HomeMy WebLinkAboutOrdinance 910 ORDINANCE NO. 910
CITY OF MOUNDS VIEW
CABLE TELEVISION FRANCHISE ORDINANCE
Date: November 23, 2015
Prepared by:
Michael R. Bradley
Bradley Hagen& Gullikson, 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
SECTION 1. SHORT TITLE AND DEFINITIONS l
1. Short Title 1
2. Definitions 1
SECTION 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS 5
1. Grant of Franchise 5
2. Grant of Nonexclusive Authority 7
3. Lease or Assignment Prohibited 7
4. Franchise Term 7
5. Compliance with Applicable Laws, Resolutions and Ordinances 7
6. Rules of Grantee 8
7. Territorial Area Involved 9
8. Written Notice 10
SECTION 3. CONSTRUCTION STANDARDS 11
1. Registration, Permits and Construction Codes 11
2. Repair of Rights-of-Way and Property 11
3. Conditions on Right-of-Way Use 12
4. Undergrounding of Cable 12
5. Installation of Facilities 13
6. Safety Requirements 13
SECTION 4. DESIGN PROVISIONS 13
1. System Design. 13
2. Interruption of Service 13
3. Technical Standards 14
4. Special Testing 14
5. Drop Testing and Replacement 14
6. FCC Reports 14
7. Interconnection 14
8. Nonvoice Return Capability 15
9. Lockout Device 15
SECTION 5. SERVICE PROVISIONS 15
1. Regulation of Service Rates 15
2. Sales Procedures 15
3. Subscriber Inquiry and Complaint Procedures 15
4. Subscriber Contracts 16
5. Refund Policy 16
6. Late Fees 16
7. Office Policy 16
SECTION 6. ACCESS CHANNEL(S) PROVISIONS 17
1. Public, Educational and Government Access 17
2. Charges for Use 20
3. Access Rules 20
4. Access Support 20
5. Regional Channel 6 20
6. State and Federal Law compliance 20
7. Future PEG Funding Obligations 20
8. Additional Payments 21
SECTION 7. SERVICES TO CITY 21
1. Twin Cities Metro PEG Interconnect Network 21
2. Cable Service to Public Buildings 21
SECTION 8. OPERATION AND ADMINISTRATION PROVISIONS 22
1. Administration of Franchise 22
2. Delegated Authority 22
3. Franchise Fee 22
4. Access to Records 24
5. Reports and Maps 24
6. Periodic Evaluation 24
SECTION 9. GENERAL FINANCIAL AND INSURANCE PROVISIONS 25
1. Performance Bond 25
2. Letter of Credit 26
3. Indemnification of City 28
4. Insurance 29
SECTION 10. SALE, ABANDONMENT, TRANSFER AND REVOCATION OF
FRANCHISE 29
1. City's Right to Revoke 29
2. Procedures for Revocation 30
3. Abandonment of Service 30
4. Removal After Abandonment, Termination or Forfeiture 30
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5. Sale or Transfer of Franchise 31
SECTION 11. PROTECTION OF INDIVIDUAL RIGHTS 32
1. Discriminatory Practices Prohibited 32
2. Subscriber Privacy 33
SECTION 12. UNAUTHORIZED CONNECTIONS AND MODIFICATIONS 33
1. Unauthorized Connections or Modifications Prohibited 33
2. Removal or Destruction Prohibited 33
3. Penalty 34
SECTION 13. MISCELLANEOUS PROVISIONS 34
1. Franchise Renewal 34
2. Work Performed by Others 34
3. Amendment of Franchise Ordinance 34
4. Compliance with Federal, State and Local Laws 34
5. Nonenforcement by City 35
6. Rights Cumulative 35
7. Grantee Acknowledgment of Validity of Franchise 35
8. Force Majeure 35
SECTION 14. PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS 35
1. Publication: Effective Date 35
2. Acceptance 36
EXHIBIT A- INDEMNITY AGREEMENT Ex. A 1
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ORDINANCE NO. 910
AN ORDINANCE GRANTING A FRANCHISE TO QWEST BROADBAND SERVICES,
INC., D/B/A CENTURYLINK, TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE
COMMUNICATIONS SYSTEM IN THE CITY OF MOUNDS VIEW; 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 Mounds View ordains:
STATEMENT OF INTENT AND PURPOSE
Qwest Broadband Services, Inc., d/b/a CenturyLink("Grantee"), applied for a cable franchise to
serve the City. The City will adopt separate findings related to the application and the decision
to grant a cable franchise to Grantee, which shall be incorporated herewith by reference. The
City intends,by the adoption of this Franchise,to bring about competition in the delivery of
cable services in the City.
Adoption of this Franchise is, in the judgment of the Council, in the best interests of the City and
its residents.
SECTION 1. SHORT TITLE AND DEFINITIONS
1. Short Title. This Franchise Ordinance shall be known and cited as the
CenturyLink 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"means any service tier which includes the lawful
retransmission of local television broadcast signals and any public, educational,
and governmental access programming required by the Franchise to be carried on
the basic tier. Basic Cable Service as defined herein shall not be inconsistent with
47 U.S.C. § 543(b)(7).
b. "City"means City of Mounds View, 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"means the provision of communications and/or
entertainment services as "Cable Service" is defined by Minn. Stat. § 238.01 et
seq. and 47 U.S.0 § 521 et seq., as may be amended from time to time, but
including Institutional Network services. Cable Service shall also include any
video programming service for which a franchise from a local government is
permitted under state law.
e. "Cable System" or"System"means a system of antennas, cables, wires, lines,
towers, waveguides, or other conductors, Converters, equipment, or facilities
located in City and designed and constructed for the purpose of producing,
receiving, transmitting, amplifying, or distributing audio, video, and data. System
as defined herein shall not be inconsistent with the definitions set forth in Minn.
