HomeMy WebLinkAboutOrdinance 937ORDINANCE NO. 937
CITY OF MOUNDS VIEW
CABLE TELEVISION FRANCHISE ORDINANCE
Date: September 25, 2017
Prepared by:
Michael R. Bradley
Bradley Berkland Hagen & Herbst, LLC
1976 Wooddale Drive, Suite 3A
Woodbury, MN 55125
Telephone: (651) 379-0900
E -Mail: mike@bradleylawmn.com
Table of Contents
STATEMENT OF INTENT AND PURPOSE
FINDINGS..................................................
SECTION 1.
SHORT TITLE AND DEFINITIONS.....................................................................
2
SECTION 2.
GRANT OF AUTHORITY AND GENERAL PROVISIONS ................................
5
SECTION 3.
CONSTRUCTION STANDARDS........................................................................
10
SECTION 4.
DESIGN PROVISIONS........................................................................................
12
SECTION 5.
SERVICE PROVISIONS.....................................................................................
14
SECTION 6.
ACCESS CHANNEL(S) PROVISIONS...............................................................
16
SECTION 7.
NETWORKING PROVISIONS............................................................................
19
SECTION 8.
OPERATION AND ADMINISTRATION PROVISIONS ...................................
20
SECTION 9.
DISPUTE RESOLUTION.....................................................................................
23
SECTION 10.
SALE, ABANDONMENT, TRANSFER AND REVOCATION OF
FRANCHISE........................................................................................................
27
SECTION 11.
PROTECTION OF INDIVIDUAL RIGHTS ......................................................
30
SECTION 12.
UNAUTHORIZED CONNECTIONS AND MODIFICATIONS .......................
31
SECTION 13.
MISCELLANEOUS PROVISIONS....................................................................
31
SECTION 14.
PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS ........
33
Exhibit A — Drops
to Designated Buildings...............................................................................
A-1
i
Exhibit B — Comcast Enterprise Services Master Services Agreement (MSA) ......................... B-1
Exhibit B2 —First Amendment to Comcast Enterprise Services Master Agreement ............... B2-1
Exhibit B3- Comcast Enterprise Services General Terns and Conditions ............................... B3-1
Exhibit C — Existing Network Facilities..................................................................................... C-1
Exhibit C — Schedule C-1 — Dark Fiber Connections....................................................... Sell C-1-1
Exhibit C — Schedule C-2 — PEG Origination Points ....................................................... Sch C-2-1
Exhibit D — March 1, 2012, Settlement Agreement.................................................................... D-1
Exhibit E — Sample Gross Revenues Report................................................................................E-1
Exhibit F — Performance Bond.................................................................................................... F-1
Exhibit G — Indemnification Agreement..................................................................................... G-1
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ORDINANCE NO. 937
AN ORDINANCE GRANTING A FRANCHISE TO COMCAST OF MINNESOTA, INC.,
D/B/A COMCAST TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE
COMMUNICATIONS SYSTEM IN THE CITY OF 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
The City intends, by the adoption of this Franchise, to bring about the further development of a
Cable System and the continued operation of it. Such development can contribute significantly to
the communication needs and desires of the residents and citizens of the City and the public
generally. Further, the City may achieve better utilization and improvement of public services and
enhanced economic development with the development and operation of a Cable Communication
System.
Adoption of this Franchise is, in thejudgment of the Council, in the best interests of the City and
its residents.
FINDINGS
In the review of the request and proposal for renewal by Grantee and negotiations related thereto,
and as a result of a public hearing, the City Council makes the following findings:
The Grantee's technical ability, financial condition, legal qualifications, and
character were considered and approved in a full public proceeding after due notice
and a reasonable opportunity to be heard;
2. Grantee's plans for constructing, upgrading, and operating the System were
considered and found adequate and feasible in a full public proceeding after due
notice and a reasonable opportunity to be heard;
The Franchise granted to Grantee by the City complies with the existing applicable
Minnesota Statutes, federal laws and regulations; and
4. The Franchise granted to Grantee is nonexclusive.
SECTION 1. SHORT TITLE AND DEFINITIONS
1. Short Title. This Franchise Ordinance shall be known and cited as the Comcast
Cable Franchise Ordinance.
2. Definitions. For the purposes of this Franchise, the following terms, phrases,
words, and their derivations shall have the meaning given herein. When not inconsistent with the
context, words in the singular number include the plural number. The word "shall' is always
mandatory and not merely directory. The word "may" is directory and discretionary and not
mandatory.
a. 'Basic Cable Service" shall be defined as set forth in applicable law, which
is currently defined in 47 USC § 522(3) as any service tier which includes the
retransmission of local television broadcast signals.
b. "City" means City of 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" shall be defined as set forth in applicable law,
which is currently defined in 47 USC § 522(6) as the one-way transmission to subscribers
of (i) video programming, or (ii) other programming service, and subscriber interaction, if
any, which is required for the selection or use of such video programming or other
programming service.
e. "Cable System" or "System" shall be defined as set forth in applicable law,
which is currently defined in 47 USC § 522(7) as a facility, consisting of a set of closed
transmission paths and associated signal generation, reception, and control equipment that
is designed to provide cable service which includes video programming and which is
provided to multiple subscribers within a community, but such term does not include (A)
a facility that serves only to retransmit the television signals of I or more television
broadcast stations; (B) a facility that serves subscribers without using any public right-of-
way; (C) a facility of a common carrier which is subject, in whole or in part, to the
provisions of subchapter II of the Communications Act of 1934, as amended, except that
such facility shall be considered a cable system (other than for purposes of section 541(e)
of the Federal Cable Act) to the extent such facility is used in the transmission of video
programming directly to subscribers, unless the extent of such use is solely to provide
interactive on -demand services; (D) an open video system that complies with section 573
of the Federal Cable Act; or (E) any facilities of any electric utility used solely for operating
its electric utility system. This definition shall incorporate by reference the definition of
"cable communications system" in Minnesota Statutes Section 238.02, Subdivision 3, as
the same may be amended from time to time.
f. "Commission' means the North Suburban Communications Commission, a
municipal Joint Powers Commission.
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g. "Converter" means an electronic device such as a set-top box or digital
adapter which converts signals to a frequency acceptable to a television receiver of a
Subscriber and by an appropriate selector permits a Subscriber to view all Subscriber
signals included in the service.
h. "Drop" means the cable that connects the ground block on the Subscriber's
residence or institution to the nearest feeder cable of the System.
i. "FCC" means the Federal Communications Commission and any legally
appointed, designated or elected agent or successor.
j. "Franchise" or "Cable Franchise" means this ordinance and the regulatory
and contractual relationship established hereby.
k. "Grantee" or "Comcast" is Comcast of Minnesota, Inc., its lawful
successors, transferees or assignees.
1. "Gross Revenues" shall be defined as and shall be construed broadly to
include all revenues derived directly or indirectly by Comcast and/or an Affiliate that is a
cable operator of the Cable System, from the operation of Comeast's Cable System to
provide Cable Services within the City (including cash, credits, property or other
consideration of any kind or nature). Gross revenues include, by way of illustration and
not limitation: monthly fees for Cable Services, regardless of whether such Cable Services
are provided to residential or commercial customers, including revenues derived from the
provision of all Cable Services (including but not limited to pay or premium Cable
Services, digital Cable Services, pay-per-view, pay -per -event and video -on -demand Cable
Services); installation, reconnection, downgrade, upgrade or similar charges associated
with changes in subscriber Cable Service levels; fees paid to Comcast for channels
designated for commercial/leased access use; converter, remote control, lockout device
and other Cable Service equipment rentals and/or leases or sales; advertising revenues
received or derived by Comcast and/or its Affiliates, including, but not limited to, rep fees,
Affiliate fees, rebates and commissions, but excluding unaffiliated agency fees; late fees,
convenience fees and administrative fees; revenues from program guides; franchise fees;
and commissions from home shopping channels and other revenue sharing arrangements.
Gross Revenues subject to franchise fees shall include revenues derived from sales of
advertising that run on Comeast's Cable System within the City and shall be allocated on
a pro rata basis using total Cable Service subscribers reached by the advertising.
Additionally, Comcast agrees that Gross Revenues subject to franchise fees shall include
all commissions paid to National Cable Communications ("NGC") and Comcast Spotlight
("Spotlight") or their successors associated with sales of advertising on the Cable System
within the City allocated according to this paragraph using total Cable Service subscribers
reached by the advertising. Gross revenues shall not include: actual bad debt write-offs,
provided, however, that all or part of any such actual bad debt that is written off but
subsequently collected shall be included in Gross Revenues in the period collected; and
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any taxes on services furnished by Comcast imposed by any municipality, state or other
governmental unit, provided that franchise fees shall not be regarded as such a tax.
i. To the extent revenues are received by Comcast for the provision of
a discounted bundle of services which includes Cable Services and non -Cable
Services, Comcast shall calculate revenues to be included in Gross Revenues using
a methodology that allocates revenue on a pro rata basis when comparing the
bundled service price and its components to the sum of the most recent published
rate card rate for the components, except it is expressly understood that equipment
may be subject to inclusion in the bundled price at full rate card value. This
calculation shall be applied to every bundled service package containing Cable
Service from which Comcast receives or derives revenues in the City, and must be
updated within sixty (60) days of the date any rate change for cable and/or non -
cable services is implemented for a service package containing Cable Service or
the date any rate change is implemented for any service included in a service
package that contains Cable Service. The NSCC reserves its right to review and to
challenge Comcast's calculations.
ii. For purposes of this definition, the term "Affiliates" means any
person(s) and/or entity(ies) who own or control, are owned or controlled by or are
under common ownership or control with Comcast of Minnesota, Inc., but does not
include affiliated entities such as NBCU and Spectator that are not directly or
indirectly involved with the programming, use, management, operation,
construction, repair and/or maintenance of Comcast Corporation's cable systems.
iii. Resolution of any disputes over the classification of revenue should
first be attempted by agreement of the Parties, but should no resolution be reached,
the Parties agree that reference shall be made to generally accepted accounting
principles ("GAAP") as promulgated and defined by the Financial Accounting
Standards Board ("FASB"), Emerging Issues Task Force ("EITF") and/or the U.S.
Securities and Exchange Commission ("SEC"). Notwithstanding the forgoing, the
City and/or the Commission reserves its right to challenge Comcast's calculation
of Gross Revenues, including the use or interpretation of GAAP as promulgated
and defined by the FASB, EITF and/or the SEC.
in. "Installation" means the connection of the System from feeder cable to the
point of connection with the Subscriber Converter or other terminal equipment.
n. "Lockout Device" means an optional mechanical or electrical accessory to
a Subscriber's terminal which inhibits the viewing of a certain program, certain channel, or
certain channels provided by way of the Cable Communication System.
o. "Memorandum of Understanding" or "MOU" means that certain agreement
dated November 3, 1994, regarding PEG access funding, creation of a "PEG Fee" and
certain rate regulatory issues.
rd
P. "North Suburbs Access Corporation" or "NSAC" means that certain non-
profit corporation or its lawful successor, designee, or assignee, which is delegated
authority and responsibility for providing certain community programming functions
including public access.
q. "North Suburban System" means the Cable System located in those
municipalities collectively comprising the North Suburban Communication Commission.
r. 'Person" is any person, firm, partnership, association, corporation,
company, or other legal entity.
S. "Right -of -Way" or 'Rights-of=Way" means the area on; below, or above
any real property in City in which the City has an interest including, but not limited to any
street, road, highway, alley, sidewalk, parkway, park, skyway, or any other place, area, or
real property owned by or under the control of City, including other dedicated Rights -of -
Way for travel proposes and utility easements.
t. "Right -of --Way Ordinance" means the ordinance codifying requirements
regarding regulation, management and use of Rights -of -Way in City, including registration
and permitting requirements.
U. "Standard Installation" means any residential installation which can be
completed using a Drop of 250 feet or less.
V. "Subscriber" means any Person who lawfully receives service via the
System. In the case of multiple office buildings or multiple dwelling units, the "Subscriber"
means the lessee, tenant or occupant.
SECTION 2. GRANT OF AUTHORITY AND GENERAL PROVISIONS
1. Grant of Franchise.
a. This Franchise is granted pursuant to the terms and conditions contained
herein.
b. Nothing in this Franchise shall be deemed to waive the lawful requirements
of any generally applicable City ordinance existing as of the Effective Date.
C. Each and every term, provision or condition herein is subject to the
provisions of state law, federal law, and local ordinances and regulations.
d. This Franchise shall not be interpreted to prevent the City from imposing
additional lawful conditions, including additional compensation conditions for use of the
Rights -of -Way, should Grantee provide service other than Cable Service.
C. 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
Any permits or agreements for occupying any other property of the City or
private entities to which access is not specifically granted by this Franchise
including, without limitation, permits and agreements for placing devices
on poles, in conduits or in or on other structures.
f. This Franchise is intended to convey limited rights and interests only as to
those Rights -of -Way in which the City has an actual interest. It is not a warranty of title or
interest in any Right -of -Way; it does not provide the Grantee with any interest in any
particular location within the Right -of -Way; and it does not confer rights other than as
expressly provided in the grant hereof.
g. This Franchise does not authorize or prohibit Grantee to provide
telecommunications service or other services, or to construct, operate or maintain
telecommunications facilities. This Franchise is not a bar to imposition of any lawful
conditions on Grantee with respect to telecommunications, whether similar, different or the
same as the conditions specified herein. This Franchise does not relieve Grantee of any
obligation it may have to obtain from the City an authorization to provide
telecommunications services or other services, or to construct, operate or maintain
telecommunications facilities, or relieve Grantee of its obligation to comply with any such
authorizations that may be lawfully required.
2. Grant of Nonexclusive Authority.
The City reserves the right to grant additional franchises or similar authorizations to
provide video programming services via Cable Systems or similar wireline systems located in the
public Rights -of -Way. It is not the City's intent to treat competitors in a discriminatory manner
and to advantage one competitor over another by regulation. If the City grants such an additional
franchise or similar authorization to use the public rights of way to provide such services and
Grantee believes the City has done so on terms materially more favorable than the Material
Obligations (defined below) under this Franchise, then the provisions of this paragraph will apply.
As part of the Grantee's franchise, the City has agreed upon the following terms as a
condition of granting the franchise which terms may place the Grantee at a significant competitive
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disadvantage if not required of a competitor: a 5% franchise fee, PEG funding, PEG channels, and
customer service obligations (hereinafter "Material Obligations").
Within one year of the adoption of the competitor's franchise or similar authorization,
Grantee must notify the City in writing of the Material Obligations in Grantee's franchise that
exceed the Material Obligations of the competitors franchise to similar authorization. The City
shall have sixty (60) days to agree to allow Grantee to adopt the same Material Obligations
provided to the competitor, or dispute that the Material Obligations are different. In the event the
City disputes the Material Obligations are different, Grantee may bring an action in federal or state
court for a determination as to whether the Materials Obligations are different.
Nothing in this section is intended to alter the rights or obligations of either party under
state law, and it shall only apply to the extent permitted under applicable FCC orders. In no event
will the City be required to refund or to offset against future amounts due the value of benefits
already received.
This provision does not apply if the City is ordered or required to issue a franchise on
different terms and conditions, or it is legally unable to do so; and the relief is contingent on the
new franchisee actually commencing provision of service in the market to its first customer. This
provision does not apply to open video systems, nor does it apply to common carrier systems
exempted from franchise requirements pursuant to 47 U.S.C. Section 571; or to systems that serve
less than 5% (five per cent) of the geographic area of the City; ora system that only provides video
services via the public Internet.
3. Lease or Assignment Prohibited. No Person may lease Grantee's System for the
purpose of providing Service until and unless such Person shall have first obtained and shall
currently hold a valid Franchise or other lawful authorization containing substantially similar
burdens and obligations to this Franchise. Any assignment of rights under this Franchise shall be
subject to and in accordance with the requirements of Section 10, Paragraph 5 (Sale or Transfer of
Franchise).
4. Franchise Term. This Franchise shall be in effect for a period of ten (10) years
from the date of acceptance by Grantee, unless sooner renewed, revoked or terminated as herein
provided.
5. Previous Franchises. Upon acceptance by Grantee as required by Section 13 herein,
this Franchise shall supersede and replace any previous Ordinance granting a Franchise to Grantee,
as well as the November 3, 1994 Memorandum of Understanding, except as set forth in Section 6,
paragraph 8(b) (Access Support) herein.
VA
6. Compliance with Applicable Laws, Resolutions and Ordinances.
a. The terms of this Franchise shall define the contractual rights and
obligations of Grantee with respect to the provision of Cable Service and operation of the
System in City. However, the Grantee shall at all times during the term of this Franchise
be subject to all lawful exercise of the police power, statutory rights, local ordinance -
making authority, and eminent domain rights of City. Except as provided below, any
modification or amendment to this Franchise, or the rights or obligations contained herein,
must be within the lawful exercise of City's police power, in which case the provision(s)
modified or amended herein shall be specifically referenced in an ordinance of the City
authorizing such amendment or modification. This Franchise may also be modified or
amended with the written consent of Grantee as provided in Section 13.3 (Amendment of
Franchise Ordinance) herein.
b. Grantee shall comply with the terms of any City ordinance or regulation of
general applicability which addresses usage of the Rights -of -Way within City which may
have the effect of superseding, modifying or amending the terms of Section 3 (Construction
Standards) and/or Section 8.5(c) (Reports and Maps to be Filed with City) herein, except
that Grantee shall not, through application of such City ordinance or regulation of Rights -
of -Way, be subject to additional burdens with respect to usage of Rights -of -Way which
exceed burdens on similarly situated Rights -of -Way users.
C. In the event of any conflict between Section 3 (Construction Standards)
and/or Section 8.5(c) (Reports and Maps to be Filed with City) of this Franchise and any
City ordinance or regulation which addresses usage of the Rights -of -Way, the conflicting
terms in Section 3 (Constriction Standards) and/or Section 8.5(c) (Reports and Maps to be
Filed with City) of this Franchise shall be superseded by such City ordinance or regulation,
except that Grantee shall not, through application of such City ordinance or regulation of
Rights -of -Way, be subject to additional burdens with respect to usage of Rights -of -Way
which exceed burdens on similarly situated Rights -of -Way users.
d. In the event any City ordinance or regulation which addresses usage of the
Rights -of -Way adds to, modifies, amends, or otherwise differently addresses issues
addressed in Section 3 (Construction Standards) and/or Section 8.5(c) (Reports and Maps
to be Filed with City) of this Franchise, Grantee shall comply with such ordinance or
regulation of general applicability, regardless of which requirement was first adopted
except that Grantee shall not, through application of such City ordinance or regulation of
Rights -of -Way, be subject to additional burdens with respect to usage of Rights -of -Way
which exceed burdens on similarly situated Rights -of -Way users.
e. In the event Grantee cannot determine how to comply with any Right -of -
Way requirement of City, whether pursuant to this Franchise or other requirement, Grantee
shall immediately provide written notice of such question, including Grantee's proposed
interpretation, to the City with copy to the North Suburban Cable Communications
Commission, in accordance with Section 2.9 (Written Notice). The City or Commission
shall provide a written response within fourteen (14) days of receipt indicating how the
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requirements cited by Grantee apply. Grantee may proceed in accordance with its proposed
interpretation in the event a written response is not received within seventeen (17) days of
mailing or delivering such written question.
7. Rules of Grantee. The Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business as shall be reasonably
necessary to enable said Grantee to exercise its rights and perform its obligations under this
Franchise and to assure uninterrupted service to each and all of its Subscribers; provided that such
rules, regulations, terms and conditions shall not be in conflict with provisions hereto, the rules of
the FCC, the laws of the State of Minnesota, City, or any other body having lawful jurisdiction.
8. Territorial Area Involved. This Franchise is granted for the corporate boundaries
of City, as it exists from time to time. In the event of annexation by City, or as development
occurs, any new territory shall become part of the territory for which this Franchise is granted
provided, however, that Grantee shall not be required to extend service beyond its present System
boundaries unless there is a minimum of 50 homes per cable mile for underground plant and 35
homes per cable mile for overhead plant. Access to cable service shall not be denied to any group
of potential residential cable Subscribers because of the income of the residents of the area in
which such group resides. Grantee shall be given a reasonable period of time to construct and
activate cable plant to service annexed or newly developed areas but in no event not to exceed
twelve (12) months from notice thereof by City to Grantee and qualification pursuant to the density
requirements of this Subsection.
9. Written Notice. All notices, reports, or demands required to be given in writing
under this Franchise shall be deemed to be given when delivered personally to any officer of
Grantee or City's Administrator of this Franchise or forty-eight (48) hours after it is deposited in
the United States mail in a sealed envelope, with registered or certified mail postage prepaid
thereon, addressed to the party to whom notice is being given, as follows:
If to City: City of Mounds View
2401 Mounds View Boulevard
Mounds View, Minnesota 55112
Attention: City Administrator/Finance Director
With copies to: North Suburban Cable Communications Commission
950 Woodhill Drive
Roseville, Minnesota 55113
If to Grantee: General Manager
Comcast
10 River Park Plaza
St Paul, Minnesota 55107
2,
With copies to: Vice President of Government Affairs
Comcast
1701 JFK Boulevard
Philadelphia, PA 19103
Such addresses may be changed by either party upon notice to the other party given as provided in
this Section.
