HomeMy WebLinkAboutNo 1001 Renewing the Grant of a Franchise to Comcast of St. Paul, Inc. to Operate and Maintain a Cable System in the City of Maplewood... (2)CITY OF MAPLEWOOD, MINNESOTA
ORDINANCE GRANTING A CABLE TELEVISION FRANCHISE
TO
COMCAST OF MINNNESOTA, INC.
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TABLE OF CONTENTS
PAGE
SECTION 1 DEFINITIONS ......................................................................................................... 1
SECTION 2 FRANCHISE ........................................................................................................... 6
SECTION 3 OPERATION IN STREETS AND RIGHTS-OF-WAY ......................................... 9
SECTION 4 REMOVAL OR ABANDONMENT OF SYSTEM .............................................. 12
SECTION 5 SYSTEM DESIGN AND CAPACITY ................................................................. 14
SECTION 6 PROGRAMING AND SERVICES ....................................................................... 16
SECTION 7 PUBLIC , EDUCATIONAL AND GOVERNMENTAL ACCESS ...................... 18
SECTION 8 REGULATORY PROVISIONS ............................................................................ 24
SECTION 9 BOND .................................................................................................................... 24
SECTION 10 SECURITY FUND ............................................................................................... .25
SECTION 11 DEFAULT ............................................................................................................. 27
SECTION 12 FORECLOSURE AND RECEIVERSHIP ............................................................ 29
SECTION 13 REPORTING REQUIREMENTS ......................................................................... 29
SECTION 14 CUSTOMER SERVICE PROVISIONS ................................................................ 30
SECTION 15 SUBSCRIBER PRACTICES ................................................................................. 35
SECTION 16 COMPENSATION AND FINANCIAL PROVISIONS ....................................... 36
SECTION 17 MISCELLANEOUS PROVISIONS ..................................................................... .40
EXHIBIT A ............................................................................................................................. A-1
EXHIBIT B .............................................................................................................................. B-1
562 777 v3 MAl51-4
ORDINANCE NO. --------
AN ORDINANCE RENEWING THE GRANT OF A FRANCHISE TO COMCAST OF
MINNESOTA , INC . TO OPERA TE AND MAINTAIN A CABLE SYSTEM IN THE CITY
OFMAPLEWOOD , MINNESOTA ; SETTING FORTH CONDITIONS ACCOMPANYING THE
GRANT OF FRANCHISE ; PROVIDING FOR CITY REGULATION AND
ADMINISTRATION OF THE CABLE SYSTEM; TERMINATING PRIOR FRANCHISE
RECITALS
The City of Maplewood, Minnesota ("City"), pursuant to applicable federal and state law ,
is authorized to grant one (1) or more nonexclusive cable television franchises to construct,
operate, maintain and reconstruct cable television systems within the City limits .
Comcast of Minnesota, Inc., a Delaware corporation ("Grantee") has operated a Cable
System in the City, under a cable television franchise granted pursuant to a Cable Television
Franchise Ordinance passed on November 29, 1999.
Negotiations between Grantee and the City have been completed and the franchise renewal
process followed in accordance with the guidelines established by Minnesota Statutes Chapter 238
and the Cable Act (47 U.S.C. §546).
The City reviewed the legal, technical and financial qualifications of Grantee and has
determined that it is in the best interest of the City and its residents to renew the cable television
franchise with Grantee.
NOW, THEREFORE, THE CITY OF MAPLEWOOD DOES ORDAIN that a
franchise is hereby granted to Comcast of Minnesota, Inc., to operate and maintain a Cable System
in the City upon the following terms and conditions:
SECTION 1 DEFINITIONS
For the purpose of this Franchise, the following , terms , phrases , words , derivations and
their derivations shall have the meanings given herein . When not inconsistent with the context,
words used in the present tense include the future tense, words in the plural number include the
singular number and words in the singular number include the plural number. In the event the
meaning of any word or phrase not defined herein is uncertain, the definitions contained in
applicable local , state or federal law shall apply.
"Advertising Revenues" shall mean revenues derived from sales of advertising that are
made available to Grantee 's Cable System subscribers within the City and shall be allocated on a
pro rata basis using total Cable Service subscribers reached by the advertising. Additionally,
Grantee agrees that Gross Revenues subject to franchise fees shall include all commissions,
representative fees , Affiliated Entity fees, or rebates paid to National Cable Communications and
Comcast Spotlight or their successors associated with sales of advertising on the Cable System
562777v3 M A 15 1-4 1
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within the City allocated according to this paragraph using total Caple Service subscribers reached
by the advertising.
"Affiliate" shall mean any Person controlling, controlled by or under common control of
Grantee .
"Applicable Laws " means any law , statute, charter, ordinance, rule , regulation, code,
license, certificate, franchise , permit, writ , ruling , award , executive order, directive, requirement ,
injunction (whether temporary, preliminary or permanent), judgment, decree or other order issued ,
executed , entered or deemed applicable by any governmental authority of competent jurisdiction.
"Basic Cable Service" shall be defined as set forth in applicable law , currently 47 USC §
522(3), as any means any service tier which includes the lawful retransmission oflocal television
broadcast.
"Cable Act" means the Cable Communications Policy Act of 1984 , 47 U.S.C. §§ 521 et
seq ., as amended by the Cable Television Consumer Protection and Competition Act of 1992 , as
further amended by the Telecommunications Act of 1996 , as further amended from time to time .
"Cable Service" shall be defined as set forth in applicable law, currently 47 USC§ 522(6),
as (a) the one-way transmission to Subscribers of (i) Video Programming or (ii) Other
Programming Service, and b) Subscriber interaction, if any, which is required for the selection or
use of such video programming or other programming service. For the purposes of this definition,
"video programming" is programming provided by, or generally considered comparable to
programming pro vided by a television broadcast station; and , "other programming service" is
information that a cable operator makes available to all Subscribers generally.
"Cable System" or "System" shall have the meaning specified for "Cable System" in the
Cable Act. Unless otherwise specified , it shall in this document refer to the Cable System
constructed and operated in the City under this Franchise.
"Channel " shall be defined as set forth in applicable law , currently 47 USC§ 522(4), as a
portion of the electromagnetic frequency spectrum which is used in a Cable System and which is
capable of delivering a television channel as defined by the FCC by regulation.
"City" shall mean the City of Maplewood, a municipal corporation m the State of
Minnesota.
"City Code" means the Municipal Code of the City of Maplewood , Minnesota, as may be
amended from time to time .
"Connection" means the attachment of the Drop to the television set of the Subscriber.
"Converter" means an electronic device , including Digital Transport Adapters , which
converts signals to a frequency not susceptible to interference within the television receiver of a
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Subscriber, and by an appropriate Channel selector also permits a Subscriber to view all signals
included in the Basic Cable Service tier delivered at designated converter dial locations .
"Council " shall mean the governing body of the City.
"Day" unless otherwise specified shall mean a calendar day.
"Demarcation Point" is the point agreed upon by the Grantee and the City upon which one
side is the responsibility of the Grantee , and the other side is the responsibility of the City.
"Drop " shall mean the cable that connects the Subscriber terminal to the nearest feeder
cable of the cable.
"Effective Date" shall mean July 1, 2019.
"FCC" means the Federal Communications Commission, or a designated representative .
"Franchise" shall mean the right granted by this Franchise Ordinance and conditioned as
set forth herein.
"Franchise Area" means the entire geographic area within the City as it is now constituted
or may in the future be constituted.
"Franchise Fee " shall mean the fee assessed by the City to Grantee, determined in amount
as a percentage of Grantee 's Gross Revenues and limited to the maximum percentage allowed for
such assessment by federal law. The term Franchise Fee does not include the exceptions noted in
47 U.S.C . §542(g)(2)(A-E).
"GAAP" means generally accepted accounting principles as promulgated and defined by
the Financial Accounting Standards Board ("F ASB "), Emerging Issues Task Force ("EITF ")
and /or the U.S. Securities and Exchange Commission ("SEC").
"Gross Revenues" means , and shall be construed broadly to include, all revenues derived
directly or indirectly by Grantee and/or an Affiliated Entity that is the cable operator of the Cable
System, from the operation of Grantee 's Cable System to provide Cable Services within the City.
Gross Revenues shall include revenue received by any Affiliate to prevent evasion or avoidance
of the obligation under this Franchise to pay Franchise and PEG Fees. Revenues of both Grantee
and an Affiliate that represent a transfer of funds between the Grantee and the Affiliate and that
would otherwise constitute Gross Revenues shall be included for purposes of determining "Gross
Revenues." Except as provided herein , Gross Revenues shall not be net of: (1) any operating
expense or other expenditure; (2) any prior actual or claimed overpayment of Franchise or PEG
Fees, or (3) any accrual , including, without limitation, for commissions. Gross revenues include,
by way of illustration and not limitation:
• monthly fees for Cable Services , regardless of whether such Cable Services are
provided to residential or commercial customers , including revenues derived from the
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provision of all Cable Services (including but not limited to pay or premium Cable
Services, digital Cable Services , pay-per-view , pay-per-event, and video-on-demand
Cable Services);
• fees paid to Grantee for channels designated for commercial/leased access use and shall
be allocated on a pro rata basis using total Cable Service subscribers within the City;
• converter, remote control , and other Cable Service equipment rentals , leases, or sales ;
• Advertising Revenues as defined herein;
• late fees, convenience fees , and administrative fees , which shall be allocated on a pro
rata basis using Cable Services revenue as a percentage of total subscriber revenues
within the City;
• revenues from program guides ;
• Franchise Fees;
• FCC Regulatory Fees;
• Except as provided in subsection (B) below, any fee , tax, including without limitation,
the City's utility tax , or other charge assessed against Grantee by municipality, which
Grantee chooses to pass through and collect from its Subscribers; and
• commissions from home shopping channels and other Cable Service revenue sharing
arrangements which shall be allocated on a pro rata basis using total Cable Service
subscribers within the City.
(a) "Gross Revenues" shall not include :
• actual bad debt write-offs, except any portion which is subsequently collected which
shall be allocated on a pro rata basis using Cable Services revenue as a percentage of
total subscriber revenues within the City;
• Public, Educational and Governmental (PEG) Fees; and
• unaffiliated third party advertising sales agency fees which are reflected as a deduction
from revenues.
Grantee shall allocate fees and revenues generated from bundled packages and services to cable
revenues pro rata based on current published rate card for the packaged services delivered on a
stand-alone basis as follows:
i. To the extent revenues are received by Grantee for the provision of a discounted
bundle of services which includes Cable Services and non-Cable Services, Grantee shall
calculate revenues to be included in Gross Revenues using a GAAP methodology that
allocates revenue, on a pro rata basis when comparing the bundled service price and its
components to the sum of the published rate card, except as required by specific federal ,
state or local law (for example, it is expressly understood that equipment may be subject
to inclusion in the bundled price at full rate card value). The City reserves its right to review
and to challenge Grantee 's calculations.
ii . Grantee reserves the right to change the allocation methodologies set forth in this
section in order to meet the standards required by governing accounting principles as
promulgated and defined by the Financial Accounting Standards Board ("F ASB "),
Emerging Issues Task Force ("EITF ") and/or the U .S. Securities and Exchange
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1
Commission ("SEC "). Grantee will explain and document the required changes to the City
upon request or as part of any audit or review of franchise fee payments , and any such
changes shall be subject to the next subsection below.
m. Resolution of any disputes over the classification of revenue should first be
attempted by agreement of the Parties , but should no resolution be reached , the Parties
agree that reference shall be made to generally accepted accounting principles ("GAAP ")
as promulgated and defined by the Financial Accounting Standards Board ("F ASB "),
Emerging Issues Task Force ("EITF ") and/or the U.S. Securities and Exchange
Commission ("SEC"). Notwithstanding the forgoing , the City reserves its right to
challenge Grantee 's calculation of Gross Re venues , including the interpretation of GAAP
as promulgated and defined by the F ASB , EITF and/or the SEC .
"Interactive Services" are those services provided to Subscribers whereby the Subscriber
either (a) both receives information consisting of either television or other signal and transmits
signals generated by the Subscriber or equipment under his/her control for the purpose of selecting
what information shall be transmitted to the Subscriber or for any other purpose or (b) transmits
signals to any other location for any purpose.
"Minnesota Cable Communications Act" means the prov1s10ns of Minnesota law
governing the requirements for a cable television franchise as set forth in Minn. Stat. Ch. 238 , as
may be amended.
"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 Operating Conditions" means those Service conditions which are within the
control of Grantee. Those conditions which are not within the control of Grantee include, but are
not limited to , natural disasters , civil disturbances, power outages, telephone network outages , and
severe or unusual weather conditions . Those conditions which are ordinarily within the control of
Grantee include, but are not limited to , special promotions , pay-per-view events , rate increases,
regular peak or seasonal demand periods , and maintenance or upgrade of the Cable System.
"Pay Service" means programming (such as certain on-demand mo vie channel s or pay-
per-view programs) offered individually to Subscribers on a per-channel , per-program or per-event
basis.
"PEG " means public, educational and go vernmental.
"PEG Access Channels" means any channels or portions of channels made available for
use by the City for public, educational or governmental programming.
"Person" means any natural person and all domestic and foreign corporations, closely-held
corporations , associations , syndicates , joint stock corporations , partnerships of ev ery kind , clubs ,
businesses , common law trusts , societies and/or any other legal entity.
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"Street" shall mean the surface of and the space above and below any public Street, road ,
highway, freeway , lane , path , trail , public way, alley, court, sidewalk, boulevard , parkway, drive
or any easement or right-of-way now or hereafter held by City which shall , within its proper use
and meaning in the sole opinion of City, entitle Grantee to the use thereof for the purpose of
installing or transmitting over poles , wires , cables , conductors , ducts , conduits , vaults, man-holes ,
amplifiers , appliances , attachments and other property as may be ordinarily necessary and
pertinent to a Cable System.
"Subscriber" means a Person who lawfully receives Cable Service.
