04/04/2016 - City Council Finance CommitteeFINANCE COMMITTEE MEETING
MONDAY, APRIL 4, 2016
12:00 p.m.
CITY HALL
SECOND FLOOR CONFERENCE
AGENDA
I. AGENDA ADOPTION
II. CABLE FRANCHISE AGREEMENTS UPDATE
III. OTHER BUSINESS
IV. ADJOURNMENT
Agenda Information Memo
Finance Committee Meeting
Monday, April 4, 2016
III. CABLE FRANCHISE AGREEMENTS UPDATE
ACTION TO BE CONSIDERED:
Hear overview of CenturyLink Cable Franchise negotiations and provide direction to staff
whether franchise is ready to be brought forward to the full City Council for public hearing and
action on April 19, 2016.
FACTS:
• As detailed more fully in the draft Resolution attached, last spring the City of Eagan
received an inquiry from CenturyLink about initiating proceedings to obtain a cable
franchise from the City.
• Notices of intent to solicit franchise proposals were published by the City in June, and in
July a proposal was received from CenturyLink (but not Comcast or any other providers)
and on July 21 a public hearing was held to determine CenturyLink's application and
review its qualifications to operate a cable system within the franchise territory.
• The City Council determined that CentryLink was a qualified applicant and negotiations
with staff and our franchise attorney, Mr. Brian Grogan, of Moss & Barnett, commenced
with the company.
• Communications Director Garrison and Attorney Grogan believe those negotiations
have resulted in a franchise document with several advantages for the City and that the
franchise is ready for Council action pending Finance Committee review and
concurrence.
• Please review the attached memo from Mr. Grogan, the proposed Findings of Fact and
Resolution, and the franchise document itself.
• Mr. Grogan and Director Garrison will provide a brief overview and be available for
questions. If time permits, they would also like to provide an update on negotiations
with Comcast.
ATTACHMENTS: (4)
• Franchise Memo
• Proposed Findings of Fact
• Draft Slide Presentation for Council
• Draft Franchise
MEMORANDUM
To: Finance Committee and City Council - City of Eagan, Minnesota
From: Brian Grogan, Esq.
Date: March 21, 2016
Re: Competition in Cable Communications Franchising
Executive Summary
The City of Eagan, Minnesota ("City') is considering the grant of a competitive cable
franchise to Qwest Broadband Services, Inc., d/b/a CenturyLink ("CenturyLink') in a service
area for which Comcast holds an existing franchise. This memorandum is intended to assist the
Finance Committee and the City Council to consider the proposed CenturyLink Cable Television
Franchise Ordinance ("CenturyLink Franchise's by summarizing the legal issues surrounding its
terms that relate to competition in the cable communications industry.
Details
The City previously adopted a resolution finding CenturyLink to be legally, technically
and financially qualified to provide cable communication services to residents of the City. In
connection with that finding, the City Council authorized staff to negotiate with CenturyLink to
seek mutually acceptable terms for the CenturyLink Franchise. Those negotiations are now
complete and have resulted in the proposed CenturyLink Franchise enclosed as Exhibit 1. City
staff also prepared for the Finance Committee's and City Council's review and consideration,
written "findings of fact," enclosed as Exhibit 2, setting forth the factual and legal basis for the
grant of the CenturyLink Franchise and the impact of relevant state and federal competitive
cable franchise laws and regulations.
150 South Fifth Street I Suite 1200 Minneapolis, MN 55402
P:612-877-5000 F:612-877-5999 W:LawMoss.com
City of Eagan, Minnesota
March 21, 2016
Page 2
Build -out
To help promote competition in and minimize unnecessary regulatory burdens on the
communications industry, the Cable Communications Policy Act of 1984, as amended by the
Consumer Protection and Competition Act of 1992 and Telecommunications Act of 1996 (the
"Cable Act') prohibits local franchising authorities from granting exclusive cable communications
franchises or unreasonably refusing to award an additional franchise to a qualified applicant.'
Federal Communications Commission ("FCC's, which administers the Cable Act, addressed
competitive cable franchising in its 2007 Report and Order and Further Notice of Rulemaking
(generally referred to as the "621 Order" after its subject, Section 621 of the legislation that
became the Cable Act). The 621 Order explained that an unreasonable refusal in contravention
the Cable Act could occur not only by outright denial of a franchise application, but also by
conditions that operate as de facto denials.
One variety of de facto denial addressed by the 621 Order is the imposition of
unreasonable build out requirements that act as a barrier for an additional cable provider to
enter a market with an existing franchise:
Build -out requirements deter market entry because a new entrant generally must
take customers from the incumbent cable operator .... Because the second
provider realistically cannot count on acquiring a share of the market similar to
incumbent's share, the second entrant cannot justify a large initial deployment.
Rather, a new entrant must begin offering service within a smaller area to
determine whether it can reasonably ensure a return on its investment before
expanding.'
' 47 U.S.C. § 541(a)(1).
2 621 Order at ¶ 35.
City of Eagan, Minnesota
March 21, 2016
Page 3
The 621 Order did not prohibit all build out requirements, but instead provided examples of
unreasonable build out requirements - and of reasonable ones, such as a small initial
and required expansion triggered by market success.'
Minnesota Statutes Chapter 238, which establishes statewide cable communications
requirements, also addresses build out by requiring "a provision in initial franchises identifying.
a schedule showing: ... that construction throughout the authorized franchise area must be
substantially completed within five years of the granting of the franchise."4 CenturyLink takes
position that Minnesota's five year build out requirement is unreasonable under the 621 Order
is therefore preempted by the federal law. Comcast disagrees and points to the FCC's recent
reaffirmation that the 621 Order's rulings "were intended to apply only to the local franchising
process and not to franchising laws and decisions at the state level.i5
The CenturyLink Franchise addresses this issue by requiring a modest initial deployment
(at least 15% of the service area within two years) and linking build out requirements to
market -success benchmarks that CenturyLink must use its best efforts to meet, but granting the
City's sole discretion to determine, at the end of five years, whether CenturyLink has fulfilled its
build out obligations to qualify for renewal of the franchise.6
Competitive Equity
The Minnesota Cable Communications Statutes also contain a general level -playing -field
(i.e., "competitive equity') provision that requires that an additional franchise include no terms
conditions "more favorable or less burdensome than those in the existing franchise pertaining
(1) the area served; (2) public, educational, or governmental access requirements; or (3)
' Id, at ¶ 89-90.
4 Minn. Stat. § 238.084, subd. 1(m).
5 621 Order at ¶ 7, cited in letter dated July 20, 2015
6 CenturyLink Franchise §§ 2.7 and 2.9.
City of Eagan, Minnesota
March 21, 2016
Page 4
fees."7 Minnesota courts have interpreted this provision as requiring "substantially similar" -
than identical - terms.$ Several attempts have been made to ensure that the CenturyLink
Franchise is substantially similar to Comcast's existing franchise: first, the Comcast franchise
served as the base document for negotiation of the CenturyLink Franchise; second, the
fee percentage required by the CenturyLink Franchise is identical to that required by Comcast's
franchise; third, the geographic area (after complete build -out) of the CenturyLink Franchise
matches the area specified in Comcast's franchise; and fourth, the CenturyLink Franchise
CenturyLink to require substantially similar - if not greater - public, educational, and
access.
Findings of Fact
As previously indicated, whether the City ultimately grants or denies the proposed
CenturyLink Franchise, it must examine all of the evidence presented to it, weigh the facts, and
apply the correct legal standards. Enclosed as Exhibit 2 are draft findings of fact generally
supporting a decision to approve the CenturyLink Franchise. With the caveat that best practices
dictate that the final findings of fact should respond to any evidence or argument against
approval, the attached findings of fact may serve as a useful starting point if the City Council
elects to grant the CenturyLink Franchise.
31922820
7 Minn. Stat. § 238.08, subd. 1(b).
s See WH Link, LLC v. City of Otsego, 664 N.W.2d 390, 396 (Minn. Ct. App. 2003).
CITY OF EAGAN, MINNESOTA
RESOLUTION NO.
Regarding an Ordinance Granting a Competitive Cable Franchise
to Qwest Broadband Services, Inc., d/b/a CenturyLink
RECITALS:
WHEREAS, the City of Eagan, Minnesota makes the following FINDINGS OF
FACT:
1. In March 2015, Qwest Broadband Services, Inc., d/b/a CenturyLink, Inc.
("CenturyLink") requested that the City of Eagan, Minnesota ("City") initiate
proceedings to consider awarding it a franchise to provide cable communications
services in the City ("Service Territory").
2. Comcast of Minnesota, Inc. ("Comcast") holds a non-exclusive cable
communications franchise for the Service Territory ("Comcast Franchise").
3. The Comcast Franchise, which the City last renewed on or about January 1, 2000,
is currently the only cable communications franchise for the Service Territory.
4. The monopoly held by a sole cable communication provider in a particular market
is a barrier to entry for additional providers, which does not have a captive market
but must instead "win" every subscriber.I
5. The presence of a second cable operator in a market improves the quality of
offerings and drives down prices by approximately fifteen percent (15%).2
6. On June 12, 2015 and June 19, 2015, the City published a Notice of Intent to
Franchise a Cable Communications System ("Notice") in the STW
Burnsville/Eagan, a newspaper of general circulation in the Service Territory.
7. The Notice indicated that the City was soliciting franchise applications and
provided information regarding the application process, including that
applications were required to be submitted on or before July 3, 2015 and that a
public hearing to hear proposals from applicants would be held by the City on
July 21, 2015 at 6:30 PM.
I In the Matter of Section 621(a)(1) of the Cable Communications Policy Act of 1984 as amended by the
Cable Television Consumer Protection and Competition Act of 1992, Report and Order and Further Notice
of Proposed Rulemaking, MB Docket No. 05-311, at ¶ 138 (Rel. Mar. 5, 2007) ("621 Order").
2 Id. at ¶¶ 2, 50.
8. The City also mailed copies of the Notice and application materials to
and Comcast.3
9. On July 1, 2015, the City received an application from CenturyLink (the
"CenturyLink Application"). The City did not receive any other applications.
10. On July 20, 2015, Comcast submitted a letter to the City setting forth its position
regarding the CenturyLink Application ("Comcast Letter").4
11. The Comcast Letter expresses concern about CenturyLink's proposal and how
CenturyLink will be held to particular provisions of the existing Comcast
Franchise.5
12. The Comcast Letter also summarizes Comcast's position regarding build -out
requirements and other proposed terms related to competition in the cable
industry.6
13. As provided by the Notice, on July 21, 2015 the City held a public hearing during
the City's regularly scheduled meeting to consider CenturyLink's application and
qualifications.
14. During the July 21, 2015 hearing, CenturyLink presented its proposal and all
other interested parties were provided an opportunity to speak and present
information to the City regarding the CenturyLink Application.
15. The law firm of Moss & Barnett, a Professional Association prepared a report,
dated July 10, 2015 ("Franchise Report"), reviewing and analyzing the applicable
franchising procedures, the CenturyLink Application and other information
provided by CenturyLink in connection with the July 21, 2015 public hearing.7
16. The Franchise Report identifies and discusses federal and state legal requirements
relevant to the City's consideration of the CenturyLink Application, including
pertaining to franchising procedures and competition between providers.8
17. The Franchise Report also analyzes information provided by CenturyLink to
establish its qualifications to operate a cable communications franchise in the
Service Territory.9
3 Notice by the City of Eagan, Minnesota of Its Intent to Consider An Application for a Franchise and
Request for Proposals - Official Application Form,
4See, July 20, 2015 letter from Emmett V. Coleman to Tom Garrison, Communications Director for the
City, regarding CenturyLink Video Franchise Application.
s Id. at 2.
G Id. at 1-2.
Report to the City of Eagan, Minnesota Regarding Qwest Broadband Services, Inc. d/b/a/ CenturyLink —
Proposal for a Cable Communication Franchise, July 10, 2015.
8 Franchise Report at 2-8.
9Id. at 11-12.
2
18. At its meeting on July 21, 2015, the City considered the Franchise Report, along
with the information and documentation it had received regarding the
CenturyLink Application, and adopted a resolution finding and concluding that
the CenturyLink Application complied with the requirements of Minn. Stat. §
238.081 and that CenturyLink is legally, technically, and financially qualified to
operate a cable communications system within the Service Territory.
19. As a result of its determination that CenturyLink complied with all application
requirements and is a qualified applicant, the City authorized staff to negotiate
with CenturyLink, to attempt to reach mutually acceptable terms for such a
franchise.
20. In Minnesota, both state and federal law govern the terms and conditions of an
additional cable communications franchise in an already -franchised service area. 10
21. The franchising authority may not grant an exclusive franchise or unreasonably
refuse to award an additional competitive franchise. 11
22. The franchising authority must allow an applicant reasonable time to become
capable of providing cable service to all households in the service area. 12
23. The franchising authority may grant an additional franchise in an already -
already -franchised service area if the terms and conditions of the additional
franchise are not "more favorable or less burdensome than those in the existing
franchise" regarding the area served, the PEG access requirements, and franchise
fees. 13
24. The additional franchise must also include, among other things, "a schedule
showing ... that the construction throughout the authorized franchise area must
substantially completed within five years of the granting of the franchise." 14
25. In order to ensure that any additional franchise granted to CenturyLinlc would
contain substantially similar service area, PEG access requirements, and franchise
fee to the Comcast Franchise, the City used the Comcast Franchise as the base
document for its negotiations.
26. On April 5, 2016, the City Council gave notice that it intended to introduce an
ordinance granting a cable communications franchise to CenturyLink.
27. Copies of the CenturyLink Franchise were made available to the public, including
Comcast, on or about April 14, 2016.
28. On April 19, 2016, the City Council introduced Ordinance No. an
Ordinance of the City of Eagan, Minnesota Granting a Cable Communications
1° See 47 U.S.C. § 541(a)(1); Minn. Stat. §§ 238.08,.084; see also Franchise Report at 2-8.
" 47 U.S.C. § 541(a)(1).
12 47 U.S.C. § 541(a)(4).
13 Minn. Stat. § 238.08, subd. 1(b).
14 Minn. Stat. § 238.84, subd. 1(m).
3
Franchise to Qwest Broadband Services, Inc. d/b/a CenturyLink ("CenturyLink
Franchise").
29. The CenturyLink Franchise encompasses the same Service Territory encompassed
by the Comcast Franchise. 15
30. The franchise fee percentage required by the CenturyLink Franchise is identical to
that required by the Comcast Franchise. 16
31. The PEG access requirements in the CenturyLink Franchise mandate certain
obligations, such as HD channel capacity for all PEG channels that go beyond the
commitments made in the Comcast franchise.'7
32. The City recognizes that CenturyLink, which currently offers no cable
communications services in the Service Territory, cannot justify a large initial
deployment because it "realistically cannot count on acquiring a share of the
market similar to Comcast's share ... [and] must begin offering service within a
smaller area to determine whether it can reasonably ensure a return on its
investment before expanding."18
33. The CenturyLink Franchise therefore requires CenturyLink's initial deployment
be capable of serving at least fifteen percent (15%) of the living units in the
Territory within two (2) years. CenturyLink is further required to commit a
significant portion of its initial investment to areas below the median income
the City.19
34. The CenturyLink Franchise permits the City to monitor CenturyLink's progress
and compliance with build -out requirements via quarterly meeting and accelerates
the build -out schedule if CenturyLink has market success, with the goal and
expectation that build -out will be substantially complete before the CenturyLink
Franchise's five (5) year term expires. 20
35. During its regularly scheduled meeting on April 19, 2016, the City Council held a
public hearing at which all interested parties are provided an opportunity to speak
and present information regarding the proposed CenturyLink Franchise.
WHEREAS, the City has considered these facts and the cable -related needs and interests
of the community:
NOW THEREFORE, the City Council for the City of Eagan, Minnesota hereby
resolves as follows:
15 CenturyLink Franchise §2.6; Comcast Franchise § 2.8.
16 CenturyLink Franchise §7.3; Comcast Franchise § 8.3.
17 CenturyLink Franchise §6 and Exhibit A; Comcast Franchise § 6.
18 621 Order at 13 5.
19 CenturyLink Franchise §2.7.
20 CenturyLink Franchise §2.8 - 2.9.
4
1. The foregoing findings are adopted as the official findings of the City Council and
made a part of the official record.
2. The City has authority to adopt an ordinance granting a cable communications
franchise to CenturyLink for the Service Territory.