10. Subscriber Network Drops to Designated Buildings. Grantee shall, at no cost to the City,
continue to provide Digital Starter or equivalent package of Cable Service and reception equipment
to up to three (3) outlets at all municipal government buildings, schools and public libraries located
in the City where Grantee provides Cable Service as listed on Exhibit A. The City may request up
to 5 additional municipal government buildings, schools, or public libraries during the term of this
Agreement, provided that the City shall pay the actual incremental installation costs for any
location in excess of 500 feet of Grantee's existing plant where the recipient makes available
conduit or aerial structures to accommodate the new facilities, or any Drop in excess of two
hundred fifty (250) feet. For purposes of this subsection, "school" means all State -accredited K-
12 public and private schools. Outlets of Basic and Expanded Basic Service provided in
accordance with this subsection may be used to distribute Cable Services throughout such
buildings; The City shall have the right to extend service to multiple outlets within the building
with the costs of constructing additional outlets the responsibility of the City; provided such
distribution can be accomplished without causing Cable System disruption and general technical
standards are maintained. Such outlets may only be used for lawful purposes. If additional devices
beyond the allocated amount per location provided above are needed to serve additional outlets,
those devices shall be made available at Grantee's best discounted rate. All inside wiring shall be
the responsibility of the City, or public institution, and subject to service or repair by Comcast at
standard rates. Any such institution located more than two hundred fifty (250) feet shall be
connected if such institution agrees to reimburse Grantee for Grantee's actual costs in excess of
the two hundred fifty (250) foot installation actual costs.
SECTION 3. CONSTRUCTION STANDARDS
I . Registration, Permits and Construction Codes.
a. Grantee shall strictly adhere to all state and local laws and building and
zoning codes currently or hereafter applicable to location, construction, installation,
operation or maintenance of the System in City and give due consideration at all times to
the aesthetics of the property.
b. Subject to the requirements of Section 9 (Dispute Resolution) below, failure
to obtain permits or comply with permit requirements shall be grounds for revocation of
this Franchise if such requirements are violated for significant construction activities of an
extended period of time or in a quantity and frequency so as to demonstrate a wanton
disregard for such requirements, or any lesser sanctions provided herein or in any other
applicable law.
2. Repair of Rights -of -Way nd Property. Any and all Rights -of -Way, or public or
private property, which are disturbed or damaged during the construction, repair, replacement,
relocation, operation, maintenance, expansion, extension or reconstruction of the System shall be
promptly and fully restored by Grantee, at its expense, to the same condition as that prevailing
prior to Grantee's work, as determined by City. If Grantee shall fail to timely perform the
restoration required herein, after written request of City and reasonable opportunity of not less than
30 days to satisfy that request, City shall have the right to put the Rights -of -Way, public, or private
property back into good condition. In the event City determines that Grantee is responsible for
such disturbance or damage, Grantee shall be obligated to fully reimburse City for such restoration.
3. Conditions on Right -of -Waw.
a. Nothing in this Franchise shall be construed to prevent City from
constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining,
repairing, relocating and/or altering any Right -of -Way; constructing, laying down,
repairing, maintaining or relocating any water mains; or constructing, maintaining,
relocating, or repairing any sidewalk or other public work.
b. All System transmission and distribution structures, lines and equipment
erected by the Grantee within City shall be located so as not to obstruct or interfere with
the use of Rights -of -Way except for normal and reasonable obstruction and interference
which might occur during construction and to cause minimum interference with the rights
of property owners who abut any of said Rights -of -Way and not to interfere with existing
public utility installations.
C. If at any time during the period of this Franchise City shall elect to alter or
change the grade or location of any Right -of -Way, the Grantee shall comply with all
applicable City Code related to relocation of facilities and associated costs.
d. The Grantee shall not place poles, conduits, or other fixtures of System
above or below ground where the same will interfere with any gas, electric, telephone,
water or other utility fixtures and all such poles, conduits, or other fixtures placed in any
Right -of -Way shall be so placed as to comply with all reasonable and lawful requirements
of City.
e. The Grantee shall, upon request of any Person holding a moving permit
issued by City, temporarily move its wires or fixtures to permit the moving of buildings
with the expense of such temporary removal to be paid by the Person requesting the same,
and the Grantee shall be given not less than ten (10) days advance written notice to arrange
for such temporary changes.
f, The Grantee shall have the authority to trim any trees upon and overhanging
the Rights -of -Way of City so as to prevent the branches of such trees from coming in
contact with the wires and cables or other facilities of the Grantee.
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g. Grantee shall use its best efforts to give reasonable prior notice to any
adjacent private property owners who will be negatively affected or impacted by Grantee's
work in the Rights -of -Way.
4. Undergrounding of Cable. Unless otherwise required by action of City Council,
Grantee must place newly constructed facilities underground in areas of City where all other utility
lines are placed underground. Amplifier boxes and pedestal mounted terminal boxes may be
placed above ground if existing technology reasonably requires, but shall be of such size and
design and shall be so located as not to be unsightly or unsafe, all pursuant to plans submitted with
Grantee's pen -nit application(s) and approved by City.
5. Installation of Facilities. No poles, conduits, amplifier boxes, pedestal mounted
terminal boxes, similar structures, or other wire -holding structures shall be erected or installed by
the Grantee without required permit of City.
6. Safety Requirements.
a. The Grantee shall at all times employ ordinary and reasonable care and shall
install and maintain in use nothing less than commonly accepted methods and devices for
preventing failures and accidents which are likely to cause damage or injuries.
b. The Grantee shall install and maintain its System and other equipment in
accordance with City's codes and the requirements of the National Electric Safety Code
and all other applicable FCC, state and local regulations, and in such manner that they will
not interfere with City communications technology related to health, safety and welfare of
the residents.
C. All System structures, and lines, equipment and connections in, over, under
and upon the Rights -of -Way of City, wherever situated or located, shall at all times be kept
and maintained in good condition, order, and repair so that the same shall not menace or
endanger the life or property of City or any Person.
SECTION 4. DESIGN PROVISIONS
1. System Capabilities; Minimum Channel Capacity.
a, Grantee shall maintain, upgrade, and operate the Cable System consistent
with the capabilities of at least a 750MHz cable system and applicable industry standards.
b. All final programming decisions remain the discretion of Grantee but the
Cable System shall generally made available a broad range of programming of interest to
the community, provided that Grantee notifies City and Subscribers in writing thirty (30)
days prior to any channel deletions or realignments, and further subject to Grantee's signal
carriage obligations hereunder and pursuant to 47 USC §§ 531-536, and further subject to
City's rights pursuant to 47 USC § 545. Location and relocation of the PEG Channels shall
be governed by Section 6.1(c) (Public, Educational and Governmental Access).
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2. Interruption of Service. The Grantee shall interrupt service only for good cause
and for the shortest time possible. Such interruption shall occur during periods of minimum use
of the System. If service is interrupted on all cable channels for a period of more than forty eight
(48) hours, Subscribers shall be credited pro rata for such interruption. Outages for shorter time
periods may be credited upon customer request following notification of the outage.
3. Technical Standards. The technical standards used in the operation of the System
shall comply, at minimum, with the technical standards promulgated by the FCC relating to Cable
Systems pursuant to Title 47, Section 76.601 to 76.617, as may be amended or modified fiom time
to time, which regulations are expressly incorporated herein by reference.
4. Special Testing.
a. The City/Commission shall have the right to inspect all construction or
installation work performed pursuant to the provisions of the Franchise. In addition, the
City/Commission may require special testing of a location or locations within the System
if there is a particular matter of controversy or unresolved complaints regarding such
construction or installation work or pertaining to such location(s). Demand for such special
tests may be made on the basis of complaints received or other evidence indicating an
unresolved controversy or noncompliance. Such tests shall be limited to the particular
matter in controversy or unresolved complaints. The City/Commission shall endeavor to
so arrange its request for such special testing so as to minimize hardship or inconvenience
to Grantee or to the Subscribers caused by such testing.
b. Before ordering such tests, Grantee shall be afforded thirty (30) days
following receipt of written notice to investigate and, if necessary, correct problems or
complaints upon which tests were ordered. The City/Commission shall meet with Grantee
prior to requiring special tests to discuss the need for such and, if possible, visually inspect
those locations which are the focus of concern. If, after such meetings and inspections,
City/Commission wishes to commence special tests and the thirty (30) days have elapsed
without correction of the matter in controversy or unresolved complaints, the tests shall be
conducted at Grantee's expense by a qualified engineer selected by City/Commission and
Grantee, and Grantee shall cooperate in such testing. Grantee shall not be required to pay
for the special tests where Grantee can show to the City/Commission's reasonable
satisfaction that it performed its own tests and undertook corrective action to remedy the
problem.
6. Drop Testing and Replacement. Drops and passive equipment shall be inspected
by Grantee during Installations to assure the Drop and passive equipment can provide reliable
Cable Service to Subscribers. Drops shall be maintained in compliance with applicable safety and
technical regulations and replaced when necessary to do so.
7. FCC Reports. The results of any tests required to be filed by Grantee with the FCC
shall upon request of City also be filed with the City or its designee within ten (10) days of the
conduct of such tests.
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8. Interconnection. The System servicing the Cities of Arden Hills, Falcon Heights,
Lauderdale, Little Canada, Mounds View, New Brighton, North Oaks, Roseville, and St. Anthony,
shall continue to be completely interconnected.
9. Lockout Device. Upon the request of a Subscriber, Grantee shall make available a
Lockout Device or similar functionality by software at no additional charge to Subscribers.
SECTION 5. SERVICE PROVISIONS
1. Regulation of Service Rates.
a. The City may regulate rates for the provision of Cable Service, equipment,
or any other communications service provided over the System to the extent allowed under
federal or state law(s). City/Commission reserves the right to regulate rates for any future
services to the extent permitted by law.
b, Grantee shall give City and Subscribers written notice of any change in a
rate or charge pursuant to the terms of by 47 CFR § 76.1603. Bills must be clear, concise,
and understandable and compliant with applicable law.
2. Non -Standard Installations. Grantee shall install and provide Cable Service to any
Person requesting other than a Standard Installation provided that said Cable Service can meet
FCC technical specifications and all payment and policy obligations are met. In such case, Grantee
may charge for the incremental increase in material and labor costs incurred beyond the Standard
Installation.
3. Sales Procedures. Grantee shall not exercise deceptive sales procedures when
marketing any of its services within City. In its initial communication or contact with a non -
Subscriber, Grantee shall upon request inform the non -Subscriber of all levels of service available,
including the lowest priced service tiers. Grantee shall have the right to market door-to-door
during reasonable hours consistent with local ordinances and regulation.
4. Subscriber Inquiry and Complaint Procedures.
a. Grantee shall have a publicly listed toll-free telephone number which shall
be operated so as to receive Subscriber complaints and requests on a twenty-four (24) hour -
a -day, seven (7) days -a -week, 365 days a year basis. During normal business hours, trained
representatives of Grantee shall be available to respond to Subscriber inquiries.
b. Grantee shall maintain adequate numbers of telephone lines and personnel
to respond in a timely manner to schedule service calls and answer Subscriber complaints
or inquiries in a manner consistent with regulations adopted by the FCC and City where
applicable and lawful. Under normal operating conditions, telephone answer time by a
customer representative, including wait time, shall not exceed thirty (30) seconds when the
connection is made. If the call needs to be transferred, transfer time shall not exceed thirty
(30) seconds. These standards shall be met no less than ninety (90) percent of the time
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under normal operating conditions, measured on a quarterly basis. Under normal operating
conditions, the customer will receive a busy signal less than three (3) percent of the time.
Grantee shall respond to written complaints forwarded by the City or its designee with
copy to City or its designee within thirty (30) days.
C. Subject to Grantee's obligations pursuant to law regarding privacy of
certain information, Grantee shall prepare and maintain written records of all complaints
received from City and the resolution of such complaints, including the date of such
resolution. Grantee shall provide City with a written summary of such complaints and their
resolution upon request of City. As to Subscriber complaints, Grantee shall comply with
FCC record-keeping regulations, and make the results of such record-keeping available to
City upon request, subject to customer privacy obligations.
d. Subscriber requests for repairs shall be commenced and best efforts shall be
used complete repairs within thirty-six (36) hours of the request or as otherwise scheduled
with the customer unless conditions beyond the control of Grantee prevent such
performance. Grantee may schedule appointments for Installations and other service calls
either at a specific time or, at a maximum, during a four hour time block during normal
business hours. Grantee may also schedule service calls outside normal business horns 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, lie/she must use his/her best efforts to contact the customer and
reschedule the appointment at the sole convenience of the customer. Service call
appointments must be met in a manner consistent with FCC standards.
5. Subscriber Contracts. Grantee shall file with City or provide an electronic link to
any standard form Subscriber contract utilized by Grantee. If no such written contract exists,
Grantee shall file with the City a document completely and concisely stating the length and terms
of the Subscriber contract offered to customers. The length and terms of any Subscriber contract(s)
shall be available for public inspection during normal business hours or made available
electronically online.
6. Refund Policy. In the event a Subscriber establishes or terminates service and
receives less than a full month's service, Grantee shall prorate the monthly rate on the basis of the
number of days in the period for which service was rendered to the number of days in the billing.
7. Late Fees. Fees for the late payment of bills shall not be assessed until after the
set -vice has been fully provided and, as of the due date of the bill notifying Subscriber of an unpaid
balance, the bill remains unpaid. Late Fees shall be nondiscriminatory, consistent with federal and
state laws, including consumer protection laws, and uniform with respect to late fees commonly
charged in other jurisdictions in the Twin Cities.
8. Office Policy. Grantee shall maintain a convenient location in or around a
reasonable distance of the City of the Franchise territory encompassing any joint regulatory body
of which City is a Member for receiving Subscriber inquiries and bill payments. The location must
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be staffed by a person capable of receiving inquiries and bill payments. In addition, Grantee shall
maintain a local drop box for receiving Subscriber payments after hours, or may make
arrangements for third -party payment locations (for example, in a convenience store) and
equipment drop-off locations (for example, UPS stores). Grantee may also offer electronic
customer service options through its web page and phone applications.
SECTION 6. ACCESS CHANNEL(S) PROVISIONS
1. Public Educational and Government Access.
a. City or its designee is hereby designated to operate, administer, promote,
and manage access (public, education, and government programming) (hereinafter "PEG
access") programming on the Cable System.
b. Grantee shall dedicate 6 Standard Definition ("SD") channels and 2 High
Definition ("H)") channels for PEG access (the "PEG Chapels"). All Subscribers to
Cable Service offered on the System shall be eligible to receive such channels at no
additional charge. The PEG Channels shall be activated upon the effective date of this
Franchise and thereafter maintained. City may rename, reprogram, or otherwise change
the use of these channels in its sole discretion., provided such use is non-commercial,
lawful, and retains the general purpose of the provision of community programming,
Nothing herein shall diminish the City's rights to secure additional channels pursuant to
Minn. Stat. § 238.084, which is expressly incorporated herein by reference. City shall
provide ninety (90) days prior written notice to Grantee of City's intent to activate access
channels to the extent the maximum number agreed to herein are not already active.
C. Each PEG Channel(s) required by this Section shall retain the channel
designation/number it had as of the conurrencennent of this Franchise term. Upon six (6)
months' notice to City, any access channel may be moved by Grantee, but in no event more
than once every two (2) years unless otherwise allowed by City, provided Grantee pays all
reasonable costs or expenses of the North Suburban Access Corporation (NSAC), or its
successor, arising out of the channel move including, but not limited to, equipment
necessary to effect the change at the programmer's production or receiving facility (school
frequency routing equipment, etc.), signage, letterhead, business cards, and reasonable
marketing or other constituency notification costs up to a maximum of $10,000. This
paragraph shall not apply to Regional Channel 6.
d. Sixty (60) months after the Effective Date, upon written request of at least
90 days' advance notice, Comcast will make available to the Commission an additional
HD PEG channel on the cable system.
e. The content of the HD PEG channels is up to the Commission. The
Commission may simulcast one or more of the existing PEG channels in HD and SD
formats, or it may choose to provide subscribers an HD channel that is programmed
differently than the existing SD PEG channels (for example, the Commission could create
a "best of HD PEG channel that carries a combination of HD public, educational and
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government programming from the existing PEG Channels). If an HD PEG channel is
programmed differently, Comcast would have no additional obligation to provide an SD
simulcast of that channel.
f. Comcast will make available to the Commission the ability to place PEG
Channel programming information on the interactive channel guide by putting the
Commission in contact with the electronic programing guide vendor ("EPG provider") that
provides the guide service. Comcast will be responsible for providing the designations and
instructions necessary to ensure the channels will appear on the programming guide
throughout the jurisdictions that are part of the Commission and the costs of any necessary
headend equipment associated therewith. The Commission shall be responsible for
providing programming information to the EPG provider and for any costs charged by the
EPG provider, unless Comcast is required to pay for PEG EPG costs per applicable law or
national commitments. As part of this Franchise, Comcast is not agreeing to make detailed
guide functionality available for periods where the Commission chooses to distribute
different PEG programming via the same channel number (i.e. narrowcasting) to
subscribers in different communities that are part of the Commission.
g. Comcast will deliver the SD/HD PEG channels to Subscribers so that it is
viewable without degradation, provided that it is not required to deliver a PEG Channel at
a resolution higher than the highest resolution used in connection with the delivery of local
broadcast signals to the public. Comcast may implement SD/HD carriage of the PEG
channel in any manner (including selection of compression, utilization of IP, and other
processing characteristics) that produces a signal as accessible, functional, useable and of
a quality comparable (meaning indistinguishable to the viewer) to broadcast SD/HD
channels carried on the cable system.
h. The HD PEG channels will be assigned a number near the other high
definition local broadcast stations if such channel positions are not already taken, or if that
is not possible, near high definition news/public affairs programming channels if such
channel positions are not already taken, or if not possible, as reasonably close as available
channel numbering will allow. Grantee shall use its best efforts to group the HD PEG
channels together in simultaneous order.
i. The City acknowledges that HD programming may require the viewer to
have special viewer equipment (such as an HDTV and an HD -capable digital
device/receiver), but any subscriber who can view an HD signal delivered via the cable
system at a receiver shall also be able to view the HD PEG channels at that receiver, without
additional charges or equipment. By agreeing to make PEG available in HD format,
Comcast is not agreeing it may be required to provide free HD equipment to customers,
nor modify its equipment or pricing policies in any manner.
j. Comcast will provide a bill message announcing the launch of the HD PEG
Channels; however the City acknowledges that not all customers may receive the bill
message notice in advance of the channel launch in the interests of launching the channel
sooner.
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2. Remote Cablecasting. Grantee shall provide at no charge to the City/Commission
for the term of this Franchise and until it renews, three (3) "open" cable internet modems with a
static IP addresses that can be connected and operational anywhere on the System and capable of
transmitting live remote HD PEG programming to the City's master control center for live
cableeasting, using business -class internet service (currently 50 nibs download and 10 mbs upload)
and three MPEG encoder/transmitters and one multi -channel receiver device (capable of receiving
at least 3 remote video feeds) for the Commission's Master Control.
3. PEG Streaming. Grantee agrees to include the PEG channels in its in-home
streaming cable service application (currently Xfinity TV App). Grantee will use reasonable
efforts to make the PEG channels available to Subscribers outside the home on its TV -TO -GO
Application, or equivalent.
4. Equipment. In the event Grantee makes any change in the Cable System and related
equipment and facilities or in its signal delivery technology, which requires the City or
Commission to obtain new equipment in order to be compatible with such change for purposes of
transport and delivery of the Access Channels to the Grantee's headend, Grantee shall, at its own
expense and free of charge to the City, the Commission, or its designated entities, purchase such
equipment as may be necessary to facilitate the cablecasting of the PEG Channels in accordance
with the requirements of the Franchise.
5. Grantee Not Liable. Neither the Grantee nor the officers, directors, or employees
of the Grantee is liable for any penalties or damages arising from programming content not
originating from or produced by the Grantee and shown on any public access channel, education
access channel, government access channel, leased access channel, or regional channel.
Charges for Use. There shall be no charge to the City for the use of the PEG
Channels.
Access Rules. City, or its designee, shall implement rules for use of any access
channel(s).
8. Access Support.
a. In addition to satisfying the other requirements of this Section, the Grantee
is required to provide the following additional PEG use funding (as used in this Section),
PEG access refers to the channels, facilities and equipment used in connection with the
channels on the subscriber network and associated intercormections; PEG use includes
PEG access and dark fiber network and PRISMA network use, including use in connection
with the network provided pursuant to Section 7.2 (Additional Network Services) including
Exhibit C:
b. The Grantee will provide the following capital grant for PEG use for so long
as it continues to operate under this fianchise: Payments of all grants under the 1994 MOU
through December 31, 2017; commencing January 1, 2018, Grantee shall pay to City three
18
percent (3.0%) of its Gross Revenues paid quarterly based upon revenues for the calendar
quarter. The first Gross Revenue payment shall be due on May 1, 2018, based on Gross
Revenues for the quarter beginning January 1, 2018 and ending March 31, 2018, and
thereafter, payments shall be due 30 days after the end of each calendar quarter, based on
revenues for that quarter, or if the franchise should terminate or be revoked, 30 days after
termination or revocation for any portion of quarter during which Grantee provided Cable
Service.
