HomeMy WebLinkAboutCity Council Packet_10-11-17_CITY OF FALCON HEIGHTS
Regular Meeting of the City Council
City Hall
2077 West Larpenteur Avenue
AGENDA
October 11, 2017 at 7:00 P.M.
A. CALL TO ORDER:
B. ROLL CALL: LINDSTROM ___ HARRIS ____ BROWN THUNDER ___
FISCHER ___ GUSTAFSON___
STAFF PRESENT: THONGVANH____
C. PRESENTATION
D. APPROVAL OF MINUTES:
1. September 27, 2017 City Council Meeting Minutes
E. PUBLIC HEARINGS:
1. Comcast Television Franchise Ordinance
2. Proposed Permitted Parking – Falcon Woods
3. Assessment Hearing – 2017 PMP
F. CONSENT AGENDA:
1. General Disbursements through: 10/05/17 $139,104.43
Payroll through: 9/30/17 $18,217.08
2. Designation of Polling Places for the 2018 State Primary and State General Elections
3. 2017 PMP Payment #6
4. Sanitary Fund Transfer to Reduce Debt Service Payments in 2018
G: POLICY ITEMS:
H. INFORMATION/ANNOUNCEMENTS:
1. Weekly Police Reports – Can Now Be Found At:
http://www.falconheights.org/index.asp?SEC=75B3E8BB-785B-4048-B543-
995BAE0716A5&Type=B_BASIC
I. COMMUNITY FORUM:
J. ADJOURNMENT:
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CITY OF FALCON HEIGHTS
Regular Meeting of the City Council
City Hall
2077 West Larpenteur Avenue
MINUTES
September 27, 2017 at 7:00 P.M.
A.CALL TO ORDER: 7:00 pm
B. ROLL CALL: LINDSTROM _X__ HARRIS _X___ BROWN THUNDER _X__
FISCHER _X__ GUSTAFSON_X__
STAFF PRESENT: THONGVANH__X__
C.PRESENTATION
D. APPROVAL OF MINUTES:
1. August 6, 2017 City Council Work Session Meeting Minutes Approved
2. August 23, 2017 City Council Meeting Minutes Approved
E.PUBLIC HEARINGS:
F. CONSENT AGENDA:
1. General Disbursements through: 9/19/17 $531,016.55
Payroll through: 9/15/17 $20,046.69
2. Inter-Fund Loan Repayment From 2017 PMP
3.Budget Amendment for Fund 427
Council Member Harris Moved, Approved 5-0
G: POLICY ITEMS:
1. Adopt 2018 Preliminary Levy
City Administrator Thongvanh presented that the city must annually set and certify a
preliminary levy to Ramsey County by September 30. There are no levy limits imposed by
legislators for 2018. The amount of LGA State Aid has increased by $55,774 for 2018. Fiscal
disparity distribution dollars has increased by $14,000. The largest impact for the 2018 budget is
the change in police services. Services with Ramsey County will cost the city a little more than 1
million dollars per year, a 49% increase from 2017.
The Council agreed to reduce the levy from 34% to 24% by utilizing reserve funds to prefund
debt service for 2018. The impact of the overall property tax levy is from the increase in the
general fund of $334,000, equating to the changes in the police services. The 2018 impact on a
median value home is an increase of $178 per year, $14.83 per month, $.49 per day. The budget
hearing is scheduled for Wednesday, December 13 at 7pm.
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Mayor Lindstrom stated that the next meeting they will be discussing a franchise fee, which
would allow for additional revenue. The franchise fee would be on the utility bill for residential,
businesses, and non-profits. This would likely offset the money that would otherwise be
collected only by residents through levy increases. This will be further discussed at the next
Council Workshop which would likely be Wednesday, October 18.
Council Member Fischer Moved, Approved 5-0
H. INFORMATION/ANNOUNCEMENTS:
1. Weekly Police Reports – Can Now Be Found At:
http://www.falconheights.org/index.asp?SEC=75B3E8BB-785B-4048-B543-
995BAE0716A5&Type=B_BASIC
Council Member Fischer:
· He, and six others, were part of the League of Women Voters Candidate Forum. He
encourages people to watch it via public television or online. Saturday was the deadline
for candidates to produce 5 minutes of their thoughts for the public, and that should be
available shortly. The local newspaper also has good information on the candidates.
Council Member Harris:
· Last night was the Planning Commission meeting, and all but one person attended.
They had discussions on preparing to create the new Comprehensive Plan. They
discussed the consultant, the role that they will play, and how they were selected. They
are looking into the same consultant Roseville used, and the proposal is still in the
process of negotiation. They talked about the public engagement piece as well. There
may also be subgroups of various Commission’s members to gain input.
Council Member Brown Thunder:
· Northeast Youth and Family Services is having their Taste of Northeast fundraiser on
Thursday, October 5 from 5:30-8:30pm. It is $30 per person, and tickets can be purchased
online on their website. Also, their senior chore program is available, especially with fall
leaves becoming more prominent.
Council Member Gustafson:
· The Parks and Recreation Commission will be meeting again in December. Freight
Farm, presented by the Ramsey County Sheriff’s Foundation, is happening at the
County Fairgrounds, off Frost and White Bear Avenue, on Fridays and Saturdays
starting on October 6. There is a low scare event the Sunday before Halloween.
Admission is $12.
Mayor Lindstrom:
· The Met Council is celebrating 50 years, and they are having an event in December.
They are producing a program that highlights cities that are going above and beyond in
various categories that they are passionate about. One of those categories is resiliency.
Today he was able to go on the City Hall roof with staff to show off the solar panels for
this program.
City Administrator Thongvanh:
· He had discussions with the Ramsey County Undersheriff today, and he should be
receiving a rough draft of the contract tomorrow to begin reviewing. Once he and the
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City Attorney review it, it will be forwarded to the Council. The city is still set to have
Ramsey County begin policing on January 1, 2018. He anticipates that the contract will
go before the Council to adopt in late October or early November. Likely in November,
there will be at least two open houses with the Ramsey County Sheriff’s Department to
introduce them to the community. This will allow for a question and answer session as
well.
· The Council Workshop will be moved from October 4 to October 18. They will discuss
the budget, franchise fees, vacant home ordinance, and the EAB grant closure.
· The Fire Department will have their annual Open House and Chili Cook Off on
Saturday, October 7 from 11am-2pm.
· Falcon Heights residents are invited to participate in the Neighborhood Cleanup event,
hosted by the City of St. Paul, on Saturday, October 7 from 8am-1pm at the State
Fairgrounds. Entry for the event is from Larpenteur Avenue. It has made possible by the
City of Falcon Heights contributing to this effort.
· St. Anthony Police Department just launched their social media pages on Twitter and
Instagram via @stanthonypolice.
I. COMMUNITY FORUM:
J. ADJOURNMENT: 7:25 pm
_____________________________ Peter Lindstrom, Mayor Dated this 27th day of September, 2017
__________________________________ Sack Thongvanh, City Administrator
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REQUEST FOR COUNCIL ACTION
Families, Fields and Fair __________________________
The City That Soars!
Item Comcast Television Franchise Ordinance
Description
The City of Falcon Heights is a member of North Suburban Communications Commission (the “NSCC”), a municipal joint powers entity formed by nine member cities. The NSCC administers the cable franchises that each member city has with Comcast and CenturyLink.
The current Comcast cable franchise was granted in 1998 for a fifteen year term. Comcast and the NSCC commenced initial informal negotiations in 2011. Informal negotiations did not result in an agreement and led to the parties following the formal cable franchise renewal process set forth in federal law. That process included the NSCC conducting a formal needs
ascertainment and issuing a request for renewal proposal to Comcast. Comcast submitted a
formal renewal proposal. After holding a public hearing on the renewal proposal, the member cities, upon the recommendation of the NSCC, made a preliminary decision not to renew the Comcast
franchise. Comcast and NSCC sent the matter on to the Minnesota Office of Administrative
Hearings (“OAH”) to have an Administrative Law Judge (“ALJ”) hear the matter and prepare a recommendation to the NSCC on whether to renew the Comcast franchise. While the matter was pending before OAH, Comcast and the NSCC agreed to recommence
informal cable franchise negotiations. These negotiations resulted in the attached Comcast
cable franchise agreement, which the NSCC has recommended for adoption by the City. The NSCC also held a public hearing on behalf of its member cities on August 3, 2017.
Budget Impact Impact will be based on the agreed upon franchise ordinance.
Attachment(s) · Bradley Memo Franchise Summary
· NSCCC Side Letter
· ALJ Side Letter Ruling
· Ordinance 17-02 Comcast Cable Franchise
· Ordinance 17-03 Summary of Comcast Franchise Ordinance
Meeting Date October 11, 2017
Agenda Item Public Hearing E1
Attachment Support Documents & Resolution(s)
Submitted By Sack Thongvanh, City Administrator
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Action(s)
Requested
The NSCC recommends approval of the attached cable television franchise ordinance and the ‘Summary of Ordinance” for publication. The City should follow its typical process for adoption of an ordinance. Assuming approval by all of the member cities and acceptance by Comcast of the cable franchise, the NSCC and Comcast would take action to terminate the formal cable franchise renewal process pending before the OAH.
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Bradley Berkland Hagen & Herbst, LLC 1976 Wooddale Drive Suite 3A Woodbury, MN 55125 (651) 379-0900 BradleyLawMN.com
MEMORANDUM To: NSCC From: Mike Bradley Re: Comcast Franchise Renewal Date: July 27, 2017
NSCC – Comcast Franchise Deal Point Summary
1. Mutually agreeable Franchise. The current cable franchise was ultimately used as a base document.
Incorporates prior agreements on renewal terms.
o Gross Revenues Definition
o Auditing Provisions
o Electronic Programming Guide
o Channel Placement
2. 10 year franchise term. 3. 5% Franchise Fee paid to each Member City. 4. Current PEG Grant Funding pursuant to 1994 MOU remains in place through December
31, 2017. 5. Starting January 1, 2018, Comcast will pay a 3% PEG Capital Fee.
New NSAC PEG Sponsorship Agreement commences January 1, 2018.
o Allows PEG funding to continue to be used for capital and operational purposes.
o Agreed to simultaneously with Franchise.
Comcast allowed to recover a claimed PEG funding underrecovery through a .5% PEG Fee through December 31, 2019.
No change in PEG Fee in 2017 - capped at $6.00.
All subscribers should see their PEG Fee decrease starting in 2018, but amount of new PEG Fee will fluctuate per subscriber depending on the amount of services purchased.
6. 6 SD PEG channels, plus 2 HD PEG channels. One additional HD PEG channel (3rd HD Channel) 60 months after the effective date. Comcast may simulcast all PEG channels in HD.
PEG Available to all subscribers regardless of tier of service.
No provision for Universal Service.
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Electronic Programming Guide – per 2014 Settlement Agreement.
Channel Placement – close proximity to Broadcast Channels – like 2014 Settlement Agreement.
Complimentary Service and Equipment to Public Buildings.
o Drop to public building 250 to 500 feet depending on whether it is aerial or underground.
o 7 boxes to City Halls and 3 boxes to other locations.
New Remote Cablecasting Provisions.
o Comcast will provide equipment to allow for remote cablecasting using the
Comcast public internet. 7. Network Services to the Commission and Member Cities.
Comcast will continue to provide gratis PEG Video Origination Feeds from Member Cities to the Commission.
o Through the old I-Net or alternative means – same functionality.
Comcast will continue to allow gratis PEG Video Sharing with neighboring
jurisdictions.
o Through the old PRISMA network or alternative means – same functionality.
Enterprise Services Option.
o For Member Cities and Commission using the old I-Net for phone and data
services.
Can use fiber I-Net through December 31, 2017.
o City of Roseville will coordinate data and phone needs with Member Cities.
o Most Favored Nations clause – Comcast has agreed to match pricing and services given to any other Twin Cities municipal entities.
8. Level Playing Field
Requirement to treat competitors similarly related to Franchise Fees, PEG Funding, PEG Channels, and Customer Service.
o Side Agreement that current CenturyLink Franchise is treated similarly. 9. Standard FCC customer service provisions and reporting.
10. Mutually acceptable audit and dispute resolution procedures and provisions.
11. Indemnification. Comcast will provide indemnification from any litigation arising from the passage of the Franchise for a period of 6 months following the Effective Date of the Franchise.
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10 River Park Plaza, Saint Paul, MN 55107
August 1, 2017
The Honorable _______
Mayor, City of ______________ Dear Mayor___:
The purpose of this letter agreement is to set forth additional commitments between Comcast
of Minnesota, Inc. (hereinafter, “Comcast”), and the City of _________ (hereinafter, “the City") that are in addition to the Franchise Agreement to be adopted by Ordinance (hereinafter, “the Franchise”). These items have been negotiated in good faith and agreed to as part of the informal franchise renewal process pursuant to 47 U.S.C. 546(h), and
specifically relate to unique community needs that exist in the City. This letter agreement
shall become effective upon approval of the Franchise by the City Council.
A. In addition to the complimentary services described in Section 2.10 of the Franchise, Grantee shall, at no cost to the City or the North Suburban
Communications Commission (the “Commission”), provide Digital Starter or
equivalent package of Cable Service and City’s choice of Grantee’s necessary reception equipment (a digital cable box or digital adapter) to up to seven (7) outlets at the Commission Office and at each City Hall of each Member City.
B. For purposes of interpreting Section 2.2 of the Franchise, a “similar
authorization” shall be a franchise or other agreement between the Commission or member city that contains Material Obligations and not a standard construction permit. In addition, Comcast agrees that the current franchise with CenturyLink in effect on the Effective Date of this Franchise
will not trigger changes to the Franchise under Section 2.2.
C. For purposes of calculating amounts retained and owed under Section 6.8(b) - (c) and (e) of the Franchise, Comcast estimates that it will recover an additional 130,000.00 through May 31, 2019, and that the NSAC shall be paid per NSAC
Sponsorship Agreement an additional 76,000.00 through December 31, 2019.
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10 River Park Plaza St. Paul, MN 55107 www.comcastcorporation.com
The terms and conditions of this letter agreement are binding upon the City and Comcast and their successors and assigns. Comcast stipulates that a violation of these terms by Comcast may be considered by the City as a violation of the Franchise. It is understood that fulfillment of these obligations is also necessary and part of the consideration to secure the Renewed Franchise.
Acknowledged and agreed to this ___ day of ___________, 2017. Comcast of Minnesota, Inc.
By:______________________ Its:______________________ Date:____________________
City of _____________
By:_____________________ Its:_____________________ Date:___________________
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Bradley Berkland Hagen & Herbst, LLC 1976 Wooddale Drive Suite 3A Woodbury, MN 55125 (651) 379-0900 BradleyLawMN.com
MEMORANDUM To: NSCC and the NSCC Member Cities From: Mike Bradley Re: ALJ Ruling on Side Letter and Dismissal of Formal Renewal Proceeding Date: August 28, 2017
Paragraph A of Side Letter is Limited to SD Equipment On August 23, 2017, the Administrative Law Judge ruled that the commitment contained in paragraph A of the Side Letter to provide the City’s choice of reception equipment for complimentary service was limited to standard definition equipment and therefore does not include complimentary high definition equipment. A copy of the ALJ opinion is attached.
Formal Process before the Office of Administrative Hearings is Closed As the interpretation of paragraph A of the Side Letter was the last item for the ALJ to consider, the ALJ cancelled all additional proceedings and dismissed the formal proceeding
before the ALJ. As a result the formal renewal proceeding before the Office of Administrative Hearings is now closed. Please let me know if you have any questions.
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August 23, 2017
VIA E-FILING ONLY Coralie Wilson Executive Director
North Suburban Communications Commission
2670 Arthur St Roseville, MN 55113 cwilson@ctvnorthsuburbs.org
Re: In the Matter of Comcast Cable Television Franchise Renewal
Applications to Member-Cities of North Suburban Communications
Commission
OAH 8-8032-31789
Dear Executive Director Wilson:
Enclosed herewith and served upon you is the Administrative Law Judge’s ORDER ON
CROSS-MOTIONS FOR PARTIAL SUMMARY DISPOSITION in the above-entitled
matter. The Report, together with the official record will be sent to you under separate cover. The Office of Administrative Hearings’ file in this matter is now closed.
If you have any questions, please contact my legal assistant Sheena Denny at (651) 361-7881, Sheena.Denny@state.mn.us, or facsimile at (651) 539-0310.
Sincerely,
ERIC L. LIPMAN Administrative Law Judge ELL:sd Enclosure
cc: Katherine M. Swenson
John M. Baker Randall Tietjen
Stephen P. Safranski
Lisa L. Beane
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STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS PO BOX 64620 600 NORTH ROBERT STREET
ST. PAUL, MN 55164-0620
CERTIFICATE OF SERVICE
In the Matter of Comcast Cable Television Franchise Renewal Applications to Member-Cities of North Suburban Communications
Commission
OAH Docket No.: 8-8032-31789
Sheena Denny, certifies that on August 23, 2017, she served the true and correct
ORDER ON CROSS-MOTIONS FOR PARTIAL SUMMARY DISPOSITION by courier service or by placing it in the United States mail with postage prepaid, addressed to the following individuals:
VIA E-FILING ONLY
Coralie Wilson Executive Director North Suburban Communications Commission 2670 Arthur St
Roseville, MN 55113 cwilson@ctvnorthsuburbs.org
John M. Baker
Katherine M. Swenson Greene Espel PLLP 222 S Ninth St Ste 2200 Minneapolis, MN 55402
Randall Tietjen Stephen P. Safranski
Lisa L. Beane
Robins, Kaplan, Miller & Ciresi LLP 2800 LaSalle Plaza 800 LaSalle Avenue
Minneapolis, MN 55402
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OAH 8-8032-31789
STATE OF MINNESOTA OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE NORTH SUBURBAN COMMUNICATIONS COMMISSION
In the Matter of Comcast Cable Television Franchise Renewal Applications to Member-Cities of North Suburban Communications Commission
ORDER ON
CROSS-MOTIONS FOR
PARTIAL SUMMARY
DISPOSITION This matter came before Administrative Law Judge Eric L. Lipman for an oral argument on August 14, 2017.
A few weeks earlier, in July of this year, the parties completed negotiations on a
multi-year cable franchise agreement that resolved each of the disputes in this proceeding, except one. With the differences between the parties sharply reduced in their number, complexity and overall financial impact on the franchise agreement, the parties agreed to refer one remaining issue to the Administrative Law Judge for his resolution. Using the powers that are committed to the parties under Minn. Stat.
§§ 14.55, 14.59 (2016), it was agreed that the decision of the Administrative Law Judge on this issue would serve as the final agency order on that matter under Minn. Stat. §§ 14.57, 14.61, subd. 1 (2016).
Following the receipt of written memoranda from each party, and the arguments
of counsel, the hearing record on the cross-motions for partial summary disposition
closed on August 14, 2017.
Randall Tietjen and Stephen P. Safranski, Robins, Kaplan, Miller & Ciresi, LLP, appeared on behalf of Comcast of Minnesota (Comcast). John M. Baker and Katherine M. Swenson, Greene Espel, PLLP, appeared on behalf of the North Suburban Communications Commission (NSCC).
Based upon the submissions of the parties and the contents of the record,
IT IS HEREBY ORDERED:
1. Comcast’s Motion for Partial Summary Disposition is GRANTED.
2. NSCC’s Motion for Partial Summary Disposition is DENIED.
3. Additional proceedings in this matter are CANCELLED.
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4. Because the parties themselves have resolved all other matters in dispute, the contested case (OAH 8-8032-31789) is DISMISSED.
Dated: August 23, 2017
________________________
ERIC L. LIPMAN
Administrative Law Judge
NOTICE
This Order is the final decision in this case. Any party aggrieved by this decision may seek judicial review pursuant to Minn. Stat. §§ 14.63 to 14.69 (2016).
MEMORANDUM
Factual Background
As part of the franchise renewal negotiations between the parties, Comcast agreed to provide complimentary cable service to schools, libraries, and other
community institutions within its North Suburban service area. Under federal law, local franchising authorities may not require these complimentary services as a condition to renewing the cable franchise, but Comcast often provides such services as a brand-building, goodwill initiative to the communities it serves.1
Additionally, under the Franchise Agreement, Comcast agreed to set-aside six
Standard Definition format channels, and two High Definition format channels, for each city to deliver public, educational and government programming – known collectively as “PEG access” or “PEG Channels”. Comcast likewise agreed to provide “free of charge to the City, the Commission, or its designated entities … such equipment as may be necessary to facilitate the cablecasting of the PEG Channels in accordance with the
requirements of the Franchise.”2 This pledge includes the provision of one High Definition connection and related equipment for use by the producers of PEG channel High Definition programming.3
Also, generally within the Twin Cities market, Comcast has agreed to provide up
to three converters (set-top boxes or digital adapters) for complimentary cable services
1 Declaration of Steve Holmes, at 1-2 (August 11, 2017). 2 Affidavit of Michael R. Bradley, Attachment A, at 16 (August 11, 201 7). 3 Digital Recording (August 14, 2017); Bradley Aff., Attach. A, at 18.
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to local franchising authorities.4 During the negotiations between the parties in this case, however, NSCC sought a higher level of complimentary services for its member-
cities. Specifically, it sought complimentary cable service provided to more than three locations within each city.5
The parties ultimately settled upon a two-part solution to their disagreement. Section 2.10 of the Franchise Agreement would reflect the familiar offering made by
Comcast to a host community in the Twin Cities – specifically, Comcast agreed “to
provide Digital Starter or equivalent package of Cable Service and reception equipment to up to three (3) outlets at all municipal government buildings, schools and public libraries located in the City where Grantee provides Cable Service.”6 Yet, in a “Side Letter” to be completed by Comcast and each NSCC member city, Comcast would further agree to provide complimentary cable service to four additional “outlets at the
Commission Office and at each City Hall of each Member City.”7 As the Side Letter explains: “These items have been negotiated in good faith and agreed to as part of the informal franchise renewal process pursuant to 47 U.S.C. [§] 546(h)(2012), and specifically relate to unique community needs that exist in the City.”8
Beginning in December of 2016, counsel for each of the parties exchanged drafts
of the Side Letter and the lawyers for each side proposed revisions and additions for the other party to consider.9
The NSCC negotiator maintains that as part of the discussions and deliberations over various drafts, he made clear to Comcast’s negotiator that a key purpose of the Side Letter for the NSCC and its member-cities was to “eliminate any additional
charges” related to High Definition television services and equipment.10 The complimentary services delivered to the NSCC and its member cities under the then-current agreement, which was initially approved in 2002, included only Standard Definition programming.11
Under Comcast’s rate structure in late 2016, as it is today, the delivery of High
Definition cable television services is separately-priced and is more costly than Standard Definition cable television service.12 Comcast obtains an additional $10 per subscription month for providing High Definition television service to its customers.13
While both High Definition television and Standard Definition television are digital services, as the monikers suggest, High Definition television services provides viewers
4 Holmes Decl., at 2. 5 Id; Bradley Aff., at 2.
6 Id; Bradley Aff., Attach. A, at 10. 7 Bradley Aff., Attach. D. 8 Id. 9 See Holmes Decl., at 2-4; Bradley Aff., at 1-3.
10 Bradley Aff., at 2. 11 See Comcast’s Memorandum of Law in Support of its Motion for a Sufficient Notice of Hearing, at 4
(September 19, 2014); Digital Recording (August 14, 2017). 12 See Holmes Decl., Attach. 4.
13 Id.
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with a much sharper and more vivid picture. This is because there are more than one million additional pixels per picture frame for an image that is broadcast in the High
Definition format compared to an image that is broadcast in the Standard Definition format.14 Also important, High Definition formatted programing cannot be viewed using a Standard Definition Digital Cable Box or a Standard Definition Digital Adapter.15 Receipt of High Definition programming requires a Digital Cable Box or a Digital Adapter
that is specially designed to decode and display the High Definition broadcast signals.16
As to the delivery of complimentary services, Paragraph A of the Side Letter provided:
In addition to the complimentary services described in Section 2.10 of the Franchise, Grantee shall, at no cost to the City or the North Suburban Communications Commission (the Commission), provide Digital
Starter or equivalent package of Cable Service and City's choice of Grantee's necessary reception equipment (a digital cable box or digital adapter) to up to seven (7) outlets at the Commission Office and at each City Hall of each Member City.17
The parties both agree that as used in the Side Letter the term “Digital Starter”
refers to a particular set of services made available by Comcast to its cable subscribers and does not have a different, more commonplace meaning.18 It is a term that is only meaningful in reference to Comcast’s product line.
Within Comcast’s product line, “Digital Starter” is a mid-point offering.19 It provides to subscribers a range of approximately 140 channels and includes channels
that broadcast in Standard Definition formats and channels that broadcast in High Definition formats.20 Further, within this product line, there are two cable service packages with fewer channels than “Digital Starter” (“Limited Basic” offers approximately 10 channels and “Economy” provides subscribers approximately 100
channels) and three service packages that offer a wider range of channels (“Preferred”
services includes 220 channels, “Preferred Plus” includes 230 channels and “Premier” offers more than 260 channels).21
Digital Starter refers to a particular range of cable television channels but not to specific formatting for those channels. For example, Comcast customers who do not remit the separate “HD Technology Fee” are not able to access the High Definition
channel programming within the “Digital Starter” package. And, Comcast has many
14 See generally Intel Corp. v. Broadcom Corp., 172 F. Supp. 2d 515, 522 (D. Del. 2001); M. Roberts,
Opening the Last Mile to Competition, 4 Va. Sports & Ent. L.J. 309, 336 (2005). 15 See generally Bradley Aff., Attach. E.
16 Id. 17 Bradley Aff., Attach. D. 18 Digital Recording (August 14, 2017); see generally 301 Clifton Place L.L.C. v. 301 Clifton Place Condo.
Ass'n, 783 N.W.2d 551, 565–66 (Minn. Ct. App. 2010).
19 Affidavit of Katherine M. Swenson, Attach. G. 20 Id.
21 Id.
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such subscribers: They do not pay the additional fee; they use a Digital Cable Box that receives only Standard Definition formatted signals; and they watch only the Standard
Definition channels within the “Digital Starter” package.22
Likewise, Comcast has other “Digital Starter” subscribers who remit the technology fee, use a Digital Cable Box that can interpret High Definition signals and access both Standard Definition and High Definition formatted channels.23 Access to
High Definition formatted programs is available to customers as a separately-priced
upgrade to a subscriber’s service and that upgrade applies to the High Definition format channels within the range of the subscriber’s service package.24
On July 27 2017, a few days before both the Side Letter and the Franchise Agreement were scheduled for approval by the NSCC, the NSCC negotiator sent an electronic message to his counterpart at Comcast. The message included what the
NSCC negotiator described as a “clarification” to the Side Letter’s text on complimentary services.25 NSCC maintained that the following text better reflected the parties’ earlier agreement and understandings:
In addition to the complimentary services described in Section 2.10
of the Franchise, Grantee shall, at no cost to the City or the North
Suburban Communications Commission (the Commission), provide Digital Starter or equivalent package of Cable Service and City's choice of Grantee's necessary reception equipment (e.g. a HD digital cable box or
HD digital adapter) to all locations covered in Section 2.10 of the
Franchise and up to seven (7) outlets at the Commission Office and at
each City Hall of each Member City.26
Comcast disagreed that the suggested clarifications reflected the parties’ agreement.27 Comcast maintained that neither the Franchise Agreement nor the Side Letter required provision of more than the single High Definition connection for PEG
programming; and not High Definition television service to each of the connections that
were eligible to receive complimentary service.28 It maintained that the Side Letter obliged only Standard Definition television formats as a complimentary service.29
So as not to imperil the approval process for the Franchise Agreement and Side Letter, the Side Letter was not adjusted further. Instead, the parties agreed to submit this dispute to the Administrative Law Judge for resolution. Thus, on August 3, 2017, the
Franchise Agreement and the unadjusted Side Letter were approved by the NSCC.30
22 See Holmes Decl., at 2-4 and Attach. 4. 23 Id.
24 Id. 25 Holmes Decl., Exhibit 5. 26 Id. (emphasis in original). 27 Holmes Decl., at 3-5. 28 See id. 29 Id.
30 Id.
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The question presented in this proceeding is whether, under the Side Letter, the NSCC and its member cities may choose High Definition television services as a
complimentary service? Because the Administrative Law Judge concludes that High Definition television service is not a “complimentary service” under the Side Letter, Comcast is entitled to partial summary disposition.
Legal Standards for Summary Disposition
Summary disposition is the administrative law equivalent of summary judgment.31
A motion for summary disposition shall be granted when there is no genuine issue regarding any material fact, and the moving party is entitled to judgment as a matter of law.32 The Office of Administrative Hearings follows the summary judgment standards developed in the state district courts when considering motions for summary disposition.
The function of the administrative law judge on a motion for summary disposition,
like a trial court’s function on a motion for summary judgment, is not to decide issues of fact; but rather to determine whether genuine and important factual disputes exist.33 Summary disposition is only proper when there are no fact issues which require a hearing to resolve.34
Because both parties agree as to the wording of Paragraph A of the Side Letter,
and that this paragraph describes Comcast’s obligations to deliver complimentary services, summary disposition is appropriate in this case. The keys facts are not in dispute; the parties simply disagree as to what the law requires in this case.
Analysis
Because High Definition formatted programs are only available to customers as a
separately-priced upgrade to a subscriber’s service, Comcast can, in the phrasing of the Side Letter, “provide Digital Starter or equivalent package of Cable Service and City's choice of Grantee's necessary reception equipment”35 and still not deliver High Definition services. It does so every day. Comcast provides to many Digital Starter
subscribers their choice of either a Digital Cable Box or a Digital Adapter with Standard
Definition television services.
Further, the Administrative Law Judge does not agree that reading the Side Letter in this way renders the City’s choice of reception equipment illusory. If, like other Comcast customers in Minnesota, a municipality wishes to remit the HD Technology Fee, and have its account reflect that it has separately contracted for this service, it may
select a Digital Cable Box or a Digital Adapter that is capable of receiving High Definition television signals. Moreover, if a city does not wish to pay for High Definition
31 Pietsch v. Minnesota Bd. of Chiropractic Exam’rs, 683 N.W.2d 303, 306 (Minn. 2004); see also Minn. R. 1400.5500(K) (2017). 32 See Sauter v. Sauter, 70 N.W.2d 351, 353 (Minn. 1955); Louwagie v. Witco Chemical Corp., 378 N.W.2d 63, 66 (Minn. Ct. App. 1985). 33 See, e.g., DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997). 34 See Sauter, 70 N.W.2d at 353.
35 Id. at Attach. 6.
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television services, it still has meaningful choices when selecting between a Standard Definition Digital Cable Box and a Standard Definition Digital Adapter. A municipality
might not wish to have the added functionality that is provided by a Digital Cable Box at every location that it would station cable television equipment. This is because a Digital Cable Box, but not a Digital Adapter, grants users the ability to place orders for separately-priced on-demand programming with the television’s remote control device.36
The Side Letter does not establish what equipment the cities must select for each
site nor does it require that every member city make the same selection of equipment. The Side Letter thus provides for meaningful choices between types and configurations of cable equipment.
Lastly, NSCC’s argument that the Side Letter must be read against its professed intention to “eliminate any additional charges” related to High Definition television
services,37 is not availing. A very effective way to avoid charges like Comcast’s HD Technology Fee is to receive Standard Definition television services. For that reason, it is not clear that such a declaration would have apprised Comcast’s negotiators that continuing to provide Standard Definition services under the follow-on franchise
agreement was unacceptable or that complimentary High Definition television service
was an essential purpose of the Side Letter.
In such a circumstance, NSCC’s misapprehension about what type of signal formats it would receive on a complimentary basis is a unilateral mistake as to the “attributes, quality or value”38 of the services guaranteed by the Side Letter. When information about promised services is available to both parties to a contract, each party
is equally innocent, and there was no concealment of facts and no imposition, Minnesota law apportions the burdens of any mistake regarding “attributes, quality or value” to the party who made the mistake.39 In this case, the NSCC knew or should have known that High Definition television service is a separately-priced offering that is
not extended to every Digital Starter subscriber. It also should have known that
Comcast’s pledge to provide Digital Starter packages does not, in and of itself, include the separately-priced High Definition television services.40
For all of these reasons, Comcast is entitled to summary disposition.
