channels
are provided exclusively in HD format, the City may request, and the Grantee shall
provide upon one hundred twenty (120) Days’ notice, that the remaining SD PEG
Channels be converted to HD Channels, subject to the other requirements of this
section. In the event that all PEG Channels are made available in HD, the City’s
maximum number of PEG Channels shall be three (3). For purposes of calculating the
eighty percent (80%) threshold, “on demand” programming and similar programming is
not considered a Channel, even if available to Basic Cable Service Subscribers.
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(g) The City acknowledges that receipt of an HD format PEG Channel may require
Subscribers to buy or lease special equipment or pay additional HD charges applicable to
all HD services.
(h) Any costs of end-user equipment associated with the delivery of PEG Channels in
HD format beyond the Demarcation Point shall be borne by the City and may be paid for
out of PEG funds.
(i) Grantee shall have the right to use any technology to deploy or deliver HD
signals (including selection of compression, utilization of IP and other processing
characteristics) so long as it produces signal quality for the consumer that is reasonably
comparable (from the viewer’s standpoint) and functionally equivalent to similar
commercial HD signals carried on the Cable System.
7.3 Control of PEG Channels. The control and administration of the PEG Channels shall rest
with the City. The City may delegate, from time to time over the term of this Franchise, such
control and administration to various entities as determined in City’s sole discretion.
7.4 Transmission of PEG Channels. PEG Channels may be used for transmission of non-
video signals in compliance with Applicable Laws. This may include downstream transmission
of data using a protocol such as TCP/IP or current industry standards. Should Grantee develop
the capability to provide bi-directional data transmission, spectrum capacity shall be sufficient
to allow Subscribers to transmit data to PEG facilities.
7.5 PEG Channel Locations.
(a) PEG Channels shall be carried on the Basic Cable Service tier as set forth in
Section 7.1 herein. Nothing herein precludes the Grantee from charging Subscribers for
equipment needed for Basic Cable Service. Grantee shall initially continue cablecasting
PEG access programming on the Cable System on the same Channel designations as
such programming is cablecast within the City as of the Effective Date. In no event shall
any PEG Channel relocations be made prior to ninety (90) Days written notice to the City
by Grantee, except for circumstances beyond Grantee’s reasonable control. If
relocated, the PEG Channels will be located on consecutive Channel numbers in the SD
Channel lineups as applicable and within reasonable proximity to other broadcast or
news Channels, excluding pay-per-view programming offered by Grantee in the City.
For new HD PEG Channels that are provided pursuant to this Franchise, Grantee shall
make reasonable commercial efforts to assign the PEG Channels a number near the
other HD local broadcast stations if such Channel positions are not already taken, or if
that is not possible, near HD news/public affairs programming Channels if such Channel
positions are not already taken, or if not possible, as reasonably close as available
Channel numbering will allow. Currently the HD PEG Channels are located, or expected
to be located, on 799, 798 and 853.
(b) Grantee agrees not to encrypt the PEG Channels differently than other
commercial Channels available on the Cable System.
(c) Grantee shall make reasonable efforts to minimize Channel movements for PEG
Channels and shall make reasonable efforts to locate both SD and HD PEG Channels in
its lineup in a manner that is easily accessible to Subscribers. In the event an SD PEG
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Channel is moved, Grantee shall provide a rebranding reimbursement grant of One
Thousand Five Hundred and No/100 Dollars ($1,500) per relocated Channel.
7.6 Navigation to PEG Channels and Electronic Programming Guide . Grantee agrees that if
it utilizes any navigation interfaces under its control on its Cable System for all Channels, the
PEG Channels shall be treated in a non-discriminatory fashion consistent with Applicable Laws
so that Subscribers will have ready access to PEG Channels. Grantee will maintain the existing
ability of the City to place PEG Channel programming information on the interactive Channel
guide via the electronic programming guide (“EPG”) vendor (“EPG provider”) that Grantee
utilizes to provide the guide service. Grantee will be responsible for providing the designations
and instructions necessary for the PEG Channels to appear on the EPG. All costs and
operational requirements of the EPG provider shall be the responsibility of the City. City
acknowledges that the EPG may not be technically possible for all PEG programming, and that
Grantee is not responsible for operations of the EPG provider.
7.7 Ownership of PEG Channels. Grantee does not relinquish its ownership of or ultimate
right of control over a Channel by designating it for PEG use. A PEG access user – whether an
individual, education or government user – acquires no property or other interest by virtue of
the use of a Channel position so designated. Grantee shall not exercise editorial control over
any public, education, or government use of a Channel position, except Grantee may refuse to
transmit any public access program or portion of a public access program that contains
obscenity, indecency, or nudity in violation of Applicable Law.
7.8 PEG Monitoring. Grantee shall provide the capability, without charge, for the City Hall
locations and the ParkTV master control facility listed, to monitor and verify the audio and
visual quality of PEG Channels received by Subscribers as well as the existing connections and
equipment at the ParkTV master control facility. This will include equipment comparable to
that deployed to residential cable Subscribers that will allow the City to verify the accuracy of
EPG listings for the PEG Channels consistent with what is currently provided. Grantee shall also
maintain one (1) feed to the City Hall office to provide the ability to monitor Subscriber services
and address Subscriber concerns, which feed shall include all cable boxes and platforms (i.e.
Xfinity X1).
7.9 PEG Transport. During the term of this Franchise, Grantee will provide PEG transport as
follows:
(a) The City may transmit signals for the PEG Channels in “real time” upstream from
the locations listed in Exhibit B from the ParkTV master control located at City Hall to
Grantee’s hub and head-end using existing fiber connections without additional charge
from Grantee.
(b) Grantee shall provide the capability for the City, either through a fiber
connection, DOCSIS cable modem solution, or other technology of Grantee’s choosing,
to transmit live programming from additional locations of the City’s choosing, subject to
the City providing or renting necessary modems, encoders, decoders or similar devices,
configuring such equipment, and removing such equipment in the event of interference
with Grantee’s delivery of Cable Service. To the extent a set of mobile DOCSIS cable
modems (or such other devices as may replace DOCSIS modems during the term of this
Franchise) are utilized, such modems shall be able to connect to the Subscriber network
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at permanent or temporary Drops, subject to two (2) weeks prior written notice to
Grantee and use upstream capacity on the Subscriber network to transmit programming
via the Subscriber network and the connections to the ParkTV master control equal to
or of better quality than the PEG signals transmitted to Subscribers.
(i) The City shall be responsible for purchasing high speed internet service
for the transmission of live programming at market rates.
(ii) The City shall provide any necessary encoders, decoders or similar
devices and shall configure equipment and connections so that signals can be
transmitted to the Park TV master control.
(iii) Grantee may request that the City remove an encoder, or similar device if
it technically interferes with Grantee’s delivery of Cable Service.
(c) Grantee shall maintain the existing fiber paths/equipment and existing PEG
connectivity to the locations listed in Exhibit B during the term of this Franchise, without
additional charge (with no recurring, monthly costs or offsets, except that Grantee may
invoice the City for any actual repair or maintenance costs which shall not exceed Five
Thousand and No/100 Dollars ($5,000) per year and which shall be estimated to the City
in advance whenever possible, and shall be documented and invoiced to the City for
payment) to permit the City to transport PEG programming. This will allow the City to
continue cablecasting PEG programming from the locations listed in Exhibit B and will
maintain connections from the City to Grantee’s hub and head -end without additional
charge or offsets.
(d) Grantee reserves any rights it may have under the FCC Section 621 Order, as
defined in Section 17.19 herein, to impose lawfully permitted charges for the PEG
transport and associated equipment as outlined in this paragraph, but Grantee may
impose such charges against the City only to the extent such charges are also imposed by
Grantee on all other Minnesota local franchising authorities where Grantee has similar
PEG transport obligations. Grantee agrees that any costs incurred by the City under this
Section 7.9 shall be considered a PEG capital cost unless prohibited by Applicable Law.