"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 FRANCHISE
2.1 Grant of Franchise . The City hereby authorizes Grantee to occupy or use the City 's
Streets subject to: 1) the provisions of this non-exclusive Franchise to provide Cable Service
within the City; and 2) all applicable provisions of the City Code . Nothing in this Franchise shall
be construed to prohibit Grantee from : (1) providing services other than Cable Services to the
extent not prohibited by Applicable Law; or (2) challenging any exercise of the City's legislative
or regulatory authority in an appropriate forum. The City hereby reserves all of its rights to
regulate such other services to the extent not prohibited by Applicable Law and no provision herein
shall be construed to limit or give up any right to regulate .
2.2 Reservation of Authority. The Grantee specifically agrees to comply with the
lawful provisions of the City Code and applicable regulations of the City. Subject to the police
power exception below , in the event of a conflict between A) the lawful provisions of the City
Code or applicable regulations of the City and B) this Franchise, the express provisions of this
Franchise shall govern. Subject to express federal and state preemption, the material terms and
conditions contained in this Franchise may not be unilaterally altered by the City through
subsequent amendments to the City Code, ordinances or any regulation of City, except in the
lawful exercise of City's police power. Grantee acknowledges that the City may modify its
regulatory policies by lawful exercise of the City 's police powers throughout the term of this
Franchise. Grantee agrees to comply with such lawful modifications to the City Code; however,
Grantee reserves all rights it may have to challenge such modifications to the City Code whether
arising in contract or at law . The City reserves all of its rights and defenses to such challenges
whether arising in contract or at law. Nothing in this Franchise shall (A) abrogate the right of the
City to perform any public works or public improvements of any description , (B) be construed as
a waiver of any codes or ordinances of general applicability promulgated by the City, including
the Right of Way ordinance, or (C) be construed as a waiver or release of the rights of the City in
and to the Streets.
2.3 Franchise Term . The term of the Franchise shall be ten (10) years from the Effective
Date, unless extended by mutual written consent in accordance with Section 17.7 or terminated
sooner in accordance with this Franchise.
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2.4 Franchise Area . This Franchise is granted for the Franchise Area defined herein.
Grantee shall extend its Cable System to provide Service to any residential unit in the City in
accordance with Section 6 .8 herein.
2.5 Franchise Nonexclusive . The Franchise granted herein shall be nonexclusive. The
City specifically reserves the right to grant, at any time, such additional franchises for a Cable
System as it deems appropriate provided, however, such additional grants shall not operate to
materially modify, revoke, or terminate any rights previously granted to Grantee other than as
described in Section 17 .18. The grant of any additional franchise shall not of itself be deemed to
constitute a modification, revocation, or termination of rights prev iousl y granted to Grantee. Any
additional cable franchise grants shall comply with Minn. Stat. § 238.08 and any other applicable
federal lev el playing field requirements .
2 .6 Periodic Public Review of Franchise. Within sixty ( 60) Days of the third (3 rd) and
sixth (6 1h) annual anniversary of the Effective Date of this Franchise, the City may conduct a public
review of the Franchise. The purpose of any such review shall be to ensure, with the benefit of
full opportunity for public comment, that the Grantee continues to effectively serve the public in
the light of new developments in cable law and regulation, cable technology, cable company
performance with the requirements of this Franchise, local regulatory environment, community
needs and interests , and other such factors. Both the City and Grantee agree to make a full and
good faith effort to participate in the review . So long as Grantee receives reasonable notice,
Grantee shall participate in the review process and shall fully cooperate. The review shall not
operate to modify or change any provision of this Franchise without mutual w ritten consent in
accordance with Section 17 .7 of this Franchise.
2. 7 Transfer of Ownership.
( a) No sale, transfer, assignment or "fundamental corporate change", as defined
in Minn. Stat. § 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) City may determine that a public hearing is necessary due to potential
adverse effect on Grantee's Subscribers resulting from the sale or transfer.
( c) If a public hearing is deemed necessary pursuant to (b) abo v e , such hearing
shall be commenced within thirty (30) Days of such determination and notice of any such
hearing shall be gi v en in accordance with local law. 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 City.
( d) 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.
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(e) The parties to a sale or transfer of the Franchise only, without the inclusion
of the 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 2.7. The term
"controlling interest" as used herein is not limited to majority stock ownership, but includes
actual working control in whatever manner exercised.
(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 thereunder, and assuming all other rights and obligations of the
transferor to the City.
(h) In accordance with Minn. Stat. § 238.084 , Subd. 1 (y), the City shall have
the right to purchase the System in the event the Franchise or System is proposed to be
transferred or sold on the same terms and conditions as the offer pursuant to which transfer
notice was provided pursuant to this section. The City shall have thirty (30) Days from
receipt of an application for consent under this Section 2. 7 in which to give notice of its
intention to exercise such right.
2.8 Expiration . Upon expiration of the Franchise, the City shall have the right at its own
election and subject to Grantee 's rights under Section 626 of the Cable Act to:
(a) extend the Franchise, though nothing in this provision shall be construed to
require such extension;
(b) renew the Franchise, in accordance with Applicable Laws ;
( c) invite additional franchise applications or proposals ;
(d) terminate the Franchise subject to any rights Grantee has under Section
626 of the Cable Act; or
( e) take such other action as the City deems appropriate.
2 .9 Right to Require Removal of Property. At the expiration of the term for which the
Franchise is granted provided no renewal is granted , or upon its forfeiture or revocation as provided
for herein, the City shall have the right to require Grantee to remove at Grantee 's own expense all
or any part of the Cable System from all Streets and public ways within the Franchise Area within
a reasonable time . If Grantee fails to do so , the City may perform the work and collect the cost
thereof from Grantee. However, Grantee shall have no obligation to remove the Cable System
where it utilizes the system to provide other non-cable services and has any other authority under
applicable law to maintain facilitates in the public rights-of-way, or where Grantee is able to find
a purchaser of the Cable System who holds such authorization.
2 .10 Continuity of Service Mandatory. It shall be the right of all Subscribers to receive
all available services insofar as their financial and other obligations to Grantee are honored. In the
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event that Grantee elects to overbuild, rebuild , modify, or sell the system , or the City revokes or
fails to renew the Franchise, Grantee shall make its best effort to ensure that all Subscribers receive
continuous uninterrupted service, regardless of the circumstances, while the Franchise remains
effective. In the event of expiration , purchase, lease-purchase, condemnation, acquisition , taking
over or holding of plant and equipment, sale , lease, or other transfer to any other Person, including
any other grantee of a cable communications franchise , the current Grantee shall cooperate fully
to operate the system in accordance with the terms and conditions of this Franchi se for a temporary
period sufficient in length to maintain continuity of service to all Subscribers.
SECTION 3 OPERATION IN STREETS AND RIGHTS-OF-WAY
3 .1 Use of Streets.
(a) Grantee may, subject to the terms of this Franchise and the City Code, erect ,
install , construct, repair, replace, reconstruct and retain in , on, over, under, upon , across
and along the 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 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 go v erning 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 .
(b) All wires , conduits , cable and other property and facilities of Grantee shall
be so located , constructed, installed and maintained as not to endanger or unnecessarily
interfere with the usual and customary trade , traffic and travel upon , or other use of the
Streets of City. Grantee shall keep and maintain all of its property in good condition, order
and repair so that the same shall not menace or endanger the life or property of any Person .
Grantee shall keep accurate maps and records of all of its wires , conduits , cables and other
property and facilities located , constructed and maintained in the City.
( c) All wires , conduits , cables and other property and facilities of Grantee , shall
be constructed and installed in an orderly and professional manner. All wire s, conduits
and cables shall be installed , where possible, parallel with electric and telephone lines.
Multiple cable configurations shall be arranged in parallel and bundled with due respect
for engineering considerations.
3.2 Construction or Alteration . Grantee shall in all cases comply with applicable
sections of the City Code, City resolutions and City regulations regarding the acquisition of permits
and/or such other items as may be reasonably required in order to construct, alter or maintain the
Cable System. Grantee shall, upon request , provide information to the City regarding its progress
in completing or altering the Cable System .
3 .3 Non-Interference. Grantee shall exert its best efforts to construct and maintain a
Cable System so as not to interfere with other use of Streets. Grantee shall , wher e possible in the
562777v3 MAI Sl -4 9
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.
3.4 Consistency with Designated Use . Notwithstanding the abo v e 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.
3 .5 Undergrounding. Grantee shall place underground all of its transmission lines
which are located or are to be located abov e or within the Streets of the City in the following cases:
(a) all other existing utilities are required to be placed underground by statute,
resolution, policy or other Applicable Law;
(b) Grantee is unable to get pole clearance;
(c) underground easements are obtained from developers of new residential
areas; or
(d) utilities are overhead but residents prefer underground (undergrounding
provided at cost paid by benefitted residents).
If an ordinance is passed which involves placing underground certain utilities including Grantee 's
cable plant which is then located overhead , Grantee shall participate in such underground project
and shall remove poles, cables and overhead wires if requested to do so and place facilities
underground. Nothing herein shall mandate that City provide reimbursement to Grantee for the
costs of such relocation and removal. However, if the City makes available funds for the cost of
placing facilities underground , nothing herein shall preclude the Grantee from participating in such
funding to the extent consistent with the City Code or Applicable Laws.
Grantee shall use conduit or its functional equivalent to the greatest extent possible for
undergrounding, except for Drops from pedestals to Subscribers ' homes and for cable on other
private property where the owner requests that conduit not be used. Cable and conduit shall be
utilized which meets the highest industry standards for electronic performance and resistance to
interference or damage from environmental factors. Grantee shall use, in conjunction with other
utility companies or providers , common trenches for underground construction wherever
available.
3.6 Maintenance and Restoration.
( a) Restoration. In case of disturbance of any Street, public way, paved area or
public improvement, Grantee shall , at its own cost and expense and in accordance with the
requirements of the City Code restore such Street, public way, paved area or public
improvement to substantially the same condition as existed before the work involving such
disturbance took place. All requirements of this section pertaining to public property shall
also apply to the restoration of private easements and other private property. Grantee shall
562777v3 MA IS l-4 10
perform all restoration work within a reasonable time and with due regard to seasonal
working conditions, but not to exceed ninety (90) Days. If Grantee fails , neglects or refuses
to make restorations as required under this section, then the City may do such work or
cause it to be done, and the cost thereof to the City shall be paid by Grantee. If Grantee
causes any damage to private property in the process of restoring facilities , Grantee shall
repair such damage.
(b) Maintenance. Grantee shall maintain all above ground improvements that
it places on City right-of-way pursuant to the City Code and any permit issued by the City.
In order to avoid interference with the City's ability to maintain the right-of-way, Grantee
shall provide such clearance as is required by the City Code and an y permit issued by the
City. If Grantee fails to comply with this provision, and by its failure , property is damaged,
Grantee shall be responsible for all damages caused thereby.
( c) Disputes. In any dispute over the adequacy of restoration or maintenance
relative to this section, final determination shall be the prerogative of the City, Department
of Public Works and consistent with the City Code and any permit issued by the City.
3 .7 Work on Private Property . Grantee, with the consent of property owners , shall
have the authority, pursuant to the City Code, to trim trees upon and ov erhanging Streets , alleys ,
sidewalks , and public ways so as to prevent the branches of such trees from coming in contact with
the wires and cables of Grantee, except that at the option of the City, such trimming may be done
by it or under its supervision and direction at the reasonable expense of Grantee.
3 .8 Relocation.
(a) Public Property . Grantee shall relocate its System and facilities in
accordance with the City Code. In addition, if, during the term of the Franchise, the City
or any go v ernment entity elects or requires a third party to alter, repair, realign, abandon,
improve, vacate, reroute or change the grade of any Street, public right-of-way or other
public property; or to construct, maintain or repair any public improvement ; or to replace,
repair install , maintain, or otherwise alter any cable, wire conduit, pipe, line, pole, wire-
holding structure, structure, or other facility , including a facilit y used for the prov ision of
utility or other services or transportation of drainage, sewage or other liquids , for any public
purpose, Grantee shall , upon request, except as otherwise hereinafter provided , at its sole
expense remove or relocate as necessary its poles, wires , cables , underground conduits ,
vaults , pedestals , manholes and any other facilities which it has installed. Nothing herein
shall mandate that City provide reimbursement to Grantee for the costs of such relocation
and removal. However, if the City makes available funds for the co st of placing facilities
underground, nothing herein shall preclude the Grantee from participating in such funding
to the extent consistent with the City Code or Applicable Laws.
(b) Utilities and Other Franchisees. If, during the term of the Franchise, another
entity which holds a franchise or any utility requests Grantee to remove or relocate such
facilities to accommodate the construction, maintenance or repair of the requesting party's
facilities , or their more efficient use, or to "make ready" the requesting party 's facil ities for
use by others , or because Grantee is using a facility which the requesting party has a right
562777v3 MAISl-4 11
or duty to remove, Grantee shall do so. The companies involved may decide among
themselves who is to bear the cost of removal or relocation, pursuant to City Code, and
provided that the City shall not be liable for such costs.
(c) Notice to Remove or Relocate. Any Person requesting Grantee to remove
or relocate its facilities shall give Grantee no less than forty-fi v e (45) Days ' advance written
notice to Grantee advising Grantee of the date or dates removal or relocation is to be
undertaken ; provided, that no advance written notice shall be required in emergencies or
in cases where public health and safety or property is endangered.
( d) Failure by Grantee to Remove or Relocate. If Grantee fails , neglects or
refuses to remove or relocate its facilities as directed by the City; or in emergencies or
where public health and safety or property is endangered, the City may do such work or
cause it to be done, and the cost thereof to the City shall be paid by Grantee. If Grantee
fails , neglects or refuses to remove or relocate its facilities as directed by another franchisee
or utility, that franchisee or utility may do such work or cause it to be done, and if Grantee
would have been liable for the cost of performing such work, the cost thereof to the party
performing the work or having the work performed shall be paid by Grantee.