C. Notwithstanding the foregoing requirements, if Grantee has a valid and
binding sponsorship contract with an entity designated by the City/Conunission to manage
any public access channel, the City agrees that Grantee may offset any amount it pays under
such contract against payments required above. Nothing in this section requires or shall be
deemed to require Grantee to make any payment that constitutes a franchise fee under 47
U.S.C. § 542.
d. The parties agree that any cost to the Grantee associated with providing any
support for PEG use required under this Franchise (including subscriber network drops and
equipment and service to public institutions and the provision of the dark fiber network
and PRISMA network and support for and payments made outside this franchise, if any),
shall not be offset from the franchise fee.
e. Grantee may itemize the PEG fees on Subscribers' invoices in accordance
with applicable law; provided, however, any PEG Fee charged to subscribers to recover
PEG funding provided in 2017 shall not exceed $6.00 per subscriber per month. Any
supplementary PEG fee levied by Comcast after January 1, 2018, to recover past
undercolleetions shall be set at 0.5% of cable Gross Revenues through December 31, 2019.
Any excess recovery shall be paid to the Commission at the same time as the Franchise
Fee payment.
9. Regional Channel 6. Grantee shall designate Channel 6 for uniform regional
channel usage to the extent required by law.
10. State and Federal Law com lip ance. Satisfaction of the requirements of this Section
6 satisfies any and all of Grantee's state and federal law requirements of Grantee with respect to
PEG access.
SECTION 7. NETWORKING PROVISIONS
1. Managed Network. The City and/or Commission has a need for a telecommunications
network to connect certain government buildings in the North Suburban Territory for
telecommunications services. Comcast or its Affiliate agrees to provide, operate, repair and
maintain a managed telecommunications network to City and/or Commission for the Term of the
Franchise in accordance with an executed Enterprise Services agreement, attached as Exhibits B,
B2, and B3. The Enterprise Services agreement shall set forth the locations, service, monthly fees
for service and all other material terms and conditions relative to Comeast's or its Affiliate's
provision of services to the City. Where an executed Enterprise Services agreement conflicts with
19
any term or condition of this Section, the Enterprise Services agreement shall prevail; with the
exception that in the event Grantee enters into a franchise or Enterprise Services agreement or
similar agreement in the 'Twin Cities metropolitan area after the Effective Date of this Franchise
that allow a city or group of cities to receive the same or similar services on terms, conditions
and/or pricing that are more favorable (taking into account the agreement as a whole), Grantee
agrees to make the pricing available immediately and make available the services within a
reasonable period of time to the City and/or Commission under the same terms, conditions and/or
pricing made available to the city or group of cities.
2. Additional Network Services. Comcast agrees to continue to make available to the City
network facilities on the terms and conditions identified in Exhibit C.
SECTION 8. OPERATION AND ADMINISTRATION PROVISIONS
1. Administration of Franchise. The City Administrator or other designee shall have
continuing regulatory jurisdiction and supervision over the System and the Grantee's operation
under the Franchise. The City, or its designee, may issue such reasonable rules and regulations
concerning the construction, operation and maintenance of the System as are consistent with the
provisions of the Franchise and law.
2. Delegated Authority. The City may appoint a citizen advisory body or a Joint
Powers Commission, or may delegate to any other body or Person authority to administer the
Franchise and to monitor the performance of the Grantee pursuant to the Franchise. Grantee shall
cooperate with any such delegatee of City.
3. Franchise Fee.
a, During the term of the Franchise, Grantee shall pay quarterly to City or its
delegatee a Franchise Fee in an amount equal to five percent (5%) of its quarterly Gross
Revenues, or such other amounts as are subsequently permitted by federal statute.
b. Any payments due under this provision shall be payable quarterly. The
payment shall be made within thirty (30) days of the end of each of Grantee's fiscal quarters
together with a report showing the basis for the computation.
C. All amounts paid shall be subject to audit and recomputation by City and
acceptance of any payment shall not be construed as an accord that the amount paid is in
fact the correct amount.
i. If an audit or review discloses an overpayment or underpayment of
franchise fees, the City and/or the Commission shall notify Comcast of such
overpayment or underpayment. The City's/Commission's audit or review
expenses shall be borne by the City/Commission unless the audit or review
determines that the payment to the City should be increased by more than
five percent (5%) in the audited/reviewed period, in which case the costs of
the audit/review shall be borne by Comcast, up to a cap of $25,000 for all
pill
current members of the Commission collectively, as a cost incidental to the
enforcement of the Franchise. Any additional amounts due to the City as a
result of the audit or review shall be paid to the City within thirty (30) days
following written notice to Comcast by the City/Commission of the
underpayment, which notice shall include a copy of the audit/review report.
If the recomputation results in additional revenue to be paid to the City, such
amount shall be subject to a ten percent (10%) annual interest charge.
ii. The City/Commission shall have the right to inspect and to require Comcast
to provide any and all data, documents and records maintained by Comcast
(or maintained by an Affiliate or a third -party contractor/vendor on behalf
of Comcast) reasonably related to the calculation and payment of franchise
fees. The Grantee shall maintain such records, documents and data for a
minimum of four (4) years. Such records include, but are not limited to,
those set forth in Paragraph 6 of the March 1, 2012, Settlement Agreement
(attached hereto as Exhibit D).
iii. Comcast shall have no less than twenty (20) business days to respond fully
and completely to any written request for data, documents and records
issued by the City/Commission, unless an extension of time is granted by
the City/Commission in writing. Comcast may request an extension of the
twenty (20) business day deadline applicable to a written request for data,
information and documents no later than ten (10) business days after the
date of such request. Every request for an extension of time shall describe,
in detail, the reasons the extension is necessary. The City/Commission may,
in its sole discretion, grant or deny an extension request, and shall act
reasonably in making such a determination based on the scope and
complexity of the information request at issue and the facts cited by
Comcast in its written extension request.
iv. In the event any franchise fee payment or recomputation amount is not made
on or before the required date, Comcast shall pay, during the period such
unpaid amount is owed, the additional compensation and interest charges
computed from such due date, at an annual rate of ten percent (10%).
V. Nothing in this Franchise shall be construed to limit any authority of the
City to impose any tax, fee or assessment of general applicability.
vi. The franchise fee payments required by this Franchise shall be in addition
to any and all taxes or fees of general applicability. Comcast shall not have
or make any claim for any deduction or other credit of all or any part of the
amount of said franchise fee payments from or against any of said taxes or
fees of general applicability, except as expressly permitted by law. Comcast
shall not apply nor seek to apply all or any part of the amount of said
franchise fee payments as a deduction or other credit from or against any of
said taxes or fees of general applicability, except as expressly permitted by
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law. Nor shall Comcast apply or seek to apply all or any part of the amount
of any of said taxes or fees of general applicability as a deduction or other
credit from or against any of its franchise fee obligations, except as
expressly permitted by law.
vii. Comcast shall ensure that persons or entities that only subscribe to non -
cable service (e.g., persons who subscribe only to high-speed Internet
access, telephone service, alarm monitoring, or a combination of services
that does not include cable service) are not assessed cable service franchise
fees on ancillary charges imposed by Comcast on such subscribers,
including but not limited to late fees, convenience fees and non -sufficient
funds (NSF) charges, unless the imposition of cable service franchise fees
is permitted by applicable laws or regulations.
4. Access to Records. The City/Commission shall have the right to inspect, upon
reasonable notice and during normal business hours, or require Grantee to provide within a
reasonable time copies of any records maintained by Grantee which relate to System operations
including specifically Grantee's accounting and financial records and which are reasonably
necessary for determining compliance with this Agreement.
5. Reuorts and Maus to be Filed with Cit
a. Grantee shall file with the City/Commission, at the time or payment of the
Franchise Fee, a report of all Gross Revenues in form and substance as required by
City/Commission, an example of which is attached hereto as Exhibit E.
b. Grantee shall prepare and furnish to City/Commission, at the times and in
the form prescribed, such other reasonable reports with respect to Grantee's operations
pursuant to this Franchise as City/Commission may require provided that such reports shall
be consistent with the way Grantee maintains the information in the ordinary course of
business, all requests are reasonably and directly related to the enforcement of this
Agreement, all produced information is subject to an acceptable confidentiality agreement,
and Grantee shall have no less than 20 business days to produce such information with
further extensions reasonably granted as needed based on the nature of the request.
C. If required by City/Commission, Grantee shall furnish to and file with
City/Commission the maps, plats, and permanent records of the location and character of
all facilities constructed, including underground facilities, and Grantee shall file with
City/Commission updates of such maps, plats and permanent records annually if changes
have been made in the System.
6. Periodic Evaluation.
a. The City/Commission may require evaluation sessions at any time during
the term of this Franchise, upon fifteen (15) days written notice to Grantee, but no
frequently than one every twenty-four (24) months.
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b. Topics which may be discussed at any evaluation session may include, but
are not limited to, application of new technologies, System performance,, programming
offered, access channels, facilities and support, municipal uses of cable, subscriber rates,
customer complaints, amendments to this Franchise, judicial rulings, FCC rulings, line
extension policies and any other topics City/Commission deems relevant.
C. As a result of a periodic review or evaluation session, Grantee and the City
may agree to modifications of the terms and conditions of the Franchise.
SECTION 9. DISPUTE RESOLUTION
1. Performance Bond.
a. At the time the Franchise becomes effective and at all times thereafter, until
the Grantee has liquidated all of its obligations with City, the Grantee shall furnish a bond
to City in the amount of $500,000.00 in a form and with such sureties as reasonably
acceptable to City (attached hereto as Exhibit F). This bond will be conditioned upon the
faithful performance by the Grantee of its Franchise obligations and upon the fiu#her
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 constriction,
operation, or maintenance of the System. The rights reserved by City with respect to the
bond are in addition to all other rights City may have under the Franchise or any other law.
City may, from year to year, in its sole discretion, reduce the amount of the bond. To the
extent the City is a member of the Commission a single bond of $500,000 will cover all
member cities of the Commission.
b. The time for Grantee to correct any violation or liability, shall be extended
by City if the necessary action to correct such violation or liability is, in the sole
determination of City, of such a nature or character as to require more than thirty (30) days
within which to perform, provided Grantee provides written notice that it requires more
than thirty (30) days to correct such violations or liability, commences the corrective action
within the thirty (30) days period and thereafter uses reasonable diligence to correct the
violation or liability.
C. In the event this Franchise is revoked by reason of default of Grantee, City
shall be entitled to collect from the performance bond that amount which is attributable to
any damages sustained by City as a result of said default or revocation.
d. Grantee shall be entitled to the cancellation or return of the performance
bond, or portion thereof, as remains sixty (60) days after the expiration of the tern of the
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Franchise or revocation for default thereof, provided City has not notified Grantee of any
actual or potential damages incurred as a result of Grantee's operations pursuant to the
Franchise or as a result of said default.
e. The rights reserved to City with respect to the performance bond are in
addition to all other rights of City whether reserved by this Franchise or authorized by law,
and no action, proceeding or exercise of a right with respect to the performance bond shall
affect any other right City may have.
2. Letter of Credit and Liquidated Damages.
a, At the time of acceptance of this Franchise, Grantee shall deliver to City an
irrevocable and unconditional Letter of Credit, in form and substance acceptable to City,
from a National or State bank approved by City, in the amount of $25,000.00.
b. The Letter of Credit shall provide that funds will be paid to City, upon
written demand of City, and in an amount solely determined by City in payment for
penalties charged pursuant to this Section, in payment for any monies owed by Grantee to
City or any person pursuant to its obligations under this Franchise, or in payment for any
damage incurred by City or any person as a result of any acts or omissions by Grantee
pursuant to this Franchise.
C, In addition to recovery of any monies owed by Grantee to City or any person
or damages to City or any person as a result of any acts or omissions by Grantee pursuant
to the Franchise, City in its sole discretion may charge to and collect from the Letter of
Credit the following penalties:
i. For failure to provide data, documents, reports or information or to
cooperate with City during an application process or system review or as
otherwise provided herein, the penalty shall be $250.00 per day for each
day, or part thereof, such failure occurs or continues.
ii. Fifteen (15) days following notice from City of a failure of Grantee to
comply with construction, operation or maintenance standards, the penalty
shall be $500.00 per day for each day, or part thereof, such failure occurs or
continues.
iii. For failure to provide the services Grantee has proposed, including, but not
limited to, the implementation and the utilization of the access channels and
the maintenance and/or replacement of the equipment and other facilities,
the penalty shall be $500.00 per day for each day, or part thereof, such
failure occurs or continues.
iv. For Grantee's breach of any written contract or agreement with or to the
City or its designee, the penalty shall be $500.00 per day for each day, or
part thereof, such breach occurs or continues.
24
V. For failure to comply with any of the provisions of this Franchise, or other
City ordinance for which a penalty is not otherwise specifically provided
pursuant to this paragraph c, the penalty shall be $250.00 per day for each
day, or part thereof, such failure occurs or continues.
d. Each violation of any provision of this Franchise shall be considered a
separate violation for which a separate penalty can be imposed.
e. Whenever City finds that Grantee has violated one or more teens,
conditions or provisions of this Franchise, or for any other violation contemplated in
Subparagraph c. above, a written notice shall be given to Grantee informing it of such
violation. At any time after thirty (30) days (or such longer reasonable time which, in the
sole determination of City, is necessary to cure the alleged violation) following local
receipt of notice, provided Grantee remains in violation of one or more terms, conditions
or provisions of this Franchise, in the sole opinion of City, City may draw from the Letter
of Credit all penalties and other monies due City from the date of the local receipt of notice.
f. Whenever the Letter of Credit is drawn upon, Grantee may, within seven
(7) days of such draw, notify City in writing that there is a dispute as to whether a violation
or failure has in fact occurred. Such written notice by Grantee to City shall specify with
particularity the matters disputed by Grantee. All penalties shall continue to accrue and
City may continue to draw from the Letter of Credit during any appeal pursuant to this
subparagraph.
i. City shall hear Grantee's dispute within sixty (60) days and render a final
decision within sixty (60) days thereafter.
ii. Upon the determination of City that no violation has taken place, City shall
refund to Grantee, without interest, all monies drawn from the Letter of
Credit by reason of the alleged violation.
g. If said Letter of Credit or any subsequent Letter of Credit delivered pursuant
thereto expires prior to thirty (30) months after the expiration of the teen of this Franchise,
it shall be renewed or replaced during the tern of this Franchise to provide that it will not
expire earlier than thirty (30) months after the expiration of this Franchise. The renewed
or replaced Letter of Credit shall be of the same form and with a bank authorized herein
and for the full amount stated in paragraph 2(a) of this Section.
h. If City draws upon the Letter of Credit or any subsequent Letter of Credit
delivered pursuant hereto, in whole or in part, Grantee shall replace or replenish to its full
amount the same within ten (10) days and shall deliver to City a like replacement Letter of
Credit or certification of replenishment for the full amount stated in Section 9.2(a) (Letter
of Credit and Liquidated Damages) as a substitution of the previous Letter of Credit. This
shall be a continuing obligation for any draws upon the Letter of Credit.
25
i. If any Letter of Credit is not so replaced or replenished, City may draw on
said Letter of Credit for the whole amount thereof and use the proceeds as City determines
in its sole discretion. The failure to replace or replenish any Letter of Credit may also, at
the option of the City, be deemed a default by Grantee under this Franchise. The drawing
on the Letter of Credit by City, and use of the money so obtained for payment or
performance of the obligations, duties and responsibilities of Grantee which are in default,
shall not be a waiver or release of such default.
j. The collection by City of any damages, monies or penalties from the Letter
of Credit shall not affect any other right or remedy available to City, nor shall any act, or
failure to act, by City pursuant to the Letter of Credit, be deemed a waiver of any right of
City pursuant to this Franchise or otherwise.
3. Indemnification of City.
a. City, its officers, boards, committees, commissions, elected officials,
employees and agents shall not be liable for any loss or damage to any real or personal
property of any Person, or for any injury to or death of any Person, arising out of or in
connection with Grantee's construction, operation, maintenance, repair or removal of the
System or as to any other action of Grantee with respect to this Franchise.
b. Grantee shall indemnify, defend, and hold harmless City, its officers,
boards, committees, commissions, elected officials, employees and agents, from and
against all liability, damages, and penalties which they may legally be required to pay as a
result of the City's exercise, administration, or enforcement of the Franchise.
C. Nothing in this Franchise relieves a Person, except City, from liability
arising out of the failure to exercise reasonable care to avoid injuring the Grantee's facilities
while performing work connected with grading, regarding, or changing the line of a Right -
of -Way or public place or with the construction or reconstruction of a sewer or water
system.
d. Grantee shall contemporaneously with this Franchise execute an Indemnity
Agreement in the form of Exhibit G, which shall indemnify, defend and hold the City and
Commission harmless for any claim for injury, damage, loss, liability, cost or expense,
including court and appeal costs and reasonable attorneys' fees or reasonable expenses
arising out of the actions of the City and/or Commission in renewal of this Franchise. The
term of the Indemnity Agreement shall not exceed 180 days' from the Effective Date of
this Franchise, unless the City or Commission has received statutory notice of a claim based
upon the renewal of this Franchise. This obligation includes any claims by another
franchised cable operator against the City and/or Commission that the terms and conditions
of this Franchise are less burdensome than another franchise granted by the City or that
this Franchise does not satisfy the requirements of applicable state law(s).
4. Insurance.
26
a. As a part of the indemnification provided in Section 9.3 (Indemnifcation of
City), but without limiting the foregoing, Grantee shall file with City at the time of its
acceptance of this Franchise, and at all times thereafter maintain in full force and effect at
its sole expense, a comprehensive general liability insurance policy, including
broadcaster's/cablecaster's liability and contractual liability coverage, in protection of the
Grantee, and the City, its officers, elected officials, boards, commissions, agents and
employees for any and all damages and penalties which may arise as a result of this
Franchise. The policy or policies shall name the City as an additional insured, and in their
capacity as such, City officers, elected officials, boards, commissions, agents and
employees.
b. The policies of insurance shall be in the sum of not less than $1,000,000.00
for personal injury or death of any one Person, and $2,000,000.00 for personal injury or
death of two or more Persons in any one occurrence, $500,000.00 for property damage to
any one person and $2,000,000.00 for property damage resulting from any one act or
occurrence.
C. The policy or policies of insurance shall be maintained by Grantee in full
force and effect during the entire term of the Franchise. Each policy of insurance shall
contain a statement on its face that the insurer will not cancel the policy or fail to renew
the policy, whether for nonpayment of premium, or otherwise, and whether at the request
of Grantee or for other reasons, except after sixty (60) days advance written notice have
been provided to City.
SECTION 10. SALE, ABANDONMENT, TRANSFER AND REVOCATION OF
FRANCHISE
1. City's Right to Revolve.
a. In addition to all other rights which City has pursuant to law or equity, City
reserves the right to continence proceedings to revoke, terminate or cancel this Franchise,
and all rights and privileges pertaining thereto, if it is determined by City that:
Grantee has violated material provisions(s) of this Franchise; or
ii. Grantee has practiced fraud or deceit upon City.
City may enforce its rights and seek any and all relief allowed under applicable law if Grantee is
adjudged a bankrupt.
2. Procedures for Revocation.
a. City shall provide Grantee with written notice of a cause for revocation and
the intent to revoke and shall allow Grantee thirty (30) days subsequent to receipt of the
notice in which to correct the violation or to provide adequate assurance of performance in
27
compliance with the Franchise. In the notice required herein, City shall provide Grantee
with the basis of the revocation.
b. Grantee shall be provided the right to a public hearing affording due process
before the City Council prior to the effective date of revocation, which public hearing shall
follow the thirty (30) day notice provided in subparagraph (a) above. City shall provide
Grantee with written notice of its decision together with written findings of fact
supplementing said decision.
C. Only after the public hearing and upon written notice of the determination
by City to revoke the Franchise may Grantee appeal said decision with an appropriate state
or federal court or agency.
d. During the appeal period, the Franchise shall remain in full force and effect
unless the term thereof sooner expires or unless continuation of the Franchise would
endanger the health, safety and welfare of any person or the public.
3. Abandonment of Service. Grantee may not abandon the System or any portion
thereof without having first given three (3) months written notice to City. Grantee may not
abandon the System or any portion thereof without compensating City for damages resulting from
the abandonment, including all costs incident to removal of the System.