E. L. L.
36 See Bradley Aff., Attach. E; Swenson Affidavit, Attachs. C, D, E. 37 See, e.g., Anchor Cas. Co. v. Bird Island Produce, Inc., 82 N.W.2d 48, 55 (Minn. 1957) (“The
prohibition of the parol evidence rule is not against the use of extrinsic circumstances for the purpose of interpretation ‘but against making them the instruments of contradiction of an expressed contractual intent.’") (quoting Wilmot v. Minneapolis Auto. Trade Ass'n, 210 N.W. 861, 861 (Minn. 1926)). 38 See N. Star Ctr., Inc. v. Sibley Bowl, Inc., 205 N.W.2d 331, 332–33 (Minn. 1973); Bakke v. Keller, 19 N.W.2d 803, 808–09 (Minn. 1945); Beasley v. Medin, 479 N.W.2d 95, 98 (Minn. Ct. App. 1992). 39 Id.; see also Restatement (2d) of Contracts § 154 (1981).
40 See generally Bradley Aff., Attach. E.
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ORDINANCE NO. 17-02
CITY OF FALCON HEIGHTS
CABLE TELEVISION FRANCHISE ORDINANCE
Date: October 11, 2017
Prepared by:
Michael R. Bradley Bradley Berkland Hagen & Herbst, LLC 1976 Wooddale Drive, Suite 3A Woodbury, MN 55125 Telephone: (651) 379-0900
E-Mail: mike@bradleylawmn.com
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Table of Contents
STATEMENT OF INTENT AND PURPOSE ............................................................................... 1
FINDINGS ................................................................................................................................. 1
SECTION 1. SHORT TITLE AND DEFINITIONS ..................................................................... 2
SECTION 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS................................ 5
SECTION 3. CONSTRUCTION STANDARDS ........................................................................ 10
SECTION 4. DESIGN PROVISIONS ........................................................................................ 12
SECTION 5. SERVICE PROVISIONS ..................................................................................... 14
SECTION 6. ACCESS CHANNEL(S) PROVISIONS ............................................................... 16
SECTION 7. NETWORKING PROVISIONS ............................................................................ 19
SECTION 8. OPERATION AND ADMINISTRATION PROVISIONS ................................... 20
SECTION 9. DISPUTE RESOLUTION ..................................................................................... 23
SECTION 10. SALE, ABANDONMENT, TRANSFER AND REVOCATION OF
FRANCHISE ........................................................................................................ 27
SECTION 11. PROTECTION OF INDIVIDUAL RIGHTS ...................................................... 31
SECTION 12. UNAUTHORIZED CONNECTIONS AND MODIFICATIONS ....................... 31
SECTION 13. MISCELLANEOUS PROVISIONS .................................................................... 31
SECTION 14. PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS ........ 33
Exhibit A – Drops to Designated Buildings ............................................................................... A-1
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Exhibit B – Comcast Enterprise Services Master Services Agreement (MSA) ......................... B-1
Exhibit B2 – First Amendment to Comcast Enterprise Services Master Agreement ............... B2-1
Exhibit B3- Comcast Enterprise Services General Terms and Conditions ............................... B3-1
Exhibit C – Existing Network Facilities ..................................................................................... C-1
Exhibit C – Schedule C-1 – Dark Fiber Connections ....................................................... Sch C-1-1
Exhibit C – Schedule C-2 – PEG Origination Points ....................................................... Sch C-2-1
Exhibit D – March 1, 2012, Settlement Agreement.................................................................... D-1
Exhibit E – Sample Gross Revenues Report................................................................................ E-1
Exhibit F – Performance Bond .................................................................................................... F-1
Exhibit G – Indemnification Agreement..................................................................................... G-1
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ORDINANCE NO._________ AN ORDINANCE GRANTING A FRANCHISE TO COMCAST OF MINNESOTA, INC., D/B/A COMCAST TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE COMMUNICATIONS SYSTEM IN THE CITY OF FALCON HEIGHTS; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR
REGULATION AND USE OF THE SYSTEM AND THE PUBLIC RIGHTS-OF-WAY IN CONJUNCTION WITH THE CITY’S RIGHT-OF-WAY ORDINANCE, IF ANY, AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE PROVISIONS HEREIN; The City Council of the City of Falcon Heights ordains:
STATEMENT OF INTENT AND PURPOSE The City intends, by the adoption of this Franchise, to bring about the further development of a Cable System and the continued operation of it. Such development can contribute significantly
to the communication needs and desires of the residents and citizens of the City and the public generally. Further, the City may achieve better utilization and improvement of public services and enhanced economic development with the development and operation of a Cable Communication System.
Adoption of this Franchise is, in the judgment of the Council, in the best interests of the City and its residents. FINDINGS
In the review of the request and proposal for renewal by Grantee and negotiations related thereto, and as a result of a public hearing, the City Council makes the following findings: 1. The Grantee's technical ability, financial condition, legal qualifications, and character were considered and approved in a full public proceeding after due
notice and a reasonable opportunity to be heard; 2. Grantee's plans for constructing, upgrading, and operating the System were considered and found adequate and feasible in a full public proceeding after due notice and a reasonable opportunity to be heard;
3. The Franchise granted to Grantee by the City complies with the existing applicable Minnesota Statutes, federal laws and regulations; and 4. The Franchise granted to Grantee is nonexclusive.
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SECTION 1. SHORT TITLE AND DEFINITIONS 1. Short Title. This Franchise Ordinance shall be known and cited as the Comcast Cable Franchise Ordinance. 2. Definitions. For the purposes of this Franchise, the following terms, phrases,
words, and their derivations shall have the meaning given herein. When not inconsistent with the context, words in the singular number include the plural number. The word "shall" is always mandatory and not merely directory. The word "may" is directory and discretionary and not mandatory.
a. "Basic Cable Service" shall be defined as set forth in applicable law, which is currently defined in 47 USC § 522(3) as any service tier which includes the retransmission of local television broadcast signals. b. "City" means City of Falcon Heights, a municipal corporation, in the State
of Minnesota, acting by and through its City Council, or its lawfully appointed designee. c. "City Council" means the governing body of the City. d. "Cable Service" or “Service” shall be defined as set forth in applicable
law, which is currently defined in 47 USC § 522(6) as the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
e. "Cable System" or "System" shall be defined as set forth in applicable law, which is currently defined in 47 USC § 522(7) as a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does
not include (A) a facility that serves only to retransmit the television signals of 1 or more television broadcast stations; (B) a facility that serves subscribers without using any public right-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of subchapter II of the Communications Act of 1934, as amended, except that such facility shall be considered a cable system (other than for purposes of
section 541(c) of the Federal Cable Act) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on-demand services; (D) an open video system that complies with section 573 of the Federal Cable Act; or (E) any facilities of any electric utility used solely for operating its electric utility system. This definition shall
incorporate by reference the definition of “cable communications system” in Minnesota
Statutes Section 238.02, Subdivision 3, as the same may be amended from time to time. f. “Commission” means the North Suburban Communications Commission, a municipal Joint Powers Commission.
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g. "Converter" means an electronic device such as a set-top box or digital adapter which converts signals to a frequency acceptable to a television receiver of a Subscriber and by an appropriate selector permits a Subscriber to view all Subscriber signals included in the service.
h. "Drop" means the cable that connects the ground block on the Subscriber's residence or institution to the nearest feeder cable of the System. i. "FCC" means the Federal Communications Commission and any legally appointed, designated or elected agent or successor.
j. "Franchise" or "Cable Franchise" means this ordinance and the regulatory and contractual relationship established hereby. k. "Grantee" or “Comcast” is Comcast of Minnesota, Inc., its lawful
successors, transferees or assignees. l. "Gross Revenues" shall be defined as and shall be construed broadly to include all revenues derived directly or indirectly by Comcast and/or an Affiliate that is a cable operator of the Cable System, from the operation of Comcast’s Cable System to
provide Cable Services within the City (including cash, credits, property or other consideration of any kind or nature). 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 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); installation, reconnection, downgrade, upgrade or similar charges associated with changes in subscriber Cable Service levels; fees paid to Comcast for channels designated for commercial/leased access use; converter, remote control, lockout device and other Cable Service equipment rentals and/or leases or sales;
advertising revenues received or derived by Comcast and/or its Affiliates, including, but not limited to, rep fees, Affiliate fees, rebates and commissions, but excluding unaffiliated agency fees; late fees, convenience fees and administrative fees; revenues from program guides; franchise fees; and commissions from home shopping channels and other revenue sharing arrangements. Gross Revenues subject to franchise fees shall
include revenues derived from sales of advertising that run on Comcast’s Cable System within the City and shall be allocated on a pro rata basis using total Cable Service subscribers reached by the advertising. Additionally, Comcast agrees that Gross Revenues subject to franchise fees shall include all commissions paid to National Cable Communications (“NCC”) and Comcast Spotlight (“Spotlight”) or their successors
associated with sales of advertising on the Cable System within the City allocated
according to this paragraph using total Cable Service subscribers reached by the advertising. Gross revenues shall not include: actual bad debt write-offs, provided, however, that all or part of any such actual bad debt that is written off but subsequently collected shall be included in Gross Revenues in the period collected; and any taxes on
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services furnished by Comcast imposed by any municipality, state or other governmental
unit, provided that franchise fees shall not be regarded as such a tax. i. To the extent revenues are received by Comcast for the provision of a discounted bundle of services which includes Cable Services and non-Cable Services, Comcast shall calculate revenues to be included in Gross Revenues
using a methodology that allocates revenue on a pro rata basis when comparing the bundled service price and its components to the sum of the most recent published rate card rate for the components, except it is expressly understood that equipment may be subject to inclusion in the bundled price at full rate card value. This calculation shall be applied to every bundled service package containing
Cable Service from which Comcast receives or derives revenues in the City, and must be updated within sixty (60) days of the date any rate change for cable and/or non-cable services is implemented for a service package containing Cable Service or the date any rate change is implemented for any service included in a service package that contains Cable Service. The NSCC reserves its right to
review and to challenge Comcast’s calculations. ii. For purposes of this definition, the term “Affiliates” means any person(s) and/or entity(ies) who own or control, are owned or controlled by or are under common ownership or control with Comcast of Minnesota, Inc., but does
not include affiliated entities such as NBCU and Spectacor that are not directly or indirectly involved with the programming, use, management, operation, construction, repair and/or maintenance of Comcast Corporation’s cable systems. iii. Resolution of any disputes over the classification of revenue
should first be attempted by agreement of the Parties, but should no resolution be reached, the Parties agree that reference shall be made to generally accepted accounting principles (“GAAP”) as promulgated and defined by the Financial Accounting Standards Board (“FASB”), Emerging Issues Task Force (“EITF”) and/or the U.S. Securities and Exchange Commission (“SEC”). Notwithstanding
the forgoing, the City and/or the Commission reserves its right to challenge Comcast’s calculation of Gross Revenues, including the use or interpretation of GAAP as promulgated and defined by the FASB, EITF and/or the SEC. m. "Installation" means the connection of the System from feeder cable to the
point of connection with the Subscriber Converter or other terminal equipment. n. "Lockout Device" means an optional mechanical or electrical accessory to a Subscriber's terminal which inhibits the viewing of a certain program, certain channel, or certain channels provided by way of the Cable Communication System.
o. “Memorandum of Understanding” or “MOU” means that certain agreement dated November 3, 1994, regarding PEG access funding, creation of a “PEG Fee” and certain rate regulatory issues.
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p. “North Suburbs Access Corporation” or “NSAC” means that certain non-
profit corporation or its lawful successor, designee, or assignee, which is delegated authority and responsibility for providing certain community programming functions including public access. q. "North Suburban System" means the Cable System located in those
municipalities collectively comprising the North Suburban Communication Commission. r. "Person" is any person, firm, partnership, association, corporation, company, or other legal entity.
s. "Right-of-Way" or "Rights-of-Way" means the area on, below, or above any real property in City in which the City has an interest including, but not limited to any street, road, highway, alley, sidewalk, parkway, park, skyway, or any other place, area, or real property owned by or under the control of City, including other dedicated Rights-of-Way for travel purposes and utility easements.
t. “Right-of-Way Ordinance” means the ordinance codifying requirements regarding regulation, management and use of Rights-of-Way in City, including registration and permitting requirements.
u. "Standard Installation" means any residential installation which can be completed using a Drop of 250 feet or less. v. "Subscriber" means any Person who lawfully receives service via the System. In the case of multiple office buildings or multiple dwelling units, the
"Subscriber" means the lessee, tenant or occupant. SECTION 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS 1. Grant of Franchise.
a. This Franchise is granted pursuant to the terms and conditions contained herein. b. Nothing in this Franchise shall be deemed to waive the lawful
requirements of any generally applicable City ordinance existing as of the Effective Date. c. Each and every term, provision or condition herein is subject to the provisions of state law, federal law, and local ordinances and regulations.
d. This Franchise shall not be interpreted to prevent the City from imposing
additional lawful conditions, including additional compensation conditions for use of the Rights-of-Way, should Grantee provide service other than Cable Service.
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e. No rights shall pass to Grantee by implication. Without limiting the
foregoing, by way of example and not limitation, this Franchise shall not include or be a substitute for: i. Any other permit or authorization required for the privilege of transacting and carrying on a business within the City that may be required by the
ordinances and laws of the City; ii. Any permit, agreement, or authorization required by the City for Right-of-Way users in connection with operations on or in Rights-of-Way or public property including, by way of example and not limitation, street cut
permits; or iii. Any permits or agreements for occupying any other property of the City or private entities to which access is not specifically granted by this Franchise including, without limitation, permits and agreements for
placing devices on poles, in conduits or in or on other structures. f. This Franchise is intended to convey limited rights and interests only as to those Rights-of-Way in which the City has an actual interest. It is not a warranty of title or interest in any Right-of-Way; it does not provide the Grantee with any interest in any
particular location within the Right-of-Way; and it does not confer rights other than as expressly provided in the grant hereof. g. This Franchise does not authorize or prohibit Grantee to provide telecommunications service or other services, or to construct, operate or maintain
telecommunications facilities. This Franchise is not a bar to imposition of any lawful conditions on Grantee with respect to telecommunications, whether similar, different or the same as the conditions specified herein. This Franchise does not relieve Grantee of any obligation it may have to obtain from the City an authorization to provide telecommunications services or other services, or to construct, operate or maintain
telecommunications facilities, or relieve Grantee of its obligation to comply with any such authorizations that may be lawfully required. 2. Grant of Nonexclusive Authority.
The City reserves the right to grant additional franchises or similar authorizations to provide video programming services via Cable Systems or similar wireline systems located in the public Rights-of-Way. It is not the City’s intent to treat competitors in a discriminatory manner and to advantage one competitor over another by regulation. If the City grants such an additional franchise or similar authorization to use the public rights of way to provide such
services and Grantee believes the City has done so on terms materially more favorable than the
Material Obligations (defined below) under this Franchise, then the provisions of this paragraph will apply.
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As part of the Grantee’s franchise, the City has agreed upon the following terms as a
condition of granting the franchise which terms may place the Grantee at a significant competitive disadvantage if not required of a competitor: a 5% franchise fee, PEG funding, PEG channels, and customer service obligations (hereinafter “Material Obligations”). Within one year of the adoption of the competitor’s franchise or similar authorization,
Grantee must notify the City in writing of the Material Obligations in Grantee’s franchise that exceed the Material Obligations of the competitors franchise to similar authorization. The City shall have sixty (60) days to agree to allow Grantee to adopt the same Material Obligations provided to the competitor, or dispute that the Material Obligations are different. In the event the City disputes the Material Obligations are different, Grantee may bring an action in federal or
state court for a determination as to whether the Materials Obligations are different. Nothing in this section is intended to alter the rights or obligations of either party under state law, and it shall only apply to the extent permitted under applicable FCC orders. In no event will the City be required to refund or to offset against future amounts due the value of benefits
already received. This provision does not apply if the City is ordered or required to issue a franchise on different terms and conditions, or it is legally unable to do so; and the relief is contingent on the new franchisee actually commencing provision of service in the market to its first customer. This
provision does not apply to open video systems, nor does it apply to common carrier systems exempted from franchise requirements pursuant to 47 U.S.C. Section 571; or to systems that serve less than 5% (five per cent) of the geographic area of the City; or a system that only provides video services via the public Internet.
3. Lease or Assignment Prohibited. No Person may lease Grantee’s System for the purpose of providing Service until and unless such Person shall have first obtained and shall currently hold a valid Franchise or other lawful authorization containing substantially similar burdens and obligations to this Franchise. Any assignment of rights under this Franchise shall be subject to and in accordance with the requirements of Section 10, Paragraph 5 (Sale or Transfer
of Franchise). 4. Franchise Term. This Franchise shall be in effect for a period of ten (10) years from the date of acceptance by Grantee, unless sooner renewed, revoked or terminated as herein provided.
5. Previous Franchises. Upon acceptance by Grantee as required by Section 13 herein, this Franchise shall supersede and replace any previous Ordinance granting a Franchise to Grantee, as well as the November 3, 1994 Memorandum of Understanding, except as set forth in Section 6, paragraph 8(b) (Access Support) herein.
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6. Compliance with Applicable Laws, Resolutions and Ordinances.
a. The terms of this Franchise shall define the contractual rights and obligations of Grantee with respect to the provision of Cable Service and operation of the System in City. However, the Grantee shall at all times during the term of this Franchise be subject to all lawful exercise of the police power, statutory rights, local ordinance-
making authority, and eminent domain rights of City. Except as provided below, any modification or amendment to this Franchise, or the rights or obligations contained herein, must be within the lawful exercise of City’s police power, in which case the provision(s) modified or amended herein shall be specifically referenced in an ordinance of the City authorizing such amendment or modification. This Franchise may also be
modified or amended with the written consent of Grantee as provided in Section 13.3 (Amendment of Franchise Ordinance) herein. b. Grantee shall comply with the terms of any City ordinance or regulation of general applicability which addresses usage of the Rights-of-Way within City which may
have the effect of superseding, modifying or amending the terms of Section 3 (Construction Standards) and/or Section 8.5(c) (Reports and Maps to be Filed with City) herein, except that Grantee shall not, through application of such City ordinance or regulation of Rights-of-Way, be subject to additional burdens with respect to usage of Rights-of-Way which exceed burdens on similarly situated Rights-of-Way users.
c. In the event of any conflict between Section 3 (Construction Standards) and/or Section 8.5(c) (Reports and Maps to be Filed with City) of this Franchise and any City ordinance or regulation which addresses usage of the Rights-of-Way, the conflicting terms in Section 3 (Construction Standards) and/or Section 8.5(c) (Reports and Maps to
be Filed with City) of this Franchise shall be superseded by such City ordinance or regulation, except that Grantee shall not, through application of such City ordinance or regulation of Rights-of-Way, be subject to additional burdens with respect to usage of Rights-of-Way which exceed burdens on similarly situated Rights-of-Way users.
d. In the event any City ordinance or regulation which addresses usage of the Rights-of-Way adds to, modifies, amends, or otherwise differently addresses issues addressed in Section 3 (Construction Standards) and/or Section 8.5(c) (Reports and Maps to be Filed with City) of this Franchise, Grantee shall comply with such ordinance or regulation of general applicability, regardless of which requirement was first adopted
except that Grantee shall not, through application of such City ordinance or regulation of Rights-of-Way, be subject to additional burdens with respect to usage of Rights-of-Way which exceed burdens on similarly situated Rights-of-Way users. e. In the event Grantee cannot determine how to comply with any Right-of-
Way requirement of City, whether pursuant to this Franchise or other requirement,
Grantee shall immediately provide written notice of such question, including Grantee’s proposed interpretation, to the City with copy to the North Suburban Cable Communications Commission, in accordance with Section 2.9 (Written Notice). The City or Commission shall provide a written response within fourteen (14) days of receipt
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indicating how the requirements cited by Grantee apply. Grantee may proceed in
accordance with its proposed interpretation in the event a written response is not received within seventeen (17) days of mailing or delivering such written question. 7. Rules of Grantee. The Grantee shall have the authority to promulgate such rules, regulations, terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable said Grantee to exercise its rights and perform its obligations under this Franchise and to assure uninterrupted service to each and all of its Subscribers; provided that such rules, regulations, terms and conditions shall not be in conflict with provisions hereto, the rules of the FCC, the laws of the State of Minnesota, City, or any other body having lawful jurisdiction.
8. Territorial Area Involved. This Franchise is granted for the corporate boundaries of City, as it exists from time to time. In the event of annexation by City, or as development occurs, any new territory shall become part of the territory for which this Franchise is granted provided, however, that Grantee shall not be required to extend service beyond its present
System boundaries unless there is a minimum of 50 homes per cable mile for underground plant and 35 homes per cable mile for overhead plant. Access to cable service shall not be denied to any group of potential residential cable Subscribers because of the income of the residents of the area in which such group resides. Grantee shall be given a reasonable period of time to construct and activate cable plant to service annexed or newly developed areas but in no event not to
exceed twelve (12) months from notice thereof by City to Grantee and qualification pursuant to the density requirements of this Subsection. 9. Written Notice. All notices, reports, or demands required to be given in writing under this Franchise shall be deemed to be given when delivered personally to any officer of
Grantee or City's Administrator of this Franchise or forty-eight (48) hours after it is deposited in the United States mail in a sealed envelope, with registered or certified mail postage prepaid thereon, addressed to the party to whom notice is being given, as follows: If to City: City of Falcon Heights
2077 West Larpenteur Avenue Falcon Heights, Minnesota 55113-5594 Attention: City Manager/Administrator With copies to: North Suburban Cable Communications Commission
950 Woodhill Drive Roseville, Minnesota 55113 If to Grantee: General Manager Comcast
10 River Park Plaza
St Paul, Minnesota 55107
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With copies to: Vice President of Government Affairs
Comcast 1701 JFK Boulevard Philadelphia, PA 19103 Such addresses may be changed by either party upon notice to the other party given as provided
in this Section. 10. Subscriber Network Drops to Designated Buildings. Grantee shall, at no cost to the City, continue to provide Digital Starter or equivalent package of Cable Service and reception equipment to up to three (3) outlets at all municipal government buildings, schools and public
libraries located in the City where Grantee provides Cable Service as listed on Exhibit A. The City may request up to 5 additional municipal government buildings, schools, or public libraries during the term of this Agreement, provided that the City shall pay the actual incremental installation costs for any location in excess of 500 feet of Grantee’s existing plant where the recipient makes available conduit or aerial structures to accommodate the new facilities, or any
Drop in excess of two hundred fifty (250) feet. For purposes of this subsection, “school” means all State-accredited K-12 public and private schools. Outlets of Basic and Expanded Basic Service provided in accordance with this subsection may be used to distribute Cable Services throughout such buildings; The City shall have the right to extend service to multiple outlets within the building with the costs of constructing additional outlets the responsibility of the City;
provided such distribution can be accomplished without causing Cable System disruption and general technical standards are maintained. Such outlets may only be used for lawful purposes. If additional devices beyond the allocated amount per location provided above are needed to serve additional outlets, those devices shall be made available at Grantee’s best discounted rate. All inside wiring shall be the responsibility of the City, or public institution, and subject to
service or repair by Comcast at standard rates. Any such institution located more than two hundred fifty (250) feet shall be connected if such institution agrees to reimburse Grantee for Grantee’s actual costs in excess of the two hundred fifty (250) foot installation actual costs. SECTION 3. CONSTRUCTION STANDARDS 1. Registration, Permits and Construction Codes. a. Grantee shall strictly adhere to all state and local laws and building and zoning codes currently or hereafter applicable to location, construction, installation, operation or maintenance of the System in City and give due consideration at all times to
the aesthetics of the property. b. Subject to the requirements of Section 9 (Dispute Resolution) below, failure to obtain permits or comply with permit requirements shall be grounds for revocation of this Franchise if such requirements are violated for significant construction
activities of an extended period of time or in a quantity and frequency so as to
demonstrate a wanton disregard for such requirements, or any lesser sanctions provided herein or in any other applicable law.
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2. Repair of Rights-of-Way and Property. Any and all Rights-of-Way, or public or
private property, which are disturbed or damaged during the construction, repair, replacement, relocation, operation, maintenance, expansion, extension or reconstruction of the System shall be promptly and fully restored by Grantee, at its expense, to the same condition as that prevailing prior to Grantee's work, as determined by City. If Grantee shall fail to timely perform the restoration required herein, after written request of City and reasonable opportunity of not less
than 30 days to satisfy that request, City shall have the right to put the Rights-of-Way, public, or private property back into good condition. In the event City determines that Grantee is responsible for such disturbance or damage, Grantee shall be obligated to fully reimburse City for such restoration. 3. Conditions on Right-of-Way Use. a. Nothing in this Franchise shall be construed to prevent City from constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining, repairing, relocating and/or altering any Right-of-Way; constructing, laying down, repairing, maintaining or relocating any water mains; or constructing, maintaining,
relocating, or repairing any sidewalk or other public work. b. All System transmission and distribution structures, lines and equipment erected by the Grantee within City shall be located so as not to obstruct or interfere with the use of Rights-of-Way except for normal and reasonable obstruction and interference
which might occur during construction and to cause minimum interference with the rights of property owners who abut any of said Rights-of-Way and not to interfere with existing public utility installations. c. If at any time during the period of this Franchise City shall elect to alter or
change the grade or location of any Right-of-Way, the Grantee shall comply with all applicable City Code related to relocation of facilities and associated costs. d. The Grantee shall not place poles, conduits, or other fixtures of System above or below ground where the same will interfere with any gas, electric, telephone,
water or other utility fixtures and all such poles, conduits, or other fixtures placed in any Right-of-Way shall be so placed as to comply with all reasonable and lawful requirements of City. e. The Grantee shall, upon request of any Person holding a moving permit
issued by City, temporarily move its wires or fixtures to permit the moving of buildings with the expense of such temporary removal to be paid by the Person requesting the same, and the Grantee shall be given not less than ten (10) days advance written notice to arrange for such temporary changes.
f. The Grantee shall have the authority to trim any trees upon and
overhanging the Rights-of-Way of City so as to prevent the branches of such trees from coming in contact with the wires and cables or other facilities of the Grantee.
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g. Grantee shall use its best efforts to give reasonable prior notice to any
adjacent private property owners who will be negatively affected or impacted by Grantee’s work in the Rights-of-Way. 4. Undergrounding of Cable. Unless otherwise required by action of City Council, Grantee must place newly constructed facilities underground in areas of City where all other
utility lines are placed underground. Amplifier boxes and pedestal mounted terminal boxes may be placed above ground if existing technology reasonably requires, but shall be of such size and design and shall be so located as not to be unsightly or unsafe, all pursuant to plans submitted with Grantee’s permit application(s) and approved by City.
5. Installation of Facilities. No poles, conduits, amplifier boxes, pedestal mounted terminal boxes, similar structures, or other wire-holding structures shall be erected or installed by the Grantee without required permit of City. 6. Safety Requirements. a. The Grantee shall at all times employ ordinary and reasonable care and
shall install and maintain in use nothing less than commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage or injuries. b. The Grantee shall install and maintain its System and other equipment in accordance with City’s codes and the requirements of the National Electric Safety Code
and all other applicable FCC, state and local regulations, and in such manner that they will not interfere with City communications technology related to health, safety and welfare of the residents. c. All System structures, and lines, equipment and connections in, over,
under and upon the Rights-of-Way of City, wherever situated or located, shall at all times be kept and maintained in good condition, order, and repair so that the same shall not menace or endanger the life or property of City or any Person. SECTION 4. DESIGN PROVISIONS 1. System Capabilities; Minimum Channel Capacity. a. Grantee shall maintain, upgrade, and operate the Cable System consistent with the capabilities of at least a 750MHz cable system and applicable industry standards.
b. All final programming decisions remain the discretion of Grantee but the
Cable System shall generally made available a broad range of programming of interest to the community, provided that Grantee notifies City and Subscribers in writing thirty (30) days prior to any channel deletions or realignments, and further subject to Grantee's signal carriage obligations hereunder and pursuant to 47 USC §§ 531-536, and further
subject to City's rights pursuant to 47 USC § 545. Location and relocation of the PEG
Channels shall be governed by Section 6.1(c) (Public, Educational and Governmental Access).
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2. Interruption of Service. The Grantee shall interrupt service only for good cause and for the shortest time possible. Such interruption shall occur during periods of minimum use of the System. If service is interrupted on all cable channels for a period of more than forty eight (48) hours, Subscribers shall be credited pro rata for such interruption. Outages for shorter time periods may be credited upon customer request following notification of the outage.
3. Technical Standards. The technical standards used in the operation of the System shall comply, at minimum, with the technical standards promulgated by the FCC relating to Cable Systems pursuant to Title 47, Section 76.601 to 76.617, as may be amended or modified from time to time, which regulations are expressly incorporated herein by reference.
4. Special Testing. a. The City/Commission shall have the right to inspect all construction or installation work performed pursuant to the provisions of the Franchise. In addition, the City/Commission 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. The City/Commission 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. The City/Commission 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/Commission 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 a qualified engineer selected by City/Commission and Grantee, and Grantee shall cooperate in such testing. Grantee shall not be required to pay for the special tests where Grantee can show to the City/Commission’s reasonable satisfaction that it performed its own tests and undertook corrective action to remedy the problem.
6. Drop Testing and Replacement. Drops and passive equipment shall be inspected by Grantee during Installations to assure the Drop and passive equipment can provide reliable Cable Service to Subscribers. Drops shall be maintained in compliance with applicable safety and technical regulations and replaced when necessary to do so.
7. FCC Reports. The results of any tests required to be filed by Grantee with the FCC shall upon request of City also be filed with the City or its designee within ten (10) days of the conduct of such tests.
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8. Interconnection. The System servicing the Cities of Arden Hills, Falcon Heights,
Lauderdale, Little Canada, Mounds View, New Brighton, North Oaks, Roseville, and St. Anthony, shall continue to be completely interconnected. 9. Lockout Device. Upon the request of a Subscriber, Grantee shall make available a Lockout Device or similar functionality by software at no additional charge to Subscribers.
SECTION 5. SERVICE PROVISIONS 1. Regulation of Service Rates.
a. The City may regulate rates for the provision of Cable Service, equipment, or any other communications service provided over the System to the extent allowed under federal or state law(s). City/Commission reserves the right to regulate rates for any future services to the extent permitted by law.
b. Grantee shall give City and Subscribers written notice of any change in a rate or charge pursuant to the terms of by 47 CFR § 76.1603. Bills must be clear, concise, and understandable and compliant with applicable law. 2. Non-Standard Installations. Grantee shall install and provide Cable Service to
any Person requesting other than a Standard Installation provided that said Cable Service can meet FCC technical specifications and all payment and policy obligations are met. In such case, Grantee may charge for the incremental increase in material and labor costs incurred beyond the Standard Installation.
3. Sales Procedures. Grantee shall not exercise deceptive sales procedures when marketing any of its services within City. In its initial communication or contact with a non-Subscriber, Grantee shall upon request inform the non-Subscriber of all levels of service available, including the lowest priced service tiers. Grantee shall have the right to market door-to-door during reasonable hours consistent with local ordinances and regulation.
4. Subscriber Inquiry and Complaint Procedures. a. Grantee shall have a publicly listed toll-free telephone number which shall be operated so as to receive Subscriber complaints and requests on a twenty-four (24)
hour-a-day, seven (7) days-a-week, 365 days a year basis. During normal business hours, trained representatives of Grantee shall be available to respond to Subscriber inquiries. b. Grantee shall maintain adequate numbers of telephone lines and personnel to respond in a timely manner to schedule service calls and answer Subscriber complaints
or inquiries in a manner consistent with regulations adopted by the FCC and City where
applicable and lawful. Under normal operating conditions, telephone answer time by a customer representative, including wait time, shall not exceed thirty (30) seconds when the connection is made. If the call needs to be transferred, transfer time shall not exceed thirty (30) seconds. These standards shall be met no less than ninety (90) percent of the
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time under normal operating conditions, measured on a quarterly basis. Under normal
operating conditions, the customer will receive a busy signal less than three (3) percent of the time. Grantee shall respond to written complaints forwarded by the City or its designee with copy to City or its designee within thirty (30) days. c. Subject to Grantee’s obligations pursuant to law regarding privacy of
certain information, Grantee shall prepare and maintain written records of all complaints received from City and the resolution of such complaints, including the date of such resolution. Grantee shall provide City with a written summary of such complaints and their resolution upon request of City. As to Subscriber complaints, Grantee shall comply with FCC record-keeping regulations, and make the results of such record-keeping
available to City upon request, subject to customer privacy obligations. d. Subscriber requests for repairs shall be commenced and best efforts shall be used complete repairs within thirty-six (36) hours of the request or as otherwise scheduled with the customer unless conditions beyond the control of Grantee prevent
such performance. Grantee may schedule appointments for Installations and other service calls either at a specific time or, at a maximum, during a four hour time block during normal business hours. Grantee may also schedule service calls outside normal business hours for the convenience of customers. Grantee shall use its best efforts to not cancel an appointment with a customer after the close of business on the business day
prior to the scheduled appointment. If the installer or technician is late and will not meet the specified appointment time, he/she must use his/her best efforts to contact the customer and reschedule the appointment at the sole convenience of the customer. Service call appointments must be met in a manner consistent with FCC standards.