Stat. § 238.02, subd. 3 and 47 U.S.C. § 522(7). This definition shall include any
facility that is a"cable system"under federal law or a"cable communications
system"under state law.
f. "Commercial Need" or"Marketplace Need"means such need or market demand
which City and Grantee may jointly determine requires action or performance by
Grantee as specifically set forth in this Franchise. Such determination shall be
based upon evidence and information presented by City, Grantee and other
interested parties at a duly noticed public proceeding. Grantee shall have an
opportunity to present evidence regarding the level of market demand,the cost of
meeting such demand and the availability of technologies to meet such demand.
Any decision regarding Commercial or Marketplace Need which requires action
by Grantee shall not be unreasonable.
g. "Commission"means the North Suburban Communications Commission, a
municipal Joint Powers Commission.
h. "Converter"means an electronic device 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.
i. "Drop"means the cable that connects the ground block on the Subscriber's
residence or institution to the nearest feeder cable of the System.
j. "FCC"means the Federal Communications Commission and any legally
appointed, designated or elected agent or successor.
k. "Franchise"or"Cable Franchise"means this ordinance and the regulatory and
contractual relationship established hereby.
1. "Grantee"is Qwest Broadband Services, Inc., d/b/a CenturyLink, its lawful
successors,transferees or assignees.
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m. "Gross Revenues" shall be defined as and shall be construed broadly to include all
revenues derived directly or indirectly by Grantee and/or an Affiliate that is a
cable operator of the Cable System, from the operation of Grantee'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 Grantee 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 Grantee 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 Grantee's
Cable System within the City and shall be allocated on apro rata basis using total
Cable Service subscribers reached by the advertising. Additionally, Grantee
agrees that Gross Revenues subject to franchise fees shall include all commissions
paid to third parties 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 services furnished by Grantee 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 Grantee for the provision of a
discounted bundle of services which includes Cable Services and non-
Cable Services, Grantee shall calculate revenues to be included in Gross
Revenues using a methodology that allocates revenue on apro 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
Grantee 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
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included in a service package that contains Cable Service. The NSCC
reserves its right to review and to challenge Grantee'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 Grantee but does not include
affiliated entities that are not directly or indirectly involved with the
programming,use, management, operation, construction,repair and/or
maintenance of Grantee 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 Grantee's calculation of Gross
Revenues, including the use or interpretation of GAAP as promulgated
and defined by the FASB, EITF and/or the SEC.
n. "Household"means a distinct address in the Qwest Corporation("QC")network
database, whether a residence or small business, subscribing to or being offered
cable service. Grantee represents and warrants that it has access to the QC
network database and shall demonstrate to the City's reasonable satisfaction how
the data required in Section 2 are calculated and reported using the QC network
database.
o. "Installation"means the connection of the System from feeder cable to the point
of connection with the Subscriber Converter or other terminal equipment.
p. "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.
q. "North Suburbs Access Corporation"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.
r. "North Suburban System"means the Cable System located in those municipalities
collectively comprising the North Suburban Cable Commission.
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s. "Pay Television"means the delivery over the System of pay-per-channel or pay-
per-program audio-visual signals to Subscribers for a fee or charge, in addition to
the charge for Basic Cable Service or Cable Programming Services.
t. "Person" is any person, firm,partnership, association, corporation, company, or
other legal entity, but does not include the City or Commission.
u. "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.
v. "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.
w. "Set Top Box"means an electronic device(sometimes referred to as a receiver)
which may serve as an interface between a System and a Subscriber's television
monitor and which may convert signals to a frequency acceptable to a television
monitor of a Subscriber and may, by an appropriate selector,permit a Subscriber
to view all signals of a particular service
x. "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. The Municipal Code
of the City, as the same may be amended from time to time, is hereby expressly
incorporated into this Franchise as if fully set out herein by this reference.
Notwithstanding the foregoing, the City may not unilaterally alter the material
rights and obligations of Grantee under this Franchise.
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. The parties acknowledge that Grantee intends that Qwest Corporation("QC"), an
affiliate of Grantee, will be primarily responsible for the construction and
installation of the facilities in the Rights-of-Way, constituting the cable
communications system, which will be utilized by Grantee to provide cable
service. Grantee promises, as a condition of exercising the privileges granted by
this Franchise,that any affiliate of the Grantee, including QC, directly or
indirectly involved in the construction, management, or operation of the cable
communications system will comply with all applicable federal, state and local
laws, rules and regulations regarding the use of the City's rights of way. The
City agrees that to the extent QC violates any applicable laws, rules and
regulations,the City shall first seek compliance directly from QC. In the event,
the City cannot resolve these violations or disputes with QC, or any other affiliate
of Grantee,then the City may look to Grantee to ensure such compliance. Failure
by Grantee to ensure QC's or any other affiliate's compliance with applicable
laws,rules and regulations shall be deemed a material breach of this Franchise by
Grantee. To the extent Grantee constructs and installs facilities in the rights-of-
way, such installation will be subject to the terms and conditions contained herein.
f. 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.
g. 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.
h. This Franchise does not authorize Grantee to provide telecommunications service,
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
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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 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.