( e) Procedure for Removal of Cable. Grantee shall not remove any
underground cable or conduit which requires trenching or other opening of the Streets
along the extension of cable to be removed, except as hereinafter provided. Grantee may
remov e any underground cable from the Streets which has been installed in such a manner
that it can be removed without trenching or other opening of the Streets along the extension
of cable to be removed. Subject to Applicable Law, Grantee shall remove, at its sole cost
and expense, any underground cable or conduit by trenching or opening of the Streets along
the extension thereof or otherwise which is ordered to be removed by the City based upon
a determination, in the sole discretion of the City, that removal is required in order to
eliminate or prevent a hazardous condition. Underground cable and conduit in the Streets
which is not removed shall be deemed abandoned and title thereto shall be vested in the
City.
(f) Movement of Buildings. Grantee shall , upon request by any Person holding
a building moving permit, franchise or other approval issued by the City, temporarily
remove, raise or lower its wire to permit the movement of buildings. The expense of such
removal , raising or lowering shall be paid by the Person requesting same, and Grantee shall
be authorized to require such payment in advance. The City shall require all building
movers to provide not less than fifteen (15) Days ' notice to the cable company to arrange
for such temporary wire changes.
SECTION 4 REMOVAL OR ABANDONMENT OF SYSTEM
4.1 Removal of Cable System. In the event that: (1) the use of the Cable System is
discontinued for any reason for a continuous period of twelve (12) months; or (2) the Cable System
has been installed in a Street without complying with the requirements of this Franchise, Grantee,
at its expense shall , at the demand of the City remove promptly from the Streets all of the Cable
System other than any which the City may permit to be abandoned in place. In the event of any
562777v3 MA IS l-4 12
such removal Grantee shall promptly restore the Street to a condition as nearly as possible to its
prior condition the Street or other public places in the City from which the System has been
removed. However, Grantee shall have no obligation to remove the Cable System where it utili z es
the system to provide other non-cable services and has any other authority under applicable law to
maintain facilities in the public rights-of-way, or where Grantee is able to find a purchaser of the
Cable System who holds such authorization.
4.2 Abandonment of Cable System. In the event of Grantee 's abandonment of the
Cable System, City shall have the right to require Grantee to conform to the state right-of-way
rules , Minn. Rules, Chapter 7819 . The Cable System to be abandoned in place shall be abandoned
in the manner prescribed by the City. Grantee may not abandon any portion of the System without
having first given three (3) months written notice to the City. Grantee may not abandon any portion
of the System without compensating the City for damages resulting from the abandonment.
4 .3 Removal after Abandonment or Termination. If Grantee has failed to commence
removal of System , or such part thereof as was designated by City, within thirty (30) Days after
written notice of City's demand for removal consistent with Minn. Rules, Ch. 7819, is given , or if
Grantee has failed to complete such removal within twelve (12) months after written notice of
City's demand for removal is given, City shall have the right to apply funds secured by the letter
of credit and performance bond toward removal and/or declare all right, title, and interest to the
Cable System to be in City with all rights of ownership including, but not limited to , the right to
operate the Cable System or transfer the Cable System to another for operation by it.
4.4 City Options for Failure to Remove Cable System. If Grantee has failed to
complete such removal within the time given after written notice of the City's demand for removal
is given, the City shall have the right to exercise one of the following options:
(a) Declare all right, title and interest to the System to be in the City or its
designee with all rights of ownership including, but not limited to , the right to operate the
System or transfer the System to another for operation by it; or
(b) Declare the System abandoned and cause the System, or such part thereof
as the City shall designate, to be removed at no cost to the City. The cost of said removal
shall be recoverable from the security fund , indemnity and penalty section provided for in
this Franchise or from Grantee directly.
(c) Upon termination of service to any Subscriber, Grantee shall promptly
remove all its facilities and equipment from within the dwelling of a Subscriber who owns
such dwelling upon his or her written request, except as provided by Applicable Law. Such
Subscribers shall be responsible for any costs incurred by Grantee in removing the facilities
and equipment.
4.5 System Construction and Equipment Standards . The Cable System shall be
installed and maintained in accordance with standard good engineering practices and shall
conform, when applicable, with the National Electrical Safety Code, the National Electrical Code
and the FCC's Rules and Regulations.
562777v 3 MAISl-4 13
4.6 System Maps and Layout. Grantee shall maintain complete and accurate system
maps, which shall include trunks, distribution lines , and nodes. Such maps shall include up-to-
date route maps showing the location of the Cable System adjacent to the Streets. Grantee shall
make all maps available for review by the appropriate City personnel.
SECTION 5
SYSTEM DESIGN AND CAPACITY
5 .1 Availability of Signals and Equipment.
(a) The Cable System utilizes a Fiber to the Fiber node architecture, with Fiber
Optic cable deployed from Grantee 's Headend to Grantee's Fiber nodes , tying into
Grantee 's coaxial Cable System serving Subscribers. The System is currently passing a
minimum of750 MHz (with a minimum passband of between 50 and 750 MHz) and shall
be maintained to provide to Subscribers at least 200 or more acti v ated minimum
downstream v ideo Channels , or such comparable v ideo v iewing capability as is provided
in light of dev eloping technologies and v ideo distribution practices in the future .
(b) The entire System shall be technically capable of transmitting industry-
standard digital television signals in a manner and quality consistent with applicable FCC
regulations.
(c) Grantee agrees to maintain the Cable System in a manner consistent with,
or in excess of the specifications in Section 5.1 (a) and (b) throughout the term of the
Franchise with sufficient capability and technical quality to enable the implementation and
performance of all the requirements of this Franchise, including the Exhibits hereto , and in
a manner which meets or exceeds FCC technical quality standards at 4 7 C.F.R. § 76
Subpart K , regardless of the particular format in which a Signal is transmitted.
5.2 Equal and Uniform Service. Grantee shall provide access to equal and uniform
Cable Service throughout the City to the extent required by applicable law.
5.3 System Specifications .
(a) System Maintenance. In all its construction and service provision activities ,
Grantee shall meet or exceed the construction, technical performance, extension and
service requirements set forth in this Franchise.
(b) Emergency Alert Capability. At all times during the term of this Franchise,
Grantee shall provide and maintain an Emergency Alert S y stem (EAS) consistent with
applicable Federal law and regulations including 47 C.F.R., Part 11 , and any Minnesota
State Emergency Alert System requirements . The City may identify authorized emergency
officials for activating the EAS insofar as the City's process is consistent with the
Minnesota State Emergency Statewide Plan ("EAS Plan"). The City may also develop a
local plan containing methods of EAS message distribution, insofar as the local plan is
consistent with Applicable Laws and the EAS Plan.
562777v3 MAI Sl-4 14
( c) Standby Power. Grantee shall provide standby power generating capacity at
the Cable System control center and at all hubs. Grantee shall maintain standby power
system supplies , rated at least at two (2) hours' duration, throughout the trunk and
distribution networks. In addition , Grantee shall have in place throughout the Franchise
term a plan, and all resources necessary for implementation of the plan, for dealing with
outages of more than two (2) hours.
(d) Technical Standards. The technical standards used in the operation of the
Cable System shall comply, at minimum , with the technical standards promulgated by the
FCC relating to Cable Systems pursuant to Title 47 , Section 76 , Subpart K of the Code of
Federal Regulations , as may be amended or modified from time to time, which regulations
are expressly incorporated herein by reference. The Cable Sy stem shall be installed and
maintained in accordance with standard good engineering practices and shall conform with
the National Electrical Safety Code and all other Applicable Laws governing the
construction of the Cable System.
5.4 Performance Testing. Grantee shall perform all system tests at the intervals
required by the FCC, and all other tests reasonably necessary to determine compliance with
technical standards required by this Franchise.
5.5 Special Testing.
(a) Throughout the term of this Franchise, City shall have the right to inspect
all construction or installation work performed pursuant to the provisions of the Franchise.
In addition, City may require special testing of a location or locations within the System if
there is a particular matter of controversy or unresolved complaints regarding such
construction or installation work or pertaining to such location( s ). Demand for such special
tests may be made on the basis of complaints received or other evidence indicating an
unresolved controversy or noncompliance. Such tests shall be limited to the particular
matter in controversy or unresolved complaints . City shall endeavor to so arrange its
request for such special testing so as to minimize hardship or inconvenience to Grantee or
to the Subscribers caused by such testing.
(b) Before ordering such tests, Grantee shall be afforded thirty (30) Days
following receipt of written notice to investigate and , if necessary, correct problems or
complaints upon which tests were ordered. City shall meet with Grantee prior to requiring
special tests to discuss the need for such and , if possible, visually inspect those locations
which are the focus of concern. If, after such meetings and inspections , City wishes to
commence special tests and the thirty (30) Days have elapsed without correction of the
matter in controversy or unresolved complaints , the tests shall be conducted at Grantee 's
expense by Grantee 's qualified engineer. The City shall have a right to participate in such
testing by having an engineer of City's choosing, and at City's expense, observe and
monitor said testing.
562777v3 MA 151-4 15
SECTION 6 PROGRAMMING AND SERVICES
6.1 Categories of Programming Service. Grantee shall provide video programming
services in at least the following broad categories:
Local Broadcast (subject to federal carriage requirements)
Public Broadcast
News and Information
Sports
General Entertainment
Arts/Performance/Humanities
Science/Technology
Children/Family/Seniors
Foreign Language/Ethnic Programming
PEG Access Programming (to the extent required by the Franchise)
Movies
Leased Access
6.2 Changes in Programming Services . Grantee shall provide at least thirty (30) Days '
prior written notice to Subscribers and to the City of Grantee 's request to effectively delete any
broad category of programming or any Channel within its control , including all proposed changes
in bandwidth or Channel allocation and any assignments including any new equipment
requirements that may occur as a result of these changes.
6.3 Parental Control Device or Capability. Upon request by any Subscriber, Grantee
shall make available a parental control or lockout device or functionality that will enable the
Subscriber to block all access to any and all Channels without affecting those not blocked. Grantee
shall inform Subscribers of the availability of the lockout device or functionality at the time of
original subscription and annually thereafter.
6.4 FCC Reports. The results of any tests required to be filed by Grantee with the FCC
shall also be available to the City upon request.
6.5 Free Cable Service to Public Buildings.
(a) Throughout the term of this Franchise, Grantee shall provide, free of charge,
one (1) service Drop, up to three (3) Converters if necessary, and Digital Starter Service or
equivalent service which includes the PEG Channels ("Complimentary Service"), to all of
the sites listed on Exhibit A attached hereto . City and Grantee do not waive any rights
under Applicable Law regarding Complimentary Service. Should Grantee elect under
Applicable Law to begin offsetting the value of Complimentary Service against Franchise
Fees, Grantee shall first provide City with notice in accordance with section 16.1 (f) herein
before beginning any such offset, and further provided that Grantee shall only offset for
Complimentary Service in the event Grantee begins offsetting the value of similar
complimentary services provided to other local franchising authorities in the Twin Cities
region, and provided that Grantee shall not offset for Complimentary Service provided to
schools and public libraries during the term of this Franchise.
562777v3 MAISl-4 16
(b) If any newly installed Drop line to a building listed on Exhibit A exceeds
two hundred (200) feet , Grantee will pay the cost of such Drop up to two hundred (200)
feet , with the City or other agency paying the remainder, if the City or other agency
provides the necessary attachment point for aerial service or conduit pathway for
underground service. If the necessary pathway is not provided, the City or other agency
shall pay the incremental cost of such Drop in excess of one hundred fifty (150) feet for an
aerial service Drop, or in excess of one hundred twenty-five (125) feet for an underground
service Drop . For purposes of this paragraph , "incremental cost" means Grantee 's actual
cost to provide the Drop beyond the applicable distances , with no mark-up for profit. The
recipient of the service will secure any necessary right of entry.
(c) The City or the building occupant shall have the right to extend Cable
Service throughout the building to additional outlets without any fees imposed by Grantee
for the provision of Complimentary Service to such additional outlets. If ancillary
equipment, such as a Converter, is required to receive the signal at additional outlets ,
Grantee will provide (in addition to the three (3) devices per site free of charge) additional
devices at Grantee 's lowest residential rate charged within the Twin Cities metropolitan
area.
6.6 Limitation on Free Service. Notwithstanding anything to the contrary set forth in
this section, Grantee shall not be required to provide Complimentary Service to such buildings
unless it is technically feasible. Outlets and maintenance of said Complimentary Service shall be
provided free of fees and charges.
6.7 Annexation. Unless otherwise provided by Applicable Law, including the City
Code, upon the annexation of any additional land area by City, the annexed area shall thereafter
be subject to all the terms of this Franchise upon sixty ( 60) Days written notification to Grantee of
the annexation by City. Unless otherwise required by Applicable Laws , nothing herein shall
require the Grantee to expand its Cable System to serve, or to offer Cable Service to any area
annexed by the City if such area is then served by another Wireline MVPD franchised to provide
multichannel video programming.
6.8 Line Extension.
(a) Grantee shall construct and operate its Cable System so as to provide Cable
Service within the Franchise Area where there exists a density equivalent of seven (7)
dwelling units per one-quarter (1 /4) mile of feeder cable as measured from the nearest
active plant of the Cable System if the extension is to be constructed using aerial plant, and
nine (9) dwelling units per one-quarter (1 /4) mile of feeder cable as measured from the
nearest active plant if the extension is to be constructed using underground plant. The City,
for its part, shall endeavor to exercise reasonable efforts to require developers and utility
companies to provide the Grantee with at least fifteen (15) Days advance notice of an
available open trench for the placement of necessary cable.
(b) Any residential unit located within one hundred twenty-five (125) feet from
the nearest point of access on the Street from which the Cable System is designed to serve
the site shall be connected to the Cable System at no charge other than the standard
562 777 v3 MAISl-4 17
installation charge. Grantee shall , upon request by any potential Subscriber residing in
City beyond the one hundred twenty-five (125) foot limit, extend service to such Subscriber
provided that the Subscriber shall pay the net additional Drop costs, unless the Grantee
agrees to waive said costs . To the extent consistent with Applicable Laws , Grantee agrees
that it shall impose installation costs for non-standard installations in a uniform and
nondiscriminatory manner throughout the City.
6.9 Nonvoice Return Capability . Grantee is required to use cable and associated
electronics having the technical capacity for nonvoice return communications.