5. Subscriber Contracts. Grantee shall file with City or provide an electronic link to any standard form Subscriber contract utilized by Grantee. If no such written contract exists, Grantee shall file with the City a document completely and concisely stating the length and terms of the Subscriber contract offered to customers. The length and terms of any Subscriber contract(s) shall be available for public inspection during normal business hours or made
available electronically online. 6. Refund Policy. In the event a Subscriber establishes or terminates service and receives less than a full month's service, Grantee shall prorate the monthly rate on the basis of the number of days in the period for which service was rendered to the number of days in the
billing. 7. Late Fees. Fees for the late payment of bills shall not be assessed until after the service has been fully provided and, as of the due date of the bill notifying Subscriber of an unpaid balance, the bill remains unpaid. Late Fees shall be nondiscriminatory, consistent with
federal and state laws, including consumer protection laws, and uniform with respect to late fees
commonly charged in other jurisdictions in the Twin Cities. 8. Office Policy. Grantee shall maintain a convenient location in or around a reasonable distance of the City or the Franchise territory encompassing any joint regulatory body
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of which City is a Member for receiving Subscriber inquiries and bill payments. The location
must be staffed by a person capable of receiving inquiries and bill payments. In addition, Grantee shall maintain a local drop box for receiving Subscriber payments after hours, or may make arrangements for third-party payment locations (for example, in a convenience store) and equipment drop-off locations (for example, UPS stores). Grantee may also offer electronic customer service options through its web page and phone applications.
SECTION 6. ACCESS CHANNEL(S) PROVISIONS 1. Public, Educational and Government Access.
a. City or its designee is hereby designated to operate, administer, promote, and manage access (public, education, and government programming) (hereinafter “PEG access”) programming on the Cable System. b. Grantee shall dedicate 6 Standard Definition (“SD”) channels and 2 High
Definition (“HD”) channels for PEG access (the “PEG Channels”). All Subscribers to Cable Service offered on the System shall be eligible to receive such channels at no additional charge. The PEG Channels shall be activated upon the effective date of this Franchise and thereafter maintained. City may rename, reprogram, or otherwise change the use of these channels in its sole discretion, provided such use is non-commercial,
lawful, and retains the general purpose of the provision of community programming. Nothing herein shall diminish the City's rights to secure additional channels pursuant to Minn. Stat. § 238.084, which is expressly incorporated herein by reference. City shall provide ninety (90) days prior written notice to Grantee of City's intent to activate access channels to the extent the maximum number agreed to herein are not already active.
c. Each PEG Channel(s) required by this Section shall retain the channel designation/number it had as of the commencement of this Franchise term. Upon six (6) months’ notice to City, any access channel may be moved by Grantee, but in no event more than once every two (2) years unless otherwise allowed by City, provided Grantee
pays all reasonable costs or expenses of the North Suburban Access Corporation (NSAC), or its successor, arising out of the channel move including, but not limited to, equipment necessary to effect the change at the programmer’s production or receiving facility (school frequency routing equipment, etc.), signage, letterhead, business cards, and reasonable marketing or other constituency notification costs up to a maximum of
$10,000. This paragraph shall not apply to Regional Channel 6. d. Sixty (60) months after the Effective Date, upon written request of at least 90 days’ advance notice, Comcast will make available to the Commission an additional HD PEG channel on the cable system.
e. The content of the HD PEG channels is up to the Commission. The Commission may simulcast one or more of the existing PEG channels in HD and SD formats, or it may choose to provide subscribers an HD channel that is programmed differently than the existing SD PEG channels (for example, the Commission could
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create a “best of” HD PEG channel that carries a combination of HD public, educational
and government programming from the existing PEG Channels). If an HD PEG channel is programmed differently, Comcast would have no additional obligation to provide an SD simulcast of that channel. f. Comcast will make available to the Commission the ability to place PEG
Channel programming information on the interactive channel guide by putting the Commission in contact with the electronic programing guide vendor (“EPG provider”) that provides the guide service. Comcast will be responsible for providing the designations and instructions necessary to ensure the channels will appear on the programming guide throughout the jurisdictions that are part of the Commission and the
costs of any necessary headend equipment associated therewith. The Commission shall be responsible for providing programming information to the EPG provider and for any costs charged by the EPG provider, unless Comcast is required to pay for PEG EPG costs per applicable law or national commitments. As part of this Franchise, Comcast is not agreeing to make detailed guide functionality available for periods where the
Commission chooses to distribute different PEG programming via the same channel number (i.e. narrowcasting) to subscribers in different communities that are part of the Commission. g. Comcast will deliver the SD/HD PEG channels to Subscribers so that it is
viewable without degradation, provided that it is not required to deliver a PEG Channel at a resolution higher than the highest resolution used in connection with the delivery of local broadcast signals to the public. Comcast may implement SD/HD carriage of the PEG channel in any manner (including selection of compression, utilization of IP, and other processing characteristics) that produces a signal as accessible, functional, useable
and of a quality comparable (meaning indistinguishable to the viewer) to broadcast SD/HD channels carried on the cable system. h. The HD PEG channels will be assigned a number near the other high definition local broadcast stations if such channel positions are not already taken, or if
that is not possible, near high definition news/public affairs programming channels if such channel positions are not already taken, or if not possible, as reasonably close as available channel numbering will allow. Grantee shall use its best efforts to group the HD PEG channels together in simultaneous order.
i. The City acknowledges that HD programming may require the viewer to have special viewer equipment (such as an HDTV and an HD-capable digital device/receiver), but any subscriber who can view an HD signal delivered via the cable system at a receiver shall also be able to view the HD PEG channels at that receiver, without additional charges or equipment. By agreeing to make PEG available in HD
format, Comcast is not agreeing it may be required to provide free HD equipment to
customers, nor modify its equipment or pricing policies in any manner. j. Comcast will provide a bill message announcing the launch of the HD PEG Channels; however the City acknowledges that not all customers may receive the
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bill message notice in advance of the channel launch in the interests of launching the
channel sooner. 2. Remote Cablecasting. Grantee shall provide at no charge to the City/Commission for the term of this Franchise and until it renews, three (3) “open” cable internet modems with a static IP addresses that can be connected and operational anywhere on the System and capable of
transmitting live remote HD PEG programming to the City’s master control center for live cablecasting, using business-class internet service (currently 50 mbs download and 10 mbs upload) and three MPEG encoder/transmitters and one multi-channel receiver device (capable of receiving at least 3 remote video feeds) for the Commission’s Master Control.
3. PEG Streaming. Grantee agrees to include the PEG channels in its in-home streaming cable service application (currently Xfinity TV App). Grantee will use reasonable efforts to make the PEG channels available to Subscribers outside the home on its TV-TO-GO Application, or equivalent.
4. Equipment. 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 or Commission to obtain new equipment in order to be compatible with such change for purposes of transport and delivery of the Access Channels to the Grantee’s headend, Grantee shall, at its own expense and free of charge to the City, the Commission, or its designated entities, purchase
such equipment as may be necessary to facilitate the cablecasting of the PEG Channels in accordance with the requirements of the Franchise. 5. Grantee Not Liable. Neither the Grantee nor the officers, directors, or employees of the Grantee is liable for any penalties or damages arising from programming content not
originating from or produced by the Grantee and shown on any public access channel, education access channel, government access channel, leased access channel, or regional channel. 6. Charges for Use. There shall be no charge to the City for the use of the PEG Channels.
7. Access Rules. City, or its designee, shall implement rules for use of any access channel(s). 8. Access Support.
a. In addition to satisfying the other requirements of this Section, the Grantee is required to provide the following additional PEG use funding (as used in this Section), PEG access refers to the channels, facilities and equipment used in connection with the channels on the subscriber network and associated interconnections; PEG use includes
PEG access and dark fiber network and PRISMA network use, including use in
connection with the network provided pursuant to Section 7.2 (Additional Network Services) including Exhibit C:
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b. The Grantee will provide the following capital grant for PEG use for so
long as it continues to operate under this franchise: Payments of all grants under the 1994 MOU through December 31, 2017; commencing January 1, 2018, Grantee shall pay to City three percent (3.0%) of its Gross Revenues paid quarterly based upon revenues for the calendar quarter. The first Gross Revenue payment shall be due on May 1, 2018, based on Gross Revenues for the quarter beginning January 1, 2018 and ending March
31, 2018, and thereafter, payments shall be due 30 days after the end of each calendar quarter, based on revenues for that quarter, or if the franchise should terminate or be revoked, 30 days after termination or revocation for any portion of quarter during which Grantee provided Cable Service.
c. Notwithstanding the foregoing requirements, if Grantee has a valid and binding sponsorship contract with an entity designated by the City/Commission to manage any public access channel, the City agrees that Grantee may offset any amount it pays under such contract against payments required above. Nothing in this section requires or shall be deemed to require Grantee to make any payment that constitutes a
franchise fee under 47 U.S.C. § 542. d. The parties agree that any cost to the Grantee associated with providing any support for PEG use required under this Franchise (including subscriber network drops and equipment and service to public institutions and the provision of the dark fiber
network and PRISMA network and support for and payments made outside this franchise, if any), shall not be offset from the franchise fee. e. Grantee may itemize the PEG fees on Subscribers’ invoices in accordance with applicable law; provided, however, any PEG Fee charged to subscribers to recover
PEG funding provided in 2017 shall not exceed $6.00 per subscriber per month. Any supplementary PEG fee levied by Comcast after January 1, 2018, to recover past undercollections shall be set at 0.5% of cable Gross Revenues through December 31, 2019. Any excess recovery shall be paid to the Commission at the same time as the Franchise Fee payment.
9. Regional Channel 6. Grantee shall designate Channel 6 for uniform regional channel usage to the extent required by law. 10. State and Federal Law compliance. Satisfaction of the requirements of this
Section 6 satisfies any and all of Grantee’s state and federal law requirements of Grantee with respect to PEG access. SECTION 7. NETWORKING PROVISIONS
1. Managed Network. The City and/or Commission has a need for a telecommunications
network to connect certain government buildings in the North Suburban Territory for telecommunications services. Comcast or its Affiliate agrees to provide, operate, repair and maintain a managed telecommunications network to City and/or Commission for the Term of the Franchise in accordance with an executed Enterprise Services agreement, attached as Exhibits B,
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B2, and B3. The Enterprise Services agreement shall set forth the locations, service, monthly
fees for service and all other material terms and conditions relative to Comcast’s or its Affiliate’s provision of services to the City. Where an executed Enterprise Services agreement conflicts with any term or condition of this Section, the Enterprise Services agreement shall prevail; with the exception that in the event Grantee enters into a franchise or Enterprise Services agreement or similar agreement in the Twin Cities metropolitan area after the Effective Date of this
Franchise that allow a city or group of cities to receive the same or similar services on terms, conditions and/or pricing that are more favorable (taking into account the agreement as a whole), Grantee agrees to make the pricing available immediately and make available the services within a reasonable period of time to the City and/or Commission under the same terms, conditions and/or pricing made available to the city or group of cities.
2. Additional Network Services. Comcast agrees to continue to make available to the City network facilities on the terms and conditions identified in Exhibit C. SECTION 8. OPERATION AND ADMINISTRATION PROVISIONS 1. Administration of Franchise. The City Administrator or other designee shall have continuing regulatory jurisdiction and supervision over the System and the Grantee's operation under the Franchise. The City, or its designee, may issue such reasonable rules and regulations concerning the construction, operation and maintenance of the System as are consistent with the
provisions of the Franchise and law. 2. Delegated Authority. The City may appoint a citizen advisory body or a Joint Powers Commission, or may delegate to any other body or Person authority to administer the Franchise and to monitor the performance of the Grantee pursuant to the Franchise. Grantee
shall cooperate with any such delegatee of City. 3. Franchise Fee. a. During the term of the Franchise, Grantee shall pay quarterly to City or its
delegatee a Franchise Fee in an amount equal to five percent (5%) of its quarterly Gross Revenues, or such other amounts as are subsequently permitted by federal statute. b. Any payments due under this provision shall be payable quarterly. The payment shall be made within thirty (30) days of the end of each of Grantee's fiscal
quarters together with a report showing the basis for the computation. c. All amounts paid shall be subject to audit and recomputation by City and acceptance of any payment shall not be construed as an accord that the amount paid is in fact the correct amount.
i. If an audit or review discloses an overpayment or underpayment of franchise fees, the City and/or the Commission shall notify Comcast of such overpayment or underpayment. The City’s/Commission’s audit or review expenses shall be borne by the City/Commission unless the audit
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or review determines that the payment to the City should be increased by
more than five percent (5%) in the audited/reviewed period, in which case the costs of the audit/review shall be borne by Comcast, up to a cap of $25,000 for all current members of the Commission collectively, as a cost incidental to the enforcement of the Franchise. Any additional amounts due to the City as a result of the audit or review shall be paid to the City
within thirty (30) days following written notice to Comcast by the City/Commission of the underpayment, which notice shall include a copy of the audit/review report. If the recomputation results in additional revenue to be paid to the City, such amount shall be subject to a ten percent (10%) annual interest charge.
ii. The City/Commission shall have the right to inspect and to require Comcast to provide any and all data, documents and records maintained by Comcast (or maintained by an Affiliate or a third-party contractor/vendor on behalf of Comcast) reasonably related to the
calculation and payment of franchise fees. The Grantee shall maintain such records, documents and data for a minimum of four (4) years. Such records include, but are not limited to, those set forth in Paragraph 6 of the March 1, 2012, Settlement Agreement (attached hereto as Exhibit D).
iii. Comcast shall have no less than twenty (20) business days to respond fully and completely to any written request for data, documents and records issued by the City/Commission, unless an extension of time is granted by the City/Commission in writing. Comcast may request an extension of the twenty (20) business day deadline applicable to a written request for data,
information and documents no later than ten (10) business days after the date of such request. Every request for an extension of time shall describe, in detail, the reasons the extension is necessary. The City/Commission may, in its sole discretion, grant or deny an extension request, and shall act reasonably in making such a determination based on
the scope and complexity of the information request at issue and the facts cited by Comcast in its written extension request. iv. In the event any franchise fee payment or recomputation amount is not made on or before the required date, Comcast shall pay, during the period
such unpaid amount is owed, the additional compensation and interest charges computed from such due date, at an annual rate of ten percent (10%). v. Nothing in this Franchise shall be construed to limit any authority of the
City to impose any tax, fee or assessment of general applicability.
vi. The franchise fee payments required by this Franchise shall be in addition to any and all taxes or fees of general applicability. Comcast shall not have or make any claim for any deduction or other credit of all or any part
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of the amount of said franchise fee payments from or against any of said
taxes or fees of general applicability, except as expressly permitted by law. Comcast shall not apply nor seek to apply all or any part of the amount of said franchise fee payments as a deduction or other credit from or against any of said taxes or fees of general applicability, except as expressly permitted by law. Nor shall Comcast apply or seek to apply all
or any part of the amount of any of said taxes or fees of general applicability as a deduction or other credit from or against any of its franchise fee obligations, except as expressly permitted by law. vii. Comcast shall ensure that persons or entities that only subscribe to non-
cable service (e.g., persons who subscribe only to high-speed Internet access, telephone service, alarm monitoring, or a combination of services that does not include cable service) are not assessed cable service franchise fees on ancillary charges imposed by Comcast on such subscribers, including but not limited to late fees, convenience fees and
non-sufficient funds (NSF) charges, unless the imposition of cable service franchise fees is permitted by applicable laws or regulations. 4. Access to Records. The City/Commission shall have the right to inspect, upon reasonable notice and during normal business hours, or require Grantee to provide within a
reasonable time copies of any records maintained by Grantee which relate to System operations including specifically Grantee’s accounting and financial records and which are reasonably necessary for determining compliance with this Agreement. 5. Reports and Maps to be Filed with City.
a. Grantee shall file with the City/Commission, at the time or payment of the Franchise Fee, a report of all Gross Revenues in form and substance as required by City/Commission, an example of which is attached hereto as Exhibit E.
b. Grantee shall prepare and furnish to City/Commission, at the times and in the form prescribed, such other reasonable reports with respect to Grantee’s operations pursuant to this Franchise as City/Commission may require provided that such reports shall be consistent with the way Grantee maintains the information in the ordinary course of business, all requests are reasonably and directly related to the enforcement of this
Agreement, all produced information is subject to an acceptable confidentiality agreement, and Grantee shall have no less than 20 business days to produce such information with further extensions reasonably granted as needed based on the nature of the request.
c. If required by City/Commission, Grantee shall furnish to and file with
City/Commission the maps, plats, and permanent records of the location and character of all facilities constructed, including underground facilities, and Grantee shall file with City/Commission updates of such maps, plats and permanent records annually if changes have been made in the System.
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6. Periodic Evaluation. a. The City/Commission may require evaluation sessions at any time during the term of this Franchise, upon fifteen (15) days written notice to Grantee, but no frequently than one every twenty-four (24) months.
b. Topics which may be discussed at any evaluation session may include, but are not limited to, application of new technologies, System performance, programming offered, access channels, facilities and support, municipal uses of cable, subscriber rates, customer complaints, amendments to this Franchise, judicial rulings, FCC rulings, line
extension policies and any other topics City/Commission deems relevant. c. As a result of a periodic review or evaluation session, Grantee and the City may agree to modifications of the terms and conditions of the Franchise.
SECTION 9. DISPUTE RESOLUTION 1. Performance Bond. a. At the time the Franchise becomes effective and at all times thereafter,
until the Grantee has liquidated all of its obligations with City, the Grantee shall furnish a bond to City in the amount of $500,000.00 in a form and with such sureties as reasonably acceptable to City (attached hereto as Exhibit F). This bond will be conditioned upon the faithful performance by the Grantee of its Franchise obligations and upon the further condition that in the event the Grantee shall fail to comply with any law, ordinance or
regulation governing the Franchise, there shall be recoverable jointly and severally from the principal and surety of the bond any damages or loss suffered by City as a result, including the full amount of any compensation, indemnification or cost of removal or abandonment of any property of the Grantee, plus a reasonable allowance for attorneys' fees and costs, up to the full amount of the bond, and further guaranteeing payment by the
Grantee of claims, liens and taxes due City which arise by reason of the construction, operation, or maintenance of the System. The rights reserved by City with respect to the bond are in addition to all other rights City may have under the Franchise or any other law. City may, from year to year, in its sole discretion, reduce the amount of the bond. To the extent the City is a member of the Commission a single bond of $500,000 will
cover all member cities of the Commission. b. The time for Grantee to correct any violation or liability, shall be extended by City if the necessary action to correct such violation or liability is, in the sole determination of City, of such a nature or character as to require more than thirty (30)
days within which to perform, provided Grantee provides written notice that it requires
more than thirty (30) days to correct such violations or liability, commences the corrective action within the thirty (30) days period and thereafter uses reasonable diligence to correct the violation or liability.
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c. In the event this Franchise is revoked by reason of default of Grantee, City
shall be entitled to collect from the performance bond that amount which is attributable to any damages sustained by City as a result of said default or revocation. d. Grantee shall be entitled to the cancellation or return of the performance bond, or portion thereof, as remains sixty (60) days after the expiration of the term of the
Franchise or revocation for default thereof, provided City has not notified Grantee of any actual or potential damages incurred as a result of Grantee’s operations pursuant to the Franchise or as a result of said default. e. The rights reserved to City with respect to the performance bond are in
addition to all other rights of City whether reserved by this Franchise or authorized by law, and no action, proceeding or exercise of a right with respect to the performance bond shall affect any other right City may have. 2. Letter of Credit and Liquidated Damages.
a. At the time of acceptance of this Franchise, Grantee shall deliver to City an irrevocable and unconditional Letter of Credit, in form and substance acceptable to City, from a National or State bank approved by City, in the amount of $25,000.00.
b. The Letter of Credit shall provide that funds will be paid to City, upon written demand of City, and in an amount solely determined by City in payment for penalties charged pursuant to this Section, in payment for any monies owed by Grantee to City or any person pursuant to its obligations under this Franchise, or in payment for any damage incurred by City or any person as a result of any acts or omissions by Grantee
pursuant to this Franchise. c. In addition to recovery of any monies owed by Grantee to City or any person or damages to City or any person as a result of any acts or omissions by Grantee pursuant to the Franchise, City in its sole discretion may charge to and collect from the
Letter of Credit the following penalties: i. For failure to provide data, documents, reports or information or to cooperate with City during an application process or system review or as otherwise provided herein, the penalty shall be $250.00 per day for each
day, or part thereof, such failure occurs or continues. ii. Fifteen (15) days following notice from City of a failure of Grantee to comply with construction, operation or maintenance standards, the penalty shall be $500.00 per day for each day, or part thereof, such failure occurs
or continues.
iii. For failure to provide the services Grantee has proposed, including, but not limited to, the implementation and the utilization of the access channels and the maintenance and/or replacement of the equipment and
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other facilities, the penalty shall be $500.00 per day for each day, or part
thereof, such failure occurs or continues. iv. For Grantee’s breach of any written contract or agreement with or to the City or its designee, the penalty shall be $500.00 per day for each day, or part thereof, such breach occurs or continues.
v. For failure to comply with any of the provisions of this Franchise, or other City ordinance for which a penalty is not otherwise specifically provided pursuant to this paragraph c, the penalty shall be $250.00 per day for each day, or part thereof, such failure occurs or continues.
d. Each violation of any provision of this Franchise shall be considered a separate violation for which a separate penalty can be imposed. e. Whenever City finds that Grantee has violated one or more terms,
conditions or provisions of this Franchise, or for any other violation contemplated in Subparagraph c. above, a written notice shall be given to Grantee informing it of such violation. At any time after thirty (30) days (or such longer reasonable time which, in the sole determination of City, is necessary to cure the alleged violation) following local receipt of notice, provided Grantee remains in violation of one or more terms, conditions
or provisions of this Franchise, in the sole opinion of City, City may draw from the Letter of Credit all penalties and other monies due City from the date of the local receipt of notice. f. Whenever the Letter of Credit is drawn upon, Grantee may, within seven
(7) days of such draw, notify City in writing that there is a dispute as to whether a violation or failure has in fact occurred. Such written notice by Grantee to City shall specify with particularity the matters disputed by Grantee. All penalties shall continue to accrue and City may continue to draw from the Letter of Credit during any appeal pursuant to this subparagraph.
i. City shall hear Grantee's dispute within sixty (60) days and render a final decision within sixty (60) days thereafter. ii. Upon the determination of City that no violation has taken place, City
shall refund to Grantee, without interest, all monies drawn from the Letter of Credit by reason of the alleged violation. g. If said Letter of Credit or any subsequent Letter of Credit delivered pursuant thereto expires prior to thirty (30) months after the expiration of the term of this
Franchise, it shall be renewed or replaced during the term of this Franchise to provide
that it will not expire earlier than thirty (30) months after the expiration of this Franchise. The renewed or replaced Letter of Credit shall be of the same form and with a bank authorized herein and for the full amount stated in paragraph 2(a) of this Section.
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h. If City draws upon the Letter of Credit or any subsequent Letter of Credit
delivered pursuant hereto, in whole or in part, Grantee shall replace or replenish to its full amount the same within ten (10) days and shall deliver to City a like replacement Letter of Credit or certification of replenishment for the full amount stated in Section 9.2(a) (Letter of Credit and Liquidated Damages) as a substitution of the previous Letter of Credit. This shall be a continuing obligation for any draws upon the Letter of Credit.
i. If any Letter of Credit is not so replaced or replenished, City may draw on said Letter of Credit for the whole amount thereof and use the proceeds as City determines in its sole discretion. The failure to replace or replenish any Letter of Credit may also, at the option of the City, be deemed a default by Grantee under this Franchise.
The drawing on the Letter of Credit by City, and use of the money so obtained for payment or performance of the obligations, duties and responsibilities of Grantee which are in default, shall not be a waiver or release of such default. j. The collection by City of any damages, monies or penalties from the
Letter of Credit shall not affect any other right or remedy available to City, nor shall any act, or failure to act, by City pursuant to the Letter of Credit, be deemed a waiver of any right of City pursuant to this Franchise or otherwise. 3. Indemnification of City.
a. City, its officers, boards, committees, commissions, elected officials, employees and agents shall not be liable for any loss or damage to any real or personal property of any Person, or for any injury to or death of any Person, arising out of or in connection with Grantee’s construction, operation, maintenance, repair or removal of the
System or as to any other action of Grantee with respect to this Franchise. b. Grantee shall indemnify, defend, and hold harmless City, its officers, boards, committees, commissions, elected officials, employees and agents, from and against all liability, damages, and penalties which they may legally be required to pay as
a result of the City’s exercise, administration, or enforcement of the Franchise. c. Nothing in this Franchise relieves a Person, except City, from liability arising out of the failure to exercise reasonable care to avoid injuring the Grantee's facilities while performing work connected with grading, regarding, or changing the line
of a Right-of-Way or public place or with the construction or reconstruction of a sewer or water system. d. Grantee shall contemporaneously with this Franchise execute an Indemnity Agreement in the form of Exhibit G, which shall indemnify, defend and hold
the City and Commission harmless for any claim for injury, damage, loss, liability, cost
or expense, including court and appeal costs and reasonable attorneys’ fees or reasonable expenses arising out of the actions of the City and/or Commission in renewal of this Franchise. The term of the Indemnity Agreement shall not exceed 180 days’ from the Effective Date of this Franchise, unless the City or Commission has received statutory
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notice of a claim based upon the renewal of this Franchise. This obligation includes any
claims by another franchised cable operator against the City and/or Commission that the terms and conditions of this Franchise are less burdensome than another franchise granted by the City or that this Franchise does not satisfy the requirements of applicable state law(s).
4. Insurance. a. As a part of the indemnification provided in Section 9.3 (Indemnification of City), but without limiting the foregoing, Grantee shall file with City at the time of its acceptance of this Franchise, and at all times thereafter maintain in full force and effect at
its sole expense, a comprehensive general liability insurance policy, including broadcaster’s/cablecaster’s liability and contractual liability coverage, in protection of the Grantee, and the City, its officers, elected officials, boards, commissions, agents and employees for any and all damages and penalties which may arise as a result of this Franchise. The policy or policies shall name the City as an additional insured, and in
their capacity as such, City officers, elected officials, boards, commissions, agents and employees. b. The policies of insurance shall be in the sum of not less than $1,000,000.00 for personal injury or death of any one Person, and $2,000,000.00 for
personal injury or death of two or more Persons in any one occurrence, $500,000.00 for property damage to any one person and $2,000,000.00 for property damage resulting from any one act or occurrence. c. The policy or policies of insurance shall be maintained by Grantee in full
force and effect during the entire term of the Franchise. Each policy of insurance shall contain a statement on its face that the insurer will not cancel the policy or fail to renew the policy, whether for nonpayment of premium, or otherwise, and whether at the request of Grantee or for other reasons, except after sixty (60) days advance written notice have been provided to City.
SECTION 10. SALE, ABANDONMENT, TRANSFER AND REVOCATION OF FRANCHISE 1. City's Right to Revoke.
a. In addition to all other rights which City has pursuant to law or equity, City reserves the right to commence proceedings to revoke, terminate or cancel this Franchise, and all rights and privileges pertaining thereto, if it is determined by City that:
i. Grantee has violated material provisions(s) of this Franchise; or
ii. Grantee has practiced fraud or deceit upon City.
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City may enforce its rights and seek any and all relief allowed under applicable law if Grantee is
adjudged a bankrupt. 2. Procedures for Revocation. a. City shall provide Grantee with written notice of a cause for revocation
and the intent to revoke and shall allow Grantee thirty (30) days subsequent to receipt of the notice in which to correct the violation or to provide adequate assurance of performance in compliance with the Franchise. In the notice required herein, City shall provide Grantee with the basis of the revocation.
b. Grantee shall be provided the right to a public hearing affording due process before the City Council prior to the effective date of revocation, which public hearing shall follow the thirty (30) day notice provided in subparagraph (a) above. City shall provide Grantee with written notice of its decision together with written findings of fact supplementing said decision.
c. Only after the public hearing and upon written notice of the determination by City to revoke the Franchise may Grantee appeal said decision with an appropriate state or federal court or agency.
d. During the appeal period, the Franchise shall remain in full force and effect unless the term thereof sooner expires or unless continuation of the Franchise would endanger the health, safety and welfare of any person or the public. 3. Abandonment of Service. Grantee may not abandon the System or any portion
thereof without having first given three (3) months written notice to City. Grantee may not abandon the System or any portion thereof without compensating City for damages resulting from the abandonment, including all costs incident to removal of the System. 4. Removal After Abandonment, Termination or Forfeiture.
a. In the event of termination or forfeiture of the Franchise or abandonment of the System, City shall have the right to require Grantee to remove all or any portion of the System from all Rights-of-Way and public property within City, unless Grantee is offering other services (such as telecommunication services) over the System and has or
obtains the necessary authorizations to occupy the rights-of-way for such purposes. b. If Grantee is not providing other lawful services over the System with the necessary authorizations and 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 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 System to be in City with
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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. 5. Sale or Transfer of Franchise. a. No sale or transfer of the Franchise, or sale, transfer, or fundamental
corporate change of or in Grantee, including, but not limited to, a fundamental corporate change in Grantee’s parent corporation or any entity having a controlling interest in Grantee, the sale of a controlling interest in the Grantee’s assets, a merger including the merger of a subsidiary and parent entity, consolidation, or the creation of a subsidiary or affiliate entity, shall take place until a written request has been filed with City requesting
approval of the sale, transfer, or corporate change and such approval has been granted or deemed granted, provided, however, that said approval shall not be required where Grantee grants a security interest in its Franchise and/or assets to secure an indebtedness. The foregoing notwithstanding, Grantee must seek approval of any transaction constituting a transfer under state law.
b. Any sale, transfer, exchange or assignment of stock in Grantee, or Grantee’s parent corporation or any other entity having a controlling interest in Grantee, so as to create a new controlling interest therein, shall be subject to the requirements of this Section 10.5. The term "controlling interest" as used herein is not limited to majority
stock ownership, but includes actual working control in whatever manner exercised. In any event, as used herein, a new “controlling interest” shall be deemed to be created upon the acquisition through any transaction or group of transactions of a legal or beneficial interest of fifteen percent (15%) or more by one Person. Acquisition by one Person of an interest of five percent (5%) or more in a single transaction shall require notice to City.
This requirement shall not apply to transactions involving the acquisition of a non-Cable Service business, movie studio, or other such business venture by Grantee’s parent company). c. The Grantee shall file, in addition to all documents, forms and information
required to be filed by applicable law, the following subject to reasonable confidentiality agreements, if necessary: i. All contracts, agreements or other documents that constitute the proposed transaction and all exhibits, attachments, or other documents referred to
therein which are necessary in order to understand the terms thereof. ii. A list detailing all public documents filed with any state or federal agency related to the transaction including, but not limited to, the MPUC, the FCC, the FTC, the FEC, the SEC or MnDOT. Upon request, Grantee shall
provide City with a complete copy of any such document; and
iii. Any other documents or information related to the transaction as may be specifically requested by the City which are necessary in order to understand the terms thereof.
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d. City shall have such time as is permitted by federal law in which to review a transfer request. e. The Grantee shall reimburse City for all the legal, administrative, and consulting costs and fees associated with the City’s review of any request to transfer.
Nothing herein shall prevent Grantee from negotiating partial or complete payment of such costs and fees by the transferee. Grantee may not itemize any such reimbursement on Subscriber bills, but may recover such expenses in its subscriber rates. f. In no event shall a sale, transfer, corporate change, or assignment of
ownership or control pursuant to subparagraph (a) or (b) of this Section be approved without the transferee becoming a signatory to this Franchise and assuming all rights and obligations thereunder, and assuming all other rights and obligations of the transferor to the City including, but not limited to, any adequate guarantees or other security instruments provided by the transferor.
g. In the event of any proposed sale, transfer, corporate change, or assignment pursuant to subparagraph (a) or (b) of this Section, City shall have the right to purchase the System for the value of the consideration proposed in such transaction. City’s right to purchase shall arise upon City’s receipt of notice of the material terms of
an offer or proposal for sale, transfer, corporate change, or assignment, which Grantee has accepted. Notice of such offer or proposal must be conveyed to City in writing and separate from any general announcement of the transaction. h. City shall be deemed to have waived its right to purchase the System
pursuant to this Section only in the following circumstances: i. If City does not indicate to Grantee in writing, within sixty (60) days of receipt of written notice of a proposed sale, transfer, corporate change, or assignment as contemplated in Section 10.5 (g) above, its intention to
exercise its right of purchase; or ii. It approves the assignment or sale of the Franchise as provided within this Section.
i. No Franchise may be transferred if City determines Grantee is in noncompliance of the Franchise unless an acceptable compliance program has been approved by City. The approval of any transfer of ownership pursuant to this Section shall not be deemed to waive any rights of City to subsequently enforce noncompliance issues relating to this Franchise even if such issues predated the approval, whether known
or unknown to City.
