HomeMy WebLinkAboutOrdinance No. 4371 . Second Reading: CMN-RUS/MetroNet Cable Franchise
ORDINANCE NO.
AN ORDINANCE CREATING AND ENACTING APPENDIX C OF THE
ROCHESTER CODE OF ORDINANCES, RELATING TO GRANTING A
FRANCHISE TO CMN-RUS, INC. ("GRANTEE") TO CONSTRUCT, OPERATE,
AND MAINTAIN A CABLE SYSTEM IN THE CITY OF ROCHESTER,
MINNESOTA ("CITY"); SETTING FORTH CONDITIONS ACCOMPANYING THE
GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF
THE SYSTEM; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF ITS
PROVISIONS.
THE COMMON COUNCIL OF THE CITY OF ROCHESTER DO ORDAIN:
Section 1. Appendix C of the Rochester Code of Ordinances is hereby created and
enacted to read as follows:
APPENDIX C - CABLE TELEVISION
STATEMENT OF INTENT AND PURPOSE
The City intends, by the adoption of this Franchise, to bring about the construction of an
all fiber Cable System, and the continued operation of it. Such an all fiber Cable System can
contribute significantly to the communications needs and desires of the residents and citizens of
the City and the public generally. Further, City may achieve competition, better utilization and
improvement of public services and enhanced economic development with the construction and
operation of an all fiber Cable System.
FINDINGS
In the review of the request for a cable franchise by Grantee and negotiations related
thereto, and as a result of a public hearing the City Council makes the following findings:
1. The Franchise granted to Grantee by the City complies with the existing applicable
Minnesota Statutes, federal laws and regulations; and
2. The Franchise granted to Grantee is nonexclusive.
SECTION 1. SHORT TITLE AND DEFINITIONS
1. Short Title. This Franchise shall be known and cited as the Cable Television Franchise
Ordinance.
2. Definitions. For purposes of this Franchise, the following terms, phrases, words and their
derivations shall have the meaning given herein. Words used in the present tense include the
future, in the plural number include the singular number, and words in the singular number include
the plural number. All capitalized terms used in the definition of any other term shall have their
meaning as otherwise defined in this section. The words "shall” and "will" are mandatory and
"may" is permissive. Words not defined shall be given their common and ordinary meaning.
(a) "Access Channels" means any channel or portion of a Channel utilized for public,
educational or governmental programming.
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(b) "Affiliate" shall mean any Person controlling, controlled by or under common
control of Grantee.
(c) "Applicable Laws" means any and all local, state or federal law, statute, charter,
ordinance, regulation, code, franchise, permit, judgment or decree.
(d) "Basic Cable Service" means any service tier which includes the lawful
retransmission of local television broadcast signals. Basic Cable Service shall be the
definition set forth in 47 U.S.C. § 522(3).
(e) "Base Coverage Area" means an area comprised of eighty percent (80%) of the
Dwelling Units in the City.
(f) "Cable Act" means the Cable Communications Act of 1984 as amended, 47
U.S.C. § 521 et. seq.
(g) "Cable Service" or "Service" means:
(1) The one-way transmission to Subscribers of (i) Video Programming, or (ii)
Other Programming Service, and
(2) Subscriber interaction, if any, which is required for the selection or use of
such Video Programming or Other Programming Service.
Cable Service as defined herein shall be the definition set forth in 47 U.S.C. §
522(6).
(h) "Cable System" or "System" means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control equipment
that is designed to provide Cable Service which includes Video Programming and which is
provided to multiple Subscribers within a community, but such term does not include:
(1) a facility that serves only to retransmit the television signals of one (1) or
more television broadcast stations;
(2) a facility that serves Subscribers without using any public right-of-way;
(3) a facility of common carrier which is subject, in whole or in part, to the
provisions of 47 U.S.C. § 201 et seq, except that such facility shall be considered
a Cable System (other than for purposes of 47 U.S.C. § 541(c)) to the extent such
facility is used in the transmission of Video Programming directly to Subscribers;
unless the extent of such use is solely to provide interactive on-demand services;
(4) an open video system that complies with 47 U.S.C. § 573; or
(5) any facilities of any electric utility used solely for operating its electric utility
system.
Cable System as defined herein shall be the definition set forth in 47 U.S.C. §
522(7).
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(i) "Channel" means a portion of the electromagnetic frequency spectrum which is
used in a Cable System and which is capable of delivering a television Channel as
defined by the FCC. Channel as defined herein shall be the definition set forth in 47
U.S.C. § 522(4). Grantee represents that as of the Effective Date Grantee offers an all-
digital Cable System and does not allocate six (6) MHz per Channel.
(j) "City" means the City of Rochester, a municipal corporation, in the State of
Minnesota.
(k) "City Code" means the Municipal Code of Rochester, Minnesota.
(l) "City Council" means the City Council of Rochester, Minnesota.
(m) "Class IV Cable Communications 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 System.
(n) "Converter" means an electronic device which converts signals to a frequency
acceptable to a television receiver of a Subscriber.
(o) "Day" unless otherwise specified shall mean a calendar Day.
(p) "Drop" means the cable that connects the ground block on the Subscriber's
residence to the nearest terminal on the distribution cable of the System.
(q) "Dwelling Units" means all residential single family and multi-family homes or units
in the Franchise Area that are capable of receiving Grantee's Cable Services without the
need for Grantee to obtain any private property rights from a third party.
(r) "Effective Date" shall mean __________________ ____, 201__.
(s) "FCC" means the Federal Communications Commission and any legally
appointed, designated or elected agent or successor.
(t) "Franchise" shall mean the right granted by this Ordinance and the regulatory and
contractual relationship established thereby.
(u) "Franchise Area" means the entire geographic area within the City as it is now
constituted or may in the future be constituted.
(v) "Franchise Fee" shall be the definition set forth in 47 U.S.C. § 542(g).
(w) "GAAP" means generally accepted accounting principles as promulgated and
defined by the Financial Accounting Standards Board ("FASB"), Emerging Issues Task
Force ("EITF") and/or the U.S. Securities and Exchange Commission ("SEC").
(x) "Grantee" is CMN-RUS, Inc., an Indiana corporation, its lawful successors,
transferees or assignees.
(y) "Grantee's Service Territory" means any area of the City where Grantee's Cable
System is constructed and capable of providing Cable Services to the Dwelling Units.
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(z) "Gross Revenues" means any and all revenues derived by the Grantee from the
operation of the Cable System to provide Cable Services in the City. Gross Revenues
shall not include any tax, fee or assessment of general applicability. A Franchise Fee is
not such a tax, fee or assessment. Gross Revenues shall not include: PEG Fees; tower
rent; bad debt written off by Grantee in the normal course of its business, provided,
however, that bad debt recoveries shall be included in Gross Revenue upon collection;
or Subscriber deposits. The City acknowledges and accepts that Grantee shall maintain
its books and records in accordance with GAAP.
Where Grantee bundles, integrates, ties, or combines Cable Service with other services
in a bundled package for which Subscribers pay a single fee, Gross Revenues for such
bundled, integrated, or tied combination of services shall be determined based on a pro
rata allocation among the services offered unless such allocation methodology is directly
in conflict with GAAP, in which case Grantee shall allocate bundled revenues in
accordance with GAAP. Grantee shall not use bundled package offerings as a means of
evading the payment of Franchise Fees or PEG Fees.
(aa) "Installation" means the connection of the System from distribution cable to the
point of connection, including Standard Installations and custom Installations.
(bb) "Minnesota Cable Communications Act" means the provisions of Minnesota law
governing the requirements for a cable television franchise as set forth in Minn. Stat. §
238, et. seq., as amended.
(cc) "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. Normal Business Hours as defined herein shall be the definition set forth in 47
C.F.R. § 76.309(d).
(dd) "Normal Operating Conditions" means those service conditions which are within
the control of the Grantee. Those conditions which are not within the control of the
Grantee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions. Those
conditions which are ordinarily within the control of the Grantee include, but are not limited
to, special promotions, pay-per-view events, rate increases, regular peak or seasonal
demand periods, and maintenance or upgrade of the Cable System. Normal Operating
Conditions as defined herein shall be the definition set forth in 47 C.F.R. § 76.309(d).
(ee) "Other Programming Service" means information that a cable operator makes
available to all Subscribers generally. Other Programming Services as defined herein
shall be the definition set forth in 47 U.S.C. § 522(14).
(ff) "PEG" means public, educational and governmental.
(gg) "Penetration Level" means the percentage of Dwelling Units receiving Cable
Services from Grantee in Grantee's Service Territory as determined by dividing the total
number of Dwelling Units by the number of Grantee’s Subscribers.
(hh) "Person" means any person, firm, partnership, limited liability entity or partnership,
association, corporation, company, or other legal entity.
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(ii) "Service Interruption" means the loss of picture or sound on one (1) or more
Channels. Service Interruption as defined herein shall be the definition set forth in 47
C.F.R. § 76.309(d).
(jj) "Standard Installation" means any residential Installation which can be completed
using a Drop of one hundred twenty-five (125) feet.
(kk) "State" means the State of Minnesota.
(ll) "Street" means any public way, highway, street, avenue, boulevard, alley, or other
public thoroughfare dedicated or commonly used for utility purposes, including general
or utility easements in which the City has the right and authority to authorize, regulate or
permit the location of facilities other than those of the City. "Street" shall not include any
real or personal City property that is not specifically described in the previous sentence
and shall not include City buildings, fixtures, and other structures or improvements,
regardless of whether they are situated in the public right-of-way.
(mm) "Subscriber" means a member of the general public who receives broadcast
programming distributed by a cable television system and does not further distribute it.
Subscriber as defined herein shall be the definition set forth in 47 C.F.R. § 76.5 (ee).
(nn) "Unserved Area" means any area within the City where the Dwelling Units do not
have access to Grantee's Cable System.
(oo) "Video Programming" means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station. Video
Programming as defined herein shall be the definition set forth in 47 U.S.C. § 522(20).
(pp) "Wireline MVPD" means a multichannel video programming distributor that utilizes the
Streets to install cable or fiber and is engaged in the business of making available for purchase,
by Subscribers, multiple channels of Video Programming in the City.
SECTION 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS
1. Franchise Required. The City shall, to the extent permitted by Applicable Law, require a
franchise for any Person to offer Cable Service in the City.
2. Grant of Franchise. This Franchise is granted pursuant to the terms and conditions
contained herein.