7.10 Future PEG Transport. At such time that the City determines:
(a) that the City desires the capacity to allow Subscribers in the City to receive PEG
programming (video or character generated) which may originate from schools, City
facilities, other government facilities or other designated facilities (other than those
indicated in Section 7.8); or
(b) that the City desires to establish or change a location from which PEG
programming is originated; or
(c) that the City desires to upgrade the connection to Grantee from an existing
signal point of origination,
the City will give Grantee written notice detailing the point of origination and the capability
sought by the City. After an agreement to reimburse Grantee for Grantee’s out of pocket time
and material costs, Grantee will implement any necessary Cable System changes within a
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reasonable period of time. Nothing herein prevents the City, or a private contractor retained
by the City, from constructing said connection.
7.11 PEG Channel Carriage.
(a) The City or its designee shall be responsible for developing, implementing,
interpreting and enforcing rules for PEG Channel use.
(b) The Grantee shall monitor the PEG Channels for technical quality to ensure that
they meet FCC technical standards including those applicable to the carriage of PEG
Channels, provided however, that the Grantee is not responsible for the production
quality of PEG programming productions. The City, or its designee, shall be responsible
for the production and quality of all PEG programming. Grantee shall carry all
components of the SD/HD PEG Channel(s) including, but not limited to, closed
captioning, stereo audio and other elements associated with the programming.
7.12 PEG Programming Financial Support.
(a) During the term of the Franchise, Grantee shall pay quarterly to the City a PEG
Fee in an amount equal to two percent (2%) of its quarterly Gross Revenues, for the
duration of this Franchise. Payments pursuant to this subsection shall be paid to the
City on the same schedule and including the same payment worksheets as the Franchise
Fee payments set forth in Section 16.1 of this Franchise.
(b) The PEG Fee may be used by City to fund PEG expenditures in accordance with
Applicable Law.
(c) The PEG Fee is not part of the Franchise Fee and instead falls within one 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.
7.13 PEG Technical Quality and Support.
(a) Grantee shall not be required to carry a PEG Channel in a higher quality format
than that of the Channel signal delivered to Grantee, but Grantee shall not implement a
change in the method of delivery of PEG Channels that results in a material degradation
of signal quality or impairment of viewer reception of PEG Channels, provided that this
requirement shall not prohibit Grantee from implementing new technologies also
utilized for commercial Channels carried on its Cable System. Grantee shall meet FCC
signal quality standards when offering PEG Channels on its Cable System and shall
continue to comply with closed captioning pass-through requirements. There shall be
no significant deterioration in a PEG Channels signal from the point of origination
upstream to the point of reception (hub or head end) or downstream to the Subscriber
on the Cable System.
(b) Grantee shall provide a local (Twin Cities) response phone number, cell number,
and e-mail address for local (Twin Cities) technical support staff who are trained to
effectively respond to and resolve PEG related issues, who will respond to urgent tech-
support requests within fifteen (15) minutes, or as soon thereafter as reasonably
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Ordinance No. 2612-21 23
possible, and non-urgent tech support requests within three (3) hours or forty-eight (48)
hours, depending upon the response time needed. City technical staff will determine
what requests are urgent or non-urgent. City agrees to use best efforts to verify that
the issue is not on the City’s side of the demarcation point before a call is made to
Grantee.
7.14 Change in Technology. In the event Grantee makes any change in the Cable System and
related equipment and facilities or in its signal delivery technology, which requires the City to
obtain new equipment in order to be compatible with such change for purposes of transport
and delivery of the PEG Channels, Grantee shall, at its own expense and free of charge to City or
its designated entities, purchase such equipment as may be necessary to facilitate the
cablecasting of the PEG Channels in accordance with the requirements of the Franchise.
7.15 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.
7.16 Regional Channel Six. Grantee shall make available Regional Channel Six as long as it is
required to do so by Applicable Law.
7.17 Compliance with Minnesota Statutes Chapter 238. In addition to the requirements
contained in this Section 7 of this Franchise, Grantee and City shall comply with the PEG
requirements mandated by Minnesota Statutes § 238.084.
SECTION 8 Regulatory Provisions
8.1 Intent. The City shall have the right to administer and regulate activities under the
Franchise to the full extent permitted by Applicable Law. The City may delegate to any other
body or Person authority to administer the Franchise and to monitor the performance of Grantee
pursuant to the Franchise. Grantee shall cooperate with any such delegates of the City.
8.2 Delegation of Authority to Regulate. The City reserves the right to delegate its
regulatory authority wholly or in part to agents of the City, including, but not limited t o, an
agency which may be formed to regulate several franchises in the region in a manner consistent
with Applicable Laws. As of the Effective Date of this Franchise, the City, or any designee
thereof, shall have continuing regulatory jurisdiction and supervision over the Cable System and
Grantee’s operation under the Franchise.
8.3 Regulation of Rates and Charges.
(a) Right to Regulate. The City reserves the right to regulate rates or charges for any
Cable Service within the limits of Applicable Law, to enforce rate regulations prescribed
by the FCC, and to establish procedures for said regulation or enforcement.
(b) Notice of Change in Rates and Charges. Throughout the term of this Franchise,
Grantee shall give the City and all Subscribers within the City at least thirty (30) Days’
notice of any intended modifications or additions to Subscriber rates or charges.
Nothing in this subsection shall be construed to prohibit the reduction or waiving of
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Ordinance No. 2612-21 24
rates or charges in conjunction with promotional campaigns for the pu rpose of
attracting Subscribers or users.
(c) Rate Discrimination Prohibited. Within any category of Subscribers, Grantee
shall not discriminate among Subscribers with regard to rates and charges made for any
service based on considerations of race, color, creed, sex, marital or economic status,
national origin, sexual preference, or (except as allowed by Applicable Law)
neighborhood of residence, except as otherwise provided herein; and for purposes of
setting rates and charges, no categorization of Subscribe rs shall be made by Grantee on
the basis of those considerations. Nevertheless, Grantee shall be permitted to establish
(1) discounted rates and charges for providing Cable Service to low-income, disabled, or
low-income elderly Subscribers, (2) promotional rates, and (3) bulk rate and package
discount pricing.
SECTION 9 Bond
9.1 Performance Bond. Upon the Effective Date of this Franchise and at all times
thereafter, for the term of this Franchise or any renewal running to the City Grantee shall file
with the City at its own expense, and at all times thereafter maintain in full force and effect, a
bond in the sum of Fifty Thousand and No/100 Dollars ($50,000.00) in such form and with such
sureties as shall be acceptable to City, conditioned upon the faithful performan ce by Grantee of
this Franchise and upon the further condition that in the event Grantee shall fail to comply with
any law, ordinance or regulation, there shall be recoverable jointly and severally from the
principal and surety of the bond, any damages or losses suffered by City as a result, including
the full amount of any compensation, indemnification or cost of removal of any property of
Grantee, including a reasonable allowance for attorneys’ fees and costs (with interest at two
percent (2%) in excess of the then prime rate), up to the full amount of the bond, and which
bond shall further guarantee payment by Grantee of all claims and liens against City, or any
public property, and taxes due to City, which arise by reason of the construction, operation,
maintenance or use of the Cable System.
9.2 Rights. The rights reserved by City with respect to the bond are in addition to all other
rights the City may have under this Franchise or any other law.
9.3 Reduction of Bond Amount. City may, in its sole discretion, reduce the amount of the
bond.
9.4 Procedure to Draw on Bond.
(a) The City shall provide Grantee thirty (30) Days written notice of its intent to draw
on the performance bond together with the reason for such draw. Grantee shall have
the right to cure or petition for additional time.
(b) The time for Grantee to correct any violation or liability, shall be extended by the
City if the necessary action to correct such violation or liability is, in the sole
determination of the City, of such a nature or character as to require more than thirty
(30) Days within which to perform, provided Grantee provides written notice that it
requires more than thirty (30) Days to correct such violations or liability, commences the
corrective action within the thirty (30) Day period and thereafter uses reasonable
diligence to correct the violation or liability.
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(c) In the event this Franchise is revoked by reason of default of Grantee in
accordance with the procedure set forth in Section 11, the City shall be entitled to
collect from the performance bond any damages incurred by the City as a result of said
default or revocation.