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SECTION 11. PROTECTION OF INDIVIDUAL RIGHTS 1. Discriminatory Practices Prohibited. Grantee shall not deny service, deny access, or otherwise discriminate against Subscribers (or group of potential subscribers) or general citizens on the basis of race, color, religion, national origin, sex, age, status as to public assistance, affectional preference, or disability. Grantee shall comply at all times with all other
applicable federal, state, and city laws, and all executive and administrative orders relating to nondiscrimination. 2. Subscriber Privacy. Grantee shall comply with all customer privacy obligations under applicable law.
SECTION 12. UNAUTHORIZED CONNECTIONS AND MODIFICATIONS 1. Unauthorized Connections or Modifications Prohibited. It shall be unlawful for any firm, Person, group, company, corporation, or governmental body or agency, without the
express consent of the Grantee, to make or possess, or assist anybody in making or possessing, any unauthorized connection, extension, or division, whether physically, acoustically, inductively, electronically or otherwise, with or to any segment of the System or receive services of the System without Grantee’s authorization.
2. Removal or Destruction Prohibited. It shall be unlawful for any firm, Person, group, company, or corporation to willfully interfere, tamper, remove, obstruct, or damage, or assist thereof, any part or segment of the System for any purpose whatsoever, except for any rights City may have pursuant to this Franchise or its police powers.
3. Penalty. Any firm, Person, group, company, or corporation found guilty of violating this section may be fined not less than Twenty Dollars ($20.00) and the costs of the action nor more than Five Hundred Dollars ($500.00) and the costs of the action for each and every subsequent offense. Each continuing day of the violation shall be considered a separate occurrence.
SECTION 13. MISCELLANEOUS PROVISIONS 1. Franchise Renewal. Any renewal of this Franchise shall be performed in accordance with applicable federal, state and local laws and regulations.
2. Work Performed by Others. All applicable obligations of this Franchise shall apply to any subcontractor or others performing any work or services pursuant to the provisions of this Franchise, however, in no event shall any such subcontractor or other performing work obtain any rights to maintain and operate a System or provide Cable Service. Grantee shall
provide notice to City of the name(s) and address(es) of any entity, other than Grantee, which
performs substantial services in the City pursuant to this Franchise. 3. Amendment of Franchise Ordinance. Grantee and City may agree, from time to time, to amend this Franchise. Such written amendments may be made subsequent to a review
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session pursuant to Section 8.6 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. 4. Compliance with Federal, State and Local Laws.
a. If any federal or state law or regulation shall require or permit City or Grantee to perform any service or act or shall prohibit City or Grantee from performing any service or act which may be in conflict with the terms of this Franchise, then as soon as possible following knowledge thereof, either party shall notify the other of the point in
conflict believed to exist between such law or regulation. Grantee and City shall conform to state laws and rules regarding cable communications not later than one year after they become effective, unless otherwise stated, and to conform to federal laws and regulations regarding cable as they become effective.
b. If any term, condition or provision of this Franchise or the application thereof to any Person or circumstance shall, to any extent, be held to be invalid or unenforceable, the remainder hereof and the application of such term, condition or provision to Persons or circumstances other than those as to whom it shall be held invalid or unenforceable shall not be affected thereby, and this Franchise and all the terms,
provisions and conditions hereof shall, in all other respects, continue to be effective and complied with provided the loss of the invalid or unenforceable clause does not substantially alter the agreement between the parties. In the event such law, rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so that the provision which had been held invalid or modified is no longer in conflict with the law,
rules and regulations then in effect, said provision shall thereupon return to full force and effect and shall thereafter be binding on Grantee and City. 5. Nonenforcement by City. Grantee shall not be relieved of its obligations to comply with any of the provisions of this Franchise by reason of any failure or delay of City to
enforce prompt compliance. City may only waive its rights hereunder by expressly so stating in writing. Any such written waiver by City of a breach or violation of any provision of this Franchise shall not operate as or be construed to be a waiver of any subsequent breach or violation.
6. Rights Cumulative. All rights and remedies given to City by this Franchise or retained by City herein shall be in addition to and cumulative with any and all other rights and remedies, existing or implied, now or hereafter available to City, at law or in equity, and such rights and remedies shall not be exclusive, but each and every right and remedy specifically given by this Franchise or otherwise existing or given may be exercised from time to time and as
often and in such order as may be deemed expedient by City and the exercise of one or more
rights or remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy.
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7. Grantee Acknowledgment of Validity of Franchise. Grantee acknowledges that it
has had an opportunity to review the terms and conditions of this Franchise and that under current law Grantee believes that said terms and conditions are not unreasonable or arbitrary, and that Grantee believes City has the power to make the terms and conditions contained in this Franchise.
8. No Third Party Beneficiaries. Nothing in this Franchise Agreement is intended to confer third-party beneficiary status on any member of the public to enforce the terms of this Franchise Agreement. This provision does not apply to the Commission or the NSAC. SECTION 14. PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS 1. Publication: Effective Date. This Franchise shall be published in accordance with applicable local and Minnesota law. The Effective Date of this Franchise shall January 1, 2017. 2. Acceptance.
a. Grantee shall accept this Franchise within sixty (60) of its enactment by the City Council, unless the time for acceptance is extended by City. Such acceptance by the Grantee shall be deemed the grant of this Franchise for all purposes provided, however, this Franchise shall not be effective until all City ordinance adoption
procedures are complied with and all applicable timelines have run for the adoption of a City ordinance. In the event acceptance does not take place, or should all ordinance adoption procedures and timelines not be completed, this Franchise and any and all rights granted hereunder to Grantee shall be null and void.
b. Upon the Effective Date and acceptance of this Franchise, Grantee and City shall be bound by all the terms and conditions contained herein. c. Grantee shall accept this Franchise in the following manner:
i. This Franchise will be properly executed and acknowledged by Grantee and delivered to City. ii. With its acceptance, Grantee shall also deliver any grant payments, performance bond and insurance certificates required herein that have not
previously been delivered. Passed and adopted this ______day of _________________________, 2017. ATTEST: CITY OF FALCON HEIGHTS
By: _______________________________ By: _____________________________ Its: ______________________________ Its: ________________________
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ACCEPTED: This Franchise is accepted and we agree to be bound by its terms and conditions.
COMCAST OF MINNESOTA, INC. Dated: ____________________________ By: _____________________________
Its: ________________________
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Exhibit A – Drops to Designated Buildings
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Exhibit A – Drops to Designated Buildings
City of Arden Hills Inst. Name Street Address City Arden Hills City Hall 4364 W. Round Lk. Rd. Arden Hills
Arden Hills Public Works 1460 W. Hwy. 96 Arden Hills
City of Falcon Heights
Inst. Name Street Address City Falcon Heights City Hall 2077 W. Larpenteur Ave. Falcon Heights
Falcon Heights Fire Station 2077 W. Larpenteur Ave. Falcon Heights
City of Lauderdale Inst. Name Street Address City Lauderdale City Hall 1891 Walnut St. Lauderdale
City of Little Canada
Inst. Name Street Address City Little Canada City Hall 515 E. Little Canada Rd. Little Canada
Little Canada Fire Station 325 Little Canada Rd. Little Canada
Old Little Canada Comm Room 440 E. Little Canada Rd. Little Canada
City of Mounds View
Inst. Name Street Address City Mounds View City Hall 2401 Hwy. 10 Mounds View
Mounds View Community Center 2394 Edgewood Dr. Mounds View
Mounds View Maintenance Gar. 2466 NE Bronson Dr. Mounds View
City of New Brighton Inst. Name Street Address City New Brighton City Hall 803 NW 5th Ave. New Brighton
New Brighton Fire Station 785 NW 5th Ave. New Brighton
New Brighton Maintenance Bldg. 700 NW 5th Ave. New Brighton
New Brighton Municipal Bldg. 785 Old Highway 8 New Brighton
City of North Oaks
Inst. Name Street Address City North Oaks City Hall 100 Village Center Dr. North Oaks
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Exhibit A – Drops to Designated Buildings
2
City of Roseville Inst. Name Street Address City Roseville City Hall 2661 Civic Center Dr. Roseville
Roseville Fire Station 1 2701 N. Lexington Ave. Roseville
Roseville Gymnastics Cntr. 1240 Co. Rd. B-2 Roseville
Roseville Harriet Alexander
Nature
2520 N. Dale St. Roseville
Roseville Maintenance Building 2660 Civic Center Dr. Roseville
CTV Admin., CTV 2670 Arthur St Roseville
City of St. Anthony
Inst. Name Street Address City St. Anthony City Hall 3301 Silver Lake Rd. St. Anthony
St. Anthony Fire Station 2900 Kenzie Terrace St. Anthony
St. Anthony Public Works 3801 Chandler Dr. St. Anthony
St. Anthony Community Services 3301 Silver Lake Rd. St. Anthony
St. Anthony Police 3301 Silver Lake Rd. St. Anthony
Dist. 2822 – SA/NB Schools Inst. Name Street Address City ISD 282 District Office SA/NB 3303 33rd Ave. NE St. Anthony
St. Anthony High School 3303 33rd Ave. NE St. Anthony
St. Anthony Middle School 3303 33rd Ave. NE St. Anthony
Wilshire Park Elementary 3600 NE Highcrest Rd. St. Anthony
Dist. 621 – Mounds View
Inst. Name Street Address City Bel Air Elementary School 1800 NW 5th St. New Brighton
Edgewood Middle School 5100 N. Edgewood Dr. Mounds View
Highview Middle School 2300 NW 7th St. New Brighton
Irondale High School 2425 Long Lake Rd. New Brighton
Mounds View High School 1900 W. Co. Rd. F Arden Hills
Pike Lake Elementary 2101 NW 14th St. New Brighton
Pinewood Elementary 5500 Quincy St. Mounds View
Early Education School 500 NW 10th St. New Brighton
Sunnyside Elementary 2070 W. Co. Rd. H New Brighton
Valentine Hills Elementary 1770 W. Co. Rd. E2 Arden Hills
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Exhibit A – Drops to Designated Buildings
3
Dist. 623 – Roseville Area Inst. Name Street Address City Brimhall Elementary 1744 W. Co. Rd. B Roseville
Central Park Elementary 535 W. Co. Rd. B2 Roseville
Edgerton Elementary School 1929 Edgerton St. Maplewood
Fairview Community Center 1910 W. Co. Rd. B Roseville
Falcon Heights Elementary 1393 W. Garden Ave. Falcon Heights
ISD 623 District Center 1251 W. Co. Rd. B2 Roseville
Little Canada Elementary 400 Eli Rd. Little Canada
Parkview Center School 701 W. Co. Rd. B Roseville
Roseville Area High School 1261 Hwy. 36 Roseville
Roseville Area Middle School 15 E. Co. Rd. B2 Little Canada
Hennepin County
Inst. Name Street Address City St. Anthony Public Library 2900 NE Pentagon Dr. St. Anthony
Ramsey County Inst. Name Street Address City Ramsey Co. Library – Mounds View 2576 Hwy. 10 Mounds view
Ramsey Co. Library – Roseville 2180 N. Hamline Ave. Roseville
Ramsey Co Library – New Brighton 400 10th St. NW New Brighton
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Exhibit B – Comcast Enterprise Services Master Services Agreement (MSA)
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Email:
Cell:
Address 2:
CUSTOMER INFORMATION
The Customer referenced above may submit Sales Orders to Comcast during the Term of this Agreement (“MSA Term”). After
the expiration of the initial MSA Term, Comcast may continue to accept Sales Orders from Customer under the Agreement, or
require the parties to execute a new MSA.
Primary Contact Address Information
Fax:
MSA ID#:
Primary Contact:
Services are only available to commercial customers in wired and serviceable areas in participating Comcast systems (and may
not be transferred). Minimum Service Terms are required for most Services and early termination fees may apply. Service
Terms are identified in each Sales Orders, and early termination fees are identified in the applicable Product Specific
Attachments.
Phone:
The Agreement shall terminate in accordance with the General Terms and Conditions. The General Terms and Conditions and
PSAs are located at http://business.comcast.com/enterprise-terms-of-service/index.aspx(or any successor URL).Use of the
Services is also subject to the High-Speed Internet for Business Acceptable Use Policy (“AUP”) located at
http://business.comcast.com/customer-notifications/acceptable-use-policy (or any successor URL), and the High-Speed Internet
for Business Privacy Policy (Privacy Policy”) located at http://business.comcast.com/customer-notifications/customer-privacy-
statement (or any successor URL). Comcast may update the General Terms and Conditions, PSAs, AUP and Privacy Policy
from time to time upon posting to the Comcast website.
Title:
Customer Name:
State:
Zip Code:
Address 1:
BY SIGNING BELOW, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
MSA Term:
This Master Service Agreement ("Agreement") sets forth the terms and conditions under which Comcast Cable Communications
Management, LLC and its operating affiliates (“Comcast”) will provide communications and other services (“Services”) to the
above Customer. The Agreement consists of this fully executed Master Service Agreement Cover Page (“Cover Page”), the
Enterprise Services General Terms and Conditions (“General Terms and Conditions”), any written amendments to the
Agreement executed by both parties ("Amendments"), the Product-Specific Attachment for the applicable Services (“PSA(s)”)
and each Sales Order accepted hereunder (“Sales Orders”). In the event of any inconsistency among these documents,
precedence will be as follows: (1) this Cover Page (2) General Terms and Conditions, (3) PSA(s), , and (4) Sales Orders. This
Agreement shall be legally binding when signed by both parties and shall continue in effect until the expiration date of any
Service Term specified in a Sales Order referencing the Agreement, unless terminated earlier in accordance with the
Agreement.
City:
Signature:
COMCAST USE ONLY (by authorized representative)
Date:
CUSTOMER SIGNATURE (by authorized representative)
Date:
Title:
Name:
Signature:
Name:
Title:
Sales Rep:
Sales Rep Email:
Region:
Division:
MN-7078239-surqu
steven_urquhart@cable.comcast.com
MN
City of Roseville
55113
2660 Civic Center Drive
60 months
network.manager@cityofroseville.com
Roseville
Direector of IT
(651) 792-7092
Steven Urquhart
Terre Heiser
Exhibit B
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Exhibit B2 – First Amendment to Comcast Enterprise Services Master Agreement
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FIRST AMENDMENT TO
COMCAST ENTERPRISE SERVICES MASTER AGREEMENTS
No. MN-7078239-surqu-6107932 No. MN-10682707-surqu-8012973 No. MN-10682530-surqu-8012808 No. MN-1919172-surqu-7985235 No. MN-10681743-surqu-8012080 This First Amendment (“Amendment”) is concurrently entered into on
____________________________ (“Effective Date”) in conjunction with the Comcast Enterprise
Services Master Services Agreement Nos. 7078239; 10682707; 10682530; 1919172; and
10681743 (“Agreement”) by and between Comcast of Minnesota, Inc. (“Comcast”) and the Cities
of Roseville, Hugo, Arden Hills, Lauderdale, and North Oaks (“Customer”), individually referred
to herein as “Party” and jointly referred to as “Parties.” In the event of an explicit conflict between
this Amendment and the Agreement, the terms and conditions of this Amendment shall take
precedence in the interpretation of the explicit matter in question. Unless otherwise set forth herein,
all capitalized terms set forth herein shall have the same meaning as set forth in the Agreement.
WHEREAS, the Parties desire to amend the Agreement by this writing to reflect the
amended or additional terms and conditions to which the Parties have agreed;
NOW, THEREFORE, in consideration of the mutual covenants, promises, and
consideration set forth in this Amendment, the Parties agree as follows:
CHANGES TO THE GENERAL TERMS AND CONDITIONS:
1. DEFINITIONS:
a. "Agreement, Enterprise Services Master Services Agreement or MSA" is
deleted in its entirety and replaced with the following:
Agreement, Enterprise Services Master Services Agreement or MSA in reverse order of
Precedence: Consists of 1) Initial Sales Orders ID No. MN-7078239-surqu-6107932;
MN-10682707-surqu-8012973; MN-10682530-surqu-8012808; MN-1919172-surqu-7985235;
and MN-10681743-surqu-8012080, 2) Comcast Enterprise Services General Terms and Conditions
("General Terms and Conditions" Version 1.2 in effect as of the date of this Agreement, as may be
updated by Comcast from time to time with written notice to Customer’s Chief Information
Officer. Comcast will annually present to Customer any changes to the General Terms and
Conditions as a condition of them becoming effective as to Customer, 3) the then current
Product-Specific Attachment for each ordered Service ("PSA"), 4) any written amendments to the
Agreement executed by both Parties including any supplemental terms and conditions
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("Amendments") including this Amendment and 5) each subsequent Sales Order accepted by
Comcast and Customer under the Agreement.
b. "Comcast Website or Website" is revised as follows:
The Comcast website where Comcast security and privacy policies applicable to the Agreement
will be posted. Comcast will annually present to Customer for review any changes to Comcast
security and privacy policies and such amended policies shall not be effective until such notice is
provided. The current URL for the Website is
http://business.comcast.com/enterprise-terms-of-service. Comcast may update the Website
documents and/or URL from time to time.
c. "Confidential Information" is deleted in its entirety and replaced with the
following:
Comcast claims that information it provides to Customer during the course of this Agreement
constitutes Comcast's valuable property and that the information embodies substantial creative
efforts which are proprietary, secret, confidential, not generally known by the public, and which
secure to Comcast a competitive advantage, and are Confidential and Trade Secrets as defined by
the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 ("Data Practices
Act"), and not subject to public disclosure.
Customer agrees that, if a request is received for access to data that Comcast claims under
this Agreement to be trade secret information, Customer will notify Comcast of the request.
Comcast will, as soon as reasonably possible, but no later than five (5) business days from the time
of notice, provide Customer written justification for its claim that the requested data is Trade Secret
data. Customer shall review the justification. If it agrees, Customer shall so inform the requester. If
it disagrees, Customer shall so inform Comcast and the data requester and will then act accordingly
to respond to the request for data. Thereafter Comcast shall take all actions, including exercise of
its legal remedies, it deems necessary to protect the disclosure of the data and Comcast shall
defend, indemnify, and hold harmless Customer, its officials, employees and agents from any
liability for failure to release, disclose, give access to, or copy the requested data.
d. Definition for "Initial Sales Orders" is added and shall mean Sales Order Nos.
MN-7078239-surqu-6107932; MN-10682707-surqu-8012973; MN-10682530-surqu-8012808;
MN-1919172-surqu-7985235; and MN-10681743-surqu-8012080, which is the request for
Services to the 8 Customer Service Locations submitted by Customer to Comcast on a then-current
Comcast form designated for that purpose. For the purposes of the General Terms and Conditions,
the Initial Sales Orders shall also be referred to as Sales Order, except where explicitly identified
otherwise.
e. "Sales Order" is deleted in its entirety and replaced with the following:
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Sales Order shall mean any Sales Order other than the Initial Sales Orders that Customer submits to
Comcast as a request for Comcast to provide the Services to a Service Location(s) on a then-current
form designated for that purpose.
f. "Service(s)" is modified to read as follows:
A service provided by Comcast pursuant to a Sales Order under this Agreement.
2. Article 1 "Changes to the Agreement Terms" is deleted in its entirety and
replaced with the following:
Alteration. Any alteration, variation, modification, or waiver of the provisions of this Agreement
shall be valid only after it has been reduced to writing and duly signed by both parties.
3. Article 2.2 "Access" is hereby modified to read as follows:
In order to deliver certain Services to Customer, Comcast may require access, conduit, and/or
common room space ("Access"), both within and/or outside each Service Location. Customer shall
provide an adequate environmentally controlled space and such electricity as may be required for
installation, operation, and maintenance of the Comcast Equipment used to provide the Services
within the Service Location(s). Customer shall be responsible for securing, and maintaining on an
initial and ongoing basis during the applicable Service Term and/or Renewal Term, such Access
within each Service Location unless Comcast has secured such access prior to this Agreement. In
the event that Customer, fails to secure or maintain such Access within a particular Service
Location, Comcast shall provide Customer written notice of such failure and Customer shall have
thirty (30) business days from the date said notice was received by the Customer to cure such
failure. If Customer fails to correct such failure within the cure period, Comcast may cancel or
terminate Service at such particular Service Location, without further liability, upon written notice
to Customer. In such event, except with regard to cancelled or terminated services to Service
Locations covered by the Initial Sales Orders, if Comcast has incurred any costs or expense in
installing or preparing to install the Service that it otherwise would not have incurred, a charge
equal to those costs or expenses shall apply to Customer's final invoice for that particular Service
Location. If Comcast is unable to secure or maintain Access outside a particular Service Location,
which Access is needed to provide Service to such Service Location, Customer or Comcast may
cancel or terminate Service to such particular Service Location, without further liability beyond the
termination date, upon a minimum thirty (30) days' prior written notice to the other party. In such
event, if Comcast has incurred any costs or expense in installing or preparing to install the Service
that it otherwise would not have incurred, Comcast shall be responsible for such costs or expenses.
Any other failure on the part of Customer to be ready to receive Service, or any refusal on the part
of the Customer to receive Service, shall not relieve Customer of its obligation to pay charges for
any Service that is otherwise available for use.
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Comcast agrees to abide by all applicable laws and regulations. In the event Comcast ceases to
provide services or at the conclusion or termination of all agreements between Customer and
Comcast, if applicable to the Service, Comcast shall use its best efforts to return all Customer data
to the Customer in a Customer-approved format and purge such data from Comcast computers and
storage devices. Comcast will provide written verification of data purge if applicable.
4. Article 2.5 "Ownership, Impairment and Removal of Network" is hereby
modified to read as follows:
Network is and shall remain the property of Comcast regardless of whether installed within or upon
the Service Location(s) and whether installed overhead, above, or underground and shall not be
considered a fixture or addition to the land or the Service Location(s) located thereon. Customer
agrees that it shall take no action that directly or indirectly impairs Comcast's title to the Network,
or any portion thereof, or exposes Comcast to any claim, lien, encumbrance, or legal process,
except as otherwise agreed in writing by the Parties. Nothing in this Agreement shall preclude
Comcast from using the Network for services provided to other Comcast customers. For a period of
six (6) months following Comcast's discontinuance of Service to the Service Location(s), Comcast
retains the right to remove the Network including, but not limited to, that portion of the Network
that is located in the Service Location. To the extent Comcast removes such portion of the Network
it shall be responsible for returning the Service Location(s) to its prior condition, reasonable wear
and tear excepted.
5. Article 2.7 "Engineering Review" is modified to read as follows:
Engineering Review. Each Sales Order submitted by Customer may be subject to an engineering
review. The engineering review will determine whether and to what extent the Network must be
extended, built or upgraded ("Custom Installation") in order to provide the ordered Services at the
requested Service Location(s). Comcast will provide Customer written notification in the event
Service installation at any Service Location will require an additional non-recurring installation fee
("Custom Installation Fee"). Custom Installation Fees may also be referred to as Construction
Charges on a Sales Order or Invoice. Customer will have five (5) business days from receipt of
such notice to reject the Custom Installation Fee and terminate, without further liability, the Sales
Order with respect to the affected Service Location(s). Failure to respond within five (5) business
days will be deemed a rejection. For certain Services, the Engineering Review will be conducted
prior to Sales Order submission. In such case, Customer will have accepted the designated Custom
Installation Fee upon submission of the applicable Sales Order.
6. Article 3.3 "Payment of Bills" is hereby modified to read as follows:
Except as otherwise indicated herein or in a PSA, Comcast will invoice Customer in advance on a
monthly basis for all monthly recurring charges and fees arising under the Agreement. All other
charges will be billed monthly in arrears, including without limitation certain usage based charges
and third party pass through fees. Payment is due upon presentation of an invoice. Payment will be
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considered timely made to Comcast if received within thirty (30) days after the invoice date,
however, customer’s account shall provide for a fifteen (15) day Grace Period (“Grace Period”)
immediately subsequent to the thirty (30) day payment remittance period. Any charges not paid to
Comcast within such period will be considered past due. If a Service Commencement Date is not
the first day of a billing period, Customer's first monthly invoice shall include any pro-rated
charges for the Services, from the date of installation to the start of the next billing period.
7. Article 3.7 "Other Government-Related Costs and Fees" is hereby modified to
read as follows:
Customer will pay fees or payment obligations in connection with the Services imposed by
governmental or quasi-governmental bodies in connection with the sale, use, or provision of the
Services, including, without limitation, applicable franchise fees, and universal service fund
charges (if any), regardless of whether Comcast or its Affiliates pay the fees directly or are required
by an order, rule, or regulation of a taxing jurisdiction to collect them from Customer. Taxes and
other government fees and surcharges may be changed with or without notice. In the event that a
newly adopted law, rule-or regulation imposes a new government fee or surcharge that increases
Comcast's costs of providing Services to Customer, Customer shall pay Comcast's additional costs
of providing Services to Customer under the new law, rule or regulation.
Notwithstanding the foregoing, this section does not apply to one-time permitting or other non-
recurring charges incurred by Comcast which are directly related to the construction of the
Network.
8. Article 3.8 "Disputed Invoice" is hereby modified to read as follows:
If Customer disputes any portion of an invoice by the due date, Customer must pay the undisputed
portion of the invoice and submit a written claim, including all documentation substantiating
Customer's claim, to Comcast for the disputed amount of the invoice by the invoice due date. The
Parties shall negotiate in good faith to resolve any billing dispute. Comcast will refund/credit all
valid disputes resolved in Customer's favor as of the date the disputed charges first appeared on the
Customer's invoice. Under no circumstances may Customer submit a billing dispute to Comcast
later than one-hundred eighty (180) days following Customer’s receipt of the applicable invoice.
Except as otherwise provided herein, payment of any disputed amounts by Customer shall not
constitute a waiver of any rights or claims of Customer. In the event any part of this provision
conflicts with Minnesota Statute Section 471.425, the statute will govern.
9. Article 3.9 "Past-Due Amounts" is deleted in its entirety and replaced with the
following:
Customer will comply with Minnesota Statute Section 471.425.
10. Article 3.11 "Fraudulent Use of Service" is hereby modified to read as follows:
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Customer is responsible for all charges attributable to Customer's authorized users with respect to
the Service(s), even if incurred as the result of fraudulent or unauthorized use of the Service.
Comcast may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to
Customer. Comcast reserves the right to restrict, suspend or discontinue providing any Service in
the event of fraudulent use of Customer's Service. Notwithstanding the above, if applicable to the
Service, the Comcast Enterprise Services sales administrative support team will use commercially
reasonable efforts to notify customer when and if it becomes aware of any verified fraudulent
activity on the Customer's account.
11. Article 4.2 "Sales Order Term/Revenue Commitment" is hereby modified to
read as follows:
"Initial Sales Orders Term/Sales Order Term." The applicable Service Term of the Initial Sales
Orders shall be co-terminus with the MSA Term. The applicable Service term of any other Sales
Orders shall be co-terminus with the MSA Term.
12. Article 5.2 "Termination for Cause" is hereby modified to read as follows:
If either Party breaches any material term of the Agreement, other than a payment term and the
breach continues un-remedied for thirty (30) days after written notice of default, the other Party
may terminate for cause any Sales Order materially affected by the breach. (except Comcast may
not under this section suspend or terminate service for Safety-Critical functions). If Customer is in
breach of a payment obligation (including failure to pay a required deposit) and fails to make a
payment in full within ten (l0) days after receipt of written notice of default, Comcast may, at its
option, terminate the Agreement, terminate the affected Sales Orders, suspend Service (except
Comcast may not under this section suspend or terminate service for Safety-Critical functions)
under the affected Sales Orders, and/or require a deposit, advance payment, or other satisfactory
assurances in connection with any or all Sales Orders as a condition of continuing to provide
Service; except that Comcast will not take any such action as a result of Customer's non-payment of
a charge subject to an open billing dispute. A Sales Order may be terminated by either Party
immediately upon written notice if the other Party has become insolvent or involved in liquidation
or termination of its business, or adjudicated bankrupt, or been involved in an assignment for the
benefit of its creditors. Termination by either Party of a Sales Order does not waive any other rights
or remedies that it may have under this Agreement. The non-defaulting Party shall be entitled to all
available legal and equitable remedies for such breach.
13. Article 5.3.B is deleted in its entirety and replaced with the following:
If applicable to the Service, and if requested by Customer, Comcast will use best and commercially
reasonable efforts to return all Customer data in a Customer-approved format and purge Customer
data from Comcast networks and devices. If applicable, Comcast will give Customer written
verification that Customer data has been purged.
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14. Article 5.3.D is modified to read as follows:
Customer will permit Comcast to retrieve from the applicable Service Location any and all
Comcast Equipment. If Customer fails to permit such retrieval or if the retrieved Comcast
Equipment has been damaged or destroyed other than by Comcast or its agents, normal wear and
tear excepted, Comcast may invoice Customer for the manufacturer's list price of the relevant
Comcast Equipment or the cost of repair (if repair is available and commercially reasonable)
whichever is lower, which amounts shall be immediately due and payable.
15. Article 5.6 is added to the Agreement:
Notwithstanding Article 5.3, 5.4 and 5.5, the Parties agree that upon termination of the Agreement,
termination of a Sales Order, or discontinuance of Service, the Customer may extend access to the
Services in accordance with Article 11.17 Transition Services.
16. Article 6.1 "Limitation of Liability" is hereby modified to read as follows:
A. THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY AND ALL
LOSSES, DAMAGES AND CAUSES ARISING OUT OF THE AGREEMENT, INCLUDING
BUT NOT LIMITED TO, THE PERFORMANCE OF SERVICE, AND NOT OTHERWISE
LIMITED HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL
NOT EXCEED DIRECT DAMAGES EQUAL TO THE SUM TOTAL OF PAYMENTS MADE
BY CUSTOMER TO COMCAST DURING THE TWELVE (12) MONTI-IS IMMEDIATELY
PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED. THIS LIMITATION
SHALL NOT APPLY TO EITHER PARTY 'S INDEMINIFICATION OR CONFIDENTIALITY
OBLIGATIONS AND CLAIMS FOR DAMAGE TO PROPERTY AND/OR PERSONAL
INJURIES (INCLUDING DEATH) ARISING OUT OF THE NEGLIGENCE OR
MISCONDUCT OF COMCAST WHILE ON THE CUSTOMER SERVICE LOCATION. THIS
LIMITATION SHALL NOT LIMIT CUSTOMER'S LIABILITY FOR AMOUNTS OWED FOR
THE SERVICES RENDERED FOR ANY LOST OR DAMAGED EQUIPMENT OR
SOFTWARE PROVIDED BY COMCAST OR FOR EARLY TERMINATION CHARGES.
B. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, COVER, PUNITIVE OR CONSEQUENTIAL
DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT
LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF
PROFIT WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT
HOWEVER, THAT NOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER'S LIABILITY
FOR AMOUNTS OWED FOR THE SERVICES PERFORMED, FOR ANY EQUIPMENT OR
SOFTWARE PROVIDED BY COMCAST OR FOR EARLY TERMINATION CHARGES.
17. Article 6.2 B. "Disclaimer of Warranties" is modified to read as follows:
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Without limiting the generality of the foregoing, and except as otherwise identified in this
Agreement, PSA, or Service Level Agreement, Comcast does not warrant that the Services,
Comcast Equipment, or Licensed Software will be uninterrupted, error-free, or free of latency or
delay, or that the Services, Comcast Equipment, or Licensed Software will meet customer's
requirements, or that the Services, Comcast Equipment, or Licensed Software will prevent
unauthorized access by third parties.
18. Article 6.3 is deleted in its entirety.
19. Article 6.4 is hereby modified to read as follows:
Customer's and Comcast's sole and exclusive remedies are expressly set forth in the Agreement.
Certain of the above exclusions may not apply if the state in which the Service is provided does not
allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion
of incidental or consequential damages. In those states, the liability of the Parties is limited to the
maximum extent permitted by law.
20. Article 7.1 “Comcast's Indemnification Obligations” is deleted in its entirety and
replaced with the following:
Comcast shall indemnify defend, and hold harmless Customer and its parent company, affiliates,
employees, directors, officers, and agents from and against all claims, demands, actions, causes of
actions, damages, liabilities, losses, and expenses (including reasonable attorneys' fees) ("Claims")
incurred as a result of: infringement of U.S. patent or copyright relating to the Comcast Equipment
or Comcast Licensed Software hereunder; damage to tangible personal property or real property,
and personal injuries (including death) arising out of the negligence or misconduct of Comcast
while working on the Customer Service Location.