a. The Grantee shall have the right and privilege, subject to the permitting and other
lawful requirements of City ordinance,rule or procedure,to construct, erect, and
maintain, in, upon, along, across, above, over and under the Rights-of-Way in
City a Cable System and shall have the right and privilege to provide Cable
Service. The System constructed and maintained by Grantee or its agents shall
not interfere with other uses of the Rights-of-Way. Grantee shall make use of
existing poles and other above and below facilities available to Grantee to the
extent it is technically and economically feasible to do so.
b. Notwithstanding the above grant to use Rights-of-Way, no Right-of-Way shall be
used by Grantee if City determines that such use is inconsistent with the terms,
conditions, or provisions by which such Right-of-Way was created or dedicated,
or with the present use of the Right-of-Way.
c. This Franchise shall be nonexclusive, and City reserves the right to grant a
franchise to any Person at any time during the period of this Franchise for the
provision of Cable Service. The terms and conditions of any such franchise shall
be, when taken as a whole, no less burdensome or more beneficial than those
imposed upon Grantee pursuant to this Franchise.
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.
4. Franchise Term. This Franchise shall be in effect for a period of five (5) years
from the date of acceptance by Grantee, unless sooner renewed, revoked or terminated as herein
provided.
5. 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
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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, Paragraph 3 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 and/or Section 8, Paragraph 5(c)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 and/or Section 8, Paragraph 5(c) of
this Franchise and any City ordinance or regulation which addresses usage of the
Rights-of-Way,the conflicting terms in Section 3 and/or Section 8, Paragraph
5(c) 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 and/or Section 8, Paragraph 5(c) 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.
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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, Paragraph 8.
The City or Commission shall provide a written response within fourteen(14)
days of receipt 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.
6. 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
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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.
7. 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,
subject Paragraph 7(a) (Reasonable Build-Out of the Entire City)below. 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. .
a. Reasonable Build-Out of the Entire City. The Parties recognize that Grantee, or
its affiliate,has constructed a legacy communications system throughout the City
that is capable of providing voice grade service. The Parties further recognize that
Grantee or its affiliate must expend a significant amount of capital to upgrade its
existing legacy communications system and to construct new facilities to make it
capable of providing cable service. Further,there is no promise of revenues from
cable service to offset these capital costs. The Parties agree that the following is a
reasonable build-out schedule taking into consideration Grantee's market success
and the requirements of Minnesota state law.
(i) Complete Equitable Build-Out. Grantee aspires to provide cable service
to all households within the City by the end of the initial term of this
Franchise. In addition, Grantee commits that a significant portion of its
investment will be targeted to areas below the median income in the City.
(ii) Initial Minimum Build-Out Commitment. Grantee agrees to be capable of
serving a minimum of fifteen percent(15%) of the City's households with
cable service during the first two (2)years of the initial Franchise term,
provided, however that Grantee will make its best efforts to complete such
deployment within a shorter period of time. This initial minimum build-
out commitment shall include deployment to households equitably
throughout the City and to a significant number of households below the
medium income in the City. Nothing in this Franchise shall restrict
Grantee from serving additional households in the City with cable service;
(iii) Quarterly Meetings. Commencing January 1, 2016, and continuing
throughout the term of this Franchise, Grantee shall meet quarterly with
the Executive Director of the Commission. At each quarterly meeting,
Grantee shall present information acceptable to the City/Commission(to
the reasonable satisfaction of the City/Commission) showing the number
of households Grantee is presently capable of serving with cable service
and the number of households that Grantee is actually serving with cable
service. Grantee shall also present information acceptable to the
City/Commission(to the reasonable satisfaction of the City/Commission)
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that Grantee is equitably serving all portions of the City in compliance
with this Section 2, Paragraph 7. In order to permit the City/Commission
to monitor and enforce the provisions of this section and other provisions
of this Franchise, the Grantee shall promptly, upon reasonable demand,
show to the City/Commission(to the City/Commission's reasonable
satisfaction)maps and provide other documentation showing exactly
where within the City the Grantee is currently providing cable service;
(iv) Additional Build-Out Based on Market Success. If, at any quarterly
meeting, Grantee is actually serving twenty seven and one-half percent
(27.5%) of the Households capable of receiving cable service, then
Grantee agrees the minimum build-out commitment shall increase to
include all of the Households then capable of receiving cable service plus
an additional fifteen(15%) of the total households in the City, which
Grantee agrees to serve within two (2)years from the quarterly meeting;
provided, however,the Grantee shall make its best efforts to complete
such deployment within a shorter period of time. For example, if, at a
quarterly meeting with the Commission's Executive Director, Grantee
shows that it is capable of serving sixty percent of the households in the
City with cable service and is actually serving thirty percent of those
households with cable service,then Grantee will agree to serve an
additional fifteen percent of the total households in the City no later than 2
years after that quarterly meeting(a total of 75% of the total households).
This additional build-out based on market success shall continue until
every household in the City is served;
(v) Line Extension. Grantee shall not have a line extension obligation until
the first date by which Grantee is providing Cable Service to more than
fifty percent(50%) of all subscribers receiving facilities based cable
service from both the Grantee and any other provider(s) of cable service
within the City. At that time,the City/Commission, in its reasonable
discretion and after meeting with Grantee, shall determine the timeframe
to complete deployment to the remaining households in the City, including
a density requirement that is the same or similar to the requirement of the
incumbent franchised cable operator.