SECTION 7 PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
7.1 Number of PEG Access Channels . Upon the Effective Date of this Franchise,
Grantee will make available a minimum of 3 PEG Access Channels in Standard Definition (SD).
Grantee shall provide the Access Channels on the Basic Tier or such other most-basic tier of
service as may be offered by Grantee in accordance with the Cable Act, Section 611 , and as further
set forth in this Section 7.
(a) PEG Access Channels and programming may be delivered by City to
Grantee in SD or High Definition (HD) format. Grantee shall provide all necessary
transmission equipment from the demarcation point and throughout Grantee 's distribution
system , in order to deliver the PEG Access Channels to Subscribers. Access Channel
Signals delivered in HD format to Grantee shall not require Grantee to deliver such HD
signals to Subscribers except as set forth in this Section 7 .
(b) For purposes of this Franchise, an HD signal refers to a television signal
delivering picture resolution of either 720p or greater, or such other resolution in this same
range that company utilizes for other similar non-sport, non-movie programming channels
on the Cable System , whichever is greater.
7.2 HD PEG Channels.
(a) Upon one hundred and twenty (120) Days ' written notice from the City,
Grantee ~hall provide SD /HD simulcast capability to one (1) of the PEG Access Channels ,
which Channel shall be selected by the City . No sooner than twelve (12) months after the
Effective Date, in the event the City produces sufficient locally-produced or local interest
HD programming to program at least eight (8) hours of programming per week on a second
Channel , the Grantee shall , upon one hundred and twenty (120) Days' written notice by
the City, provide SD /HD simulcast capability to a second SD PEG Access Channel selected
by the City. Following implementation of all HD PEG Channels as set forth in this section
7.2(a), the City will have two (2) simulcast SD /HD PEG Channels and one (1) remaining
SD PEG Channel.
(b) At such time as 80% of the Grantee 's Basic Service tier Channels are
provided exclusively in HD format , Grantee shall, upon 120 Days ' notice by the City,
convert the remaining SD PEG Channel to HD. For purposes of calculating the 80%
threshold , "on demand " programming and similar programming shall not be considered a
Channel even if available to Basic Service tier Subscribers.
562 777v3 MA I Sl-4 18
(c) The City acknowledges that receipt of an HD format PEG Access Channel
may require Subscribers to buy or lease special equipment, or pay additional HD charges
applicable to all HD services .
(d) Any costs of end-user equipment associated with the delivery of SD PEG
Access channels in HD format beyond the Demarcation Point shall be borne by the City,
which may be paid for out of PEG funds .
(e) The City is responsible for acquiring all equipment necessary to produce
programming in HD, which may be paid for out of PEG funds.
(f) Grantee shall have the right to use any technology to deploy or deliver HD
signals (including selection of compression, utilization of IP and other processing characteristics)
so long as it produces signal quality for the consumer that is reasonably comparable (from the
viewer's standpoint) and functionally equivalent to similar commercial HD signals carried on the
cable system.
7.3 Control of PEG Access Channels. The control and administration of the PEG
Access Channels shall rest with the City. The City may delegate, from time to time over the term
of this Franchise, such control and administration to various entities as determined in City's sole
discretion.
7.4 Transmission of Access Channels. PEG Access Channels may be used for
transmission of non-video signals in compliance with Applicable Laws. This may include
downstream transmission of data using a protocol such as TCP/IP or current industry standards .
Should Grantee develop the capability to provide bi-directional data transmission, spectrum
capacity shall be sufficient to allow Subscribers to transmit data to PEG facilities.
7.5 PEG Access Channel Locations.
(a) PEG Access Channels shall be carried on the Basic Cable Service tier as set
forth in Section 7.1 herein. Nothing herein precludes the Grantee from charging for
equipment needed for Basic Cable Service. Grantee shall initially continue cablecasting
programming on the PEG Access Channels on the Cable System on the same Channel
designations as such programming is cablecast within the City as of the Effective Date. In
no event shall any PEG Access Channel reallocations be made prior to ninety (90) Days
written notice to the City by Grantee, except for circumstances beyond Grantee 's
reasonable control. The PEG Access Channels will be located within reasonable proximity
to other commercial video or broadcast Channels, excluding pay-per-view programming
offered by Grantee in the City.
(b) Grantee agrees not to encrypt the PEG Access Channels differently than
other commercial Channels available on the Cable System.
(c) Grantee shall make reasonable efforts to minimize channel movements for
PEG Access Channels, and shall make reasonable efforts to locate both SD and HD PEG
Access Channels in its lineup in a manner that is easily accessible to subscribers. In the
event an SD PEG Access Channel is moved, Grantee will pay all reasonable costs or
562777v3 MAISl-4 19
expenses of the City arising out of the Channel move, including but not limited to ,
reasonable marketing and constituency notification costs , up to a maximum of $5 ,000.
7 .6 Navigation to PEG Access Channels/Electronic Programming Guide. Grantee
agrees that if it utilizes a visual interface on its Cable System for all Channels, the PEG Access
Channels shall be treated in a non-discriminatory fashion consistent with Applicable Laws so that
Subscribers will have ready access to PEG Access Channels. Within sixty (60) Days of the
Effective Date, Grantee will make available to City the ability to place PEG channel programming
information on the interactive channel guide via the electronic programming guide ("EPG")
vendor ("EPG provider") that Grantee utilizes to provide the guide service. Grantee will be
responsible for providing the designations and instructions necessary for the PEG Access Channels
to appear on the EPG . All costs and operational requirements of the EPG provider shall be the
responsibility of the City. City acknowledges that Grantee is not responsible for operations of the
EPG provider.
7. 7 Ownership of PEG Access Channels. Grantee does not relinquish its ownership of
or ultimate right of control over a Channel by designating it for PEG use. A PEG access user -
whether an individual , educational or governmental user -acquires no property or other interest
by virtue of the use of a Channel position so designated. Grantee shall not exercise editorial control
over any public, educational , or governmental use of a Channel position, except Grantee may
refuse to transmit any public access program or portion of a public access program that contains
obscenity, indecency, or nudity in violation of Applicable Law.
7 .8 Noncommercial Use of PEG . Only noncommercial uses of the PEG Access
Channels shall be permitted. Permitted noncommercial uses of the PEG Access Channels shall
include, by way of example and not limitation, the following: (1) the identification of financial
supporters of PEG programming similar to what is provided on public broadcasting stations ; (2)
the solicitation of financial support for the provision of PEG programming by the City or third
party users for charitable, educational or governmental purposes; (3) programming offered by
accredited , non-profit, educational institutions which may, for example, offer telecourses over a
PEG Access Channel; or (4) the delivery of governmental programming, information, or data via
a PEG Access Channel.
7 .9 Dedicated Fiber Return Lines. In addition to the requirements of section 7.4 above ,
the Grantee will maintain all existing fiber paths in place as of the Effective Date to facilitate PEG
origination/return capacity in the City to allow the origination of PEG programming (video or
character generated). Such fiber returns paths are listed in Exhibit B attached hereto. Grantee
shall not be responsible for fiber "replacement" but will handle any damage and all maintenance
on the existing fiber. Grantee anticipates , but cannot guarantee, that that this will result in minimal
fiber expenditures by the City over the Franchise term.
7 .10 Interconnection. Grantee shall continue to make the fiber loop known as the
PRIMSA Ring available to City until the network equipment servicing the PRIMSA Ring as of
the Effective Date is at the end of life. The City can use the PRIMSA Ring to send and receive
live and recorded programming for playback. Grantee shall provide City access to the PRIMSA
Ring at an agreed upon Demarcation Point. Grantee will provide use of and maintain the PRIMSA
562777v3 MA 151-4 20
Ring free of charge but Grantee will not be obligated to replace network equipment on the
PRISMA Ring or for any equipment on the City's side of the Demarcation Point.
7 .11 Ancillary Equipment. Any ancillary equipment operated by Grantee for the benefit
of PEG Access Channels on Grantee 's fiber paths or Cable System , whether referred to switchers ,
routers or other equipment, will be maintained by Grantee, at no cost to the City or schools for the
life of the Franchise. Grantee is responsible for any ancillary equipment on its side of the
demarcation point and the City or school is responsible for all other production/playback
equipment.
7.12 Universal PEG Tier. The Grantee shall continue providing the Universal PEG Tier
free of charge to all Persons receiving such service as of the Effective Date as long as it remains
technically and economically possible to provide such service. The Universal PEG Tier shall be
continued for the term of the Franchise or until all current recipients discontinue such service, or until
such time as Grantee 's Basic Service Tier Channels are provided in HD only The "Universal PEG
Tier" shall mean all SD PEG channels identified in this Franchise or subsequently added
pursuant to the Franchise.
7 .13 Future Fiber Return Lines for PEG. At such time that the City determines :
(a) that the City desires the capacity to allow Subscribers in the City to receive
PEG programming (video or character generated) which may originate from schools , City
facilities, other government facilities or other designated facilities ( other than those
indicated in paragraph 9); or
(b) that the City desires to establish or change a locations from which PEG
programming is originated; or
(c) that the City desires to upgrade the Connection to Grantee from an existing
signal point of origination,
the City will give Grantee written notice detailing the point of origination and the capability sought
by the City. After an agreement to reimburse Grantee for Grantee 's out of pocket time and
material costs , Grantee will implement any necessary Cable System changes within a reasonable
period oftime. Nothing herein prevents the City, or a priv ate contractor retained by the City, from
constructing said return fiber.
7 .14 Access Channel Carriage .
(a) Grantee shall provide all necessary transm1ss10n equipment from the
demarcation point and throughout Grantee 's distribution system in order to deliver the PEG
Access Channels. Any and all costs associated with any modification of the Access
Channels or signals after the Access Channels/signals leave the City 's designated playback
facilities , or any designated playback center authorized by the City shall be borne entirely
by Grantee. Grantee shall not cause any programming to override PEG programming on
any Access Channel , except by oral or written permission from the City, with the exception
of emergency alert signals.
562777v3 MA 15 1-4 21
(b) The City may request and Grantee shall pro vide an additional Access
Channel when the cumulative time on all the existing Access Channels combined meets
the following standard: whenever one (1) of the Access Channels in use during eighty
percent (80%) of the weekdays , Monday through Friday, for eighty percent (80%) of the
time during a consecutive three (3) hour period for six (6) weeks running , and there is a
demand for use of an additional Channel for the same purpose , the Grantee has six (6)
months in which to provide a new , Access Channel for the same purpose; provided that,
the provision of the additional Channel or Channels does not require the Cable System to
install Converters.
( c) The VHF spectrum shall be used for one (1) of the public, educational , or
governmental specially designated Access Channels.
(d) The City or its designee shall be responsible for developing , implementing,
interpreting and enforcing rules for PEG Access Channel use.
(e) The Grantee shall monitor the Access Channels for technical quality to
ensure that they meet FCC technical standards including those applicable to the carriage of
Access Channels , provided however, that the Grantee is not responsible for the production
quality of PEG programming productions. The City, or its designee , shall be responsible
for the production and quality of all PEG access programming. Grantee shall carry all
components of the standard definition of Access Channel including, but not limited to,
closed captioning, stereo audio and other elements associated with the programming.
7 .15 Access Channel Support.
(a) Effective with the first Subscriber bill after the Effective Date of this
Franchise, Grantee shall pay to City a fee equal to 2% of Gross Revenues in support of
PEG ("PEG Fee") for the duration of this Franchise, or such lower amount as may be
subsequently determined by the City to be sufficient to fund PEG expenditures in
accordance with Applicable Law . Payments pursuant to this subsection shall be paid
quarterly to the City (or its designated access entity) on the same schedule as the Franchise
Fee payments.
(b) The PEG Fee may be used by City to fund PEG expenditures in accordance
with Applicable Law.
(c) The PEG Fee is not part of the Franchise Fee and instead falls within one or
more of the exceptions in 47 U.S.C. § 542. The PEG Fee may be categorized, itemized ,
and passed through to Subscribers as permissible, in accordance with 47 U.S.C. § 542 or
other Applicable Laws. Grantee shall pay the PEG Fee to the City quarterly at the same
time as the payment of Franchise Fees under Section 16.1 of the Franchise. Grantee agrees
that it will not offset or reduce its payment of past, present or future Franchise Fees required
as a result of its obligation to remit the PEG Fee.
(d) Any PEG Fees owing pursuant to this Franchise which remain unpaid
more than thirty (30) Days after the date the payment is due shall be delinquent and shall
thereafter accrue interest at twelve percent (12 %) per annum or the prime lending rate
562777v3 M A 15 1-4 22
published by the Wall Street Journal on the Day the payment was due plus two percent
(2%), whichever is greater.
7.16 PEG Technical Quality.
(a) Grantee shall not be required to carry a PEG Access Channel in a higher
quality format than that of the Channel Signal delivered to Grantee, but Grantee shall not
implement a change in the method of delivery of Access Channels that results in a material
degradation of signal quality or impairment of viewer reception of Access Channels ,
provided that this requirement shall not prohibit Grantee from implementing new
technologies also utilized for commercial Channels carried on its Cable System. Grantee
shall meet FCC signal quality standards when offering Access Channels on its Cable
System and shall continue to comply with closed captioning pass-through requirements .
There shall be no significant deterioration in an Access Channels signal from the point of
origination upstream to the point ofreception downstream on the Cable System.
(b) Within twenty-four (24) hours of a written or e-mailed request from City to
the Grantee identifying a technical problem with a Access Channel and requesting
assistance, Grantee will provide technical assistance or 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. If the problem persists
and there is a dispute about the cause, then the parties shall meet with engineering
representation from Grantee and the City in order to determine the course of action to
remedy the problem.
7 .17 Access Channel Promotion .
At such time as an Access Channel is mov ed or, relocated or launched in HD, Grantee shall
provide a bill message announcing the change upon the written or e-mailed request of the City.
7.18 Change in Technology. In the event Grantee makes any change in the Cable System
and related equipment and facilities or in its signal delivery technology, which requires the City to
obtain new equipment in order to be compatible with such change for purposes of transport and
delivery of the Access Channels, Grantee shall , at its own expense and free of charge to City or its
designated entities , purchase such equipment as may be necessary to facilitate the cablecasting of
the Access Channels in accordance with the requirements of the Franchise.