3. The City may not unreasonably refuse to award a competitive cable
communications franchise to CenturyLink.
4. The City and its residents will benefit from adoption of the CenturyLink
Franchise, which will introduce facilities -based competition into the cable
communications market in the Service Territory and thereby reduce costs to
consumers and increase the quality and availability of services.
5. CenturyLink is legally, technically, and financially qualified to operate a cable
communications system in the Service Territory and has complied with all
application requirements.
6. The City has complied with all franchise application requirements imposed by
state and federal law, including those identified herein or in the Franchise Report.
7. The terms and conditions of the CenturyLink Franchise pertaining to service area,
PEG access requirements, and a franchise fee are not more favorable or less
burdensome than the corollary terms of the Comcast Franchise.
8. The CenturyLink Franchise's initial deployment requirement of fifteen percent
(15%) within two (2) years and five (5) year timeline for substantially completing
build -out provides a reasonable period of time for CenturyLink to become capable
of reaching full deployment and is therefore consistent with both state and federal
law.
9. The Ordinance Granting a Cable Communications Franchise for Qwest
Broadband Services, Inc., d/b/a CenturyLink is formally and finally adopted.
10. The City finds and concludes that its actions are appropriate, reasonable, and
consistent in all respects with the mandates set forth in Chapter 238 of Minnesota
Statutes and applicable provisions of federal law, including 47 U.S.C. § 541(a).
PASSED AND ADOPTED in regular session of the City Council of the City of Eagan,
Minnesota this day of , 2016.
ATTEST:
IN
Christina M. Scipioni, City Clerk
CITY OF EAGAN, MINNESOTA
C
61
Mike Maguire, Mayor
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QWEST BROADBAND SERVICES,
30170400
18,
TABLE OF CONTENTS
TO BE COMPLETED ONCE DOCUMENT IS FINAL
3017040v6
ORDINANCE NO.
AN ORDINANCE GRANTING A FRANCHISE TO QWEST BROADBAND SERVICES,
INC. D/B/A CENTURYLINK TO OPERATE, AND MAINTAIN A CABLE SYSTEM IN THE
CITY OF EAGAN, MINNESOTA FOR THE PURPOSE OF PROVIDING CABLE SERVICE;
PROVIDING FOR REGULATION AND USE OF THE PUBLIC RIGHTS-OF-WAY IN
CONJUNCTION WITH THE CITY CODE, PRESCRIBING PENALTIES FOR THE
VIOLATION OF THE PROVISIONS HEREIN.
The City Council of the City of Eagan, Minnesota ordains:
STATEMENT OF INTENT AND
The City of Eagan, 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
Negotiations between Qwest Broadband S vices,:Inc. d/b/a>.CenturyLink-'("Grantee")
and the City have been completed and the franchise approval process followed in accordance
with the guidelines established by the City Code, Minnesota, Statutes Chapter 238 and the Cable
Act (47 U.S.C.- §546).
Adoption of this Franchise is, in the
City and its residents.
INGS
in the best interests of the
2. Grantee's plansfor operating and maintaining the Cable System were considered
and found adequate and feasible in a full public proceeding after due notice and a
reasonable opportunity to be heard;
The Franchise granted to Grantee by the City complies with the existing
applicable Minnesota Statutes, federal laws and regulations; and
4. The Franchise granted to Grantee is nonexclusive.
SECTION 1. SHORT TITLE AND DEFINITIONS
1. Short Title. This Franchise Ordinance shall be known and cited as the Competitive
Cable Franchise Ordinance.
3017040v6
2. Defmitions. For the purposes of this Franchise, the following terms, phrases, words,
abbreviations and their derivations shall have the meaning 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; words in the singular number
include the plural; and the masculine gender includes the feminine gender. Unless
otherwise expressly stated, words not defined herein or in the City Code shall be given
the meaning set forth in applicable law and, if not defined therein, the words shall be
given their common and ordinary meaning. The word "shall is always mandatory and
not merely directory. The word "may" is directory and discretionary and not mandatory.
a. "Actual Cost" means the incremental cost to the Grantee of materials and labor
necessary to install and construct facilities, fiber or equipment with no markup, to
the extent permitted by applicable law.
b. "Affiliate" means any Person who owns or controls, is owned or controlled by or
is under common ownership or control with the Grantee.
C. "Basic Cable Service" means any service tier which\ncludes the lawful
retransmission of local television broadcast signals and any public, educational,
and governmental access programming required by the Franchise to be carried on
the basic tier. Basic Cable Service as defined herein shall not be inconsistent with
47 U.S.C. § 543(b)(7).
d. "Cable Act" means the Cable Communications Policy Act of 1984, 47 U.S.C. §§
521 et seq., as amended by the Cable Television Consumer Protection and
Competition 1992, as further amended by the Telecommunications Act of
1996, as further
er amended from time to time.
00,
e. Cable Service" or "Service",meas (1) the one-way transmission to Subscribers
of video programming or other programming services; and (2) Subscriber
interaction, if any, which is required for the selection or use of such video
programming or other programming services.
"Cable System" or `ystem" means a system that (1) provides the service of
receiving and amplifying (i) programs broadcast by one or more television or
radio stations and (ii) other programs originated by a Person operating a Cable
System or by another Person, and (2) distributes those programs by wire, cable,
microwave, or other means, regardless of whether the means are owned or leased,
to Persons who subscribe to the service. Unless otherwise specified, it shall in
this document refer to the Cable System used by the Grantee in the City under this
Franchise.
This definition does not include:
a System that serves fewer than fifty (50) Subscribers or a System that
serves more than one thousand (1,000) Subscribers if the governing bodies
of all political subdivisions served by the System, vote by resolution, to
remove the System from the provisions of this chapter; provided that:
2
3017040x6
(A) no part of a System, nor any area within the City served by the
System, may be removed from the provisions of this section if
more than one thousand (1,000) Subscribers are served by the
System; and
(B) any System serving more than fifty (50) but fewer than one
thousand (1,000) Subscribers that has been removed from the
provisions of this section becomes subject to the provisions of this
section if the governing bodies of fifty percent (50%) or more of
the political subdivisions served by the System vote, by resolution,
in favor of the return;
ii. a master antenna television system;
iii. a specialized closed-circuit system that does not use the public Rights -of -
Way for the construction of its physical plant; and
iv. a translator system that receives and rebroadcasts over-theair signals.
g. "Channel" or "Cable Channel" means a portion of the electromagnetic
frequency spectrum available on the System, or such smaller frequency spectrum
as may be specified herein, thaf is.capable of deliverin& cable television channel
as defined in 47 CFR 76.5(r), (s),4:64,, (t), or other applicable FCC regulation. This
may include, but not be limited to, time or frequency slots, or technical
equivalents, discretely identified and capable of carrying full motion, linear, color
video and audio, along with other nonvideo subcarriers and other digital
h. "City" means the City of Eagan, Minnesota, a municipal corporation, in the State
of Minnesota, acting by and through its City Council, or its lawfully appointed
"City Code" means the Eagan City Code, as amended from time to time.
j. `.`City CouncWl means the governing body of the City.
k. "Class IV Cable Channel" means a signaling path provided by a Cable System
to transmit signals of any type from a Subscriber terminal to another point in the
1. "Demarcation Point" For purposes of free Cable Service Drops to public
buildings, a Demarcation Point for Drops shall be a point agreed upon by Grantee
and the City.
in. "Drop" means the cable that connects the ground block on the Subscriber's
residence or institution to the nearest feeder cable of the System.
3017040x6
n. "Eagan Mosaic Channel" means a Channel which displays miniaturized media
screens and related information for a particular group of City PEG Channels. The
Eagan Mosaic Channel serves as a gateway navigation tool for Subscribers, which
displays the group of City PEG Channels on a single Channel screen and also
provides for easy navigation to a chosen City PEG Channel.
o. "Educational Access Channel" or "Educational Channel" means any Channel
on a System set aside by the Grantee, for use by educational institutions, as
contemplated by applicable law.
S. "Franchise Area" means the entire geographic area within the City as it is now
constituted or may in the future be constituted.
t. "Franchise Fee" shall mean thef(
consideration of Grantee's right to
Rights -of -Way, determined in amc
Revenues and _hnuted only by the
assessment by federal law. The to
except on¬ed in'47 U.S.C. §54
by the City to Grantee, in
Cable System within the City's
t as a percentage of Grantee's Gross
Kimura percentage allowed for such
Franchise Fee does not include the
)(2)(A -E) or any other applicable law.
X. "Gross Revenues" means, and shall be construed broadly to include, all amounts
in whatever form and from all sources derived directly or indirectly by Grantee
and/or an Affiliate from the operation of Grantee's Cable System to provide Cable
Services within the Franchise Area. Gross Revenues include, by way of
illustration and not limitation:
4
3017040x6
i. Fees for Cable Services, regardless of whether such Cable Services are
provided to residential or commercial Subscribers, including revenues
derived from the provision of all Cable Services (including but not limited
to pay or premium Cable Services, digital Cable Services, pay-per-view,
pay -per -event, audio channels and video -on -demand Cable Services);
ii. Installation, disconnection, reconnection, downgrade, upgrade,
maintenance, repair, or similar charges associated with Subscriber Cable
Service;
iii. fees paid to Grantee for Channels designated for cornmercial/leased access
use; which shall be allocated on a proportionate basis using total Cable
Service Subscribers within the Franchise Area;
iv. Converter, remote control, and other Cable Service equipment rentals,
leases, or sales;
V. Payments for pre -paid Cable'Services and/or equipment;
vi. Advertising Revenues as defined
vii. Fees including, but not limited to: (1) late fees,redonvenience fees and
administrative fees; and (2) Franchise Fees;,
�f,
viii. Revenues from program guides; and
ix. Commissions from home shopping channels and other Cable Service
revenue sharing arrangements which shall be allocated on a proportionate
basis.'sing total Cable Service Subscribers within the Franchise Area.
3017040x6
roues" shall not be net of. (1) any operating expense; (2) any
luclmg without limitation, any accrual for commissions to
or (3),4ny other expenditure, regardless of whether such
Xra'al, or expenditure reflects a cash payment. "Gross
, however, shall not be double counted. Revenues of both
d an Affiliate that represent a transfer of funds between the
d the Affiliate, and that would otherwise constitute Gross
)f both the Grantee and the Affiliate, shall be counted only once
-s of determining Gross Revenues. Similarly, operating
expenses of the Grantee which are payable from Grantee's revenue to an
Affiliate and which may otherwise constitute revenue of the Affiliate,
shall not constitute additional Gross Revenues for the purpose of this
Franchise. "Gross Revenues" shall include amounts earned by Affiliates
only to the extent that Grantee could, in concept, have earned such types
of revenue in connection with the operation of Grantee's Cable System to
provide Cable Services and recorded such types of revenue in its books
and Records directly, but for the existence of Affiliates. "Gross Revenues"
shall not include sales taxes imposed by law on Subscribers that the
Grantee is obligated to collect. With the exception of recovered bad debt,
"Gross Revenues" shall not include bad debt.
(A) "Advertising Revenues" shall mean amounts derived from sales of
advertising that are made available to Grantee's Cable System
Subscribers within the Franchise Area and shall be allocated on a
pro rata basis using total Cable Service Subscribers reached by the
advertising. Whenever Grantee acts as the principal in advertising
arrangements involving representation firins and/or advertising
Interconnects and/or other multichannel video, providers,
Advertising Revenues subject to Franchise Fees shall include the
total amount from advertising that is sold, .and not be reduced by
any operating expenses (e.g., "revenue offsets" and "contra
expenses" and "administrative expenses" or: imilar expenses), or
by fees, commissions, or other d"i�aounts paid to or retained by
affiliated advertising representation firms to Grantee or -their
successors involved with sales of"advertising on the "Cable System
within the Franchise Area.
(B) "Gross Revenues" shall not
1.
ii.
Actual Cable Services bad debt write-offs, except any
portion which is subsequently` collected which shall be
allocated on apro rata basis using Cable Services revenue
as a percentage of total Grantee revenues within the
Franchise Area;
Any taxes and/or fees on services furnished by Grantee
imposed on abscribers by any municipality, State or other
governmental unit, provided that the Franchise Fee shall
not be regarded as such a tax or fee;
fees and marketing co-op fees; and,
Revenues associated with the provision of managed
network services provided under separate business contract.
Unaffiliated third party advertising sales agency fees or
commissions which are reflected as a deduction from
revenues, except when Grantee acts as a principal as
specified in paragraph (A) immediately above.
(C) To the extent revenues are derived 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 using a 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
6
3017040x6
prices for such components. In the alternative, Grantee may
calculate revenues to be included in Gross Revenues by applying a
uniform price discount equally to each Cable Service and non -
Cable Service component of a discounted bundle of services.
Except as required by specific federal, State or local law, it is
expressly understood that equipment may be subject to inclusion in
the bundled price at full rate card value. The calculation shall be
applied to every bundled service package containing Cable Service
from which Grantee derives revenues in the Franchise Area. The
City reserves its right to review and to challenge Grantee's
calculations.
Example: Prior to any bundle -related
valued at 50% of the total of the servi
Cable Service is to be valued and rej"e
percent (50%) of the price of the bunt
(D) Grantee reserves theright to ch:
set forth in paragraph (C) above
Financial Accounting Standard
Task Force (('EITF") and/or the
City
in
,e reduction, if Cable Service is
.o be offered in a bundle, then
I as being no.less than fifty
service total.
,e the allocation methodologies
meet standards mandated by the
oard ("FASB"), Emerging Issues
S. Securities and Exchange
wledges and agrees that Grantee
a manner consistent with GAAP
9,
ty reserves its right to challenge
ion of GrossRevenues, including Grantee's
AAP and Grantee's interpretation of FASB,
ectives. Grantee agrees to explain and document
;hange it deems required by FASB, EITF and
with any Franchise -required document at the
identifying each revised section or line item.
City agrees and acknowledges that Grantee shall maintain its
books and Records in accordance with GAAP.
Y. "Installation" means the connection of the System from feeder cable to the point
of connection with the Subscriber Set Top Box or other terminal equipment.
Z. "Interactive Services" are those services provided to Subscribers whereby the
Subscriber either (a) both receives information consisting of either television or
other signal and transmits signals generated by the Subscriber or equipment under
his/her control for the purpose of selecting what information shall be transmitted
to the Subscriber or for any other purpose or (b) transmits signals to any other
location for any purpose.
aa. "Leased Access Channel" means Channels on the System which are designated
or dedicated for use by a Person unaffiliated with the Grantee pursuant to 47
U.S.C. § 532.
3017040x6
bb. "Living Unit" means a distinct address as tracked in the QC network inventory,
used by CenturyLink to identify existing or potential Subscribers. This includes,
but is not limited to, single family homes, multi -dwelling units (e.g., apartment
buildings and condominiums) and business locations.
CC. "Lockout Device" means an optional mechanical or electrical accessory to a
Subscriber's terminal which inhibits the viewing of a certain program, certain
Channel, or certain Channels provided by way of the Cable System.
dd. "Normal Business Hours" means those hours during which most similar
businesses in 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.
cc. "Normal Operating Conditions" means those service conditions that are within
the control of the Grantee. Conditions that are ordinarily within the control of the
Grantee include, but are not limited to,.special promotions, pay -per vi w events,
rate increases, regular peak or seas n"emand periods, maintenance or upgrade
of the System, and the development, operation or maintenance of the Grantee's
telephone system. Conditions that are not within the control of the Grantee
include, but are not limited to, natural disasters, civil disturbances, power outages
that extend beyond typical duration, telephone network'outages, and severe or
unusual weather conditions.
f£ "Pay Service" means programming (such as, certain on -demand movie channels
or pay-per-view programs) offered individually to Subscribers on a per -channel,
per -program event basis.
gg. "PEG" means public, educationaland governmental.
hh. "Person" means any individual, partnership, association, joint stock company,
joint venture, domestic or foreign corporation, stock or non -stock corporation,
limited liability company, professional limited liability corporation, or other
organization of any kind, or any lawful successor or transferee thereof, but such
term does not include the City.
ii. "Public Access Channel(s)" means any Channel on the System set aside by the
Grantee; for use by the general public, as contemplated by applicable law.
jj. "QC"means Qwest Corporation d/b/a CenturyLink ("QC"), an Affiliate of
Grantee and its lawful successors, transferees or assignees.
kk. "Qualified Living Unit" means a Living Unit which meets the minimum
technical qualifications defined by Grantee for the provision of Cable Service. A
Living Unit receiving a minimum of 25 Mbps downstream will generally be
capable of receiving Cable Service subject to Grantee performing certain network
grooming and conditioning.