(d) Grantee shall be entitled to the return of the performance bond, or portion
thereof, as remains sixty (60) Days after the expiration of the term of the Franchise or
revocation for default thereof, provided the City has not notified Grantee of any
damages incurred by the City as a result of Grantee’s operations pursuant to the
Franchise or as a result of said default.
(e) The rights reserved to the City with respect to the performance bond are in
addition to all other rights of the City whether reserved by this Franchise or authorized
by law, and no action, proceeding or exercise of a right with respect to the performance
bond shall affect any other right the City may have.
SECTION 10 Letter of Credit
10.1 Letter of Credit. If there is an uncured breach by Grantee of a material provision of this
Franchise or a pattern of repeated violations of any provision(s) of this Franchise that remain
uncured, then Grantee shall, upon written request, establish and provide to the City , as security
for the faithful performance by Grantee of all of the provisions of this Franchise, a letter of
credit from a financial institution satisfactory to the City in the amount of Twenty Thousand and
No/100 Dollars ($20,000.00) (“Letter of Credit”). In no event shall Grantee fail to post a Twenty
Thousand and No/100 Dollars ($20,000.00) Letter of Credit within ten (10) Days following
receipt of a notice of franchise violation pursuant to this Section 10.1. The form, manner and
content of the Letter of Credit shall be subject to the approval of the City. Failure to post said
Letter of Credit shall constitute a separate material violation of this Franchise, unless the
breach is cured within such ten (10) Day period. The Letter of Credit shall serve as a common
security for the faithful performance by Grantee of all the provisions of this Franchise and
compliance with all orders, permits and directions of the City and the payment by Grantee of
any claim, liens, costs, expenses and taxes due the City which arise by reason of the
construction, operation or maintenance of the Cable System. If Grantee fails to establish the
Letter of Credit as required, the City may take whatever action is appropriate to require the
establishment of that fund and may recover its costs, reasonable attorneys’ fees, and an
additional penalty of Five Thousand Dollars ($5,000) in that action.
10.2 Withdrawal of Funds. The Letter of Credit shall permit the City to withdraw funds upon
demand (sight draft). Grantee shall not use the Letter of Credit for other purposes and shall not
assign, pledge or otherwise use the Letter of Credit as security for any purpose.
10.3 Restoration of Funds. Within ten (10) Days after notice to it that any amount has been
withdrawn by the City from the Letter of Credit pursuant to Section 10.8, Grantee shall deposit
a sum of money sufficient to restore such the Letter of Credit to the required amount.
10.4 Liquidated Damages. 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 Letter of Credit the following liquidated
damages:
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(a) For failure to provide data, documents, reports or information or to cooperate
with City during an application process, audit, or System review, the liquidated damage
shall be Two Hundred Fifty Dollars ($250.00) per Day for each Day, or part thereof, such
failure occurs or continues.
(b) For failure to comply with any of the provisions of this Franchise for which a
penalty is not otherwise specifically provided pursuant to this Section 10.4, the
liquidated damage shall be Two Hundred Fifty Dollars ($250.00) per Day for each Day, or
part thereof, such failure occurs or continues.
(c) For failure to test, analyze and report on the performance of the System
following a request by City, the liquidated damage shall be Two Hundred Fifty Dollars
($250.00) per Day for each Day, or part thereof, such failure occurs or continues.
(d) Forty-five Days following notice from City of a failure of Grantee to comply with
construction, operation or maintenance standards, the liquidated damage shall be Five
Hundred Dollars ($500.00) per Day for each Day, or part thereof, such failure occurs or
continues.
(e) For failure to provide the services Grantee has proposed, including but not
limited to the implementation and the utilization of the PEG Channels, the liquidated
damage shall be Two Hundred Fifty ($250.00) per Day for each Day, or part thereof,
such failure occurs or continues.
(f) For failure to provide the Letter of Credit required by this Section 10.1, the
liquidated damage shall be Two Hundred Fifty ($250.00) per Day for each Day, or part
thereof, such failure occurs or continues.
10.5 Each Violation a Separate Violation. Each violation of any provision of this Franchise
shall be considered a separate violation for which separate liquidated damages can be imposed.
10.6 Maximum 120 Days. Any liquidated damages for any given violation shall be imposed
upon Grantee for a maximum of one hundred twenty (120) Days. If after that amount of time
Grantee has not cured or commenced to cure the alleged breach to the satisfaction of the City,
the City may pursue all other remedies.
10.7 Withdrawal of Funds to Pay Taxes. If Grantee fails to pay to the City any taxes due and
unpaid; or fails to repay to the City, any damages, costs or expenses which the City shall be
compelled to pay by reason of any act or default of the Grantee in connection with this
Franchise; or fails, after thirty (30) Days’ notice of such failure by the City to comply with any
provision of the Franchise which the City reasonably determines can be remedied by an
expenditure of the Letter of Credit, the City may then withdraw such funds from the Letter of
Credit. Payments are not Franchise Fees as defined in Section 16 of this Franchise.
10.8 Procedure for Draw on Letter of Credit. Whenever the City finds that Grantee has
allegedly violated one (1) or more terms, conditions or provisions of this Franchise, a written
notice shall be given to Grantee. The written notice shall describe in reasonable detail the
alleged violation so as to afford Grantee an opportunity to remedy the violation. Grantee shall
post the Letter of Credit within ten (10) Days of the date of receipt o f a written notice of
violation, Grantee shall have thirty (30) Days subsequent to receipt of the notice in which to
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correct the violation before the City may require Grantee to make payment of damages, and
further to enforce payment of damages through the Letter of Credit. Grantee may, within ten
(10) Days of receipt of notice, notify the City that there is a dispute as to whether a violation or
failure has, in fact, occurred. Such notice by Grantee shall specify with particularity the matters
disputed by Grantee and shall stay the running of the thirty (30) Day cure period but shall not
serve to delay Grantee’s obligation to post the Letter of Credit within said ten (10) Day period
following receipt of the notice of violation.
(a) City shall hear Grantee’s dispute at the next regularly scheduled or specially
scheduled City meeting. Grantee shall have the right to speak and introduce evidence.
The City shall determine if Grantee has committed a violation and shall make written
findings of fact relative to its determination. If a violation is found, Grantee may
petition for reconsideration.
(b) If after hearing the dispute, the claim is upheld by the City, then Grantee shall
have thirty (30) Days within which to remedy the violation before City may require
payment of all liquidated damages due it.
10.9 Time for Correction of Violation. The time for Grantee to correct any alleged violation
may be extended by the City if the necessary action to correct the alleged violation is of such a
nature or character as to require more than thirty (30) Days within which to perform provided
Grantee commences corrective action within fifteen (15) Days and thereafter uses reasonable
diligence, as determined by the City, to correct the violation.
10.10 Grantee’s Right to Pay Prior to Letter of Credit Draw. Grantee shall have the
opportunity to make prompt payment of any assessed liquidated damages and if Grantee fails
to promptly remit payment to the City, the City may resort to a draw from the Letter of Credit
in accordance with the terms of this Section 10 of the Franchise.
10.11 Failure to so Replenish Letter of Credit. If any Letter of Credit is not so 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 for by Grantee pursuant hereto, including attorneys’ fees incurred by the
City in so performing and paying. The failure to so replace any Letter of Credit may also, at the
option of City, be deemed a default by Grantee under this Franchise. The drawing on the Letter
of Credit by City and use of the money so obtained for payment or performance of the
obligations, duties and responsibilities of Grantee which are in default, shall not be a waiver or
release of such default.
10.12 Collection of Funds Not Exclusive Remedy. The collection by City of any damages or
monies from the Letter of Credit shall not affect any other right or remedy available to City, nor
shall any act, or failure to act, by City pursuant to the Letter of Credit, be deemed a waiver of
any right of City pursuant to this Franchise or otherwise. Notwithstanding this section,
however, should the City elect to impose liquidated damages that remedy shall remain the
City’s exclusive remedy for the one hundred twenty (120) Day period set forth in Section 10.6.