3. Grant of Nonexclusive Authority. This grant is non-exclusive and, subject to the provisions
of Minnesota Statutes, Section 238.08, Subdivision 1(b), the City reserves the right to grant a
similar use of said Streets to any other qualified Person at any time during the period of this
Franchise, provided, however, that any additional cable franchise granted shall comply with
Minnesota Statutes, Section 238.08 and any other applicable state and federal level playing field
requirements.
(a) The City specifically reserves the right to grant, at any time, such additional
franchises for a Cable System as it deems appropriate provided, however, such
additional grants shall not operate to materially modify, revoke, or terminate any rights
previously granted to Grantee other than as described herein.
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(b) If any other Wireline MVPD enters into any agreement with the City to provide
multichannel video programming or its equivalent to residents in the City, the City, upon
written request of the Grantee, shall permit the Grantee to construct and/or operate its
Cable System and provide multichannel video programming or its equivalent to
Subscribers in the City under the substantially similar material terms and conditions, as
determined in City's reasonable discretion, as applicable to the new Wireline MVPD.
Within ninety (90) Days after the Grantee submits a written request to the City, the
Grantee and the City shall enter into an agreement or other appropriate authorization (if
necessary) containing substantially similar material terms and conditions, as determined
in City's reasonable discretion, as are applicable to the new Wireline MVPD.
(c) The City shall comply with Minn. Stat. Chapter 238 and all Applicable laws related
to the City's provision of Cable Services over a Cable System.
(d) The City hereby authorizes Grantee to occupy or use the Streets subject to: 1)
the provisions of this Franchise to provide Cable Services within the City; and 2) all lawful
and nondiscriminatory provisions of the City Code, as may be amended periodically.
Nothing in this Franchise shall be construed to prohibit the Grantee from providing
services other than Cable Services as permitted by Applicable Law. The City hereby
reserves all of its rights to regulate such other services to the extent not prohibited by
Applicable Law and no provision herein shall be construed to limit or give up any
regulatory right of the City. The Cable System constructed and maintained by Grantee
or its agents shall not interfere with other uses of Streets.
(e) This Franchise is a contract and the terms of this Franchise shall define the
contractual rights and obligations of Grantee with respect to the provision of Cable
Service and operation of the Cable System in City. In the event of a conflict between the
City Code and this Franchise, the express provisions of this Franchise shall govern.
(f) Notwithstanding anything in Section 2.3(b) herein to the contrary, the material
terms and conditions contained in this Franchise may not be unilaterally altered by the
City through subsequent amendments to the City Code, ordinances or any regulation of
City, except in the lawful exercise of City's police power. Grantee reserves all rights it
may have to challenge any modifications to the City Code whether arising in contract or
at law. The City reserves all of its rights and defenses to such challenges whether arising
in contract or at law.
(g) Nothing in this Franchise shall (A) abrogate the right of the City to perform any
public works or public improvements of any description, (B) be construed as a waiver of
any codes or ordinances promulgated by the City, or (C) be construed as a waiver or
release of the rights of the City in and to the Streets.
(h) This Franchise complies with the Minnesota franchise standards set forth in
Minnesota Statutes, Section 238.084.
4. Franchise Term. The term of this Franchise shall be for a period of five (5) years from the
date of acceptance by Grantee, unless renewed, revoked or terminated sooner as herein provided
("Term"). Nothing herein shall serve to waive Grantee's right to renewal of the Franchise under
Applicable Law.
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5. Rules of Grantee. The Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable said Grantee to exercise its rights and perform its obligation under this
Franchise and to assure uninterrupted service to each and all of its Subscribers; provided that
such rules, regulations, terms and conditions shall not be in conflict with provisions hereto, the
City Code or Applicable Law.
6. Territorial Area Involved and Line Extension.
(a) This Franchise is granted for the Franchise Area. Grantee acknowledges the
City's desire for all residents in the Franchise Area to benefit from competitive Cable
Service offerings. The City acknowledges that requiring Grantee, as a second market
entrant, to initially buildout all of the Franchise Area as a condition of receiving a video
franchise may be economically prohibitive. Accordingly, the parties agree to implement
the following procedure for the expansion of Grantee's Cable System within the Franchise
Area.
(b) No later than five (5) years from the Effective Date, Grantee's Cable System shall
be capable of providing Cable Service to all of the Dwelling Units in the Base Coverage
Area requesting Cable Service.
(c) After the completion of the Base Coverage Area, the City may require Grantee to
expand Grantee's Cable System in accordance with the terms of this Section 6(c). No
more than once a year, after receipt of a written request from the City, Grantee shall
provide a report showing the current Penetration Level in Grantee's Service Territory. If
the Penetration Level is twenty-seven and one half percent (27.5%) or greater, the City
may require Grantee to expand its Cable System to cover an additional five percent (5%)
of the Unserved Area by delivering written notice to Grantee. Upon receipt of such notice,
Grantee shall have one (1) year to meet such expansion requirement. Grantee shall
determine which portion of the Unserved Area it will serve. Provided that the Penetration
Level is twenty-seven and one half percent (27.5%) each time the City makes an
expansion request, the City may continue to make such expansion requests until ninety-
five percent (95%) of the Dwelling Units in the City are able to receive Cable Services
from Grantee.
(d) Once Grantee has extended its Cable System to cover ninety-five percent (95%)
of the Franchise Area in accordance with Section 6.(c) above, the Grantee shall make
Cable Service distributed over the Cable System available to every Dwelling Unit within
the Franchise Area where there is a minimum density of at least thirty (30) Dwelling Units
per linear strand mile of cable as measured from Grantee's closest trunk line or
distribution cable that is actively delivering Cable Service as of the date of such request
for service. If such Dwelling Unit is located within one hundred twenty-five (125) feet of
Grantee's feeder cable, the Cable Service will be provided at Grantee's published rate
for Standard Installations. Notwithstanding the foregoing, the Grantee shall have the
right, but not the obligation, to extend the Cable System into any portion of the Franchise
Area where another franchised operator is providing Cable Service. Cable Service
offered to Subscribers pursuant to this Franchise shall be conditioned upon Grantee
having legal access to any such Subscriber's Dwelling Unit or other units wherein such
Cable Service is provided. Nothing herein shall be construed to limit the Grantee's ability
to offer or provide bulk rate discounts or promotions.
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7. 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 Grantee or
City's Administrator of this Franchise or forty-eight (48) hours after it is deposited in the United
States mail in a sealed envelope, with registered or certified mail postage prepaid thereon,
addressed to the party to whom notice is being given, as follows:
If to City: City of Rochester
201 4th Street SE, Room 266
Rochester, MN 55904
ATTN: City Administrator
If to Grantee: CMN-RUS, Inc.
ATTN: Legal Department
8837 Bond Street
Overland Park, KS 66214
Such addresses may be changed by either party upon notice to the other party given as provided
in this section.
SECTION 3. OPERATION IN STREETS AND RIGHTS-OF-WAY
1. Use of Streets. Grantee may, subject to the terms of this Franchise, erect, install,
construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the
Streets within the City such lines, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, appliances, pedestals, attachments and other property and equipment as are
necessary and appurtenant to the operation of a Cable System to provide Cable Services within
the City. Without limiting the foregoing, Grantee expressly agrees that it will construct, operate
and maintain its Cable System in compliance with, and subject to, the requirements of the City
Code, including by way of example and not limitation, those requirements governing the
placement of Grantee's Cable System; and with other applicable City Codes, and will obtain and
maintain all permits and bonds required by the City Code in addition to those required in this
Franchise. Grantee shall not perform any work in the Streets, including the opening or
disturbance of any Street, or private or public property within City, unless Grantee has secured
the necessary permits from City or other governmental authority as required in the City Code or
Applicable Law.
2. Non-Interference. Grantee shall exert its best efforts to construct and maintain a Cable
System so as not to interfere with other use of Streets. Grantee shall, where commercially
reasonable in the case of above ground lines, make use of existing poles and other facilities
available to Grantee. When residents receiving underground service or who will be receiving
underground service will be affected by proposed construction or alteration, Grantee shall provide
such notice as set forth in the permit or in City Code of the same to such affected residents.
3. Consistency with Designated Use. Notwithstanding the above grant to use Streets, no
Street shall be used by Grantee if the City, in its sole opinion, determines that such use is
inconsistent with the terms, conditions or provisions by which such Street was created or
dedicated, or presently used under Applicable Laws.
4. Work on Private Property. All work performed on private property shall comply with
Applicable Law.
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SECTION 4. CONSTRUCTION STANDARDS
1. System Construction.
(a) Pursuant to the requirements of Minnesota Statutes 238.084, subdivision 1 (m),
construction of the Cable System in the Base Coverage Area shall commence no later
than two hundred forty (240) Days after the Effective Date of this Franchise. Construction
of the Cable System shall proceed at a reasonable rate of not less than fifty (50) plant
miles constructed per year during the term of this Franchise. Construction throughout
the Base Coverage Area shall be substantially completed within five (5) years of the grant
of this Franchise. The requirements of this Section 4.1(a) may be waived by the City only
upon the occurrence of unforeseen events or acts of God.
(b) Grantee agrees to maintain the Cable System in a manner consistent with, or in
excess of the specifications in Section 5.1 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, including the exhibits hereto, and in a manner
which meets or exceeds FCC technical quality standards at 47 C.F.R. § 76 Subpart K,
regardless of the particular format in which a signal is transmitted.
2. Quarterly meetings. In order to permit the City to monitor and enforce the provisions of
Section 4.1 above, as well as other provisions of this Franchise, the Grantee shall, commencing
ninety (90) Days after the Effective Date, and continuing throughout the term of this Franchise,
meet quarterly with the City, unless otherwise specified by the City, and provide reports and make
available maps showing the City the Grantee's progress towards compliance with Section 4.1.
3. Grantee's Facilities and Equipment-Undergrounding.
(a) In those areas of the City where transmission or distribution facilities of all the
utilities providing telephone and electric power service are underground, the Grantee
likewise shall construct, operate and maintain its transmission and distribution facilities
therein underground in accordance with the requirements of the City Code.
(b) Grantee shall be granted access to any easements granted to a utility, municipal
utility or utility district within the Franchise Area.
(c) In those areas of the City where Grantee's cables are located on above-ground
transmission or distribution facilities of the utility providing telephone or electric power
service, and in the event that the facilities of both such utilities subsequently are placed
underground, then the Grantee likewise shall construct, operate and maintain its
transmission and distribution facilities underground.