3017040x6
11. "Remote Terminal" means a facility that is located in a neighborhood, which
houses the electronics used to support the provision of Cable Services.
mm. "Right -of -Way" or "Rights -of -Way" means the surface, air space above the
surface and the area below the surface of any public street, highway, lane, path,
alley, sidewalk, trail, avenue, boulevard, drive, court, concourse, bridge, tunnel,
park, parkway, skyway, waterway, dock, bulkhead, wharf, pier, easement or
similar property or waters within the City owned by or under control of the City,
or dedicated or otherwise conveyed to the City for general public use, including,
but not limited to, any riparian right, which, consistent with the purposes for
which it was created, obtained or dedicated, may be used for the purpose of
installing, operating and maintaining a System. No "reference herein to a "Right -
of -Way" shall be deemed to be a representationor guarantee by the City that its
interest or other right to control or use such props y is sufficient to permit its use
for the purpose of installing, operating and maintaining the System.
nn. "Service Interruptions" means the loss of picture or sound on one (1) or more
Cable Channels.
oo. "Set Top Box" means an electronic device which converts signals to a frequency
acceptable to a television feceiver of a Subscriber, and by an appropriate selector
permits a Subscriber to view all'Subscriber signals included in the Subscriber' s
service.'
Pp. "Standard Installation" means, any residential Installation which can be
completed to :a Qualified Living Unit.
qq. "State?'`means the State of Minnesota, its agencies and departments.
rr. "Subscriber" means any Person who lawfully receives service via the System.
r(:the case of multiple office buildings or multiple dwelling units, the term
"Subscriber" means the lessee, tenant or occupant.
"Wireline MVPD" means a multichannel video programming distributor that
utilizes the Rights -of -Way to install cable or fiber and is engaged in the business
dmaking available for purchase, by Subscribers, multiple Channels of video
programming in the City.
SECTION 2.
1.
3017040v6
Franchise Required.
OF AUTHORITY AND GENERAL PROVISIONS
a. Other than the City, it shall be unlawful for any Person, unless specifically
required by applicable laws, to construct, install, operate or maintain a Cable
System or to offer Cable Service in the City, unless such Person or the Person for
whom such action is being taken shall have first obtained and shall currently hold
a valid franchise. Grantee promises and guarantees, as a condition of exercising
the privileges granted by this Franchise, that any Affiliate of the Grantee involved
2.
3.
in the offering of Cable Service in the City, or directly involved in the ownership,
management or operation of the Cable System in the City, shall also comply with
all obligations of this Franchise. However, the City and Grantee acknowledge
that QC will be primarily responsible for the construction and installation of the
facilities in the Rights -of -Way which will be utilized by Grantee to provide Cable
Services. So long as QC does not provide Cable Service to Subscribers in the
City, QC will not be subject to the teens and conditions contained in this
Franchise. QC's installation and maintenance of facilities in the Rights -of -Way is
governed by applicable local, State and federal law. To the extent Grantee
constructs and installs facilities in the Rights -of -Way, such -'installation will be
subject to the terms and conditions contained in this Franchise. Grantee is
responsible for all provisions in this Franchise related to: 1) its offering of Cable
Services in the City; and 2) the operation of the Cable System regardless of what
entity owns or constructs the facilities used to provide the Cable Service. The
Grant of Nonexclusive Authority.
a. This Franchise does not confer any rights other than as expressly provided herein,
or as provided by federal, State or local law. No privilege or power of eminent
domain is bestowed by this Franchise or grant. The System constructed and
maintained by Grantee or its agents pursuant to this Franchise shall not interfere
with other uses of the Rights -of -Way. The Grantee shall make use of existing
poles and other aerial and underground facilities available to the Grantee to the
extent it is technically and economically feasible to do so. Nothing in this section
10
3017040x6
authorizes the Grantee to construct poles in the City without prior City consent
consistent with the City Code.
b. Notwithstanding the above grant to use Rights -of -Way, no Right -of -Way shall be
used by the Grantee if the City determines that such use is inconsistent with the
terms, conditions, or provisions by which such Right -of -Way was created or
dedicated, or with the present use of the Right -of -Way.
C. This Franchise and the right it grants to use and occupy the Rights -of -Way shall
not be exclusive and this Franchise does not, explicitly or fin, plicitly, preclude the
issuance of other franchises or similar authorizations to'operdfe Cable Systems
within the City.
d. The City specifically reserves the right to
franchises for a Cable System as it deems
additional grants shall not operate to matt
rights previously granted to Grantee other
minimum, the City shall comply with Mit
1(c) when granting such additional francl
grant, at any time, sucn
appropriate provided, r
-ally modify, revoke, c
than as described herei
n. Stat. § 238.08, subd.
additional
owever, such
r terminate any
i. At a
4(b) and subd.
4. Lease or Assignment Prohibited. No Person may lease Grantee's System for the
purpose of providing Cable Service until and unless such Person shall have first obtained
and shall currently hold a valid franchise or other lawful authorization containing
substantially similar burdens and obligations to this Franchise, including, without
limitation, a requirement on such Person to pay Franchise Fees on such Person's use of
the System to provide Cable Services, to the extent there would be such a requirement
under this Franchise if the Grantee itself were to use the System to provide such Cable
Service. Any assignment of rights under this Franchise shall be subject to and in
accordance with the requirements of Section 9.5.
11
3017040x6
5. Franchise Term. This Franchise shall be in effect for a period of five (5) years from the
Effective Date, unless terminated sooner as hereinafter provided. Six (6) months prior to
the expiration of the initial five (5) year term, if City determines that Grantee is in
compliance with all other material terms of this Franchise including the build out
obligations set forth in this Franchise as required by Applicable Law, the City shall have
the unilateral right to extend the Franchise for an additional term of no less than five (5)
years and no more than ten (10) years.
6. Franchise Area. The Grantee is hereby authorized to provide Cable Services over a
Cable System within the jurisdictional boundaries of the City, including any areas
annexed by the City during the term of this Franchise. The parties aclriowledge that
Grantee is not the first entrant into the wireline video market iii the City. The Grantee
acknowledges that the City desires wireline competition throughout the entire City so all
residents may receive the benefits of competitive Cable Services Grantee aspires to
provide Cable Service to all households within the Cityby the end of the..five (5) year
term of this Franchise. Grantee agrees that its deployment of Cable Service m the City
will be geographically dispersed throughout the City, and shall be made available to
diverse residential neighborhoods of the City without diserfnination. Thts Franchise
governs any Cable Services provided by Grantee to residential and commercial
Subscribers.
7. Initial Build Out. No later than the second anniversary of the Effective Date of this
Franchise, Grantee shall be capable of serving'a. nunimumAof fifteen percent (15%) of the
City's households with Cable Service; provided,however, Grantee will make its best
efforts to complete such deployment within'a shorter period of time. Grantee commits
that a material and substantial portion of its investment and its deployment of Cable
Services in the City, whether mandated by Segtion 2.8 below or on a voluntary basis, will
include a significant number of households below the median income in the City.
Nothing in this Franchise shall restrict Grantee from serving additional households in the
City with Cable Service.
8. Quarterly Meetings., In order to permit the City to monitor and enforce the provisions
hU this section and other provisions of this Franchise, the Grantee shall, upon demand,
promptly make available to the City maps and other documentation showing exactly
where within the City the Grantee is currently providing Cable Service. Grantee shall
meet with the City, not less than once quarterly, to demonstrate Grantee's compliance
with the provisions of this section concerning the deployment of Cable Services in the
City including; by way of example, the provision of Section 2.7 in which Grantee
commits thatl significant portion of its initial investment and its deployment of Cable
Services in the City will be targeted to households below the City's median household
income, and the provisions of Sections 2.10 that prohibit discrimination in the
deployment of Cable Services on the basis of the income level of the residents. In order
to permit the City to monitor and enforce the provisions of this section and other
provisions of this Franchise, the Grantee shall, commencing on or about August 15, 2016,
and continuing throughout the term of this Franchise, meet quarterly with the City (unless
said meeting is waived by City) and make available reports and maps showing the City
the following information:
12
3017040v6
9.
a. The total number of Living Units throughout the City;
b. The total number of Qualified Living Units;
C. Information demonstrating Grantee cominitment that a significant portion of
Grantee's initial investment and Grantee's deployment of Cable Services in the
City has been targeted to households below the City's median household income;
d. A list of the public buildings and educational institutions that are Qualified Living
Units in the City; and
Additional Build -Out Based on Nair
including any quarterly meeting prior
this Franchise as referenced in Sectior
seven and one-half percent (27.5%) of
then Grantee agrees the minimum buil
the households then, canable.of receivi
of the total house
from the qua,16H
complete such dc
meeting with the
the households it
This a
the Ci
percent (1
arterly me
in the City, which
Success. If at any quarterly meeting,
Le second anniversary of the Effective Date of
;in, Grantee jsactually serving twenty
3
;eholds_capable of receiving Cable Service,
mmitment shall increase to include all of
Service plus an additional fifteen (15%)
tee agrees to serve within two (2) years
the Grantee shall snake its best efforts to
lent within a shorter period of time. For example, if, at a quarterly
grantee shows that it is capable of serving sixty percent (60%) of
sty with Cable Service and is actually serving thirty percent (30%)
I Cable Service, then Grantee will agree to serve an additional
f the total households in the City no later than two (2) years after
a tots of seventy-five percent (75%) of the total households).
at based on market success shall continue until every household in
10. Nondiscrimination. Grantee shall provide Cable Service under non-discriminatory rates
and reasonable terms and conditions to all Subscribers who reside in Living Units in any
location where the Grantee is capable of providing Cable Service. Grantee shall not
arbitrarily refuse to provide Cable Services to any Person or in any location where the
Grantee is capable of providing Cable Service. Grantee shall not deny Cable Services to
any group of Subscribers or potential residential Subscribers based upon the income level
of residents of the local area in which such group resides, nor shall Grantee base
decisions about construction or maintenance of its Cable System or facilities based upon
the income level of residents of the local area in which such group resides. Grantee shall
provide such service at non-discriminatory monthly rates for residential Subscribers,
13
3017040x6
consistent with federal, State, or local laws. Grantee shall not discriminate between or
among any individuals in the availability of Cable Service based upon income in
accordance and consistent with 47 U.S.C. Section 541(a) (3), or based upon race or
ethnicity.
11. Standard Installation. Grantee shall provide Cable Services within seven (7) days of a
request by any authorized Person at a Qualified Living Unit. A request shall be deemed
made on the date of signing a service agreement, receipt of funds by Grantee or receipt
by Grantee of a verified verbal or written request.
12. Multiple Dwelling Units. The Grantee shall offer the individual units of a multiple
dwelling unit all Cable Services offered to other multiple dwelling units in the City and
shall individually wire units upon request of the property owner or renter who has been
given written authorization by the owner; provided, however, that any such offering is
conditioned upon the Grantee having legal access to said unit and such unit is a Qualified
Living Unit. The City acknowledges that the Grantee cannot control the dissemination of
particular Cable Services beyond the Demarcation Pointat a multiple dwelling unit.
13. Compliance with Applicable Laws, Res
b. The Grantee shall comply with the terms of any City ordinance or regulation of
general applicability which addresses usage of the Rights -of -Way within the City
which may have the effect of superseding, modifying or amending the terms of
Section 3 and/or Section 7.7 (d) herein, except that the Grantee shall not, through
application of such City ordinance or regulation of Rights -of -Way, be subject to
additional burdens with respect to usage of Rights -of -Way which exceed burdens
on similarly situated Rights -of -Way users.
14
30170400
C. In the event of any conflict between this Franchise and any lawful City ordinance
or regulation, the conflicting terms of this Franchise shall be superseded by such
City ordinance or regulation, except that Grantee shall not, through application of
such City ordinance or regulation of Rights -of -Way, be subject to additional
burdens with respect to usage of Rights -of -Way which exceed burdens on
similarly situated Rights -of -Way users. In no event shall the City amend any City
ordinance or regulation which would have the unilateral effect of modifying the
build out requirements set forth in Sections 2.7 and 2.9 herein.
d. In the event any lawfully applicable City ordinance or regulation which addresses
usage of the Rights -of -Way adds to, modifies, amends, or otherwise differently
addresses issues addressed in Section 3 and/or Section 7.7 (d) of this Franchise,
the Grantee shall comply with such ordinance or regulation of general
applicability, regardless of which requirement was, first adopted except that
Grantee shall not, through application of such City ordinance or regulation of
Rights -of -Way, be subject to additional burdens with respect to usage:of Rights
Sim, -
of -Way which exceed burdens on Si%larly situated Rights-of-Way:users.
C. In the event the Grantee cannot determine how to comply with any Right -of -Way
requirement of the City, whether pursuant to this Franchise or other requirement,
the Grantee shall umnediately.provide written notice of such question, including
the Grantee's proposed interpretation, to the City, in accordance with Section
2.16. The City shall provide a written response within fourteen (14) days of
receipt indicating how the requirements'cited by the Grantee apply. The Grantee
may proceed in accordance with its proposed interpretation in the event a written
response is not received within seventeen (17) days of mailing or delivering such
written question.
15. Territorial Area Involved. This Franchise is granted for the Franchise Area. Grantee
shall provide Service to any residential and commercial Qualified Living Units in the
City passed by the Cable System if requested by a Subscriber. This Franchise governs
any Cable Service provided by Grantee to residential and commercial Subscribers to
Grantee's Cable System.
16. Written 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 designated Franchise administrator, or forty-eight (48) hours after it
is deposited in the United States mail in a sealed envelope, with registered or certified
15
3017040x6
1.
mail postage prepaid thereon, addressed to the party to whom notice is being given, as
follows:
If to City: City of Eagan, Minnesota
City Hall
3830 Pilot Knob Road
Eagan, Minnesota 55122-1810
Attention: City Administrator
With a copy to: Qwest Broadband Services, Inc.
a. The Grantee shall "strictly adhere to all State and local laws, regulations and
policies adopted by the City Council applicable to the location, construction,
installation, operation or maintenance of the System in the City. Specifically
Grantee shall at all times comply with Section 7.06 of the City Code which sets
forth the City's public right-of-way regulations. The City has the right to
supervise all construction or installation work performed in the Rights -of -Way as
it `'shall find necessary to ensure compliance with the terms of this Franchise and
other applicable provisions of law and regulations.
b. Failure to obtain permits required by the City Code or to comply with permit
requirements shall be grounds for revocation of this Franchise, or any lesser
sanctions provided herein or in any other applicable law, code or regulation.
2. Restoration of Rights -of -Way and Property. Any Rights -of -Way, or any sewer, gas or
water main or pipe, drainage facility, electric, fire alarm, police communication or traffic
control facility of the City, or any other public or private property, which is disturbed,
damaged or destroyed during the construction, repair, replacement, relocation, operation,
maintenance, expansion, extension or reconstruction of the System shall be promptly and
fully restored, replaced, reconstructed or repaired by the Grantee, at its expense, in
16
30170400
3.
accordance with Section 7.06 of the City Code and any other applicable provisions of the
City Code.
Conditions on Right -of -Way Use.
a. 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.
b. All System transmission and distribution structures, lines and equipment erected
by the Grantee within the City shall be located so as'not to obstruct or interfere
with the use of Rights -of -Way except for normal and reasonable obstruction and
interference which might occur during construction and to cause minimum
interference with the rights of property owners who abut any of said, Rghts-of-
Way and not to interfere with existing public utility installations.
d. The Grantee_slall not place poles, conduits, or other fixtures of the System above
or below ground where the same will interfere with any gas, electric, telephone,
governmental fiber, water or other utility fixtures and all such poles, conduits, or
other fixtures placed in any Right -of -Way shall be so placed as to comply with all
lawful requirements of the City.
e. The Grantee shall, upon request of any Person holding a moving permit issued by
the City, temporarily move its wires or fixtures to permit the moving of buildings
with the expense of such temporary removal to be paid by the Person requesting
the same (except in the case where the requesting Person is the City for the
purpose of moving a City -owned building, in which case no payment shall be
17
30170400
required). The Grantee shall be given not less than ten (10) days' advance written
notice to arrange for such temporary wire changes.
f. To the extent consistent with generally applicable City Code provisions, rules and
regulations, the Grantee shall have the right to remove, cut, trim and keep clear of
its System trees or other vegetation in and along or overhanging the Rights -of -
Way. However, in the exercise of this right, the Grantee agrees not to cut or
otherwise injure said trees to any greater extent than is reasonably necessary.