SECTION 11 Default
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11.1 Basis for Default. City shall give written notice of default to Grantee if City, in its sole
discretion, determines that Grantee has:
(a) Violated any material provision of this Franchise or the acceptance hereto or any
rule, order, regulation or determination of the City, state or federal government, not in
conflict with this Franchise;
(b) Attempted to evade any provision of this Franchise or the acceptance hereof;
(c) Practiced any fraud or deceit upon City or Subscribers;
(d) Made a material misrepresentation of fact in the application for or negotiation of
this Franchise; or
(e) Incurred a twelve (12) month or more delay in the construction schedule.
11.2 Default Procedure. If Grantee fails to cure such default within thirty (30) Days after the
giving of such notice (or if such default is of such a character as to require more than th irty (30)
Days within which to cure the same, and Grantee fails to commence to cure the same within
said thirty (30) Day period and thereafter fails to use reasonable diligence, in City’s sole opinion,
to cure such default as soon as possible), then, and in any event, such default shall be a
substantial breach and City may elect to terminate the Franchise. The City may place the issue
of revocation and termination of this Franchise before the governing body of City at a regular
meeting. If City decides there is cause or reason to terminate, the following procedure shall be
followed:
(a) City shall provide Grantee with a written notice of the reason or cause for
proposed termination and shall allow Grantee a minimum of thirty (30) Days
subsequent to receipt of the notice in which to correct the default.
(b) Grantee shall be provided with an opportunity to be heard at a public hearing
prior to any decision to terminate this Franchise.
(c) If, after notice is given and an opportunity to cure, at Grantee’s option, a public
hearing is held, and the City determines there was a violation, breach, failure, refusal or
neglect, the City may declare by resolution the Franchise revoked and of no further
force and effect unless there is compliance within such period as the City may fix, such
period may not be less than thirty (30) Days. No opportunity for compliance need be
granted for fraud or misrepresentation.
11.3 Failure to Enforce. Grantee shall not be relieved of any of its obligations to comply
promptly with any provision of the Franchise by reason of any failure of the City to enforce
prompt compliance, and City’s failure to enforce shall not constitute a waiver of rights or
acquiescence in Grantee’s conduct.
11.4 Compliance with the Laws.
(a) If any federal or state law or regulation shall require or permit City or Grantee to
perform any service or act or shall prohibit City or Grantee from performing any service
or act which may be in conflict with the terms of this Franchise, then as soon as possible
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following knowledge thereof, either party shall notify the other of the point in conflict
believed to exist between such law or regulation. Grantee and City shall conform to
state laws and rules regarding cable communications not later than one (1) year after
they become effective, unless otherwise stated, and shall conform to federal laws and
regulations regarding cable as they become effective.
(b) If any term, condition or provision of this Franchise or the application thereof to
any Person or circumstance shall, to any extent, be held to be invalid or unenforceable,
the remainder hereof and the application of such term, condition or provision to
Persons or circumstances other than those as to whom it shall be held invalid or
unenforceable shall not be affected thereby, and this Franchise and all the terms,
provisions and conditions hereof shall, in all other respects, continue to be effective and
complied with, provided the loss of the invalid or unenforceable clause does not
substantially alter the agreement between the parties. In the event such law, rule or
regulation is subsequently repealed, rescinded, amended or otherwise changed so that
the provision which had been held invalid or modified is no longer in conflict with the
law, rules and regulations then in effect, said provision shall thereupon return to full
force and effect and shall thereafter be binding on Grantee and City.
SECTION 12 Foreclosure and Receivership
12.1 Foreclosure. Upon the foreclosure or other judicial sale of the Cable System, Grantee
shall notify the City of such fact and such notification shall be treated as a notification that a
change in control of Grantee has taken place, and the provisions of this Franchise governing the
consent to transfer or change in ownership shall apply without regard to how such transfer or
change in ownership occurred.
12.2 Receivership. The City shall have the right to cancel this Franchise subject to any
applicable provisions of state law, including the Bankruptcy Act, one hundred twenty (120) Days
after the appointment of a receiver or trustee to take over and conduct the business of
Grantee, whether in 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:
(a) Within one hundred twenty (120) Days after his election or appointment, such
receiver or trustee shall have fully complied with all the provisions of this Franchise and
remedied all defaults thereunder; and,
(b) Such receiver or trustee, within said one hundred twenty (120) Days, shall have
executed an agreement, duly approved by the Court having jurisdiction in the premises,
whereby such receiver or trustee assumes and agrees to be bound by each and every
provision of this Franchise.
SECTION 13 Reporting Requirements
13.1 Quarterly Reports. Within forty (45) Days after the end of each calendar quarter,
Grantee shall submit to the City along with its Franchise Fee payment, a report showing the
basis for computation of the Franchise Fee and PEG Fee payments signed by an authorized
representative of Grantee in form and substance substantially equivalent to Exhibit C attached
hereto. This report shall separately indicate Grantee’s Gross Revenues within the City
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Ordinance No. 2612-21 30
including, but not limited to such items as listed in the definition of “Gross Revenues” at Section
1.20 of this Franchise.
13.2 Monitoring and Compliance Reports. Upon request, but no more than once a year,
Grantee shall provide a written report of any and all FCC technical performance tests for the
residential network required in FCC Rules and Regulations as now or hereinafter constituted.
13.3 Other Reports. Upon request of the City and in no event later than thirty (30) Days from
the date of receipt of such request, Grantee shall, free of charge, prepare and furnish to the
City, at the times and in the form prescribed, such additional reports with respect to its
operation, affairs, transactions, or property, as may be reasonably necessary to ensure
compliance with the terms of this Franchise. Grantee and City may in go od faith agree upon
taking into consideration Grantee’s need for the continuing confidentiality as prescribed herein.
Neither City nor Grantee shall unreasonably demand or withhold information requested
pursuant with the terms of this Franchise.
13.4 Confidential and Trade Secret Information. The City shall follow, all Applicable Laws
and procedures for protecting any confidential and trade secret information of Grantee that
may be provided to City. Grantee shall not be relieved of its obligation to provide i nformation
or data required under this Franchise simply because the City may not be able to guarantee its
confidentiality. Grantee acknowledges that the City shall at all times comply with the
Minnesota Government Data Practices Act (“MGDPA”) related to t he release of information
and nothing herein shall be read to modify the City’s obligations under the MGDPA.
13.5 Communications with Regulatory Agencies.
(a) Upon written request, Grantee shall submit to City copies of any pleading,
applications, notifications, communications and documents of any kind, submitted by
Grantee or its Affiliates to any federal, state or local courts, regulatory agencies and
other government bodies if such documents directly relate to the operations of
Grantee’s Cable System within the Franchise Area. Grantee shall submit such
documents to City no later than thirty (30) Days after receipt of City’s request. Grantee
shall not claim confidential, privileged or proprietary rights to such documents unless
under Applicable Law such documents have been determined to be confidential by a
court of competent jurisdiction, or a federal or state agency. With respect to all other
reports, documents and notifications provided to any federal, state or local regulatory
agency as a routine matter in the due course of operating Grantee’s Cable System
within the Franchise Area, Grantee shall make such documents available to City upon
City’s written request.
(b) In addition, Grantee and its Affiliates shall within ten (10) Days of any
communication to or from any judicial or regulatory agency regarding any alleged or
actual violation of this Franchise, City regulation or other requirement relating to the
System, use its best efforts to provide the City a copy of the communication, whether
specifically requested by the City to do so or not.
SECTION 14 Customer Service Policies
14.1 Response to Customers and Cooperation with City. Grantee shall promptly respond to
all requests for service, repair, installation and information from Subscribers. Grantee
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acknowledges the City’s interest in the prompt resolution of all cable complaints and shall work
in close cooperation with the City to resolve complaints. Grantee shall provide the City with the
name, address and telephone number of an office that will act as the Grantee’s agent to receive
complaints, regarding quality of service, equipment malfunctions, billings, and similar matters.