(d) Grantee's equipment, such as pedestals, amplifiers and power supplies shall be
placed as permitted under the requirements of the City Code. Certain of Grantee's
equipment, such as pedestals, amplifiers and power supplies, which normally are placed
above ground, may continue to remain in above-ground closures to the extent permitted
by the City Code if existing technology reasonably requires, but shall be of such size and
design and shall be so located as not to be unsightly or unsafe.
(e) The City shall use commercially reasonable best efforts to process all construction
permits and perform any inspections required for the construction of Grantee's Cable
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System in such a manner that the Grantee may complete up to Two Hundred Thousand
(200,000) feet of underground and aerial construction in a month. Such efforts may
include, but are not limited to, adding more personnel to review permit applications and
to perform inspections. Such commitment is expressly conditioned upon the Grantee
complying with all applicable material provisions of the Franchise and all applicable
construction ordinances. The City reserves the right to charge a fee to Grantee to cover
the City's costs associated with accommodating expedited permits. Such fee shall not
be offset or deducted from any Franchise Fees to be paid to the City.
4. Annexation. Upon the annexation of any additional land area by the City, the annexed
area shall become part of the Franchise Area. Upon the annexation of any additional land area
by the City, the annexed area shall be subject to all the terms of this Franchise upon sixty (60)
Days of written notification by the City to Grantee. Such notice shall include a list of addresses if
available to the City. In the event another franchised cable operator is already serving the annexed
area, Grantee shall have the option but not the obligation to extend its Cable System to the newly
annexed area. A franchised cable operator whose Cable System passes homes in an annexed
area shall not extend its Cable System beyond those homes which it passes at the time the
annexation occurs unless it otherwise obtains a franchise from the City.
5. Conditions on Street 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 Street; 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 City shall be located consistent with nondiscriminatory City Code
provisions.
(c) Relocation for the City. The Grantee shall, upon receipt of reasonable advance
written notice which shall in any case be no less than the amount of time provided to
other affected utilities and not less than ten (10) Days, protect, support, temporarily
disconnect, relocate, or remove any property of Grantee when lawfully required by the
City pursuant to its police powers. Grantee shall be responsible for any costs associated
with these obligations to the same extent other users of the City Streets are responsible
for the costs related to the relocation of their facilities.
(d) Relocation for a Third Party. The Grantee shall, on the request of any Person
holding a lawful permit issued by the City, protect, support, raise, lower, temporarily
disconnect, relocate in or remove from the Street as necessary any property of the
Grantee, provided that the expense of such is paid by any such Person benefiting from
the relocation and the Grantee is give reasonable advance written notice to prepare for
such changes. The Grantee may require such payment in advance. For purposes of this
subsection, "reasonable advance written notice" shall be no less than ten (10) business
days in the event of a temporary relocation and no less than one hundred twenty (120)
Days for a permanent relocation and in any case no less than the amount of time provided
to other affected utilities.
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(e) If state or federal law requires the City to provide reimbursement of funds to
Grantee for mandatory relocation, the City shall comply with all Applicable Laws.
(f) Grantee shall at all times maintain strand maps on file with the City and comply
with the mapping requirements of Chapter 25 of the City Code.
(g) Upon written request, the City shall also have the additional right to review, subject to
the confidentiality protections provided in Section 8.4 herein, Grantee's entire system maps at a
mutually agreed upon location within the City.
(h) Tree Trimming. Grantee shall have the authority to trim trees, in accordance with
the City Code.
6. Safety Requirement. The Grantee shall install and maintain its System wires, cables,
fixtures and other equipment in accordance with the applicable requirements of the National
Electric Safety Code and all Applicable Laws.
7. Multiple Dwelling Unit ("MDU") Installations. Grantee shall comply with Applicable Law in
installing and maintaining equipment and wiring serving residents of MDUs.
SECTION 5. DESIGN PROVISIONS
1. System Design.
(a) Grantee shall construct an all fiber, fiber to the home, Cable System. Grantee
and City hereby acknowledge that the System shall have a bandwidth capable of
providing the equivalent of a 750 MHz Cable System which is capable of delivering at
least eighty (80) Channels of programming.
(b) Grantee shall comply with federal law regarding notice to City and Subscribers
prior to any Channel additions, deletions, or realignments.
2. Notice of Planned System-wide Service Interruptions. The Grantee shall notify the City
prior to any planned Service Interruptions for maintenance, construction upgrades or other
purposes that are planned to last longer than twenty-four (24) hours. Such Service Interruption,
to the extent reasonable, shall occur during periods of minimum use of the System.
3. Technical Standards. To the extent applicable to Grantee's all fiber infrastructure, the
technical standards used in the operation of the Cable System shall comply, at minimum, with the
technical standards promulgated by the FCC relating to Cable Systems pursuant to Title 47,
Section 76, Subpart K of the Code of Federal Regulations, as may be amended or modified from
time to time, which regulations are expressly incorporated herein by reference.
4. Special Testing. 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 pertaining to such
location(s). Demand for such special tests may be made on the basis of complaints received or
other evidence indicating an unresolved controversy or noncompliance. Such tests shall be
limited to the particular matter in controversy or unresolved complaints. The City shall endeavor
to so arrange its request for such special testing so as to minimize hardship or inconvenience to
Grantee or to the Subscribers caused by such testing. Before ordering such tests, Grantee shall
be afforded thirty (30) Days to correct problems or complaints upon which tests were ordered.
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The City shall meet with Grantee prior to requiring special tests to discuss the need for such and,
if possible, visually inspect those locations which are the focus of concern. If, after such meetings
and inspections, City wishes to commence special tests and the thirty (30) Days have elapsed
without correction of the matter in controversy or unresolved complaints, the tests shall be
conducted by a qualified engineer mutually selected by City and Grantee based on a mutually
agreed upon scope of work. If the unresolved complaint is found to have been caused by
Grantee's failure to comply with FCC technical specifications or the National Electric Safety Code,
the Grantee shall reimburse the City for the documented out of pocket costs of such testing up to
a maximum of maximum of Ten Thousand and No/100 Dollars ($10,000.00). Nothing in this
Section 5.4 shall waive the City's right to enforce Grantee's compliance with the requirements of
the City Code.
5. FCC Reports. To the extent applicable to Grantee's all fiber infrastructure, the results of
any tests required to be filed by Grantee with the FCC shall also be copied to City within ten (10)
Days of the conduct of the date of the test.
6. EAS/Emergency Use by City.
(a) At all times during the term of this Franchise, the Grantee shall provide and
maintain an Emergency Alert System (EAS) consistent with Applicable Law and
regulation including 47 C.F.R., Part 11 and the Minnesota Emergency Alert System
Statewide Plan.
(b) The City shall have authority to test the EAS, consistent with Applicable Law, no
more frequently than once per month and during a time between 12:00 a.m. and 5:00
a.m. and if the EAS fails to perform Grantee shall immediately make all repairs, at
Grantee's sole cost, and shall retest the EAS to demonstrate compliance. City shall
provide notice to the Grantee at least ten (10) Days prior to any such testing.
7. Parental Control Lock. Grantee shall provide for sale or lease to Subscribers, upon
request, a parental control locking device or digital code that permits inhibiting the video and audio
portions of any Channels offered by Grantee.
SECTION 6. SERVICES PROVISIONS
1. Rate Regulation. The City reserves the right to regulate rates for Basic Cable Service and
any other services offered over the Cable System, to the extent permitted Applicable Laws.
(a) In exercising its jurisdiction to regulate any such rates, the City will adhere to
regulations adopted by the FCC at 47 C.F.R. § 76.900 et seq. as amended from time to
time.
(b) Grantee shall furnish a list of Grantee's current Subscriber rates and charges
which shall be maintained on file with the City and such list shall be available for public
inspection. Grantee shall give the City and Subscribers written notice of any change in
a rate or charge no less than thirty (30) Days prior to the date of the change provided that
Grantee may also provide rolling updates for any pricing changes that are not above
Grantee's direct cost, so long as consistent with Applicable Law.
2. Leased Channel Service. Grantee shall offer leased channel service on reasonable terms
and conditions and in accordance with Applicable Laws.
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3. Service to Public Buildings. As construction of the Cable System is completed so that
Grantee is capable of providing Cable Service to a building set forth in Exhibit A, upon request
from City, the Grantee shall provide Basic Cable Service and expanded basic Cable Service (or
the functional equivalent of those services – approximately 60+ channels) to a single Drop, with
one (1) Converter (if necessary) to one (1) outlet, free of charge, at each public building,
elementary and secondary school building and public library building as of the Effective Date of
this Franchise listed in Exhibit A attached hereto, and not currently receiving service from another
franchised cable operator. However, City shall have the right to request the disconnection of the
other franchised cable operator and require Grantee to meet the free service obligation provided
the City maintains a fair distribution of service to public buildings between all franchised cable
operators in the City. In the event Grantee is legally permitted, in accordance with Applicable
Laws, to offset the value of any services set forth in this Section 6.3 against Franchise Fees
payable to the City, the Grantee agrees that it will do so only: 1) after providing City with ninety
(90) Days' prior written notice; and 2) at such time as Grantee also imposes the same offset in all
other jurisdictions where Grantee provides franchised Cable Service. The City shall have right to
discontinue receipt of all or a portion of the services set forth in this Section 6.3 provided by
Grantee in the event Grantee elects to offset the value as set forth in the preceding sentence.
4. Sales Procedures. Grantee shall comply with Minnesota Statutes, Section 325D.43-48
prohibiting deceptive sales procedures when marketing its Cable Services within City. Grantee
shall have the right to market its Cable Services door-to-door during reasonable hours consistent
with local ordinances and regulation.
5. Grantee Identification. Grantee shall provide all customer service technicians and all other
Grantee employees, subcontractors and agents entering private property with appropriate picture
identification so that Grantee employees may be easily identified by the property owners and
Subscribers.
6. Customer Service Provisions.
(a) Customer Service Standards. The Grantee shall comply with the standards and
requirements for customer service set forth in Exhibit B, throughout the term of this
Franchise.