8. 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 Mounds View
2401 County Road 10
Mounds View, Minnesota 55112
Attention: City Manager/Administrator
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With copies to: North Suburban Cable Communications Commission
2670 Arthur Street
Roseville, Minnesota 55113
And to: Michael R. Bradley
Bradley Hagen& Gullikson, LLC
1976 Wooddale Drive, Suite 3A
Woodbury, Minnesota 55125
If to Grantee: Qwest Broadband Services, Inc., d/b/a CenturyLink
1801 California St., 10th Flr.
Denver, CO 80202
Attn: Public Policy
With copies to: Qwest Broadband Services Inc., d/b/a CenturyLink
200 S. 5th Street, 21st Flr.
Minneapolis,MN 55402
Attn: Public Policy
Such addresses may be changed by either party upon notice to the other party given as provided
in this Section.
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. Failure to obtain permits or comply with permit requirements shall be grounds for
revocation of this Franchise or any lesser sanctions provided herein or in any
other applicable law.
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
promptly perform the restoration required herein, after written request of City and
reasonable opportunity 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.
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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, at its own expense,
upon reasonable notice by City, remove and relocate its poles,wires, cables,
conduits, manholes and other fixtures of the System and in each instance comply
with the reasonable and lawful standards and specifications of City.
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.
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
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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 Design.
a. Grantee shall develop,construct and operate a state-of-the-art cable
communications system, constructed in accordance with Section 2, Paragraph
(7)(a).
b. All final programming decisions remain the discretion of Grantee,provided that
Grantee notifies City and Subscribers in writing thirty(30) days prior to any
channel additions, deletions, or realignments, and further subject to Grantee's
signal carriage obligations hereunder and pursuant to 47 U.S.C. §§ 531-536, and
further subject to City's rights pursuant to 47 U.S.C. § 545. Location and
relocation of the PEG Channels shall be governed by Section 6, Paragraph 1(d).
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 for a total period of more than forty eight(48)hours in
any thirty(30) day period, Subscribers shall be credited pro rata for such interruption, upon
request.
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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, Sections 76.601 to 76.617, as applicable, as may be
amended or modified from time to time, which regulations are expressly incorporated herein by
reference.
4. Special Testing.
a. The City 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 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 shall meet with Grantee
prior to requiring special tests to discuss the need for such and, if possible,
visually inspect those locations which are the focus of concern. If, after such
meetings and inspections, City wishes to commence special tests and the thirty
(30) days have elapsed without correction of the matter in controversy or
unresolved complaints,the tests shall be conducted at Grantee's expense by a
qualified engineer selected by City and Grantee, and Grantee shall cooperate in
such testing.
5. Drop Testing and Replacement. The Grantee shall replace, at no separate charge
to an individual Subscriber, all Drops and/or associated passive equipment incapable of passing
the full System capacity at the time a Subscriber upgrades.
6. 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.
7. 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. In addition, Grantee shall make
available for interconnection purposes one (1) channel for forward video purposes, one (1) six
(6) MHz channel for return video purposes, one (1) channel for forward data or other purposes,
and one(1) channel for return data or other purposes between all Systems adjacent to the North
Suburban System and under common ownership with Grantee. This commitment may be
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satisfied through the provision of the Twin Cities Metro PEG Interconnect Network, provided
Grantee agrees to allow all cities adjacent to the North Suburban System to participate.
8. Nonvoice Return Capability. Grantee is required to use cable and associated
electronics having the technical capacity for nonvoice return communications.
9. Lockout Device. Upon the request of a Subscriber, Grantee shall make available
a Lockout Device 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 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 at least one billing cycle prior to the effective date of the change. Bills
must be clear, concise, and understandable, with itemization of all charges.
2. 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 and in all general solicitation materials marketing the Grantee or its services as a
whole, Grantee shall inform the non-Subscriber of all levels of service available, including the
lowest priced and free service tiers. Grantee shall have the right to market door-to-door during
reasonable hours consistent with local ordinances and regulation.
3. 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 time under normal operating
conditions,measured on a quarterly basis. Under normal operating conditions,
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the customer will receive a busy signal less than three (3)percent of the time.
Grantee shall respond to written complaints 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. Such written records shall be on file at the office of Grantee.
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.
d. Subscriber requests for repairs shall be performed within thirty-six(36)hours of
the request 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.
4. Subscriber Contracts. Grantee shall file with City 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.
5. 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.
6. 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 may not exceed the actual costs to Grantee of
late payment of bills and the servicing and collecting of such accounts.
7. Office Policy. The Grantee shall install,maintain and operate, throughout the
term of this Franchise, a single staffed payment center with regular business hours in the
Commission Franchise Area at a location agreed upon by the Commission and the Grantee.
Additional payment centers may be installed at other locations. The purpose of the payment
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center(s) shall be to receive Subscriber payments. All subscriber remittances at a payment center
shall be posted to Subscribers' accounts within forty-eight(48)hours of remittance. Subscribers
shall not be charged a late fee or otherwise penalized for any failure by the Grantee to properly
credit a Subscriber for a payment timely made. The Grantee shall, at the request of and at no
delivery or retrieval charge to a Subscriber, deliver or retrieve electronic equipment(e.g., Set
Top Boxes and remote controls). After consultation with the Commission,the Grantee shall
provide Subscribers with at least sixty(60)days' prior notice of any change in the location of the
customer service center serving the North Suburban System, which notice shall apprise
Subscribers of the customer service center's new address, and the date the changeover will take
place.