Grantee will maintain an “escalated complaint process” to address unresolved complaints from
Subscribers. A team of specifically identified employees of Grantee shall be available to the City
via email and telephone for reporting issues. These specifically identified employees of Grantee
will have the ability to take actions to resolve Subscriber complaints relating to billing, property
or service restoration, technical appointments, or any other Subscriber matters when
necessary. Grantee will follow-up with the City in writing by email (and by phone when
necessary) with a summary of the results of the complaint(s).
14.2 Customer Service Agreement and Written Information. Grantee shall provide to
Subscribers a comprehensive service agreement and information in writing for use in
establishing Subscriber service. Written information shall, at a minimum, contain the following
information:
(a) Services to be provided and rates for such services.
(b) Billing procedures.
(c) Service termination procedure.
(d) Change in service notifications.
(e) Converter/Subscriber terminal equipment policy.
(f) How complaints are handled including Grantee’s procedure for investigation and
resolution of Subscriber complaints.
(g) The name, address, and phone number of the Person identified by the City as
responsible for handling cable questions and complaints for the City. This information
shall be prominently displayed, and Grantee shall submit the information to the City for
review and approval as to its content and placement on Subscriber billing statements. A
copy of the written information shall be provided to each Subscriber at the time of
initial connection and any subsequent reconnection.
14.3 Reporting Complaints.
(a) The requirements of this Section 14.3 shall be subject to federal law regarding
Subscriber privacy. Grantee shall maintain all Subscriber data available for City
inspection. Subscriber data shall include the date, name, address, telephone number of
Subscriber complaints as well as the subject of the complaint, date and type of action
taken to resolve the complaint, any additional action taken by Grantee or the
Subscriber. The Grantee shall provide City with reasonable access to the info rmation
maintained by Grantee pursuant to this Section 14.3, subject to federal law regarding
Subscriber privacy.
(b) Subject to federal law and upon reasonable request by the City, Grantee shall,
within a reasonable amount of time, provide City with such Subscriber data for its review.
14.4 Customer Service Standards.
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(a) The City hereby adopts the customer service standards set forth in Part 76,
(§76.309) of the FCC’s rules and regulations, as amended.
(b) Grantee shall provide City with information which shall describe in detail
Grantee’s compliance with each and every term and provision of Section 14.6.
(c) Grantee shall comply in all respects with the customer service requirements
established by the FCC and those set forth herein. The City reserves the right to enact
additional consumer protection laws or requirements to the extent such requirements
are not inconsistent with, and preempted by, the FCC’s customer service standards.
14.5 Local Office. Grantee shall maintain a convenient local customer service and bill
payment location for matters such as receiving Subscriber payments, handling billing questions,
equipment replacement and customer service information.
14.6 Cable System Office Hours and Telephone Availability . Grantee shall comply with the
standards and requirements for customer service set forth below during the term of this
Franchise.
(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.
(e) Customer service center and bill payment locations will be open at least during
Normal Business Hours and will be conveniently located.
(f) The Grantee shall utilize such equipment and software and keep such records as
are necessary or required to enable the City to determine whether the Grantee is
complying with all telephone answering standards required by applicable customer
service regulations and laws, as amended from time to time.
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14.7 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. “Standard” Installations are those that are located up to one
hundred twenty-five (125) feet from the existing distribution system as more specifically
set forth in Section 6.8(b).
(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.)
(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.
14.8 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.
14.9 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.
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(b) In case of a billing dispute, Grantee must respond to a written complaint from a
Subscriber within thirty (30) Days.
14.10 Subscriber Information.
(a) Grantee will provide written information on each of the following areas at the
time of installation of Cable Service, at least annually to all Subscribers, and at any time
upon request:
(i) Products and services offered;
(ii) Prices and options for programming services and conditions of
subscription to programming and other services;
(iii) Installation and service maintenance policies;
(iv) Instructions on how to use the Cable Service;
(v) Channel positions of programming carried on the System; and
(vi) Billing and complaint procedures, including the address and telephone
number of the City’s office.
(b) Subscribers shall be advised of the procedures for resolution of complaints about
the quality of the television signal delivered by Grantee, includin g the address of the
responsible officer of the City. Subscribers will be notified of any changes in rates,
programming services or Channel positions as soon as possible in writing. Notice must
be given to Subscribers a minimum of thirty (30) Days in advance of such changes if the
change is within the control of Grantee. In addition, Grantee shall notify Subscribers
thirty (30) Days in advance of any significant changes in the information required by this
Section 14.10.
14.11 Notice of Rate or Programming Changes. Grantee shall give thirty (30) Days written
notice to both Subscribers and the City before implementing any rate or Service change within
the control of Grantee. For the purpose of this section a “Service change” shall not include
channel additions or moves that do not impact rates. 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 Chan nels).
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.
14.12 Subscriber Contracts. Grantee shall, upon written request, provide the City with any
standard form residential Subscriber contract utilized by Grantee. If no such written con tract
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 and a
current Channel line-up showing all Channels available in the City shall be maintained on file
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with City and shall be available for public inspection. Grantee shall also provide on a monthly
basis a copy of a sample Subscriber bill to the City.
14.13 Refund Policy. If a Subscriber’s Cable Service is interrupted or discontinued, without
cause, for twenty-four (24) or more consecutive hours, Grantee shall, upon request by the
Subscriber, credit such Subscriber pro rata for such interruption. For this purpose, every month
will be assumed to have thirty (30) Days.
14.14 Late Fees. Grantee shall comply with all Applicable 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.
14.15 Disputes. All Subscribers and members of the general public may direct complaints,
regarding Grantee’s service or performance to the chief administrative officer of the City or the
chief administrative officer’s designee, which may be a board or a commission of the City.
14.16 Subscriber Bills. Subscriber bills shall be designed in such a way as to present the
information contained therein clearly and comprehensibly to Subscribers, and in a way that: (A)
is not misleading; and (B) does not omit material informat ion. Notwithstanding anything to the
contrary in Section 14.9, above, Grantee may, in its sole discretion, consolidate costs on
Subscriber bills as may otherwise be permitted by Section 622(c) of the Cable Act (47 U.S.C. §
542(c)).
14.17 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.
14.18 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 14.2, the twenty-four (24) hour Grantee phone number for Subscriber complaints.
Additionally, Grantee shall provide information to Subscribers concerning the procedures to
follow when they are unsatisfied with measures taken by Grantee to remedy their complaint.
This information will include the phone number of the City office or Person designated to
handle complaints. Additionally, Grantee shall state that complaints should be made to
Grantee prior to contacting the City.
14.19 Subscriber Privacy.
(a) To the extent required by Minnesota Statutes § 238.084 Subd. 1(s) Grantee shall
comply with the following:
(i) 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
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renew such permission. The permission shall be revocable at any time by the
Subscriber without penalty of any kind whatsoever.
(ii) No information or data obtained by monitoring transmission of a signal
from a Subscriber terminal, including but not limited to lists of the names and
addresses of Subscribers or any lists that identify the viewing habits of
Subscribers shall be sold or otherwise made available to any party other than to
Grantee or its agents for Grantee’s business use, and also to the Subscriber
subject of that information, unless Grantee has received specific written
permission from the Subscriber to make such data available. The request for
permission must be contained in a separate document with a prominent
statement that the Subscriber 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.
(iii) Written permission from the Subscriber shall not be required for the
conducting of system wide or individually addressed electronic sweeps for the
purpose of verifying System integrity or monitoring for the purpose of billing.
Confidentiality of such information shall be subject to the provision set forth in
subparagraph (ii) of this section.
14.20 Grantee Identification. Grantee shall provide all customer service technicians and all
other Grantee employees entering private property with appropriate picture identification so
that Grantee employees may be easily identified by the property owners and Subscrib ers.