(b) Subscriber Contracts. Grantee shall, upon written request, provide the City with
any standard form residential Subscriber contract utilized by Grantee. If no such written
contract exists, Grantee shall file with the City a document completely and concisely
stating the length and terms of the Subscriber contract offered to customers. The length
and terms of any standard form Subscriber contract(s) shall be available for public
inspection during Normal Business Hours. A list of Grantee's current Subscriber rates
and charges for Cable Service, specifically including Basic Cable Service, shall be
maintained on file with City and shall be available for public inspection. For purposes of
this section, the availability of this information on Grantee's web site shall constitute
compliance.
(c) Refund Policy. In the event a Subscriber establishes or terminates service and
receives less than a full month's service, Grantee shall prorate the monthly rate on the
basis of the number of days in the period for which service was rendered to the number
of days in the billing. If a Subscriber's Cable Service is interrupted or discontinued,
without cause, for twenty-four (24) or more consecutive hours, the Grantee shall, upon
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request by the Subscriber, credit such Subscriber pro rata for such interruption. For this
purpose, every month will be assumed to have thirty (30) Days.
(d) Late Fees. Grantee shall comply with all Applicable Laws with respect to any
assessment, charge, cost, fee or sum, however characterized, that the Grantee imposes
upon a Subscriber for late payment of a bill. The City reserves the right to enforce
Grantee's compliance with all Applicable Laws to the maximum extent legally permissible.
7. Disputes. All Subscribers and members of the general public may direct complaints,
regarding Grantee's Service or performance to the City Administrator of the City or the City
Administrator's designee, which may be a board or commission of the City.
8. Subscriber Privacy. To the extent required by Minnesota Statutes, Section 238.084,
Subdivision 1(s) Grantee shall comply with the following:
(a) No signals including signals of a Class IV Channel may be transmitted from a
Subscriber terminal for purposes of monitoring individual viewing patterns or practices
without the express written permission of the Subscriber. The request for permission
must be contained in a separate document with a prominent statement that the
Subscriber is authorizing the permission in full knowledge of its provisions. Such written
permission shall be for a limited period of time not to exceed one (1) year which may be
renewed at the option of the Subscriber. No penalty shall be invoked for a Subscriber's
failure to provide or renew such permission. The permission shall be revocable at any
time by the Subscriber without penalty of any kind whatsoever.
(b) No information or data obtained by monitoring transmission of a signal from a
Subscriber terminal, including but not limited to lists of the names and addresses of
Subscribers or any lists that identify the viewing habits of Subscribers shall be sold or
otherwise made available to any party other than to Grantee or its agents for Grantee's
business use, and also to the Subscriber subject of that information, unless Grantee has
received specific written permission from the Subscriber to make such data available.
(c) Written permission from the Subscriber shall not be required for the conducting of
system wide or individually addressed electronic sweeps for the purpose of verifying
System integrity or monitoring for the purpose of billing. Confidentiality of such
information shall be subject to the provision set forth in subparagraph (b) of this section.
SECTION 7. PUBLIC ACCESS PROVISIONS
1. Public, Educational and Government Access.
(a) City or its designee is hereby designated to operate, administer, promote, and
manage the PEG programming to the Cable System established pursuant to this Section
7.
(b) Grantee shall continue to dedicate five (5) Channels for PEG access use. Use of
the PEG Channels shall be determined in City's sole discretion and Grantee shall have
no responsibility for the content, operations or use of the PEG Channels other than as
specified herein.
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(c) City may not request additional Channel capacity beyond the five (5) Channels
for PEG use except in accordance with Applicable Laws.
(d) The Grantee and the City shall cooperate to ensure that the quality of the PEG
Channels meets FCC technical standards including those applicable to the carriage of
PEG Channels; provided however, that the Grantee is not responsible for the production
quality of PEG programming.
(e) In accordance with Section 611 (d) of the Cable Act, the City shall prescribe (1)
rules and procedures under which the Grantee is permitted to use the five (5) PEG
Channels for the provision of other services if such channel capacity is not being used
for the purposes designated, and (2) rules and procedures under which such permitted
use shall cease.
(f) No later than twelve (12) months from the Effective Date of this Franchise,
Grantee shall provide, free of charge, fiber paths from the City's Government Center
located at 201 Fourth Street S.E. ("City Government Center") and from Rochester
Community and Technical College to Grantee's equipment hut to facilitate PEG
origination/return capacity in the City. To the extent authorized by Applicable Law, if
Grantee commences charging for the transport of PEG programming, Grantee shall
provide ninety (90) Days prior written notice to City and shall meet with City in good faith
to work toward mutual agreement regarding the terms and conditions of any on-going
PEG transport. Grantee shall only seek to impose charges to the extent Grantee also
imposes the same charges in all other jurisdictions where Grantee provides franchised
Cable Service. Until such time as Grantee implements the PEG Channels on Grantee’s
channel lineup as required under this Franchise, Grantee shall include a note on the
designated PEG Channels to alert the Subscriber that the PEG Channel programming is
“coming soon.”
(g) The City may at any time elect to originate the public Access Channel from the
City Government Center with no transport fee imposed by the Grantee for the term of this
Franchise. The City will be responsible for any equipment on City's side of the
demarcation point (the demarcation point to be mutually determined by the parties)
required to transmit the public Access Channel to Grantee's equipment hut. In the event
the Grantee is required to relocate the connection point from Rochester Community and
Technical College ("Relocation"), Grantee shall provide a written estimate to the City of
the cost of such Relocation and, if approved in writing by the City, Grantee shall complete
the Relocation at the expense of the City. The City may use the proceeds of the PEG
Fee to pay for the Relocation. The City shall also have the option to construct such
connection point and avoid any required payment to Grantee.
2. Digital and HD PEG Carriage Requirements.
(a) Grantee shall provide, free of charge, the PEG Access Channels in a standard
digital ("SD") format on the Basic Cable Service tier or the lowest tier of service offered
by Grantee. For so long as applicable under Minnesota Statutes, Section 238.084,
Subdivision 1, the VHF spectrum must be used for at least one (1) of the PEG Channels
required in this Section 7.2. The City and Grantee agree that this technical specification
is likely unenforceable given the technology used by Grantee in the construction of its
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Cable System. Nothing herein precludes the Grantee from charging for any equipment
needed for Basic Cable Service.
(b) If requested by the City, the Grantee shall, free of charge to the City, provide the
PEG Access Channels required by this Section 7 in both standard definition (SD) and
high definition (HD) formats. The City shall only be responsible for the production costs
associated with the provision of an HD Channel, any and all costs associated with any
modification of the PEG Access Channels or signals, after the PEG Access
Channels/signals leave the City's currently designated playback facility shall be provided
free of charge by Grantee. However, the Grantee shall have the right to offset from the
PEG Fee its reasonable actual costs for capital equipment which Grantee is required to
purchase to facilitate the distribution of the PEG Access Channels upstream to Grantee's
headend.
(c) The City acknowledges that receipt of an HD format Channel may require
Subscribers to buy or lease special equipment, or pay additional HD charges applicable
to all HD services provided by Grantee. A Subscriber to the Basic Cable Service tier only
who has Grantee's HD capable set-top box will be able to receive the HD PEG Access
Channel on that outlet without any additional cost.
3. Access Channel Locations.
(a) Grantee shall make reasonable efforts to coordinate the cablecasting of PEG
programming on the Cable System on the same Channel designations as such
programming on Channels 180, 181, 187, 188, and 189 or to locate the PEG Access
Channels in the Channel neighborhood within reasonable proximity to a CSPAN channel
offered by Grantee in the City in Grantee's reasonable discretion. In no event shall any
PEG Access Channel reallocations be made prior to sixty (60) Days written notice to the
City by Grantee, except for circumstances beyond Grantee's reasonable control.
(b) Grantee represents and agrees that the PEG Access Channels shall be encrypted
in compliance with FCC's encryption order In the Matter of Basic Tier Encryption MB
Docket No. 11-169, Report and Order adopted October 10, 2012.
(c) Grantee shall provide the City and all Subscribers with at least sixty (60) Days
prior written notice of any relocation of any public or educational Access Channel to a
different Channel number. In the event any PEG Access Channel(s) is relocated,
Grantee shall, in advance of the relocation, inform Subscribers of the new Channel
location through bill messages and/or bill inserts, and shall list the new location on the
on-air program guide. The parties acknowledge that Grantee contracts with a third party
or parties to provide on-screen and on-line program listings. It shall be the responsibility
of the City, or its designee, to provide such detailed program information to the third-party
entity or entities that produce such listings for Grantee in accordance with each such
entity's normal format and scheduling requirements and at the City's cost.
4. PEG Technical Quality.
(a) The placement of PEG Access Channels on the System shall not subject the PEG
Access Channels to more interference or ingress than the primary signals of local
broadcast stations that are delivered using similar transmission technology in City.
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(b) The Grantee will provide all SD PEG Access Channels to Subscribers at
reasonably equivalent visual and audio quality to that in which the Grantee delivers the
SD CSPAN channel, or its future equivalent. The Grantee will provide all HD PEG Access
Channels, if any, to Subscribers at reasonably equivalent visual and audio quality to that
in which the Grantee delivers the HD CSPAN channel, or its future equivalent.
(c) There shall be no significant deterioration in a PEG Access Channel's signal
caused by Grantee from the point of origination upstream to the point of reception
downstream on the Cable System.
(d) Upon request, throughout the term of the Franchise, Grantee shall provide
updated contact information for a local technical representative with local knowledge of
the City's PEG operations, who shall be available to the City for consultation on technical
matters as the need may arise. This technical representative shall be accessed through
a direct telephone number available to the City (as opposed to a general public number).
The Grantee shall not impose any fees or charges to the City for this technical
consultation. If such consultation is insufficient to diagnose the matter in question, within
twenty-four (24) hours of a written request from City to the Grantee identifying a technical
problem with a PEG Access Channel signal and requesting assistance, Grantee will
provide, free of charge to City, diagnostic services to determine whether or not a problem
with a PEG signal is the result of matters for which Grantee is responsible) and if so,
Grantee will take prompt corrective action, free of charge to City, subject to the limitations
on Grantee's responsibilities outlined in Section 7.1 herein. If the problem persists and
there is a reasonable dispute about the cause, then the parties shall meet with
engineering representation from Grantee and the City in order to mutually determine the
course of action to remedy the problem. Nothing herein shall be construed to obligate
Grantee to correct problems or take any other action caused by City's signal, City's
network or internal wiring, City's equipment, PEG access program content or other issues
within City's reasonable control.