7.19 Relocation of Grantee's Headend. In the event Grantee relocates its headend ,
Grantee will be responsible for replacing or restoring the existing dedicated fiber connections at
Grantee 's cost so that all the functions and capacity remain available, operate reliably and satisfy
all applicable technical standards and related obligations of the Franchise free of charge to the City
or its designated entities.
7.20 Regional Channel Six. Grantee shall make available Regional Channel Six as long
as it is required to do so by Applicable Law.
562777v3 MA 151-4 23
7 .21 Compliance with Minnesota Statutes Chapter 238 . In addition to the requirements
contained in this Section 7 of this Franchise, Grantee and City shall comply with the PEG
requirements mandated by Minn. Stat.§ 238.084.
SECTION 8 REGULATORY PROVISIONS
8.1 Regulation of Rates and Charges .
(a) Right to Regulate . The City reserves the right to regulate rates or charges
for any Cable Service within the limits of Applicable Law , to enforce rate regulations
prescribed by the FCC , and to establish procedures for said regulation or enforcement.
(b) Notice of Change in Rates and Charges. Throughout the term of this
Franchise, Grantee shall give the City and all Subscribers within the City at least thirty (30)
Days ' notice of any intended modifications or additions to Subscriber rates or charges.
Nothing in this subsection shall be construed to prohibit the reduction or waiving of rates
or charges in conjunction with promotional campaigns for the purpose of attracting
Subscribers or users.
(c) Rate Discrimination Prohibited. Within any category of Subscribers ,
Grantee shall not discriminate among Subscribers with regard to rates and charges made
for any service based on considerations of race, color, creed , sex , marital or economic
status , national origin, sexual preference, except as otherwise provided herein ; and for
purposes of setting rates and charges, no categorization of Subscribers shall be made by
Grantee on the basis of those considerations. Nevertheless , Grantee shall be permitted to
establish (1) discounted rates and charges for providing Cable Service to low-income,
handicapped, or low-income elderly Subscribers , (2) promotional rates , and (3) bulk rate
and package discount pricing.
SECTION 9 BOND
9.1 Performance Bond. Upon the Effective Date of this Franchise and at all times
thereafter Grantee shall maintain with City a bond in the sum of $100,000.00 in such form and
with such sureties as shall be acceptable to City, conditioned upon the faithful performance by
Grantee of this Franchise and the acceptance hereof given by City and upon the further condition
that in the event Grantee shall fail to comply with any law , ordinance or regulation , there shall be
recoverable jointly and severally from the principal and surety of the bond, any damages or losses
suffered by City as a result, including the full amount of any compensation, indemnification or
cost of removal of any property of Grantee, including a reasonable allowance for attorneys ' fees
and costs (with interest at two percent (2 %) in excess of the then prime rate), up to the full amount
of the bond, and which bond shall further guarantee payment by Grantee of all claims and liens
against City or any, public property, and taxes due to City, which arise by reason of the
construction , operation, maintenance or use of the Cable System.
9.2 Rights. The rights reserved by City with respect to the bond are in addition to all
other rights the City may have under this Franchise or any other law.
562777v3 MAlSl-4 24
9 .3 Reduction of Bond Amount. City may, in its sole discretion, reduce the amount of
the bond.
SECTION 10 SECURITY FUND
10.1 Security Fund. If the City determines that there is an uncured breach by Grantee of
a material provision of this Franchise or a pattern of repeated violations of any provision( s) of this
Franchise, then Grantee shall, upon written request, establish and provide to the City, as security
for the faithful performance by Grantee of all of the provisions of this Franchise, an irrevocable
letter of credit from a financial institution satisfactory to the City in the amount of Twenty-five
Thousand and No/100 Dollars ($25,000.00). In no event shall Grantee fail to post a Twenty-five
Thousand and Noll 00 Dollar ($25 ,000.00) letter of credit within thirty (30) days receipt of a notice
of franchise violation pursuant to this Section 10.1. Failure to post said letter of credit shall
constitute a separate material violation of this Franchise, unless the breach is cured within such
thirty (30) Day period or longer period allowed under the Franchise. The letter of credit shall serve
as a common security fund for the faithful performance by Grantee of all the provisions of this
Franchise and compliance with all orders, permits and directions of the City and the payment by
Grantee of any claim , liens, costs, expenses and taxes due the City which arise by reason of the
construction, operation or maintenance of the Cable System. Interest on this deposit shall be paid
to Grantee by the bank on an annual basis. The security may be terminated by the Grantee upon
the resolution of the alleged noncompliance. The obligation to establish the security fund required
by this paragraph is unconditional. The fund must be established in those circumstances where
Grantee disputes the allegation that it is not in compliance, and maintained for the duration of the
dispute. If Grantee fails to establish the security fund as required , the City may take whatever
action is appropriate to require the establishment of that fund and shall be entitled to an award of
its costs, and reasonable attorneys' fees in that action.
10.2 Withdrawal of Funds. The irrevocable letter of credit shall permit the City to
withdraw funds upon demand (sight draft). Grantee shall not use the security fund for other
purposes and shall not assign , pledge or otherwise use this security fund as security for any
purpose .
10 .3 Restoration of Funds. Within ten (10) Days after notice to it that any amount has
been withdrawn by the City from the security fund pursuant to 10.4 of this section , Grantee shall
deposit a sum of money sufficient to restore such security fund to the required amount.
10.4 Liquidated Damages . In addition to recovery of any monies owed by Grantee to
City or damages to City as a result of any acts or omissions by Grantee pursuant to the Franchise,
City in its sole discretion may charge to and collect from the security fund liquidated damages in
the amount of two hundred and fifty dollars ($250.00) per Day for each Day, or part thereof, that
any Franchise breach for non-compliance occurs or continues .:
10 .5 Each Violation a Separate Violation. Each violation of any provision of this
Franchise shall be considered a separate violation for which separate liquidated damages can be
imposed.
562777v3 MA 151-4 25
10.6 Maximum 120 Days. Any liquidated damages for any given violation shall be
imposed upon Grantee for a maximum of one hundred twenty ( 120) Days. If after that amount of
time Grantee has not cured or commenced to cure the alleged breach to the satisfaction of the City,
the City may pursue all other remedies.
10. 7 Withdrawal of Funds to Pay Taxes . If Grantee fails to pay to the City_ any taxes
due and unpaid ; or fails to repay to the City, any damages , costs or expenses which the City shall
be compelled to pay b y reason of any act or default of the Grantee in connection with this
Franchise; or fails , after thirty (30) Days ' notice of such failure by the City to comply with any
pro vision of the Franchise which the City reasonably determines can be remedied by an
expenditure of the security, the City may then withdraw such funds from the security fund.
Payments are not Franchise Fees as defined in Section 16 of this Franchise .
10.8 Procedure for Draw on Security Fund. Whenever the City finds that Grantee has
violated one (1) or more terms , conditions or provisions of this Franchise, a written notice shall be
gi ven to Grantee . The written notice shall describe in reasonable detail the alleged violation so as
to afford Grantee an opportunity to remedy or dispute the violation. Grantee shall hav e thirty (30)
Days subsequent to receipt of the notice in which to correct the violation before the City may
require Grantee to make payment of damages , and further to enforce payment of damages through
the security fund. Grantee may , within ten (10) Days of receipt of notice, notify the City that there
is a dispute as to whether a violation or failure has , in fact , occurred. Such notice by Grantee shall
specify with particularity the matters disputed by Grantee and shall stay the running of the above-
described time.
(a) City shall hear Grantee 's dispute at a regularly scheduled or speciall y
scheduled Council meeting within sixty (60) Days ofreceipt of written notice of a dispute .
Grantee shall hav e the right to speak and introduce evidence . The City shall determine if
Grantee has committed a violation and shall make written findings of fact relati ve to its
determination.
(b) If after hearing the dispute , the claim is upheld by the City, then the Grantee
shall pay such liquidated damages as may be due and the City may begin to draw from the
security fund.
10.9 Time for Correction of Violation . The time for Grantee to correct any alleged
violation may be extended by the City if the necessary action to collect the alleged violation is of
such a nature or character as to require more than thirty (30) Days within which to perform
provided Grantee commences correcti ve action within fifteen (15) Days and thereafter uses
reasonable diligence , as determined by the City, to correct the violation.
10.10 Grantee's Right to Pay Prior to Security Fund Draw. Grantee shall have the
opportunity to make prompt payment of any assessed liquidated damages and if Grantee fails to
promptly remit payment to the City, the City may resort to a draw from the security fund in
accordance with the terms of this Section 10 of the Franchise.
10.11 Failure to so Replenish Security Fund . If the letter of credit is set to expire prior
to expiration of the Franchise, it shall be renewed or replaced prior to its expiration. If the City
562777v3 MAISl-4 26
draws on the letter of credit, the Grantee shall replace or replenish such letter of credit to its full
amount within ten (10) Days. If the security fund is not so replaced, City may draw the whole
amount thereof and hold the proceeds , without interest, and use the proceeds to pay costs incurred
by City in performing and paying for any or all of the obligations , dutie s and responsibilities of
Grantee under this Franchise that are not performed or paid for by Grantee pursuant hereto ,
including attorneys ' fees incurred by the City in so performing and paying. The failure to so
replace any security fund may also , at the option of City, be deemed a default by Grantee under
this Franchise. The drawing on the security fund by City, and use of the money so obtained for
payment or performance of the obligations , duties and responsibilities of Grantee which are in
default, shall not be a waiver or release of such default.
10.12 Collection of Funds Not Exclusive Remedy. The collection by City of any
damages or monies from the security fund shall not affect any other right or remedy available to
City, nor shall any act, or failure to act, by City pursuant to the security fund , be deemed a waiver
of any right of City pursuant to this Franchise or otherwise. Notwithstanding this section, ho w ev er,
should the City elect to impose liquidated damages, that remedy shall remain the City's exclusive
remedy for the one hundred twenty (120) Day period set forth in Section 10.6.
SECTION 11 DEFAULT
11.1 Basis for Default. City shall give written notice of default to Grantee if City, in its
sole discretion, determines that Grantee has :
( a) Violated any material provision of this Franchise or the acceptance hereto
or any rule, order, regulation or determination of the City, state or federal go v ernment, not
in conflict with this Franchise;
(b) Attempted to evade any provision of this Franchise or the acceptance
hereof;
(c) Practiced any fraud or deceit upon City or Subscribers ;
( d) Made a material misrepresentation of fact in the application for or
negotiation of this Franchise; or
11.2 Default Procedure. If Grantee fails to cure such default within thirty (30) Days after
the giving of such notice ( or if such default is of such a character as to require more than thirty
(30) Days within which to cure the same, and Grantee fails to commence to cure the same within
said thirty (30) Day period and thereafter fails to use reasonable diligence , in City 's sole opinion,
to cure such default as soon as possible), then , and in any event, such default shall be a substantial
breach and City may elect to terminate the Franchi se . The City may place the issue of revocation
and termination of this Franchise before the governing body of City at a regular meeting. If City
decides there is cause or reason to terminate, the following procedure shall be followed:
( a) City shall provide Grantee with a written notice of the reason or cause for
proposed termination and shall allow Grantee a minimum of thirty (30) Days subsequent
to receipt of the notice in which to correct the default.
562777v3 MA 151 -4 27
(b) Grantee shall be provided with an opportunity to be heard at a public hearing
prior to any decision to terminate this Franchise.
(c) If, after notice is given and an opportunity to cure , at Grantee 's option, a
public hearing is held , and the City determines there was a violation , breach, failure , refusal
or neglect, the City may declare by resolution the Franchise revoked and of no further force
and effect unless there is compliance within such period as the City may fix , such period
may not be less than thirty (30) Days provided no opportunity for compliance need be
granted for fraud or misrepresentation.
11.3 Mediation. If the Grantee and City are unable to resolve a dispute through informal
negotiations during the period of thirty (30) Days following the submission of the claim giving
rise to the dispute by one (1) party to the other, then unless that claim has been waived as provided
in the Franchise, such claim may be subject to mediation if jointly agreed upon by both parties.
Mutually agreed upon Mediation shall stay other enforcement remedies of the parties for a period
of ninety (90) Days from the date of filing , unless stayed for a longer period by agreement of the
Grantee and City. The Grantee and City shall each pay one-half of the mediator 's fee and any
filing fees. The mediation shall be held in the City unless another location is mutually agreed
upon. Agreements reached in mediation shall be enforceable as a settlement agreement in any
court having jurisdiction thereof. Nothing herein shall serve to modify or on any way delay the
franchise enforcement process set forth in Section 10 of this Franchise.
11.4 Failure to Enforce. Grantee shall not be relieved of any of its obligations to comply
promptly with any provision of the Franchise by reason of any failure of the City to enforce prompt
compliance, and City's failure to enforce shall not constitute a waiver of rights or acquiescence in
Grantee 's conduct.
11.5 Compliance with the Laws .
(a) If any federal or state law or regulation shall require or permit City or
Grantee to perform any service or act or shall prohibit City or Grantee from performing
any service or act which may be in conflict with the terms of this Franchise, then as soon
as possible 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 effecti ve, unless otherwise stated , and shall conform to federal laws and
regulations regarding cable as they become effective.
(b) If any term, condition or provision of this Franchise or the application
thereof to any Person or circumstance shall , to any extent , be held to be invalid or
unenforceable, the remainder hereof and the application of such term, condition or
provision to Persons or circumstances other than those as to whom it shall be held invalid
or unenforceable shall not be affected thereby, and this Franchise and all the terms ,
provisions and conditions hereof shall , in all other respects, continue to be effective and
complied with provided the loss of the invalid or unenforceable clause does not
substantially alter the agreement between the parties. In the event such law , rule or
regulation is subsequently repealed , rescinded , amended or otherwise changed so that the
562777v3 MAISl-4 28
provision which had been held invalid or modified is no longer in conflict with the law ,
rules and regulations then in effect , said provision shall thereupon return to full force and
effect and shall thereafter be binding on Grantee and City.