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. Within one hundred twenty(120)days from the Effective Date, the Grantee shall
provide sixteen(16) channels(the "Access Channels")to be used for PEG access
programming on the basic service tier. The City and Commission have the sole
discretion to designate the use of each Access Channel. Grantee shall provide a
technically reliable path for upstream and downstream transmission of the Access
Channels, which will in no way degrade the technical quality of the Access
Channels, from an agreed upon demarcation point at the Commission's Master
Control Center at the Commission's office, and from any other designated Access
providers' locations,to Grantee's headend, on which all Access Channels shall be
transported for distribution on Grantee's subscriber network. The Access
Channels shall be delivered without degradation to subscribers in the technical
format(e.g. HD or SD) as delivered by the Commission and any designated
Access provider to Grantee at each demarcation point at the Commission Office
and at the designated Access providers' locations.
(1) All of the Access Channels will be made available through a multi-
channel display(i.e. a picture in picture feed) on a single TV screen called
a"mosaic" (the"North Suburban Mosaic"), where a cable subscriber can
access via an interactive video menu one of any of the sixteen Access
Channels. The North Suburban Mosaic will be located on Channel 15.
The sixteen Access Channels will be located at Channels 8010-8025. The
North Suburban Mosaic will contain only Access Channels authorized by
the Commission.
(2) Grantee will make available to the Commission the ability to place
detailed scheduled Access Channel programming information on the
interactive channel guide by putting the Commission in contact with the
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electronic programing guide vendor("EPG provider")that provides the
guide service (currently Gracenote). Grantee will be responsible for
providing the designations and instructions necessary to ensure the Access
Channels will appear on the programming guide throughout the City and
any necessary headend costs associated therewith. The Commission shall
be responsible for providing programming information to the EPG
provider.
(3) For purposes of this Franchise,the term channel shall be as commonly
understood and is not any specific bandwidth amount. The signal quality
of the Access Channels shall be the same as the local broadcast channels,
provided such signal quality is delivered to Grantee at the Access
Channels' respective demarcation points.
(4) Grantee will provide, at no cost to the Commission, air time on non-
Access channels during periods in which ample unsold/unused air time on
such channels exists for City public service announcements (PSAs). The
Commission will provide a 30-second PSA prior to the start of each month
on a mutually agreed-upon schedule.
(5) 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 Access Channels in accordance with the requirements
of the Franchise.
(6) 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.
(7) Within one hundred twenty(120)days of a written request from the
Commission, Grantee shall make available as part of Basic Service to all
Subscribers a PEG Access Video-on Demand(PEG-VOD) Service and
maintain a PEG-VOD system. The PEG-VOD system shall be connected
by the Grantee such that:
(i) Twenty-five (25)hours of programming per member city of the
Commission, or such greater amount as may be mutually agreed to
by the parties, as designated and supplied by the City,
Commission, or its Designated Access Provider to the Grantee may
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be electronically transmitted and/or transferred and stored on the
PEG-VOD system; and
(ii) A database of that programming may be efficiently searched and a
program requested and viewed over the PEG-VOD system by any
Subscriber in the City; and
(iii) Programming submitted for placement on the PEG-VOD system,
shall be placed on and available for viewing from the PEG-VOD
system within forty-eight (48)hours of receipt of said
programming;
(iv) The hardware and software described in Subsection(8) below,
shall be in all respects of the same or better technical quality as the
hardware and software utilized by Grantee in the provision of any
other video on demand services offered over the Cable System,
and shall be upgraded at Grantee's cost,when new hardware or
software is utilized on Grantee's Cable System for other video on
demand services. Grantee shall provide reasonable technical
assistance to allow for proper use and operation when encoding
hardware or software is installed and/or upgraded at City's
facilities.
(8) To ensure compatibility and interoperability, the Grantee shall supply and
maintain all necessary hardware and software to encode, transmit and/or
transfer Government Access programming from the City to the PEG-VOD
system. The City shall be responsible for all monitoring of any equipment
provided under this Section, and notifying Grantee of any problems.
Grantee shall provide all technical support and maintenance for the
equipment provided to the City by Grantee under this Section. After
notification of any equipment problems, Grantee shall diagnose and
resolve the problem within forty eight(48)hours. Major repairs which
cannot be repaired within the forty eight(48)hour timeframe shall be
completed within seven(7) days of notice, unless, due to Force Majeure
conditions, a longer time is required. "Major repairs"are those that
require equipment to be specially obtained in order to facilitate the repairs.
The quality of signal and the quality of service obtained by a Subscriber
utilizing the PEG-VOD service shall meet or exceed the quality standards
established for all other programming provided by the Grantee and as
established elsewhere in this Franchise Agreement.
c. All residential Subscribers who receive all or any part of the total services offered
on the System shall be eligible to receive the Access Channels at no additional
charge. 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
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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.
d. Grantee may not move or otherwise change the channel number or location of any
public or government access or community program channel, including the North
Suburban Mosaic channel,without the written approval of the City or its
designee. Upon six(6)months' notice to City, any other 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 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. This
paragraph shall not apply to Regional Channel 6.
2. Charges for Use. Channel time and playback of programming on the PEG access
and community program channel(s)must be provided without charge to City and the public.
3. Access Rules. City, or its designee, shall implement rules for use of any access
channel(s).
4. Access Support. Grantee shall pay a PEG Fee of$4.15/subscriber/month from the
effective date until the franchise renews. Starting with the 2016 calendar year,the City may
elect to increase this fee based on the Consumer Price Index. Any such election must be made
in writing to the Franchisee no later than September 1St prior to the year in which the increase
shall apply. In no event shall the PEG Fee be in an amount different from the incumbent cable
provider. In the event the incumbent recovers from subscribers a higher, or lower, PEG fee,
Grantee will increase, or decrease, its PEG fee upon ninety(90) days written notice from the
City. The PEG fee may be used for operational or capital support of PEG programming.