21. Article 7.2 "Customer's Indemnification Obligation" is deleted in its entirety
and replaced with the following:
Customer shall indemnify, defend, and hold harmless Comcast from any and all Claims arising on
account of or in connection with Customer's use or sharing of the Service provided under the
Agreement, including with respect to: infringement of copyright, or unauthorized use of trademark,
trade name, or service mark arising out of communications via the Service; for patent infringement
arising from Customer's combining or connection of CE to use the Service; for damage arising out
of the negligence or misconduct of Customer with respect to its users of the Service.
22. Article 7.3 "Indemnification Procedures" is hereby modified to read as follows:
The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim
or demand ("Actions") that is the subject of this Article 7. The Indemnified Party agrees to notify
the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate
in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying
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Party shall assume the defense of any Action. The Indemnified Party may employ its own counsel
in any such case, and shall pay such counsel's fees and expenses. The Indemnifying Party shall
have the right to settle any claim for which indemnification is available; provided, however, that to
the extent that such settlement requires the Indemnified Party to take or refrain from taking any
action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle
such claim without the prior written consent of the Indemnified Party, which consent shall not be
unreasonably withheld, conditioned or delayed.
23. Article 8.1 "License" is modified to read as follows:
If and to the extent that Customer requires the use of Licensed Software in order to use the Service
supplied under any Sales Order, Customer shall have a personal, nonexclusive, nontransferable,
and limited license to use such Licensed Software in object code only and solely to the extent
necessary to use the applicable Service during the corresponding Service Term. All Licensed
Software provided to Customer, and each revised version thereof, is licensed (not sold) to
Customer by Comcast only for use in conjunction with the Service. Customer may not claim title
to, or an ownership interest in, any Licensed Software (or any derivations or improvements
thereto), and Customer shall execute any documentation reasonably required by Comcast,
including, without limitation, end-user license agreements for the Licensed Software. Comcast and
its suppliers shall retain ownership of the Licensed Software, and no rights are granted to Customer
other than a license to use the Licensed Software under the terms expressly set forth in this
Agreement.
24. Article 9.1 "Disclosure and Use" revised to include the following sentence:
In the event any part of this provision conflicts with the Minnesota Government Data Practices Act,
Minn. Stat. Ch. 13 (the "Act"), the Act will govern.
Notwithstanding the foregoing information in this Article 9.1, the Parties agree that the Data
Practices Act governs the disclosure of confidential information in the Parties possession.
25. Article 9.3 "Publicity" is hereby modified to read as follows:
The Agreement provides no right to use any Party's or its affiliates' trademarks, service marks, or
trade names, or to otherwise refer to the other Party in any marketing, promotional, or advertising
materials or activities. Neither Party shall issue any publication or press release except as permitted
by the Agreement or otherwise consented to in writing by the other Party.
26. Article 10.1 "Prohibited Uses and Comcast Use Policies” is hereby modified to
read as follows:
Customer is prohibited from using, or permitting the use of, any Service (i) for any purpose in
violation of any law, rule, regulation, or policy of any government authority; (ii) in violation of any
Use Policy (as defined below); (iii) for any use as to which Customer has not obtained all required
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government approvals, authorizations, licenses, consents, and permits; or (iv) to interfere
unreasonably with the use of Comcast service by others or the operation of the Network. Customer
is responsible for requiring its users to comply with the provisions of the Agreement. Comcast
reserves the right to act immediately to-terminate or suspend the Services and/or to remove from
the Services any information transmitted by or to Customer or users, if Comcast determines that
such use is prohibited as identified herein, or information does not conform with the requirements
set or Comcast reasonably believes that such use or information may violate any laws, regulations,
or written or electronic instructions for use. Notwithstanding the above, and except when required
by law or in emergency situations, the Comcast Enterprise Services sales administrative support
team will use commercially reasonable efforts to notify customer before taking such restrictive
actions. Notwithstanding the foregoing, except in situations where Comcast has been instructed by
the law or police action to not consult with Customer prior to restrictive actions. Furthermore, to
the extent applicable, Services shall be subject to Comcast's acceptable use policies incorporated
into this Agreement ("Use Policies") that may limit use. Only those Use Policies and other security
policies concerning the Services posted on the Website as of the date of this Agreement are
incorporated into this Agreement by reference. Comcast may update the Use Policies from time to
time, and such updates shall be deemed effective immediately upon posting and delivery of written
notice to Customer. Comcast’s action or inaction in enforcing acceptable use shall not constitute
review or approval of Customer’s or any other users’ use or information. Comcast will annually
present to Customer for review any changes to Use Policies.
27. Article 10.4 is hereby modified to read as follows:
Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise
utilize in conjunction with a third party (including, without limitation, in any joint venture or as part
of any outsourcing activity) the Services or any component thereof.
Notwithstanding the foregoing, Customer may make the services available to its authorized end
users as set forth in the Initial Sales Orders and may place orders for service on behalf of other
municipalities for services under this Agreement. The City’s charging of a cost-recovery/cost
sharing fee for the cost of the services provided under this Agreement to another local government
unit as part of a joint powers or cost sharing agreement would not constitute resale.
28. Article 10.5 "Violation" is hereby modified to read as follows:
Any breach of Article 10.1 or 10.4 may be deemed a material breach of this Agreement. In the
event of such material breach, Comcast may restrict, suspend, or terminate immediately any or all
Sales Orders, without liability on the part of Comcast, and then to notify Customer of the action that
Comcast has taken and the reason for such action, in addition to any and all other rights and
remedies under this Agreement.
29. Article 11.2 "Assignment or Transfer" is hereby modified to read as follows:
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Neither Party shall assign any right, obligation or duty, in whole or in part, nor of any other interest
hereunder, without the prior written consent of the other Party, which shall not be unreasonably
withheld. All obligations and duties of either Party under this Agreement shall be binding on all
successors in interest and assigns of such Party. The foregoing notwithstanding, upon written
notice to Customer, Comcast may assign this Agreement, to any affiliate, related entity, or third
party without Customer's consent. Any third party acquiring rights from Comcast through an
assignment will have all necessary regulatory authority to provide the fiber transport services under
the Agreement. Nothing herein is intended to limit Comcast's use of third-party consultants and
contractors to perform Services under a Sales Order.
30. Article 11.15 "Precedence" is added to the Agreement:
In the event of an explicit conflict between this First Amendment to the Comcast Enterprise
Services Master Agreement and the Comcast Enterprise Services General Terms and Conditions,
this First Amendment will control in the interpretation of the conflict. All other documents
comprising the Agreement will control in order of precedence noted above.
31. Article 11.17 "Transition Services" is added to the Agreement:
If (a) the Customer or Comcast elects not to renew this Agreement after the Initial Term pursuant to
the Service Term specified in the respective Sales Orders; (b) the Customer so elects upon
expiration of this Agreement, then the Customer may extend access to the Services, at Comcast's
then current time and materials rate, ("Transition Services") on a month-to-month basis for a period
not to exceed six (6) months or, if mutually agreed-to by the Customer and Comcast, twelve (12)
months, ("Transition Period") from the date of the expiration or termination of this Agreement.
Further, in the event Comcast terminates this Agreement or any Sales Order pursuant to section 5.2
of this Agreement, Customer may elect to extend access to safety-critical services and functions at
the Transition Services rates. Transition Services rates must be commercially reasonable and
represent fair market value. The rates for the Transition Services shall be at Comcast's then current
Services fees schedule in effect at the time of expiration or termination of this Agreement. The
Customer shall give Comcast no less than sixty (60) days prior written notice before the expiration
or termination of this Agreement of its desire to extend access under this Section, and shall provide
thirty (30) days prior written notice of election to cancel Transition Services after the Transition
Period begins. Upon expiration of the Transition Period for Transition Services, Comcast shall
terminate the Services and no further extension shall be given without prior written approval of
Comcast. In addition, in the event the Customer terminates this Agreement for cause, Comcast
shall cooperate with the Customer during the Transition Period in its attempts at transferring to
another service provider.
32. Article 11.18 Safety Critical Services and Functions is added to the Agreement:
Notwithstanding any term to the contrary in this Agreement, and with the limited exception of
when required by law or in emergency situations, in the event Comcast determines that under the
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terms of this Agreement it will terminate, discontinue, suspend, restrict, or otherwise interrupt
Safety-Critical services or functions, Comcast will notify Customer prior to service disruption of
the intended action and basis for action and Customer may elect to continue Safety Critical
services. Safety Critical services or functions are Services required to operate Customer’s
emergency service dispatch systems.
33. Pricing for Additional Locations. The following pricing schedule* is hereby
added to the Agreement and applicable to Ethernet Network Services purchased by the Customer
during the initial Service Term:
Pricing Schedule for Ethernet Network Services
Service Bandwidth Term MRC Custom Install Fees
ENS 1000 Mbps 60 Months $958.00 $250.00
ENS 100 Mbps 60 Months $486.00 $250.00
ENS 10 Mbps 60 Months $242.00 $250.00
*All new On-Net Service Locations may be subject to additional Custom Install Fees due to
construction expenses incurred by Comcast. MRC includes Ethernet services and equipment.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the
day and year written below and the persons signing covenant and warrant that they are duly
authorized to sign for and on behalf of the respective Parties. Except as otherwise modified by this
Amendment, all other terms and conditions set forth in the Agreement shall remain in full force and
effect.
Dated: ____________________
CITY OF ROSEVILLE COMCAST OF MINNESOTA, INC.
By: _______________________ By: __________________________
Its: ________________________ Its: __________________________
ATTEST:
By: ________________________
Its: ________________________
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Dated: ____________________
CITY OF HUGO COMCAST OF MINNESOTA, INC.
By: _______________________ By: __________________________
Its: ________________________ Its: __________________________
ATTEST:
By: ________________________
Its: ________________________
Dated: ____________________
CITY OF ARDEN HILLS COMCAST OF MINNESOTA, INC.
By: _______________________ By: __________________________
Its: ________________________ Its: __________________________
ATTEST:
By: ________________________
Its: ________________________
Dated: ____________________
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CITY OF LAUDERDALE COMCAST OF MINNESOTA, INC.
By: _______________________ By: __________________________
Its: ________________________ Its: __________________________
ATTEST:
By: ________________________
Its: ________________________
Dated: ____________________
CITY OF NORTH OAKS COMCAST OF MINNESOTA, INC.
By: _______________________ By: __________________________
Its: ________________________ Its: __________________________
ATTEST:
By: ________________________
Its: ________________________
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Exhibit B3 - Comcast Enterprise Services General Terms and Conditions
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COMCAST ENTERPRISE SERVICES
GENERAL TERMS AND CONDITIONS
VERSION: 1.2
DEFINITIONS
Affiliate: Any entity that controls, is controlled by or is under
common control with Comcast.
Agreement, Enterprise Services Master Services
Agreement or MSA: Consists of the Enterprise Master
Services Agreement Cover Page executed by the Customer
and accepted by Comcast, these Enterprise Services General
Terms and Conditions (“General Terms and Conditions”), the
then current Product-Specific Attachment for each ordered
Service (“PSA”), any written amendments to the Agreement
executed by both Parties including any supplemental terms
and conditions ("Amendment(s)"), and each Sales Order
accepted by Comcast under the Agreement.
Amendment(s): Any written amendment to the Agreement,
executed by both Parties, including any supplemental terms
and conditions.
Comcast: The operating company affiliate or subsidiary of
Comcast Cable Communications Management, LLC that
provides the Services under the Enterprise Services Master
Service Agreement. References to Comcast in the Limitation
of Liability, Disclaimer of Warranties and Indemnification
Articles shall also include its directors, officers, employees,
agents, Affiliates, suppliers, licensors, successors, and assigns,
as the case may be.
Comcast Website or Website: The Comcast website where
the General Terms and Conditions, PSAs and other Comcast
security and privacy policies applicable to the Agreement will
be posted. The current URL for the Website is
http://business.comcast.com/enterprise-terms-of-service.
Comcast may update the Website documents and/or URL from
time to time.
Comcast Equipment: Any and all facilities, equipment or
devices provided by Comcast or its authorized contractors at
the Service Location(s) that are used to deliver any of the
Services including, but not limited to, all terminals, wires,
modems, lines, circuits, ports, routers, gateways, switches,
channel service units, data service units, cabinets, and racks.
Notwithstanding the above, inside telephone wiring within the
Service Location, whether or not installed by Comcast, shall
not be considered Comcast Equipment.
Confidential Information: All information regarding either
Party’s business which has been marked or is otherwise
communicated as being “proprietary” or “confidential.” or
which reasonably should be known by the receiving party to
be proprietary or confidential information. Without limiting
the generality of the foregoing, Confidential Information shall
include, even if not marked, the Agreement, all Licensed
Software, promotional materials, proposals, quotes, rate
information, discount information, subscriber information,
network upgrade information and schedules, network
operation information (including without limitation
information about outages and planned maintenance) and
invoices, as well as the Parties’ communications regarding
such items.
Customer: The company, corporation, or other entity named
on the Enterprise Services Master Service Agreement Cover
Page and a Sales Order.
Customer-Provided Equipment (CE): Any and all facilities,
equipment or devices supplied by Customer for use in
connection with the Services.
Demarcation Point: The point of interconnection between the
Network and Customer’s provided equipment located at a
Service Location. In some cases the Demarcation Point shall
be the User to Network Interface (UNI) port on Comcast
Equipment at a Service Location.
General Terms and Conditions: These Enterprise Services
General Terms and Conditions.
Licensed Software: Computer software or code provided by
Comcast or required to use the Services, including without
limitation, associated documentation, and all updates thereto.
Network: Consists of the Comcast Equipment, facilities,
fiber optic cable associated with electronics and other
equipment used to provide the Services.
Party: A reference to Comcast or the Customer; and in the
plural, a reference to both companies.
Product Specific Attachment(s) (PSA): The additional terms
and conditions applicable to Services ordered by Customer
under the Agreement.
Revenue Commitment: A commitment by Customer to
purchase a minimum volume of Service during an agreed
term, as set forth in a Sales Order.
Sales Order: A request for Comcast to provide the Services to
a Service Location(s) submitted by Customer to Comcast (a)
on a then-current Comcast form designated for that purpose or
(b) if available, through a Comcast electronic order processing
system designated for that purpose.
Service(s): A service provided by Comcast pursuant to a
Sales Order. All Services provided under the Agreement are
for commercial use only. Services available under this
Agreement are identified on the Website.
Exhibit B-3
82 of 177
Service Commencement Date: The date(s) on which
Comcast first makes Service available for use by Customer. A
single Sales Order containing multiple Service Locations or
Services may have multiple Service Commencement Dates.
Service Location(s): The Customer location(s) where
Comcast provides the Services, to the extent the Customer
owns, leases, or otherwise controls such location(s).
Service Term: The duration of time (commencing on the
Service Commencement Date) for which Services are ordered,
as specified in a Sales Order.
Tariff: A federal or state Comcast tariff and the successor
documents of general applicability that replace such tariff in
the event of detariffing.
Termination Charges: Charges that may be imposed by
Comcast if, prior to the end of the applicable Service Term (a)
Comcast terminates Services for cause or (b) Customer
terminates Services without cause. Termination Charges are as
set forth in each PSA, and are in addition to any other rights
and remedies under the Agreement.
ARTICLE 1. CHANGES TO THE AGREEMENT
TERMS
Comcast may change or modify the Agreement, and any
related policies from time to time (“Revisions”) by posting
such Revisions to the Comcast Website. The Revisions are
effective upon posting to the Website. Customer will receive
notice of the Revisions in the next applicable monthly invoice.
Customer shall have thirty (30) calendar days from the invoice
notice of such Revisions to provide Comcast with written
notice that the Revisions adversely affect Customer’s use of
the Service(s). If after notice Comcast is able to verify such
adverse affect but is unable to reasonably mitigate the
Revision’s impact on such Services, then Customer may
terminate the impacted Service(s) without further obligation to
Comcast beyond the termination date, including Termination
Charges, if any. This shall be Customer’s sole and exclusive
remedy.
ARTICLE 2. DELIVERY OF SERVICE
2.1 Orders. Customer shall submit to Comcast a
properly completed Sales Order to initiate Service to a Service
Location(s). A Sales Order shall become binding on the
Parties when (i) it is specifically accepted by Comcast either
electronically or in writing, (ii) Comcast begins providing the
Service described in the Sales Order or (iii) Comcast begins
Custom Installation (as defined in Article 2.7) for delivery of
the Services described in the Sales Order, whichever is earlier.
When a Sales Order becomes effective it shall be deemed part
of, and shall be subject to, the Agreement.
2.2 Access. In order to deliver certain Services to
Customer, Comcast may require access, right-of-way, conduit,
and/or common room space (“Access”), both within and/or
outside each Service Location. Customer shall provide an
adequate environmentally controlled space and such electricity
as may be required for installation, operation, and
maintenance of the Comcast Equipment used to provide the
Services within the Service Location(s). Customer shall be
responsible for securing, and maintaining on an initial and
ongoing basis during the applicable Service Term and/or
Renewal Term, such Access within each Service Location
unless Comcast has secured such access prior to this
Agreement. In the event that Customer, fails to secure or
maintain such Access within a particular Service Location,
Comcast may cancel or terminate Service at such particular
Service Location, without further liability, upon written notice
to Customer. In such event, if Comcast has incurred any costs
or expense in installing or preparing to install the Service that
it otherwise would not have incurred, a charge equal to those
costs and expenses shall apply to Customer’s final invoice for
that particular Service Location. If Comcast is unable to
secure or maintain Access outside a particular Service
Location, which Access is needed to provide Services to such
Service Location, Customer or Comcast may cancel or
terminate Service at such particular Service Location, without
further liability beyond the termination date, upon a minimum
thirty (30) days’ prior written notice to the other party. In such
event, if Comcast has incurred any costs or expense in
installing or preparing to install the Service that it otherwise
would not have incurred, Comcast shall be responsible for
such costs or expenses. Any other failure on the part of
Customer to be ready to receive Service, or any refusal on the
part of Customer to receive Service, shall not relieve
Customer of its obligation to pay charges for any Service that
is otherwise available for use.
2.3 Hazardous Materials. If the presence of asbestos or
other hazardous materials exists or is detected at a Service
Location or within the building where the Service Location is
located, Comcast may immediately stop providing Services
until such a time as such materials are removed. Alternatively
Customer may notify Comcast to install the applicable portion
of the Service in areas of any such Service Location not
containing such hazardous material. Any additional expense
incurred by Comcast as a result of encountering hazardous
materials, including but not limited to, any additional
equipment shall be borne by Customer. Customer shall use
reasonable efforts to maintain its property and Service
Locations in a manner that preserves the integrity of the
Services.
2.4 Comcast Equipment. At any time Comcast may
remove or change Comcast Equipment in its sole discretion in
connection with providing the Services. Customer shall not
move, rearrange, disconnect, remove, attempt to repair, or
otherwise tamper with any Comcast Equipment or permit
others to do so, and shall not use the Comcast Equipment for
any purpose other than that authorized by the Agreement.
Comcast shall maintain Comcast Equipment in good operating
condition during the term of this Agreement; provided,
however, that such maintenance shall be at Comcast’s expense
only to the extent that it is related to and/or resulting from the
ordinary and proper use of the Comcast Equipment.
Customer is responsible for damage to, or loss of, Comcast
Equipment caused by its acts or omissions, and its
noncompliance with this Article, or by fire, theft or other
casualty at the Service Location(s), unless caused by the gross
negligence or willful misconduct of Comcast.
Exhibit B-3
83 of 177
2.5 Ownership, Impairment and Removal of Network,
The Network is and shall remain the property of Comcast
regardless of whether installed within or upon the Service
Location(s) and whether installed overhead, above, or
underground and shall not be considered a fixture or an
addition to the land or the Service Location(s) located thereon.
Customer agrees that it shall take no action that directly or
indirectly impairs Comcast’s title to the Network, or any
portion thereof, or exposes Comcast to any claim, lien,
encumbrance, or legal process, except as otherwise agreed in
writing by the Parties. Nothing in this Agreement shall
preclude Comcast from using the Network for services
provided to other Comcast customers. For a period of twelve
(12) months following Comcast’s discontinuance of Service to
the Service Location(s), Comcast retains the right to remove
the Network including, but not limited to, that portion of the
Network that is located in the Service Location. To the extent
Comcast removes such portion of the Network it shall be
responsible for returning the Service Location(s) to its prior
condition, reasonable wear and tear excepted.
2.6 Customer-Provided Equipment (“CE”). Comcast
shall have no obligation to install, operate, or maintain CE.
Customer shall have sole responsibility for providing
maintenance, repair, operation and replacement of all CE,
inside telephone wiring and other Customer equipment and
facilities on the Customer’s side of the Demarcation Point.
Neither Comcast nor its employees, Affiliates, agents or
contractors will be liable for any damage, loss, or destruction
to CE, unless caused by the gross negligence or willful
misconduct of Comcast. CE shall at all times be compatible
with the Network as determined by Comcast in its sole
discretion. In addition to any other service charges that may be
imposed from time to time, Customer shall be responsible for
the payment of service charges for visits by Comcast’s
employees or agents to a Service Location when the service
difficulty or trouble report results from the use of CE or
facilities provided by any party other than Comcast.
2.7 Engineering Review. Each Sales Order submitted
by Customer may be subject to an engineering review. The
engineering review will determine whether and to what extent
the Network must be extended, built or upgraded (”Custom
Installation”) in order to provide the ordered Services at the
requested Service Location(s). Comcast will provide
Customer written notification in the event Service installation
at any Service Location will require an additional non-
recurring installation fee (“Custom Installation Fee”). Custom
Installation Fees may also be referred to as Construction
Charges on a Sales Order or Invoice. Customer will have five
(5) days from receipt of such notice to reject the Custom
Installation Fee and terminate, without further liability, the
Sales Order with respect to the affected Service Location(s).
For certain Services, the Engineering Review will be
conducted prior to Sales Order submission. In such case,
Customer will have accepted the designated Custom
Installation Fee upon submission of the applicable Sales
Order.
2.8 Service Acceptance. Except as may otherwise be
identified in the applicable PSA, the Service Commencement
Date shall be the date Comcast completes installation and
connection of the necessary facilities and equipment to
provide the Service at a Service Location.
2.9 Administrative Website. Comcast may furnish
Customer with one or more user identifications and/or
passwords for use on the Administrative Website. Customer
shall be responsible for the confidentiality and use of such
user identifications and/or passwords and shall immediately
notify Comcast if there has been an unauthorized release, use
or other compromise of any user identification or password.
In addition, Customer agrees that its authorized users shall
keep confidential and not distribute any information or other
materials made available by the Administrative Website.
Customer shall be solely responsible for all use of the
Administrative Website, and Comcast shall be entitled to rely
on all Customer uses of and submissions to the Administrative
Website as authorized by Customer. Comcast shall not be
liable for any loss, cost, expense or other liability arising out
of any Customer use of the Administrative Website or any
information on the Administrative Website. Comcast may
change or discontinue the Administrative Website, or
Customer’s right to use the Administrative Website, at any
time. Additional terms and policies may apply to Customer’s
use of the Administrative Website. These terms and policies
will be posted on the site.
ARTICLE 3. BILLING AND PAYMENT
3.1 Charges. Except as otherwise provided in the
applicable PSA, Customer shall pay Comcast one hundred
percent (100%) of the Custom Installation Fee prior to the
installation of Service. Customer further agrees to pay all
charges associated with the Services, as set forth or referenced
in the applicable PSA, Sales Order(s) or invoice from
Comcast. These charges may include, but are not limited to
standard and custom non-recurring installation charges,
monthly recurring service charges, usage charges including
without limitation charges for the use of Comcast Equipment,
per-call charges, pay-per-view charges, charges for service
calls, maintenance and repair charges, and applicable federal,
state, and local taxes, fees, surcharges and recoupments
(however designated). Some Services such as measured and
per-call charges, pay-per-view movies or events, and
interactive television (as explained in the applicable PSA) may
be invoiced after the Service has been provided to Customer.
Except as otherwise indicated herein or in the applicable
PSA(s) monthly recurring charges for Ethernet, Video and
Internet Services that are identified on a Sales Order shall not
increase during the Service Term. Except as otherwise
indicated herein or in the Sales Order(s), Voice Service
pricing, charges and fees can be found in the applicable PSA.
3.2 Third-Party Charges. Customer may incur charges
from third party service providers that are separate and apart
from, or based on the amounts charged by Comcast. These
may include, without limitation, charges resulting from
wireless services including roaming charges, accessing on-line
services, calls to parties who charge for their telephone based
Exhibit B-3
84 of 177
services, purchasing or subscribing to other offerings via the
Internet or interactive options on certain Video services, or
otherwise. Customer agrees that all such charges, including
all applicable taxes, are Customer’s sole responsibility. In
addition, Customer is solely responsible for protecting the
security of credit card information provided to others in
connection with such transactions.
3.3 Payment of Bills. Except as otherwise indicated
herein or in a PSA, Comcast will invoice Customer in advance
on a monthly basis for all monthly recurring charges and fees
arising under the Agreement. All other charges will be billed
monthly in arrears, including without limitation certain usage
based charges and third party pass through fees. Payment is
due upon presentation of an invoice. Payment will be
considered timely made to Comcast if received within thirty
(30) days after the invoice date. Any charges not paid to
Comcast within such period will be considered past due. If a
Service Commencement Date is not the first day of a billing
period, Customer’s first monthly invoice shall include any
pro-rated charges for the Services, from the date of installation
to the start of the next billing period. In certain cases, Comcast
may agree to provide billing services on behalf of third parties,
as the agent of the third party. Any such third-party charges
shall be payable pursuant to any contract or other arrangement
between the third party and Customer and/or Comcast.
Comcast shall not be responsible for any dispute regarding
these charges between Customer and such third party.
Customer must address all such disputes directly with the third
party.
3.4 Partial Payment. Partial payment of any bill will be
applied to the Customer’s outstanding charges in amounts and
proportions solely determined by Comcast. No acceptance of
partial payment(s) by Comcast shall constitute a waiver of any
rights to collect the full balance owed under the Agreement.
3.5 Credit Approval and Deposits. Initial and ongoing
delivery of Services may be subject to credit approval.
Customer shall provide Comcast with credit information
requested by Comcast. Customer authorizes Comcast to make
inquiries and to receive information about Customer’s credit
history from others and to enter this information in Customer’s
records. Customer represents and warrants that all credit
information that it provides to Comcast will be true and
correct. Comcast, in its sole discretion, may deny the Services
based upon an unsatisfactory credit history. Additionally,
subject to applicable regulations, Comcast may require
Customer to make a deposit (in an amount not to exceed an
estimated two months charge for the Services) as a condition
to Comcast’s provision of the Services, or as a condition to
Comcast’s continuation of the Services. The deposit will not,
unless explicitly required by law, bear interest and shall be
held by Comcast as security for payment of Customer's
charges. Comcast may apply the deposit to any delinquent
Customer charges upon written notice to Customer. If
Comcast uses any or all of the deposit to pay an account
delinquency, Customer will replenish the deposit by that
amount within five (5) days of its receipt of written notice
from Comcast. If the provision of Service to Customer is
terminated, or if Comcast determines in its sole discretion that
such deposit is no longer necessary, then the amount of the
deposit (plus any required deposit interest) will be credited to
Customer's account or will be refunded to Customer, as
determined by Comcast.
3.6 Taxes and Fees. Except to the extent Customer
provides a valid tax exemption certificate prior to the delivery
of Service, Customer shall be responsible for the payment of
any and all applicable local, state, and federal taxes or fees
(however designated). Customer also will be responsible to
pay any Service fees, payment obligations and taxes that
become applicable retroactively.
3.7 Other Government-Related Costs and Fees.
Comcast reserves the right to invoice Customer for any fees or
payment obligations in connection with the Services imposed
by governmental or quasi-governmental bodies in connection
with the sale, installation, use, or provision of the Services,
including, without limitation, applicable franchise fees, right
of way fees and Universal Service Fund charges (if any),
regardless of whether Comcast or its Affiliates pay the fees
directly or are required by an order, rule, or regulation of a
taxing jurisdiction to collect them from Customer. Taxes and
other government-related fees and surcharges may be changed
with or without notice, In the event that any newly adopted
law, rule, regulation or judgment increases Comcast’s costs of
providing Services, Customer shall pay Comcast’s additional
costs of providing Services under the new law, rule, regulation
or judgment.
3.8 Disputed Invoice. If Customer disputes any portion
of an invoice by the due date, Customer must pay fifty percent
(50%) of the disputed charges, in addition to the undisputed
portion of the invoice and submit a written claim, including all
documentation substantiating Customer’s claim, to Comcast
for the disputed amount of the invoice by the invoice due date.
The Parties shall negotiate in good faith to resolve any billing
dispute. Comcast will refund/credit all valid disputes resolved
in Customer’s favor as of the date the disputed charges first
appeared on the Customer’s invoice.
3.9 Past-Due Amounts. Any payment not made when
due will be subject to a late charge of 1.5% per month or the
highest rate allowed by law on the unpaid invoice, whichever
is lower. If Customer’s account is delinquent, Comcast may
refer the account to a collection agency or attorney that may
pursue collection of the past due amount and/or any Comcast
Equipment which Customer fails to return in accordance with
the Agreement. If Comcast is required to use a collection
agency or attorney to collect any amount owed by Customer
or any unreturned Comcast Equipment, Customer agrees to
pay all reasonable costs of collection or other action. The
remedies set forth herein are in addition to and not in
limitation of any other rights and remedies available to
Comcast under the Agreement or at law or in equity.
3.10 Rejected Payments. Except to the extent otherwise
prohibited by law, Customer will be assessed a service charge
up to the full amount permitted under applicable law for any
check or other instrument used to pay for the Services that has
been rejected by the bank or other financial institution.
Exhibit B-3
85 of 177
3.11 Fraudulent Use of Services. Customer is responsible
for all charges attributable to Customer with respect to the
Service(s), even if incurred as the result of fraudulent or
unauthorized use of the Service. Comcast may, but is not
obligated to, detect or report unauthorized or fraudulent use of
Services to Customer. Comcast reserves the right to restrict,
suspend or discontinue providing any Service in the event of
fraudulent use of Customer’s Service.
ARTICLE 4. TERM; REVENUE COMMITMENT
4.1 Agreement Term. Upon execution of the
Agreement, Customer shall be allowed to submit
Sales Orders to Comcast during the term referenced
on the Master Service Agreement Cover Page (“MSA
Term”). After the expiration of the initial MSA Term,
Comcast may continue to accept Sales Orders from
Customer under the Agreement, or require the Parties
to execute a new agreement. This Agreement shall
continue in effect until the expiration or termination
date of the last Sales Order entered under the
Agreement, unless terminated earlier in accordance
with the Agreement.
4.2 Sales Order Term/Revenue Commitment. The
applicable Service Term and Revenue Commitment (if any)
shall be set forth in the Sales Order. Unless otherwise stated
in these terms and conditions or the applicable PSA, if a Sales
Order does not specify a term of service, the Service Term
shall be one (1) year from the Service Commencement Date.
In the event Customer fails to satisfy a Revenue Commitment,
Customer will be billed a shortfall charge pursuant to the
terms of the applicable PSA.
4.3 Sales Order Renewal. Upon the expiration of the
Service Term, and unless otherwise agreed to by the Parties in
the Sales Order, each Sales Order shall automatically renew
for successive periods of one (1) year each (“Renewal
Term(s)”), unless otherwise stated in these terms and
conditions or prior notice of non-renewal is delivered by either
Party to the other at least thirty (30) days before the expiration
of the Service Term or the then current Renewal Term.
Effective at any time after the end of the Service Term and
from time to time thereafter, Comcast may, modify the charges
for Ethernet, Internet and/or Video Services subject to thirty
(30) days prior written notice to Customer. Customer will have
thirty (30) days from receipt of such notice to cancel the
applicable Service without further liability. Should Customer
fail to cancel within this timeframe, Customer will be deemed
to have accepted the modified Service pricing.
ARTICLE 5. TERMINATION WITHOUT FAULT;
DEFAULT
5.1 Termination for Convenience. Notwithstanding any
other term or provision in this Agreement, Customer shall
have the right, in its sole discretion, to terminate any or all
Sales Order(s) at any time during the Service Term(s), upon
thirty (30) days prior written notice to Comcast and subject to
payment to Comcast of all outstanding amounts due for the
Services, any and all applicable Termination Charges, and the
return of all applicable Comcast Equipment. Comcast may
terminate the Agreement if Customer does not take any
Service under a Sales Order for twelve (12) consecutive
months or longer.