SECTION 12 FORECLOSURE AND RECEIVERSHIP
12.1 Foreclosure. Upon the foreclosure or other judicial sale of the Cable System ,
Grantee shall notify the City of such fact and such notification shall be treated as a notification
that a change in control of Grantee has taken place, and the provisions of this Franchise go verning
the consent to transfer or change in ownership shall apply without regard to how such transfer or
change in ownership occurred.
12.2 Receivership. The City shall have the right to cancel this Franchise subject to any
applicable provisions of state law , including the Bankruptcy Act , one hundred twenty (120) Days
after the appointment of a receiver or trustee to take over and conduct the business of Grantee ,
whether in recei vership , reorganization , bankruptcy or other action or proceeding, unless such
receivership or trusteeship shall have been vacated prior to the expiration of said one hundred
twenty (120) Days , or unless :
(a) Within one hundred twenty (120) Days after his election or appointment ,
such receiver or trustee shall have fully complied with all the provisions of this Franchise
and remedied all defaults thereunder; and ,
(b) Such receiver or trustee , within said one hundred twenty (120) Days , shall
have executed an agreement, duly approved by the Court having jurisdiction in the
premises , whereby such receiver or trustee assumes and agrees to be bound by each and
every provision of this Franchise.
SECTION 13 REPORTING REQUIREMENTS
13 .1 Quarterly Reports. Within forty-five (45) calendar days after the end of each
calendar quarter, Grantee shall submit to the City along with its Franchise Fee payment a report
showing the basis for computation of such fees prepared by an officer of Grantee showing the basi s
for the computation of the Franchise Fees paid during that period in a form and substance
substantially equivalent to Exhibit C attached hereto. This report shall separately indicate re venues
received by Grantee within the City including, but not limited to such items as listed in the
definition of "Gross Revenues " at Section I of this Franchise .
13 .2 Monitoring and Compliance Reports. Upon request , but no more than once a
year, Grantee shall provide a written report of any and all FCC technical performance tests for
the residential network required in FCC Rules and Regulations as now or hereinafter constituted
13.3 Reports . Upon request of the City and in no event later than thirty (30) Days from
the date of receipt of such request , Grantee shall, free of charge , prepare and furnish to the City, at
the times and in the form prescribed , such additional reports with respect to its operation , affairs ,
transactions , or property, as may be reasonably necessary to ensure compliance with the terms of
this Franchise. Grantee and City may in good faith agree upon taking into consideration Grantee 's
562777v3 MA I 5 1-4 29
need for the continuing confidentiality as prescribed herein. Neither City nor Grantee shall
unreasonably demand or withhold information requested pursuant with the terms of this Franchise.
13.4 Communications with Regulatory Agencies .
(a) Upon written request , Grantee shall submit to City copies of any pleading,
applications , notifications , communications and documents of any kind , submitted
by Grantee or its Affiliates to an y federal , State or local courts , regulatory agencies
and other go vernment bodies if such documents directly relate to the operations of
Grantee 's Cable System within the Franchise Area. Grantee shall submit such
documents to City no later than thirty (30) Days after receipt of City's request.
Grantee shall not claim confidential , privileged or proprietary rights to such
documents unless under federal , State, or local law such documents have been
determined to be confidential by a court of competent jurisdiction, or a federal or
State agency. With respect to all other reports , documents and notifications
provided to any federal , State or local regulatory agency as a routine matter in the
due course of operating Grantee's Cable System within the Franchise Area, Grantee
shall make such documents available to City upon City's written request.
(b) In addition, Grantee and its Affiliates shall within ten (10) Days of any
communication to or from any judicial or regulatory agency regarding any alleged
or actual violation of this Franchise, City regulation or other requirement relating
to the System , use its best efforts to provide the City a copy of the communication ,
whether specifically requested by the City to do so or not.
SECTION 14 CUSTOMER SERVICE PROVISIONS
14.1 Customer Service Standards. The Grantee shall at all times comply with FCC
customer service standards. In addition, the Grantee shall at all times satisfy all additional or
stricter customer service requirements as set forth in this Franchise , or as may be set forth in any
ordinance or regulation lawfully enacted by the City.
14.2 Response to Customers and Cooperation with City . Grantee shall promptly
respond to all requests for service, repair, installation and information from Subscribers. Grantee
acknowledges the City 's interest in the prompt resolution of all cable complaints and shall work
in close cooperation with the City to resol ve complaints .
14 .3 Definition of "Complaint." For the purposes of Section 14 , with the exception of
Subsection 14.5 , a "complaint" shall mean any communication to Grantee or to the City by a
Subscriber or a Person who has requested Cable Service; a Person expressing dissatisfaction with
any service, performance, or lack thereof, by Grantee under the obligations of this Franchise.
14.4 Customer Service Agreement and Written Information. Grantee shall pro vide to
Subscribers a comprehensive service agreement and information in writing for use in establishing
Subscriber service. Written information shall , at a minimum , contain the following information :
(a) Services to be pro vided and rates for such services.
562777v3 M AISl-4 30
(b) Billing procedures.
( c) Service termination procedure.
(d) Change in service notifications .
( e) Liability specifications.
(f) Converter/Subscriber terminal equipment policy.
(g) Breach of Franchise specification.
(h) How complaints are handled including Grantee 's procedure for
investigation and resolution of Subscriber complaints.
14 .5 Reporting Complaints . The requirements of this Section 14.4 shall be subject to
federal law regarding Subscriber privacy. Grantee shall maintain all Subscriber data available for
City inspection. Subscriber data shall include the date , name, address , telephone number of
Subscriber complaints as well as the subject of the complaint, date and type of action taken to
resolve the complaint, any additional action taken by Grantee or the Subscriber. The data shall be
maintained in a way that allows for simplified access of the data by the City.
Subject to federal law and upon reasonable request by the City, Grantee shall , within a
reasonable amount of time, provide City with such Subscriber data for its review.
14 .6 Customer Service Standards. The City hereby adopts the customer service
standards set forth in Part 76 , §76.309 of the FCC 's rules and regulations , as amended . Grantee
shall, upon request, which request shall include the reason for the request (such as complaints
received or other reasonable evidence of concern), provide City with information which shall
describe in detail Grantee 's compliance with each and every term and provision of this Section
14.5 . Grantee shall comply in all respects with the customer service requirements established by
the FCC and those set forth herein. The City reserves the right to enact additional consumer
protection laws or requirements to the extent such requirements are not inconsistent with, and
preempted by, the FCC 's customer service standards.
14 . 7 Local Office. Grantee shall maintain a convenient local customer service and bill
payment location for matters such as receiving Subscriber payments , handling billing questions ,
equipment replacement and customer service information. Grantee shall comply with the
standards and requirements for customer service set forth below during the term of this Franchise.
14.8 Cable System office hours and telephone availability.
(a) Grantee will maintain a local, toll-free or collect call telephone access line
which will be available to its Subscribers twenty-four (24) hours a Day, seven (7) days a
week.
(i) Trained Grantee representatives will be available to respond to
customer telephone inquiries during Normal Business Hours.
562777v3 MAISl-4 31
(ii) After Normal Business Hours, the access line may be answered by
a service or an automated response system , including an answering machine.
Inquiries received after Normal Business Hours must be responded to by a trained
Grantee representative on the next business Day.
(b) Under Normal Operating Conditions, telephone answer time by a customer
representative, including wait time, shall not exceed thirty (30) seconds when the
connection is made. If the call needs to be transferred , transfer time shall not exceed thirty
(30) seconds. These standards shall be met no less than ninety percent (90 %) of the time
under Normal Operating Conditions, measured on a quarterly basis.
( c) Grantee shall not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards above unless an historical
record of complaints indicates a clear failure to compl y.
(d) Under Normal Operating Conditions , the customer will receive a busy
signal less than three percent (3%) of the time. Under Normal Operating Conditions, the
percentage of calls abandoned or dropped shall not exceed three percent (3 %).
(e) Customer service center and bill payment locations will be open at least
during Normal Business Hours and will be conveniently located.
14.9 Installations, Outages and Service Calls. Under Normal Operating Conditions ,
each of the following standards will be met no less than ninety-five percent (95 %) of the time
measured on a quarterly basis :
(a) Standard Installations will be performed within seven (7) business days
after an order has been placed. "Standard" Installations are those that are located up to one
hundred twenty-five (125) feet from the existing distribution system as more specifically
set forth in Section 6.8 (b).
(b) Excluding conditions beyond the control of Grantee, Grantee will begin
working on "Service Interruptions" promptly and in no ev ent later than twenty-four (24)
hours after the interruption becomes known. Grantee must begin actions to correct other
Service problems the next business Day after notification of the Service problem .
(c) The "appointment window" alternatives for Installations , Service calls , and
other Installation activities will be either a specific time or, at maximum, a four (4) hour
time block during Normal Business Hours. (Grantee may schedule Service calls and other
Installation activities outside of Normal Business Hours for the express convenience of the
customer.)
(d) Grantee may not cancel an appointment with a customer after the close of
business on the business Day prior to the scheduled appointment.
(e) If Grantee 's representative is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled, the customer will be
562 777v3 MA I Sl -4 32
contacted. The appointment will be rescheduled, as necessary, at a time which 1s
convenient for the customer.
14.10 Communications between Grantee and Subscribers .
(a) Refunds. Refund checks will be issued promptly, but no later than either:
(i) The customer's next billing cycle following resolution of the request
or thirty (30) days , whichever is earlier, or
(ii) The return of the equipment supplied by Grantee if Cable Service is
terminated.
(b) Credits. Credits for Cable Service will be issued no later than the customer's
next billing cycle following the determination that a credit is warranted.
14.11 Billing:
(a) Consistent with 47 C.F.R. § 76.1619, bills will be clear, concise and
understandable. Bills must be fully itemized, with itemizations including, but not limited
to , Basic Cable Service and premium Cable Service charges and equipment charges. Bills
will also clearly del ineate all activity during the billing period , including optional charges ,
rebates and credits.
(b) In case of a billing dispute , Grantee must respond to a written complaint
from a Subscriber within thirty (30) days.
14.12 Subscriber Information . Grantee will provide written information on each of the
following areas at the time of Installation of Service, at least annually to all Subscribers , and at
any time upon request:
(a) Products and Services offered;
(b) Prices and options for programming services and conditions of subscription
to programming and other services;
( c) Installation and Service maintenance policies;
( d) Instructions on how to use the Cable Service ;
(e) Channel positions of programming carried on the System ; and
(f) 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 Grantee, including the address of the responsible
officer of the City. Grantee shall notify Subscribers thirty (30) days in ad v ance of any significant
changes in the information required by this Section 14.12.
562777v3 MA ISl-4 33
14 .13 Notice or Rate Programming Change. In addition to the requirement of this
Section 14.13 Grantee shall gi ve 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 , Grantee need only identify for
Subscribers, the television signal added and not whether that signal may be multiplexed during
certain dayparts.
I 4.14 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 .
14.15 Refund Policy. If a Sub scriber's Cable Service is interrupted or discontinued ,
without cause , for twenty-four (24) or more consecuti ve hours , Grantee shall , upon request by the
Subscriber, credit such Subscriber pro rata for such interruption. For this purpose, every month
will be assumed to have thirty (30) Days.
14.16 Late Fees. Grantee shall comply with all applicable state and federal laws with
respect to any assessment , charge , cost , fee or sum , however characterized , that Grantee imposes
upon a Subscriber for late payment of a bill. The City reserves the right to enforce Grantee 's
compliance with all Applicable Laws to the maximum extent legally permissible .
14.17 Disputes . All Subscribers and members of the general public may direct
complaints , regarding Grantee 's Service or performance to the chief administrati ve officer of the
City or the chief administrative officer's designee , which may be a board or Commission of the
City. Grantee must make its best efforts to contact the Subscriber who is the subject of the dispute
within two (2) business Days ofreceiving notice of the complaint from the City. The Grantee shall
establish and maintain a company "escalated complaint" contact (telephone number and email
address) to whom the City may forward escalated complaints. Grantee will make its best efforts to
notify City ofresolution to an "escalated complaint."
14 .18 Customer Bills. Customer bills shall be designed in such a way as to present the
information contained therein clearly and comprehensibl y to Customers , and in a way that (A) is
not misleading and (B) does not omit material information . Notwithstanding anything to the
contrary in Section 14 .10 , above, Grantee may, in its sole discretion , consolidate costs on Customer
bills as may otherwise be permitted by Section 622(c) of the Cable Act (47 U.S.C. §542(c)).
14.19 Failure to Resolve Complaints. Grantee shall resolve a complaint within thirty
(30) days in a manner deemed reasonable by the City under the terms of the Franchise.
14 .20 Maintain a Complaint Phone Line. Grantee shall maintain a local or toll-free
telephone Subscriber complaint line, available to its Subscribers twent y-four (24) hours per Day,
seven (7) days a week.
562777v3 MAISl-4 34
14.21 Notification of Complaint Procedure. Grantee shall have printed clearly and
prominently on each Subscriber bill and in the customer service agreement provided for in Section
14.3 , the twenty-four (24) hour Grantee phone number for Subscriber complaints. Additionally,
Grantee shall provide information to customers concerning the procedures to follow when they are
unsatisfied with measures taken by Grantee to remedy their complaint. This information will
include the phone number of the City office or Person designated to handle complaints.
14.22 Subscriber Privacy.
(a) To the extent required by Minn. Stat. §238.084 Subd . l(s) Grantee shall
comply with the following: No signals including signals of a Class IV Channel may be
transmitted from a Subscriber terminal for purposes of monitoring individual viewing
patterns or practices without the express written permission of the Subscriber. The request
for permission must be contained in a separate document with a prominent statement that
the Subscriber is authorizing the permission in full knowledge of its provisions . Such
written permission shall be for a limited period of time not to exceed one (I) year which
may be renewed at the option of the Subscriber. No penalty shall be invoked for a
Subscriber's failure to provide or renew such permission. The permission shall be
revocable at any time by the Subscriber without penalty of any kind whatsoever.