(e) Grantee shall comply with Applicable Law regarding the carriage of PEG Access
Channels.
5. Promotion of PEG Access Channels. To the extent permitted by Grantee's billing process
and solely for the purpose of promoting the PEG Access Channels, Grantee shall allow the City
to place bill stuffers in Grantee's Subscriber statements at a cost to the City not to exceed
Grantee's cost, no more frequently than once per year upon the written request of the City and at
such times that the placement of such materials would not materially and adversely affect
Grantee's cost for the production and mailing of such statements.
6. Access Rules. The City shall implement rules for use of the government and educational
Access Channels. The access rules and any amendments thereto shall be maintained on file
with City and made available for public inspection during Normal Business Hours.
7. PEG Fee.
(a) Upon commencement of Cable Service by Grantee to its first Subscriber in the
City and through the end of the term of this Franchise, Grantee shall collect on behalf of
the City and remit to the City a per Subscriber per month fee of thirty seven cents ($0.37)
solely to fund PEG access expenditures as permitted by Applicable Law (hereinafter
"PEG Fee"). Upon written request, the City will provide Grantee with documentation
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evidencing the expenditures made with the PEG Fee pursuant to Applicable Law,
including but not limited to the Minnesota Government Data Practices Act, Minn. Stat.
§13.01 et. seq.
(b) Pursuant to Section 7.7(a) of this Franchise Grantee has agreed to collect and
remit to the City, a per Subscriber per month PEG Fee. Solely for the purpose of
calculating the PEG Fee, in the case of multiple dwelling units ("MDU") receiving Cable
Service on a bulk basis, "Subscriber" shall be determined on an equivalent basic unit
("EBU") basis. EBU shall be calculated as follows: MDU revenue received from bulk
billed units divided by the retail residential rate (billed on non-bulk per subscriber basis)
to other customers for the applicable Cable Services.
(c) The City may, at any time, reduce the PEG Fee upon ninety (90) Days written
notice to Grantee.
(d) Grantee agrees that if the City imposes a different PEG Fee (higher or lower) on
any other franchised cable operator in the City, Grantee shall match such PEG Fee upon
ninety (90) Days advance written notice from the City. The purpose of this provision is to
ensure that all franchised cable operators in the City will remit the same PEG Fee to the
City.
(e) Grantee shall pay the PEG Fee to the City quarterly, at the same time as the
payment of Franchise Fees under Section 8.1 of this Franchise.
(f) Any PEG Fee amounts owing pursuant to this Franchise which remain unpaid
more than forty-five (45) Days after the date the payment is due shall be past due and
subject to a late fee of not more than three-quarter percent (.75%) per month or the
maximum amount permitted by law.
SECTION 8. OPERATION AND ADMINISTRATION PROVISIONS
1. Franchise Fee/Audit.
(a) For as long as this Franchise remains in place, Grantee shall pay to City a
Franchise Fee in an amount equal to five percent (5%) of its annual Gross Revenues.
(b) The payment of Franchise Fees shall be made on a quarterly basis and shall be
due forty-five (45) Days after the close of each calendar quarter.
(c) Any Franchise Fees owing pursuant to this Franchise which remain unpaid more
than forty-five (45) Days after the dates specified herein shall be past due and subject to
a late fee of not more than three quarter percent (.75 %) per month or the maximum
amount permitted by law.
(d) Each Franchise Fee payment shall be accompanied by a report prepared by a
representative of the Grantee showing the basis for the computation of the Franchise
Fees paid during that period in a form and substance substantially equivalent to Exhibit
C attached hereto. Nothing in Exhibit C will modify the Gross Revenues definition of this
Franchise.
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(e) No acceptance of any payment by the City shall be construed as a release or as
an accord and satisfaction of any claim the City may have for further additional sums
payable as a Franchise Fee under this Franchise or for the performance of any other
obligation of the Grantee.
2. Not Franchise Fees. Taxes.
(a) Grantee acknowledges and agrees that the Franchise Fees payable by Grantee
to the City pursuant to this section shall take precedence over all other material provisions
of the Franchise and shall not be deemed to be in the nature of a tax. The Franchise
Fees payable by Grantee to City pursuant to this section shall be defined consistent with
47 U.S.C. § 542 (g).
(b) Upon thirty (30) Days prior written notice, City shall have the right to conduct an
independent review/audit of Grantee's records solely for the purpose of assessing
Grantee's compliance with the Franchise Fee obligations herein.
3. Access to Records. Subject to the privacy provisions of the Cable Act, throughout the
term of this Franchise, the Grantee agrees that the City, upon reasonable prior written notice of
thirty (30) Days to the Grantee, shall have the right to review such of the Grantee's books and
records regarding the operation of the Cable System and the provision of Cable Service in the
Franchise Area which are reasonably necessary to monitor and enforce Grantee's compliance
with the provisions of this Franchise ("Records"). Such notice shall specifically reference those
sections of the Franchise that are under review so that the Grantee may organize the necessary
Records for easy access by the City. Grantee shall make available for review such Records at
Grantee's sole cost and expense, free of charge to the City. Records shall be retained by the
Grantee for a period of six (6) years, pursuant to Minnesota Statutes, Section 541.05. The
Grantee shall not deny the City access to Records on the basis that the Records are under the
control of any parent corporation, Affiliate or a third party. The City may request in writing copies
of any such Records and the Grantee shall provide such copies within thirty (30) Days of the
receipt of such request subject to the provisions of this section regarding confidential information.
Grantee shall provide all Records requested by the City or City's agent in the following manner:
1) at a conference room in City Hall; or 2) at Grantee's office located in the City or no further than
five (5) miles from the City limits; or 3) via mail or electronic communication acceptable to the City
and Grantee.
4. Confidential Information.
(a) Subject to Applicable Law, Grantee may choose to provide any confidential or
proprietary Records that it is obligated to make available to the City pursuant to this
Franchise, by allowing the City, or its designated representative(s), to view the Records
at a conference room in City Hall or at Grantee's office located in the City, without City
obtaining its own copies of such Records. Grantee may also choose to provide any
confidential or proprietary Records pursuant to a mutually acceptable non-disclosure
agreement with a City designated agent. The intent of the parties is to work cooperatively
to insure that those Records reasonably necessary for City's monitoring and enforcement
of Franchise obligations are provided to City. To the extent that Grantee does provide
Records directly to the City, City agrees to keep said Records confidential and proprietary
to the fullest extent permitted by Applicable Law. Grantee shall be responsible for clearly
and conspicuously identifying the Records confidential or proprietary. Grantee
acknowledges that the Minnesota Data Practices Act ("MDPA") places limitations on the
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ability of the City to protect certain information unless such information meets the
statutory requirements set forth in the MDPA.
(b) If the City believes it must release any such confidential or proprietary Records in
the course of enforcing this Franchise, or for any other reason including compliance with
the MDPA, it shall advise Grantee in advance so that Grantee may take appropriate steps
to protect its interests. The City agrees that, to the extent permitted by the MDPA and
Applicable Law, it shall deny access to any of Grantee's Records marked confidential, as
set forth above, to any Person and that it shall furnish only that portion of the Grantee's
Records required under the MDPA and Applicable Law.
5. Reports to be Filed with City.
(a) All reports and Records required under this Franchise shall be furnished at the
sole expense of Grantee.
(b) Grantee shall at all times maintain the following records and information relating
specifically to the Cable System serving the City as identified by the FCC Community
Unit Identifier ("CUID") as opposed to a regional Cable System or other operating unit of
Grantee and shall provide such information to City upon no less than thirty (30) Days
advance written request:
(1) A written or computer-stored record of all truck rolls undertaken by the
Grantee for the preceding two (2) years.
(2) A complaint record for Cable Service which shall contain a semi-annual
(January 1 through June 30 and July 1 through December 31) breakdown
indicating the total number of escalated complaints received for the preceding
reporting period, and shall indicate the classifications of all other complaints in
general categories such as construction, billing, customer relations/service and
miscellaneous. Escalated complaints shall mean those complaints that are
received by the City, or received in writing by Grantee's area management.
(3) At the City's written request, Grantee shall provide the City with information
which shall describe in detail Grantee's compliance with Exhibit B hereto.
(4) Grantee shall provide City with an annual statement, within ninety (90)
Days of the close of each calendar year end reflecting the total amounts of Gross
Revenues and all payments and computations of the Franchise Fee for the
previous calendar year.
(5) Grantee shall submit a written end of the year report to the City utilizing the
format attached hereto as Exhibit D.
(c) Upon request of the City and only to the extent mutually upon by Grantee in no
event later than thirty (30) Days from the date of receipt of such request, Grantee shall,
upon mutually acceptable terms and conditions, prepare and furnish to the City such
additional reports with respect to its operation, affairs, transactions or property, as may
be reasonably necessary to ensure compliance with the terms of this Franchise. Neither
City nor Grantee shall unreasonably demand or withhold information requested pursuant
with the terms of this Franchise. The City agrees to request access to only those books
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and records, in exercising its rights under this section, which it deems reasonably
necessary for the enforcement and administration of this Franchise.
SECTION 9. GENERAL FINANCIAL AND INSURANCE PROVISIONS
1. Letter of Credit.
(a) Upon the Effective Date, Grantee shall deliver to City a cash deposit or an
irrevocable and unconditional letter of credit, in form and substance acceptable to City,
from a national or state bank approved by City, in the amount of Forty Thousand and
No/100 Dollars ($40,000.00). Interest on the deposit shall accrue to the Grantee. Upon
request of the City, Grantee shall provide a copy of the letter of credit. City may, in its
sole discretion, reduce the amount of the letter of credit.
(b) Nothing herein shall be deemed a waiver of the normal permit and bonding
requirements made of all contractors working within the City's rights-of-way.
(c) The letter of credit shall provide that funds will be paid to the City, upon written
demand of the City, and in an amount as outlined in the section in payment for penalties
charged pursuant to this section, in payment for any monies owed by Grantee to the City
pursuant to its obligations under this Franchise, or in payment for any damage incurred
by the City as a result of any acts or omissions by Grantee pursuant to this Franchise.
(d) In addition to recovery of any monies owed by Grantee to the City or damages to
the City as a result of any acts or omissions by Grantee pursuant to the Franchise, the
City in compliance with this section may charge to and collect from the letter of credit the
following liquidated damages:
(1) 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 liquidated damages shall be Two Hundred Fifty and No/100
Dollars ($250.00) per Day for each Day, or part thereof, such failure occurs or
continues up to a maximum of Ten Thousand and No/100 Dollars ($10,000.00).