SECTION 15 Subscriber Practices
15.1 Subscriber Rates. There shall be no charge for disconnection of any installation or
outlet. If any Subscriber fails to pay a properly due monthly Subscriber fee, or any other
properly due fee or charge, Grantee may disconnect the Subscriber’s service outlet, provided,
however, that such disconnection shall not be affected until after the later of: (i) forty-five (45)
Days after the original due date of said delinquent fee or charge; or (ii) ten (10) Days after
delivery to Subscriber of written notice of the intent to disconnect. If a Subscriber pays before
expiration of the later of (i) or (ii), Grantee shall not disconnect. After disconnection, upon
payment in full of the delinquent fee or charge and the payment of a reconnec tion charge,
Grantee shall promptly reinstate the Subscriber’s Cable Service.
15.2 Refunds to Subscribers shall be made or determined in the following manner :
(a) If Grantee fails, upon request by a Subscriber, to provide any service then being
offered, Grantee shall promptly refund all deposits or advance charges paid for the
service in question by said Subscriber. This provision does not alter Grantee’s
responsibility to Subscribers under any separate contractual agreement or relieve
Grantee of any other liability.
(b) If any Subscriber terminates any monthly service because of failure of Grantee to
render the service in accordance with this Franchise, Grantee shall refund to such
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Subscriber the proportionate share of the charges paid by the Subscriber for the
services not received. This provision does not relieve Grantee of liability established in
other provisions of this Franchise.
(c) If any Subscriber terminates any monthly service prior to the end of a prepaid
period, a proportionate amount of any prepaid Subscriber service fee, using the number
of days as a basis, shall be refunded to the Subscriber by Grantee.
SECTION 16 Compensation and Financial Provisions
16.1 Franchise Fees.
(a) During the term of the Franchise, Grantee shall pay quarterly to the City or its
delegate a Franchise Fee in an amount equal to five percent (5%) of its quarterly Gross
Revenues. If any such law, regulation or valid rule alters the five percent (5%) Franchise
Fee ceiling established by the Cable Act, then the City shall have the authority to (but
shall not be required to) increase the Franchise Fee accordingly, provided such increase
is for purposes not inconsistent with Applicable Law.
(b) Franchise Fees shall be paid quarterly. The payments shall be made to the City
within forty-five (45) Days following the end of each calendar quarter. Grantee shall
include with each quarterly payment a Franchise Fee payment worksheet, in form and
substance substantially similar to Exhibit C, signed by an authorized representative of
Grantee. No acceptance of any payment shall be construed as an accord that the
amount paid is in fact, the correct amount, nor shall such acceptance of payment be
construed as a release of any claim which the City may have for further or additional
sums payable under the provisions of this section.
(c) Neither current nor previously paid Franchise Fees shall be subtracted from the
Gross Revenue amount upon which Franchise Fees are calculated and due for any
period, unless otherwise required by Applicable Law.
(d) Any Franchise Fees owing pursuant to this Franchise which remain unpaid after
the due dates specified herein shall be delinquent and shall immediately begin to accrue
interest at twelve percent (12%) per annum or two percent (2%) above prime lending
rate as quoted by the Wall Street Journal, whichever is greater.
16.2 Auditing and Financial Records. Throughout the term of this Franchise, the Grantee
agrees that the City or its designee, upon reasonable prior written notice of twenty (20) Days to
the Grantee, may review such of the Grantee’s books and records regarding the operation of
the Cable System and the provision of Cable Service in the Franchise Area which are reasonably
necessary to monitor and enforce Grantee’s compliance with the provisions of this Franchise.
Grantee shall provide such requested information as soon as possible and in no event more
than twenty (20) Days unless Grantee explains that it is not feasible to meet this timeline and
provides a written explanation for the delay and an estimated reasonable date for when such
information will be provided. All such documents pertaining to financial matters that may be
the subject of an inspection by the City shall be retained by the Grantee for a minimum period
of seven (7) years, pursuant to Minnesota Statutes § 541.05. The Grantee shall not deny the
City access to any of the Grantee’s records on the basis that the Grantee’s records are under
the control of any parent corporation, Affiliated entity or a third party. The City may request in
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writing copies of any such records or books that are reasonably necessary, and the Grantee
shall provide such copies within thirty (30) Days of the receipt of such request. One (1) copy of
all reports and records required under this or any other section shall be furnished to the City at
the sole expense of the Grantee. If the requested books and records are too voluminous, or for
security reasons cannot be copied or removed, then the Grantee may request, in writing within
ten (10) Days of receipt of such request, that the City inspect them at the Grantee’s local offices
or at one of Grantee’s offices more convenient to City or its duly authorized agent. If any books
or records of the Grantee are not kept in such office and not made available in copies to the
City upon written request as set forth above, and if the City determines that an examination of
such records is necessary for the enforcement of this Franchise, then all reasonable travel
expenses incurred in making such examination shall be paid by the Grantee.
16.3 Review of Record Keeping Methodology. Upon request, Grantee agrees to meet with a
representative of the City or its designee to review its methodology of record -keeping, financial
reporting, computing Franchise Fee obligations, and other procedures the understanding of
which the City deems necessary for understanding the meaning of reports and records.
16.4 Audit of Records. The City or its authorized agent may at any time and at the City’s own
expense conduct an independent audit of the revenues of Grantee in order to verify the
accuracy of Franchise Fees or PEG Fees paid to the City. Grantee and each parent company of
Grantee shall cooperate fully in the conduct of such audit. In the event it is determined
through such audit that Grantee has underpaid Franchise Fees in an amount of five percent
(5%) or more than was due the City, then Grantee shall reimburse the City for the entire cost of
the audit within thirty (30) Days of the completion and acceptance of the audit by the City.
16.5 Records to be reviewed. The City agrees to request access to only those books and
records, in exercising its rights under this section, which it deems reasonably necessary for the
enforcement and administration of the Franchise.
16.6 Indemnification by Grantee. Grantee shall, at its sole expense, fully indemnify, defend
and hold harmless the City, and in their capacity as such, the officers, agents and employees
thereof (collectively the “Indemnified Parties”), from and against any and all claims, suits,
actions, demands, liability and judgments for damage or otherwise except those arising wholly
from negligence on the part of the Indemnified Parties; for actual or alleged injury to Persons or
property, including loss of use of property due to an occurrence, whether or not such property
is physically damaged or destroyed, in any way arising out of or through or alleged to arise out
of or through the acts or omissions of Grantee or its officers, agents, employees, or contractors
or to which Grantee’s or its officers, agents, employees or contractors acts or omissions in any
way contribute, and whether or not such acts or omissions were authorized or contemplated by
this Franchise or Applicable Law; arising out of or alleged to arise out of any claim for damages
for Grantee’s invasion of the right of privacy, defamation of any Person, firm or corporation, or
the violation of infringement of any copyright, trademark, trade name, service mark or patent,
or of any other right of any Person, firm or corporation; arising out of or alleged to arise out of
Grantee’s failure to comply with the provisions of any Applicable Law. Nothing herein shall be
deemed to prevent the Indemnified Parties from participating in the defense of any litigation by
their own counsel at such parties’ expense. Such participation shall not under any
circumstances relieve Grantee from its duty of defense against liability or of paying any
judgment entered against the Indemnified Parties.
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16.7 Grantee Insurance. Upon the Effective Date, Grantee shall, at its sole expense take out
and maintain during the term of this Franchise public liability insurance with a company
licensed to do business in the State of Minnesota with a rating by A.M. Best & Co. of not less
than “A-” that shall protect the Grantee, City and its officials, officers, directors, employees and
agents from claims which may arise from operations under this Franchise, whether such
operations be by the Grantee, its officials, officers, directors, employees and agents or any
subcontractors of Grantee. This liability insurance shall include, but shall not be limited to,
protection against claims arising from bodily and personal injury and damage to property,
resulting from Grantee’s vehicles, products and operations. The amount of insurance for single
limit coverage applying to bodily and personal injury and property damage shall not be less
than Four Million Dollars ($4,000,000). The liability policy shall include:
(a) The policy shall provide coverage on an “occurrence” basis.
(b) The policy shall cover personal injury as well as bodily injury.
(c) The policy shall cover blanket contractual liability subject to the standard
universal exclusions of contractual liability included in the carrier’s standard
endorsement as to bodily injuries, personal injuries and property damage.
(d) Broad form property damage liability shall be afforded.