(b) No information or data obtained by monitoring transmission of a signal
from a Subscriber terminal , including but not limited to lists of the names and addresses of
Subscribers or any lists that identify the viewing habits of Subscribers shall be sold or
otherwise made available to any party other than to Grantee or its agents for Grantee 's
business use , and also to the Subscriber subject of that information, unless Grantee has
received specific written permission from the Subscriber to make such data available. The
request for permission must be contained in a separate document with a prominent
statement that the Subscriber is authorizing the permission in full knowledge of its
provisions. Such written permission shall be for a limited period of time not to exceed one
(1) year which may be renewed at the option of the Subscriber. No penalty shall be invoked
for a Subscriber's failure to provide or renew such permission. The permission shall be
revocable at any time by the Subscriber without penalty of any kind whatsoever.
(c) Written permission from the Subscriber shall not be required for the
conducting of system wide or individually addressed electronic sweeps for the purpose of
verifying System integrity or monitoring for the purpose of billing. Confidentiality of such
information shall be subject to the provision set forth in subparagraph (b ) of this section.
14.23 Grantee Identification. Grantee shall provide all customer service technicians and
all other Grantee employees entering private property with appropriate picture identification so
that Grantee employees may be easily identified by the property owners and Subscribers.
SECTION 15 SUBSCRIBER PRACTICES
15 .1 Subscriber Rates. There shall be no charge for disconnection of any installation or
outlet. If any Subscriber fails to pay a properly due monthly Subscriber fee , or any other properly
due fee or charge , Grantee may disconnect the Subscriber's service outlet , provided , however, that
562 777 v3 MAISl-4 35
such disconnection shall not be effected until after the later of: (i) forty-five (45) Days after the
original due date of said delinquent fee or charge; or (ii) ten (10) Days after delivery to Subscriber
of written notice of the intent to disconnect. If a Subscriber pays before expiration of the later of
(i) or (ii), Grantee shall not disconnect. After disconnection, upon payment in full of the delinquent
fee or charge and the payment of a reconnection charge, Grantee shall promptly reinstate the
Subscriber's Cable Service.
15.2 Refunds to Subscribers shall be made or determined in the following manner:
(a) If Grantee fails , upon request by a Subscriber, to provide any service then
being offered, Grantee shall promptly refund all deposits or advance charges paid for the
service in question by said Subscriber. This provision does not alter Grantee 's
responsibility to Subscribers under any separate contractual agreement or relieve Grantee
of any other liability.
(b) If any Subscriber terminates any monthly service because of failure of
Grantee to render the service in accordance with this Franchise, Grantee shall refund to
such Subscriber the proportionate share of the charges paid by the Subscriber for the
services not received. This provision does not relieve Grantee of liability established in
other provisions of this Franchise.
(c) If any Subscriber terminates any monthly service prior to the end of a
prepaid period, a proportionate amount of any prepaid Subscriber service fee , using the
number of days as a basis, shall be refunded to the Subscriber by Grantee.
SECTION 16 COMPENSATION AND FINANCIAL PROVISIONS
16.1 Franchise Fees . During the term of the Franchise, Grantee shall pay to the City a
Franchise Fee of five percent (5%) of Gross Revenues. If any such law, regulation or valid rule
alters the five percent (5%) Franchise Fee ceiling established by the Cable Act, then the City shall
have the authority to (but shall not be required to) increase the Franchise Fee accordingly, provided
such increase is for purposes not inconsistent with Applicable Law. In the event Grantee bundles
or combines Cable Services (which are subject to the Franchise Fee) with non-Cable Services
(which are not subject to the Franchise Fee) so that Subscribers pay a single fee for more than one
(1) class of service resulting in a discount on Cable Services , Grantee shall, for the purpose of
calculation of the Franchise Fee, allocate to Cable Service revenue no less than a pro rata share of
the rev enue received for the bundled or combined services. The pro rata share shall be computed
on the basis of the published charge for each service in the bundled or combined classes of services
when purchased separately.
(a) Franchise Fees shall be paid quarterly not later than forty-five (45) Days
following the end of a given quarter. In accordance with Section 16 of this Franchise,
Grantee shall file with the City a Franchise Fee payment worksheet, attached as Exhibit C,
signed by an authorized representative of Grantee, which identifies Gross Revenues earned
by Grantee during the period for which payment is made. No acceptance of any payment
shall be construed as an accord that the amount paid is in fact , the correct amount, nor shall
562 777v3 MAIS l -4 36
such acceptance of payment be construed as a release of any claim which the City may
have for further or additional sums payable under the provisions of this section.
(b) Neither current nor previously paid Franchise Fees shall be subtracted from
the Gross Revenue amount upon which Franchise Fees are calculated and due for any
period, unless otherwise required by Applicable Law.
(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 delinquent and shall
thereafter accrue interest at twelve percent (12%) per annum or two percent (2%) above
prime lending rate as quoted by the Wall Street Journal , whichever is greater.
(d) No term or condition in this Franchise shall in any way modify or affect
Grantee 's obligation to pay in full the Franchise Fee percentage listed in this Franchise.
Additionally, the PEG fee pursuant to Section 7, as well as any charges incidental to the
awarding or enforcing of this Franchise, including payments for bonds , security funds ,
letters of credit, insurance, indemnification , penalties or liquidated damage shall not be
offset against Franchise Fees. Furthermore, the City and Grantee agree that any utility tax ,
business and occupation tax or similar local tax of general applicability shall be in addition
to any Franchise Fees required herein and there shall be no offset against Franchise Fees
subject to Applicable Laws. With the exception of the foregoing , Comcast reserves all
rights to offset cash or non-cash payments from Franchise Fees , consistent with Applicable
Laws.
(e) Furthermore, if the Grantee discovers it has materially overpaid or
underpaid the City, it will provide the City a written explanation of its findings prior to
. making any adjustments to future franchise fee payments to correct for overpayment or
underpayment. The City reserves the right to contest Grantee 's claimed overpayment or
underpayment including pursuant to Section 11 herein. This Section shall not apply to
Grantee 's regular process for truing up third party Gross Revenues derived in the ordinary
course of business, such as ad sales revenues.
(f) Should Grantee elect to offset against the Franchise Fee the value of
Franchise commitments or initiatives such as Complimentary Service as may be permitted
by Applicable Laws including any Order resulting from the FCC 's 621 proceeding, MB
Docket No. 05-311 , Grantee shall provide the City ninety (90) Days ' advance written
notice. Discounted leased fiber or managed services provided under a separate contract
with Comcast Business are not a non-cash commitment or initiative, and shall not be offset.
(g) Any decision or election by Grantee not to exercise any right it has under
Applicable Laws, including any Order by the FCC in the 621 proceeding, to offset cash or
non-cash payments from Franchise Fees under or pursuant to this Franchise, shall not
constitute a waiver of any such rights Grantee may have under applicable law.
16.2 Auditing and Financial Records . Throughout the term of this Franchise, the
Grantee agrees that the City, upon reasonable prior written notice of twenty (20) Days to the
Grantee , may re view such of the Grantee 's books and records regarding the operation of the Cable
562777v3 MA 151-4 37
System and the provision of Cable Service in the Franchise Area which are reasonably necessary
to monitor and enforce Grantee 's compliance with the provisions of this Franchise. Grantee shall
provide such requested information as soon as possible and in no event more than thirty (30) Days
unless Grantee explains that it is not feasible to meet this timeline and provides a written
explanation for the delay and an estimated reasonable date for when such information will be
provided. All such documents pertaining to financial matters that may be the subject of an
inspection by the City shall be retained by the Grantee for a minimum period of seven (7) years ,
pursuant to Minn . Stat.§ 541.05 . The Grantee shall not deny the City access to any of the Grantee 's
records on the basis that the Grantee 's records are under the control of any parent corporation ,
Affiliated entity or a third party. The City may request in writing copies of any such records or
books that are reasonably necessary, and the Grantee shall provide such copies within thirty (30)
Days of the receipt of such request. One (1) copy of all reports and records required under this or
any other section shall be furnished to the City at the sole expense of the Grantee. If the requested
books and records are too voluminous , or for security reasons cannot be copied or removed , then
the Grantee may request, in writing within ten (10) Days of receipt of such request, that the City
inspect them at the Grantee 's local offices or at one of Grantee 's offices more convenient to City
or its duly authorized agent. If any books or records of the Grantee are not kept in such office and
not made available in copies to the City upon written request as set forth above, and if the City
determines that an examination of such records is necessary for the enforcement of this Franchise,
then all reasonable travel expenses incurred in making such examination shall be paid by the
Grantee.
16.3 Review of Record Keeping Methodology. Upon request , Grantee agrees to meet
with a representative of the City to review its methodology ofrecord-keeping, financial reporting,
computing Franchise Fee obligations , and other procedures the understanding of which the City
deems necessary for understanding the meaning of reports and records .
16.4 Audit of Records. The City or its authorized agent may at any time and at the City's
own expense conduct an independent audit of the revenues of Grantee in order to verify the
accuracy of Franchise Fees paid to the City. Grantee and each parent company of Grantee shall
cooperate fully in the conduct of such audit. In the event it is determined through such audit that
Grantee has underpaid Franchise Fees in an amount of five percent (5%) or more than was due the
City, then Grantee shall reimburse the City for the entire cost of the audit within thirty (30) Days
of the completion and acceptance of the audit by the City.
16.5 Records to be reviewed . The City agrees to request access to only those books and
records , in exercising its rights under this section , which it deems reasonably necessary for the
enforcement and administration of the Franchise.
16 .6 Indemnification by Grantee. Grantee shall , at its sole expense, fully indemnify,
defend and hold harmless the City, and in their capacity as such, the officers and employees
thereof, from and against any and all claims, suits , actions , liability and judgments for damage or
otherwise except those arising wholly from negligence on the part of the City or its employees ; for
actual or alleged injury to persons or property, including loss of use of property due to an
occurrence, whether or not such property is physically damaged or destroyed , in any way arising
out of or through or alleged to arise out of or through the acts or omissions of Grantee or its officers ,
agents , employees , or contractors or to which Grantee 's or its officers , agents , employees or
562777v3 MA 15 1-4 38
contractors acts or omissions in any way contribute, and whether or not such acts or omissions
were authorized or contemplated by this Franchise or Applicable Law ; arising out of. or alleged to
arise out of any claim for damages for Grantee 's invasion of the right of privacy, defamation of
any Person, firm or corporation, or the violation of infringement of any copyright, trademark, trade
name, service mark or patent, or of any other right of any Person, firm or corporation ; arising out
of or alleged to arise out of Grantee 's failure to comply with the provisions of any Applicable Law.
Nothing herein shall be deemed to prevent the City, its officers , or its employees from participating
in the defense of any litigation by their own counsel at such parties ' expense. Such participation
shall not under any circumstances reliev e Grantee from its duty of defense against liability or of
paying any judgment entered against the City, its officers , or its employees.
16. 7 Grantee Insurance . Upon the Effective Date, Grantee shall , at its sole expense take
out and maintain during the term of this Franchise public liability insurance with a company
licensed to do business in the state of Minnesota with a rating by A.M. Best & Co. of not less than
"A-" that shall protect the Grantee, City and its officials , officers, directors , employees and agents
from claims which may arise from operations under this Franchise, whether such operations be by
the Grantee, its officials, officers, directors , employees and agents or any subcontractors of
Grantee. This liability insurance shall include, but shall not be limited to, protection against claims
arising from bodily and personal injury and damage to property, resulting from Grantee's vehicles ,
products and operations. The amount of insurance for single limit coverage applying to bodily
and personal injury and property damage shall not be less than Three Million Doll ars ($3 ,000,000).
The liability policy shall include:
(a) The policy shall provide coverage on an "occurrence" basis.
(b) The policy shall cover personal injury as well as bodily injury.
(c) The policy shall cover blanket contractual liability subject to the standard
universal exclusions of contractual liability included in the carrier 's standard endorsement
as to bodily injuries , personal injuries and property damage.
( d) Broad form property damage liability shall be afforded.
(e) City shall be named as an additional insured on the policy.
(f) An endorsement shall be provided which states that the co v erage is primary
insurance with respect to claims arising from Grantee 's operations under this Franchise
and that no other insurance maintained by the City will be called upon to contribute to a
loss under this coverage.
(g) Standard form of cross-liability shall be afforded .
(h) An endorsement stating that the policy shall not be canceled without thirty
(30) Days notice of such cancellation gi v en to City.
(i) City reserves the right to adjust the insurance limit coverage requirements
of this Franchise no more than once every three (3) years . Any such adjustment by City
562777v3 M A I S l-4 39
will be no greater than the increase in the State of Minnesota Consumer Price Index (all
consumers) for such three (3) year period .
(j) Upon the Effective Date, Grantee shall submit to City a certificate
documenting the required insurance, as well as any necessary properly executed
endorsements. The certificate and documents evidencing insurance shall be in a form
acceptable to City and shall pro vide satisfactory evidence that Grantee has complied with
all insurance requirements. Renewal certificates shall be provided to City prior to the
expiration date of any of the required policies. City will not be obligated, however, to
review such endorsements or certificates or other evidence of insurance, or to advise
Grantee of any deficiencies in such documents and receipt thereof shall not relieve Grantee
from , nor be deemed a waiver of, City's right to enforce the terms of Grantee 's obligations
hereunder. City reserves the right to examine any policy provided for under this paragraph
or to require further documentation reasonably necessary to form an opinion regarding the
adequacy of Grantee 's insurance coverage.
SECTION 17 MISCELLANEOUS PROVISIONS
17.1 Posting and Publication. Grantee shall assume the cost of posting and publication
of this Franchise as such posting and publication is required b y law and such is payable upon
Grantee 's filing of acceptance of this Franchise.
17.2 Guarantee of Performance. Grantee agrees that it enters into this Franchise
voluntarily in order to secure and in consideration of the grant from the City of a ten (10) year
Franchise. Performance pursuant to the terms and conditions of this Franchise is guaranteed by
Grantee .
17.3 Entire Agreement. This Franchise contains the entire agreement between the
parties , supersedes all prior agreements or proposals except as specifically set forth herein, and
cannot be changed orally but only by an instrument in writing executed by the parties. This
Franchise is made pursuant to Minnesota Statutes Chapter 238 and the City Code and is intended
to comply with all requirements set forth therein.