This Franchise does not give the Grantee any authority to remove trees on private
property in the City. All trimming shall be performed at fhe.sole cost of the
Grantee.
g. The Grantee shall use its best efforts to give reasonable prior notice to any
adjacent private property owners who will be negatively affected or impacted by
Grantee's work in the Rights -of -Way. Grantee:shM at all ti comply with the
requirements of Section 400.2 of the City's Right -of -Way Permit, Speciiications
for Construction and Section 7.06 of the City Code.
h. If any removal, relaying or relocation is required to accommodate the
construction, operation or repair of the facilities of a Person that is authorized to
use the Rights -of -Way, the Grantee shall, after thirty (30) days' advance written
notice, and payment of all costs by such Person, comrlience action to effect the
necessary changes requested by the responsible entity. If multiple responsible
parties are involved, the City may resolve disputes as to the responsibility for
costs associated with the removal, relaying ox relocation of facilities among
entities authorized to install facilities in the Rights -of -Way if the parties are
unable to do so themselves, and if the ratter is not governed by a valid contract
between the parties ofany State or federal law or regulation.
a. , Where existing poles, underground conduits, ducts or wire holding structures are
available for use by the Grantee, but it does not make arrangements for such use,
the City may require, through the established permit, or any other applicable
procedure, the Grantee to use such existing poles and wireholding structures if the
City determines that the public convenience would be enhanced thereby and the
terms available to the Grantee for the use of such poles and structures are just and
reasonable.
b. The Grantee agrees to place its cables, wires or other like facilities underground,
in the manner as may be required by the provisions of the City Code and City
18
3017040x6
5.
11
policies, procedures, rules and regulations, as amended from time to time, where
all utility facilities are placed underground. The Grantee shall not place facilities,
equipment or fixtures where they will interfere with any existing gas, electric,
telephone, water, sewer or other utility facilities or with any existing installations
of the City, or obstruct or hinder in any manner the various existing utilities
serving the residents of the City. To the extent consistent with the City Code,
City policies, procedures, rules and regulations, System cable and facilities may
be constructed overhead where poles now exist and electric or telephone lines or
both are now overhead. However, in no case may the Grantee install poles in
areas of the City where underground facilities are generallyused by the utilities
already operating. If the City, at a future date, requiresall electric and telephone
lines to be placed underground in all or part of the City; thf
a reasonable time, as determined by the City, similarly mo
at no expense to the City, and shall not seek damages from
compliance.
Installation of Facilities.
a.
Z
S
No poles, towers, conduits, amplifier bo
similar structures, or other wire -holding
the Grantee without
City.
required
:al mounted terminal boxes,
shall be erected or installed by
or other authorization from the
of the Grantee is to be
e Rightsof--Way or in City property.
and distribution structures, lines, wires,
fixtures erected by the Grantee within the
d as to cause minimum interference with the
owners.
All applicable safety practices required by law shall be used during construction,
maintenance and repSir of the System. The Grantee agrees, at all times, to
employ ordinary and reasonable care and to install and maintain in use commonly
accepted methods and devices for preventing failures and accidents that are likely
to cause damage or injuries to the public or to property. All of Grantee's
structures and all lines, equipment and connections in the Rights -of -Way shall at
all times be kept and maintained in a safe condition, consistent with applicable
safety codes.
b. The Grantee's construction, operation or maintenance of the System shall be
conducted in such a manner as not to interfere with City communications
technologies related to the health, safety and welfare of City residents.
19
3017040x6
C. The Grantee shall install and maintain such devices as will apprise or warn
Persons using the Rights -of -Way of the existence of work being performed on the
System in Rights -of -Way.
d. The Grantee or QC shall be a member of the One Call Notification System
(otherwise known as "Gopher State One Call") or its successor, and shall field
mark the locations of its underground facilities upon request. Throughout the
term of this Franchise, the Grantee shall identify the location of its facilities for
the City at no charge to the City.
10.
a. Upoifrequest Grantee shall make available maps of all existing constructed areas,
in place; and proposed construction in sufficient detail as reasonably requested by
the City.
b. In the event that Grantee's maps are available electronically, the Grantee shall
allow the City "read only" access to its Cable System maps. If needed by the City,
Grantee will provide the snaps in a format that enables the City to read Grantee's
electronic maps.
11. Main Roads and Streets. Grantee shall not unduly create traffic congestion on main
roads and streets due to construction or maintenance of the Cable System. Construction
and maintenance shall be scheduled around morning and evening rush hours when
20
3017040v6
practicable. In the event that construction or maintenance must be conducted during such
times and at such places, the Grantee shall notify the appropriate City agency or
department. The City may deny Grantee's use of said streets and roadways during said
periods.
12. Discontinuing Use/Abandonment of Cable System Facilities. Whenever Grantee
intends to discontinue using any System facility within the Rights -of -Way, Grantee shall
notify the City of its intent regarding such discontinuance. Grantee may remove the
facility or request that the City permit it to remain in place. Notwithstanding Grantee's
request that any such facility remain in place, the City may require:: , rantee to remove the
facility from the Right -of- Way or modify the facility to protect the public health,
welfare, safety, and convenience, or otherwise serve the public interest. The City may
require Grantee to perform a combination of modification and removal of the facility.
Grantee shall use its best efforts to complete such removal or modification in accordance
with a schedule set by the City. Until such time as,Grantee removes or modifies the
facility as directed by the City, or until the rights to and responsibility for the facility are
accepted by another Person having authority to construct and maintain such facility,
Grantee shall be responsible for all necessary repairs and relocations of the facility, as
well as maintenance of the Right -of -Way, in the same manner and degree as if the facility
were in active use, and Grantee shall retain all liability for such facility. If Grantee
abandons its facilities, the City may choose to use such facilities for any purpose
whatsoever.
13. Stop Work.
a. On notice
the Drovis
i the City that any
of this Franchise,
the City, or in vio
regulations, ordii
is being performed by Grantee contrary to
an unsafe or dangerous manner as
of the terms of any applicable permit, laws,
the work may immediately be stopped by
to the Person doing the work, or posted on the work site;
Grantee;
iv. Indicate the nature of the alleged violation or unsafe condition; and
V. Establish conditions under which work may be resumed.
SECTION 4. DESIGN PROVISIONS
1. System Facilities and Equipment.
a. The System generally shall have at least the following characteristics:
21
3017040v6
i. a modern design when built, utilizing an architecture that will permit
additional improvements necessary for high-quality and reliable service
throughout the Franchise term, and the capability to operate continuously
on a twenty-four (24) hour a day basis without severe material degradation
during operating conditions typical to the Minneapolis/St. Paul
metropolitan area;
ii. standby power generating capacity at the headend. The Grantee shall
maintain motorized standby power generators capable of powering all
headend equipment for at least twenty-four (24) hours and indefinitely
with a continuous or replenished fuel supply. The back-up power supplies
serving the System shall be capable of providing power to the System for
not less than four (4) hours per occurrence measured on an annual basis
according to manufacturer specifications in the event of an electrical
outage. The Grantee shall maintain'sufficient portable motorized
generators to be deployed in the event that the duration of a power
t.
disruption is expected to exceed four (4) hours;
V. a System shah; at all times, comply with applicable federal, State and local
vii. such facilities and equipment as necessary to maintain, operate and
evaluate the Grantee's System for compliance with FCC technical and
customer service standards, and such standards as may hereafter be
amended;
viii. status monitoring equipment to alert the Grantee when and where back-up
power supplies are being used;
22
30170400
ix. all facilities and equipment required to properly test the System and
conduct an ongoing and active program of preventative maintenance and
quality control, and to be able to quickly respond to customer complaints
and resolve System problems;
X. antenna supporting structures designed in accordance with any applicable
governmental building codes, as amended, and painted, lighted and
erected and maintained in accordance with all applicable rules and
regulations of the Federal Aviation Administration, the Federal
Communications Commission and all other applicable codes and
regulations;
xvii. sufficient trucks, tools, testing equipment, monitoring devices, and other
equipment and facilities and trained and skilled personnel required to
enable Grantee to substantially comply with applicable law, including
applicable customer service requirements and including requirements for
responding to Cable System outages; and
23
3017040x6
2.
xviii. Grantee shall comply with all FCC regulations regarding closed
captioning and other regulations applicable to providing services to
disabled Subscribers.
b. The Grantee shall comply with all applicable FCC regulations regarding carriage
of digital, HDTV and any successor format transmissions.
C. Grantee agrees to maintain the Cable System in a manner consistent with, or in
excess of the specifications in Section 4.1 throughout the term of the Franchise
with sufficient capability and technical quality to enable the implementation and
performance of all the requirements of this Franchise, includug the exhibits
hereto, and in a manner which meets or exceeds applicable FCC technical quality
standards at 47 C.F.R. § 76 Subpart K, regardless of the particular format in
which a signal is transmitted.
d. Emergency Alert System.
e. The Grantee'shall riot assert or otherwise raise any claim before a court of
competent jurisdtctipn or any administrative agency alleging that, as of the
Effective Date of this -Franchise, the minimum System design and performance
requirements set forth .. this Franchise are unenforceable under or inconsistent
with applicable law of any applicable orders or decisions of the FCC.
a. Grantee shall provide a discrete, non-public, video interconnect network, from an
agreed upon Demarcation Point at the City's master control facility at City Hall, to
Grantee's headend. The video interconnect network shall provide not less than 50
Mbps of allocated bandwidth, allowing PEG operators that have agreed with
Grantee to share (send and receive) live and recorded programming for playback
on their respective systems. Where available the Grantee shall provide the video
interconnect network and the network equipment necessary, for the high-priority
transport of live multicast HD/SD video streams as well as lower -priority file -
sharing. Grantee shall provide a minimum of 50 Mbps bandwidth for each
participating PEG entity to send its original programming, receive at least two
additional multicast HD/SD streams from any other participating PEG entity, and
24
3017040x6
allow the transfer of files. Each participating PEG entity is responsible for
encoding its own SD/HD content in suitable bit rates to be transported by the
video interconnect network without exceeding the 50 Mbps of allocated
bandwidth.
b. Grantee shall provide a 24 x 7 toll-free response phone number for technical
support staff who are trained to effectively respond to and resolve interconnection
and PEG related issues, who will respond to urgent tech -support requests within
fifteen (15) minutes and non -urgent technical support requests within three (3)
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.
C. The Grantee shall maintain all interconnectionshat exist as of the Effective Date
of this Franchise to other adjacent Systems in the Minneapolis/St. Pauls
metropolitan area that are not commonly owned tr, controlled by the Grantee or
its Affiliates including, but not limited to, the Systeil,�(s) serving Apple Valley and
Lakeville.
Unless otherwise agreed upon by the City, every interconnection link established
pursuant to this Section 4.2 shall, at a minimum: (A) use a digital, optical
transmission medium that is not inferior to any other optical transmission medium
used in the System; (B) allow for the seamless transmission of all required signals
on both systems; and (C) provide, for the City's exclusive use, at least one (1)
high capacity Channel (sufficient to provide HD video or successor format
transmission) for forward video purposes, one (1) high capacity Channel (sufficient
to provide HD video or successor format transmission) for return video purposes,
one (1) Channel for forward data at a minimum of 1 Gbps transfer rate and/or
other purposes and one (1) Channel for return data at a minimum of 1 Gbps
transfer rate and/or other purposes.
g. The Grantee may use excess capacity on the interconnection link described in
paragraph (c), provided such use does not interfere with or degrade video or data
signals originated by or intended for the City. If, in the City's opinion, the
25
3017040x6
Grantee's use of the interconnection link is interfering with other users'
communications, the City shall notify the Grantee of the problem, and require
immediate cessation of the interference or specify a reasonable date by which the
interference must be stopped.
h. The Grantee shall cooperate with any interconnection corporation, regional
interconnection authority, or State or federal agency which may be hereafter
established for the purpose of regulating, facilitating, financing or otherwise
providing for the interconnection of Cable Systems beyond the boundaries of the
City.
3. System and Institutional Network.
a. Grantee shall make available to the City for review, on a c6nfidential basis, a
concise description of the System facilities ereded-lor installed; and Subscriber
network design prints/map(s), which shall include at least the following elements:
(i) trunk and feeder design; (ii) fiber routes; (iii) Remote Terminal locations; (iv)
standby power supply locations; and (v) areas of th&,City served by each Remote
Terminal, or the technical equivalent of the above based on Grantee's technology
b. Grantee acknowledges that the franchise held by the existing franchised cable
communications provider within the Franchise Area includes obligations for an
Institutional Network for the benefit o-Ahe City ano other institutions and to
facilitate PEG uses of the I -Net: The parties ackxowledge that the public interest
would not be served by duplicating existing Wet facilities or services provided
under other Cable Services franchises.
d. Failure to meet the requirements of this Section 4.3 shall subject the Grantee to
enforcement remedies available to City under Section 8 of this Franchise.
4. Line Extension Requirements.
a. Grantee shall not have a line extension obligation until the first date by which
Grantee is providing Cable Service to more than fifty percent (50%) of all
subscribers receiving facilities based Cable Service from both the Grantee and
any other provider(s) of Cable Service within the City. At that time, the City, in
its reasonable discretion and after meeting with Grantee, shall determine the
26
3017040x6
timeframe to complete deployment to the remaining households in the City,
including a density requirement that is the same or similar to the requirement of
the existing franchised cable communications provider.
b. Any Qualified Living Unit shall be connected to the Cable System at no charge
other than the Standard Installation charge.
5. System Specifications. In all its construction and service provision activities, Grantee
shall meet or exceed the construction, technical performance, extension and service
requirements set forth in this Franchise.
6. System Maintenance.
a. The Grantee shall interrupt Service only for good cause and, for the shortest time
possible. Such interruption shall occur duringperiods of minimum use of the
System, usually from 1 am to 5 am. The Grantee shall use its best effo�ts to
provide the City with at least twenty-four (24) hours' prior notice of a planned
Service Interruption, except for a planned Service Interruption which will have a
minimal impact on Subscribers, usually meaning affecting less than one hundred
(100) Subscribers or less than a fifteen (15) minute interruption.
b. Maintenance of the System shall be performed in accordance with the applicable
technical performance and operating standards established by FCC rules and
regulations. Should the FCC choose to abandon -his field and does not preempt
the City's entry into this field, the City may adopt such technical performance and
operating standards as its own and the Grantee shall comply with them at all
times.
7. System Tests
performed pursuant to the provisions of the Franchise. In addition, the 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 System
construction, operations or installation work pertaining to such location(s). Such
tests shall be limited to the particular matter in controversy. The City shall
endeavor to so arrange its request for such special testing so as to minimize
hardship or inconvenience to the Grantee or to the Subscribers of such testing.
C. Before ordering such tests, the 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. The City shall meet with
27
3017040x6
9.
10.
the Grantee prior to requiring special tests to discuss the need for such and, if
possible, visually inspect those locations which are the focus of concern. If, after
such meetings and inspections, the City wishes to commence special tests and the
thirty (30) days have elapsed without correction of the matter in controversy or
resolution of complaints, the tests shall be conducted at the Grantee's expense by
a qualified engineer selected by the City and the Grantee, and Grantee shall
cooperate in such testing.
d. Unless otherwise provided in this Franchise, tests shall be supervised by the
Grantee's chief technical authority, or their designee, who shall certify all records
of tests provided to the City.
g. If any test indicates that any part or
Nonvoice Return
electronics having
.ed to be filed by Grantee with the FCC
of the conduct of the tests.
quired to use cable and associated
nonvoice return communications.
it Device. Upon the request of a Subscriber, the Grantee shall make a Lockout
available at no additional'charge, other than a charge for a Set Top Box.
hould the Grantee desire to change the selection of programs or
iy of its tiers, it shall maintain the mix, quality and level of services
stem. Any change in programs or services offered shall comply with
and procedures contained in this Franchise and in applicable law or
a. Prior to a customer's termination of Cable Service, the Grantee will not restrict
the ability of a Subscriber to remove, replace, rearrange or maintain any cable
wiring located within the interior space of the Subscriber's dwelling unit, so long
as such actions do not interfere with the ability of the Grantee to meet FCC
technical standards or to provide services to, and collect associated revenues
from, that customer or any neighboring customer in a multiple dwelling unit.