4. Removal After Abandonment, Termination or Forfeiture.
a. In the event of termination or forfeiture of the Franchise or abandonment of
the System, City shall have the right to require Grantee to remove all or any portion of the
System from all Rights -of -Way and public property within City, unless Grantee is offering
other services (such as telecommunication services) over the System and has or obtains the
necessary authorizations to occupy the rights-of-way for such purposes.
b. If Grantee is not providing other lawful services over the System with the
necessary authorizations and has failed to commence removal of System, or such part
thereof as was designated by City, within thirty (30) days after written notice of City's
demand for removal is given, or if Grantee has failed to complete such removal within
twelve (12) months after written notice of City's demand for removal is given, City shall
have the right to apply funds secured by the Letter of Credit and Performance Bond toward
removal and/or declare all right, title, and interest to the System to be in City with all rights
of ownership including, but not limited to, the right to operate the System or transfer the
System to another for operation by it.
5. Sale or Transfer of Franchise.
a. No sale or transfer of the Franchise, or sale, transfer, or fimdamental
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
28
merger of a subsidiary and parent entity, consolidation, or the creation of a subsidiary or
affiliate entity, shall take place until a written request has been filed with City requesting
approval of the sale, transfer, or corporate change and such approval has been granted or
deemed granted, provided, however, that said approval shall not be required where Grantee
grants a security interest in its Franchise and/or assets to secure an indebtedness. The
foregoing notwithstanding, Grantee must seek approval of any transaction constituting a
transfer under state law.
b. Any sale, transfer, exchange or assignment of stock in Grantee, or Grantee's
parent corporation or any other entity having a controlling interest in Grantee, so as to
create a new controlling interest therein, shall be subject to the requirements of this Section
10.5. The term 'controlling interest" as used herein is not limited to majority stock
ownership, but includes actual working control in whatever manner exercised. In any
event, as used herein, a new "controlling interest" shall be deemed to be created upon the
acquisition through any transaction or group of transactions of a legal or beneficial interest
of fifteen percent (15%) or more by one Person. Acquisition by one Person of an interest
of five percent (5%) or more in a single transaction shall require notice to City. This
requirement shall not apply to transactions involving the acquisition of anon -Cable Service
business, movie studio, or other such business venture by Grantee's parent company).
C. The Grantee shall file, in addition to all documents, forms and information
required to be filed by applicable law, the following subject to reasonable confidentiality
agreements, if necessary:
i. All contracts, agreements or other documents that constitute the proposed
transaction and all exhibits, attachments, or other documents referred to
therein which are necessary in order to understand the terms thereof.
ii. A list detailing all public documents filed with any state or federal agency
related to the transaction including, but not limited to, the MPUC, the FCC,
the FTC, the FEC, the SEC or MnDOT. Upon request, Grantee shall
provide City with a complete copy of any such document; and
iii. Any other documents or information related to the transaction as may be
specifically requested by the City which are necessary in order to
understand the terms thereof.
d. City shall have such time as is permitted by federal law in which to review
a transfer request.
C. 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.
29
f In no event shall a sale, transfer, corporate change, or assignment of
ownership or control pursuant to subparagraph (a) or (b) of this Section be approved
without the transferee becoming a signatory to this Franchise and assuming all rights and
obligations thereunder, and assuming all other rights and obligations of the transferor to
the City including, but not limited to, any adequate guarantees or other security instruments
provided by the transferor.
g. In the event of any proposed sale, transfer, corporate change, or assignment
pursuant to subparagraph (a) or (b) of this Section, City shall have the right to purchase the
System for the value of the consideration proposed in such transaction. City's right to
purchase shall arise upon City's receipt of notice of the material terms of an offer or
proposal for sale, transfer, corporate change, or assignment, which Grantee has accepted.
Notice of such offer or proposal must be conveyed to City in writing and separate from any
general announcement of the transaction.
11. City shall be deemed to have waived its right to purchase the System
pursuant to this Section only in the following circumstances:
i. If City does not indicate to Grantee in writing, within sixty (60) days of
receipt of written notice of a proposed sale, transfer, corporate change, or
assignment as contemplated in Section 10.5 (g) above, its intention to
exercise its right of purchase; or
ii. It approves the assignment or sale of the Franchise as provided within this
Section.
i. No Franchise may be transferred if City determines Grantee is in
noncompliance of the Franchise unless an acceptable compliance program has been
approved by City. The approval of any transfer of ownership pursuant to this Section shall
not be deemed to waive any rights of City to subsequently enforce noncompliance issues
relating to this Franchise even if such issues predated the approval, whether known or
unknown to City.
SECTION 11. PROTECTION OF INDIVIDUAL RIGHTS
1. Discriminatory Practices Prohibited. Grantee shall not deny service, deny access,
or otherwise discriminate against Subscribers (or group of potential subscribers) or general citizens
on the basis of race, color, religion, national origin, sex, age, status as to public assistance,
affeetional preference, or disability. Grantee shall comply at all times with all other applicable
federal, state, and city laws, and all executive and administrative orders relating to
nondiscrimination.
2. Subscriber Privacy. Grantee shall comply with all customer privacy obligations
under applicable law.
30
SECTION 12. UNAUTHORIZED CONNECTIONS AND MODIFICATIONS
1. Unauthorized Connections or Modifications Prohibited. It shall be unlawful for
any film, Person, group, company, corporation, or governmental body or agency, without the
express consent of the Grantee, to make or possess, or assist anybody in making or possessing, any
unauthorized connection, extension, or division, whether physically, acoustically, inductively,
electronically or otherwise, with or to any segment of the System or receive services of the System
without Grantee's authorization.
2. Removal or Destruction Prohibited. It shall be unlawful for any firm, Person,
group, company, or corporation to willfully interfere, tamper, remove, obstruct, or damage, or
assist thereof, any part or segment of the System for any purpose whatsoever, except for any rights
City may have pursuant to this Franchise or its police powers.
3. Penalty. Any firm, Person, group, company, or corporation found guilty of
violating this section may be fined not less than Twenty Dollars ($20.00) and the costs of the action
nor more than Five Hundred Dollars ($500.00) and the costs of the action for each and every
subsequent offense. Each continuing day of the violation shall be considered a separate
occurrence.
SECTION 13. MISCELLANEOUS PROVISIONS
1. Franchise Renewal. Any renewal of this Franchise shall be performed in
accordance with applicable federal, state and local laws and regulations.
2. Work Performed by Others. All applicable obligations of this Franchise shall apply
to any subcontractor or others performing any work or services pursuant to the provisions of this
Franchise, however, in no event shall any such subcontractor or other performing work obtain any
rights to maintain and operate a System or provide Cable Service. Grantee shall provide notice to
City of the name(s) and address(es) of any entity, other than Grantee, which performs substantial
services in the City pursuant to this Franchise.
3. Amendment of Franchise Ordinance. Grantee and City may agree, from time to
time, to amend this Franchise. Such written amendments may be made subsequent to a review
session pursuant to Section 8.6 or at any other time if City and Grantee agree that such an
amendment will be in the public interest or if such an amendment is required due to changes in
federal, state or local laws. Provided, however, nothing herein shall restrict City's exercise of its
police powers.
31
4. Compliance with Federal, State and Local Laws.
a. If any federal or state law or regulation shall require or permit City or
Grantee to perform any service or act or shall prohibit City or Grantee from performing
any service or act which may be in conflict with the terms of this Franchise, then as soon
as possible following knowledge thereof, either party shall notify the other of the point in
conflict believed to exist between such law or regulation. Grantee and City shall conform
to state laws and rules regarding cable communications not later than one year after they
become effective, unless otherwise stated, and to conform to federal laws and regulations
regarding cable as they become effective.
b. If any term, condition or provision of this Franchise or the application
thereof to any Person or circumstance shall, to any extent, be held to be invalid or
unenforceable, the remainder hereof and the application of such term, condition or
provision to Persons or circumstances other than those as to whom it shall be held invalid
or unenforceable shall not be affected thereby, and this Franchise and all the terms,
provisions and conditions hereof shall, in all other respects, continue to be effective and
complied with provided the loss of the invalid or unenforceable clause does not
substantially alter the agreement between the parties. In the event such law, rule or
regulation is subsequently repealed, rescinded, amended or otherwise changed so that the
provision which had been held invalid or modified is no longer in conflict with the law,
rules and regulations then in effect, said provision shall thereupon return to full force and
effect and shall thereafter be binding on Grantee and City.
5. Nonenforcement by City. Grantee shall not be relieved of its obligations to comply
with any of the provisions of this Franchise by reason of any failure or delay of City to enforce
prompt compliance. City may only waive its rights hereunder by expressly so stating in writing.
Any such written waiver by City of a breach or violation of any provision of this Franchise shall
not operate as or be construed to be a waiver of any subsequent breach or violation.
6. Rights Cumulative. All rights and remedies given to City by this Franchise or
retained by City herein shall be in addition to and cumulative with any and all other rights and
remedies, existing or implied, now or hereafter available to City, at law or in equity, and such
rights and remedies shall not be exclusive, but each and every right and remedy specifically given
by this Franchise or otherwise existing or given may be exercised from time to time and as often
and in such order as may be deemed expedient by City and the exercise of one or more rights or
remedies shall not be deemed a waiver of the right to exercise at the same time or thereafter any
other right or remedy.
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.
1«
8. No Third Party Beneficiaries. Nothing in this Franchise Agreement is intended to
l confer third -party beneficiary status on any member of the public to enforce the terms of this
Franchise Agreement. This provision does not apply to the Commission or the NSAC.
SECTION 14. PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
1. Publication: Effective Date. This Franchise shall be published in accordance with
applicable local and Minnesota law. The Effective Date of this Franchise shall January 1, 2017.
2. Acceptance.
a. Grantee shall accept this Franchise within sixty (60) of its enactment by the
City Council, unless the time for acceptance is extended by City. Such acceptance by the
Grantee shall be deemed the grant of this Franchise for all purposes provided, however,
this Franchise shall not be effective until all City ordinance adoption procedures are
complied with and all applicable timelines have run for the adoption of a City ordinance.
In the event acceptance does not take place, or should all ordinance adoption procedures
and timelines not be completed, this Franchise and any and all rights granted hereunder to
Grantee shall be null and void.
b. Upon the Effective Date and acceptance of this Franchise, Grantee and City
shall be bound by all the terms and conditions contained herein.
C. Grantee shall accept this Franchise in the following manner:
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 and First Reading by Mounds View City Council on September 25, 2017
Second Reading and Adoption by the Mounds View City Council on October 9, 2017
Publication Date: October 20, 2017
Z Y v
Carol A. Mueller, Mayor
ATTEST: /ffn
Ny ikmu nterim City Administrator
(seal)
33
ACCEPTED: This Franchise is accepted and we agree to be bound by its terms and conditions.
Dated:
RE
1 ! 1
City of Arden Hills
h�ct. Na..
Exhibit A — Drops to Designated Buildings
Sheet Address
City
Arden Hills City Hall
4364 W. Round Lk. Rd.
Arden Hills
Arden Hills Public Works
1460 W. Hwy. 96
Arden Hills
City of Falcon Heights
[.ct Nam.
Street Address
Citv
Falcon Heights City Hall
2077 W. Larpenteur Ave.
Falcon Heights
Falcon Heights Fire Station
2077 W. Larpenteur Ave.
Falcon Heights
City of Lauderdale
Inst. Name
Street Address
City
Lauderdale City Hall
325 Little Canada Rd.
1891 Walnut St.
OId Little Canada Comm Room
Lauderdale
I Little Canada
New Brighton Municipal Bldg.
785 Old Highway 8
City of Little Canada
Inst. Name
Street Address
ON
Little Canada City Hall
515 E. Little Canada Rd.
I Little Canada
Little Canada Fire Station
325 Little Canada Rd.
Little Canada
OId Little Canada Comm Room
440 E. Little Canada Rd.
I Little Canada
City of Mounds View
1.ef Num.
Street Address
(5h
Mounds View City Hall
2401 Hwy. 10
Mounds View
Mounds View Community Center
2394 Edgewood Dr.
Mounds View
Mounds View Maintenance Gar.
2466 NE Bronson Dr.
Mounds View
City of New Brighton
rust Nam.
Street Address
Citv
New Brighton City Hall
803 NW 5` Ave.
New Brighton
New Brighton Fire Station
785 NW 5` Ave.
New Brighton
New Brighton Maintenance Bldg.
700 NW 5` Ave.
New Brighton
New Brighton Municipal Bldg.
785 Old Highway 8
New Brighton
City of North Oaks
Inst. Name Street Address Cit
North Oaks City Hall 100 Village Center Dr. North Oaks
Exhibit A — Drops to Designated Buildings
City of Roseville
Inst. Name Street Address City
Roseville City Hall
2661 Civic Center Dr.
Roseville
Roseville Fire Station 1
2701 N. Lexington Ave.
Roseville
Roseville Gymnastics Cntr.
1240 Co. Rd. B-2
Roseville
Roseville Harriet Alexander
Nature
2520 N. Dale St.
Roseville
Roseville Maintenance Building
2660 Civic Center Dr.
Roseville
CTV Admin., CTV
2670 Arthur St
Roseville
City of St. Anthony
Inst. Name
Street Address City
St. Anthony City Hall
3301 Silver Lake Rd.
St. Anthony
St. Anthony Fire Station
2900 Kenzie Terrace
St. Anthony
St. Anthony Public Works
3801 Chandler Dr.
St. Anthony
St. Anthony Community Services
3301 Silver Lake Rd.
St. Anthony
St. Anthony Police
3301 Silver Lake Rd.
St. Anthony
Dist. 2822 — SA/NB Schools
Inst. Name
Street Address City
ISD 282 District Office SA/NB
3303 33'd Ave. NE
St. Anthony
St. Anthony High School
3303 33"1Ave. NE
St. Anthony
St. Anthony Middle School
330333 IAve. NE
St. Anthony
Wilshire Park Elementary
3600 NE Highcrest Rd.
St. Anthony
Dist. 621— Mounds View
Inst. Name
Street Address City
Bel Air Elementary School
1800 NW 5` St.
New Brighton
Edgewood Middle School
5100 N. Edgewood Dr.
Mounds View
Highview Middle School
2300 NW 7 thSt.
New Brighton
Irondale High School
2425 Long Lake Rd.
New Brighton
Mounds View High School
1900 W. Co. Rd. F
Arden Hills
Pike Lake Elementary
2101 NW 14'h St.
New Brighton
Pinewood Elementary
5500 Quincy St.
Mounds View
Early Education School
500 NW 10` St.
New Brighton
Sunnyside Elementary
2070 W. Co. Rd. H
New Brighton
Valentine Hills Elementary
1770 W. Co. Rd. E2
Arden Hills
2
Exhibit A — Drops to Designated Buildings
Dist. 623 — Roseville Area
Inst. Name Street Address City
Brimhall Elementary
1744 W. Co. Rd. B
Roseville
Central Park Elementary
535 W. Co. Rd. 132
Roseville
Edgerton Elementary School
1929 Edgerton St.
Maplewood
Fairview Community Center
1910 W. Co. Rd. B
Roseville
Falcon Heights Elementary
1393 W. Garden Ave.
Falcon Heights
ISD 623 District Center
1251 W. Co. Rd. 132
Roseville
Little Canada Elementary
400 Eli Rd.
Little Canada
Parkview Center School
701 W. Co. Rd. B
Roseville
Roseville Area High School
1261 Hwy. 36
Roseville
Roseville Area Middle School
15 E. Co. Rd. B2
Little Canada
Hennepin County
Inst. Name Street AddressCit
St. Anthony Public Library 2900 NE Pentagon Dr. St. Anthony
Ramsey County
Inst Name Street Address City
Ramsey Co. Library — Mounds View
2576 Hwy. 10
Mounds view
Ramsey Co. Library— Roseville
2180 N. Hamline Ave.
Roseville
Ramsey Co Library—New Brighton
400 10` St. NW
New Brighton
Exhibit B
COMCAST ENTERPRISE SERVICES
MASTER SERVICES AGREEMENT (MSA)
MSA ID#: MN-7078239-surqu MSA Term:60 months iCustomer Name: City of Roseville
CUSTOMERO •
Primary Contact: Terre Heiser
Primary Contact Address Information
Title: Direector of IT
Address 1: 2660 Civic Center Drive
Phone: (651) 792-7092
Address 2:
Cell:
City: Roseville
Fax:
State: MN
Email: network.manager@cityofroseville.com -
Zip Code: 55113
This Master Service Agreement ("Agreement") sets forth the terms and conditions under which Comcast Cable Communications
Management, LLC and its operating affiliates ("Comcast") will provide communications and other services ("Services") to the
above Customer. The Agreement consists of this fully executed Master Service Agreement Cover Page ("Cover Page"), the
Enterprise Services General Terms and Conditions ("General Terms and Conditions'), any written amendments to the
Agreement executed by both parties ("Amendments"), the Product -Specific Attachment for the applicable Services ("PSA(s)")
and each Sales Order accepted hereunder ("Sales Orders"). In the event of any inconsistency among these documents,
precedence will be as follows: (1) this Cover Page (2) General Terms and Conditions, (3) PSA(s), , and (4) Sales Orders. This
Agreement shall be legally binding when signed by both parties and shall continue in effect until the expiration date of any
Service Term specified in a Sales Order referencing the Agreement, unless terminated earlier in accordance with the
Agreement.
The Customer referenced above may submit Sales Orders to Comcast during the Term of this Agreement ("MSA Term"). After
the expiration of the initial MSA Term, Comcast may continue to accept Sales Orders from Customer under the Agreement, or
require the parties to execute a new MSA.
The Agreement shall terminate in accordance with the General Terms and Conditions. The General Terms and Conditions and
PSAs are located at http://business.comcast.com/enterprise-terms-of-service/index.aspx(or any successor URL).Use of the
Services is also subject to the High -Speed Internet for Business Acceptable Use Policy ("AUP") located at
http://business.comcast.com/customer-notifications/acceptable-use-policy (or any successor URL), and the Highspeed Internet
for Business Privacy Policy (Privacy Policy") located at http://business.comcast.com/customer-notifications/customer-privacy-
statement (or any successor URL). Comcast may update the General Terms and Conditions, PSAs, AUP and Privacy Policy
from time to timeupon posting to the Comcast website.
Services are only available to commercial customers in wired and serviceable areas in participating Comcast systems (and may
not be transferred). Minimum Service Terms are required for most Services and early termination fees may apply. Service
Terms are identified in each Sales Orders, and early termination fees are identified in the applicable Product Specific
Attachments.
BY SIGNING BELOW, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
CUSTOMER
Signature:
Name:
Title:
Date:
COMCAST USE ONLY
(by authorized representative)
Signature:
Sales Rep: Steven Urquhart
Name:
Sales Rep Email: Steven_urquhart@cable.comcast.com
Title:
Region:
Date:
Division:
Exhibit B2 — First Amendment to Comcast Enterprise Services Master Agreement
FIRST AMENDMENT TO
COMCAST ENTERPRISE SERVICES MASTER AGREEMENTS
No. MN-7078239-surqu-6107932
No. MN-10682707-surqu-8012973
No. MN-10682530-surqu-8012808
No. MN-1919172-surqu-7985235
No. MN-10681743-surqu-8012080
This First endment ("Amendment") is concurrently entered into on
,484^- C(" 4,. 405 ("Effective Date") in conjunction with the Comcast Enterprise
Services Master Services Agreement Nos. 7078239; 10682707; 10682530; 1919172; and
10681743 ("Agreement") by and between Comcast of Minnesota, Inc. ("Comcast") and the Cities
of Roseville, Hugo, Arden Hills, Lauderdale, and North Oaks ("Customer"), individually referred
to herein as "Party" and jointly referred to as "Parties." In the event of an explicit conflict between
this Amendment and the Agreement, the terms and conditions of this Amendment shall take
precedence in the interpretation of the explicit matter in question. Unless otherwise set forth herein,
all capitalized terms set forth herein shall have the same meaning as set forth in the Agreement.
WHEREAS, the Parties desire to amend the Agreement by this writing to reflect the
amended or additional terms and conditions to which the Parties have agreed;
NOW, THEREFORE, in consideration of the mutual covenants, promises, and
consideration set forth in this Amendment, the Parties agree as follows:
CHANGES TO THE GENERAL TERMS AND CONDITIONS:
1. DEFINITIONS:
a. "Agreement, Enterprise Services Master Services Agreement or MSA" is
deleted in its entirety and replaced with the following:
Agreement, Enterprise Services Master Services Agreement or MSA in reverse order of
Precedence: Consists of 1) Initial Sales Orders ID No. MN-7078239-surqu-6107932;
MN-10682707-surqu-8012973; MN-10682530-surqu-8012808; MN-1919172-surqu-7985235;
and MN-10681743-surqu-8012080, 2) Comcast Enterprise Services General Terms and Conditions
("General Terms and Conditions" Version 1.2 in effect as of the date of this Agreement, as may be
updated by Comcast from time to time with written notice to Customer's Chief Information
Officer. Comcast will annually present to Customer any changes to the General Terms and
Conditions as a condition of them becoming effective as to Customer, 3) the then current
Product -Specific Attachment for each ordered Service ('PSA"), 4) any written amendments to the
Agreement executed by both Parties including any supplemental terms and conditions
("Amendments") including this Amendment and 5) each subsequent Sales Order accepted by
Comcast and Customer under the Agreement.
b. "Comcast Website or Website" is revised as follows:
The Comcast website where Comcast security and privacy policies applicable to the Agreement
will be posted. Comcast will annually present to Customer for review any changes to Comcast
security and privacy policies and such amended policies shall not be effective until such notice is
provided. The current URL for the Website is
http://business.comcast.com/enterprise-terms-of-service. Comcast may update the Website
documents and/or URL from time to time.