5. Regional Channel 6. Grantee shall designate standard VHF Channel 6 for
uniform regional channel usage.
6. 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.
7. Future PEG Funding Obligations. Grantee agrees that financial support for PEG
arising from or relating to the obligations set forth in this Section shall in no way modify or
otherwise affect Grantee's obligations to pay Franchise Fees to City. Grantee agrees that
although the sum of Franchise Fees plus the payments set forth in this Section may total more
than five percent(5%) of Grantee's Gross Revenues in any 12-month period,the additional
commitments shall not be offset or otherwise credited in any way against any Franchise Fee
payments under this Franchise Agreement.
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8. Additional Payments. If the incumbent franchised cable operator agrees to
provide any support of the Access Channels in excess of the amount identified above or to any
payment in support of any other PEG-related commitment after the Effective Date of this
Franchise,the Commission, in its reasonable discretion, after meeting with the Grantee, will
determine whether Grantee's PEG Fee should be changed. If Grantee is required to pay any
additional PEG Fee, such amount must be based upon a per subscriber/per month fee.
SECTION 7. SERVICES TO CITY
1. Twin Cities Metro PEG Interconnect Network. Grantee shall provide a discrete,
non-public, video interconnect network, from an agreed upon demarcation point at the
Commission's Master Control Center at the Commission's office,to Grantee's headend. The
video interconnect network shall not exceed 50 Mbps of allocated bandwidth, allowing PEG
operators that have agreed with Grantee to share (send and receive) live and recorded
programming for playback on their respective systems. Where available the Grantee shall
provide the video interconnect network and the network equipment necessary for the high-
priority transport of live multicast HD/SD video streams as well as lower-priority file-sharing.
Grantee shall provide 50 Mbps bandwidth for each participating PEG entity to send its original
programming, receive at least two additional multicast HD/SD streams from any other
participating PEG entity, and allow the transfer of files. Each participating PEG entity is
responsible for encoding its own SD/HD content in suitable bit rates to be transported by the
video interconnect network without exceeding the 50 Mbps of allocated bandwidth.
2. Cable Service to Public Buildings. Grantee shall, at no cost to the City or
Commission,provide Basic Service and Expanded Basic Service (currently Prism Essentials) or
equivalent package of Cable Service and necessary reception equipment to up to seven(7)
outlets at the Commission Office and at each Member City City Hall and to each Independent
School District at the current locations located in the Commission area that originates PEG
programming. Grantee shall, at no cost to the City, provide Basic Service and Expanded Basic
Service(currently Prism Essentials) or equivalent package of Cable Service and necessary
reception equipment to up to three (3) outlets at all other government buildings, schools and
public libraries located in the City where Grantee provides Cable Service, so long as these
government addresses are designated as a Household and no other cable communications
provider is providing complementary service at such location. 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;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 any location is not designated as a Household, it
will be provided the functionality to monitor PEG signals through a mutually agreeable alternate
technology at the expense of the Grantee.
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SECTION 8. OPERATION AND ADMINISTRATION PROVISIONS
1. Administration of Franchise. The City Manager 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/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. If an audit or review discloses
an overpayment or underpayment of franchise fees,the City and/or the
Commission shall notify Grantee 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 Grantee, up
to a cap of$25,000, 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 Grantee 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.
d. The City/Commission shall have the right to inspect and to require Grantee to
provide any and all data, documents and records maintained by Grantee (or
maintained by an Affiliate or a third-party contractor/vendor on behalf of
Grantee)reasonably related to the calculation and payment of franchise fees. The
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Grantee shall maintain such records, documents and data for a minimum of four
(4) years.
e. Grantee 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. Grantee 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 Grantee in its written extension request.
f. In the event any franchise fee payment or recomputation amount is not made on
or before the required date, Grantee 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%).
g. Nothing in this Franchise shall be construed to limit any authority of the City to
impose any tax, fee or assessment of general applicability.
h. The franchise fee payments required by this Franchise shall be in addition to any
and all taxes or fees of general applicability. Grantee shall not have or make any
claim for any deduction or other credit of all or any part of the amount of said
franchise fee payments from or against any of said taxes or fees of general
applicability, except as expressly permitted by law. Grantee 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 Grantee apply or
seek to apply all or any part of the amount of any of said taxes or fees of general
applicability as a deduction or other credit from or against any of its franchise fee
obligations, except as expressly permitted by law.
The Franchise Fee shall be in addition to any and all taxes or other levies or
assessments which are now or hereafter required to be paid by businesses in
general by any law of the City,the State or the United States including,without
limitation, sales, use and other taxes, business license fees or other payments.
Payment of the Franchise Fee under this Franchise shall not exempt Grantee from
the payment of any other license fee, permit fee,tax or charge on the business,
occupation,property or income of Grantee that may be lawfully imposed by the
City. Any other license fees,taxes or charges shall be of general applicability in
nature and shall not be levied against Grantee solely because of its status as a
cable operator or solely because of its status as such.
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4. Access to Records. The City 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.
5. Reports and Maps.
a. Grantee shall file with the City, at the time or payment of the Franchise Fee, a
report of all Gross Revenues in form and substance as required by City.
b. Grantee shall prepare and make available to City, at the times and in the form
prescribed, such other reasonable reports with respect to Grantee's operations
pursuant to this Franchise as City may require.
c. If required by City, Grantee shall make available to the City Manager the maps,
plats, and permanent records of the location and character of all facilities
constructed, including underground facilities, and Grantee shall make available
with City updates of such maps,plats and permanent records annually if changes
have been made in the System.