(2) For failure to comply with construction, operation or maintenance
standards, the liquidated damages shall be Three Hundred Fifty and No/100
Dollars ($350.00) per Day for each Day, or part thereof, such failure occurs or
continues up to a maximum of Ten Thousand and No/100 Dollars ($10,000.00).
(3) For failure to meet the PEG access requirements set forth in Section 7, of
this Franchise, the liquidated damages shall be Two Hundred and No/100 Dollars
($200.00) per Day for each Day, or part thereof, such failure occurs or continues
up to a maximum of Ten Thousand and No/100 Dollars ($10,000.00).
(4) For failure to comply with any of the provisions of this Franchise, or other
City ordinance related to Franchise operations for which liquidated damages are
not otherwise specifically provided pursuant to this Section 9, the liquidated
damages shall be Two Hundred Fifty and No/100 Dollars ($250.00) per Day for
each Day, or part thereof, such failure occurs or continues up to a maximum of
Ten Thousand and No/100 Dollars ($10,000.00).
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(e) Each violation of any provision of this Franchise shall be considered a separate
violation for which a separate penalty can be imposed.
(f) Whenever the City finds that Grantee has violated one (1) or more terms,
conditions or provisions of this Franchise, or for any other violation contemplated in this
Section 9, above, a written notice shall be given to Grantee informing it of such violation.
At any time after thirty (30) Days (or such longer reasonable time which, in the sole
determination of the City, is necessary to cure the alleged violation) following local receipt
of notice, provided Grantee remains in violation of one (1) or more terms, conditions or
provisions of this Franchise, in the sole opinion of the City, the City may draw from the
letter of credit all liquidated damages and other monies due the City from the date of the
local receipt of notice.
(g) Upon receipt of the violation notice from the City, the Grantee may within thirty
(30) Days of such receipt notify the City in writing that there is a dispute as to whether a
violation or failure has in fact occurred. Such written notice by Grantee to the City shall
specify with particularity the matters disputed by Grantee. Such notice by Grantee shall
toll the timeframes herein and the accrual of all liquidated damages from the security fund
until the City issues a decision following the required hearing in Section 9.1(g)(1) herein.
If Grantee does not dispute the alleged violation set forth in the violation notice, Grantee
shall have thirty (30) Days from the receipt of the violation notice to cure the alleged
default before the City may impose liquidated damages as set forth Section 9 herein.
(1) The City shall hear Grantee's dispute within sixty (60) Days and render a
final decision within sixty (60) Days thereafter.
(2) Upon the determination of the City that no violation has taken place, the
City shall refund to Grantee, without interest, all monies drawn from the letter of
credit by reason of the alleged violation.
(h) If said letter of credit or any subsequent letter of credit delivered pursuant thereto
expires during the term of this Franchise, it shall be renewed or replaced during the term
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 subparagraph (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, Grantee shall replace or replenish to its full
amount up the maximum provided by this Section 9.3(h) 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 9.1(a) as a substitution of the previous
letter of credit. This shall be a continuing obligation for any draws upon the letter of credit
up to an aggregate total of Seventy-Five Thousand and No/100 Dollars ($75,000.00) over
the Franchise term.
(j) The failure to replace or replenish any letter of credit as required by Section 9.3
(h) may also, at the option of the City, be deemed a default by Grantee under this
Franchise. The drawing on the letter of credit by City, and use of the money so obtained
for payment or performance of the obligations, duties and responsibilities of Grantee
which are in default, shall not be a waiver or release of such default.
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(k) The collection by the City of any liquidated damages or monies from the letter of
credit shall not affect any other right or remedy available to the City, nor shall any act, or
failure to act, by the City pursuant to the letter of credit, be deemed a waiver of any right
of the City pursuant to this Franchise or otherwise.
(l) No sooner than three (3) years following the Effective date of this Franchise,
Grantee shall have the right to request that the City reduce or eliminate the letter of credit
and in lieu of a letter of credit or cash deposit, allow Grantee to post a performance bond
in a form and with a surety acceptable to the City. The City shall have the sole discretion
to determine whether to grant such request.
2. Procedures for Revocation, Termination or Cancellation.
(a) The City shall provide Grantee with written notice of a cause for revocation,
termination, or cancellation and the intent to revoke, terminate or cancel and shall allow
Grantee thirty (30) Days subsequent to receipt of the notice in which to correct the
violation or to provide adequate assurance of performance in compliance with the
Franchise. In the notice required therein, the City shall provide Grantee with the basis of
the revocation, termination or cancellation.
(b) Grantee shall be provided the right to a public hearing affording due process
before the City Council prior to the effective date of revocation, termination, or
cancellation, which public hearing shall follow the thirty (30) Day notice provided in
Section 9.2(a) above. The City shall provide Grantee with written notice of its decision
together with written findings of fact supplementing said decision.
(c) Only after the public hearing and upon written notice of the determination by the
City to revoke, terminate or cancel the Franchise may 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. Indemnification of City.
(a) Grantee shall indemnify, defend and hold the City, and their officers, boards,
commissions, agents and employees (collectively the "Indemnified Parties") harmless
from and against any and all lawsuits, claims, causes of action, actions, liability,
demands, damages, judgments, settlements, disability, losses, expenses (including
attorneys' fees and disbursements of counsel) and costs of any nature that any of the
Indemnified Parties may at any time, suffer, sustain or incur arising out of, based upon or
in any way connected with the grant of this Franchise, the operation construction,
maintenance, or repair of Grantee's System, the breach by Grantee of its obligations
under this Franchise and/or the activities of Grantee, its subcontractor, employees and
agents hereunder. Grantee shall be solely responsible for and shall indemnify, defend
and hold the Indemnified Parties harmless from and against any and all matters relative
to payment of Grantee's employees, including compliance with Social Security and
withholdings.
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(b) The indemnification obligations of Grantee set forth in this Franchise are not
limited in any way by the amount or type of damages or compensation payable by or for
Grantee under Workers' Compensation, disability or other employee benefit acts,
acceptance of insurance certificates required under this Franchise, or the terms,
applicability or limitations of any insurance held by Grantee.
(c) The City does not, and shall not, waive any rights against Grantee which it may
have by reason of the indemnification provided for in this Franchise, because of the
acceptance by City, or the deposit with City by Grantee, of any of the insurance policies
described in this Franchise.
(d) The indemnification of the City by Grantee provided for in this Franchise shall
apply to all damages and claims for damages of any kind suffered by reason of any of
the Grantee's operations referred to in this Franchise, regardless of whether or not such
insurance policies shall have been determined to be applicable to any such damages or
claims for damages.
(e) Grantee shall not be required to indemnify City for claims arising from intentional
acts or omissions or negligence on the part of City or its officials, boards, commissions,
agents, or employees or for any claims or damages arising in any way from the PEG
Access Channels.
(f) In order for City to assert its rights to be indemnified, defended, and held
harmless, City must, with respect to each claim:
(1) Promptly notify Grantee within ten (10) business days in writing of any claim
or legal proceeding which gives rise to such right;
(2) Afford Grantee the opportunity to participate in and fully control any
compromise, settlement or other resolution or disposition of any claim or
proceeding; and
(3) Cooperate with reasonable requests of Grantee, at Grantee's expense, in
its participation in, and control, compromise, settlement or resolution or other
disposition of such claim or proceeding subject to subparagraph (2) above.
4. Insurance.
(a) As a part of the indemnification provided in Section 9.3, but without limiting the
foregoing, Grantee shall file with its acceptance of this Franchise, and at all times
thereafter maintain in full force and effect at its sole expense, a certificate of insurance
evidencing an occurrence-based comprehensive general liability insurance policy,
including contractual liability coverage, in protection of the City in its capacity as such, its
officers, elected officials, boards, commissions, agents and employees. The policy or
policies shall name as additional insured the City and in their capacity as such, the City's
officials, boards, commissions, agents, or employees. The policies of insurance shall be
in the sum of not less than Three Million and No/100 Dollars ($3,000,000.00) for personal
injury and property damage or One Million and No/100 Dollars ($1,000,000.00) together
with a minimum of Two Million and No/100 Dollars ($2,000,000.00) excess liability
coverage.
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(b) The policy or policies of insurance shall be maintained by Grantee in full force and
effect during the entire term of the Franchise and shall be issued by company licensed to
do business in the State of Minnesota with a rating by A.M. Best & Co. or other reputable
rating agency of not less than "A-" or substantial equivalent upon the Effective Date of
this Franchise or at the time a sale or transfer of ownership is approved by the City. 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 at the request of Grantee or for other reasons, except after ten (10) Days
advance written or electronic notice has been provided to the City by the insurer.
(c) Grantee shall obtain and maintain Workers' Compensation Insurance for all of
Grantee's employees, and in case any work is sublet, Grantee shall require any
subcontractor similarly to provide Workers' Compensation Insurance for all of their
employees, all in compliance with state laws, and to fully indemnify the City from and
against any and all worker's compensation claims arising out of occurrences on the work.
Grantee hereby indemnifies the City for any and all costs, expenses (including attorneys'
fees and disbursements of counsel), damages and liabilities incurred by the City as a
result of any failure of either Grantee or any subcontractor to take out and maintain such
insurance. Grantee shall provide the City with a certificate of insurance indicating
Workers' Compensation coverage on the Effective Date.
SECTION 10. SALE, ABANDONMENT, TRANSFER AND REVOCATION OF FRANCHISE
1. Abandonment of Service.
(a) Grantee may not abandon the Cable System or any portion thereof without having
first given three (3) months written notice to the City. Grantee may not abandon the Cable
System or any portion thereof without compensating the City for damages resulting from
the abandonment. Grantee shall comply with the City Code (specifically Section 25.29
of the City Code) and Applicable Law and in the event of Grantee's abandonment of all
or a portion of the Cable System. The City shall have the right to require Grantee to
conform to the state right-of-way rules and Minnesota Rules, Chapter 7819.3300 with
respect any abandoned facilities in the City provided, however, that the Grantee reserves
its rights under Applicable Law to assert that Grantee is providing services other than
Cable Services pursuant to Minnesota Statutes, Section 237.01 et seq., and therefore
not subject to this section.