C. "Confidential Information" is deleted in its entirety and replaced with the
following:
Comcast claims that information it provides to Customer during the course of this Agreement
constitutes Comeast's valuable property and that the information embodies substantial creative
efforts which are proprietary, secret, confidential, not generally kriown by the public, and which
secure to Comcast a competitive advantage, and are Confidential and Trade Secrets as defined by
the Minnesota Government Data Practices Act, Minnesota Statutes, Chapter 13 ("Data Practices
Act"), and not subject to public disclosure.
Customer agrees that, if a request is received for access to data that Comcast claims under
this Agreement to be trade secret information, Customer will notify Comcast of the request.
Comcast will, as soon as reasonably possible, but no later than five (5) business days from the time
of notice, provide Customer written justification for its claim that the requested data is Trade Secret
data. Customer shall review the justification. If it agrees, Customer shall so inform the requester. If
it disagrees, Customer shall so inform Comcast and the data requester and will then act accordingly
to respond to the request for data. Thereafter Comcast shall take all actions, including exercise of
its legal remedies, it deems necessary to protect the disclosure of the data and Comcast shall
defend, indemnify, and hold harmless Customer, its officials, employees and agents from any
liability for failure to release, disclose, give access to, or copy the requested data.
it. Definition for "Initial Sales Orders" is added and shall mean Sales Order Nos.
MN-7078239-surqu-6107932; MN-10682707-surqu-8012973; MN-10682530-surqu-8012808;
MN-1919172-surqu-7985235; and MN-10681743-surqu-8012080, which is the request for
Services to the 8 Customer Service Locations submitted by Customer to Comcast on a then -current
Comcast form designated for that purpose. For the purposes of the General Terms and Conditions,
the Initial Sales Orders shall also be referred to as Sales Order, except where explicitly identified
otherwise.
e. "Sales Order" is deleted in its entirety and replaced with the following:
Sales Order shall mean any Sales Order other than the Initial Sales Orders that Customer submits to
Comcast as a request for Comcast to provide the Services to a Service Location(s) on a then -current
form designated for that purpose.
"Service(s)" is modified to read as follows:
A service provided by Comcast pursuant to a Sales Order under this Agreement.
2. Article 1 "Changes to the Agreement Terms" is deleted in its entirety and
replaced with the following:
Alteration. Any alteration, variation, modification, or waiver of the provisions of this Agreement
shall be valid only after it has been reduced to writing and duly signed by both parties.
3. Article 2.2 "Access" is hereby modified to read as follows:
In order to deliver certain Services to Customer, Comcast may require access, conduit, and/or
common room space ("Access"), both within and/or outside each Service Location. Customer shall
provide an adequate environmentally controlled space and such electricity as may be required for
installation, operation, and maintenance of the Comcast Equipment used to provide the Services
within the Service Location(s). Customer shall be responsible for securing, and maintaining on an
initial and ongoing basis during the applicable Service Term and/or Renewal Term, such Access
within each Service Location unless Comcast has secured such access prior to this Agreement. In
the event that Customer, fails to secure or maintain such Access within a particular Service
Location, Comcast shall provide Customer written notice of such failure and Customer shall have
thirty (30) business days from the date said notice was received by the Customer to cure such
failure. If Customer fails to correct such failure within the cure period, Comcast may cancel or
terminate Service at such particular Service Location, without further liability, upon written notice
to Customer. In such event, except with regard to cancelled or terminated services to Service
Locations covered by the Initial Sales Orders, if Comcast has incurred any costs or expense in
installing or preparing to install the Service that it otherwise would not have incurred, a charge
equal to those costs or expenses shall apply to Customer's final invoice for that particular Service
Location. If Comcast is unable to secure or maintain Access outside a particular Service Location,
which Access is needed to provide Service to such Service Location, Customer or Comcast may
cancel or terminate Service to such particular Service Location, without further liability beyond the
termination date, upon a minimum thirty (30) days' prior written notice to the other party. In such
event, if Comcast has incurred any costs or expense in installing or preparing to install the Service
that it otherwise would not have incurred, Comcast shall be responsible for such costs or expenses.
Any other failure on the part of Customer to be ready to receive Service, or any refusal on the part
of the Customer to receive Service, shall not relieve Customer of its obligation to pay charges for
any Service that is otherwise available for use.
Comcast agrees to abide by all applicable laws and regulations. In the event Comcast ceases to
provide services or at the conclusion or termination of all agreements between Customer and
Comcast, if applicable to the Service, Comcast shall use its best efforts to return all Customer data
to the Customer in a Customer -approved format and purge such data from Comcast computers and
storage devices. Comcast will provide written verification of data purge if applicable.
4. Article 2.5 "Ownership, Impairment and Removal of Network" is hereby
modified to read as follows:
Network is and shall remain the property of Comcast regardless of whether installed within or upon
the Service Locations) and whether installed overhead, above, or underground and shall not be
considered a fixture or addition to the land or the Service Location(s) located thereon. Customer
agrees that it shall take no action that directly or indirectly impairs Comcast's title to the Network,
or any portion thereof, or exposes Comcast to any claim, lien, encumbrance, or legal process,
except as otherwise agreed in writing by the Parties. Nothing in this Agreement shall preclude
Comcast from using the Network for services provided to other Comcast customers. For a period of
six (6) months following Comcast's discontinuance of Service to the Service Location(s), Comcast
retains the right to remove the Network including, but not limited to, that portion of the Network
that is located in the Service Location. To the extent Comcast removes such portion of the Network
it shall be responsible for returning the Service Location(s) to its prior condition, reasonable wear
and tear excepted.
5. Article 2.7 "Engineering Review" is modified to read as follows:
Engineering Review. Each Sales Order submitted by Customer may be subject to an engineering
review. The engineering review will determine whether and to what extent the Network must be
extended, built or upgraded ("Custom Installation") in order to provide the ordered Services at the
requested Service Location(s). Comcast will provide Customer written notification in the event
Service installation at any Service Location will require an additional non-recurring installation fee
("Custom Installation Fee"). Custom Installation Fees may also be referred to as Construction
Charges on a Sales Order or Invoice. Customer will have five (5) business days from receipt of
such notice to reject the Custom Installation Fee and terminate, without further liability, the Sales
Order with respect to the affected Service Location(s). Failure to respond within five (5) business
days will be deemed a rejection. For certain Services, the Engineering Review will be conducted
prior to Sales Order submission. In such case, Customer will have accepted the designated Custom
Installation Fee upon submission of the applicable Sales Order.
6. Article 3.3 "Payment of Bills" is hereby modified to read as follows:
Except as otherwise indicated herein or in a PSA, Comcast will invoice Customer in advance on a
monthly basis for all monthly recurring charges and fees arising under the Agreement. All other
charges will be billed monthly in arrears, including without limitation certain usage based charges
and third party pass through fees. Payment is due upon presentation of an invoice. Payment will be
4
considered timely made to Comcast if received within thirty (30) days after the invoice date,
however, customer's account shall provide for a fifteen (15) day Grace Period ("Grace Period")
immediately subsequent to the thirty (30) day payment remittance period. Any charges not paid to
Comcast within such period will be considered past due. If a Service Commencement Date is not
the first day of a billing period, Customer's first monthly invoice shall include any pro -rated
charges for the Services, from the date of installation to the start of the next billing period.
7. Article 3.7 "Other Government -Related Costs and Fees" is hereby modified to
read as follows:
Customer will pay fees or payment obligations in connection with the Services imposed by
governmental or quasi -governmental bodies in connection with the sale, use, or provision of the
Services, including, without limitation, applicable franchise fees, and universal service fund
charges (if any), regardless of whether Comcast or its Affiliates pay the fees directly or are required
by an order, rule, or regulation of a taxing jurisdiction to collect them from Customer. Taxes and
other government fees and surcharges may be changed with or without notice. In the event that a
newly adopted law, rule -or regulation imposes a new government fee or surcharge that increases
Comeast's costs of providing Services to Customer, Customer shall pay Comcast's additional costs
of providing Services to Customer under the new law, rule or regulation.
Notwithstanding the foregoing, this section does not apply to one-time permitting or other non-
recurring charges incurred by Comcast which are directly related to the construction of the
Network.
8. Article 3.8 "Disputed Invoice" is hereby modified to read as follows:
If Customer disputes any portion of an invoice by the due date, Customer must pay the undisputed
portion of the invoice and submit a written claim, including all documentation substantiating
Customer's claim, to Comcast for the disputed amount of the invoice by the invoice due date. The
Parties shall negotiate in good faith to resolve any billing dispute. Comcast will refund/credit all
valid disputes resolved in Customer's favor as of the date the disputed charges first appeared on the
Customer's invoice. Under no circumstances may Customer submit a billing dispute to Comcast
later than one -hundred eighty (180) days following Customer's receipt of the applicable invoice.
Except as otherwise provided herein, payment of any disputed amounts by Customer shall not
constitute a waiver of any rights or claims of Customer. In the event any part of this provision
conflicts with Minnesota Statute Section 471.425, the statute will govern.
9. Article 3.9 "Past -Due Amounts" is deleted in its entirety and replaced with the
following:
Customer will comply with Minnesota Statute Section 471.425.
10. Article 3.11 "Fraudulent Use of Service" is hereby modified to read as follows:
Customer is responsible for all charges attributable to Customer's authorized users with respect to
the Service(s), even if incurred as the result of fraudulent or unauthorized use of the Service.
Comcast may, but is not obligated to, detect or report unauthorized or fraudulent use of Services to
Customer. Comcast reserves the right to restrict, suspend or discontinue providing any Service in
the event of fraudulent use of Customer's Service. Notwithstanding the above, if applicable to the
Service, the Comcast Enterprise Services sales administrative support team will use commercially
reasonable efforts to notify customer when and if it becomes aware of any verified fraudulent
activity on the Customer's account.
11. Article 4.2 "Sales Order Term/Revenue Commitment" is hereby modified to
read as follows:
"Initial Sales Orders Term/Sales Order Term." The applicable Service Term of the Initial Sales
Orders shall be co -terminus with the MSA Term. The applicable Service term of any other Sales
Orders shall be co -terminus with the MSA Term.
12. Article 5.2 "Termination for Cause" is hereby modified to read as follows:
If either Party breaches any material term of the Agreement, other than a payment term and the
breach continues un -remedied for thirty (30) days after written notice of default, the other Party
may terminate for cause any Sales Order materially affected by the breach. (except Comcast may
not under this section suspend or terminate service for Safety -Critical functions). If Customer is in
breach of a payment obligation (including failure to pay a required deposit) and fails to make a
payment in full within ten (10) days after receipt of written notice of default, Comcast may, at its
option, terminate the Agreement, terminate the affected Sales Orders, suspend Service (except
Comcast may not under this section suspend or terminate service for Safety -Critical functions)
under the affected Sales Orders, and/or require a deposit, advance payment, or other satisfactory
assurances in connection with any or all Sales Orders as a condition of continuing to provide
Service; except that Comcast will not take any such action as a result of Customer's non-payment of
a charge subject to an open billing dispute. A Sales Order may be terminated by either Party
immediately upon written notice if the other Party has become insolvent or involved in liquidation
or termination of its business, or adjudicated bankrupt, or been involved in an assignment for the
benefit of its creditors. Termination by either Party of a Sales Order does not waive any other rights
or remedies that it may have under this Agreement. The non -defaulting Party shall be entitled to all
available legal and equitable remedies for such breach.
13. Article 5.3.13 is deleted in its entirety and replaced with the following:
If applicable to the Service, and if requested by Customer, Comcast will use best and commercially
reasonable efforts to return all Customer data in a Customer -approved format and purge Customer
data from Comcast networks and devices. If applicable, Comcast will give Customer written
verification that Customer data has been purged.
14. Article 5.3.1) is modified to read as follows:
Customer will permit Comcast to retrieve from the applicable Service Location any and all
Comcast Equipment. If Customer fails to permit such retrieval or if the retrieved Comcast
Equipment has been damaged or destroyed other than by Comcast or its agents, normal wear and
tear excepted, Comcast may invoice Customer for the manufacturer's list price of the relevant
Comcast Equipment or the cost of repair (if repair is available and commercially reasonable)
whichever is lower, which amounts shall be immediately due and payable.
15. Article 5.6 is added to the Agreement:
Notwithstanding Article 5.3, 5.4 and 5.5, the Parties agree that upon termination of the Agreement,
termination of a Sales Order, or discontinuance of Service, the Customer may extend access to the
Services in accordance with Article 11.17 Transition Services.
16. Article 6.1 "Limitation of Liability" is hereby modified to read as follows:
A. THE AGGREGATE LIABILITY OF EITHER PARTY FOR ANY AND ALL
LOSSES, DAMAGES AND CAUSES ARISING OUT OF THE AGREEMENT, INCLUDING
BUT NOT LIMITED TO, THE PERFORMANCE OF SERVICE, AND NOT OTHERWISE
LIMITED HEREUNDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL
NOT EXCEED DIRECT DAMAGES EQUAL TO THE SUM TOTAL OF PAYMENTS MADE
BY CUSTOMER TO COMCAST DURING THE TWELVE (12) MONTI-IS IMMEDIATELY
PRECEDING THE EVENT FOR WHICH DAMAGES ARE CLAIMED. THIS LIMITATION
SHALL NOT APPLY TO EITHER PARTY'S INDEMII IIFICATION OR CONFIDENTIALITY
OBLIGATIONS AND CLAIMS FOR DAMAGE TO PROPERTY AND/OR PERSONAL
INJURIES (INCLUDING DEATH) ARISING OUT OF THE NEGLIGENCE OR
MISCONDUCT OF COMCAST WHILE ON THE CUSTOMER SERVICE LOCATION. THIS
LIMITATION SHALL NOT LIMIT CUSTOMER'S LIABILITY FOR AMOUNTS OWED FOR
THE SERVICES RENDERED FOR ANY LOST OR DAMAGED EQUIPMENT OR
SOFTWARE PROVIDED BY COMCAST OR FOR EARLY TERMINATION CHARGES.
B. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY
INCIDENTAL, INDIRECT, SPECIAL, COVER, PUNITIVE OR CONSEQUENTIAL
DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT
LIMITED TO ANY LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF
PROFIT WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT
HOWEVER, THATNOTHING HEREIN IS INTENDED TO LIMIT CUSTOMER'S LIABILITY
FOR AMOUNTS OWED FOR THE SERVICES PERFORMED, FOR ANY EQUIPMENT OR
SOFTWARE PROVIDED BY COMCAST OR FOR EARLY TERMINATION CHARGES.
17. Article 6.2 B. "Disclaimer of Warranties" is modified to read as follows:
Without limiting the generality of the foregoing, and except as otherwise identified in this
Agreement, PSA, or Service Level Agreement, Comcast does not warrant that the Services,
Comcast Equipment, or Licensed Software will be uninterrupted, error -free, or free of latency or
delay, or that the Services, Comcast Equipment, or Licensed Software will meet customer's
requirements, or that the Services, Comcast Equipment, or Licensed Software will prevent
unauthorized access by third parties.
18. Article 6.3 is deleted in its entirety.
19. Article 6.4 is hereby modified to read as follows:
Customer's and Comeast's sole and exclusive remedies are expressly set forth in the Agreement.
Certain of the above exclusions may not apply if the state in which the Service is provided does not
allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion
of incidental or consequential damages. In those states, the liability of the Parties is limited to the
maximum extent permitted by law.
20. Article 7.1 "Comcast's Indemnification Obligations" is deleted in its entirety and
replaced with the following:
Comcast shall indemnify defend, and hold harmless Customer and its parent company, affiliates,
employees, directors, officers, and agents from and against all claims, demands, actions, causes of
actions, damages, liabilities, losses, and expenses (including reasonable attorneys' fees) ("Claims")
incurred as a result of: infringement of U.S. patent or copyright relating to the Comcast Equipment
or Comcast Licensed Software hereunder; damage to tangible personal property or real property,
and personal injuries (including death) arising out of the negligence or misconduct of Comcast
while working on the Customer Service Location.
21. Article 7.2 "Customer's Indemnification Obligation" is deleted in its entirety
and replaced with the following:
Customer shall indemnify, defend, and hold harmless Comcast from any and all Claims arising on
account of or in connection with Customer's use or sharing of the Service provided under the
Agreement, including with respect to: infringement of copyright, or unauthorized use of trademark,
trade name, or service mark arising out of communications via the Service; for patent infringement
arising from Customer's combining or connection of CE to use the Service; for damage arising out
of the negligence or misconduct of Customer with respect to its users of the Service.
22. Article 7.3 "Indemnification Procedures" is hereby modified to read as follows:
The Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim
or demand ("Actions") that is the subject of this Article 7. The Indemnified Party agrees to notify
the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate
in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying
Party shall assume the defense of any Action. The Indemnified Party may employ its own counsel
in any such case, and shall pay such counsel's fees and expenses. The Indemnifying Party shall
have the right to settle any claim for which indemnification is available; provided, however, that to
the extent that such settlement requires the Indemnified Party to take or refrain from taking any
action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle
such claim without the prior written consent of the Indemnified Party, which consent shall not be
unreasonably withheld, conditioned or delayed.
23. Article 8.1 "License" is modified to read as follows:
If and to the extent that Customer requires the use of Licensed Software in order to use the Service
supplied under any Sales Order, Customer shall have a personal, nonexclusive, nontransferable,
and limited license to use such Licensed Software in object code only and solely to the extent
necessary to use the applicable Service during the corresponding Service Term. All Licensed
Software provided to Customer, and each revised version thereof, is licensed (not sold) to
Customer by Comcast only for use in conjunction with the Service. Customer may not claim title
to, or an ownership interest in, any Licensed Software (or any derivations or improvements
thereto), and Customer shall execute any documentation reasonably required by Comcast,
including, without limitation, end-user license agreements for the Licensed Software. Comcast and
its suppliers shall retain ownership of the Licensed Software, and no rights are granted to Customer
other than a license to use the Licensed Software under the terms expressly set forth in this
Agreement.
24. Article 9.1 "Disclosure and Use" revised to include the following sentence:
In the event any part of this provision conflicts with the Minnesota Government Data Practices Act,
Minn. Stat. Ch. 13 (the "Act"), the Act will govern.
Notwithstanding the foregoing information in this Article 9. 1, the Parties agree that the Data
Practices Act governs the disclosure of confidential information in the Parties possession.
25. Article 9.3 "Publicity" is hereby modified to read as follows:
The Agreement provides no right to use any Party's or its affiliates' trademarks, service marks, or
trade natnes, or to otherwise refer to the other Party in any marketing, promotional, or advertising
materials or activities. Neither Party shall issue any publication or press release except as permitted
by the Agreement or otherwise consented to in writing by the other Party.
26. Article 10.1 "Prohibited Uses and Comcast Use Policies" is hereby modified to
read as follows:
Customer is prohibited from using, or permitting the use of, any Service (i) for any purpose in
violation of any law, rule, regulation, or policy of any government authority; (ii) in violation of any
Use Policy (as defined below); (iii) for any use as to which Customer has not obtained all required
government approvals, authorizations, licenses, consents, and permits; or (iv) to interfere
unreasonably with the use of Comcast service by others or the operation of the Network Customer
is responsible for requiring its users to comply with the provisions of the Agreement. Comcast
reserves the right to act immediately to -terminate or suspend the Services and/or to remove from
the Services any information transmitted by or to Customer or users, if Comcast determines that
such use is prohibited as identified herein, or information does not conform with the requirements
set or Comcast reasonably believes that such use or information may violate any laws, regulations,
or written or electronic instructions for use. Notwithstanding the above, and except when required
by law or in emergency situations, the Comcast Enterprise Services sales administrative support
team will use commercially reasonable efforts to notify customer before taking such restrictive
actions. Notwithstanding the foregoing, except in situations where Comcast has been instructed by
the law or police action to not consult with Customer prior to restrictive actions. Furthermore, to
the extent applicable, Services shall be subject to Comcast's acceptable use policies incorporated
into this Agreement ("Use Policies") that may limit use. Only those Use Policies and other security
policies concerning the Services posted on the Website as of the date of this Agreement are
incorporated into this Agreement by reference. Comcast may update the Use Policies from time to
time, and such updates shall be deemed effective immediately upon posting and delivery of written
notice to Customer. Comeast's action or inaction in enforcing acceptable use shall not constitute
review or approval of Customer's or any other users' use or information. Comcast will annually
present to Customer for review any changes to Use Policies.