6. Periodic Evaluation.
a. The City may require evaluation sessions at any time during the term of this
Franchise, upon fifteen(15) days written notice to Grantee.
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 deems
relevant.
c. As a result of a periodic review or evaluation session,upon notification from City,
Grantee shall meet with city and undertake good faith efforts to reach agreement
on changes and modifications to the terms and conditions of the Franchise which
are both economically and technically feasible.
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SECTION 9. GENERAL FINANCIAL AND INSURANCE PROVISIONS
1. Performance Bond.
a. Within 30 days of the Effective Date of this Franchise,the Grantee shall deliver to
the Commission a bond,that is effective as of the Effective Date and at all times
thereafter,until the Grantee has liquidated all of its obligations with City,the
Grantee shall furnish a bond to Commission in the amount of$500,000.00 in a
form and with such sureties as reasonably acceptable to City. This bond will be
conditioned upon the faithful performance by the Grantee of its Franchise
obligations and upon the further condition that in the event the Grantee shall fail
to comply with any law, ordinance 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.
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.
c. In the event this Franchise is revoked by reason of default of Grantee, City shall
be entitled to collect from the performance bond that amount which is attributable
to any damages sustained by City as a result of said default or revocation.
d. Grantee shall be entitled to the return of the performance bond, or portion thereof,
as remains sixty(60) days after the expiration of the term of the Franchise or
revocation for default thereof,provided City has not notified Grantee of any
actual or potential damages incurred as a result of Grantee's operations pursuant
to the Franchise or as a result of said default.
e. The rights reserved to City 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.
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2. Letter of Credit.
a. Within thirty(30) days of the Effective Date of this Franchise, Grantee shall
deliver to Commission an irrevocable and unconditional Letter of Credit,that is
effective as of the Effective Date, in form and substance acceptable to City, from
a National or State bank approved by the Commission, 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 timely complete System upgrades as provided in this
Franchise unless City approves the delay, the penalty shall be $500.00 per
day for each day, or part thereof, such failure occurs or continues.
ii. 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.
iii. 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.
iv. 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
other facilities,the penalty shall be $500.00 per day for each day, or part
thereof, such failure occurs or continues.
v. 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.
vi. For failure to comply with the reasonable build-out provisions and for
economic redlining in violation of Section 2, Paragraph 7 above and 47
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U.S.C. § 541(a)(3): Five Hundred dollars ($500)per day for each day or
part thereof that such violation continues.
vii. 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 fords that Grantee has violated one or more terms, conditions or
provisions of this Franchise, or for any other violation contemplated in Section 9,
Paragraph 2(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 f.
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 A of this Section.
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
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replacement Letter of Credit or certification of replenishment for the full amount
stated in Section 9, Paragraph 2(a) as a substitution of the previous Letter of
Credit. This shall be a continuing obligation for any draws upon the Letter of
Credit.
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 A,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
granting this Franchise. This obligation includes any claims by another
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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 8.3, 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 attempted to evade any of the provisions of the Franchise; or
iii. Grantee has practiced fraud or deceit upon City.
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City may revoke this Franchise without the hearing required by Section 10,
Paragraph.2 herein 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.
b. If Grantee has failed to commence removal of System, or such part thereof as was
designated by City,within thirty(30) days after written notice of City's demand
for removal 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 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.
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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, Paragraph 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.
c. The Grantee shall file, in addition to all documents, forms and information
required to be filed by applicable law,the following:
1. 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.
2. A list detailing all documents filed with any state or federal agency related
to the transaction including, but not limited to,the MPUC, the FCC,the
FTC,the FEC, the SEC or MnDOT. Upon request, Grantee shall provide
City with a complete copy of any such document; and
3. Any other documents or information related to the transaction as may be
specifically requested by the City.
d. City shall have such time as is permitted by federal law in which to review a
transfer request.
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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 10 Paragraph 5 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 10,Paragraph 5, 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, Paragraph 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.
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.
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
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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.
a. No signals may be transmitted from a Subscriber terminal for purposes of
monitoring individual viewing patterns or practices without the express written
permission of the Subscriber. Such written permission shall be for a limited
period of time not to exceed one (1) year which may be renewed at the option of
the Subscriber. No penalty shall be invoked for a Subscriber's failure to provide
or renew such authorization. The authorization shall be revocable at any time by
the Subscriber without penalty of any kind whatsoever. Such permission shall be
required for all channel activity planned for the purpose of monitoring individual
viewing patterns or practices.
b. No lists of the names and addresses of Subscribers or any lists that identify the
viewing habits of Subscribers shall be sold or otherwise made available to any
party other than to Grantee or its agents for Grantee's service business use or to
City for the purpose of Franchise administration, and also to the Subscriber
subject of that information, unless Grantee has received specific written
authorization from the Subscriber to make such data available. Such written
permission shall be for a limited period of time not to exceed one (1) year which
may be renewed at the option of the Subscriber. No penalty shall be invoked for a
Subscriber's failure to provide or renew such authorization. The authorization
shall be revocable at any time by the Subscriber without penalty of any kind
whatsoever.
c. Written permission from the Subscriber shall not be required for the conducting of
System wide or individually addressed electronic sweeps for the purpose of
verifying System integrity or monitoring for the purpose of billing.
Confidentiality of such information shall be subject to the provision set forth in
subparagraph(b) of this Section.