28
3017040x6
b. The Grantee will provide Subscribers with a notification upon commencement of
service, and annually thereafter, advising them of their rights relating to home
wiring as expressed by the FCC. Such notice will advise customers that they may
either; (i) remove, replace, rearrange or maintain the home wiring themselves, (ii)
select a qualified third party contractor, or (iii) request that the Grantee provide
such service at standard hourly installation rates, plus materials at Actual Cost
plus a reasonable rate of return.
C. In order to ensure consumer choice for all providers of multichannel video
program distribution ("MVPD"), Grantee shall fully cooperate with all
competitive providers of MVPD. Grantee shall further; uporequest, provide all
competitive providers of MVPD immediate access to all "home run" wiring in a
multiple dwelling unit, provided however, that if the equipment is owned by
Grantee, the competitive provider shall, in accordance with Nhnnesota Statutes §
23 8.25, and upon request, reimburse Grantee its pNo rata cost of the home run
wiring and installation, reduced to the extent of cumulative depreciation of the
home run wiring at the time the competitive provider begins providing service.
Exclusive contracts for the provision of Cable Service shall be prohibited and any
existing exclusive contracts for the provision of Cable Service in the City shall be
null and void as against public policy and contrary to the intent of the federal
Communications Act of 1934, as amended, and applicable FCC ruling and orders.
VO
13. Customer Service Monitoring. The Grantee shall utilizes"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.
SERVICE PROVISIONS
1. Cus
a. ; The Grantee shall at all times comply with applicable FCC customer service
standards and those set forth herein.
b. In. addition, the Grantee shall at all times satisfy all additional or stricter customer
service requirements included in this Franchise and any customer service
requirements set forth in any ordinance or regulation lawfully enacted by the City.
2. Video Programming. Except as otherwise provided in this Franchise or in applicable
law, all programming decisions remain the discretion of the Grantee, provided that
Grantee notifies the City and Subscribers thirty (30) days prior to any Channel additions,
deletions, or realignments unless otherwise permitted under applicable federal, State and
local laws and regulations.
3. Sales Procedures.
a. The Grantee shall not exercise deceptive sales procedures when marketing
Services within the City. The Grantee shall at all times comply with the City
29
3017040v6
4.
Code, Section 6.36 governing solicitations in the City. The Grantee shall have the
right to market door-to-door during reasonable hours consistent with local
ordinances and regulations.
b. In its initial communication or contact with a Subscriber or a non -Subscriber, and
in all general solicitation materials marketing Grantee's Cable Service, the
Grantee shall inform the Person of all levels of Service available, including the
lowest priced and free service tiers. All terms of the Grantee's Services shall be
clearly stated, setting forth all fees, costs and taxes as well as those fees, costs and
taxes that will be charged once special pricing or promotions end. City
acknowledges that in certain national marketing materials local/State tax
information may not be provided by Grantee. Grantee may satisfy the provisions
of this paragraph by providing the Subscriber or non -Subscriber with a toll free
telephone number where the individual may inquire and be informed about all of
the levels of Service (including the lowest cost level of Service) that may be
offered by the Grantee as well as any associated costs.
Subscriber Inquiry and Complaint
a. The Grantee shall have a publicly listed toll =free telephone number which shall be
operated so as to receive general public and Subscriber complaints, questions and
requests on a twenty-four (24) hour -a -day, seven (7) days -a -week, 365 days a year
basis.
b. Trained representatives of the Grantee shall be available to respond by telephone
to Subscriber; service inquiries.
C. AfterNormal Business Hours, the Subscriber service access line may be answered
by an answering service, au tomatedresponse system or an answering machine. A
qualified Grantee'represbntAi §hall respond on the next business day to
,inquiries received after Normal Business Hours.
d. The Grantee shall maintain adequate numbers of telephone lines and personnel to
respond in a timely manner to schedule service calls and answer Subscriber
complaints or inquiries in a manner consistent with regulations adopted by the
FCC and the City where applicable and lawful.
e. 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 (90)
percent of the time under Normal Operating Conditions, measured on a quarterly
basis.
f. Under Normal Operating Conditions, the customer will receive a busy signal less
than three (3) percent of the time.
30
3017040v6
g. Subject to the Grantee's obligations pursuant to law regarding privacy of certain
information, the Grantee shall prepare and maintain a file of all Subscriber
complaints not resolved by phone, and escalated at the request of the Subscriber,
that is available for City inspection. The file will include subject of the
complaint, how it was resolved, when it was resolved, and any additional action
taken by caller or Grantee. 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 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 City in
writing by email (and by phone when necessary) with a summary of the results of
the complaint(s).
h. The Grantee shall respond to complaints received from the City in -a timely
manner, and provide a copy of each _response to the City within ten (10) days. In
addition, the Grantee shall respond to all written complaints received from
Subscribers within ten (10) days of receipt of the complaint. In addition, the City
may order periodic sampling of the number and general categories of complaints
resolved by phone during the sampling period, not to_ exceed five (5) days per
quarter.
5. 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 a
valid order has been >,laced .
C. The Grantee may schedule appointments for Installations and other service calls
either at a specific time or, at a maximum, during a four (4) hour time block
during, Normal Business Hours. The Grantee may also schedule service calls,
outside such hours for the convenience of customers. The Grantee shall use its
best efforts to not cancel an appointment with a customer after the close of
business on the business day prior to the scheduled appointment. If the installer
or technician is late and will not meet the specified appointment time, he/she must
use his/her best efforts to contact the customer and reschedule the appointment at
31
30170400
the sole convenience of the customer. Service call appointments must be met in a
manner consistent with FCC standards.
6. Subscriber Contracts. The Grantee shall file with the City any standard form
Subscriber contract utilized by Grantee. If no such written contract exists, the Grantee
shall file with the City a document completely and concisely stating the length and terms
of the Subscriber contract offered to customers, clearly setting forth all fees, costs and
taxes. The length and terms of any Subscriber contract(s) shall be available for public
inspection during the hours of 9:00 a.m. to 5:00 p.m., Monday through Friday.
7. Service Credit.
i. the Subscriber's next billing cycle following resolution of the request or
thirty (30) days, whichever is earlier; or
ii. the return of the equipment supplied by the Grantee if Service is
terminated.
b. Any credits for Service shall be issued no later than the Subscriber's next billing
cycle following the determination that a credit is warranted.
32
3017040x6
9. Late Fees. Fees for the late payment of bills shall not be assessed until after the Service
has been fully provided. The City reserves the right to enforce Grantee's compliance
with all applicable laws to the maximum extent legally permissible.
10. Communications between Grantee and Subscribers.
a. In addition to the obligations of Section 5.5 above, Subscriber service
representatives shall appropriately identify theinselves. Field representatives shall
provide Grantee -issued picture identification and, upon request, the phone number
to reach a Grantee representative. Grantee shall provide Subscriber service
representatives that are able to communicate in both English and Spanish as
required by the Subscriber.
b. In addition to the obligations of Section 5.5 above, the Grantee shall provide each
Subscriber at the time Cable Service is imtrated� d at least every twelve (12)
months thereafter, the following materials`
i. instructions on how to use tlfe Cable Servkef.� f
ii. billing and complaint procedures, and written instructions for placing a
service call, filing a, complaint, or requesting an adjustment (including
when a Subscriber is, entitled to refunds for outages and how to obtain
them);
policies, SubscribeT,, privacy rights, delinquent Subscriber disconnect and
reconnect procedures and any other of its policies applicable to
Subscribers..,'"
C. I Copies of materials specified in the preceding subsection shall be provided to the
d. All Grantee promotional materials, announcements and advertising of Cable
Service to Subscribers and the general public, where price information is listed in
any manner, shall be clear, concise, accurate, understandable, and easily
accessible.
e. Subscribers shall be notified of any changes in programming, services or Channel
positions. When the change involves the addition or deletion of Channels, each
Channel added or deleted must be separately identified. Subscribers shall be
given a description of the changes, their options (including costs) for changing
services they receive, phone number for questions and effective date. Notice must
33
3017040x6
11.
be given to Subscribers a minimum of thirty (30) days in advance of such changes
if the change is within the control of Grantee. For thirty (30) days after notice of
re -tiering or rate increases, a Subscriber may obtain changes in service tiers at no
additional charge. In addition, the Grantee shall notify Subscribers thirty (30)
days in advance of any significant changes in the other information required by
Section 5.10 (b).
f. All promotional materials advertising Cable Services shall accurately disclose
price terms, the date or time period upon which any promotional offers will
terminate. In addition, Grantee's website and customer service representatives
shall disclose all tiers of programming available, including the lowest cost options
available. Grantee's Subscriber service representatives shall make the price of
pay-per-view and pay -per -event programming clear before an order is taken.
g. Grantee shall comply with all applicable
Services in multi -unit buildings.
h. Grantee shall not charge Subscriber,
requested; provided, this subsection
existing tier.
i. Grantee shall provide written notific
Service tier to Subscribers at the tirr
such information to Grantee's webs:
telephone. This notification shall *'
ii.
tier
the provision of Cable
they have not affirmatively
adding programming to an
:ion of the availability of the Basic Cable
of Installation and annually thereafter; post
and provide such information over the
ude, ata minimum, the following:
e;
Service tier;
of all;services included in the Basic Cable Service tier.
a. Bills shall be clear, concise and understandable. Bills may be fully itemized to
the; extent allowed by law and this Franchise, provided that all bills shall clearly
reflect only a single total amount due. Bills shall also clearly delineate all activity
during the"billing period, including optional charges, rebates and credits.
Franchise Fees, costs and taxes shall be itemized in a manner that accurately and
fairly portrays the basis for the taxes and fees.
b. In case of a billing dispute, the Grantee shall respond as soon as possible and in
no event longer than ten (10) days. The first response to a specific complaint may
be oral if provided within ten (10) days, and if subsequent responses to the same
complaint are in writing. Grantee shall also provide a written response when
specifically requested by the Subscriber.
34
3017040x6
12.
Bills shall not be past due sooner than thirty (30) days after the date of mailing,
The closing date of the billing cycle shall be shown on the bill.
d. Refund checks shall be issued promptly, as provided in Section 5.8.
e. Credits for service shall be issued no later than the Subscriber's next billing cycle
or thirty (30) days after the determination that a credit is warranted, whichever is
sooner.
f. Grantee shall send written disconnect notices, which may be included in the bill if
visually distinct from the rest of the bill, clearly stating the amount past due that
must be paid to avoid disconnection, the total amount due, and the Customer
Service phone number. If the Subscriber does not respond, Grantee may
disconnect the Subscriber ten 0 01 days after the disconnect notice is sent.
d. The Grantee shall not take any retaliatory action against a'Subscriber because of
the Subscriber's exercise of any right it may have under federal, State, or local
law, nor may the Grantee require a Subscriber to waive such rights as a condition
of service.
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13. Subscriber Privacy. To the extent required by Minn. Stat. §238.084 Subd. 1(s) Grantee
shall comply with the following:
a. No signals including signals of a Class IV Cable Channel may be transmitted
from a Subscriber terminal for purposes of monitoring individual viewing patterns
or practices without the express written permission of the Subscriber. The request
for permission must be contained in a separate document with a prominent
statement that the Subscriber is authorizing the permission in full knowledge of its
provisions. Such written permission shall be for a limited period of time not to
exceed one (1) year which may be renewed at the option of the Subscriber. No
penalty shall be invoked for a Subscriber's failure to provide or renew such
permission. The permission shall be revocable at any time by the Subscriber
without penalty of any kind whatsoever.
b. No information or data obtained by monitoring transmission of a signal from a
Subscriber terminal, including but not limited to lists of the names and,addresses
of Subscribers or any lists that identifythe viewing habits of Subscribers shall be
sold or otherwise made available t 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
snake 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 orrenew such permission. The permission shall be revocable at
any timc-by the Subscriber without penalty of any kind whatsoever.
C. Written permission Froin the Subscriber shall not be required for the conducting of
a. The Grantee may not require a residential Subscriber to enter into a long-term
contract as a condition of providing or continuing Cable Service.
b. The Grantee shall not engage in acts prohibited by federal or State law that have
the purpose or effect of limiting competition for the provision of Cable Service in
the City.
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15. Local Office and Drop Boxes.
e>w
During the term of the Franchise the Grantee shall comply with one of the
following requirements (i) or (ii):
i. Option 1 - The Grantee shall maintain and operate during Normal
Business Hours a local customer service office in the Franchise Area, or
no greater than two (2) miles from the City boundaries, where Subscribers
may make payments, request Service, exchange Converters and other
equipment and schedule service and Installationappointments. After
consultation with the City, the Grantee shall provide Subscribers with at
least sixty (60) days' prior notice of any change in the location of the
customer service center(s) serving the City, -which notice shall apprise
Subscribers of the customer service center's new address, and the date the
changeover will take place.
ii. Option 2 - Grantee shall maintain convenient local Subscriber -service and
bill payment locations for tlfe purpose of receiving Subscriber payments or
equipment returns. Unless otherwise requested by the Subscriber, Grantee
shall deliver replacement equipment`difectly to the Subscriber at no cost to
the Subscriber. The Grantee shall maintain a business office or offices for
the purpose of receiving and resolving all complaints regarding the quality
of service, equipment malfunctions, billings disputes and similar matters.
The office must be reachable by a local, toll-free telephone call, and
Grantee shall provide the City with the name, address and telephone
number of aii office that will act as the Grantee's agent to receive
complaints, regarding quality off service, equipment malfunctions, billings,
Viand similar matters. At a mmYmum Grantee shall also provide the
can remit payments at multiple third party commercial
"thin the City (such as grocery stores or the Western
(B) EGrantee will provide a service technician to any Qualified Living
Unit in the City, free of charge to the Subscriber, where necessary
to replace or troubleshoot equipment issues; and
C) Subscribers shall be able to return and receive equipment, free of
charge, via national overnight courier service (such as Fed Ex or
UPS) if a service technician is not required to visit the Subscriber's
Qualified Living Unit.
(D) In the event Grantee provides Cable Service to a minimum of
thirty percent (30%) of the total number of Cable Service
Subscribers in the City served by cable operators franchised by the
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3017040v6
City, the Grantee shall then be required to also comply with the
requirements of Section 5(15)(a) (i) above.
SECTION 6. ACCESS CHANNEL(S) PROVISIONS
1. Public, Educational and Governmental Access.
a. The City is hereby designated to operate, administer, promote, and manage PEG
access programming on the Cable System.
b. Within one hundred twenty (120) days of the Effective Date'of this Franchise,
the Grantee shall dedicate and make available seven (7) Channels for PEG use in
a standard definition ("SD") and high definition ("HD") digital format on
Grantee's Basic Cable Service tier. Grantee shall provide seven (7) activated
downstream PEG Channels in both SD and HD and shall not reduce the number
of PEG Channels unless directed by the City.
i. Within the first one hundred twenty (120) days after the Effective Date of
this Franchise, the City may draft and provide to Grantee a written
explanation regarding the PEG Channels that will soon be offered by the
Grantee on the Grantee's Cable System.
x
ii. The City shall email the content. of this explanation, which shall not
exceed two hundred fifty (250), words,; to Urantee and Grantee shall, at its
sole cost and free of charge tothe City,:print flyers containing this
explanation ("PEG Flyer");that shall 'be distributed to Grantee's field
technicians serving the City;
iii. " The field technicians shall be instructed to include the PEG Flyer in all
Subscriber installation -backets for the City of Eagan until such time as the
PEG Channels are available in the City.
The additional, PEG Channel added shall at all times remain contiguous with the
existing PEG Channels. Nothing herein shall diminish any rights of the City to
secure additional PEG Channels pursuant to Minn. Stat. § 238.084, which is
expressly incorporated herein by reference.
d. Grantee agrees not to encrypt the PEG Channels differently than commercial
Channels available on the Cable System.