(e) City shall be named as an additional insured on the policy.
(f) An endorsement shall be provided which states that the coverage is primary
insurance with respect to claims arising from Grantee’s operations under this Franchise
and that no other insurance maintained by the City will be called upon to contribute to a
loss under this coverage.
(g) Standard form of cross-liability shall be afforded.
(h) An endorsement stating that the policy shall not be canceled without thirty (30)
Days’ notice of such cancellation given to City.
(i) City reserves the right to adjust the insurance limit coverage requirements of this
Franchise no more than once every three (3) years. Any such adjustment by City will be
no greater than the increase in the State of Minnesota Consumer Price Index (all
consumers) for such three (3) year period.
(j) Upon the Effective Date, Grantee shall submit to City a certificate documenting
the required insurance, as well as any necessary properly executed endorsements. The
certificate and documents evidencing insurance shall be in a form acceptable to City and
shall provide satisfactory evidence that Grantee has complied with all insurance
requirements. Renewal certificates shall be provided to City prior to the expiration date
of any of the required policies. City will not be obligated, however, to review such
endorsements or certificates or other evidence of insurance, or to advise Grantee of any
deficiencies in such documents and receipt thereof shall not relieve Grantee from, no r
be deemed a waiver of, City’s right to enforce the terms of Grantee’s obligations
hereunder. City reserves the right to examine any policy provided for under this
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paragraph or to require further documentation reasonably necessary to form an opinion
regarding the adequacy of Grantee’s insurance coverage.
SECTION 17 Miscellaneous Provisions
17.1 Posting and Publication. The Summary of Ordinance for Publication (“Summary”)
attached hereto as Exhibit D shall be published at least once in the official newspaper of the
City. Grantee shall assume the cost of posting and publication of the Summary as such posting
and publication is required by law and such is payable upon Grantee’s filing of acceptance of
this Franchise.
17.2 Guarantee of Performance. Grantee agrees that it enters into this Franchise voluntarily
in order to secure and in consideration of the grant from the City of a ten (10) year Franchise.
Performance pursuant to the terms and conditions of this Franchise is guaranteed by Grantee.
17.3 Minnesota Statutes. This Franchise cannot be changed orally but only by an instrument
in writing executed by the parties. This Franchise is made pursuant to Minnesota Statutes
Chapter 238 and the City Code and is intended to comply with all requirements set forth therein.
17.4 Consent. Wherever the consent or approval of either Grantee or the City is specifically
required in this agreement, such consent or approval shall not be unreasonably withheld.
17.5 Prior Franchise Terminated. The cable franchise originally granted by Ordinance No.
2309-06 is hereby terminated. Nothing herein shall serve to waive any rights the parties may
have under previous agreements subject only to the applicable state statute of limitations.
17.6 Franchise Acceptance. No later than thirty (30) Days following City Council approval of
this Franchise, Grantee shall execute and return to the City two (2) original franchise agreements.
The executed agreements shall be returned to the City accompanied by performance bonds and
evidence of insurance, all as provided in this Franchise. In the event Grantee fails to accept this
Franchise, or fails to provide the required documents, this Franchise shall be null and void. The
Grantee agrees that despite the fact that its written acceptance may occur after the Effective
Date, the obligations of this Franchise shall become effective on the Effective Date.
17.7 Amendment of Franchise. Grantee and City may agree, from time to time, to amend
this Franchise. Such written amendments may be made to address technology changes or
advances subsequent to a review session pursuant to Section 2.6 or at any other time if City
and Grantee agree that such an amendment will be in the public interest or if such an
amendment is required due to changes in federal, state or local laws; provided, however,
nothing herein shall restrict City’s exercise of its police powers.
17.8 Notice. All notices, reports, or demands required to be given in writing under this
Franchise shall be deemed to be given when delivered personally to any officer of the Grantee
or the City’s administrator of this Franchise during Normal Business Hours or forty -eight (48)
hours after it is deposited in the United States mail in a sealed envelope, with registered or
certified mail postage prepaid thereon, addressed to the party to whom notice is being given,
as follows:
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If to City: City Manager
City of St. Louis Park
5005 Minnetonka Boulevard
St. Louis Park, MN 55416
If to Grantee: General Manager
Comcast
10 River Park Plaza
St. Paul, MN 55107
Such addresses may be changed by either party upon notice to the other party given as
provided in this section.
Recognizing the widespread usage and acceptance of electronic forms of communication,
emails will be acceptable as formal notification related to the conduct of general business
amongst the parties to this contract, including but not limited to programming and price
adjustment communications. Such communication should be addressed and directed to the
Person of record as specified above.
17.9 Force Majeure. In the event that either party is prevented or delayed in the
performance of any of its obligations, under this Franchise by reason of acts of God, floods, fire,
hurricanes, tornadoes, earthquakes, or other unavoidable casualties, insurrection, war, riot,
vandalism, strikes, delays in receiving permits where it is not the fault of Grantee, public
easements, sabotage, acts or omissions of the other party, or any other similar event beyond
the reasonable control of that party, it shall have a reasonable time under th e circumstances to
perform such obligation under this Franchise, or to procure a substitute for such obligation to
the reasonable satisfaction of the other party.
17.10 Work of Contractors and Subcontractors. Work by contractors and subcontractors is
subject to the same restrictions, limitations and conditions as if the work were performed by
Grantee. Grantee shall be responsible for all work performed by its contractors and
subcontractors, and others performing work on its behalf as if the work were performed by it
and shall ensure that all such work is performed in compliance with this Franchise, the City
Code and other Applicable Law, and shall be jointly and severally liable for all damages and
correcting all damage caused by them. It is Grantee’s responsib ility to ensure that contractors,
subcontractors or other Persons performing work on Grantee’s behalf are familiar with the
requirements of this Franchise, the City Code and other Applicable Laws governing the work
performed by them.
17.11 Governing Law. This Franchise shall be deemed to be executed in the State of
Minnesota, and shall be governed in all respects, including validity, interpretation and effect,
and construed in accordance with, the laws of the State of Minnesota, as applicable to
contracts entered into and performed entirely within the state.
17.12 Nonenforcement by City. Grantee shall not be relieved of its obligation to comply with
any of the provisions of this Franchise by reason of any failure of the City or to enforce prompt
compliance.
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17.13 Captions. The paragraph captions and headings in this Franchise are for convenience
and reference purposes only and shall not affect in any way the meaning of interpretation of
this Franchise.
17.14 Calculation of Time. Where the performance or doing of any act, duty, matter,
payment or thing is required hereunder and the period of time or duration for the performance
is prescribed and fixed herein, the time shall be computed so as to exclude the first and include
the last Day of the prescribed or fixed period or duration of time. When the last Day of the
period falls on Saturday, Sunday or a legal holiday that Day shall be omitted from the
computation and the next business Day shall be the last Day of the period.
17.15 Rights Cumulative. All rights and remedies given to the City by this Franchise or
retained by the City herein shall be in addition to and cumulative with any and all other rights
and remedies, existing or implied, now or hereafter available to the City, at law or in equity, and
such rights and remedies shall not be exclusive, but each and every right and remedy
specifically given by this Franchise or otherwise existing or given may be exercised from time to
time and as often and in such order as may be deemed expedient by the City and the exercise
of one or more rights or remedies shall not be deemed a waiver of the right to exercise at the
same time or thereafter any other right or remedy.
17.16 Grantee Acknowledgment of Validity of Franchise. Grantee acknowledges that it has
had an opportunity to review the terms and conditions of this Franchise and that under current
law Grantee believes that said terms and conditions are not unreasonable or arbitrary, and that
Grantee believes the City has the power to make the terms and conditions contained in this
Franchise. Grantee agrees that it will not, at any time, set up against the City in any claim or
proceeding, any condition or term of the Franchise as unreasonable, arbitrary, void as of the
Effective Date of this Franchise or that the City had no power or authority to make such term or
condition.
17.17 Survival of Terms. Upon the termination or forfeiture of the Franchise, Grantee shall no
longer have the right to occupy the Right-of-Ways for the purpose of providing Cable Service.