27. Article 10.4 is hereby modified to read as follows:
Customer may not sell, resell, sublease, assign, license, sublicense, share, provide, or otherwise
utilize in conjunction with a third party (including, without limitation, in any joint venture or as part
of any outsourcing activity) the Services or any component thereof.
Notwithstanding the foregoing, Customer may make the services available to its authorized end
users as set forth in the Initial Sales Orders and may place orders for service on behalf of other
municipalities for services under this Agreement. The City's charging of a cost-recovery/cost
sharing fee for the cost of the services provided under this Agreement to another local government
unit as part of a joint powers or cost sharing agreement would not constitute resale.
28. Article 10.5 "Violation" is hereby modified to read as follows:
Any breach of Article 10.1 or 10.4 may be deemed a material breach of this Agreement. In the
event of such material breach, Comcast may restrict, suspend, or terminate immediately any or all
Sales Orders, without liability on the part of Comcast, and then to notify Customer of the action that
Comcast has taken and the reason for such action, in addition to any and all other rights and
remedies under this Agreement.
29. Article 11.2 "Assignment or Transfer" is hereby modified to read as follows:
10
Neither Party shall assign any right, obligation or duty, in whole or in part, nor of any other interest
hereunder, without the prior written consent of the other Party, which shall not be unreasonably
withheld. All obligations and duties of either Party under this Agreement shall be binding on all
successors in interest and assigns of such Party. The foregoing notwithstanding, upon written
notice to Customer, Comcast may assign this Agreement, to any affiliate, related entity, or third
party without Customer's consent. Any third party acquiring rights from Comcast through an
assignment will have all necessary regulatory authority to provide the fiber transport services under
the Agreement. Nothing herein is intended to limit Comeast's use of third -party consultants and
contractors to perform Services under a Sales Order.
30. Article 11.15 "Precedence" is added to the Agreement:
In the event of an explicit conflict between this First Amendment to the Comcast Enterprise
Services Master Agreement and the Comcast Enterprise Services General Terms and Conditions,
this First Amendment will control in the interpretation of the conflict. All other documents
comprising the Agreement will control in order of precedence noted above.
31. Article 11.17 "Transition Services" is added to the Agreement:
If (a) the Customer or Comcast elects not to renew this Agreement after the Initial Term pursuant to
the Service Term specified in the respective Sales Orders; (b) the Customer so elects upon
expiration of this Agreement, then the Customer may extend access to the Services, at Comeast's
then current time and materials rate, ("Transition Services") on a month-to-month basis for a period
not to exceed six (6) months or, if mutually agreed -to by the Customer and Comcast, twelve (12)
months, ("Transition Period") from the date of the expiration or termination of this Agreement.
Further, in the event Comcast terminates this Agreement or any Sales Order pursuant to section 5.2
of this Agreement, Customer may elect to extend access to safety -critical services and functions at
the Transition Services rates. Transition Services rates must be commercially reasonable and
represent fair market value. The rates for the Transition Services shall be at Comcast's then current
Services fees schedule in effect at the time of expiration or termination of this Agreement. The
Customer shall give Comcast no less than sixty (60) days prior written notice before the expiration
or termination of this Agreement of its desire to extend access under this Section, and shall provide
thirty (30) days prior written notice of election to cancel Transition Services after the Transition
Period begins. Upon expiration of the Transition Period for Transition Services, Comcast shall
terminate the Services and no further extension shall be given without prior written approval of
Comcast. In addition, in the event the Customer terminates this Agreement for cause, Comcast
shall cooperate with the Customer during the Transition Period in its attempts at transferring to
another service provider.
32. Article 11.18 Safety Critical Services and Functions is added to the Agreement:
Notwithstanding any term to the contrary in this Agreement, and with the limited exception of
when required by law or in emergency situations, in the event Comcast determines that under the
11
terms of this Agreement it will terminate, discontinue, suspend, restrict, or otherwise interrupt
Safety -Critical services or functions, Comcast will notify Customer prior to service disruption of
the intended action and basis for action and Customer may elect to continue Safety Critical
services. Safety Critical services or functions are Services required to operate Customer's
emergency service dispatch systems.
33. Pricing for Additional Locations. The following pricing schedule* is hereby
added to the Agreement and applicable to Ethernet Network Services purchased by the Customer
during the initial Service Term:
Pricing Schedule for Ethernet Network Services
Service Bandwidth Term MRC Custom Install Fees
ENS
1000 Mbps
60 Months
$958.00
$250.00
ENS
100 Mbps
60 Months
$486.00
$250.00
ENS
10 Mbps
60 Months
$242.00
$250.00
*All new On -Net Service Locations may be subject to additional Custom Install Fees due to
construction expenses incurred by Comcast. MRC includes Ethernet services and equipment.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment as of the
day and year written below and the persons signing covenant and warrant that they are duly
authorized to sign for and on behalf of the respective Parties. Except as otherwise modified by this
Amendment, all other terms and conditions set forth in the Agreement shall remain in full force and
effect.
Dated:
CITY OF ROSEVILLE COMCAST OF MINNESOTA, INC.
By: By:
Its: Its:
ATTEST:
By:
Its:
12
CITY OF LAUDERDALE
By:
Its:
ATTEST
By:
Its:
Dated:
CITY OF NORTH OAI{S
By:
Its:
ATTEST:
Its:
14
COMCAST OF MINNESOTA, INC.
Its:
COMCAST OF MINNESOTA, INC.
Its:
Exhibit B3 - Comcast Enterprise Services General Terms and Conditions
Exhibit B-3
COMCAST ENTERPRISE SERVICES
GENERAL TERMS AND CONDITIONS
VERSION: 1.2
DEFINITIONS
Affiliate: Any entity that controls, is controlled by or is under
common control with Comcast.
Agreement, Enterprise Services Master Services
Agreement or MSA: Consists of the Enterprise Master
Services Agreement Cover Page executed by the Customer
and accepted by Comcast, these Enterprise Services General
Terms and Conditions ("General Terms and Conditions"), the
then current Product -Specific Attachmentfor each ordered
Service ("PSA"), any written amendments to the Agreement
executed by both Parties including any supplemental terms
and conditions ("Amendment(s)"), and each Sales Order
accepted by Comcast under the Agreement.
Amendment(s): Any written amendment to the Agreement,
executed by both Parties, including. any supplemental terms
and conditions.
Comcast: The operating company affiliate or subsidiary of
Comcast Cable Communications Management, LLC that
provides the Services under the Enterprise Services Master
Service Agreement. References to Comcast in the Limitation
of Liability, Disclaimer of Warranties and Indemnification
Articles shall also include its directors, officers, employees,
agents, Affiliates, suppliers, licensors, successors, and assigns,
as the case may be.
Comcast Website or Website: The Cornetist website where
the General Terms and Conditions, PSAs and other Comcast
security and privacy policies applicable to the Agreement will
be posted. The current URL for the Website is
hftp'//business.comeast.com/cnteEprise-terms-of-service.
Comcast may update the Website documents and/or URL from
time to time.
Comcast Equipment: Any and all facilities, equipment or
devices provided by Comcast or its authorized contractors at
the Service Location(s) that are used to deliver any of the
Services including, but not limited to, all terminals, wires,
modems, lines, circuits, ports, routers, gateways, switches,
channel service units, data service units, cabinets, and racks.
Notwithstanding the above, inside telephone wiring within the
Service Location, whether or not installed by Comcast, shall
not be considered Comcast Equipment.
Confidential Information: All information regarding either
Party's business which has been marked or is otherwise
communicated as being "proprietary" or "confidential." or
which reasonably should be known by the receiving party to
be proprietary or confidential information. Without limiting
the generality of the foregoing, Confidential Information shall
include, even if not marked, the Agreement, all Licensed
Software, promotional materials, proposals, quotes, rate
information, discount information, subscriber information,
network upgrade information and schedules, network
operation information (including without limitation
information about outages and planned maintenance) and
invoices, as well as the Parties' communications regarding
such items.
Customer: The company, corporation, or other entity named
on the Enterprise Services Master Service Agreement Cover
Page and a Sales Order.
Customer -Provided Equipment (CE): Any and all facilities,
equipment or devices supplied by Customer for use in
connection with the Services.
Demarcation Point: The point of interconnection between the
Network and Customer's provided equipment located at a
Service Location. In some cases the Demarcation Point shall
be the User to Network Interface (UNI) port on Comcast
Equipment at a Service Location.
General Terms and Conditions: These Enterprise Services
General Terms and Conditions.
Licensed Software: Computer software or code provided by
Comcast or required to use the Services, including without
limitation, associated documentation, and all updates thereto.
Network: Consists of the Comcast Equipment, facilities,
fiber optic cable associated with electronics and other
equipment used to provide the Services.
Party: A reference to Comcast or the Customer; and in the
plural, a reference to both companies.
Product Specific Attachment(s) (PSA): The additional terms
and conditions applicable to Services ordered by Customer
under the Agreement.
Revenue Commitment: A commitment by Customer to
purchase a minimum volume of Service during an agreed
term, as set forth in a Sales Order.
Sales Order: A request for Comcast to provide the Services to
a Service Locations) submitted by Customer to Comcast (a)
on a then -current Comcast form designated for that purpose or
(b) if available, through a Comcast electronic order processing
system designated for that purpose.
Service(s):. A service provided by Comcast pursuant to a
Sales Order. All Services provided under the Agreement are
for commercial use only. Services available under this
Agreement are identified on the Website.
Exhibit B-3
Service Commencement Date: The date(s) on which maintenance of the Comcast Equipment used to provide the
Comcast first makes Service available for use by Customer. A Services within the Service Location(s). Customer shall be
single Sales Order containing multiple Service Locations or responsible for securing, and maintaining on an initial and
Services may have multiple Service Commencement Dates. ongoing basis during the applicable Service Term and/or
Renewal Term, such Access within each Service Location
unless Comcast has secured such access prior to this
Agreement. In the event that Customer, fails to secure or
maintain such Access within a particular Service Location,
Comcast may cancel or terminate Service at such particular
Service Location, without further liability, upon written notice
to Customer. In such event, if Comcast has incurred any costs
or expense in installing or preparing to install the Service that
it otherwise would not have incurred, a charge equal to those
costs and expenses shall apply to Customer's final invoice for
that particular Service Location. if Comcast is unable to
secure or maintain Access outside a particular Service
Location, which Access is needed to provide Services to such
Service Location, Customer or Comcast may cancel or
terminate Service at such particular Service Location, without
further liability beyond the termination date, upon a minimum
thirty (30) days' prim written notice to the other party. In such
event, if Comcast has incurred any costs or expense in
installing or preparing to install the Service that it otherwise
would not have incurred, Comcast shall be responsible for
such costs or expenses. Any other failure on the part of
Customer to be ready to receive Service, or any refusal on the
part of Customer to receive Service, shall not relieve
Customer of its obligation to pay charges for any Service that
is otherwise available for use.
Service Location(s): The Customer location(s) where
Comcast provides the Services, to the extent the Customer
owns, leases, or otherwise controls such location(s).
Service Term: The duration of time (commencing on the
Service Commencement Date) for which Services are ordered,
as specified in a Sales Order.
Tariff: A federal or state Comcast tariff and the successor
documents of general applicability that replace such tariff in
the event of detariffing.
Termination Charges: Charges that may be imposed by
Comcast if, prior to the end of the applicable Service Term (a)
Comcast terminates Services for cause or (b) Customer
terminates Services without cause. Termination Charges are as
set forth in each PSA, and are in addition to any other rights
and remedies under the Agreement.
ARTICLE 1. CHANGES TO THE AGREEMENT
TERMS
Comcast may change or modify the Agreement, and any
related policies from time to time ("Revisions") by posting
such Revisions to the Comcast Website. The Revisions are
effective upon posting to the Website. Customer will receive
notice of the Revisions in the next applicable monthly invoice.
Customer shall have thirty (30) calendar days from the invoice
notice of such Revisions to provide Comcast with written
notice that the Revisions adversely affect Customer's use of
the Service(s). If after notice Comcast is able to verify such
adverse affect but is unable to reasonably mitigate the
Revision's impact on such Services, then Customer may
terminate the impacted Service(s) without further obligation to
Comcast beyond the termination date, including Termination
Charges, if any. This shall be Customer's sole and exclusive
remedy.
ARTICLE 2. DELIVERY OF SERVICE
2.1 Orders. Customer shall submit to Comcast a
properly completed Sales Order to initiate Service to a Service
Location(s). A Sales Order shall become binding on the
Parties when (i) it is specifically accepted by Comcast either
electronically or in writing, (ii) Comcast begins providing the
Service described in the Sales Order or (iii) Comcast begins
Custom Installation (as defined in Article 2.7) for delivery of
the Services described in the Sales Order, whichever is earlier.
When a Sales Order becomes effective it shall be deemed part
of, and shall be subject to, the Agreement.
2.2 Access. In order to deliver certain Services to
Customer, Comcast may require access, right-of-way, conduit,
and/or common room space ("Access"), both within and/or
outside each Service Location. Customer shall provide an
adequate environmentally controlled space and such electricity
as may be required for installation, operation, and
2.3 Hazardous Materials. If the presence of asbestos or
other hazardous materials exists or is detected at a Service
Location or within the building where the Service Location is
located, Comcast may immediately stop providing Services
until such a time as such materials are removed. Alternatively
Customer may notify Comcast to install the applicable portion
of the Service in areas of any such Service Location not
containing such hazardous material. Any additional expense
incurred by Comcast as a result of encountering hazardous
materials, including but not limited to, any additional
equipment shall be borne by Customer. Customer shall use
reasonable efforts to maintain its property and Service
Locations in a manner that preserves the integrity of the
Services.
2.4 Comeast Equipment. At any time Comcast may
remove or change Comcast Equipment in its sole discretion in
connection with providing the Services. Customer shall not
move, rearrange, disconnect, remove, attempt to repair, or
otherwise tamper with any Comcast Equipment or permit
others to do so, and shall not use the Comcast Equipment for
any purpose other than that authorized by the Agreement.
Comcast shall maintain Comcast Equipment in good operating
condition during the term of this Agreement; provided,
however, that such maintenance shall be at Comeast's expense
only to the extent that it is related to and/or resulting from the
ordinary and proper use of the Comcast Equipment.
Customer is responsible for damage to, or loss of, Comcast
Equipment caused by its acts or omissions, and its
noncompliance with this Article, or by fire, theft or other
casualty at the Service Location(s), unless caused by the gross
negligence or willful misconduct of Comcast.
Exhibit B-3
2.8
2.5 Ownership. Impairment and Removal of Network,
The Network is and shall remain the property of Comeast
regardless of whether installed within or upon the Service
Location(s) and whether installed overhead, above, or
underground and shall not be considered a fixture or an
addition to the land or the Service Location(s) located thereon.
Customer agrees that it shall take no action that directly or
indirectly impairs Comcast's title to the Network, or any
portion thereof, or exposes Comcast to any claim, lien,
encumbrance, or legal process, except as otherwise agreed in
writing by the Parties. Nothing in this Agreement shall
preclude Comcast from using the Network for services
provided to other Comcast customers. For a period of twelve
(12) months following Comcast's discontinuance of Service to
the Service Location(s), Comcast retains the right to remove
the Network including, but not limited to, that portion of the
Network that is located in the Service Location. To the extent
Comcast removes such portion of the Network it shall be
responsible for returning the Service Location(s) to its prior
condition, reasonable wear and tear excepted.
2.6 Customer -Provided Equipment ("CE")"l. Comcast
shall have no obligation to install, operate, or maintain CE.
Customer shall have sole responsibility for providing
maintenance, repair, operation and replacement of all CE,
inside telephone wiring and other Customer equipment and
facilities on the Customer's side of the Demarcation Point.
Neither Comcast nor its employees, Affiliates, agents or
contractors will be liable for any damage, loss, or destruction
to CE, unless caused by the gross negligence or willful
misconduct of Cmncast. CE shall at all times be compatible
with the Network as determined by Comcast in its sole
discretion. In addition to any other service charges that may be
imposed from time to time, Customer shall be responsible for
the payment of service charges for visits by Comcast's
employees or agents to a Service Location when the service
difficulty or trouble report results from the use of CE or
facilities provided by any party other than Comcast.
2.7 Engineering Review. Each Sales Order submitted
by Customer may be subject to an engineering review. The
engineering review will determine whether and to what extent
the Network must be extended, built or upgraded ("Custom
Installation") in order to provide the ordered Services at the
requested Service Location(s). Comcast will provide
Customer written notification in the event Service installation
at any Service Location will require an additional non-
recurring installation fee ("Custom Installation Fee"). Custom
Installation Fees may also be referred to as Construction
Charges on a Sales Order or Invoice. Customer will have five
(5) days from receipt of such notice to reject the Custom
Installation Fee and terminate, without fturther liability, the
Sales Order with respect to the affected Service Location(s).
For certain Services, the Engineering Review will be
conducted prior to Sales Order submission. In such case,
Customer will have accepted the designated Custom
Installation Fee upon submission of the applicable Sales
Order.
Service Acceptance. Except as may otherwise be
identified in the applicable PSA, the Service Commencement
Date shall be the date Comcast completes installation and
connection of the necessary facilities and equipment to
provide the Service at a Service Location.
2.9 Administrative Website. Comcast may furnish
Customer with one or more user identifications and/or
passwords for use on the Administrative Website. Customer
shall be responsible for the confidentiality and use of such
user identifications and/or passwords and shall immediately
notify Comcast if there has been an unauthorized release, use
or other compromise of any user identification or password.
In addition, Customer agrees that its authorized users shall
keep confidential and not distribute any information or other
materials made available by the Administrative Website.
Customer shall be solely responsible for all use of the
Administrative Website, and Cmncast shall be entitled to rely
on all Customer uses of and submissions to the Administrative
Website as authorized by Customer. Comcast shall not be
liable for any loss, cost, expense or other liability arising out
of any Customer use of the Administrative Website or any
information on the Administrative Website. Comcast may
change or discontinue the Administrative Website, or
Customer's right to use the Administrative Website, at any
time. Additional terms and policies may apply to Customer's
use of the Administrative Website. These terms and policies
will be posted on the site.
ARTICLE 3. BILLING AND PAYMENT
3.1 Chartres. Except as otherwise provided in the
applicable PSA, Customer shall pay Comcast one hundred
percent (100%) of the Custom Installation Fee prior to the
installation of Service. Customer further agrees to pay all
charges associated with the Services, as set forth or referenced
in the applicable PSA, Sales Order(s) or invoice from
Comcast. These charges may include, but are not limited to
standard and custom non-recurring installation charges,
monthly recurring service charges, usage charges including
without limitation charges for the use of Comcast Equipment,
per -call charges, pay-per-view charges, charges for service
calls, maintenance and repair charges, and applicable federal,
state, and local taxes, fees, surcharges and recoupments
(however designated). Some Services such as measured and
per -call charges, pay-per-view movies or events, and
interactive television (as explained in the applicable PSA) may
be invoiced after the Service has been provided to Customer.
Except as otherwise indicated herein or in the applicable
PSA(s) monthly recurring charges for Ethernet, Video and
Internet Set -vices that are identified on a Sales Order shall not
increase during the Service Term. Except as otherwise
indicated herein or in the Sales Order(s), Voice Service
pricing, charges and fees can be found in the applicable PSA.
3.2 Third -Party Chafes. Customer may incur charges
from third party service providers that are separate and apart
from, or based on the amounts charged by Comcast. These
may include, without limitation, charges resulting from
wireless services including roaming charges, accessing on-line
services, calls to parties who charge for their telephone based
services, purchasing or subscribing to other offerings
Internet or interactive options on certain Video services, or
otherwise. Customer agrees that all such charges, including
all applicable taxes, are Customer's sole responsibility. In
addition, Customer is solely responsible for protecting the
security of credit card information provided to others in
connection with such transactions.
Exhibit B-3
via the so
3.3 Payment of Bills. Except as otherwise indicated
herein or in a PSA, Comcast will invoice Customer in advance
on a monthly basis for all monthly recurring charges and fees
arising under the Agreement. All other charges will be billed
monthly in arrears, including without limitation certain usage
based charges and third party pass through fees. Payment is
due upon presentation of an invoice. Payment will be
considered timely made to Comcast if received within thirty
(30) days after the invoice date. Any charges not paid to
Comcast within such period will be considered past due. If a
Service Commencement Date is not the first day of a billing
period, Customer's first monthly invoice shall include any
pro -rated charges for the Services, from the date of installation
to the start of the next billing period. In certain cases, Comcast
may agree to provide billing services on behalf of third parties,
as the agent of the third party. Any such third -party charges
shall be payable pursuant to any contract or other arrangement
between the third party and Customer and/or Comcast.
Comcast shall not be responsible for any dispute regarding
these charges between Customer and such third party.
Customer must address all such disputes directly with the third
party.
3.4 Partial Payment. Partial payment of any bill will be
applied to the Customer's outstanding charges in amounts and
proportions solely determined by Comcast. No acceptance of
partial payment(s) by Comcast shall constitute a waiver of any
rights to collect the full balance owed under the Agreement.
3.5 Credit Approval and Deposits. Initial and ongoing
delivery of Services may be subject to credit approval.