C. In the event the Grantee makes any change in the System and related equipment
and facilities or in signal delivery technology, which change directly or indirectly
causes the signal quality or transmission of PEG Channel programming or PEG
services to fall below technical standards under applicable law, the Grantee shall,
at its own expense, provide any necessary technical assistance, transmission
equipment and training of PEG personnel, and in addition, provide necessary
assistance so that PEG facilities may be used as intended, including, among other
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3017040v6
things, so that live and taped programming can be cablecast efficiently to
Subscribers.
f. Except as otherwise provided for in this Franchise, all PEG Channels shall be
transmitted in the same format as all other Basic Cable Service Channels and shall
be carried on the Basic Cable Service tier.
g. Grantee shall include the PEG Channels and programming information in any
electronic/interactive program guide, program listings, search options, record and
DVR options, navigation systems and search functions accessible through
Grantee's Set Top Box and remote controls, or their suc`cesso'r technologies,
provided to its Subscribers, including, but not limited;to on-screen, print and on-
line program guides which include Channel and program listings of any local
broadcast channels. Grantee shall bear all capital; implementation and operating
costs to include the basic programming informatioh in the programming guides
for the PEG Channels, free of charge and at no cost to the City. The City shall .
have the right to pay for more enhancedprogram information to be made
available on the programming guides including the Channel nameoand logo/icon,
program titles scheduled in thirty (30) minute time blocks, program descriptions,
information needed for search and record features, and any other information
similarly provided for other broadcast channels and, commercial cable/satellite
Channels. Grantee shall, to the maxunum extent possible, make available to the
City any price discounts Grantee may.have in place with third party vendors that
offer such programming guide services.
2. Eagan Mosaic
b. Grantee shall use Channel as the SD Eagan Mosaic Channel and Channel
as the HD Eagan Mosaic Channel to access the PEG Channels required
under this Franchise. The group of seven (7) consecutive PEG Channels residing
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3017040x6
at higher Channel numbers will retain Channel names and identity numbers -
for marketing purposes, unless approved by the City, and will have the final '
two (2) digits matching with the current Basic Cable Service tier Channels -
. The designated Channels shall be as follows: ,
and for SD PEG Channels and 5 , ,
and for HD PEG Channels. Grantee shall not include any other
programming or Channels on the Eagan Mosaic Channel unless the City provides
advance written consent. When using the Eagan Mosaic Channel, Subscribers
shall be directed to the requested PEG Channel in HD format if appropriate to the
Subscriber's level of service; otherwise, the Subscriber shall be directed to the SD
PEG Channel.
C. Grantee shall consult with the City to determine how the PEG Channel
information is displayed on the Eagan Mosaic Channel. The Eagan Mosaic
Channel shall have video and audio signal strength, signal quality, and
navigational functionality equivalent to every other commercial Eagan -Mosaic
Channel carried by the Grantee on its. Cable System.
d. As the Grantee innovates and improves the functi
adds capability for personalization of the Mosaic,
same navigational, interactive and personalizatio
Channel as are available to Subscribers for every
Channel. (For example, if a Subscriber has the c
news channels to the Sports
able to add a PEG Channel to any of the Mosaics.)
nality and interactivity and/or
the Grantee will provide the
features for the Eagan Mosaic
flier commercial Eagan Mosaic
Lability to add selected sports or
i the Subscriber shall also be
e. If through technology changes or innovation in the future, the Grantee
discontinues the use of Mosaic presentations for other Channels including
broadcast channels and eommercial cable/satellite Channels (such as the News
Mosaic, the Sports Mosaic, and/or the Children's Mosaic), then Grantee will
either ;continue to support the Eagan Mosaic Channel as determined in the City's
sole discretion or reach mutual agreement with the City regarding how to
accommodate the Eagan Mosaic Channel to ensure PEG Channels are treated no
less favorably than commercial Channels provided by Grantee. In all cases
Grantee shall maintain Channel _ for use by the City for PEG purposes. The
Grantee shall iot charge Subscribers or the City for use of the PEG Channels, or
any equipment, facilities or services provided by Grantee for the provision of the
PEG Channels.
f. If during this Franchise term Grantee introduces any advanced video format other
than HD on its Cable System ("Advanced Format"), then whenever at least one-
half (1/2) of the primary video feeds of the commercial programmers carried by
Grantee are made available by Grantee to Subscribers in such Advanced Format,
the City shall have the option, in its sole discretion, to require Grantee to carry up
to two (2) PEG Channels, selected by the City, in such Advanced Format. The
City agrees to provide the Grantee twelve (12) months' notice of City's intent to
implement carriage of up to two (2) PEG Channels in an Advanced Format and
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3017040x6
3.
the parties agree that during the twelve (12) months' notice, the Grantee and the
City shall confer regarding the precise details for implementation of up to two (2)
PEG Channels in Advanced Format. Multiple video feeds from a single
commercial programmer that substantially replicate the same programming but
are transmitted in different formats (for example, programming transmitted in
digital SD, HD, and an Advanced Format) shall be counted only once for
purposes of calculating the share of Advanced Format programming feeds in this
section. A PEG Channel transmitted in an Advanced Format shall count toward
the total PEG Channels specified in this section. Nothing in this Franchise shall
require Grantee to provide Subscribers with any equipment needed to view such
Advanced Formats without charge or at reduced rates.
PEG Access Channel Quality.
a. The Grantee shall provide all PEG Chanr
lowest cost tier of service throughout the
times provide the PEG Channels to an'y P
cable Video Programming service,'ind of
State law. The Grantee shall not charge f
facilities or services. Grantee will deliver
on the Basic Cable
of the Franchise G
>n who subscribes to
video and audio signal strength, signal quality,
every other broadcast channi
the Grantee on its Cable Sys
required to obtain or pay for
the PEG Channels.
4. Video On D_einand
ervice tier or the
antee=shall at all
any level of
th federal and
the PEG Channels, equipment,
innels to Subscribers with
functionality equivalent to
ale/satellite channels carried by
lat Subscribers will not be
lent required solely to receive
aponents of the SD and HD PEG access signals
will also ensure the PEG Channels have the following
it not limited to, closed captioning, multichannel
recording or DVR capability, last Channel capability,
and any captioning or text signals which are inserted by
AC'ity on its PEG Channels and other elements
the PEG programming. Grantee. shall not be required to carry a
a higher quality format than that of the signal delivered to
antee shall distribute all PEG Channels without degradation.
a. During the term of its Franchise, for as long as the Grantee snakes video on
demand ("VOD") available on its Cable System, Grantee will include in its VOD
offerings twenty-five (25) hours of either SD or HD PEG programming, or a
combination of both, or such greater amount as may be mutually agreed to by the
City and Grantee, as designated and supplied by the City to the Grantee. The
City's content may be electronically transmitted and/or transferred and stored on
the Grantee's VOD system. The City VOD PEG programming will be available to
Subscribers twenty-four (24) hours per day, seven (7) days per week. Any City
PEG programming placed on VOD shall be available to Subscribers free of
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3017040x6
charge. The Grantee will provide, upon City's request, any aggregate data
regarding Subscriber use of the City's programming on the VOD platform. PEG
programming content shall have the same viewing quality and features (including
program descriptions and search functions) as all other free VOD content on
Grantee's Cable System. Programming submitted for placement on the VOD
system shall be placed on and available for viewing from the VOD system as soon
as possible from time of receipt of said programming and Grantee will make best
efforts to provide a 24-hour turn -around, and in no case longer than seventy-two
(72) hours from receipt of said programming. Grantee agrees to treat PEG VOD
programming in a nondiscriminatory manner as compared"to other providers of
VOD content.
b. The City shall have the sole discretion to select the content of such VOD PEG
programming and shall be responsible for such content. The City's VOD PEG
programming will be located on Grantee's on=domand menu pages on the second
page or higher. The City's VOD PEG programming will be availablevin the
City's Franchise Area, or more broadly distributed at Grantee's option.
C. To the extent permitted, Grantee shall authorize City to obtain from Grantee's
third party vendor, free of charge and at no cost to, the City, monthly
viewership/traffic reports to the City showing statistics for VOD PEG programs,
or Grantee shall provide (or require its third party vendor to provide) the City with
access to online dashboard analytics allowing CityMaff to directly access traffic
information.
d. Grantee shall, upon request of the City, provide free of charge reasonable training
to City staff regardii* how to implement and use the VOD system so that the City
b. Upon sixty (60) days' written notice to Grantee, City may elect to unilaterally
change the PEG Fee to a different dollar amount per Subscriber per month or
change the format to a percentage of Gross Revenues up to a maximum of two
and one-half percent (2.5%) of Gross Revenues. In no event shall the PEG Fee be
assessed in an amount different from that imposed upon the existing franchised
cable communications provider. In the event the existing franchised cable
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3017040x6
communications provider agrees to a higher, or lower, PEG Fee, Grantee will
increase, or decrease, its PEG Fee upon sixty (60) days' written notice from the
City. The PEG Fee may be used for operational or capital support of PEG
programming as determined in the City's sole discretion.
C. The PEG Fee is not intended to represent part of the Franchise Fee and is intended
to fall within one (1) or more of the exceptions in 47 U.S.C. § 542. The PEG Fee
may be categorized, itemized, and passed through to Subscribers as permissible,
in accordance with 47 U.S.C. §542 or other applicable laws. Grantee shall pay
the PEG Fee to the City quarterly at the same time as the payment of Franchise
Fees under Section 7.3 of this Franchise. Grantee agrees'that`it will not offset or
reduce its payment of past, present or future Franchise. Fees required as a result of
its obligation to remit the PEG Fee.
d. The Grantee shall pay one (1) PEG Fee on the master account for services
delivered to non -dwelling bulk accounts, .such as hotels, motels nor hospitals. If
the PEG Fee is not assessed as a percentage of dross Revenues, the Grantee shall
calculate PEG Fees on a pro rata basis fot:bulk accounts in residential multiple
dwelling unit ("MDU") buildings in the following manner: if the bulk rate for
Basic Cable Service is one third (1/3) of the current residential rate, then apro-
rated PEG Fee shall be added to the bulk bill for an MDU building in an amount
equal to one third (1/3) of the current PEG Fee. If the bulk rate for Basic Cable
Service is raised in any MDU building, the pro ratcdPEG Fee in that building
shall be recalculated and set based onFthe foregoing formula, regardless of any cap
Z!
on per Subscriber PEG Fee amounts..
Any PEG Fees owingpursuant to this _Franchise which remain unpaid more than
twenty=five (25) days after the date:the payment is due shall be delinquent and
shall thereafter accrue interest at twelve percent (12%) per annum or the prime
lending rate published by the Wall Street Journal on the day the payment was due
plus two percent (2%), whichever is greater.
Grantee shall, free of charge and at no cost to the City, provide and maintain any
facilities and required equipment to enable Grantee to acquire and transport
Access Channel programming from the following locations:
i. From the mutually agreed upon Demarcation Point in the Eagan Master
Control Center located at 3830 Pilot Knob Road to Grantee's headend;
ii. From the Burnsville City Hall located at 100 Civic Center Pkwy,
Burnsville, MN to the Grantee's headend.
Grantee shall not in any manner degrade, interfere or adversely impact the audio
and video signal quality of the PEG Channels from the above locations in this
Section 6.5 f (i) and (ii).
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3017040x6
g. Grantee shall distribute, free of charge and at no cost to City, through advertising
insertion equipment, thirty (30) second promotional and awareness commercial
spots, on a "run of schedule" basis in unsold time slots, produced at City's cost
and submitted by City once each month in a format compatible with such
advertising insertion equipment. Grantee shall provide monthly ad insertion
affidavits in the same format provided to commercial advertising clients.
h. Throughout the term of the Franchise, and as the terin may be extended, Grantee
shall provide, free of charge and at no cost to the City, at a location designated by
the City, high speed internet service with a modem, with.,Gi'antee's highest
available upstream bandwidth, which may be used by the City for public use and
various PEG purposes as determined in City's sole discretion.
Upon sixty (60) days' notice from the City, the Grantee shall=twice annually, at
the Grantee's sole cost and free of charge to the City, print and mail a post card
promoting the PEG programming to Grantee's Subscribers in the;Franchise Area.
The post card shall be designed by the City and shall conform to the Grantee's
standards and policies for size and weight. Any pos%card denigrating the Grantee,
its service or its programming is not permitted_
6. Metro Cable Network Channel 6.. -The Grantee shall designate Metro Cable Network
Channel 6 for uniform regional Channe u.' sage to the extent required by State law.
7. Leased Access Channels. The Grantee shall .provide Leased Access Channels as
required by federal and State law.
8. Subscriber Network Drops :to Designated Buildings.
b. Service to Designated Public Buildings. Grantee shall , free of charge and at no
cost, Standard Definition Cable Service (currently Prism Essentials) which, at a
minimum, shall include a package of Channels including all Broadcast and PEG
Channels and at least one hundred (100) additional commercial channels (but not
including pay-per-view or premium Channels, ("Complimentary Public Building
44
30170400
Service") including all necessary Standard Definition and High Definition
reception equipment for to up to three (3) television sets at all other government
buildings, schools and public libraries identified on Exhibit A attached hereto and
made a part hereof. Exhibit A may be modified by the City from time to time to
accommodate changes in city/school/community facilities locations. Grantee
shall provide the Complimentary Public Building Service so long as these
addresses in Exhibit A are designated as a Qualified Living Unit and no other
franchised cable communications provider is providing complimentary service at
such location. However, City may determine to disconnect the other franchised
.Y
cable communications provider and require Grantee to meet,the Complimentary
Public Building Service obligations set forth herein, as determined in City's sole
discretion provided the selected location is a Qualified Living Unit. However,
Grantee agrees that to ensure necessary connectivity for public safety purposes,
the City's designated Emergency Operations Center, located at 1001 Station Trail,
shall be entitled to Complimentary Public Building Service from both Grantee
and any other franchised cable operator. For purposes of this Section 68 (b),
"school" means all State-accreditedj,,'=12 public and private schools.'
additional Subscriber network Drop and/or outlets. Within no more than ninety
(90) days thereafter, the City shall work with institution requesting the additional
Subscriber network Drop and/or outlets and provide Grantee with written
approval, if applicable, to move forward with the additional Subscriber network
Drop and/or outlets. Grantee shall only begin work on construction of the
additional Subscriber network Drop and/or outlets once final approval is received
from the City, and Grantee shall complete construction within thirty (3 0) days
from the date of approval. Grantee shall bill the institution requesting the
additional Subscriber network Drop and/or outlets its Actual Costs in accordance
with the agreed upon estimate. The terms and conditions of such payment shall
be between the Grantee and the institution. Alternatively, said institutions may
add outlets at their own expense, as long as such Installation meets Grantee's
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3017040v6
standards and approval which approval shall not be unreasonably withheld.
Grantee shall have three (3) months from the date of City designation to complete
construction of the Drop and/or outlets unless weather or other conditions beyond
the control of Grantee requires more time.
e. Grantee agrees that it will not offset or reduce its payment of past, present or
future Franchise Fees required pursuant to Sections 7.3 and 7.4 of this Franchise,
as a result of its obligation to provide the services listed in Section 6.8 and Exhibit
A of this Franchise.
41
f. Maintenance of said Complimentary Public Building Service shall be provided
free of fees and charges.
SECTION 7. OPERATION AND ADMINISTRATION PROVISIONS
1. Administration of Franchise. The City's designated cable television administrator, or
its designee shall have continuing regulatory jurisdictiorn and supervision over the System
and the Grantee's operation under the Franchise. The City=may issue such reasonable
rules and regulations concerning the construction, operation and maintenance of the
System as are consistent with the provisions of the Franchise and law.
2. Delegated Authority. The City may appoint a citizen advisory'body or a joint powers
commission, or may delegate to any otherbody or Person authority to administer the
Franchise and to monitor the performance of the Grantee pursuant to the Franchise. The
Grantee shall cooperate with any such delegatee of the City.
3. Franchise Fee.
a. During the term of the Franchise, the Grantee shall pay quarterly to the City or its
delegatee a Franchise Fee in an amount equal to five percent (5%) of its Gross
Revenues._ If any such law, regulation or valid rule alters the five percent (5%)
AF
Franchise.Fee ceiling enacted by the Cable Act, then the City shall have the
authority t: (but shall notbe required to) increase the Franchise Fee accordingly,
provided such increase is for purposes not inconsistent with applicable law. In the
event Grantee bundles or combines Cable Services (which are subject to the
Franchise Fee) with non -Cable Services (which are not subject to the Franchise
Fee) so that Subscribers pay a single fee for more than one (1) class of service
resulting in a discount on Cable Services, Grantee agrees that for the purpose of
calculation of the Franchise Fee, it shall allocate to Cable Service revenue no less
than a pro rata share of the revenue received for the bundled or combined
services. The pro rata share shall be computed on the basis of the published
charge for each service in the bundled or combined classes of services when
purchased separately. At no time during the term of this Franchise shall the
Grantee be required to pay a Franchise Fee percentage that is greater than the
monthly Franchise Fee percentage paid by any other franchised cable provider
within the City.