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
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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. The term of any
renewed Franchise shall be limited to a period not to exceed fifteen(15) years.
2. Work Performed by Others. All applicable obligations of this Franchise shall
apply to any subcontractor or others performing any work or services pursuant to the provisions
of this Franchise,however, in no event shall any such subcontractor or other performing work
obtain any rights to maintain and operate a System or provide Cable Service. Grantee shall
provide notice to City of the name(s) and address(es) of any entity, other than Grantee,which
performs substantial services 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
session pursuant to Section 7.5 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 or City's authority to unilaterally amend Franchise provisions to the extent
permitted by law.
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
34
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.
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. Force Majeure. The Grantee shall not be deemed in default of provisions of this
Franchise or the City Code where performance was rendered impossible by war or riots, labor
strikes or civil disturbances, floods or other causes beyond the Grantee's control, and the
Franchise shall not be revoked or the Grantee penalized for such noncompliance,provided that
the Grantee, when possible,takes immediate and diligent steps to bring itself back into
compliance and to comply as soon as possible,under the circumstances, with the Franchise
without unduly endangering the health, safety and integrity of the Grantee's employees or
property, or the health, safety and integrity of the public,the Rights-of-Way, public property or
private property.
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 be the date of
acceptance by Grantee in accordance with the provisions of Section 14, Paragraph 2.
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2. Acceptance.
a. Grantee shall accept this Franchise within sixty(60) days of its enactment by the
City Council, unless the time for acceptance is extended by City,but no sooner
than thirty(30) days after the date of publication. 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 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.
Introduction,Public Hearing and First Reading by the Mounds View City Council on Nov 9, 2015.
Second Reading and Adoption by the Mounds View City Council on November 23,2015.
Publication Date: December 4,2015
Joe Flah , yor
Attest:
4itA‘O-k_
acnes Ericson, City Administrator
(seal)
ACCEPTED: This Franchise is accepted and we agree to be bound by its terms and conditions.
Dated: By:
Its:
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EXHIBIT A-INDEMNITY AGREEMENT
INDEMNITY AGREEMENT made this day of , 2015,by
and between Qwest Broadband Services, Inc., a Delaware Corporation,party of the first part,
hereinafter called"CenturyLink," and the City of Mounds View, a Minnesota Municipal
Corporation,party of the second part, hereinafter called"City" and the North Suburban
Communications Commission, a Minnesota Municipal Joint Powers entity, hereinafter called
"Commission."
WITNESSETH:
WHEREAS,the City of Mounds View has awarded to Qwest Broadband Services, Inc. a
franchise for the operation of a cable communications system in the City; and
WHEREAS, the City has required, as a condition of its award of a cable communications
franchise,that it and the Commission be indemnified with respect to all claims and actions arising
from the award of said 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, CenturyLink hereby agrees, at its sole cost and expense,to fully indemnify,
defend and hold harmless the City and the Commission, 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 City in connection therewith)
arising out of the actions of the City and Commission in granting a franchise to CenturyLink.
This includes any claims by another franchised cable operator against the City that the terms and
conditions of the CenturyLink franchise are less burdensome than another franchise granted by
the City or that the CenturyLink 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 City or Commission constituting a violation or breach by the City or Commission 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
CenturyLink.
The City or Commission shall give CenturyLink reasonable notice of the making of any
claim or the commencement of any action, suit or other proceeding covered by this agreement.
The City and Commission shall cooperate with CenturyLink in the defense of any such action,
suit or other proceeding at the request of CenturyLink. The City and Commission may participate
in the defense of a claim, but if CenturyLink provides a defense at CenturyLink's expense then
CenturyLink shall not be liable for any attorneys' fees, expenses or other costs that City or
Commission may incur if it chooses to participate in the defense of a claim, unless and until
separate representation is required. If separate representation to fully protect the interests of both
parties is or becomes necessary, such as a conflict of interest, in accordance with the Minnesota
Rules of Professional Conduct, between the City or the Commission and the counsel selected by
CenturyLink to represent the City and/or the Commission, Century Link shall pay, from the date
Ex. A l
such separate representation is required forward, all reasonable expenses incurred by the City or
the Commission in defending itself with regard to any action, suit or proceeding indemnified by
CenturyLink. Provided,however,that in the event that such separate representation is or becomes
necessary, and City or the Commission desires to hire a counselor any other outside experts or
consultants and desires CenturyLink to pay those expenses, then City and/or the Commission
shall be required to obtain CenturyLink's consent to the engagement of such counsel, experts or
consultants, such consent not to be unreasonably withheld. Notwithstanding the foregoing,the
parties agree that the City or Commission 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 City and
the Commission 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 City and the Commission by CenturyLink. This agreement
shall be a binding obligation of and shall inure to the benefit of,the parties hereto and their
successor's and assigns, if any.
QWEST BROADBAND SERVICES,INC.
Dated: , 2015 By:
Its:
Ex. A 2
STATE OF LOUISIANA
PARISH OF OUACHITA
The foregoing instrument was acknowledged before me this day of 2015, by
,the of Qwest Broadband Services,
Inc., a Delaware Corporation, on behalf of the corporation.
NOTARY PUBLIC
Print Name:
Bar Roll#/Notary ID #:
My Commission Expires:
CITY OF MOUNDS VIEW
Joe Flaherty, Mayor
Department Head Responsible
For Monitoring Contract
James Ericson, City Administrator
Approved as to form:
City Attorney
NORTH SUBURBAN COMMUNICATIONS
COMMISSION
By:
Its:
Ex. A 3