Customer shall provide Comcast with credit information
requested by Comcast. Customer authorizes Comcast to make
inquiries and to receive information about Customer's credit
history from others and to enter this information in Customer's
records. Customer represents and warrants that all credit
information that it provides to Comcast will be true and
correct. Comcast, in its sole discretion, may deny the Services
based upon an unsatisfactory credit history. Additionally,
subject to applicable regulations, Comcast may require
Customer to make a deposit (in an amount not to exceed an
estimated two months charge for the Set -vices) as a condition
to Comeast's provision of the Services, or as a condition to
Comcast's continuation of the Services. The deposit will not,
unless explicitly required by law, bear interest and shall be
held by Comcast as security for payment of Customer's
charges. Comcast may apply the deposit to any delinquent
Customer charges upon written notice to Customer. if
Comcast uses any or all of the deposit to pay an account
delinquency, Customer will replenish the deposit by that
amount within five (5) days of its receipt of written notice
from Comcast. If the provision of Service to Customer is
terminated, or if Comcast determines in its sole discretion that
ch deposit is no longer necessary, then the amount of the
deposit (plus any required deposit interest) will be credited to
Customer's account or will be refunded to Customer, as
determined by Comcast.
3.6 Taxes and Fees. Except to the extent Customer
provides a valid tax exemption certificate prior to the delivery
of Service, Customer shall be responsible for the payment of
any and all applicable local, state, and federal taxes or fees
(however designated). Customer also will be responsible to
pay any Set -vice fees, payment obligations and taxes that
become applicable retroactively.
3.7 Other Government -Related Costs and Fees.
Comcast reserves the right to invoice Customer for any fees or
payment obligations in connection with the Services imposed
by governmental or quasi -governmental bodies in connection
with the sale, installation, use, or provision of the Services,
including, without limitation, applicable franchise fees, right
of way fees and Universal Service Fund charges (if any),
regardless of whether Comcast or its Affiliates pay the fees
directly or are required by an order, rule, or regulation of a
taxing jurisdiction to collect them from Customer. Taxes and
other government -related fees and surcharges may be changed
with or without notice, In the event that any newly adopted
law, rule, regulation or judgment increases Comcast's costs of
providing Services, Customer shall pay Comcast's additional
costs of providing Services under the new law, rule, regulation
orjudgment.
3.8 Disputed Invoice. If Customer disputes any portion
of an invoice by the due date, Customer must pay fifty percent
(50%) of the disputed charges, in addition to the undisputed
portion of the invoice and submit a written claim, including all
documentation substantiating Customer's claim, to Comcast
for the disputed amount of the invoice by the invoice due date.
The Parties shall negotiate in good faith to resolve any billing
dispute. Comcast will refund/credit all valid disputes resolved
in Customer's favor as of the date the disputed charges first
appeared on the Customer's invoice.
3.9 Past -Due Amounts. Any payment not made when
due will be subject to a late charge of 1.5% per month or the
highest rate allowed by law on the unpaid invoice, whichever
is lower. If Customer's account is delinquent, Comcast may
refer the account to a collection agency or attorney that may
pursue collection of the past due amount and/or any Comcast
Equipment which Customer fails to return in accordance with
the Agreement. If Comcast is required to use a collection
agency or attorney to collect any amount owed by Customer
or any unretumed Comcast Equipment, Customer agrees to
pay all reasonable costs of collection or other action. The
remedies set forth herein are in addition to and not in
limitation of any other rights and remedies available to
Comcast under the Agreement or at law or in equity.
3.10 Rejected Payments. Except to the extent otherwise
prohibited by law, Customer will be assessed a service charge
up to the full amount permitted under applicable law for any
check or other instrument used to pay for the Services that has
been rejected by the bank or other financial institution.
Exhibit B-3
3.11 Fraudulent Use of Services. Customer is responsible Services, any and all applicable Termination Charges, and the
for all charges attributable to Customer with respect to the return of all applicable Comcast Equipment. Comcast may
Service(s), even if incurred as the result of fraudulent or terminate the Agreement if Customer does not take any
unauthorized use of the Service. Comcast may, but is not Service under a Sales Order for twelve (12) consecutive
obligated to, detect or report unauthorized or fraudulent use of months or longer.
Services to Customer. Comcast reserves the right to restrict,
suspend or discontinue providing any Service in the event of
fraudulent use of Customer's Service.
ARTICLE 4. TERM: REVENUE COMMITMENT
4.1 Agreement Term. Upon execution of the
Agreement, Customer shall be allowed to submit
Sales Orders to Comcast during the term referenced
on the Master Service Agreement Cover Page ("MSA
Term"). After the expiration of the initial MSA Term,
Comcast may continue to accept Sales Orders from
Customer under the Agreement, or require the Parties
to execute a new agreement. This Agreement shall
continue in effect until the expiration or termination
date of the last Sales Order entered under the
Agreement, unless terminated earlier in accordance
with the Agreement.
4.2 Sales Order Term/Revenue Commitment. The
applicable Service Term and Revenue Commitment (if any)
shall be set forth in the Sales Order. Unless otherwise stated
in these terms and conditions or the applicable PSA, if a Sales
Order does not specify a tern of service, the Service Term
shall be one (1) year from the Service Commencement Date.
In the event Customer fails to satisfy a Revenue Commitment,
Customer will be billed a shortfall charge pursuant to the
terms of the applicable PSA.
4.3 Sales Order Renewal. Upon the expiration of the
Service Term, and unless otherwise agreed to by the Parties in
the Sales Order, each Sales Order shall automatically renew
for successive periods of one (1) year each ("Renewal
Terms)"), unless otherwise stated in these terms and
conditions or prim notice of non -renewal is delivered by either
Party to the other at least thirty (30) days before the expiration
of the Set -vice Term or the then current Renewal Term.
Effective at any time after the end of the Service Term and
from time to time thereafter, Comcast may, modify the charges
for Ethernet, Internet and/or Video Services subject to thirty
(30) days prior written notice to Customer. Customer will have
thirty (30) days from receipt of such notice to cancel the
applicable Service without further liability. Should Customer
fail to cancel within this timeframe, Customer will be deemed
to have accepted the modified Service pricing.
ARTICLE 5. TERMINATION WITHOUT FAULT:
DEFAUUF
5.1 Termination for Convenience. Notwithstanding any
other term or provision in this Agreement, Customer shall
have the right, in its sole discretion, to terminate any or all
Sales Order(s) at any time during the Service Term(s), upon
thirty (30) days prior written notice to Comcast and subject to
payment to Comcast of all outstanding amounts due for the
5.2 Termination for Cause. If either Party breaches any
material term of the Agreement, other than a payment term,
and the breach continues un -remedied for thirty (30) days
after written notice of default, the other Party may terminate
for cause any Sales Order materially affected by the breach. If
Customer is in breach of a payment obligation (including
failure to pay a required deposit) and fails to make payment in
full within ten (10) days after receipt of written notice of
default, Comcast may, at its option, terminate the Agreement,
terminate the affected Sales Orders, suspend Service under the
affected Sales Orders, and/or require a deposit, advance
payment, or other satisfactory assurances in connection with
any or all Sales Orders as a condition of continuing to provide
Service; except that Comcast will not take any such action as
a result of Customer's non-payment of a charge subject to a
timely billing dispute, unless Comcast has reviewed the
dispute and determined in good faith that the charge is correct.
A Sales Order may be terminated by either Party immediately
upon written notice if the other Party has become insolvent or
involved in liquidation or termination of its business, or
adjudicated bankrupt, or been involved in an assignment for
the benefit of its creditors. Termination by either Party of a
Sales Order does not waive any other rights or remedies that it
may have under this Agreement. The non -defaulting Party
shall be entitled to all available legal and equitable remedies
for such breach.
5.3 Effect of Exuiration/Permination of Sales Order
Upon the expiration or termination of a Sales Order for any
reason:
A. Comcast shall disconnect the applicable Service;
B. Comcast may delete all applicable data, files,
electronic messages, or other information stored on Comeast's
servers or systems;
C. If Customer has terminated the Sales Order prior to
the expiration of the Service Term for convenience, or if
Comcast has terminated the Sales Order prior to the expiration
of the Set -vice Term as a result of material breach by
Customer, Comcast may assess and collect from Customer
applicable Termination Charges (if any);
D. Customer shall, permit Comcast to retrieve from the
applicable Service Location any and all Comeast Equipment,
If Customer fails to permit such retrieval or if the retrieved
Comcast Equipment has been damaged and/or destroyed other
than by Comcast or its agents, normal wear and tear excepted,
Comcast may invoice Customer for the manufacturer's list
price of the relevant Comcast Equipment, or in the event of
minor damage to the retrieved Comcast Equipment, the cost of
repair, which amounts shall be immediately due and payable;
and
Exhibit B-3
E. Customer's right to use applicable Licensed Software
shall automatically terminate, and Customer shall be obligated
to return all Licensed Software to Comcast.
5.4 Resumption of Service. If a Service has been
discontinued by Comcast for cause and Customer requests that
the Service be restored, Comcast shall have the sole and
absolute discretion to restore such Service. At Comcast's
option, deposits, advanced payments, nonrecurring charges,
and/or an extended Service 'term may apply to restoration of
Service.
5.5 Regulatory and Legal Changes. The Parties
acknowledge that the respective rights and obligations of each
Party as set forth in this Agreement upon its execution are
based on applicable law and regulations as they exist on the
date of execution of this Agreement. The Parties agree that in
the event of any subsequent decision by a legislative, regulatory
or judicial body, including any regulatory or judicial order,
rule, regulation, decision in any arbitration or other dispute
resolution or other legal or regulatory action that materially
affects the provisions or ability to provide Services on
economic terms of the Agreement, Comcast may, by providing
written notice to the Customer, require that the affected
provisions of the Agreement be renegotiated in good faith. If
Customer refuses to enter such renegotiations, or the Parties
can't reach resolution on new Agreement terms, Comcast may,
in its sole discretion, terminate this Agreement, in whole or in
part, upon sixty (60) days written notice to Customer.
ARTICLE 6. LIMITATION OF LIABILITY:
DISCLAIMER OF WARRANTIES; WARNINGS
6.1 Limitation of Liability.
A, THE AGGREGATE LIABILITY OF COMCAST
FOR ANY AND ALL LOSSES, DAMAGES AND CAUSES
ARISING OUT OF THE AGREEMENT, INCLUDING,
BUT NOT LIMITED TO, THE PERFORMANCE OF
SERVICE, AND NOT OTHERWISE LIMITED
HEREUNDER, WHETHER IN CONTRACT, TORT, OR
OTHERWISE, SHALL NOT EXCEED DIRECT
DAMAGES EQUAL TO THE SUM TOTAL OF
PAYMENTS MADE BY CUSTOMER TO COMCAST
DURING THE THREE (3) MONTHS IMMEDIATELY
PRECEDING THE EVENT FOR WHICH DAMAGES
ARE CLAIMED. THIS LIMITATION SHALL NOT
APPLY TO COMCAST'S INDEMNIFICATION
OBLIGATIONS AND CLAIMS FOR DAMAGE TO
PROPERTY AND/OR PERSONAL INJURIES
(INCLUDING DEATH) ARISING OUT OF THE GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT OF
COMCAST WHILE ON THE CUSTOMER SERVICE
LOCATION.
B. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY INCIDENTAL, INDIRECT,
SPECIAL, COVER, PUNITIVE OR CONSEQUENTIAL
DAMAGES, WHETHER OR NOT FORESEEABLE, OF
ANY KIND INCLUDING BUT NOT LIMITED TO ANY
LOSS REVENUE, LOSS OF USE, LOSS OF BUSINESS,
OR LOSS OF PROFIT WHETHER SUCH ALLEGED
LIABILITY ARISES IN CONTRACT OR TORT
HOWEVER, THAT NOTHING HEREIN IS INTENDED
TO LIMIT CUSTOMER'S LIABILITY FOR AMOUNTS
OWED FOR THE SERVICES, FOR ANY EQUIPMENT
OR SOFTWARE PROVIDED BY COMCAST OR FOR
TERMINATION CHARGES.
6.2 Disclaimer of Warranties.
A. Services shall be provided pursuant to the terms and
conditions in the applicable PSA and Service Level
Agreement, and are in lieu of all other warranties, express,
implied or statutory, including, but not limited to, the implied
warranties of merchantability, fitness for a particular purpose,
title, and non -infringement. TO THE MAXIMUM EXTENT
ALLOWED BY LAW, COMCAST EXPRESSLY
DISCLAIMS ALL SUCH EXPRESS, IMPLIED AND
STATUTORY WARRANTIES.
R Without limiting the generality of the foregoing, and
except as otherwise identified in a PSA or Service Level
Agreement, Comcast does not warrant that the Services,
Comcast Equipment, or Licensed Software will be
uninterrupted, en -or -free, or free of latency or delay, or that the
Services, Comcast Equipment, or Licensed Software will meet
customer's requirements, or that the Services, Comcast
Equipment, or Licensed Software will prevent unauthorized
access by third parties.
C. In no event shall Comcast, be liable for any loss,
damage or claim arising out of or related to: (i) stored,
transmitted, or recorded data, files, or software; (ii) any act or
omission of Customer, its users or third parties; (iii)
interoperability, interaction or interconnection of the Services
with applications, equipment, services or networks provided
by Customer or third parties; or (iv) loss or destruction of any
Customer hardware, software, files or data resulting from any
virus or other harmful feature or from any attempt to remove
it. Customer is advised to back up all data, files and software
prior to the installation of Service and at regular intervals
thereafter.
6.3 Disruption of Service. Notwithstanding the
performance standards identified in a PSA, the Services are
not fail-safe and are not designed or intended for use in
situations requiring fail-safe performance or in which an error
or interruption in the Services could lead to severe injury to
business, persons, property or environment ("High Risk
Activities"). These High Risk Activities may include, without
limitation, vital business or personal communications, or
activities where absolutely accurate data or information is
required.
6.4 Customer's sole and exclusive remedies are expressly set
forth in the Agreement. Certain of the above exclusions may
not apply if the state in which a Service is provided does not
allow the exclusion or limitation of implied warranties or does
not allow the limitation or exclusion of incidental or
consequential damages. In those states, the liability of
Comcast is limited to the maximum extent permitted by law.
Exhibit B-3
including, without limitation, end-user license agreements for
ARTICLE 7. INDEMNIFICATION the Licensed Software. Comcast and its suppliers shall retain
ownership of the Licensed Software, and no rights are granted
7.1 Comeast's Indemnification Obligations. Comcast
shall indemnify defend, and hold harmless Customer and its
parent company, affiliates, employees, directors, officers, and
agents from and against all claims, demands, actions, causes of
actions, damages, liabilities, losses, and expenses (including
reasonable attorneys' fees) ("Claims") incurred as a result of..
infringement of U.S. patent or copyright relating to the Comcast
Equipment or Comcast Licensed Software hereunder; damage to
tangible personal property or real property, and personal injuries
(including death) arising out of the gross negligence or willfid
misconduct of Comcast while working on the Customer Service
Location.
7.2 Customer's Indemnification Obligations. Customer
shall indemnify, defend, and hold harmless Comcast from any
and all Claims arising on account of or in connection with
Customer's use or sharing of the Service provided under the
Agreement, including with respect to: libel, slander,
infringement of copyright, or unauthorized use of trademark,
trade name, or service mark arising out of communications via
the Service; for patent infringement arising from Customer's
combining or connection of CE to use the Service; for damage
arising out of the gross negligence or willful misconduct of
Customer with respect to users of the Service.
7.3 Indemnification Procedures. The Indemnifying
Party agrees to defend the Indemnified Party for any loss,
injury, liability, claim or demand ("Actions") that is the
subject of this Article 7. The Indemnified Party agrees to
notify the Indemnifying Party promptly, in writing, of any
Actions, threatened or actual, and to cooperate in every
reasonable way to facilitate the defense or settlement of such
Actions. The Indemnifying Party shall assume the defense of
any Action with counsel reasonably satisfactory to the
Indemnified Party. The Indemnified Party may employ its
own counsel in any such case, and shall pay such counsel's
fees and expenses. The Indemnifying Party shall have the
right to settle any claim for which indemnification is available;
provided, however, that to the extent that such settlement
requires the Indemnified Party to take or refrain from taking
any action or purports to obligate the Indemnified Party, then
the Indemnifying Party shall not settle such claim without the
prior written consent of the Indemnified Patty, which consent
shall not be unreasonably withheld, conditioned or delayed.
ARTICLE 8. SOFTWARE & SERVICES
8.1 License. If and to the extent that Customer requires
the use of Licensed Software in order to use the Service
supplied under any Sales Order, Customer shall have a
personal, nonexclusive, nontransferable, and limited license to
use such Licensed Software in object code only and solely to
the extent necessary to use the applicable Service during the
corresponding Service Term. All Licensed Software provided
to Customer, and each revised version thereof, is licensed (not
sold) to Customer by Comcast only for use in conjunction
with the Service. Customer may not claim title to, or an
ownership interest in, any Licensed Software (o' any
derivations or improvements thereto), and Customer shall
execute any documentation reasonably required by Comcast,
to Customer other than a license to use the Licensed Software
under the terms expressly set forth in this Agreement.
8.2 Restrictions. Customer agrees that it shall not: (i)
copy the Licensed Software (o' any upgrades thereto or related
written materials) except for emergency back-up purposes or
as permitted by the express written consent of Comcast; (ii)
reverse engineer, decompile, or disassemble the Licensed
Software; (iii) sell, lease, license, or sublicense the Licensed
Software; or (iv) create, write, or develop any derivative
software or any other software program based on the Licensed
Software.
8.3 Updates. Customer acknowledges that the use of
Service may periodically require updates and/or changes to
certain Licensed Software resident in the Comcast Equipment
or CE. if Comcast has agreed to provide updates and changes,
such updates and changes may be performed remotely or on-
site by Comcast, at Comcast's sole option. Customer hereby
consents to, and shall provide free access for, such updates
deemed reasonably necessary by Comcast. If Customer fails to
agree to such updates, Comcast will be excused from the
applicable Service Level Agreement and other performance
credits, and any and all liability and indemnification
obligations regarding the applicable Service.
8.4 Export Law and Regulation. Customer
acknowledges that any products, software, and technical
information (including, but not limited to, services and
training) provided pursuant to the Agreement may be subject
to U.S. export laws and regulations. Customer agrees that it
will not use distribute, transfer, or transmit the products,
software, or technical information (even if incorporated into
other products) except in compliance with U.S. export
regulations. If requested by Comcast, Customer also agrees to
sign written assurances and other export -related documents as
may be required for Comcast to comply with U.S. export
regulations.
8.5 Ownership of Telephone Numbers and Addresses.
Customer acknowledges that use of certain Services does not
give it any ownership or other rights in any telephone number
or Internet/on-line addresses provided, including but not
limited to Internet Protocol ("IP") addresses, e-mail addresses
and web addresses.
8.6 Intellectual Property Rights in the Services. Title
and intellectual property rights to the Set -vices are owned by
Comcast, its agents, suppliers or affiliates or their licensors or
otherwise by the owners of such material. The copying,
redistribution, bundling or publication of the Services, in
whole or in pmt, without express prior written consent from
Comcast or other owner of such material, is prohibited.
ARTICLE 9. CONFIDENTIAL INFORMATION AND
PRIVACY
9.1 Disclosure and Use. All Confidential Information
disclosed by either Party shall be kept by the receiving patty in
Exhibit B-3
strict confidence and shall not be disclosed to any third party
without the disclosing party's express written consent.
Notwithstanding the foregoing, such information may be
disclosed (i) to the receiving party's employees, affiliates, and
agents who have a need to know for the purpose of performing
this Agreement, using the Services, rendering the Services,
and marketing related products and services (provided that in
all cases the receiving party shall take appropriate measures
prior to disclosure to its employees, affiliates, and agents to
assure against unauthorized use or disclosure); or (ii) as
otherwise authorized by this Agreement. Each Party agrees to
treat all Confidential Information of the other in the same
manner as it teats its own proprietary information, but in no
case using a degree of care less than a reasonable degree of
care.
9.2 Exceptions. Notwithstanding the foregoing, each
Party's confidentiality obligations hereunder shall not apply to
information that: (i) is already known to the receiving party
without a pre-existing restriction as to disclosure; (ii) is or
becomes publicly available without fault of the receiving
party; (iii) is rightfully obtained by the receiving party from a
third party without restriction as to disclosure, or is approved
for release by written authorization of the disclosing party; (iv)
is developed independently by the receiving party without use
of the disclosing party's Confidential Information; or (v) is
required to be disclosed by law or regulation.
9.3 Publicity. The Agreement provides no right to use
any Party's or its affiliates' trademarks, service marks, or trade
names, or to otherwise refer to the other Party in any
marketing, promotional, or advertising materials or activities.
Neither Party shall issue any publication or press release
relating to, or otherwise disclose the existence of, the terms
and conditions of any contractual relationship between
Comcast and Customer, except as permitted by the Agreement
or otherwise consented to in writing by the other Parry.