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3017040v6
b. Any payments due under this provision shall be payable quarterly. The payment
shall be made within thirty (30) days of the end of each of Grantee's fiscal
quarters together with a Franchise Fee payment worksheet, attached hereto as
Exhibit B, signed by an authorized representative of Grantee, which identifies
Gross Revenues earned by Grantee during the period for which payment is made.
C. All amounts paid shall be subject to audit and recomputation by City and
acceptance of any payinent shall not be construed as an accord that the amount
paid is in fact the correct amount. City agrees to conduct no more than one (1)
audit during the initial five (5) year Franchise term, unless the audit discovers an
underpayment in which case the City reserves the right"to conduct further audits.
If the City extends the Franchise for an additional term of five (5) years, the City
agrees to conduct no more than two (2) audits during the additional five (5) year
Franchise term. The Grantee shall be responsible for providing the City all
records necessary, without delay, to confirm the accurate payment of Franchise
Fees. All such documents pertaining to financial matters that maybe the subject
of an inspection by the City shall be retained by the Grantee for a minimum
period of six (6) years, pursuant to Minnesota Statues Section 54.05. If an audit
discloses an overpayment or underpayment of Franchise Fees, the City shall
notify the Grantee of such overpayment or underpayment. The City's audit
expenses shall be borne bythe. City unless the audit determines that the payment
to the City should be increased bymore than five percent (5%) in the audited
period, in which case the costs, of the audit shall be4borne by the Grantee as a cost
incidental to the enforcement 64 :the Franchise. Any additional amounts due to the
City as a result of the audit shall ,h&aid to the City within thirty (30) days
following written notice to the Grantee by the City of the underpayment, which
notice shall include a! copy of the eport. If the recomputation results in
additional revenue to be paid to the'City, such amount shall be subject to a ten
percent (10%) annual interest charge. If the audit determines that there has been
an overpayment by the Grantee, the Grantee may credit any overpayment against
its next quarterly payment.,
f. The Franchise Fee payments required by this Franchise shall be in addition to any
and all taxes or fees of general applicability. The Grantee shall not have or make
any claim for any deduction or other credit of all or any part of the amount of said
Franchise Fee payments from or against any of said taxes or fees of general
applicability, except as expressly permitted by law. The Grantee shall not apply
nor seek to apply all or any part of the amount of said Franchise Fee payments as
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3017040x6
4.
6.
a deduction or other credit from or against any of said taxes or fees of general
applicability, except as expressly permitted by law. Nor shall the Grantee apply
or seek to apply all or any part of the amount of any of said taxes or fees of
general applicability as a deduction or other credit from or against any of its
Franchise Fee obligations, except as expressly permitted by law.
Not Franchise Fees.
a. The Franchise Fees provided for in Section 7.3 of this Franchise shall not be
deemed to be in the nature of a tax, and shall be in addition to any and all taxes of
general applicability and other fees and charges which the Grantee shall be
required to pay to the City and/or to any other governmental authority, all of
which shall be separate and distinct obligations of Grantee.
b. Grantee shall not apply or seek to apply or make any claim that all or any part of
the Franchise Fees or other payments or, contributions to be made by Grantee to
City pursuant to this Franchise and shall,be deducted from or credited"or offset
against any taxes, fees or assessments of general applicability levied or imposed
by the City or any other governmental authority;' including any such tax, fee or
............. ..
assessment imposed on both utilities and cable.:operators or their services.
C. Grantee shall not apply or seek to apply all or anypart. & any taxes, fees or
assessments of general applicability levied or imposed by the City or any other
governmental authority (including any such tax, fee or assessment imposed on
both utilities and cable operators or their services) as a deduction or other credit
from or against any. of the Franchise Fees or"other payments or contributions to be
paid or made pursuant by Grantee to City to this Franchise, each of which shall be
deemed to be separate and distinct obligations of the Grantee.
Records Required. 'Franchisee shall at all times maintain and provide to the City, within
thirty (30) calendar days of a written request:
a. Records of all complaints, pursuant to Section 5.5 (g -h) of this Franchise, for a
period of six (6) years after receipt by Grantee, including the nature of each
complaint, the date it was received, the disposition of the complaint, if any, and
the date thereof;
103
Records of outages for a period of six (6) years after occurrence, indicating date,
duration, area, and the number of Subscribers affected, type of outage, and cause;
48
30170400
C. Records of service calls for repair and maintenance for a period of six (6) years
after resolution by Grantee, indicating the date and time service was required, the
date of acknowledgment and date and time service was scheduled (if it was
scheduled), and the date and time service was provided, and (if different) the date
and time the problem was resolved;
d. Records of installation/reconnection orders for a period of six (6) years after the
request was handled by Grantee, indicating the date of request, date of
acknowledgment, and the date and time service was extended;
Records documenting Franchisee's compliance with the provisions of this
Franchise;
f. Unless already provided by the Grantee at the quarterly meetings with City
required in Section 2.8 herein, Grantee shall make'available accurate maps and
improvement plans which show the location, size and a general description of all
Grantee's facilities installed in the public Rights -'Of -Way and any power supply
sources, including voltages and connections (maps shall be based on post -
construction inspection to verify location); and
g. Grantee shall comply with!FCC record-keeping regulations, and snake the results
of such record-keeping available to the City upon request.
7. Reports and Maps to be Filed with
C. Upon request of the City and in no event later than thirty (30) days from the date
of receipt of such request, the Grantee shall prepare and furnish to the City, at the
times and m the form prescribed, such other reasonable reports with respect to
Grantee's operations pursuant to this Franchise as the City may require. The City
shall use its best efforts to protect proprietary or trade secret information all
consistent with State and federal law.
d. If required by the City, the Grantee shall make available to the City the maps,
plats, and permanent records of the location and character of all Grantee's
facilities constructed, including underground facilities; and Grantee shall make
available to the City updates of such maps, plats and permanent records annually
if changes have been made to the System by Grantee in the Rights -of -Way.
49
3017040x6
8.
1.
e. Unless otherwise specified in the Franchise, all reports, records and maps required
hereunder shall be made available to the City within thirty (30) days of the City's
request or requirement. Failure to do so shall result in Grantee being subject to
liquidated damages, pursuant to Section 8(2) (c) (i).
Periodic Evaluation.
a. The City may require evaluation sessions at any time during the term of this
Franchise, upon fifteen (15) days written notice to the Grantee.
b. Topics which may be discussed at any evaluation session mainclude, but are not
limited to, application of new technologies, System performance, programming
offered, access Channels, facilities and support, Subscriber rates, customer
complaints, amendments to this Franchise, judicial rulings, FCC rulings, and any
other topics the City deems relevant.
C. As a result of a periodic review or evalua
Grantee shall meet with City and unerta
on changes and modifications to the term
are legally, economically and technically
SECTION 8. GENERAL FINAN
Performance Bond.
a. Within thirty (30) days of the Effe
thereafter, until the Grantee has liq
Grantee shall furnish a bond to the
F
upon notification from City,
efforts to reach agreement
ons of the Franchise which
ONS
the Franchise and at all times
ed all of its obligations with the City, the
in the amount of One Hundred Thousand
and/No Dollars ($100,000.00) in a„form and with such sureties as are reasonably
acceptable to the City. This bond will be conditioned upon the faithful
performance by the Grantee of its Franchise obligations and upon the further
condition that in the event,,the Grantee shall fail to comply with any law,
ordinance orregulation governing the Franchise, there shall be recoverable jointly
and severally from the principal and surety of the bond any damages or loss
suffered by City as a result, including the full amount of any compensation,
indemnification or cost of removal or abandonment of any property of the
Grantee, plus a reasonable allowance for attorneys' fees and costs, up to the full
amount "of the bond, and further guaranteeing payment by the Grantee of claims,
liens and taxes due the City which arise by reason of the construction, operation,
or maintenance of the System. The rights reserved by the City with respect to the
bond are in addition to all other rights the City may have under the Franchise or
any other law. The City may, from year to year, in its sole discretion, reduce the
amount of the bond.
b. The time for Grantee to correct any violation or liability shall be extended by City
if the necessary action to correct such violation or liability is, in the sole
determination of 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
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30170400
it requires more than thirty (30) days to correct such violations or liability,
commences the corrective action within the thirty (30) day cure period and
thereafter uses reasonable diligence to correct the violation or liability.
C. In the event this Franchise is revoked by reason of default of Grantee, City shall
be entitled to collect from the performance bond that amount which is attributable
to any damages sustained by 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 City has not notified Grantee of any
actual or potential damages incurred as a result of Grantee's operations pursuant
to the Franchise or as a result of said default.
e. The rights reserved to City, as applicable, witkrespect to the performance bond
are in addition to all other rights of 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:City may have.
2. Letter of Credit.
C. In addition to recovery of any monies owed by the Grantee to the City or any
Person or damages to the City or any Person as a result of any acts or omissions
by the Grantee pursuant to the Franchise, the City in its sole discretion may
charge to and collect from the Letter of Credit the following penalties:
i. � For failure to provide data, documents, reports or information or to
cooperate with City during an application process or system review or as
otherwise provided herein, the penalty shall be Two Hundred Fifty and
No/100 Dollars ($250.00) per day for each day, or part thereof, such
failure occurs or continues;
ii. Fifteen (15) days following notice from City of a failure of Grantee to
comply with construction, operation or maintenance standards, the penalty
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3017040x6
shall be Five Hundred and No/100 Dollars ($500.00) per day for each day,
or part thereof, such failure occurs or continues;
iii. For failure to provide the services and the payments required by this
Franchise, including, but not limited to, the implementation and the
utilization of the PEG Access Channels, the penalty shall be Five Hundred
and No/100 Dollars ($500.00) per day for each day, or part thereof, such
failure occurs or continues;
iv. For Grantee's breach of any written contract or agreement with or to the
City, the penalty shall be Five Hundred and NP/166 I ollar ($500.00) per
day for each day, or part thereof, such breach`. curs or continues; and
V. For failure to comply with any of the provisions of this Franchise for
which a penalty is not otherwise sp�eclficaly provided pursuant to this
paragraph (c), the penalty shall be ;Two Hundred Fifty and No/1.00 Dollars
($250.00) per day for each day; or part thereof, such failure occurs or
continues.
The Grantee.may, within seven (7) days of receipt of such written notice, notify
the City m wrifing that there is a dispute as to whether a violation or failure has in
fact occurred;Such written notice by the Grantee to the City shall specify with
particularity the matters disputed by Grantee. City shall hear Grantee's dispute
witlunsixty (60) days and the City shall render a final decision within sixty (60)
daysAereafter.
g. If Grantee does not dispute the alleged violation or upon the determination of the
City that a violation has taken place, subject to Grantee's right to seek any
applicable judicial review, the City may draw from the Letter of Credit an amount
to cover any failure of Grantee to pay penalties accrued but unpaid after seven (7)
days written notice of such final determination.
h. If said Letter of Credit or any subsequent Letter of Credit delivered pursuant
thereto expires prior to thirty (30) months after the expiration of the term of this
Franchise, it shall be renewed or replaced during the term of this Franchise to
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3017040x6
3.
provide that it will not expire earlier than thirty (30) months after the expiration of
this Franchise. The renewed or replaced Letter of Credit shall be of the same
form and with a bank authorized herein and for the full amount stated in
paragraph (a) of this section.
i. If the City draws upon the Letter of Credit or any subsequent Letter of Credit
delivered pursuant hereto, in whole or in part, the Grantee shall replace or
replenish to its full amount the same within ten (10) days and shall deliver to the
City a like replacement Letter of Credit or certification of replenishment for the
full amount stated in Section 8.2(a) as a substitution of the previous Letter of
Credit. This shall be a continuing obligation for any withdrawals from the Letter
of Credit. _
j. If any Letter of Credit is not so replaced or reple
said Letter of Credit for the whole amount there
City determines in its sole discretion. The`failux
Letter of Credit may also, at the option of the Ci
Grantee under this Franchise. The drawing on t]
and use of the money so obtained for payment o
duties and responsibilities of the Grantee which
waiver or release of such default.
k. The collection by City of an
Credit shall not affect any o
or failure to act, by the City
of any
pursuant
[shed, the _City may draw on
'and use the proceeds as the
to replace or replenish any
be deemed a default by the
Letter of Credif by the City,
performance of the obligations,
re in default, shall not be a
or penalties from the Letter of
Al
available to it, nor shall any act,
ctt to the Letter of Credit, be deemed a waiver
this Franchise or otherwise.
a. Grantee shall, at its sole expense;'' fully indemnify, defend and hold harmless the
City, and in their capacity as such, the officers and employees thereof, from and
against any and all claimssuits, actions, liability and judgments for damage or
otherwise except those arising wholly from negligence on the part of the City or
its employees; 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 City, its
officers, or its employees from participating in the defense of any litigation by
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3017040x6
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 City, its officers, or its employees.
b. Grantee shall contemporaneously with this Franchise execute an Indemnity
Agreement in a form acceptable to the City attached as Exhibit C, which shall
indemnify, defend and hold the City harmless for any claim for injury, damage,
loss, liability, cost or expense, including court and appeal costs and reasonable
attorneys' fees or reasonable expenses arising out of the actions of the City in
granting this Franchise. This obligation includes any claims by another
franchised cable operator against the City that the terms and conditions of this
Franchise are less burdensome than another franchii e,granted by the City or that
this Franchise does not satisfy the requirements�ofapplicable federal, State, or
local laws.
C. The Grantee shall not be required to indemnify the City for negligence, or
misconduct related solely to PEG programming, 'on the part of the City or either
of their officers, boards, committees, commissions, elected or appointed officials,
employees, volunteers or agents, including any loss or claims.
4. Insurance.
b. The policies of insurance shall be in the sum of not less than $1,000,000.00 for
personal injury or death of any one Person, and $2,000,000.00 for personal injury
or death of two or more Persons in any one occurrence, $1,000,000.00 for
property damage to any one person and $2,000,000.00 for property damage
resulting from any one act or occurrence.
C. The policy or policies of insurance shall be maintained by Grantee in full force
and effect during the entire term of the Franchise. Each policy of insurance shall
contain a statement on its face that the insurer will not cancel the policy or fail to
renew the policy, whether for nonpayment of premium, or otherwise, and whether
54
3017040x6
at the request of Grantee or for other reasons, except after sixty (60) days advance
written notice have been provided to the City.
SECTION 9. SALE, ABANDONMENT, TRANSFER AND REVOCATION OF FRANCHISE
1. City's Right to Revoke.
a. In addition to all other rights which City has pursuant to law or equity, City
reserves the right to commence proceedings to revoke, terminate or cancel this
Franchise, and all rights and privileges pertaining thereto;1if i s determined by
City that:
i. Grantee has violated material provisions(s) of this Franchise; or
ii. Grantee has attempted to evade any, of the provisions of the Franchise; or
iii. Grantee has practiced fraud or deceit upon City.
b. City may revoke this Franchise without the hearing required by Section 9.2(b)
herein if Grantee is adjudged to be bankrupt.
2. Procedures for Revocation.
C. Only after the public hearing and upon written notice of the determination by the
Cty,to revoke the Franchise may the Grantee appeal said decision with an
appropriate State or federal court or agency.
d. During the appeal period, the Franchise shall remain in full force and effect unless
the term thereof sooner expires or unless continuation of the Franchise would
endanger the health, safety and welfare of any person or the public.
3. Abandonment of Service. The Grantee may not abandon the System or any portion
thereof without having first given three (3) months written notice to the City. The
Grantee may not abandon the System or any portion thereof without compensating the
City for damages resulting from the abandonment, including all costs incident to removal
of the System, if required by the City pursuant to Section 9.4.
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3017040v6
4.
5.
Removal After Abandonment, Termination or Forfeiture.
a. In the event of termination or forfeiture of the Franchise or abandomnent of the
System, the City shall have the right to require the Grantee to remove all or any
portion of the System utilized exclusively for the provision of Cable Services
from all Rights -of -Way and public property within the City.
b. If the Grantee has failed to commence removal of the System pursuant to
subsection 9.4 (a), or such part thereof as was designated by the City, within thirty
(30) days after written notice of the City's demand for removal is given, or if the
Grantee has failed to complete such removal within twelve (12) months after
written notice of the City's demand for removal is given, the City shall have the
right to apply funds secured by the Letter of Credit and'Performance Bond toward
removal and/or declare all right, title, and interest'to the System to be in the City
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.