5.2 Termination for Cause. If either Party breaches any
material term of the Agreement, other than a payment term,
and the breach continues un-remedied for thirty (30) days
after written notice of default, the other Party may terminate
for cause any Sales Order materially affected by the breach. If
Customer is in breach of a payment obligation (including
failure to pay a required deposit) and fails to make payment in
full within ten (10) days after receipt of written notice of
default, Comcast may, at its option, terminate the Agreement,
terminate the affected Sales Orders, suspend Service under the
affected Sales Orders, and/or require a deposit, advance
payment, or other satisfactory assurances in connection with
any or all Sales Orders as a condition of continuing to provide
Service; except that Comcast will not take any such action as
a result of Customer’s non-payment of a charge subject to a
timely billing dispute, unless Comcast has reviewed the
dispute and determined in good faith that the charge is correct.
A Sales Order may be terminated by either Party immediately
upon written notice if the other Party has become insolvent or
involved in liquidation or termination of its business, or
adjudicated bankrupt, or been involved in an assignment for
the benefit of its creditors. Termination by either Party of a
Sales Order does not waive any other rights or remedies that it
may have under this Agreement. The non-defaulting Party
shall be entitled to all available legal and equitable remedies
for such breach.
5.3 Effect of Expiration/Termination of a Sales Order .
Upon the expiration or termination of a Sales Order for any
reason:
A.Comcast shall disconnect the applicable Service;
B.Comcast may delete all applicable data, files,
electronic messages, or other information stored on Comcast’s
servers or systems;
C.If Customer has terminated the Sales Order prior to
the expiration of the Service Term for convenience, or if
Comcast has terminated the Sales Order prior to the expiration
of the Service Term as a result of material breach by
Customer, Comcast may assess and collect from Customer
applicable Termination Charges (if any);
D. Customer shall, permit Comcast to retrieve from the
applicable Service Location any and all Comcast Equipment.
If Customer fails to permit such retrieval or if the retrieved
Comcast Equipment has been damaged and/or destroyed other
than by Comcast or its agents, normal wear and tear excepted,
Comcast may invoice Customer for the manufacturer’s list
price of the relevant Comcast Equipment, or in the event of
minor damage to the retrieved Comcast Equipment, the cost of
repair, which amounts shall be immediately due and payable;
and
Exhibit B-3
86 of 177
E.Customer’s right to use applicable Licensed Software
shall automatically terminate, and Customer shall be obligated
to return all Licensed Software to Comcast.
5.4 Resumption of Service. If a Service has been
discontinued by Comcast for cause and Customer requests that
the Service be restored, Comcast shall have the sole and
absolute discretion to restore such Service. At Comcast’s
option, deposits, advanced payments, nonrecurring charges,
and/or an extended Service Term may apply to restoration of
Service.
5.5 Regulatory and Legal Changes. The Parties
acknowledge that the respective rights and obligations of each
Party as set forth in this Agreement upon its execution are
based on applicable law and regulations as they exist on the
date of execution of this Agreement. The Parties agree that in
the event of any subsequent decision by a legislative, regulatory
or judicial body, including any regulatory or judicial order,
rule, regulation, decision in any arbitration or other dispute
resolution or other legal or regulatory action that materially
affects the provisions or ability to provide Services on
economic terms of the Agreement, Comcast may, by providing
written notice to the Customer, require that the affected
provisions of the Agreement be renegotiated in good faith. If
Customer refuses to enter such renegotiations, or the Parties
can’t reach resolution on new Agreement terms, Comcast may,
in its sole discretion, terminate this Agreement, in whole or in
part, upon sixty (60) days written notice to Customer.
ARTICLE 6. LIMITATION OF LIABILITY;
DISCLAIMER OF WARRANTIES; WARNINGS
6.1 Limitation of Liability.
A, THE AGGREGATE LIABILITY OF COMCAST
FOR ANY AND ALL LOSSES, DAMAGES AND CAUSES
ARISING OUT OF THE AGREEMENT, INCLUDING,
BUT NOT LIMITED TO, THE PERFORMANCE OF
SERVICE, AND NOT OTHERWISE LIMITED
HEREUNDER, WHETHER IN CONTRACT, TORT, OR
OTHERWISE, SHALL NOT EXCEED DIRECT
DAMAGES EQUAL TO THE SUM TOTAL OF
PAYMENTS MADE BY CUSTOMER TO COMCAST
DURING THE THREE (3) MONTHS IMMEDIATELY
PRECEDING THE EVENT FOR WHICH DAMAGES
ARE CLAIMED. THIS LIMITATION SHALL NOT
APPLY TO COMCAST’S INDEMNIFICATION
OBLIGATIONS AND CLAIMS FOR DAMAGE TO
PROPERTY AND/OR PERSONAL INJURIES
(INCLUDING DEATH) ARISING OUT OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF
COMCAST WHILE ON THE CUSTOMER SERVICE
LOCATION.
B. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY INCIDENTAL, INDIRECT,
SPECIAL, COVER, PUNITIVE OR CONSEQUENTIAL
DAMAGES, WHETHER OR NOT FORESEEABLE, OF
ANY KIND INCLUDING BUT NOT LIMITED TO ANY
LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS,
OR LOSS OF PROFIT WHETHER SUCH ALLEGED
LIABILITY ARISES IN CONTRACT OR TORT
HOWEVER, THAT NOTHING HEREIN IS INTENDED
TO LIMIT CUSTOMER’S LIABILITY FOR AMOUNTS
OWED FOR THE SERVICES, FOR ANY EQUIPMENT
OR SOFTWARE PROVIDED BY COMCAST OR FOR
TERMINATION CHARGES.
6.2 Disclaimer of Warranties.
A.Services shall be provided pursuant to the terms and
conditions in the applicable PSA and Service Level
Agreement, and are in lieu of all other warranties, express,
implied or statutory, including, but not limited to, the implied
warranties of merchantability, fitness for a particular purpose,
title, and non-infringement. TO THE MAXIMUM EXTENT
ALLOWED BY LAW, COMCAST EXPRESSLY
DISCLAIMS ALL SUCH EXPRESS, IMPLIED AND
STATUTORY WARRANTIES.
B.Without limiting the generality of the foregoing, and
except as otherwise identified in a PSA or Service Level
Agreement, Comcast does not warrant that the Services,
Comcast Equipment, or Licensed Software will be
uninterrupted, error-free, or free of latency or delay, or that the
Services, Comcast Equipment, or Licensed Software will meet
customer’s requirements, or that the Services, Comcast
Equipment, or Licensed Software will prevent unauthorized
access by third parties.
C.In no event shall Comcast, be liable for any loss,
damage or claim arising out of or related to: (i) stored,
transmitted, or recorded data, files, or software; (ii) any act or
omission of Customer, its users or third parties; (iii)
interoperability, interaction or interconnection of the Services
with applications, equipment, services or networks provided
by Customer or third parties; or (iv) loss or destruction of any
Customer hardware, software, files or data resulting from any
virus or other harmful feature or from any attempt to remove
it. Customer is advised to back up all data, files and software
prior to the installation of Service and at regular intervals
thereafter.
6.3 Disruption of Service. Notwithstanding the
performance standards identified in a PSA, the Services are
not fail-safe and are not designed or intended for use in
situations requiring fail-safe performance or in which an error
or interruption in the Services could lead to severe injury to
business, persons, property or environment ("High Risk
Activities"). These High Risk Activities may include, without
limitation, vital business or personal communications, or
activities where absolutely accurate data or information is
required.
6.4 Customer’s sole and exclusive remedies are expressly set
forth in the Agreement. Certain of the above exclusions may
not apply if the state in which a Service is provided does not
allow the exclusion or limitation of implied warranties or does
not allow the limitation or exclusion of incidental or
consequential damages. In those states, the liability of
Comcast is limited to the maximum extent permitted by law.
Exhibit B-3
87 of 177
ARTICLE 7. INDEMNIFICATION
7.1 Comcast’s Indemnification Obligations. Comcast
shall indemnify defend, and hold harmless Customer and its
parent company, affiliates, employees, directors, officers, and
agents from and against all claims, demands, actions, causes of
actions, damages, liabilities, losses, and expenses (including
reasonable attorneys’ fees) (“Claims”) incurred as a result of:
infringement of U.S. patent or copyright relating to the Comcast
Equipment or Comcast Licensed Software hereunder; damage to
tangible personal property or real property, and personal injuries
(including death) arising out of the gross negligence or willful
misconduct of Comcast while working on the Customer Service
Location.
7.2 Customer’s Indemnification Obligations. Customer
shall indemnify, defend, and hold harmless Comcast from any
and all Claims arising on account of or in connection with
Customer’s use or sharing of the Service provided under the
Agreement, including with respect to: libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade name, or service mark arising out of communications via
the Service; for patent infringement arising from Customer’s
combining or connection of CE to use the Service; for damage
arising out of the gross negligence or willful misconduct of
Customer with respect to users of the Service.
7.3 Indemnification Procedures. The Indemnifying
Party agrees to defend the Indemnified Party for any loss,
injury, liability, claim or demand (“Actions”) that is the
subject of this Article 7. The Indemnified Party agrees to
notify the Indemnifying Party promptly, in writing, of any
Actions, threatened or actual, and to cooperate in every
reasonable way to facilitate the defense or settlement of such
Actions. The Indemnifying Party shall assume the defense of
any Action with counsel reasonably satisfactory to the
Indemnified Party. The Indemnified Party may employ its
own counsel in any such case, and shall pay such counsel’s
fees and expenses. The Indemnifying Party shall have the
right to settle any claim for which indemnification is available;
provided, however, that to the extent that such settlement
requires the Indemnified Party to take or refrain from taking
any action or purports to obligate the Indemnified Party, then
the Indemnifying Party shall not settle such claim without the
prior written consent of the Indemnified Party, which consent
shall not be unreasonably withheld, conditioned or delayed.
ARTICLE 8. SOFTWARE & SERVICES
8.1 License. If and to the extent that Customer requires
the use of Licensed Software in order to use the Service
supplied under any Sales Order, Customer shall have a
personal, nonexclusive, nontransferable, and limited license to
use such Licensed Software in object code only and solely to
the extent necessary to use the applicable Service during the
corresponding Service Term. All Licensed Software provided
to Customer, and each revised version thereof, is licensed (not
sold) to Customer by Comcast only for use in conjunction
with the Service. Customer may not claim title to, or an
ownership interest in, any Licensed Software (or any
derivations or improvements thereto), and Customer shall
execute any documentation reasonably required by Comcast,
including, without limitation, end-user license agreements for
the Licensed Software. Comcast and its suppliers shall retain
ownership of the Licensed Software, and no rights are granted
to Customer other than a license to use the Licensed Software
under the terms expressly set forth in this Agreement.
8.2 Restrictions. Customer agrees that it shall not: (i)
copy the Licensed Software (or any upgrades thereto or related
written materials) except for emergency back-up purposes or
as permitted by the express written consent of Comcast; (ii)
reverse engineer, decompile, or disassemble the Licensed
Software; (iii) sell, lease, license, or sublicense the Licensed
Software; or (iv) create, write, or develop any derivative
software or any other software program based on the Licensed
Software.
8.3 Updates. Customer acknowledges that the use of
Service may periodically require updates and/or changes to
certain Licensed Software resident in the Comcast Equipment
or CE. If Comcast has agreed to provide updates and changes,
such updates and changes may be performed remotely or on-
site by Comcast, at Comcast’s sole option. Customer hereby
consents to, and shall provide free access for, such updates
deemed reasonably necessary by Comcast. If Customer fails to
agree to such updates, Comcast will be excused from the
applicable Service Level Agreement and other performance
credits, and any and all liability and indemnification
obligations regarding the applicable Service.
8.4 Export Law and Regulation. Customer
acknowledges that any products, software, and technical
information (including, but not limited to, services and
training) provided pursuant to the Agreement may be subject
to U.S. export laws and regulations. Customer agrees that it
will not use distribute, transfer, or transmit the products,
software, or technical information (even if incorporated into
other products) except in compliance with U.S. export
regulations. If requested by Comcast, Customer also agrees to
sign written assurances and other export-related documents as
may be required for Comcast to comply with U.S. export
regulations.
8.5 Ownership of Telephone Numbers and Addresses.
Customer acknowledges that use of certain Services does not
give it any ownership or other rights in any telephone number
or Internet/on-line addresses provided, including but not
limited to Internet Protocol (“IP”) addresses, e-mail addresses
and web addresses.
8.6 Intellectual Property Rights in the Services. Title
and intellectual property rights to the Services are owned by
Comcast, its agents, suppliers or affiliates or their licensors or
otherwise by the owners of such material. The copying,
redistribution, bundling or publication of the Services, in
whole or in part, without express prior written consent from
Comcast or other owner of such material, is prohibited.
ARTICLE 9. CONFIDENTIAL INFORMATION AND
PRIVACY
9.1 Disclosure and Use. All Confidential Information
disclosed by either Party shall be kept by the receiving party in
Exhibit B-3
88 of 177
strict confidence and shall not be disclosed to any third party
without the disclosing party’s express written consent.
Notwithstanding the foregoing, such information may be
disclosed (i) to the receiving party’s employees, affiliates, and
agents who have a need to know for the purpose of performing
this Agreement, using the Services, rendering the Services,
and marketing related products and services (provided that in
all cases the receiving party shall take appropriate measures
prior to disclosure to its employees, affiliates, and agents to
assure against unauthorized use or disclosure); or (ii) as
otherwise authorized by this Agreement. Each Party agrees to
treat all Confidential Information of the other in the same
manner as it treats its own proprietary information, but in no
case using a degree of care less than a reasonable degree of
care.
9.2 Exceptions. Notwithstanding the foregoing, each
Party’s confidentiality obligations hereunder shall not apply to
information that: (i) is already known to the receiving party
without a pre-existing restriction as to disclosure; (ii) is or
becomes publicly available without fault of the receiving
party; (iii) is rightfully obtained by the receiving party from a
third party without restriction as to disclosure, or is approved
for release by written authorization of the disclosing party; (iv)
is developed independently by the receiving party without use
of the disclosing party’s Confidential Information; or (v) is
required to be disclosed by law or regulation.
9.3 Publicity. The Agreement provides no right to use
any Party’s or its affiliates’ trademarks, service marks, or trade
names, or to otherwise refer to the other Party in any
marketing, promotional, or advertising materials or activities.
Neither Party shall issue any publication or press release
relating to, or otherwise disclose the existence of, the terms
and conditions of any contractual relationship between
Comcast and Customer, except as permitted by the Agreement
or otherwise consented to in writing by the other Party.
9.4 Passwords. Comcast may furnish Customer with
user identifications and passwords for use in conjunction with
certain Services, including, without limitation, for access to
certain non-public Comcast website materials. Customer
understands and agrees that such information shall be subject
to Comcast’s access policies and procedures located on
Comcast’s Web Site.
9.5 Remedies. Notwithstanding any other Article of this
Agreement, the non-breaching Party shall be entitled to seek
equitable relief to protect its interests pursuant to this Article
9, including, but not limited to, injunctive relief.
9.6 Monitoring of Services. Except as otherwise
expressly set forth in a PSA, Comcast assumes no obligation
to pre-screen or monitor Customer’s use of the Service,
including without limitation postings and/or transmission.
However, Customer acknowledges and agrees that Comcast
and its agents shall have the right to pre-screen and monitor
such use from time to time and to use and disclose such results
to the extent necessary to operate the Service properly, to
ensure compliance with applicable use policies, to protect the
rights and/or property of Comcast, or in emergencies when
physical safety is at issue, and that Comcast may disclose the
same to the extent necessary to satisfy any law, regulation, or
governmental request. Comcast shall have no liability or
responsibility for content received or distributed by Customer
or its users through the Service, and Customer shall indemnify,
defend, and hold Comcast and its directors, officers,
employees, agents, subsidiaries, affiliates, successors, and
assigns harmless from any and all claims, damages, and
expenses whatsoever (including reasonable attorneys’ fees)
arising from such content attributable to Customer or its users.
For the avoidance of doubt, the monitoring of data described
in this Section 9.6 refers to aggregate data and types of traffic
(protocol, upstream/downstream utilization, etc.). Comcast
does not have access to the content of encrypted data
transmitted across Comcast networks.
9.7 Survival of Confidentiality Obligations. The
obligations of confidentiality and limitation of use described
in this Article 9 shall survive the expiration and termination of
the Agreement for a period of two (2) years (or such longer
period as may be required by law).
ARTICLE 10. USE OF SERVICE; USE AND PRIVACY
POLICIES
10.1 Prohibited Uses and Comcast Use Policies.
Customer is prohibited from using, or permitting the use of,
any Service (i) for any purpose in violation of any law, rule,
regulation, or policy of any government authority; (ii) in
violation of any Use Policy (as defined below); (iii) for any
use as to which Customer has not obtained all required
government approvals, authorizations, licenses, consents, and
permits; or (iv) to interfere unreasonably with the use of
Comcast service by others or the operation of the Network.
Customer is responsible for assuring that any and all of its
users comply with the provisions of the Agreement. Comcast
reserves the right to act immediately and without notice to
terminate or suspend the Services and/or to remove from the
Services any information transmitted by or to Customer or
users, if Comcast determines that such use is prohibited as
identified herein, or information does not conform with the
requirements set or Comcast reasonably believes that such use
or information may violate any laws, regulations, or written
and electronic instructions for use. Furthermore, to the extent
applicable, Services shall be subject to Comcast’s acceptable
use policies (“Use Policies”) that may limit use. The Use
Policies and other security policies concerning the Services
are posted on the Website, and are incorporated into this
Agreement by reference. Comcast may update the Use
Policies from time to time, and such updates shall be deemed
effective immediately upon posting, with or without actual
notice to Customer. Comcast’s action or inaction in enforcing
acceptable use shall not constitute review or approval of
Customer’s or any other users’ use or information.
10.2 Privacy Policy. In addition to the provisions of
Article 9, Comcast’s commercial privacy policy applies to
Comcast’s handling of Customer confidential information.
Comcast’s privacy policy is available on the Website.
Exhibit B-3
89 of 177
10.3 Privacy Note Regarding Information Provided to
Third Parties. Comcast is not responsible for any information
provided by Customer to third parties. Such information is not
subject to the privacy provisions of this Agreement. Customer
assumes all privacy and other risks associated with providing
personally identifiable information to third parties via the
Services.
10.4 Prohibition on Resale . Customer may not sell,
resell, sublease, assign, license, sublicense, share, provide, or
otherwise utilize in conjunction with a third party (including,
without limitation, in any joint venture or as part of any
outsourcing activity) the Services or any component thereof.
10.5 Violation. Any breach of this Article 10 shall be
deemed a material breach of this Agreement. In the event of
such material breach, Comcast shall have the right to restrict,
suspend, or terminate immediately any or all Sales Orders,
without liability on the part of Comcast, and then to notify
Customer of the action that Comcast has taken and the reason
for such action, in addition to any and all other rights and
remedies under this Agreement.
ARTICLE 11. MISCELLANEOUS TERMS
11.1 Force Majeure. Neither Party (and in the case of
Comcast, Comcast affiliates and subsidiaries) shall be liable to
the other Party for any delay, failure in performance, loss, or
damage to the extent caused by force majeure conditions such
as acts of God, fire, explosion, power blackout, cable cut, acts
of regulatory or governmental agencies, unavailability of
right-of-way or materials, or other causes beyond the Party’s
reasonable control, except that Customer’s obligation to pay
for Services provided under the Agreement shall not be
excused. Changes in economic, business or competitive
condition shall not be considered force majeure events.
11.2 Assignment or Transfer. Customer shall
not assign any right, obligation or duty, in whole or in part, nor
of any other interest hereunder, without the prior written
consent of Comcast, which shall not be unreasonably
withheld. All obligations and duties of either Party under this
Agreement shall be binding on all successors in interest and
assigns of such Party. Nothing herein is intended to limit
Comcast’s use of third-party consultants and contractors to
perform Services under a Sales Order.
11.3 Notices. Any notice sent pursuant to the Agreement
shall be deemed given and effective when sent by facsimile
(confirmed by first-class mail), or when delivered by
overnight express or other express delivery service, in each
case as follows: (i) with respect to Customer, to the address
set forth on any Sales Order; or (ii) with respect to Comcast,
to: Vice President/Enterprise Sales, One Comcast Center,
1701 JFK Blvd., Philadelphia, PA 19103, with a copy to Cable
Law Department, One Comcast Center, 50th Floor, 1701 JFK
Blvd., Philadelphia, PA 19103. Each Party shall notify the
other Party in writing of any changes in its address listed on
any Sales Order.
11.4 Entire Understanding. The Agreement, together
with any applicable Tariffs, constitutes the entire understanding
of the Parties related to the subject matter hereof. The
Agreement supersedes all prior agreements, proposals,
representations, statements, or understandings, whether
written or oral, concerning the Services or the Parties’ rights or
obligations relating to Services. Any prior representations,
promises, inducements, or statements of intent regarding the
Services that are not embodied in the Agreement are of no
effect. No subsequent agreement among the Parties concerning
Service shall be effective or binding unless it is made in writing
by authorized representatives of the Parties. Terms or conditions
contained in any Sales Order, or restrictive endorsements or
other statements on any form of payment, shall be void and of
no force or effect.
11.5 Tariffs. Notwithstanding anything to the contrary in
the Agreement, Comcast may elect or be required to file with
regulatory agencies tariffs for certain Services. In such event,
the terms set forth in the Agreement may, under applicable
law, be superseded by the terms and conditions of the Tariffs.
Without limiting the generality of the foregoing, in the event
of any inconsistency with respect to rates, the rates and other
terms set forth in the applicable Sales Order shall be treated as
individual case based arrangements to the maximum extent
permitted by law, and Comcast shall take such steps as are
required by law to make the rates and other terms enforceable.
If Comcast voluntarily or involuntarily cancels or withdraws a
Tariff under which a Service is provided to Customer, the
Service will thereafter be provided pursuant to the Agreement
and the terms and conditions contained in the Tariff
immediately prior to its cancellation or withdrawal. In the
event that Comcast is required by a governmental authority to
modify a Tariff under which Service is provided to Customer
in a manner that is material and adverse to either Party, the
affected Party may terminate the applicable Sales Order upon
a minimum thirty (30) days’ prior written notice to the other
Party, without further liability
11.6 Construction. In the event that any portion of the
Agreement is held to be invalid or unenforceable, the Parties
shall replace the invalid or unenforceable portion with another
provision that, as nearly as possible, reflects the original
intention of the Parties, and the remainder of the Agreement
shall remain in full force and effect.
11.7 Survival. The rights and obligations of either Party
that by their nature would continue beyond the termination or
expiration of a Sales Order shall survive termination or
expiration of the Sales Order.
11.8 Choice of Law. The domestic law of the state in
which the Service is provided shall govern the construction,
interpretation, and performance of this Agreement, except to
the extent superseded by federal law.
11.9 No Third Party Beneficiaries. This Agreement does
not expressly or implicitly provide any third party (including
users) with any remedy, claim, liability, reimbursement, cause
of action, or other right or privilege.
Exhibit B-3
90 of 177
11.10 Parties’ Authority to Contract. The persons whose
signatures appear below are duly authorized to enter into the
Agreement on behalf of the Parties name therein.
11.11 No Waiver; Etc. No failure by either Party to
enforce any right(s) hereunder shall constitute a waiver of
such right(s). This Agreement may be executed in counterpart
copies.
11.12 Independent Contractors. The Parties to this
Agreement are independent contractors. Neither Party is an
agent, representative, or partner of the other Party. Neither
Party shall have any right, power, or authority to enter into any
agreement for, or on behalf of, or incur any obligation or
liability of, or to otherwise bind, the other Party. This
Agreement shall not be interpreted or construed to create an
association, agency, joint venture, or partnership between the
Parties or to impose any liability attributable to such a
relationship upon either Party.
11.13 Article Headings. The article headings used herein
are for reference only and shall not limit or control any term or
provision of this Agreement or the interpretation or
construction thereof.
11.14 Compliance with Laws. Each of the Parties agrees
to comply with all applicable local, state and federal laws and
regulations and ordinances in the performance of its respective
obligations under this Agreement.
Exhibit B-3
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Exhibit C – Existing Network Facilities
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Exhibit C – Existing Network Facilities
The Commission and NSAC provides playback and master control functions from its Roseville offices for all of the Public, Educational and Governmental Access Channels. All of this access signal origination from NSAC’s Roseville facility is directly connected via fiber to the Comcast headend in Roseville through Comcast’s Converged Regional Area Network
(CRAN or C-RAN). The C-RAN is a regional interconnect used to transport all of Comcast’s
cable video traffic around the Twin Cities to the various hub locations. This network is used, in the case of PEG programming, to transport video programming and other programming services to the Roseville headend and the Shoreview hub for insertion onto the subscriber system serving the member cities. Until the Franchise renews, Comcast agrees to continue to provide at no cost
to the City the C-RAN for the transport and playback of the Access Channels in the current
formats and playback with no degradation of signal quality and, in consultation with the City and Commission, may migrate to future technologies and formats as the system evolves, provided, however, the signal quality shall be the same as sent by the City, Commission, or NSAC without degradation, lag, or delay.
Until no later than December 31, 2017, Comcast will continue to make available at no cost to the City the current dark fiber optic-based network that currently offers end-to-end fiber connectivity to the facilities listed on Schedule C-1 locations plus a 6 dark fiber optic link between the Fairview headend and the Shoreview hub, including the nine member cities’ city
halls and municipal buildings, Ramsey County libraries, school district buildings, and the
T.I.E.S. building. In addition, until no later than December 31, 2017, Comcast at no cost to the City will continue to allow governmental and educational facilities throughout the 9-city franchise area to connect back via other non-Comcast fiber optic infrastructure to one or more of the locations on the Comcast dark fiber network for connectivity for cable-related purposes.
NSAC, the Commission and the institutions using the end-to-end fiber network will continue to
provide all of the end user equipment required to light up or activate the fiber optic portion of the dark fiber optic-based network. After December 31, 2017, transport of voice, video (except for Access Channel programming) and data shall be governed solely by the parties’ Managed Services Agreement under Section 7.1 of the Franchise.
Until the Franchise renews, Comcast agrees, at no cost to the City, to continue to provide access to a region wide interconnect that utilizes infrastructure put in place as part of the C-RAN to enable the NSCC and other local franchise authorities to share Access Channel programming. This interconnect is commonly referred to as the PRISMA network because the original
equipment used to activate the network has a manufacturer’s product name of PRISMA. Regarding the region-wide interconnect over the PRISMA network, the Commission and the NSAC is a primary hub between various access entities throughout the Twin Cities area. This PRISMA interconnect network allows the Commission and the NSAC to share cable Access Channel programming (both send and receive) with these various entities. With the PRISMA
equipment having reached its manufacturer’s end of life, Comcast will ensure the ability of the
City, Commission, and NSAC to share Access Channel programming at the same signal quality as sent by the City, Commission, NSAC, and all other participating municipal entities without degradation, lag, or delay until the Franchise renews. To the extent that another municipal entity is using the PRISMA network, that entity’s use (including voice and data) of the PRISMA
network shall be governed by that entity’s franchise agreement or other agreement with Comcast
and shall not be impacted in any way by this Franchise.
93 of 177
Exhibit C – Existing Network Facilities
2
The City may continue to use the dark fiber optic-based network as it was used prior to
the Execution of this Agreement through December 31, 2017. Until the Franchise renews,
Comcast agrees to continue at no cost to the City to provide to the City, the Commission and NSAC the C-RAN and dark fiber optic-based network to the locations on Exhibit C-2, or an alternate network infrastructure and technology, for the transport (send and receive) and playback and return feeds of the Access Channels, and the distribution of Access Channel
programming at the same signal quality as sent by the City, Commission or NSAC without
degradation, lag, or delay. Comcast may, in consultation with the City and Commission, migrate to future technologies and formats as they become the preferred standard formats in the future. Nothing in this Section is intended to limit Comcast’s application of new technologies and network configurations to transport and distribute Access Channel programming so long as it
provides the same signal quality and distribution as listed above, and there is no degradation of
signal quality.
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Exhibit C – Schedule C-1 – Dark Fiber Connections
95 of 177
Exhibit C – Schedule C-1 – Dark Fiber Connections
Institution Name Address City
NSCC/NSAC Offices 2670 Arthur Street Roseville
Fairview Headend to Shoreview hub Roseville/Shoreview
Arden Hills City Hall 1245 W. Highway 96 Arden Hills
Falcon Heights City Hall 2077 W. Larpenteur Ave. Falcon Heights
Lauderdale City Hall 1891 Walnut Street Lauderdale
Little Canada City Hall 515 E. Little Canada Rd. Little Canada
Mounds View City Hall 2401 Highway 10 Mounds View
New Brighton City Hall 803 5th Avenue NW New Brighton
North Oaks City Hall 100 Village Center Drive North Oaks
Roseville City Hall 2660 Civic Center Drive Roseville
St. Anthony City Hall/St. Anthony
Schools (ISD #282)
3301 Silver Lake Road St. Anthony
ISD # 623 – Fairview Community
Center
1910 County Road B W Roseville
ISD #621- Highview Middle School 2300 7th Street NW New Brighton
ISD #621- Valentine Hills Elementary
School
1770 W. County Road E-2 Arden Hills
ISD #623- Roseville Area High
School
1261 Highway 36 Roseville
North Oaks East Recreation Center 4 Mink Lane North Oaks
Saint Anthony Wine and Spirits -
Marketplace
2700 Highway 88 Saint Anthony
TIES – District Center 1667 Snelling Avenue Roseville
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Exhibit C – Schedule C-2 – PEG Origination Points
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Exhibit C—Schedule C-2 – PEG Origination Points
NSC/NSAC Offices, 2670 Arthur Street, Roseville
Arden Hills City Hall, 1245 W. Highway 96, Arden Hills
Falcon Heights City Hall, 2077 W. Larpenteur Ave, Falcon Heights
Lauderdale City Hall, 1891 Walnut Street, Lauderdale
Little Canada City Hall, 515 E. Little Canada Road, Little Canada
Mounds View City Hall, 2401 Highway 10, Mounds View
New Brighton City Hall, 803 5th Avenue NW, New Brighton
North Oaks City Hall, 100 Village Center Drive, North Oaks
Roseville City Hall, 2660 Civic Center Drive, Roseville
St. Anthony City Hall, 3301 Silver Lake Road, St. Anthony
Roseville Area High School, 1261 Highway 36, Roseville
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Exhibit D – March 1, 2012, Settlement Agreement
99 of 177
Settlement Agreement
This Settlement Agreement and Mutual Release is entered into this 1st day of
March, 2012,between Comcast ofMinnesota,Inc., a Delaware corporation,Comcast
Cable Communications,LLC, a Delaware limited liability company (collectively
"Comcast")and the North Suburban Communications Commission,a municipal joint
powers consortium established pursuant to Minn. Stat. § 471.59, as amended, (the
"NSCC"or the "Commission")consisting ofthe municipalities ofArden Hills, Falcon
Heights,Lauderdale,Little Canada,Mounds View, New Brighton, North Oaks,
Roseville, St. Anthony, and Shoreview,Minnesota (hereinafter "Member Cities"). The
NSCC and Comcast are collectively referred to herein as the Parties.
Recitals
WHEREAS the Member Cities have awarded cable service franchises to and
entered into franchise agreements/ordinances with Comcast's predecessors in interest to
authorize the provision ofcable service over a cable system (the "Franchises");and
WHEREAS,when Comcast acquired AT&T Broadband,it agreed to comply fully
with the Franchises;and
WHEREAS,as part of the past performance review specified in Section 626(a)of
the Cable Communications Policy Act of 1984, as amended, 47 U.S.C.§546(a) (the
"Cable Act"), the Commission, on behalf of the Member Cities,commenced a franchise
fee review of Comcast's franchise fee payments for calendar years 2009 and 2010, and
subsequently extended such review to 2011 with respect to the allocation of revenues
within bundled service packages (the "Review Period"); and
WHEREAS in the course of the franchise fee review, a dispute arose over the
extent of Comcast's obligation to provide records, data and certifications in accordance
with the terms of the Franchises, and the adequacy of Comcast's responses to the
NSCC's written requests for records, data and certifications;and
WHEREAS,the Commission adopted Resolution 2011-04 authorizing its
Executive Director to issue a Notice ofViolation to Comcast; and
WHEREAS,as a result ofthe Commission's determination that Comcast failed to
furnish requested records, data and certifications,the NSCC issued a Notice of Violation
to Comcast on November 15,2011,which afforded the company 30 days to effect a cure
(the "Notice");and
WHEREAS,the Commission adopted Resolution 2011-05 authorizing the
Commission's Executive Committee to take all steps necessary to draw on Comcast's
letter of credit in the event Comcast remained in violation of the Member Cities'
Franchises after the expiration ofthe cure period stated in the Notice; and
Exhibit D - 2012 Settlement Agreement
100 of 177
WHEREAS,Comcast denies it was in violation ofthe Member Cities'Franchises;
and
WHEREAS, the Commission extended the applicable cure period on multiple
occasions to give Comcast sufficient time to cure the remaining violations specified in
the Notice or to enter into a settlement of all outstanding issues; and
WHEREAS, Front Range Consulting, Inc., the consultant retained to conduct the
franchise fee review for the Review Period, has asserted that its final review report, when
completed, would set forth certain underpaid franchise fee amounts; and
WHEREAS,the Commission has incurred certain legal and consulting costs and
expenses as a result of the franchise fee review and the franchise enforcement and
settlement process, to date; and
WHEREAS the Parties have resolved the remaining issues set forth in the Notice
for the Review Period, and wish to document the resolution herein; and
WHEREAS,the Parties also wish to document their agreement to clarify certain
terms ofthe current Franchises and to have such clarifications incorporated into the terms
and conditions ofany renewed cable service franchises awarded to Comcast so as to
avoid future franchise fee review disputes and to expedite the Franchise renewal process.