2. Removal After Termination or Forfeiture.
(a) In the event of termination or forfeiture of the Franchise, the City shall have the
right to require Grantee to remove all or any portion of the Cable System from all Streets
and public property within the City associated solely with the provision of Cable Service;
provided, however, that if Grantee is providing services other than Cable Services or
pursuant to Minnesota Statutes, Section 237.01 et seq., the City shall not require the
removal of the Cable System. Nothing in this section shall be deemed either to grant or
to preclude the provision of services other than Cable Services.
(b) If Grantee has failed to commence removal of the Cable System, or such part
thereof as was designated by the City, within one hundred twenty (120) Days after written
notice of the City's demand for removal is given, or if Grantee has failed to complete such
removal within twelve (12) months after written notice of the City's demand for removal is
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given, the City shall have the right to 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 pursuant to the provisions
of 47 U.S.C. § 547 (1989).
3. Sale or Transfer of Franchise.
(a) No sale, transfer, assignment or "fundamental corporate change", as defined in
Minnesota Statutes, Section 238.083, of this Franchise shall take place until the parties
to the sale, transfer, or fundamental corporate change files a written request with City for
its approval, provided, however, that said approval shall not be required where Grantee
grants a security interest in its Franchise and assets to secure an indebtedness.
(b) The City shall have thirty (30) Days from the time of the request to reply in writing
and indicate approval of the request or its determination that a public hearing is necessary
due to potential adverse effect on Grantee's Subscribers resulting from the sale or
transfer. Such approval or determination shall be expressed in writing within thirty (30)
Days of receipt of said request, or the request shall be deemed approved as a matter of
law.
(c) If a public hearing is deemed necessary pursuant to subparagraph (b) above,
such hearing shall be commenced within thirty (30) Days of such determination and
notice of any such hearing shall be given in accordance with local law or fourteen (14)
Days prior to the hearing by publishing notice thereof once in a newspaper of general
circulation in City. The notice shall contain the date, time and place of the hearing and
shall briefly state the substance of the action to be considered by the City.
(d) Within thirty (30) Days after the closing of the public hearing, City shall approve
or deny in writing the sale or transfer request. City shall set forth in writing with
particularity its reason(s) for denying approval. City shall not unreasonably withhold its
approval.
(e) The parties to the sale or transfer of the Franchise only, without the inclusion of
the Cable System in which substantial construction has commenced, shall establish that
the sale or transfer of only the Franchise will be in the public interest.
(f) Any sale or transfer of stock in Grantee so as to create a new controlling interest
in the System shall be subject to the requirements of this Section 10.3. The term
"controlling interest" as used herein is not limited to majority stock ownership, but includes
actual working control in whatever manner exercised.
(g) In no event shall a transfer or assignment of ownership or control be approved
without the transferee becoming a signatory to this Franchise and assuming all rights and
obligations there under, and assuming all other rights and obligations of the transferor to
the City.
(h) To the extent required by Minnesota Statutes Section 238.084, Subd. 1 (y), and
to the extent legally enforceable under Applicable Laws, the City shall have the right to
purchase the Cable System if it is transferred or sold.
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4. Extended Operation and Continuity of Services. Upon termination or forfeiture of this
Franchise, Grantee shall remove its cable, wires, and appliances from the Streets, alleys, or other
public places within the Franchise Area if the City so requests. Failure by the Grantee to remove
its cable, wires, and appliances as referenced herein shall be subject to this Franchise.
5. Receivership and Foreclosure. The City and Grantee shall comply with Applicable Law in
the event of an appointment of a receiver or receivers, or trustee or trustees, to take over and
conduct the business of Grantee, whether in a receivership, reorganization, bankruptcy,
foreclosure or other action or proceeding. Nothing in this Section 10.5 constitutes a waiver by the
City of any rights it may have pursuant to Applicable Law and this Franchise.
SECTION 11. PROTECTION OF INDIVIDUAL RIGHTS
1. Discriminatory Practices Prohibited. Grantee shall comply at all times with all Applicable
Laws relating to nondiscrimination. Access to Cable Service shall not be denied to any group of
potential Subscribers because of the income of the residents of the local area. Nothing contained
herein shall prohibit the Grantee from offering bulk discounts, promotional discounts, package
discounts, or other such pricing strategies as part of its business practice to the extent permitted
under Applicable Law.
SECTION 12. MISCELLANEOUS PROVISION
1. Franchise Renewal. Any renewal of this Franchise shall be in accordance with Applicable
Laws.
2. Work of Contractors and Subcontractors. All provisions of this Franchise shall apply to
any subcontractor or others performing any work or services on Grantee's behalf pursuant to the
provisions of this Franchise. Grantee shall be responsible for ensuring that the work of contractors
and subcontractors is performed consistent with the Franchise and Applicable Laws and shall
indemnify the City pursuant to Section 9.3.
3. Amendment of Franchise. Grantee and the City may agree, from time to time, to amend
this Franchise. Such written amendments may be made at any time if the City and Grantee agree
that such an amendment will be in the public interest or if such an amendment is required due to
changes in federal, state or local laws.
4. Compliance with Federal, State 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
following knowledge thereof, either party shall notify the other of the point in conflict
believed to exist between such law or regulation. Grantee and City shall conform to state
laws and rules regarding cable communications not later than one (1) year after they
become effective, unless otherwise stated, and shall conform to federal laws and
regulations regarding cable as they become effective.
(b) If any term, condition or provision of this Franchise or the application thereof to
any Person or circumstance shall, to any extent, be held to be invalid or unenforceable,
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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.
5. Nonenforcement by City. Grantee shall not be relieved of its obligations to comply with
any of the provisions of this Franchise by reason of any failure or delay of City to enforce prompt
compliance. Any waiver by City of a breach or violation of any provision of this Franchise shall
not operate as or be construed to be a waiver of any subsequent breach or violation.
6. Administration of Franchise. The City Administrator shall have continuing regulatory
jurisdiction and supervision over the System and the Grantee's operation under the Franchise.
The City Administrator shall have authority to issue notice of franchise violations to Grantee under
Section 9 of this Franchise; provided, however, the Council shall have sole authority to conduct
any required hearings regarding such alleged violations and issue any decisions regarding
enforcement the Franchise.
7. Periodic Evaluation. The field of cable communications is rapidly changing and may see
many regulatory, technical, financial, marketing and legal changes during the term of this
Franchise. Therefore, in order to provide for a maximum degree of flexibility in this Franchise,
and to help achieve a continued advanced and modern System, the following evaluation
provisions shall apply:
(a) The City may require evaluation sessions at any time during the term of this
Franchise, upon thirty (30) Days written notice to Grantee, provided, however, there shall
not be more than two (2) review sessions during the term of this Franchise.
(b) Topics which may be discussed at any evaluation session may include, but are
not limited to, new technologies, System performance, programming offered, PEG
Access Channels, facilities and support, municipal uses of cable, customer complaints,
judicial rulings, FCC rulings, line extension policies and any other topics City and Grantee
deem relevant.
(c) As a result of a periodic review or evaluation session, City and Grantee may, upon
mutual agreement, develop such changes and modifications to the terms and conditions
of the Franchise and which are both economically and technically feasible.
8. Rights Cumulative. All rights and remedies given to City by this Franchise shall 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 (1) 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.
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9. Grantee Acknowledgment of Validity of Franchise. Grantee acknowledges that it has had
an opportunity to review the terms and conditions of this Franchise and has the right to enter into,
execute and perform its obligations under this Franchise and that Grantee believes that said terms
and conditions are not unreasonable and are valid and binding obligations. Subject to the
foregoing, nothing in this Franchise shall be construed as a waiver of any rights of the City or
Grantee.
10. Severability. If any section, subsection, sentence, clause, phrase, or other portion of this
Franchise is, for any reason, declared invalid, in whole or in part, by any court, agency,
commission, legislative body, or other authority of competent jurisdiction, such portion shall be
deemed a separate, distinct, and independent portion. Such declaration shall not affect the
validity of the remaining portions hereof, which other portions shall continue in full force and effect.
11. Force Majeure. In the event Grantee's performance of any of the terms, conditions,
obligations or requirements of this Franchise is prevented or impaired due to any cause beyond
its reasonable control, such inability to perform shall be deemed to be excused for the period of
such inability and no penalties or sanctions shall be imposed as a result thereof, provided Grantee
has notified City in writing within a reasonable time of its discovery of the occurrence of such an
event then the Grantee shall have a commercially reasonable time under the circumstances to
perform such obligation under this Franchise, or to procure a substitute for such obligation to the
reasonable satisfaction of the City. Such causes beyond Grantee's reasonable control shall
include, but shall not be limited to, acts of God, civil emergencies and labor unrest or strikes,
untimely delivery of equipment or materials, inability of Grantee to obtain access to an individual's
or entity's property and inability of Grantee to secure all necessary permits to utilize utility poles
and conduit so long as Grantee utilizes due diligence to timely obtain said permits.
12. Governing Law. This Franchise shall be deemed to be executed in the State of Minnesota,
and shall be governed in all respects, including validity, interpretation and effect, and construed
in accordance with the laws of the State of Minnesota.
SECTION 13. PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
1. Publication; Effective Date. This Franchise shall be published in accordance with
Applicable Law. The Effective Date of this Franchise shall be the date specified in Section 1.2
("Definitions"). Grantee shall assume the cost of posting and publication of this Franchise as such
posting and publication is required by law and such is payable upon Grantee's filing of acceptance
of this Franchise.
2. Acceptance.
(a) Grantee shall accept this Franchise within thirty (30) Days of its enactment by the
City Council, unless the time for acceptance is extended by City. Such acceptance by
the Grantee shall be deemed the grant of this Franchise for all purposes. In the event
acceptance does not take place, this Franchise and any and all rights previously granted
to Grantee shall be null and void.
(b) Upon acceptance of this Franchise, Grantee shall be bound by all the terms and
conditions contained herein.
(c) The City's "Notice of Intent to Consider an Application for a Franchise" ("Notice")
provided, consistent with Minn. Stat. 238.081 subd. 8, that applicants would be required
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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 Rochester, Minnesota for all additional fees and costs incurred by
the City. Within thirty (30) Days of City Council approval, the City shall provide Grantee
with a letter specifying such additional costs following approval of this Franchise by the
City Council.
(d) Grantee shall accept this Franchise in the following manner:
(1) This Franchise will be properly executed and acknowledged by Grantee
and delivered to City.