1 7.4 Consent. Wherever the consent or approval of either Grantee or the City is
specifically required in this agreement, such consent or approval shall not be unreasonably
withheld.
17.5 Prior Franchise Terminated . The cable television franchise originally granted by
Ordinance 99-11-97 5 is hereby terminated .
17.6 Franchise Acceptance. No later than 45 Days following City Council approval of
this Franchise, Grantee shall execute and return to the City three (3) original franchise agreements.
The executed agreements shall be returned to the City accompanied by performance bonds ,
security funds , and evidence of insurance, all as provided in this Franchise. In the event Grantee
fails to accept this Franchise, or fails to provide the required documents , this Franchise shall be
null and void. The Grantee agrees that despite the fact that its written acceptance may occur after
the Effective Date, the obligations of this Franchise shall become effective on the Effective Date.
562777v3 MA1 5 1-4 40
17. 7 Amendment of Franchise. Grantee and City may agree , from time to time , to amend
this Franchise. Such written amendments may be made to address technology changes or advances
subsequent to a review session pursuant to Section 2.6 or at any other time if City and Grantee
agree that such an amendment will be in the public interest or if such an amendment is required
due to changes in federal , state or local laws ; provided, however, nothing herein shall restrict City's
exercise of its police powers .
17.8 Notice. Any notification that requires a response or action from a party to this
Franchise, within a specific time-frame or would trigger a timeline that would affect one or both
parties ' rights under this franchise , shall be made in writing and shall be sufficiently given and
served upon the other party by hand deli v ery, first class mail, registered or certified, return receipt
requested, postage prepaid, or by reputable overnight courier service and addressed as follows:
To the City:
To the Grantee:
City of Maplewood
Attention: City Manager
1830 County Road B East
Maplewood, MN 55109-2702
Comcast Regional Vice President of Operations
10 River Park Place
St. Paul , MN 55107
Recognizing the widespread usage and acceptance of electronic forms of communication,
emails and faxes will be acceptable as formal notification related to the conduct of general business
amongst the parties to this contract, including but not limited to programming and price adjustment
communications. Such communication should be addressed and directed to the Person of record
as specified above.
17.9 Force Majeure . In the event that either party is prev ented or delayed in the
performance of any of its obligations , under this Franchise by reason of acts of God , floods, fire ,
hurricanes, tornadoes, earthquakes, or other unavoidable casualties , insurrection, war, riot,
vandalism, strikes , delays in receiving permits where it is not the fault of Grantee , public
easements, sabotage, acts or omissions of the other party, or any other similar ev ent beyond the
reasonable control of that party, it shall have a 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 other party.
17.10 Work of Contractors and Subcontractors. Work by contractors and
subcontractors is subject to the same restrictions, limitations and conditions as if the work were
performed by Grantee. Grantee shall be responsible for all work performed by its contractors and
subcontractors , and others performing work on its behalf as if the work were performed by it and
shall ensure that all such work is performed in compliance with this Franchise, the City Code and
other Applicable Law, and shall be jointly and severally liable for all damages and correcting all
damage caused by them. It is Grantee 's responsibility to ensure that contractors, subcontractors
or other Persons performing work on Grantee 's behalf are familiar with the requirements of this
Franchise, the City Code and other Applicable Laws governing the work performed by them.
562777v3 MAISl-4 41
17 .11 Abandonment of System. Grantee may not abandon the System or any portion
thereof during the Term of this Franchise, and thereafter without having first given three (3)
months written notice to City and conforming to the City Code, as well as the state right-of-way
rules, Minn. Rules, Chapter 7819 . To the extent required by Minn. Stat. § 23 8.084, Subd. 1 (w),
Grantee shall compensate City for damages resulting from the abandonment.
17.12 Removal After Abandonment. In the event of Grantee 's abandonment of the
System , City shall have the right to require Grantee to conform to Section 405 of the City Code,
as well as the state right-of-way rules , Minn. Rules , Chapter 7819 . If Grantee has failed to
commence removal of System , or such part thereof as was designated by City, within thirty (30)
Days after written notice of City's demand for removal consistent with Section 405 of the City
Code and Minn. Rules, Ch. 7819 , is given, or if Grantee has failed to complete such removal within
twelve (12) months after written notice of City's demand for removal is given City shall have the
right to apply funds secured by the Performance Bond toward removal and/or declare all right,
title, and interest to the System to be in 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.
17.13 Governing Law. This Franchise shall be deemed to be executed in the State of
Minnesota, and shall be governed in all respects, including validity, interpretation and effect, and
construed in accordance with, the laws of the State of Minnesota, as applicable to contracts entered
into and performed entirely within the State.
17 .14 N onenforcement by City. Grantee shall not be relieved of its obligation to comply
with any of the provisions of this Franchise by reason of any failure of the City or to enforce
prompt compliance.
17 .15 Captions. The paragraph captions and headings in this Franchise are for
convenience and reference purposes only and shall not affect in any way the meaning of
interpretation of this Franchise.
17 .16 Calculation of Time. Where the performance or doing of any act, duty, matter,
payment or thing is required hereunder and the period of time or duration for the performance is
prescribed and fixed herein, the time shall be computed so as to exclude the first and include the
last Day of the prescribed or fixed period or duration of time. When the last Day of the period falls
on Saturday, Sunday or a legal holiday, that Day shall be omitted from the computation and the
next business Day shall be the last Day of the period .
17.17 Survival of Terms. Upon the termination or forfeiture of the Franchise, Grantee
shall no longer have the right to occupy the Streets for the purpose of providing Cable Service.
However, Grantee 's obligations to the City (other than the obligation to provide service to
Subscribers) shall survive according to their terms .
17 .18 Competitive Equity.
(a) The Grantee acknowledges and agrees that the City is authorized to grant one (1)
or more additional franchises or other similar lawful authorization to utilize the Rights-of-Way in
order to provide Cable Services or similar video programming service within the City, and that the
City has previously issued an additional franchise to another provider to provide Cable Services
562777v3 MAISl-4 42
in the City. If, after the Effective Date of this Franchise, the City grants such an additional
franchise or other similar lawful authorization to utilize the Rights-of-Way for Cable Services or
similar video programming services containing material terms and conditions that differ from
Grantee 's material obligations under this Franchise, or declines to require such franchise or other
similar lawful authorization where it has the legal authority to do so , then the Grantee may provide
written notice to the City as provided in Section 17.18(b) below . "Material terms and conditions"
include, but are not limited to: Franchise Fees and Gross Revenues ; complementary services ;
insurance; System build-out requirements ; security instruments ; Public, Education and
Government Access Channels and support ; customer service standards ; required reports and
related record keeping ; competitive equity ( or its equivalent); audits; dispute resolution; remedies;
and notice and opportunity to cure breaches.
(b) The Grantee's notice shall address the following: (1) identify the specific terms or
conditions in the competitive cable services franchise that are materially different from Grantee 's
obligations under this Franchise; (2) identify the Franchise terms and conditions for which Grantee
is seeking amendments ; (3) provide text for any proposed Franchise amendments to the City, with
a written explanation of why the proposed amendments are necessary and consistent.
(c) U pon receipt of Grantee 's written notice as provided in Section 17.18(b), the City
shall ensure that material terms and conditions of both franchises are materially equivalent
pursuant to the processes set forth herein. The City and Grantee agree that they w ill use best efforts
in good faith to negotiate Grantee 's proposed Franchise modifications , and that such negotiation
will proceed and conclude within a ninety (90) Day time period, unless that time period is reduced
or extended by mutual agreement of the parties. If the City and Grantee reach agreement on the
Franchise modifications pursuant to such negotiations , then the City shall amend this Franchise to
include the modifications.
( d) If the Franchise modification negotiations as provided for in Section 1 7 .18( c) do
not result in mutual agreement, Grantee may, at its option , elect to replace this Franchise by opting
into the franchise or other similar lawful authorization that the City grants to another multi-channel
video programming provider, with the understanding that Grantee may use its current system
design and technology infrastructure to meet any requirements of the new franchise, so as to insure
that the regulatory and financial burdens on each entity are equivalent. If Grantee so elects, the
City shall immediately commence proceedings to replace this Franchise with the franchise issued
to the other multi-chartnel video programming provider.
(e) Notwithstanding anything contained in this Section 17.18 (a) through (d) to the
contrary, the City shall not be obligated to amend or replace this Franchise unless the new entrant
makes Cable Services or similar video programming services available for purchase by
Subscribers or customers under its franchise agreement with the City.
562777v3 MA 15 1-4 43
Passed and adopted thisfl day of /1a.. v 2019.
i
ATTEST CITY OF MAPLEWOOD , MINNESOTA
By:~~
Its: City Clerk
ACCEPTED : This Franchise is accepted , and we agree to be bound by its terms and conditions.
Date: _ __,_7 ___.· f.__~_._f _,_q __ _
SWORN TO BEFORE ME this
J-a day of ::rt.lh( , 2019.
562777v3 MA 15 1-4 44
COMCAST OF MINNESOTA, INC .
By :~~
1ts: 1.St/ fJ 6:/J(Ml(!_./L
ELLY LINDGREN
Notary Public
State of Colorado
Notary ID# 20124083711
My Commission Expires 01-02-2021
Exhibit A
Complimentary Cable Service to Public Buildings
City Hall
1830 County Road B East
Nature Center
2659 East 7th Street
Fire Station 2
1955 Clarence Street
Fire Station 3
1530 County Road C East
Fire Station
600 McKnight Road
Carver Elementary School
2680 Upper Afton Road
Edgerton Elementary School
1929 Edgerton Street
Weaver Elementary
2135 Birmingham St
John Glen Middle School
2410 Holloway Ave E
St. Jerome School
3 80 Roselawn Ave E
Hill Murray High School
2625 Larpenteur Ave.
Gladstone Community Center
1945 Manton St
Public Works
1902 County Road B
Park Maintenance Building
1810 County Road B
562777v3 MA 151-4
A-1
Exhibit B
Fiber Return Lines
City Hall, 1830 County Road B East to Comcast Hub
Carver Elementary School, 2680 Upper Afton Road to Comcast Oakdale Hub
Edgerton Elementary School , 1929 Edgerton Street to Comcast Oakdale Hub.
B-1
562777v3 MAJSl-4
Exhibit C
Franchise Fee Payment Worksheet
TRADE SECRET -CONFIDENTIAL
Month/Year Month/Year Month/Year Total
A la Carte Video
Services
Audio Services
Basic Cable Service
Installation Charge
Bulk Revenue
Expanded Basic Cable
Service
Pay Service
Pay-per-view
Guide Revenue
Franchise Fee Revenue
Advertising Revenue
Home Shopping
Revenue
Digital Services
Inside Wiring
Other Revenue
Equipment Rental
Processing Fees
PEG Fee
FCC Fees
Bad Debt
Late Fees
REVENUE
Fee Calculated
Fee Factor: 5%
C-1
562777v3 MA 151-4
State of Minnesota ) SS
County of Ramsey I
Affidavit of Publication
ROBIN NISSW ANDT , being duly sworn, on oath , says that -------------------------
he/she is the publisher or authorized agent and employee of the publisher of the newspaper known
as __ M_AP_L_E_W_O_O_D_RE_V_IE_W ________ , and has full knowledge of the facts which are
stated below :
(A) The newspaper has complied with all of the requirements constituting qualification as a qualified
newspaper, as provided by Minnesota Statute 331A.02, 331A.07, and other applicable laws, as amended .
(B) The printed PUBLIC NOTICE
which is attached was cut from the columns of said newspaper, and was printed and published once each
week, for 1 successive weeks ; it was first published on WEDNESDAY , the 7 TH day of
AUGUST 20---.!2_, and was thereafter printed and published on every to and
including , the day of , 20 __ ; and printed below is a copy of
the lower case alphabet from A to Z , both inclusive , which is hereby acknowledged as being the size and
kind of type used in the composition and publication of the notice:
* ABCD EFGHI JK LMNOPQRSTUVWXYZ
* ABCDEFGH IJKLMNOPQRSTUVWXYZ
*abcdefghijklmnopqrstuvwxyz
TITLE.___,L=E=G=A-"=L=-C=-0=0.:..:R=D.:.:.I N.:.:.A..:..;Tc.;:O::...:.R-'-----
*Alphabet should be in the same size and kind of type as the notice .
RATE INFORMATION
(2) Maximum rate allowed by law for the above matter ........................................... $25 .00 per col. inch
(3) Rate actually charged for the above matter ....................................................... $ per col . in ch
1/19
CITY OF MAPLEWOOD
COUNTY OF RAMSEY
STATE OF MINNESOTA
PUBLIC NOTICE
RESOLUTION 19-05-1695
APPROVING SUMMARY
PUBLICATION OF CABLE
TELEVISION FRANCHISE
WHEREAS , the City Council for
the City of Maplewood , Minnesota ,
enacted a lengthy ordinance granting
a 10-year renewal of the cable
franchise issued to Comcast of St.
Paul , Inc. ("Comcast"), and ;
WHEREAS , the franchise ordinance
authorizes Comcast to operate a
cable system and deliver cable
services in the City, and ;
WHEREAS , as authorized by
Minnesota Statutes , Section
412.191 , subd . 4 , the City Council
has determined that publication of
the title and summary of the franchise
ordinance will clearly inform the
public of the intent and effect thereof;
and
WHEREAS , a printed copy of the
franchise ordinance is available for
inspection during regular off ice hours
in the office of the city clerk.
NOW THEREFORE , BE IT
RESOLVED that the following
summary of the ordinance is
approved for publication :
Ordinance No . 1001
An Ordinance renewing the Grant of
a franchise to Comcast of St. Paul ,
Inc. to operate and maintain a cable
system in the City of Maplewood ,
Minnesota ; setting forth conditions
accompanying the grant of franchise ;
providing for city regulation and
administration of the cable system ;
terminating prior franchise .
This ordinance shall be effective
after its adoption . A full copy of the
Ordinance is available in the Office
of the City Clerk, 1830 County Road
B East , Maplewood , MN .
ATIEST: Andrea Sindt, City Clerk
(Review : Aug . 7, 2019)