However, Grantee’s obligations to the City (other than the obligation to provide service to
Subscribers) shall survive according to their terms.
17.18 Competitive Equity.
(a) The City reserves the right to grant additional franchises or similar authorizations
to provide Video Programming services via Cable Systems or other Wireline MVPDs.
The City intends to treat Wireline MVPDs in a nondiscriminatory manner to the extent
permissible under Applicable Law. If, following the Effective Date of this Franchise, the
City grants such an additional franchise or authorization to a Wireline MVPD and
Grantee believes the City has done so on terms materially more favorable than the
obligations under this Franchise, then the provisions of this Section 17.18 will apply.
(b) As part of this Franchise, the City and Grantee have mutually agreed upon the
following terms as a condition of granting the Franchise, which terms may place the
Grantee at a significant competitive disadvantage if not required of a Wireline MVPD:
the obligation to pay to the City a Franchise Fee, Gross Revenues as provided for and
defined in this Franchise, and the obligation to comply with the requirements in this
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Ordinance No. 2612-21 43
Franchise regarding PEG funding, PEG Channels, records and reports, security
instruments, audits, dispute resolution, remedies, notice and opportunity to cure, and
customer service obligations (hereinafter “Material Obligations”). The City and Grantee
further agree that this provision shall not require a word for word identical franchise or
authorization for competitive equity so long as the regulatory and financial burdens on
each entity are materially equivalent.
(c) Within one (1) year of the adoption of a Wireline MVPD franchise or similar
authorization, Grantee must notify the City in writing of the Material Obligations in this
Franchise that Grantee believes exceed the Material Obligations of the wireline
competitor’s franchise or similar authorization. The City and Grantee agree that they
will use best efforts in good faith to negotiate Grantee’s proposed Franchise
modifications, and that such negotiation will proceed and conclude within a ninety (90)
Day time period, unless that time period is reduced or extended by mutual agreement
of the parties. If the City and Grantee reach agreement on the Franchise modifications
pursuant to such negotiations, then the City shall amend this Franchise to include the
modifications. If the City and Grantee fail to reach agreement in such negotiations,
Grantee may, at its option, elect to replace this Franchise by opting into the franchise or
other similar lawful authorization that the City grants to another Wireline MVPD (with
the understanding that Grantee may use its current system design and technology
infrastructure to meet any requirements of the new franchise), so as to ensure that the
regulatory and financial burdens on each entity are equivalent. If Grantee so elects, the
City shall immediately commence proceedings to replace this Franchise with the
franchise issued to the other Wireline MVPD. Notwithstanding anything contained in
this section to the contrary, the City shall not be obligated to amend or replace this
Franchise unless the new entrant makes Cable Services or similar downstream Video
programming service available for purchase by Subscribers or customers under its
franchise agreement with or similar authorization from the City.
(d) In the event the City disputes that the Material Obligations are different,
Grantee may bring an action in federal or state court for a determination as to whether
the Material Obligations are different and as to what franchise amendments would be
necessary to remedy the disparity. Alternatively, Grantee may notify the City that it
elects to immediately commence the renewal process under 47 U.S.C. § 546 and to have
the remaining term of this Franchise shortened to not more than thirty (30) months.
(e) Nothing in this Section 17.18 is intended to alter the rights or obligations of
either party under Applicable Law, and it shall only apply to the extent permitted under
Applicable Law and FCC orders. In no event will the City be required to refund or to
offset against future amounts due the value of benefits already received.
(f) To the extent the City has legal authority to grant a franchise or similar
authorization to a wireless provider of Cable Service, the competitive eq uity rights
provided by this section shall apply with respect to Material Obligations imposed in such
franchise or other similar agreement. In the event of a dispute regarding the City’s legal
authority, Grantee shall have the burden to demonstrate that such authority exists or
does not exist.
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Ordinance No. 2612-21 44
17.19 In-Kind Cable-Related Contributions. In the event the FCC Section 621 Order (Third
Report and Order in MB Docket No. 05-311 adopted by the FCC on August 1, 2019) (herein “621
Order”) is stayed or overturned in whole or in part by action of the FCC or through judicial
review, and franchise-mandated Complimentary Services to public buildings as set forth in
Section 6.5 herein and the PEG transport as provided in Section 7.9(a) and (c) herein are no
longer considered to be “Franchise Fees” under 47 U.S.C. §542, then for the remaining
Franchise term, Grantee shall provide, free of charge, complimentary Basic Cable Service to the
Complimentary Service locations listed in Exhibit A and the PEG transport as provided in Secti on
7.9(a) and (c).
SECTION 18 Effective Date
This ordinance shall take effect May 14, 2021.
First Reading April 5, 2021
Second Reading April 19, 2021
Date of publication April 29, 2021
Date ordinance takes effect May 14, 2021
Reviewed for administration: Adopted by the City Council April 19, 2021
Thomas K. Harmening, city manager Jake Spano, mayor
Attest: Approved as to form and execution:
Melissa Kennedy, city clerk Soren Mattick, city attorney
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Ordinance No. 2612-21 45
Accepted: This Franchise is accepted, and we agree to be bound by its terms and conditions.
Comcast of Minnesota LLC
Date: By:
Its:
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VP
5/17/2021
Ordinance No. 2612-21 46
EXHIBIT A
LIST OF FREE SERVICE TO BUILDINGS
Building Name Address
1. St. Louis Park City Hall 5005 Minnetonka Boulevard St. Louis Park, MN 55416
2.
St. Louis Park Recreation Center and
Wolfe Park Pavilion 3700 Monterey Drive St. Louis Park, MN 55416
3. Municipal Service Center 7305 Oxford Street St. Louis Park, MN 55426
4. Fire Station One 3750 Wooddale Avenue St. Louis Park, MN 55416
5. Fire Station Two 2262 Louisiana Avenue St. Louis Park, MN 55426
6. Westwood Hills Nature Center 8300 W. Franklin Avenue St. Louis Park, MN 55426
7. Police Station 3015 Raleigh Avenue St. Louis Park, MN 55416
8.
The Shops at West End Police
Substation* 1623 West End Boulevard St. Louis Park, MN 55416
9. Excelsior & Grand Police Substation 4717 Park Commons Drive St. Louis Park, MN 55416
10.
The Shoppes at Knollwood Police
Substation* 8332 Highway 7 St. Louis Park, MN 55426
ISD 283:
11. Lenox Community Center 6715 Minnetonka Blvd St. Louis Park, MN 55426
12. Aquila Elementary School 8500 West 31st Street St. Louis Park, MN 55426
13. Peter Hobart Elementary School 6500 West 26th Street St. Louis Park, MN 55416
14. Susan Lindgren Elementary School 4801 West 41st Street St. Louis Park, MN 55416
15. Park Spanish Immersion School 9400 Cedar Lake Road St. Louis Park, MN 55426
16. St. Louis Park Middle School 2025 Texas Avenue South St. Louis Park, MN 55426
17. St. Louis Park High School 6425 West 33rd Street St. Louis Park, MN 55416
18. Central Community Center 6300 Walker Street St. Louis Park, MN 55416
* Following the outcome of the appeal of the 621 Order consistent with Section 17.19 of this Franchise, and upon
the City’s written request, Grantee shall, if permitted by Applicable Law, provide Complimentary Service to locations
#8 and #10 above.
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Ordinance No. 2612-21 47
EXHIBIT B
PEG TRANSPORT
Building Name Address
1. City Hall 5005 Minnetonka Boulevard
2. St. Louis Park High School 6425 West 33rd Street
3. St. Louis Park High School Football Field 6525 West Lake Street
4. Rec Center, Amphitheatre and the Banquet Room 3700 Monterey Drive
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Ordinance No. 2612-21 48
EXHIBIT C
FRANCHISE FEE PAYMENT WORKSHEET
TRADE SECRET – CONFIDENTIAL
PEG Fee Factor: 2%
PEG Fee
Nothing in this Franchise Fee Payment Worksheet shall serve to modify the definition of “Gross Revenues” set forth in
the Franchise.
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