Sale or Transfer of Franchise.
a. No sale or transfer of the Franchise, or sale, transfer, or fundamental corporate
b. Subject to the exceptions in Section 9.5 (a), any sale, transfer, exchange or
assignment of stock in Grantee, or Grantee's parent corporation or any other
entity having a controlling interest in Grantee, so as to create a new controlling
interest therein, shall be subject to the requirements of this Section 9.5. The term
"controlling interest" as used herein is not limited to majority stock ownership,
but includes actual working control in whatever manner exercised. In any event,
as used herein, a new "controlling interest" shall be deemed to be created upon
the acquisition through any transaction or related group of transactions of a legal
or beneficial interest of fifteen percent (15%) or more by one Person. Acquisition
by one Person of an interest of five percent (5%) or more in a single transaction
shall require notice to the City.
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30170400
C. The Grantee shall file, in addition to all documents, forms and information
required to be filed by applicable law, the following:
i. All contracts, agreements or other documents that constitute the proposed
transaction and all exhibits, attachments, or other documents referred to
therein which are necessary in order to understand the terms thereof.
ii. A list detailing all documents filed with any state or federal agency related
to the transaction including, but not limited to, the MPUC, the FCC, the
FTC, the FEC, the SEC or MnDOT. Upon request; Grantee shall provide
City with a complete copy of any such document; and
iii. Any other documents or information related to the transaction as may be
specifically requested by the City.
f. In no event shall a sale, transfer, corporate change, or assignment of ownership or
control pursuant to subparagraph (a) or (b) of this section be approved without the
transferee becoming a signatory to , 1, ranchise and assuming all rights and
g. Ili the event of any -proposed sale, transfer, corporate change, or assignment
pursuant to subparagraph (a) or (b) of this section, the City shall have the right to
purchase the System,",, -,utilized exclusively for the provision of Cable Service, for
the value of the consideration proposed in such transaction. The City shall be
notified by Grantee of City's right to purchase upon City's receipt of notice of the
material terms of an offer or proposal for sale, transfer, corporate change, or
assignment, which Grantee has accepted. Notice of such offer or proposal must
be conveyed to City in writing and separate from any general announcement of
the transaction.
h. The City shall be deemed to have waived its right to purchase the System
pursuant to this section only in the following circumstances:
i. If City does not indicate to Grantee in writing, within sixty (60) days of
receipt of written notice of a proposed sale, transfer, corporate change, or
assignment as contemplated in Section 9.5(g) above, its intention to
exercise its right of purchase; or
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3017040x6
ii. It approves the assignment or sale of the Franchise as provided within this
section.
i. No Franchise may be transferred if the City determines the Grantee is in
noncompliance of the Franchise unless an acceptable compliance program has
been approved by City. The approval of any transfer of ownership pursuant to
this section shall not be deemed to waive any rights of City to subsequently
enforce noncompliance issues relating to this Franchise.
j. Any transfer or sale of the Franchise without the prior written consent of the City
shall be considered to impair the City's assurance of due performance. The
granting of approval for a transfer or sale in one instance shall not render
unnecessary approval of any subsequent transfer or sale for. which approval would
otherwise be required.
SECTION 10. PROTECTION OF INDIVIDUAL RIGHTS;
1. Discriminatory Practices Prohibited. Grantee shall not deny service, deny access, or
otherwise discriminate against Subscribers or general citizens on the basis of race, color,
religion, national origin, sex, age, status as to public assistance, affectional preference, or
disability. Grantee shall comply at all times with all other applicable federal, State, and
City laws.
SECTION 11. UNAUTHORIZED CONNECTIONS AND MODIFICATIONS
1. Unauthorized Connections or Modifications Prohibited. It shall be unlawful for any
frm> Person, group, `com company, corporation, or governmental body oragency,
without the
express consen
of the Grantee, to make or Ocss, or assist anybody in making or
possessing, any unauthorized connection, Fextension, or division, whether physically,
acoustically, inductively, 'electronically or otherwise, with or to any segment of the
System or, to receive services of the System without Grantee's authorization.
2. Removal or Destruction Prohibited. It shall be unlawful for any firm, Person, group,.
>`(company, or corporation to willfully interfere, tamper with, remove, obstruct, or damage,.
or assist thereof, anypart or segment of the System for any purpose whatsoever, except
for any rights the City may have pursuant to this Franchise or its police powers.
3. Penalty. Any.-, Person, group, company, or corporation found guilty of violating this
section may be fined not less than Twenty Dollars ($20.00) and the costs of the action or
more than Five Hundred Dollars ($500.00) and the costs of the action for each and every
subsequent offense. Each continuing day of the violation shall be considered a separate
occurrence.
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30170400
SECTION 12. MISCELLANEOUS PROVISIONS
1. Franchise Renewal. Any renewal of this Franchise shall be performed in accordance
with applicable federal, State and local laws and regulations. The term of any renewed
Franchise shall be limited to a period not to exceed fifteen (15) years.
2. Work Performed by Others. All applicable obligations of this Franchise shall apply to
any subcontractor or others performing any work or services pursuant to the provisions of
this Franchise, however, in no event shall any such subcontractor or other performing
work obtain any rights to maintain and operate a System or provide Cable Service.
Grantee shall be responsible for all work performed by its contractor 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 responsibility to ensure that
contractors, subcontractors or other Persons performing work on Grantee'"s behalf are
familiar with the requirements of this Franchises the City Code and other applicable laws
governing the work performed by them.
3. Amendment of Franchise Ordinance. The Grantee and the City may agree, from time
to time, to amend this Franchise. Such written amendments may be made subsequent to a
review session pursuant to Section 7.8 or at any other time if the City and the 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 the City's exercise of its police powers.
4. Compliance
and Local 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 followingknowledge 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 year after they become effective, unless otherwise stated, and
conform to federal laws and regulations regarding cable as they become effective.
b. In the event that federal or State laws, rules or regulations preempt a provision or
limit the enforceability of a provision of this Franchise, the provision shall be read
to be preempted to the extent and for the time, but only to the extent and for the
time, required or necessitated by law. In the event such federal or State law, rule
or regulation is subsequently repealed, rescinded, amended or otherwise changed
so that the provision hereof that had been preempted is no longer preempted, such
provision shall thereupon return to fall force and effect, and shall thereafter be
binding on the parties hereto, without the requirement of further action on the part
of the City.
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3017040x6
C. If any tern, 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 without further action by the City.
d. The City and Grantee shall, at all times duringthe tern of this Franchise,
including all extensions and renewals thereof, comply with applicableZederal,
State and local laws and regulations.. ' ..
5. Nonenforcement by City. The failure of the
right or to require compliance or performance
other applicable law or regulation'shall
or a waiver of compliance or perforna
complying or performing, unless such
specifically waived in writing. Waiver
of any other breach, whether similar to
of the Franchise,
constitute a wait
City, includin'v
no recourse agaij
out of anv action
of or a'bar to the f
lout limitation the
or
not be deemed
Lee by the City
or more occasions to exercise a
ranchise, the City Code or any
,onstitute a waiver of such right
toe cuse the Grantee from
lance or performance has been
ll
each of this Franchise shall not be a waiver
-rent from that waived. Neither the granting
any action by the City hereunder shall
1;f any governmental right or power of the
eminent domain. The Grantee shall have
expense, claim, liability or damage arising
a by the Grantee pursuant to the Franchise,
or the City 'Code, whether or not such action or non -action was required by the Franchise,
J.
or the City Code, arisingut
oof the enforcement or non -enforcement by the City of any
provision or requirement of this Franchise, or the City Code, or otherwise arising out of
or the City Code.
6. Rights Cumulative. All rights and remedies given to City by this Franchise or retained
by City herein shah be in addition to and cumulative with any and all other rights and
remedies, existing or implied, now or hereafter available to 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 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.
7. Grantee Acknowledgment of Validity of Franchise. The 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 terns and conditions are not unreasonable or
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3017040x6
arbitrary, and that Grantee believes City has the power to snake the terms and conditions
contained in this Franchise.
8. Force Majeure. The Grantee shall not be deemed in default of provisions of this
Franchise or the City Code where performance was rendered impossible by war or riots,
labor strikes or civil disturbances, floods, or other causes beyond the Grantee's control,
and the Franchise shall not be revoked or the Grantee penalized for such noncompliance,
provided that the Grantee, when possible, takes immediate and diligent steps to bring
itself back into compliance and to comply as soon as possible, under the circumstances,
with the Franchise without unduly endangering the health, safety and integrity of the
Grantee's employees or property, or the health, safety and integrity of the public, the
Rights -of -Way, public property or private property. In the event Grantee's performance
of any of the terms, conditions, obligations or requirements of this,Franchise is prevented
or impaired due to any cause set forth in this paragraph, such inability to perform shall be
deemed to be excused for the period of such inability and no penalties or sanctions shall
be imposed as a result thereof, provided Grantee las notified City in writing within ten
(10) days of the City's notice of an alleged violation.
9. Governing Law. This Franchise shall be
of Minnesota.
respects by the law of the State
b. When any provision of the City Code is expressly mentioned herein, such
12.
Franchis
written f
SECTION 13.
s. This Franchise and the attachments hereto, constitute the entire
etween the City and the Grantee, and supersede all prior oral or
understandings.
CATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
1. Publication. This Franchise shall be published in accordance with applicable local and
Minnesota law.
2. Acceptance.
a. Grantee shall accept this Franchise within sixty (60) days of its enactment by the
City Council, unless the time for acceptance is extended by the City. The City's
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30170400
"Notice of Intent to Consider an Application for a Franchise" ("Notice")
provided, consistent with Minn. Stat. 238.081 subd. 8, that applicants would be
required to reimburse the City for all necessary costs of processing a cable
communications franchise. Grantee submitted an application fee with its
application to the City. The Notice further provided that any unused portion of
the application fee would be returned and any additional fees required to process
the application and franchise, beyond the application fee, would be assessed to the
successful applicant. The Grantee shall therefore submit to the City at the time of
acceptance of this Franchise, a check made payable to the City of Eagan,
Minnesota for all additional fees and costs incurred by the City. The City shall
provide Grantee with a letter specifying such additional costs following approval
of this Franchise by the City Council. Such acceptance by the Grantee shall be
deemed the grant of this Franchise for all purposes provided,, however, this
Franchise shall not be effective until all City ordinance adoption procedures are
complied with and all applicable timelines have -run for the adoption of a City
ordinance. In the event acceptance does not taker place, or should; all.gfdinance
adoption procedures, timelines andyayments not be completed, this Franchise and
any and all rights granted hereunder to the Grantee shall be null and void.
b. Upon acceptance of this Franchise, the Grantee and the City shall be bound by all
the terms and conditions contained herein. The Grantee agrees that this Franchise
is not inconsistent with appllcabl&.{law or regulations at the time it is executed.
C. Grantee shall accept this Franchise inAe following manner:
i. This Franchi-se will be properly executed and acknowledged by Grantee
anti delivered' to City.
ATTEST: CITY OF EAGAN, MINNESOTA
In
Christina M. Scipioni, Clerk
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IC
Mike Maguire, Mayor
ACCEPTED: This Franchise is accepted and we agree to be bound by its terms and conditions.
QWEST BROADBAND SERVICES,
INC. DBA CENTURYLINK
Dated:
Its:
SWORN TO BEFORE ME this
day of
NOTARY PUBLIC
2016.
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EXHIBIT A
SERVICE TO DESIGNATED PUBLIC BUILDINGS
Need to add new exhibit to include the list of public buildings to receive complimentary service
— which information was previously included in the I -Net list which has now been deleted.
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EXHIBIT B
FRANCHISE FEE PAYMENT WORKSHEET
TRADE SECRET — CONFIDENTIAL
Month/Year I Month/Year I Month/Year I Total
PEG Fee
FCC Fees
Bad Debt
Late Fees
REVENUE
Fee Calculated
Fee Factor: 5%
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EXHIBIT C
INDEMNITY AGREEMENT
INDEMNITY AGREEMENT made this day of , 2016, by
and between Qwest Broadband Services, Inc., a Delaware Corporation, party of the first part,
hereinafter called "CenturyLink," and the City of Eagan, a Minnesota Municipal Corporation,
party of the second part, hereinafter called "City."
WITNESSETH:
WHEREAS, the City of Eagan has awarded to Qwest Broadband Services, Inc. a
franchise for the operation of a cable communications system in the#City of Eagan; and
WHEREAS, the City has required, as a condition of its award of a cable communications
franchise, that it be indemnified with respect to all claims and actions arising from the award of
said franchise,
NOW THEREFORE, in consideration of the
contained in this agreement and in consideration of
agreement and other good and valuable considerati(
CenturyLink hereby agrees, at its sole cost and expi
harmless the City, its officers, boards, commissions
claims, suits, actions, liabilities and judgments for c
limited to, court and appeal costs and reasonable at1
Dn therewith)
includes any
itions of the (
6mises and the mutual promises
a cable television franchise
n, receipt of which is hereby acknowledged,
ase, to fully indemnify, defend and hold
employees and agents against any and all
images, cost.(r expense (including, but not
)rneys' feesand disbursements assumed or
out of the actions of the City in granting a
by another franchised cable operator against
Link franchise are less burdensome than
r that the CenturyLink Franchise does not satisfy the
e, or local 1law(s). The indemnification provided for
acts of the City constituting a violation or breach by the
anchise ordinance, unless such acts are the result of a
acourt or administrative agency, or are caused by the
The City shall give CenturyLink reasonable notice of the making of any claim or the
commencement of any action, suit or other proceeding covered by this agreement. The City shall
cooperate with CenturyLink in the defense of any such action, suit or other proceeding at the
request of CenturyLink The City may participate in the defense of a claim, but if CenturyLink
provides a defense at CenturyLink's expense then CenturyLink shall not be liable for any
attorneys' fees, expenses or other costs that City may incur if it chooses to participate in the
defense of a claim, unless and until separate representation is required. If separate representation
to fully protect the interests of both parties is or becomes necessary, such as a conflict of interest,
in accordance with the Minnesota Rules of Professional Conduct, between the City and the
counsel selected by CenturyLink to represent the City, CenturyLink shall pay, from the date such
separate representation is required forward, all reasonable expenses incurred by the City in
defending itself with regard to any action, suit or proceeding indemnified by CenturyLink.
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Provided, however, that in the event that such separate representation is or becomes necessary,
and City desires to hire counsel or any other outside experts or consultants and desires
CenturyLink to pay those expenses, then City shall be required to obtain CenturyLink's consent
to the engagement of such counsel, experts or consultants, such consent not to be unreasonably
withheld. Notwithstanding the foregoing, the parties agree that the City may utilize at any time,
at its own cost and expense, its own City Attorney or outside counsel with respect to any claim
brought by another franchised cable operator as described in this agreement.
The provisions of this agreement shall not be construed to constitute an amendment of the
cable communications franchise ordinance or any portion thereof, but shall::�e in addition to and
independent of any other similar provisions contained in the cable communications franchise
ordinance or any other agreement of the parties hereto. The provisions of this agreement shall not
be dependent or conditioned upon the validity of the cable communications,, franchise ordinance
or the validity of any of the procedures or agreements involved in the award or acceptance of the
franchise, but shall be and remain a binding obligation of the parties hereto even „if the cable
communications franchise ordinance or the grant of the franchise is declared null andvoid in a
legal or administrative proceeding.
It is the purpose of this agreement to provide maximum indemnification to City under the
terms set out herein and, in the event of adispute as to the meaning of this Indemnity Agreement,
it shall be construed, to the greatest extent'permitted bylaw, to provido-for the indemnification of
the City by CenturyLink. This agreement shall be a binding obligation of and shall inure to the
benefit of, the parties hereto and their successor's and assigns,, ifny.
QWEST BROADBAND SERVICES, INC.
D/B/A CENTURYLINK
Its:
was acknowledged before me this day of 2016, by
of Qwest Broadband Services, Inc., a Delaware
Corporation, on behalf of the corporation.
Notary Public
Commission Expires
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ATTEST:
Chris
CITY OF EAGAN, MINNESOTA
By:
Mike Maguire, Mayor
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