NOW, THEREFORE, in consideration ofthe promises, undertakings and mutual
covenants ofthe Parties and other good and sufficient consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree to the terms
below:
Agreement
1. Comcast voluntarily agrees to pay the Commission $41,568.00 within
fifteen (15) days ofthe effective date ofthis Agreement. This payment, which shall be in
addition to all franchise fees, financial grants and any other compensation paid or owed
to the Member Cities and the Commission pursuant to the Franchises and associated
documents, shall be used by the Commission and/or the Member Cities for cable-related
purposes.Comcast shall not treat the payment made under this paragraph as a franchise
fee or a franchise-related cost for rate regulation purposes, and shall not separately
itemize the payment on subscribers'bills.In addition, Comcast shall at no time assert
that the payment in this paragraph is operating support for the NSCC's PEG operations,
such that it may be offset from the franchise fee payments made to the Member Cities
under the Franchises and any renewed cable service franchises.
2. Subject to the Commission's and Comcast's adoption and execution of
this Settlement Agreement,and to Comcast's complete and continuous compliance with
this Settlement Agreement, the Parties release and forever discharge each other from all
claims set forth in the Notice and all franchise fee underpayment or franchise fee
overpayment claims for the Review Period. The Commission hereby waives its right to
2
Exhibit D - 2012 Settlement Agreement
101 of 177
conduct any further franchise fee reviews for calendar years 2009, 2010 and 2011,
provided Comcast fully complies with this Settlement Agreement.This waiver and
release does not include any issues associated with Comcast's methodology ofpassing
through to subscribers franchise fees paid on non-subscriber revenues. Except as
expressly provided in this paragraph,the NSCC and the Member Cities retain all oftheir
rights,powers,remedies and defenses under the Franchises and applicable laws,
regulations,agreements,resolutions,orders,decisions and procedures,including (but not
limited to) all rights and powers granted by Section 626 ofthe Cable Act,47 U.S.C.
§546, and Chapter 238 ofMinnesota Statutes.
3.At the request ofthe NSCC and its advisors,Comcast provided an
accurate and representative advertising scenario example to Front Range Consulting,Inc.
This example and summary,which is attached to the February 24,2012,Chambers
Certification,accurately sets forth the typical flow ofrevenue and fees for advertising
transactions.This example and summary describes essentially all ofthe advertising sales
transactions entered into by Comcast and its affiliates,including but not limited to NCC
and Comcast Spotlight.For purposes ofthis paragraph,the term "affiliates"means any
person(s)and/or entity(ies)who own or control, are owned or controlled by or are under
common ownership or control with Comcast ofMinnesota,Inc.
4. Since January 1,2010,Comcast has been calculating franchise fees on
video/cable service advertising sales on a single-net basis (which means excluding third-
party agency fees,but including rep fees,affiliate fees, rebates and commissions earned,
received or derived by affiliates such as NCC and Comcast Spotlight),instead ofthe prior
triple-net basis (which means excluding third-party agency fees, affiliate fees, and NCC
and Comcast Spotlight rep fees). The information provided by Robbin Pepper to Front
Range Consulting,Inc. tracing advertising sales revenues from their inception to the
general ledger for the NSCC franchise area and reconciling all such revenues to the
Comcast Cable Communications,LLC "Trend Reports"is complete and accurate, and
documents Comcast's proposed additional payment offranchise fees on certain
advertising revenues in calendar year 2009 for settlement purposes only, as a result of
moving to a "single net" basis for calculating gross revenues upon which franchise fees
are paid to the NSCC's member cities.
5. Prior to the expiration ofthe Franchises,Comcast shall update and operate
its billing system so as to ensure that persons or entities that subscribe only to non-cable
service (e.g.,persons who subscribe only to high-speed Internet access,telephone service,
alarm monitoring, or a combination of services that does not include cable service) are
not assessed cable service franchise fees on ancillary charges imposed by Comcast on
such subscribers,including but not limited to late fees,convenience fees and non-
sufficient funds (NSF) charges, unless the imposition of cable service franchise fees is
permitted by applicable laws or regulations.Comcast shall provide the Executive
Director of the NSCC with written confirmation ofthe solution implemented and specify
whether refunds were issued ifpossible.
3
Exhibit D - 2012 Settlement Agreement
102 of 177
6. The Parties agree that the definition of"gross revenues" set forth in
Section 1.2.m ofthe Franchises:
a. incorporates all advertising revenues directly or indirectly received or
derived by Comcast ofMinnesota, Inc. and/or its affiliates from the operation ofthe cable
system to provide Cable Service in the Member Cities, including (but not limited to), rep
fees, affiliate fees, rebates and commissions. For purposes ofthis paragraph, the term
"affiliates"means any person(s) and/or entity(ies) who own or control, are owned or
controlled by or are under common ownership or control with Comcast ofMinnesota,
Inc., and shall include (but not be limited to) Comcast Spotlight and NCC. The
Commission understands and accepts Comcast's assertion that the practice ofincluding
affiliate fees, rep fees, rebates and commissions in "gross revenues" began in 20I0, and is
ongoing. Comcast shall follow this practice, as described in this paragraph, for the
remaining term ofthe Franchises (and any extensions) for all future franchise fee
payments.
b. does not include advertising revenues and commissions that are received
by persons and/or entities that are not affiliates.
c. shall include revenues from all dual- or multi-service packages containing
cable service to which one or more customers in the Member Cities subscribe, in
accordance with a methodology that allocates revenue on a pro rata basis when
comparing the bundled service price and its components to the sum ofthe most recent
published rate card rate for the components, except it is expressly understood that
equipment may be subject to inclusion in the bundled price at full rate card value. This
methodology shall also be applied to any discounts to a bundled service package
containing cable service by way ofa "Bottom ofthe Bill" discount. This calculation shall
be applied to every bundled service package containing cable service from which
Comcast receives revenues in the Member Cities, and must be updated within sixty (60)
days ofthe date any rate change for cable and/or non-cable services is implemented for a
service package containing cable service or the date any rate change is implemented for
any service included in a service package that contains cable service. The NSCC may,
at its sole discretion, review information retained by Comcast pursuant to this Section to
determine whether Comcast is in compliance with this Settlement Agreement. For
purposes of such review, Comcast agrees to retain quarterly bundled service package
subscriber counts and quarterly bundled service package revenue allocation data and
"package cards" for three (3) years following the date ofthis Settlement Agreement.
7. For purposes ofSection 6 ofthis Settlement Agreement, the terms,
phrases, words, and abbreviations used therein shall have the meaning given herein, or if
no meaning is given herein the meaning set forth in the Franchises. Unless otherwise
expressly stated, words not defined herein or in the Franchises shall be given the meaning
set forth in applicable law and,ifnot defined therein, the words shall be given their
common and ordinary meaning. The word "shall"is always mandatory and not merely
directory. The word "may"is directory and discretionary and not mandatory.
4
Exhibit D - 2012 Settlement Agreement
103 of 177
8. During the remaining term ofthe Franchises,or any extensions thereto,
Comcast shall maintain and provide to the Member Cities and/or the Commission, upon
request, all records and data reasonably necessary to confirm the accurate payment of
franchise fees as set forth in the Franchises.
9.Comcast and the NSCC will proceed in good faith to obtain written
franchise renewals prior to the expiration ofthe current Franchises, and shall incorporate
the following requirements and terms in any renewed cable service franchises to be
executed by the Member Cities and Comcast,regardless ofwhether such franchises are
awarded by the Member Cities and executed by the Member Cities and Comcast pursuant
to the formal or informal renewal processes established in Section 626 of the Cable Act,
47 U.S.C. §546:
a.Comcast and the NSCC agree that the final definition of "Gross
Revenues"in any franchise renewals shall be:
"Gross Revenues"shall be defined as and shall be construed broadly to include all
revenues derived directly or indirectly by Comcast and/or an Affiliate that is a
cable operator of the Cable System, from the operation of Comcast's Cable
System to provide Cable Services within the City (including cash, credits,
property or other consideration ofany kind or nature). 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 provision of all Cable Services
(including but not limited to payor premium Cable Services, digital Cable
Services,pay-per-view,pay-per-event and video-on-demand Cable Services);
installation,reconnection,downgrade, upgrade or similar charges associated with
changes in subscriber Cable Service levels; fees paid to Comcast for channels
designated for commercial/leased access use; converter, remote control, lockout
device and other Cable Service equipment rentals and/or leases or sales;
advertising revenues received or derived by Comcast and/or its Affiliates,
including but not limited to, rep fees,Affiliate fees, rebates and commissions, but
excluding unaffiliated agency fees; late fees,convenience fees and administrative
fees;revenues from program guides; franchise fees; and commissions from home
shopping channels and other revenue sharing arrangements. Gross Revenues
subject to franchise fees shall include revenues derived from sales of advertising
that run on Comcast's Cable System within the City and shall be allocated on a
pro rata basis using total Cable Service subscribers reached by the advertising.
Additionally,Comcast agrees that Gross Revenues subject to franchise fees shall
include all commissions paid to National Cable Communications ("NCC")and
Comcast Spotlight ("Spotlight")or their successors associated with sales of
advertising on the Cable System within the City allocated according to this
paragraph using total Cable Service subscribers reached by the advertising. Gross
revenues shall not include: actual bad debt write-offs, provided, however, that all
or part of any such actual bad debt that is written off but subsequently collected
shall be included in Gross Revenues in the period collected; and any taxes on
5
Exhibit D - 2012 Settlement Agreement
104 of 177
services furnished by Comcast imposed by any municipality, state or other
governmental unit, provided that franchise fees shall not be regarded as such a
tax.
(i)To the extent revenues are received by Comcast for the provision
ofa discounted bundle ofservices which includes Cable Services and non-Cable
Services,Comcast shall calculate revenues to be included in Gross Revenues
using a methodology that allocates revenue on a pro rata basis when comparing
the bundled service price and its components to the sum of the most recent
published rate card rate for the components, except it is expressly understood that
equipment may be subject to inclusion in the bundled price at full rate card value.
This calculation shall be applied to every bundled service package containing
Cable Service from which Comcast receives or derives revenues in the City, and
must be updated within sixty (60) days of the date any rate change for cable
and/or non-cable services is implemented for a service package containing Cable
Service or the date any rate change is implemented for any service included in a
service package that contains Cable Service. The NSCC reserves its right to
review and to challenge Comcast's calculations.
(ii) For purposes of this definition, the term "Affiliates"means any
person(s) and/or entity(ies) who own or control, are owned or controlled by or are
under common ownership or control with Comcast of Minnesota,Inc. but does
not include affiliated entities such as NBCU and Spectacor that are not directly or
indirectly involved with the programming,use, management, operation,
construction, repair and/or maintenance ofComcast Corporation's cable systems.
(iii)Resolution of any disputes over the classification of revenue
should first be attempted by agreement of the Parties, but should no resolution be
reached, the Parties agree that reference shall be made to generally accepted
accounting principles ("GAAP")as promulgated and defined by the Financial
Accounting Standards Board ("FASB"),Emerging Issues Task Force ("EITF")
and/or the U.S. Securities and Exchange Commission ("SEC"). Notwithstanding
the forgoing, the City and/or the Commission reserves its right to challenge
Comcast's calculation of Gross Revenues, including the use or interpretation of
GAAP as promulgated and defined by the FASB, EITF and/or the SEC.
b. Any renewal franchises shall provide:
Corncast shall ensure that persons or entities that only subscribe to non-cable
service (e.g.,persons who subscribe only to high-speed Internet access, telephone service,
alarm monitoring,or a combination of services that does not include cable service) are
not assessed cable service franchise fees on ancillary charges imposed by Comcast on
such subscribers,including but not limited to late fees, convenience fees and non-
sufficient funds (NSF) charges, unless the imposition of cable service franchise fees is
permitted by applicable laws or regulations.
6
Exhibit D - 2012 Settlement Agreement
105 of 177
c. Any renewed franchise shall contain the following language concerning
franchise fee reviews and audits:
(i) All franchise fee amounts paid shall be subject to audit and
recomputation by the City and/or the Commission, and acceptance of any
payment shall not be construed as an accord that the amount paid is in fact the
correct amount.Ifan audit or review discloses an overpayment or underpayment
of franchise fees, the City and/or the Commission shall notify Comcast of such
overpayment or underpayment. The City's/Commission's audit or review
expenses shall be borne by the City/Commission unless the audit or review
determines that the payment to the City should be increased by more than five
percent (5%) in the audited/reviewed period, in which case the costs of the
audit/review shall be borne by Comcast, up to a cap of $25,000, as a cost
incidental to the enforcement ofthe Franchise. Any additional amounts due to the
City as a result of the audit or review shall be paid to the City within thirty (30)
days following written notice to Comcast by the City/Commission of the
underpayment, which notice shall include a copy ofthe audit/review report.Ifthe
recomputation results in additional revenue to be paid to the City, such amount
shall be subject to a ten percent (10%) annual interest charge.
(ii) The City/Commission shall have the right to inspect and to require
Comcast to provide any and all data, documents and records maintained by
Comcast (or maintained by an Affiliate or a third-party contractor/vendor on
behalf ofComcast)reasonably related to the calculation and payment of franchise
fees. The Grantee shall maintain such records, documents and data for a
minimum of four (4) years. Such records include, but are not limited to, those set
forth in Paragraph 6 of this March 1, 2012, Settlement Agreement for the
remaining term ofthe obligation set forth therein.
(iii) Comcast shall have no less than twenty (20) business days to
respond fully and completely to any written request for data, documents and
records issued by the City/Commission,unless an extension oftime is granted by
the City/Commission in writing.Comcast may request an extension ofthe twenty
(20) business day deadline applicable to a written request for data, information
and documents no later than ten (10) business days after the date of such request.
Every request for an extension of time shall describe, in detail, the reasons the
extension is necessary. The City/Commission may, in its sole discretion, grant or
deny an extension request, and shall act reasonably in making such a
determination based on the scope and complexity of the information request at
issue and the facts cited by Comcast in its written extension request.
(iv) In the event any franchise fee payment or recomputation amount is
not made on or before the required date, Comcast shall pay, during the period
such unpaid amount is owed, the additional compensation and interest charges
computed from such due date, at an annual rate often percent (10%).
7
Exhibit D - 2012 Settlement Agreement
106 of 177
(v)Nothing in this Franchise shall be construed to limit any authority
of the City to impose any tax, fee or assessment of general applicability.
(vi)The franchise fee payments required by this Franchise shall be in
addition to any and all taxes or fees of general applicability.Comcast shall not
have or make any claim for any deduction or other credit of all or any part ofthe
amount ofsaid franchise fee payments from or against any of said taxes or fees of
general applicability,except as expressly permitted by law.Comcast shall not
apply nor seek to apply all or any part of the amount of said franchise fee
payments as a deduction or other credit from or against any of said taxes or fees
of general applicability,except as expressly permitted by law.Nor shall Comcast
apply or seek to apply all or any part of the amount ofany ofsaid taxes or fees of
general applicability as a deduction or other credit from or against any of its
franchise fee obligations,except as expressly permitted by law.
10.The Commission will pass a resolution withdrawing or rescinding the
Notice,Resolution No.2011-04 and Resolution No.2011-05 after this Settlement
Agreement has been executed by the Parties.
11.This Settlement Agreement is intended to be a binding and enforceable
agreement among the Parties,and will be effective upon execution by the Parties on the
date first set forth above.The Parties agree that they will execute this Settlement
Agreement no later than Friday,March 30,2012.The Parties further agree that this
Agreement may be executed in multiple counterparts.
12.The Parties agree that all promises,commitments,obligations and
payments set forth in Section 1 ofthis Settlement Agreement shall not be deemed to
exceed the franchise fee cap specified in Section 622(a)ofthe Cable Act, 47 U.S.C.
§542(a),and shall at no time be offset against or deducted from franchise fee payments,
grants or other financial support or in-kind compensation paid to the NSCC,the Member
Cities and/or their designee(s)under the Franchises.In addition,all promises,
commitments,obligations and payments set forth in Section 1 ofthis Settlement
Agreement shall not be treated as costs eligible for treatment as conditions or
requirements ofa franchise for any purpose under 47 C.F.R.§76.925.Comcast hereby
waives any current or future right it may have to claim that any promise,commitment,
obligation or payment in Section 1 herein exceeds the franchise fee cap in 47 U.S.C.
§ 542 or may be offset against or deducted from franchise fee payments,grants and other
compensation paid to the NSCC,the Member Cities and/or their designee(s).
13.Nothing in this Settlement Agreement amends or alters the Franchises in
any way,and all provisions ofthe Franchises as hereafter renewed or amended,remain in
full force and effect and are enforceable in accordance with their terms and with
applicable law.
14.Any violation ofthis Settlement Agreement by Comcast shall be deemed a
violation ofthe Franchises or any renewed franchises,as appropriate,and the
8
Exhibit D - 2012 Settlement Agreement
107 of 177
Commission and/or Member Cities may invoke all rights and remedies they may have
under the Franchises and any renewed Franchises. Any failure by a Member City to
adopt and execute a renewal cable service franchise that contains the terms set forth in
Section 9 shall not be deemed a violation ofthis Settlement Agreement on Comcast's
part.
15. Comcast and its affiliates shall not take any action to challenge, or cause
another person or entity to challenge, any provision ofthis Settlement Agreement as
contrary to or unenforceable under applicable laws, regulations, orders and decisions, nor
will they participate with any other person or entity in any such challenge.
16. Nothing in this Settlement Agreement usurps, preempts, waives or limits
the Member Cities'authority to grant or deny the renewal of the Franchises currently
held by Comcast, or to establish the terms and conditions ofany renewal cable service
franchises/ordinances.
17. Nothing in this Settlement Agreement waives, limits or modifies the
Parties'rights, remedies, responsibilities and defenses under applicable laws, regulations,
ordinances, agreements, orders and decisions,including but not limited to Chapter 238 of
Minnesota Statutes, Section 626 ofthe Cable Act and the Franchises, unless otherwise
expressly provided herein.
18. Nothing in this Settlement Agreement shall be construed to mean that
Comcast is entitled to renewed cable service franchises.
19. Nothing in this Settlement Agreement shall be construed to mean that
Comcast is in compliance with the Franchises and applicable laws and regulations except
as to the franchise fee payment review for the Review Period which is hereby resolved
and for which Comcast is in full compliance as to the specific issues addressed in this
Agreement for the Review Period. By executing this Settlement Agreement, Comcast is
not admitting that it has failed to comply with the Franchises and applicable laws and
regulations.
20. The Parties agree that, other than the Member Cities, there shall be no
third party beneficiaries to this Settlement Agreement. Nothing herein shall give rise to
any rights or causes of action that may be enforced or brought by a third party, other than
the Member Cities.
21. This Settlement Agreement shall be binding upon and shall inure to the
benefit ofthe Parties hereto, and their successors in interest, assigns, personal
representatives and heirs.
22.This Settlement Agreement is freely and voluntarily entered into by the
Parties, without any duress or coercion, and after each party has consulted with its
counsel. Each party hereto has carefully and completely read all ofthe terms and
provisions ofthis Settlement Agreement.
9
Exhibit D - 2012 Settlement Agreement
108 of 177
23. This SettlementAgreement shall be governed by and construed in
accordance with the laws ofthe State ofMinnesota.Any disputes concerning this
Settlement Agreement shall be venued exclusively in a court in Minnesota.
24. This Settlement Agreement constitutes the entire understanding and
agreement between the Parties with respect to the subject matter hereof,and supersedes
all prior oral or written term sheets,agreements,communications,drafts and
understandings,whether oral or written.
Executed by:
COMCAST OF MINNESOTA,INC.
Its Chair I
Its Secw1lry
Dated:~I-I //1..
~~
Dated:3 -&--t"<..
COMCAST CABLE COMMUNICATIONS,LLC
Dated:
10
Exhibit D - 2012 Settlement Agreement
109 of 177
Exhibit E – Sample Gross Revenues Report
110 of 177
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7
Exhibit F – Performance Bond
112 of 177
Bond No.10088717287
REVISED 130'
FRANCHISE llOND
KNOW ALL MEN BY THESE PRESENTS,That we, Comcast of Minnesota,Inc., as Principal
and Travelers Casualty nnd Surety COIl1J)nny of America,a corporation of the State of
Connecticut,as Surety are held and firmly bound unto the Cities of Anlcn Hills,Falcon
Heights,Lauderdale,Little Canada,Mounds View,New ll.-ightcn,North Oaks,Roseville,
St.Anthony and Shoreview,Minnesota as Obligee in the sunt~f Five Hundrcd Thollsand
Dollars and 001l00 ($500,000.00)lawful money of the United States of America,to be paid unto
said Obligee,its successors and assigns,jointly and severally,firmly by these presents.
WHEREAS,the Principal has entered into written agreements dated _See Attacked Schedule
"A"_ with the Obligees which grants a franchise to the Principal use its public streets and
places to transmit and distribute electrical impulses through an open line-coaxial antenna system
located therein.Principal has agreed to faithfully perform and observe and fulfill all terms and
conditions ofsaid Franchise Agreements referred to above and said agreements is hereby made a
part ofthis bond with like force and effect as ifherein set forth in length.
NOW,THEREFORE,THE CONDITION OF THIS OBLIGATION IS SUCH,That if the
above named Principal,its successors or assigns,does and shall well and truly observe,perform
and fulfill its obligations as set forth in the above mentioned Franchise agreements,for which a
bond must be posted,then the above obligation to be void;otherwise to remain in full force and
effect.
The bond is subject,however to the following express conditions:
FIRST:That in event ofa default on the part of the Principal its successors or assigns,a written
statement ofsuch default with full details thereofshall be given to Surety by obligee or its lawful
delegatee promptly,and in any event,within 60 day s after the Obligees shall learn of such
default,such notice to be delivered to Surety 215 Shuman Blvd.,Naperville,II.60563-8458 by
registered mail.
SECOND:That no claim,suit or action under this bond by reason of any such default shall be
brought against Surety unless asserted or commenced with 12 months after the effective date of
any termination or cancellation ofthis bond.
THIRD:That this bond may be terminated or cancelled by surety by 60 days prior notice in
writing to Principal and to Obligees,such not ice to be given by registered mail.Such termination
or cancellation shall not affect any liability incurred or accrued under this bond prior to the
effective date of such termination or cancellation.The liability of the Surety shall be limited to
the amount set forth above and is not cumulative,
FOURTH:That no right of action shall accrue under this bond to or for the use of any person
other than the Obligees,and it successors and assigns.
IN WITNESS WHEREOF,the principal and Surety have signed and sealed this instrument this
28h day of May 2003.
Travelers Casualty and Surety Company of America
A~
Debra Kohlman,Attorney-In-Fact
**t he maximum penal s um of Five Hundred Thous a nd Doll ars
Exhibit F
113 of 177
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA
TRAY -"~RS CASUALTY AND SURETY COMPANY ,--
~...RMINGTON CASUALTY COMPANY
Hartford;Connecticut 06183-9062
POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY(S)-IN-FACT
KNOW ALL PERSONS BY THESE PRESENTS,THAT TRAVELERS CASUALTY AND SURETY COMPANY OF
AMERICA,TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY,
corporations duly organized under the laws of the State of Connecticut,and having their principal offices in the City of Hartford,
County of Hartford,State of Connecticut,(hereinafter the "Companies")hath made,constituted and appointed,and do by these
presents make,constitute and appoint:Donna Wright,Brenda D.Hockberger,Ann Formhals,Debra Kohlman,Diane M.
O'Leary,William Reidinger,Amy Wickett,Karen E.Bogard,Matthew V.Buol,Jennifer E.ROi~,Steven B.Cade,William
T.Krumm,Jeffrey M.Lcadley,Sylvia J.Garcia,Brian Passolt,of Chicago,Illinois,their tme and lawful Attorney(s)-in-Fact,
with full power and authority hereby conferred to sign,execute and acknowledge,at any place within the United States, the
following instrument(s):by his/her sole signature and act, any and all bonds,recognizances,contracts of indemnity,and other
writings obligatory in the nature ofa bond,recognizance,or conditional undertaking and any and all consents incident thereto and to
bind the Companies,thereby as fully and to the same extent as if the same were signed by the duly authorized officers of the
Companies,and all the acts of said Attorney(s)-in-Fact,pursuant to the authority herein given, are hereby ratified and confirmed.
This appointment is made under and by authority of the following Standing Resolutions of said Companies,which Resolutions are
now in full force and effect:
VOTED:That the Chairman, the President, any Vice Chairman, any Executive Vice President,any Senior Vice President,any Vice President, any
Second Vice President,the Treasurer,any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys-in-Fact
a~d Agents to act for and on behalf of the company and may give such appointee such authority as his or her certificate of authority may prescribe
to sign with the Company's name and seal with the Company's seal bonds, recognizances,contracts of indemnity,and other writings obligatory in
the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such
appointee and revoke the power given him or her.
VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President
may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is
in writing and a copy thereofis filed in the office of the Secretary.
VOTED:That any bond, recognizance,contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional
undertaking shall be valid and binding upon the Companywhen (a) signed by the President, any Vice Chairman, any Executive Vice President, any
Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any
Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary, or (b) duly executed (under seal,if
required)by one or more Attorneys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or
by one or more'Company officers pursuant to a written delegation of authority.
This Power of Attorney and Certificate of Authority is signed and scaled by facsimile (mechanical or printed)under and by
authority of the following Standing Resolution voted by the Boards of Directors of TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA,TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY
COMPANY,which Resolution is now in full force.and effect:
VOTED: That the signature of each of the following officers:President, any Executive Vice President,any Senior Vice President, any Vice
President,any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any
power of attorney or to any certificate relating thereto appointing Resident Vice Presidents,Resident Assistant Secretaries or Attorneys-in-Fact for
purposes only ofexecuting and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney
or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and
certified by such facsimile signature and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or
undertaking to which it is attached.
(11-00 Standard)
Exhibit F
114 of 177
Exhibit G – Indemnification Agreement
115 of 177
Exhibit G – Indemnity Agreement
1
INDEMNITY AGREEMENT made this ____ day of ___________________, 2017, by and
between Comcast of Minnesota, Inc., party of the first part, hereinafter called “Comcast,” and the City of Falcon Heights and the North Suburban Communications Commission, a municipal Joint Powers Commission, parties of the second part, hereinafter called “City” or "Commission”. WITNESSETH: WHEREAS, the City has awarded to Comcast a franchise for the operation of a cable communications system in the City; WHEREAS, the City has required, as a condition of its award of a cable communications
franchise, that the City and the Commission be indemnified with respect to all claims and actions arising from the award of said franchise; and WHEREAS, the term of the Indemnity Agreement shall not exceed 180 days’ from the Effective Date of the cable communications franchise, unless the City or the Commission has received
statutory notice of a claim based upon the renewal of the franchise. NOW THEREFORE, in consideration of the foregoing promises and the mutual promises contained in this agreement and in consideration of entering into a cable television franchise agreement and other good and valuable consideration, receipt of which is hereby acknowledged,
Comcast hereby agrees, at its sole cost and expense, to fully indemnify, defend and hold harmless the Commission and City, its officers, boards, commissions, employees and agents against any and all claims, suits, actions, liabilities and judgments for damages, cost or expense (including, but not limited to, court and appeal costs and reasonable attorneys' fees and disbursements assumed or incurred by the Commission and the City in connection therewith)
arising out of the actions of the City in granting a franchise to Comcast. This includes any claims by another franchised cable operator against the City or the Commission that the terms and conditions of the Comcast franchise are less burdensome than another franchise granted by the City that the Comcast Franchise does not satisfy the requirements of applicable federal, state, or local law(s). The indemnification provided for herein shall not extend or apply to any acts of the
Commission or the City constituting a violation or breach by the Commission or the City of the contractual provisions of the franchise ordinance, unless such acts are the result of a change in applicable law, the order of a court or administrative agency, or are caused by the acts of Comcast.
The Commission or the City shall give Comcast reasonable notice of the making of any claim or the commencement of any action, suit or other proceeding covered by this agreement. The Commission and the City shall cooperate with Comcast in the defense of any such action, suit or other proceeding at the request of Comcast. The Commission and the City may participate in the defense of a claim, but if Comcast provides a defense at Comcast’s expense then Comcast shall
not be liable for any attorneys' fees, expenses or other costs that the Commission and/or the City
may incur if it chooses to participate in the defense of a claim, unless and until separate representation is required. If separate representation to fully protect the interests of both parties is or becomes necessary, such as a conflict of interest, in accordance with the Minnesota Rules of Professional Conduct, between the Commission and/or the City and the counsel selected by
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Exhibit G – Indemnity Agreement
2
Comcast to represent the Commission and/or the City, Comcast shall pay, from the date such
separate representation is required forward, all reasonable expenses incurred by the Commission and the City in defending itself with regard to any action, suit or proceeding indemnified by Comcast. Provided, however, that in the event that such separate representation is or becomes necessary, and the Commission or the City desires to hire a counselor any other outside experts or consultants and desires Comcast to pay those expenses, then the Commission and/or the City
shall be required to obtain Comcast's consent to the engagement of such counsel, experts or consultants, such consent not to be unreasonably withheld. Notwithstanding the foregoing, the parties agree that the Commission and/or City may utilize at any time, at its own cost and expense, its own attorney or outside counsel with respect to any claim brought by another franchised cable operator as described in this agreement.
The provisions of this agreement shall not be construed to constitute an amendment of the cable communications franchise ordinance or any portion thereof but shall be in addition to and independent of any other similar provisions contained in the cable communications franchise ordinance or any other agreement of the parties hereto. The provisions of this agreement shall not
be dependent or conditioned upon the validity of the cable communications franchise ordinance or the validity of any of the procedures or agreements involved in the award or acceptance of the franchise, but shall be and remain a binding obligation of the parties hereto even if the cable communications franchise ordinance or the grant of the franchise is declared null and void in a legal or administrative proceeding.
It is the purpose of this agreement to provide maximum indemnification to the Commission and the City under the terms set out herein and, in the event of a dispute as to the meaning of this Indemnity Agreement, it shall be construed, to the greatest extent permitted by law, to provide for the indemnification of the Commission and the City by Comcast. This agreement shall be a
binding obligation of and shall inure to the benefit of, the parties hereto and their successor's and assigns, if any.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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Exhibit G – Indemnity Agreement
3
COMCAST OF MINNESOTA Dated: __________________, 2017 By: _______________________________ Its: _______________________________
The foregoing instrument was acknowledged before me this _____ day of 2017, by ______________________, the ___________________________ of Comcast of Minnesota, on behalf of the corporation.
___________________________________ NOTARY PUBLIC Print Name: ________________________
Bar Roll #/Notary ID #: ________________ My Commission Expires: ______________
CITY OF FALCON HEIGHTS By: __________________________________ Its: __________________________________
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1
CITY OF FALCON HEIGHTS RAMSEY COUNTY, MINNESOTA
CABLE TELEVISION FRANCHISE ORDINANCE SUMMARY
ORDINANCE NO. 17-03
AN ORDINANCE GRANTING A FRANCHISE TO COMCAST OF MINNESOTA, INC., D/B/A COMCAST
TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE COMMUNICATIONS SYSTEM IN THE CITY
OF FALCON HEIGHTS; SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE
FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM AND THE PUBLIC
RIGHTS-OF-WAY IN CONJUNCTION WITH THE CITY’S RIGHT-OF-WAY ORDINANCE, IF ANY, AND
PRESCRIBING PENALTIES FOR THE VIOLATION OF THE PROVISIONS HEREIN;
The City Council of the City of Falcon Heights ordains:
STATEMENT OF INTENT AND PURPOSE
The City intends, by the adoption of this Franchise, to bring about the further development of a
Cable System and the continued operation of it. Such development can contribute
significantly to the communication needs and desires of the residents and citizens of the City
and the public generally. Further, the City may achieve better utilization and improvement of
public services and enhanced economic development with the development and operation of a
Cable Communication System.