(2) With its acceptance, Grantee shall also deliver any grant payments, letter
of credit and insurance certificates required herein that have not previously been
delivered.
PASSED AND ADOPTED BY THE COMMON COUNCIL OF THE CITY OF ROCHESTER,
MINNESOTA, THIS ____ DAY OF , 20______.
President of said Common Council
ATTEST: __________________________
CITY CLERK
APPROVED THIS _____ DAY OF ______________________, 2019.
___________________________________
MAYOR OF SAID CITY
(Seal of the City of
Rochester, Minnesota)
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ACCEPTED: This franchise is accepted and we agree to be bound by its terms and conditions.
CMN-RUS, INC.
By:
Dated: Its:
SWORN TO BEFORE ME THIS _____
Day of ________________, 20_______
Notary Public
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EXHIBIT A
Service to School and Library Buildings
Rochester School District
1. Bamber Valley Elementary School 2001 Bamber Valley Road S.W.
th
2. Bishop Elementary School 406 – 36 Avenue N.W.
3. Churchill Elementary School 2240 Seventh Avenue N.W.
4. Elton Hills Elementary School 1421 Elton Hills Drive N.W.
th
5. Folwell Elementary School 600 – 15 Avenue S.W.
6. Franklin Elementary School 1801 Ninth Avenue S.E.
th
7. Gage Elementary School 1300 – 40 Street N.W.
th
8. Gibbs Elementary School 5525 – 56 St. N.W.
9. Hoover Elementary School 369 Elton Hills Drive N.W.
10. Jefferson Elementary School 1201 Tenth Avenue N.W.
11. Lincoln K -8 Elementary School 1122 Eighth Street S.E.
12. Longfellow Elementary School 1615 Marion Road S.W.
13. Pinewood Elementary School1 900 Pinewood Road S.E.
th
14. Sunset Terrace Elementary School 1924 – 17 Street N.W.
th
15. Washington Elementary School 1200 – 11 Avenue N.W.
16. Friedell Middle School 1200 South Broadway
st
17. John Adams Middle School 1525 – 31 Street N.W.
th
18. Kellogg Middle School 501 – 17 Street N.W.
th
19. Willow Creek Middle School 2425 – 11 Avenue S.E.
20. Century Senior High School 2525 Viola Road N.E.
th
21. John Marshall Senior High School 1510 – 14 Street N.W.
th
22. Mayo Senior High School 1420 – 11 Avenue S.E.
23. Administration Building 615 Seventh Street S.W.
th
24. Educational Services Center/Phoenix Academy 334 – 16 Street S.E.
25. Alternative Learning Center 26 Woodlake Drive
26. Hawthorne Education Center 700 Fourth Avenue S.E.
27. Health Sciences Career Center 3033 41st Street NW
28. ISD 535 Maintenance Services Building 10 9-1/2 Street S.E.
29. Rochester Public Library 101 S.E. Second Street
Service to Public Buildings
City of Rochester
Rochester City Hall 201 Fourth Street S.E.
Rochester Fire Stations (all)
Recreation Center 21 N.W. Hills Dr.
Mayo Civic Center 30 S.E. Civic Center Dr.
Northrop Community Services Center 815 N.W. Second Avenue
Graham Arena 201 – 16th Street S.E.
Public Utilities Service Center 4000 N.E. River Road
Public Works/Transit Operations Center 4300 East River Road N.E.
Olmsted County
Olmsted County Courthouse 151 S.E. Fourth Street
Other Educational Institutions
Rochester Area Vo-Tech Institute – Main Bldg.
1926 Second Street S.E.
th
Rochester Area Vo-Tech Institute – Annex 334 – 16 Street S.E.
th
Winona State University – Rochester 851 – 30 Avenue S.E.
th
Rochester Community & Technical College 851 – 30 Avenue S.E.
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EXHIBIT B
Customer Service Standards
The following Customer Service Standards shall apply once Grantee provides Cable Service to its first
Subscriber in the City.
(a) Cable System telephone availability:
(1) Grantee will maintain a local, toll-free or collect call telephone access line which will be
available to its Subscribers twenty-four (24) hours a day, seven (7) days a week.
(2) Trained Grantee representatives will be available to respond to customer telephone
inquiries during Normal Business Hours.
(3) After Normal Business Hours, the access line may be answered by a service or an
automated response system, including an answering machine. Inquiries received after Normal
Business Hours must be responded to by a trained Grantee representative on the next business
day.
(4) Under Normal Operating Conditions, telephone answer time by a customer
representative, including wait time, shall not exceed thirty (30) seconds when the connection is
made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These
standards shall be met no less than ninety percent (90%) of the time under Normal Operating
Conditions, measured on a quarterly basis.
(5) Under Normal Operating Conditions, the customer will receive a busy signal less than
three percent (3%) of the time.
(6) For a minimum of five (5) years following the Effective Date of the Franchise, Grantee
shall provide a customer service and bill payment retail location within the Franchise Area. Such
location will be open at least during Normal Business Hours.
(b) Installations, Outages and Service Calls. Under Normal Operating Conditions, each of the
following standards will be met no less than ninety-five percent (95%) of the time measured on a quarterly
basis:
(1) Standard Installations will be performed within seven (7) business days after an order has
been placed. "Standard" Installations are those that are located up to one hundred twenty-five
(125) feet from the existing distribution system.
(2) Excluding conditions beyond the control of the Grantee, the Grantee will begin working
on "Service Interruptions" promptly and in no event later than twenty-four (24) hours after the
interruption becomes known. The Grantee must begin actions to correct other service problems
the next business day after notification of the service problem.
(3) The "appointment window" alternatives for Installations, service calls, and other
Installation activities will be either a specific time or, at maximum, a four (4) hour time block
during Normal Business Hours. (Grantee may schedule service calls and other Installation
activities outside of Normal Business Hours for the express convenience of the customer.)
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4541290v1
(4) Grantee may not cancel an appointment with a customer after the close of business on
the business day prior to the scheduled appointment.
(5) If Grantee's representative is running late for an appointment with a customer and will
not be able to keep the appointment as scheduled, the customer will be contacted. The
appointment will be rescheduled, as necessary, at a time which is convenient for the customer.
(c) Communications between Grantee and Subscribers. Grantee shall comply with the provisions of
47 CFR § 76.1601-1604 in communicating with Subscribers in the City.
(1) Grantee will provide written information on each of the following areas at the time of
Installation of Service, at least annually to all Subscribers, and at any time upon request:
(a) Products and Services offered;
(b) Prices and options for programming services and conditions of subscription to
programming and other services;
(c) Installation and Service maintenance policies;
(d) Instructions on how to use the Cable Service;
(e) Channel positions of programming carried on the System; and
(1) Billing and complaint procedures, including the address and telephone
number of the City's cable office. Subscribers shall be advised of the procedures for
resolution of complaints about the quality of the television signal delivered by the
Grantee, including the address of the responsible officer of the City.
(2) Subscribers will be notified of any changes in rates, programming services
or Channel positions as soon as possible in writing. Notice must be given to Subscribers
a minimum of thirty (30) Days in advance of such changes if the change is within the
control of the Grantee. In addition, the Grantee shall notify Subscribers thirty (30) Days
in advance of any significant changes in the information required by Section (c) 1(A) — (F)
of this Exhibit B.
(3) In addition to the requirement of subparagraph (2) of this section
regarding advance notification to Subscribers of any changes in rates, programming
services or Channel positions, Grantee shall give thirty (30) Days' written notice to both
Subscribers and the City before implementing any rate or service change. Such notice
shall state the precise amount of any rate change and briefly explain in readily
understandable fashion the cause of the rate change (e.g., inflation, change in external
costs or the addition/deletion of Channels). When the change involves the addition or
deletion of Channels, each Channel added or deleted must be separately identified. For
purposes of the carriage of digital broadcast signals, the Grantee need only identify for
Subscribers, the television signal added and not whether that signal may be multiplexed
during certain dayparts.
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(4) To the extent Grantee is required to provide notice of service and rate
changes to Subscribers, the Grantee may provide such notice using any reasonable
written means at its sole discretion.
(5) Notwithstanding any other provision of this section, Grantee shall not
be required to provide prior notice of any rate change that is the result of a regulatory
fee, Franchise Fee, or any other fee, tax, assessment, or charge of any kind imposed by
any federal agency, state, or City on the transaction between the Grantee and the
Subscriber.
(d) Refunds. Refund checks will be issued promptly, but no later than either:
(1) The customer's next billing cycle following resolution of the request or
thirty (30) Days, whichever is earlier, or
(2) The return of the equipment supplied by the Grantee if service is
terminated.
(e) Credits. Credits for Service will be issued no later than the customer's next billing cycle
following the determination that a credit is warranted.
(f) Billing.
(1) Consistent with 47 C.F.R. § 76.1619, bills will be clear, concise and
understandable. Bills must be fully itemized, with itemizations including, but not
limited to, Basic Cable Service and premium service charges and equipment
charges. Bills will also clearly delineate all activity during the billing period,
including optional charges, rebates and credits.
(2) In case of a billing dispute, the Grantee must respond to a written
complaint from a Subscriber within thirty (30) Days.
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EXHIBIT C
Franchise Fee Payment Worksheet
TRADE SECRET — CONFIDENTIAL
Month/Year Month/Year Month/Year Total
Cable Service Revenue
Installation Charge
Franchise Fee Revenue
Advertising Revenue
Home Shopping Revenue
Other Revenue
Equipment rental
REVENUE
Fee Calculated
Fee Factor: 5%
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EXHIBIT D
ANNUAL PERFORMANCE REVIEW CHECKLIST
1. RATES AND CHARGES
a. Annual Rate Cards
b. Notices sent to City and Subscriber
2. PROGRAMS AND SERVICES
a. Annual Channel Line-ups
3. PUBLIC, GOVERNMENTAL AND EDUCATIONAL ACCESS
a. Programs and Services — summary attached
b. Other highlights
4. CUSTOMER SERVICE
a. Summary of complaints
b. System outages summary
c. Examples of new customer services, promotions
5. FILING WITH FCC
a. Summary of all filings with FCC
b. Summary of performance test results
6. SUMMARY OF FRANCHISE FEE PAYMENTS
a. Franchise Fee Payments
b. PEG Fee Payments
7. TERMS AND CONDITIONS OF FRANCHISE AGREEMENT
a. All insurance, bonds and deposits are updated and filed with City
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