Adoption of this Franchise is, in the judgment of the Council, in the best interests of the City
and its residents.
The specific terms and conditions of the Franchise Ordinance, Sections 1 to 14, and Exhibits are
available for review at City Hall, Falcon Heights City Hall, 2077 West Larpenteur Avenue,
Falcon Heights, MN 55113-5594.
Passed and adopted this 11th day of October 2017.
ATTEST: CITY OF FALCON HEIGHTS
By: _______________________________ By: _____________________________
Its:City Administrator Its:Mayor
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REQUEST FOR COUNCIL ACTION
Families, Fields and Fair __________________________
The City That Soars!
Item Proposed Permit Parking – Falcon Woods
Description
On June 28, 2017, the City Council approve the installation of permitted parking signs on
Garden Ave and also the south portion of Moore Street and Howell Street after receiving a
petition of over 75% of property owners.
The Council received comments from property owners that if this was not extended
further north or the whole area, that the problem of non-residents or non-property owners
parking on the street would shift the problem north.
The Council approved the proposed site location as presented by staff and recommended
by the initial property owners, but recommend property owners that are north of the
proposed signage follow the same process of a petition. The City did receive an additional
petition for Moore Street, but wanted to wait for Prior and the rest of Howell.
After discussion and not wanting to piece out street by street, it was determined that the
best process would to blanket the whole area and modify the proposal based on feedback
from the residents and property owners in Falcon Woods.
Budget
Impact
The cost of additional signage and relocation of existing signs.
Attachment · Letters from Residents and Property Owners
o 1974 Autumn Street – Erin Williams
o 1984 Autumn Street – Daniel Jarl
o 1964 Autumn Street – Barbara Hartwick
· Resolution 17-28 Authorizing the Installation of Permitted Parking Signs in Falcon
Woods
· Site Map
Action(s)
Requested
Staff would recommend approval of attached resolution and authorize the installation of
signage for the proposed permitted sign locations.
Meeting Date October 11, 2017
Agenda Item Public Hearing E2
Attachment Document(s)
Submitted By Sack Thongvanh, City Administrator
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CITY OF FALCON HEIGHTS
RAMSEY COUNTY, MINNESOTA
COUNCIL RESOLUTION
October 11, 2017
No. 17-28
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - -
RESOLUTION AUTHORIZING THE INSTALLATION OF PERMITTED PARKING SIGNS IN FALCON WOODS
WHEREAS, the City Council on June 28, 2017 approved the installation of permitted parking signs in
Falcon Woods for Garden Ave, the south half of Moore Street and Howell Street; and
WHEREAS, The City Council received an additional petition for permitted parking for the north half of
Moore Street ; and
WHEREAS, it was determined that the best process was to blanket the whole area and modify the
proposal based on feedback from the residents and property owners in Falcon Woods.
NOW, THEREFORE, BE IT RESOLVED, that the Falcon heights City Council hereby designates and
authorize the installation of permitted parking signs for the following roadways:
1.Moore Street
2.Prior Ave
3.Howell Street
4.Summer Street
5.Autumn Street
Adopted by the city council of the City of Falcon Heights this 11th day of October, 2017.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Moved by: Approved by: ______
Peter Lindstrom
Mayor
LINDSTROM ____ In Favor Attested by:
BROWN THUNDER Sack Thongvanh
HARRIS ____ Against City Administrator
GUSTAFSON
FISCHER
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Ta
t
u
m
S
t
Fa
i
r
v
i
e
w
A
v
e
N
Prior Ave
Mo
o
r
e
S
t
Ho
w
e
l
l
S
t
Autumn St
Summer St
Li
n
d
i
g
S
t
Garden Ave
Pr
i
o
r
A
v
e
0 02050
0
0
1857
0
0
0
1892
1865
1825
1875
1815
1847
1887
1805
0
0
0
1804
18501860
1763
2038
1958
1785
1775
1765
1844
1968
1795
1870
1840
2048
1786
1782
1880 1870
1788
1821
2028
1781
1895
1981
1794
2018 2008
1984
1978
1923
1911
1905
1829
1802
1802
1836
1998 1988
1837
1803
1922
1842
1920 1888
1797
1854
1980
1813
1974
1918
1958
1869
1971 1811
1868
1854
19531977
1906
1930
1998
1905 1906
19001903
1891
1885 1890
18801879
1875
18601871
1857
1853
1849 1842
1837 1838
1831 1830
18241823
1815 1816
1808
1854
18041805
1942
1842
1929
1795
1811
1853
1791
1842
1966
19611969
1836
1828
1781
1854
1837
1826
1853
1810
1818
1812
1819
1987
1938
1935
1837
18621861
1853
1930
1847
1820
1845
20072015
1827
1834
1847
1997
1805
193819581948 19161966
1937
19641974 1954
19471957
1938
1965
1915
1997
1783
1777
1975 19271994
1941
1805
1799
1779 1776 1771 0
Legend
Current Permit Parking
Proposed Permit Parking Locations
Parcels
Road Names
¯
0 250 500 750 1,000125
Feet
Proposed On-Street Permit Parking
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REQUEST FOR COUNCIL ACTION
Families, Fields and Fair __________________________
The City That Soars!
Item 2017 Pavement Management Project Assessment Hearing. Approve Resolution adopting
and confirming assessment rolls for the 2017 Pavement Management Project.
Description
On September 13, 2017, the City Council set a date to hold a public hearing for the purpose
establishing special assessments for the 2017 Pavement Management Project, which
included improvements to the following streets:
◦ Folwell Ave, from Fulham St to Hoyt Ave
◦ Vincent St, from Hoyt Ave to Folwell Ave
◦ Northrup Ave, from Hoyt Ave to Folwell Ave
◦ Burton St, from Hoyt Ave to Folwell Ave
◦ Coffman St, From Hoyt Ave to Larpenteur Ave
It is suggested that the assessment hearing be conducted according to the attached agenda.
At the assessment hearing, staff will go through a brief presentation that will include a
description of the project, project financing, and a discussion of typical assessments for
properties benefiting from these improvements. Staff will summarize the City assessment
policy and how it has been applied to this project.
If questions come up regarding specific assessments or if amendments to the assessment
rolls are necessary, the hearing can be continued to the next Council meeting. This will
enable staff time to investigate concerns brought up during the Public Hearing and make
recommendations to the City Council.
Once the final assessment roll is adopted, the City allows for a 30-day pre-payment period.
Following the pre-payment period, assessment rolls are certified to Ramsey County for
collection. The City will have the rolls certified by mid- November in order to allow the
County enough time to add the assessments to property taxes.
This project was substantially completed at the end of September. This project has been
completed in accordance with the plans and specifications. The contractor has been
provided and is in the process of completing some corrective work.
It is suggested that if property owners have individual concerns about the quality of
construction as part of the project or specific information about project deficiencies, these
should be referred to the City Engineer. Typically, these kinds of complaints relate to
quality of finished construction and are covered under the one-year contract warranty
period. Correction of these types of problems should not delay the adoption of assessment
Meeting Date October 11, 2017
Agenda Item Public Hearing E3
Attachment Resolution & Proposed Assessment Roll
Submitted By Jesse Freihammer, City Engineer
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rolls.
Budget
Impact
The final assessment roll has been prepared in accordance with Falcon Heights’s
assessment policy and as outlined in the project feasibility report. Below is a Project
Financing Summary detailing the projected actual project costs for this improvement. This
project is being financed using the following funding sources:
· Assessments levied in accordance with the City’s assessment policy.
· Use of Municipal State Aid (MSA) and city funds to pay the City’s portion of the
project.
The final assessment roll has been prepared in accordance with the City’s assessment
policy and as outlined in the project feasibility report. The proposed assessment roll is
attached and will be presented in detail at the assessment hearing for this project.
The following table shows the project costs and funding breakdown for the project:
Construction &
Engineering MSAS Street
Assessments &
UofM Sanitary Storm
Water
(SPRWS)
Street 689,111.40$ 200,000.00$ 211,540.38$ 277,571.02$ -$ -$ -$
Storm 159,455.81$ -$ -$ -$ -$ 159,455.81$ -$
Sanitary 41,159.07$ -$ -$ -$ 41,159.07$ -$ -$
Pathway 106,223.81$ -$ 106,223.81$ -$ -$ -$ -$
Water SPRWS 502,147.30$ -$ -$ -$ -$ -$ 502,147.30$
Total 1,498,097.39$ 200,000.00$ 317,764.19$ 277,571.02$ 41,159.07$ 159,455.81$ 502,147.30$
Funding
A portion of the costs for the project will be assessed. The following table compares the
estimated assessment rates from the feasibility report to the assessment rates calculated
based on the project costs. Project costs include construction costs and engineering costs.
Per foot assessment rate Feasibility Report Project Costs
Street Improvements
Commercial/multi-unit $ 42.00 $ 43.50
Residential $ 28.00 $ 29.00
The Finance Director recommends the interest rate be set at 2% above the true interest rate,
which is 3% as has been standard practice on previous assessments. Therefore, the
recommended interest rate for the 2017 PMP is 5%
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The property owners can either pay the assessments in part or in full in October 2017 or
have them added to their property taxes with an interest rate to be set by the City Council.
The first installment of the assessment would be due in Spring 2018.
Attachment · Resolution 17-29 Adopting and Confirming Assessments for 2017 Pavement
Management Project
· Assessment Roll
Action(s)
Requested
Following the assessment hearing, staff would recommend approval of attached
resolution, adopting and confirming assessment rolls for the 2017 Pavement Management
Project.
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CITY OF FALCON HEIGHTS
RAMSEY COUNTY, MINNESOTA
COUNCIL RESOLUTION
October 11, 2017
No. 17-29
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - -
RESOLUTION ADOPTING AND CONFIRMING ASSESSMENTS FOR
2017 PAVEMENT MANAGEMENT PROJECT
WHEREAS, pursuant to proper notice duly given as required by law, the council has met and
heard and passed upon all objections to the proposed assessment for the 2017 Pavement
Management Project, the improvement of the following streets by the installation of paving,
concrete curb and gutter, drainage, and necessary appurtenances:
· Folwell Ave, from Fulham St to Hoyt Ave
· Vincent St, from Hoyt Ave to Folwell Ave
· Northrup Ave, from Hoyt Ave to Folwell Ave
· Burton St, from Hoyt Ave to Folwell Ave
· Coffman St, From Hoyt Ave to Larpenteur Ave;
NOW THEREFORE BE IT RESOLVED by the Council of the City of Falcon Heights, Minnesota:
1. Such proposed assessment, a copy of which is attached hereto and made a part hereof,
is hereby accepted and shall constitute the special assessment against the lands named
therein, and each tract of land therein included is hereby found to be benefited by the
proposed improvement in the amount of the assessment levied against it.
2. Such assessment shall be payable in equal annual principal installments extending over
a period of seven (7) years, the first of the installments to be payable on or before the
first Monday in January 2018, and shall bear interest at the rate of 5 percent per annum
from the date of the adoption of this assessment resolution. To the first installment
shall be added interest on the entire assessment from the date of this resolution until
December 31, 2017. To each subsequent installment, when due, shall be added interest
for one year on all unpaid installments.
3. The owner of any property so assessed may, at any time prior to certification of the
assessment to the county auditor, pay the whole of the assessment on such property,
with interest accrued to the date of payment, to the City Administrator, except that no
interest shall be charged if the entire assessment is paid within 30 days from the
adoption of the assessment. An owner may at any time thereafter, pay to the county
auditor the entire amount of the assessment remaining unpaid, with interest accrued to
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December 31 of the year in which such payment is made. Such payment must be made
before November 15 or interest will be charged through December 31 of the succeeding
year.
4. The City Administrator shall forthwith transmit a certified duplicate of this assessment
to the county auditor to be extended on the property tax lists of the county. Such
assessments shall be collected and paid over in the same manner as other municipal
taxes.
WHEREUPON said resolution was declared duly passed and adopted.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Moved by: Approved by:
Peter Lindstrom
Mayor
LINDSTROM ____ In Favor Attested by:
BROWN THUNDER Sack Thongvanh
HARRIS ____ Against City Administrator
GUSTAFSON
FISCHER
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SiteAddress SiteCityStateZIP Front Footage
Assessable
Footage
Assessment
rate %
Per foot
assessment Assessment Notes
2165 Hoyt Ave WF a l c o n Heights MN 55108‐1314 130.00 130.00 40% 29.00$ 3,770.00$
2161 Folwell Ave Falcon Heights MN 55108‐1306 75.00 75.00 40% 29.00$ 2,175.00$
2173 Folwell Ave Falcon Heights MN 55108‐1306 75.00 75.00 40% 29.00$ 2,175.00$
2099 Hoyt Ave WF a l c o n Heights MN 55108‐1314 95.00 0.00 40% 29.00$ ‐$
2159 Folwell Ave Falcon Heights MN 55108‐1306 75.00 75.00 40%29.00$ 2,175.00$
2111 Folwell Ave Falcon Heights MN 55108‐1306 74.00 74.00 40% 29.00$ 2,146.00$
2222 Folwell Ave Falcon Heights MN 55108‐1308 70.00 70.00 40% 29.00$ 2,030.00$
1569 Northrop St Falcon Heights MN 55108‐1321 60.00 60.00 40% 29.00$ 1,740.00$
1575 Northrop St Falcon Heights MN 55108‐1321 60.00 60.00 40% 29.00$ 1,740.00$
2292 Folwell Ave Falcon Heights MN 55108‐1309 60.00 60.00 40% 29.00$ 1,740.00$
2286 Folwell Ave Falcon Heights MN 55108‐1309 60.00 60.00 40% 29.00$ 1,740.00$
1595 Vincent St Falcon Heights MN 55108‐1324 70.00 70.00 40% 29.00$ 2,030.00$
2303 Folwell Ave Falcon Heights MN 55108‐1337 60.00 60.00 40% 29.00$ 1,740.00$
2297 Folwell Ave Falcon Heights MN 55108‐1307 60.00 60.00 40% 29.00$ 1,740.00$
2291 Folwell Ave Falcon Heights MN 55108‐1307 60.00 60.00 40% 29.00$ 1,740.00$
2285 Folwell Ave Falcon Heights MN 55108‐1307 60.00 60.00 40% 29.00$ 1,740.00$
2279 Folwell Ave Falcon Heights MN 55108‐1307 60.00 60.00 40% 29.00$ 1,740.00$
2273 Folwell Ave Falcon Heights MN 55108‐1307 60.00 60.00 40% 29.00$ 1,740.00$
2267 Folwell Ave Falcon Heights MN 55108‐1307 60.00 60.00 40% 29.00$ 1,740.00$
1572 Northrop St Falcon Heights MN 55108‐1322 75.00 75.00 40% 29.00$ 2,175.00$
1571 Burton St Falcon Heights MN 55108‐1302 90.00 90.00 40% 29.00$ 2,610.00$
1579 Burton St Falcon Heights MN 55108‐1302 75.00 75.00 40%29.00$ 2,175.00$
1587 Burton St Falcon Heights MN 55108‐1302 75.00 75.00 40% 29.00$ 2,175.00$
1586 Burton St Falcon Heights MN 55108‐1301 216.00 108.00 40% 29.00$ 3,132.00$
1578 Burton St Falcon Heights MN 55108‐1301 216.00 108.00 40% 29.00$ 3,132.00$
1580 Northrop St Falcon Heights MN 55108‐1322 75.00 75.00 40% 29.00$ 2,175.00$
1589 Vincent St Falcon Heights MN 55108‐1324 65.00 65.00 40% 29.00$ 1,885.00$
1588 Vincent St Falcon Heights MN 55108‐1323 63.40 63.40 40% 29.00$ 1,838.60$
2216 Folwell Ave Falcon Heights MN 55108‐1308 70.00 70.00 40% 29.00$ 2,030.00$
2208 Folwell Ave Falcon Heights MN 55108‐1308 70.00 70.00 40% 29.00$ 2,030.00$
1583 Vincent St Falcon Heights MN 55108‐1324 60.00 60.00 40% 29.00$ 1,740.00$
1577 Vincent St Falcon Heights MN 55108‐1324 70.00 70.00 40% 29.00$ 2,030.00$
1571 Vincent St Falcon Heights MN 55108‐1324 60.30 60.30 40%29.00$ 1,748.70$
1564 Vincent St Falcon Heights MN 55108‐1323 60.00 0.00 40% 29.00$ ‐$
1570 Vincent St Falcon Heights MN 55108‐1323 60.30 60.30 40% 29.00$ 1,748.70$
1576 Vincent St Falcon Heights MN 55108‐1323 61.20 61.20 40% 29.00$ 1,774.80$
1582 Vincent St Falcon Heights MN 55108‐1323 63.40 63.40 40% 29.00$ 1,838.60$
2243 Hoyt Ave WF a l c o n Heights MN 55108‐1318 60.00 0.00 40% 29.00$ ‐$
2190 Folwell Ave Falcon Heights MN 55108‐1304 355.00 129.00 40% 29.00$ 3,741.00$ long side/north side
2179 Folwell Ave Falcon Heights MN 55108‐1306 210.00 135.00 40% 29.00$ 3,915.00$ long side/west side
2202 Folwell Ave Falcon Heights MN 55108‐1308 213.00 143.00 40% 29.00$ 4,147.00$ long side
1603 Northrop Ave Falcon Heights MN 55108‐1321 98.40 98.40 40% 29.00$ 2,853.60$
1564 Burton St Falcon Heights MN 55108‐1301 216.00 108.00 40% 29.00$ 3,132.00$
1596 Northrop St Falcon Heights MN 55108‐1322 219.00 165.00 40% 29.00$ 4,785.00$
long side, 54' short side/north
side
2203 Hoyt Ave WF a l c o n Heights MN 55108‐1316 60.00 0.00 40% 29.00$ ‐$
1588 Northrop St Falcon Heights MN 55108‐1322 85.00 85.00 40% 29.00$ 2,465.00$
1595 Northrop St Falcon Heights MN 55108‐1321 75.00 75.00 40% 29.00$ 2,175.00$
2298 Folwell Ave Falcon Heights MN 55108‐1309 121.00 121.00 40% 29.00$ 3,509.00$
2280 Folwell Ave Falcon Heights MN 55108‐1309 116.00 86.00 40% 29.00$ 2,494.00$
long side, 30' short side/north
side
2271 Hoyt Ave WF a l c o n Heights MN 55108‐1319 60.00 0.00 40% 29.00$ ‐$
1596 Vincent St Falcon Heights MN 55108‐1323 163.00 163.00 40% 29.00$ 4,727.00$
1589 Northrop St Falcon Heights MN 55108‐1321 75.00 75.00 40% 29.00$ 2,175.00$
1583 Northrop St Falcon Heights MN 55108‐1321 65.00 65.00 40% 29.00$ 1,885.00$
2225 Hoyt Ave WFa l c o n Heights MN 55108‐1316 75.00 0.00 40% 29.00$ ‐$
2252 Folwell Ave Falcon Heights MN 55108‐1310 126.60 126.60 40% 29.00$ 3,671.40$
2105 Folwell Ave Falcon Heights MN 55108‐1306 74.00 74.00 40% 29.00$ 2,146.00$
2115 Folwell Ave Falcon Heights MN 55108‐1306 74.00 74.00 40% 29.00$ 2,146.00$
2151 Folwell Ave Falcon Heights MN 55108‐1306 75.00 75.00 40% 29.00$ 2,175.00$
2261 Folwell Ave Falcon Heights MN 55108‐1307 70.00 70.00 40%29.00$ 2,030.00$
2255 Folwell Ave Falcon Heights MN 55108‐1307 70.00 70.00 40% 29.00$ 2,030.00$
2249 Folwell Ave Falcon Heights MN 55108‐1307 70.00 70.00 40% 29.00$ 2,030.00$
2231 Folwell Ave Falcon Heights MN 55108‐1307 70.00 70.00 40% 29.00$ 2,030.00$
2217 Folwell Ave Falcon Heights MN 55108‐1307 70.00 70.00 40% 29.00$ 2,030.00$
2203 Folwell Ave Falcon Heights MN 55108‐1307 75.00 75.00 40% 29.00$ 2,175.00$
2225 Folwell Ave Falcon Heights MN 55108‐1307 70.00 70.00 40% 29.00$ 2,030.00$
2143 Folwell Ave Falcon Heights MN 55108‐1306 80.00 80.00 40% 29.00$ 2,320.00$
2243 Folwell Ave Falcon Heights MN 55108‐1307 70.00 70.00 40% 29.00$ 2,030.00$
2211 Folwell Ave Falcon Heights MN 55108‐1307 70.00 70.00 40% 29.00$ 2,030.00$
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SiteAddress SiteCityStateZIP Front Footage
Assessable
Footage
Assessment
rate %
Per foot
assessment Assessment Notes
2197 Folwell Ave Falcon Heights MN 55108‐1336 80.14 80.14 40% 29.00$ 2,324.06$
2189 Folwell Ave Falcon Heights MN 55108‐1336 197.71 137.57 40% 29.00$ 3,989.53$ Long side/east side
2137 Folwell Ave Falcon Heights MN 55108‐1306 80.00 80.00 40% 29.00$ 2,320.00$
2129 Folwell Ave Falcon Heights MN 55108‐1306 74.00 74.00 40% 29.00$ 2,146.00$
2121 Folwell Ave Falcon Heights MN 55108‐1306 74.00 74.00 40% 29.00$ 2,146.00$
2097 Folwell Ave Falcon Heights MN 55108‐1306 106.97 106.97 40%29.00$ 3,102.13$
2148 Folwell Ave Falcon Heights MN 55108‐1305 77.00 77.00 40% 29.00$ 2,233.00$
2124 Folwell St Falcon Heights MN 55108‐1305 75.00 75.00 40% 29.00$ 2,175.00$
2180 Folwell Ave Falcon Heights MN 55108‐1305 224.64 133.61 40% 29.00$ 3,874.69$
2170 Folwell Ave Falcon Heights MN 55108‐1305 77.00 77.00 40% 29.00$ 2,233.00$
2160 Folwell Ave Falcon Heights MN 55108‐1305 77.00 77.00 40% 29.00$ 2,233.00$
2154 Folwell Ave Falcon Heights MN 55108‐1305 77.00 77.00 40% 29.00$ 2,233.00$
2118 Folwell Ave Falcon Heights MN 55108‐1305 75.00 75.00 40% 29.00$ 2,175.00$
2112 Folwell Ave Falcon Heights MN 55108‐1305 80.00 80.00 40% 29.00$ 2,320.00$
2108 Folwell Ave Falcon Heights MN 55108‐1305 80.00 80.00 40% 29.00$ 2,320.00$
2098 Folwell Ave Falcon Heights MN 55108‐1305 185.14 98.41 40% 29.00$ 2,853.89$ Long side only
2140 Folwell Ave Falcon Heights MN 55108‐1305 79.00 79.00 40% 29.00$ 2,291.00$
2132 Folwell Ave Falcon Heights MN 55108‐1305 70.00 70.00 40% 29.00$ 2,030.00$
1666 Coffman St Unit 101 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 102 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 103 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 104 Falcon Heights MN 55108 3.66 3.66 60%43.50$ 159.30$
1666 Coffman St Unit 105 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 106 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 107 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 108 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 111 Falcon Heights MN 55108 3.66 3.66 60%43.50$ 159.30$
1666 Coffman St Unit 112 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 113 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 114 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 116 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 117 Falcon Heights MN 55108 3.66 3.66 60%43.50$ 159.30$
1666 Coffman St Unit 118 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 119 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 120 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 121 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 122 Falcon Heights MN 55108 3.66 3.66 60%43.50$ 159.30$
1666 Coffman St Unit 123 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 124 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 125 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 126 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 127 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 128 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 129 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 130 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 131 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 132 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 133 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 134 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 201 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 202 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 203 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 204 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 205 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 206 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 207 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 208 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 209 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 211 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 212 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 213 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 214 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 215 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 216 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 217 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 218 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 219 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 220 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 221 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 222 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 223 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
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SiteAddress SiteCityStateZIP Front Footage
Assessable
Footage
Assessment
rate %
Per foot
assessment Assessment Notes
1666 Coffman St Unit 225 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 226 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 227 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 228 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 229 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 230 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 231 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 232 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 233 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St #234 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 301 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 302 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 304 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 305 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 306 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St #307 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 308 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 311 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St #312 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 314 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 316 Falcon Heights MN 55108 3.66 3.66 60%43.50$ 159.30$
1666 Coffman St Unit 317 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 318 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 319 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 320 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St #321 Falcon Heights MN 55108 3.66 3.66 60%43.50$ 159.30$
1666 Coffman St Unit 322 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 324 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 325 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 326 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 327 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 328 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 329 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 330 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 331 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 332 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 333 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 334 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 313 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
1666 Coffman St Unit 315 Falcon Heights MN 55108 3.66 3.66 60% 43.50$ 159.30$
0 Folwell Ave Falcon Heights MN 55109 10.28 10.28 100% 72.50$ ‐$ UofM
0 Coffman St Falcon Heights MN 55110 143.35 143.35 100% 72.50$ ‐$ UofM
0 Folwell Ave Falcon Heights MN 55111 30.00 30.00 100% 72.50$ ‐$
N of Vincent Lot A ‐ Dedicated
to City in Resolution
0 Folwell Ave Falcon Heights MN 55112 30.00 30.00 100% 72.50$ ‐$
Trail ‐ Lot E Dedicated to City
in Resolution
2100 Larpenteur Ave WF a l c o n Heights MN 55113 252.00 252.00 100% 72.50$ ‐$
252' ‐ UofM East of Folwell
(tennis courts)
2100 Larpenteur Ave WF a l c o n Heights MN 55113 25.70 25.70 100% 72.50$ ‐$ UofM 25.7' North of Folwell
2100 Larpenteur Ave WF a l c o n Heights MN 55113 574.00 574.00 100% 72.50$ ‐$
UofM 574' West side of
Coffman
2100 Larpenteur Ave WF a l c o n Heights MN 55113 276.00 276.00 100% 72.50$ ‐$
City 276' East side of Coffman,
Park
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REQUEST FOR COUNCIL ACTION
Families, Fields and Fair __________________________
The City That Soars!
Item General Disbursements and Payroll
Description
General Disbursements through: 10/05/17 $139,104.43
Payroll through: 9/30/17 $18,217.08
Budget Impact The general disbursements and payroll are consistent with the budget.
Attachment(s) · General Disbursements and Payroll
Action(s)
Requested
Staff recommends that the Falcon Heights City Council approve general
disbursements and payroll.
Meeting Date October 11, 2017
Agenda Item Consent F1
Attachment General Disbursements and Payroll
Submitted By Roland Olson, Finance Director
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REQUEST FOR COUNCIL ACTION
Families, Fields and Fair __________________________
The City That Soars!
Item Designation of Polling Places for the 2018 State Primary and State General
Elections
Description
Laws of Minnesota 2017, Chapter 92, requires the governing body of each
municipality to designate the locations of its polling places for the following
election year.
Budget Impact N/A
Attachment(s) · Resolution 17-30 Designating Polling Places for the 2018 State Primary and
State General Elections
Action(s)
Requested
Staff recommends approval of attached resolution designating polling places for
the 2018 State Primary and State General Elections.
Meeting Date October 11, 2017
Agenda Item Consent F2
Attachment Resolution
Submitted By Sack Thongvanh, City Administrator
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CITY OF FALCON HEIGHTS RAMSEY COUNTY, MINNESOTA COUNCIL RESOLUTION October 11, 2017
No. 17-30 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - -
RESOLUTION DESIGNATING POLLING PLACES FOR THE 2018 STATE PRIMARY AND STATE GENERAL ELECTION
WHEREAS, Minnesota Statutes 204B.16, subd 1 requires the City Council, by ordinance or resolution, to
designate polling places for the upcoming year; and
WHEREAS, changes to the polling places locations may be made at least 90 days before the next election if one
or more of the authorized polling places becomes unavailable for use; and
WHEREAS, changes to the polling place locations may be made in the case of an emergency when it is necessary
to ensure a safe and secure location for voting; and
WHEREAS, the state primary is August 14, 2018 and the state general election is November 6, 2018.
NOW, THEREFORE, BE IT RESOLVED, that the Falcon heights City Council hereby designates the following polling
places for elections conducted in the city in 2018:
Precinct 1 Falcon Heights City Hall
2077 W. Larpenteur Ave
Falcon Heights, MN 55113
Precinct 2 United Church of Christ
1795 Holton Street
Falcon Heights, MN 55113
AND BE IT FURTHER RESOLVED, that the city clerk is hereby authorized to designate a replacement meeting the
requirements of the Minnesota Election Law for any polling place designated in this Resolution that becomes
unavailable for use by the City;
AND BE IT FURTHER RESOLVED, that the city clerk is hereby authorized to designate an emergency replacement
polling place meeting the requirements of the Minnesota Election Law for any polling place designated in this
Resolution when necessary to ensure a safe and secure location for voting;
AND BE IT FURTHER RESOLVED, that the city clerk is directed to send a copy of this resolution and any
subsequent polling place designations to the Ramsey County Elections Office.
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Adopted by the city council of the City of Falcon Heights this 11th day of October, 2017.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Moved by: Approved by: ________________________
Peter Lindstrom Mayor LINDSTROM ____ In Favor Attested by: ________________________ BROWN THUNDER Sack Thongvanh
HARRIS ____ Against City Administrator FISCHER GUSTAFSON
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REQUEST FOR COUNCIL ACTION
Families, Fields and Fair __________________________
The City That Soars!
Item Approve Payment #6 to Valley Paving, Inc. for the 2017 Pavement Management Project
Description
On March 22, 2017, the City Council awarded the 2017 Pavement Management Project
(PMP) to Valley Paving, Inc.
Payment #6 is in the amount of $114,888.24 and includes the following work:
· Pathway work
· Paving
· Landscaping
· Sidewalk
With this pay estimate, the total amount paid to date on this project is $1,242,485.96 or
83.56% of the original contract price.
Budget
Impact
Of the $114,888.24 being paid to the contractor, $14,736.47 will be reimbursed to the City by
Saint Paul Regional Water Services for watermain related work.
This project is being funded from the following sources:
· Special Assessments
· Municipal State Aid (MSA) dollars
· City funds (infrastructure, utility)
· Saint Paul Regional Water Services
Attachment · Payment #6
Action(s)
Requested
Approve Payment #6 to Valley Paving, Inc. for the 2017 Pavement Management Project.
Meeting Date October 11, 2017
Agenda Item Consent F3
Attachment Payment #6
Submitted By Jesse Freihammer, City Engineer
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REQUEST FOR COUNCIL ACTION
Families, Fields and Fair __________________________
The City That Soars!
Item Sanitary Fund Transfer to Reduce Debt Service Payments in 2018 and Amend
Budget Revenue and Expenditure Line Items
Description
Staff recommends a transfer of funds from Sanitary Sewer Fund (601) in the amount
of $25,000 to the GO Improvement Bond Series 2013A (311) and a transfer of funds
from Sanitary Sewer Fund (601) in the amount of $125,000 to the GO Improvement
Bond Series 2017A (316) to reduce the 2018 debt levy for these two bonds.
Staff also recommends the following budget amendments to the financial
statements..
2017 Budget Amount
REVENUE:
GO Improvement Bonds Series 2013A:
311-39200 Transfer $25,000
GO Improvement Bonds Series 2017A:
316-39200 Transfer $125,000
EXPENDITURE:
Sanitary Sewer Fund (601):
601-4601-97000 Transfer $150,000
Budget Impact Transfer of funds from Sanitary Sewer Fund (601) to the GO Improvement Bond
Series 2013A (311) and GO Improvement Bond Series 2017A (316) with budget
amendments
Attachment(s) NA
Action(s)
Requested
Staff recommends a transfer of funds from Sanitary Sewer Fund (601) in the amount
of $25,000 to the GO Improvement Bond Series 2013A (311) and a transfer of funds
from Sanitary Sewer Fund (601) in the amount of $125,000 to the GO Improvement
Bond Series 2017A (316) to reduce the 2018 debt levy for these two bonds. Staff also
recommends amending the budget line items as listed above.
Meeting Date October 11,2017
Agenda Item Consent F4
Attachment N/A
Submitted By Roland Olson, Finance Director
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