9.4 Passwords. Comcast may furnish Customer will)
user identifications and passwords for use in conjunction with
certain Set -vices, including, without limitation, for access to
certain non-public Comcast website materials. Customer
understands and agrees that such information shall be subject
to Comeast's access policies and procedures located on
Comeast's Web Site.
9.5 Remedies. Notwithstanding any other Article of this
Agreement, the no) -breaching Party shall be entitled to seek
equitable relief to protect its interests pursuant to this Article
9, including, but not limited to, injunctive relief.
9.6 Monitoring of Services. Except as otherwise
expressly set forth in a PSA, Comcast assumes no obligation
to pre-screen or monitor Customer's use of the Service,
including without limitation postings and/or transmission.
However, Customer acknowledges and agrees that Comcast
and its agents shall have the right to pre-screen and monitor
such use from time to time and to use and disclose such results
to the extent necessary to operate the Service properly, to
ensure compliance with applicable use policies, to protect the
rights and/or property of Cornetist, or in emergencies when
physical safety is at issue, and that Con)cast may disclose the
same to the extent necessary to satisfy any law, regulation, or
governmental request. Comcast shall have no liability or
responsibility for content received or distributed by Customer
or its users through the Service, and Customer shall indemnify,
defend, and hold Comcast and its directors, officers,
employees, agents, subsidiaries, affiliates, successors, and
assigns harmless from any and all claims, damages, and
expenses whatsoever (including reasonable attorneys' fees)
arising from such content attributable to Customer or its users.
For the avoidance of doubt, the monitoring of data described
in this Section 9.6 refers to aggregate data and types of traffic
(protocol, upstream/downstream utilization, etc.). Comcast
does not have access to the content of encrypted data
transmitted across Comeast networks.
9.7 Survival of Confidentiality Obligations. The
obligations of confidentiality and limitation of use described
in this Article 9 shall survive the expiration and termination of
the Agreement for a period of two (2) years (or such longer
period as may be required by law).
ARTICLE 10 USE OF SERVICE• USE AND PRIVACY
POLICIES
10.1 Prohibited Uses and Comcast Use Policies.
Customer is prohibited from using, or permitting the use of,
any Service (i) for any purpose in violation of any law, rule,
regulation, or policy of any government authority; (ii) in
violation of any Use Policy (as defined below); (iii) for any
use as to which Customer has not obtained all required
an approvals, authorizations, licenses, consents, and
permits; or (iv) to interfere unreasonably with the use of
Comcast service by others or the operation of the Network.
Customer is responsible for assuring that any and all of its
users comply with the provisions of the Agreement. Comcast
reserves the right to act immediately and without notice to
terminate or suspend the Services and/or to remove from the
Services any information transmitted by or to Customer or
users, if Comcast determines that such use is prohibited as
identified herein, or information does not conform with the
requirements set or Comcast reasonably believes that such use
or information may violate any laws, regulations, or written
and electronic instructions for use. Furthermore, to the extent
applicable, Services shall be subject to Comeast's acceptable
use policies ("Use Policies") that may limit use. The Use
Policies and other security policies concerning the Services
are posted oil the Website, and are incorporated into this
Agreement by reference. Comcast may update the Use
Policies from time to time, and such updates shall be deemed
effective immediately upon posting, with or without actual
notice to Customer. Comcast's action or inaction in enforcing
acceptable use shall not constitute review or approval of
Customer's or any other users' use or information.
10.2 Privacy Policy. In addition to the provisions of
Article 9, Comeast's commercial privacy policy applies to
Comeast's handling of Customer confidential information.
Con)cast's privacy policy is available on the Website.
Exhibit B-3
10.3 Privacy Note Regarding Information Provided to
Third Parties. Comcast is not responsible for any information
provided by Customer to third parties. Such information is not
subject to the privacy provisions of this Agreement. Customer
assumes all privacy and other risks associated with providing
personally identifiable information to third parties via the
Services.
10.4 Prohibition on Resale. Customer may not sell,
resell, sublease, assign, license, sublicense, share, provide, or
otherwise utilize in conjunction with a third party (including,
without limitation, in any joint venture or as part of any
outsourcing activity) the Services or any component thereof.
10.5 Violation. Any breach of this Article 10 shall be
deemed a material breach of this Agreement. In the event of
such material breach, Comcast shall have the right to restrict,
suspend, or terminate immediately any or all Sales Orders,
without liability on the part of Comcast, and then to notify
Customer of the action that Comcast has taken and the reason
for such action, in addition to any and all other rights and
remedies under this Agreement.
ARTICLE 11. MISCELLANEOUS TERMS
11.1 Force Majeure. Neither Party (and in the case of
Comcast, Comcast affiliates and subsidiaries) shall be liable to
the other Party for any delay, failure in performance, loss, or
damage to the extent caused by force majeure conditions such
as acts of God, fire, explosion, power blackout, cable cut, acts
of regulatory or governmental agencies, unavailability of
right-of-way, or materials, or other causes beyond the Party's
reasonable control, except that Customer's obligation to pay
for Services provided under the Agreement shall not be
excused. Changes in economic, business or competitive
condition shall not be considered force majeure events.
11.2 Assignment or Transfer. Customer shall
not assign any right, obligation or duty, in whole or in pant, nor
of any other interest hereunder, without the prior written
consent of Comcast, which shall not be unreasonably
withheld. All obligations and duties of either Patty under this
Agreement shall be binding on all successors in interest and
assigns of such Party. Nothing herein is intended to limit
Comcast's use of third -party consultants and contractors to
perform Services under a Sales Order.
11.3 Notices. Any notice sent pursuant to the Agreement
shall be deemed given and effective when sent by facsimile
(confirmed by first-class mail), or when delivered by
overnight express or other express delivery service, in each
case as follows: (i) with respect to Customer, to the address
set forth on any Sales Order; or (ii) with respect to Comcast,
to: Vice President/Enterprise Sales, One Comcast Center,
1701 JFK Blvd., Philadelphia, PA 19103, with a copy to Cable
Law Department, One Comcast Center, 50"' Floor, 1701 JFK
Blvd., Philadelphia, PA 19103. Each Party shall notify the
other Party in writing of any changes in its address listed on
any Sales Order.
11.4 Entire Understanding. The Agreement, together
with any applicable Tariffs, constitutes the entire understanding
of the Parties related to the subject matter hereof The
Agreement supersedes all prior agreements, proposals,
representations, statements, or understandings, whether
written or oral, concerning the Services or the Parties' rights or
obligations relating to Services. Any prior representations,
promises, inducements, or statements of intent regarding the
Services that are not embodied in the Agreement are of no
effect. No subsequent agreement among the Parties concerning
Service shall be effective or binding unless it is made in writing
by authorized representatives of the Parties. Terms or conditions
contained in any Sales Order, or restrictive endorsements or
other statements on any form of payment, shall be void and of
no force or effect.
11.5 Tariffs. Notwithstanding anything to the contrary in
the Agreement, Comcast may elect or be required to file with
regulatory agencies tariffs for certain Services. In such event,
the terms set forth in the Agreement may, under applicable
law, be superseded by the terms and conditions of the Tariffs.
Without limiting the generality of the foregoing, in the event
of any inconsistency with respect to rates, the rates and other
terns set forth in the applicable Sales Order shall be treated as
individual case based arrangements to the maximum extent
permitted by law, and Comcast shall take such steps as are
required by law to make the rates and other terms enforceable.
If Conncast voluntarily or involuntarily cancels or withdraws a
Tariff under which a Service is provided to Customer, the
Service will thereafter be provided pursuant to the Agreement
and the terms and conditions contained in the Tariff
immediately prior to its cancellation or withdrawal. In the
event that Comcast is required by a governmental authority to
modify a Tariff under which Service is provided to Customer
in a manner that is material and adverse to either Party, the
affected Party may terminate the applicable Sales Order upon
a minimum thirty (30) days' prior written notice to the other
Party, without further liability
11.6 Construction. In the event that any portion of the
Agreement is held to be invalid or unenforceable, the Parties
shall replace the invalid or unenforceable portion with another
provision that as nearly as possible, reflects the original
intention of the Parties, and the remainder of the Agreement
shall remain in full force and effect.
11.7 Survival. The rights and obligations of either Patty
that by their nature would continue beyond the termination or
expiration of a Sales Order shall survive termination or
expiration of the Sales Order.
11.8 Choice of Law. The domestic law of the state in
which the Service is provided shall govern the construction,
interpretation, and performance of this Agreement, except to
the extent superseded by federal law.
11.9 No Third Party Beneficiaries. This Agreement does
not expressly or implicitly provide any third party (including
users) with any remedy, claim, liability, reimbursement, cause
of action, or other right or privilege.
Exhibit B-3
11.10 Parties' Authm'ity to Contract. The persons whose
signatures appear below are duly authorized to enter into the
Agreement on behalf of the Parties name therein.
11.11 No Waiver: Etc. No failure by either Party to
enforce any right(s) hereunder shall constitute a waiver of
such right(s). This Agreement may be executed in counterpart
copies.
11.12 Independent Contractors. The Parties to this
Agreement are independent contractors. Neither Party is an
agent, representative, or partner of the other Party. Neither
Party shall have any right, power, or authority to enter into any
agreement for, or on behalf of, or incur any obligation or
liability of, or to otherwise bind, the other Party. This
Agreement shall not be interpreted or construed to create an
association, agency, joint venture, or partnership between the
Parties or to impose any liability attributable to such a
relationship upon either Party.
11.13 Article Headings. The article headings used herein
are for reference only and shall not limit or control any term or
provision of this Agreement or the interpretation or
construction thereof.
11.14 Compliance with Laws. Each of the Parties agrees
to comply with all applicable local, state and federal laws and
regulations and ordinances in the performance of its respective
obligations under this Agreement.
Exhibit C — Existing Network Facilities
Exhibit C — Existing Network Facilities
The Commission and NSAC provides playback and master control functions from its
Roseville offices for all of the Public, Educational and Governmental Access Channels. All of
this access signal origination from NSAC's Roseville facility is directly connected via fiber to
the Comcast headend in Roseville through Comcast's Converged Regional Area Network
(CRAN or C -RAN). The C -RAN is a regional interconnect used to transport all of Comeast's
cable video traffic around the Twin Cities to the various hub locations. This network is used, in
the case of PEG programming, to transport video programming and other programming services
to the Roseville headend and the Shoreview hub for insertion onto the subscriber system serving
the member cities. Until the Franchise renews, Comcast agrees to continue to provide at no cost
to the City the C -RAN for the transport and playback of the Access Channels in the current
formats and playback with no degradation of signal quality and, in consultation with the City and
Commission, may migrate to future technologies and formats as the system evolves, provided,
however, the signal quality shall be the same as sent by the City, Commission, or NSAC without
degradation, lag, or delay.
Until no later than December 31, 2017, Comcast will continue to make available at no
cost to the City the current dark fiber optic -based network that currently offers end-to-end fiber
connectivity to the facilities listed on Schedule C-1 locations plus a 6 dark fiber optic link
between the Fairview headend and the Shoreview hub, including the nine member cities' city
halls and municipal buildings, Ramsey County libraries, school district buildings, and the
T.I.E.S. building. In addition, until no later than December 31, 2017, Comcast at no cost to the
City will continue to allow governmental and educational facilities throughout the 9 -city
franchise area to connect back via other non -Comcast fiber optic infrastructure to one or more of
the locations on the Comcast dark fiber network for connectivity for cable -related purposes.
NSAC, the Commission and the institutions using the end-to-end fiber network will continue to
provide all of the end user equipment required to light up or activate the fiber optic portion of the
dark fiber optic -based network. After December 31, 2017, transport of voice, video (except for
Access Channel programming) and data shall be governed solely by the parties' Managed
Services Agreement under Section 7.1 of the Franchise.
Until the Franchise renews, Comcast agrees, at no cost to the City, to continue to provide
access to a region wide interconnect that utilizes infrastructure put in place as part of the C -RAN
to enable the NSCC and other local franchise authorities to share Access Channel programming.
This interconnect is commonly referred to as the PRISMA network because the original
equipment used to activate the network has a manufacturer's product name of PRISMA.
Regarding the region -wide interconnect over the PRISMA network, the Commission and the
NSAC is a primary hub between various access entities throughout the Twin Cities area. This
PRISMA interconnect network allows the Commission and the NSAC to share cable Access
Channel programming (both send and receive) with these various entities. With the PRISMA
equipment having reached its manufacturer's end of life, Comcast will ensure the ability of the
City, Commission, and NSAC to share Access Channel programming at the same signal quality
as sent by the City, Commission, NSAC, and all other participating municipal entities without
degradation, lag, or delay until the Franchise renews. To the extent that another municipal entity
is using the PRISMA network, that entity's use (including voice and data) of the PRISMA
network shall be governed by that entity's franchise agreement or other agreement with Comcast
and shall not be impacted in any way by this Franchise.
Exhibit C — Existing Network Facilities
The City may continue to use the dark fiber optic -based network as it was used prior to
the Execution of this Agreement through December 31, 2017. Until the Franchise renews,
Comcast agrees to continue at no cost to the City to provide to the City, the Commission and
NSAC the C -RAN and dark fiber optic -based network to the locations on Exhibit C-2, or an
alternate network infrastructure and technology, for the transport (send and receive) and
playback and return feeds of the Access Channels, and the distribution of Access Channel
programming at the same signal quality as sent by the City, Commission or NSAC without
degradation, lag, or delay. Comcast may, in consultation with the City and Commission, migrate
to future technologies and formats as they become the preferred standard formats in the future.
Nothing in this Section is intended to limit Comcast's application of new technologies and
network configurations to transport and distribute Access Channel programming so long as it
provides the same signal quality and distribution as listed above, and there is no degradation of
signal quality.
2
Exhibit C — Schedule C-1 — Dark Fiber Connections
Exhibit C — Schedule C-1 — Dark Fiber Connections
Institution Name
Address
City
NSCC/NSAC Offices
2670 Arthur Street
Roseville
Fairview Headend to Shoreview hub
Roseville/Shoreview
Arden Hills City Hall
1245 W. Highway 96
Arden Hills
Falcon Heights City Hall
2077 W. Larpenteur Ave.
Falcon Heights
Lauderdale City Hall
1891 Walnut Street
Lauderdale
Little Canada City Hall
515 E. Little Canada Rd.
Little Canada
Mounds View City Hall
New Brighton City Hall
2401 Highway 10
803 5th Avenue NW
Mounds View
New Brighton
North Oaks City Hall
100 Village Center Drive
North Oaks
Roseville City Hall
2660 Civic Center Drive
Roseville
St. Anthony City Hall/St. Anthony
Schools (ISD #282)
3301 Silver Lake Road
St. Anthony
ISD # 623 — Fait -view Community
Center
ISD #621- I-Iighview Middle School
1910 County Road B W
23007 th Street NW
Roseville
New Brighton
ISD #621- Valentine Hills Elementary
School
1770 W. County Road E-2
Arden Hills
ISD #623- Roseville Area High
School
1261 Highway 36
Roseville
North Oaks East Recreation Center
4 Mink Lane
North Oaks
Saint Anthony Wine and Spirits -
Marketplace
2700 Highway 88
Saint Anthony
TIES — District Center
1667 Snelling Avenue
Roseville
Exhibit C — Schedule C-2 — PEG Origination Points
Exhibit C—Schedule C-2 — PEG Orieination Points
NSC/NSAC Offices, 2670 Arthur Street, Roseville
Arden Hills City Hall, 1245 W. Highway 96, Arden Hills
Falcon Heights City Hall, 2077 W. Larpenteur Ave, Falcon Heights
Lauderdale City Hall, 1891 Walnut Street, Lauderdale
Little Canada City Hall, 515 E. Little Canada Road, Little Canada
Mounds View City Hall, 2401 Highway 10, Mounds View
New Brighton City Hall, 803 5th Avenue NW, New Brighton
North Oaks City Hall, 100 Village Center Drive, North Oaks
Roseville City Hall, 2660 Civic Center Drive, Roseville
St. Anthony City Hall, 3301 Silver Lake Road, St. Anthony
Roseville Area High School, 1261 Highway 36, Roseville
Exhibit D — March 1, 2012, Settlement Agreement
Exhibit D - 2012 Settlement Agreement
Settlement Agreement
This Settlement Agreement and Mutual Release is entered into this I" day of
March, 2012, between Comcast of Minnesota, Inc., a Delaware corporation, Comcast
Cable Communications, LLC, a Delaware limited liability company (collectively
"Comcast") and the North Suburban Communications Commission, a municipal joint
powers consortium established pursuant to Minn. Stat. § 471.59, as amended, (the
"NSCC" or the "Commission") consisting of the municipalities of Arden Hills, Falcon
Heights, Lauderdale, Little Canada, Mounds View, New Brighton, North Oaks,
Roseville, St. Anthony, and Shoreview, Minnesota (hereinafter "Member Cities"). The
NSCC and Comcast are collectively referred to herein as the Parties.
Recitals
WHEREAS the Member Cities have awarded cable service franchises to and
entered into franchise agreements/ordinances with Comeast's predecessors in interest to
authorize the provision of cable service over a cable system (the "Franchises"); and
WHEREAS, when Comcast acquired AT&T Broadband, it agreed to comply fully
with the Franchises; and
WHEREAS, as part of the past performance review specified in Section 626(a) of
the Cable Communications Policy Act of 1984, as amended, 47 U.S.C. § 546(a) (the
"Cable Act"), the Commission, on behalf of the Member Cities, commenced a franchise
fee review of Comeast's franchise fee payments for calendar years 2009 and 2010, and
subsequently extended such review to 2011 with respect to the allocation of revenues
within bundled service packages (the "Review Period"); and
WHEREAS in the course of the franchise fee review, a dispute arose over the
extent of Comcast's obligation to provide records, data and certifications in accordance
with the terms of the Franchises, and the adequacy of Comcast's responses to the
NSCC's written requests for records, data and certifications; and
WHEREAS, the Commission adopted Resolution 2011-04 authorizing its
Executive Director to issue a Notice of Violation to Comcast; and
WHEREAS, as a result of the Commission's determination that Comcast failed to
furnish requested records, data and certifications, the NSCC issued a Notice of Violation
to Comcast on November 15, 2011, which afforded the company 30 days to effect a cure
(the "Notice"); and
WHEREAS, the Commission adopted Resolution 2011-05 authorizing the
Commission's Executive Committee to take all steps necessary to draw on Comcast's
letter of credit in the event Comcast remained in violation of the Member Cities'
Franchises after the expiration of the cure period stated in the Notice; and
Exhibit D - 2012 Settlement Agreement
WHEREAS, Comcast denies it was in violation of the Member Cities' Franchises;
and
WHEREAS, the Commission extended the applicable cure period on multiple
occasions to give Comcast sufficient time to cure the remaining violations specified in
the Notice or to enter into a settlement of all outstanding issues; and
WHEREAS, Front Range Consulting, Inc., the consultant retained to conduct the
franchise fee review for the Review Period, has asserted that its final review report, when
completed, would set forth certain underpaid franchise fee amounts; and
WHEREAS, the Commission has incurred certain legal and consulting costs and
expenses as a result of the franchise fee review and the franchise enforcement and
settlement process, to date; and
WHEREAS the Parties have resolved the remaining issues set forth in the Notice
for the Review Period, and wish to document the resolution herein; and
WHEREAS, the Parties also wish to document their agreement to clarify certain
terms of the current Franchises and to have such clarifications incorporated into the terms
and conditions of any renewed cable service franchises awarded to Comcast so as to
avoid future franchise fee review disputes and to expedite the Franchise renewal process.
i"
NOW, THEREFORE, in consideration of the promises, undertakings and mutual
covenants of the Parties and other good and sufficient consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby agree to the terms
below:
Agreement
1. Comcast voluntarily agrees to pay the Commission $41,568.00 within
fifteen (15) days of the effective date of this Agreement. This payment, which shall be in
addition to all franchise fees, financial grants and any other compensation paid or owed
to the Member Cities and the Commission pursuant to the Franchises and associated
documents, shall be used by the Commission and/or the Member Cities for cable -related
purposes. Comcast shall not treat the payment made under this paragraph as a franchise
fee or a franchise -related cost for rate regulation purposes, and shall not separately
itemize the payment on subscribers' bills. In addition, Comcast shall at no time assert
that the payment in this paragraph is operating support for the NSCC's PEG operations,
such that it may be offset from the franchise fee payments made to the Member Cities
under the Franchises and any renewed cable service franchises.
2. Subject to the Commission's and Comeast's adoption and execution of
this Settlement Agreement, and to Comcast's complete and continuous compliance with
this Settlement Agreement, the Parties release and forever discharge each other from all
claims set forth in the Notice and all franchise fee underpayment or franchise fee
overpayment claims for the Review Period. The Commission hereby waives its right to
Exhibit D - 2012 Settlement Agreement
conduct any further franchise fee reviews for calendar years 2009, 2010 and 2011,
provided Comcast fully complies with this Settlement Agreement. This waiver and
release does not include any issues associated with Comcast's methodology of passing
through to subscribers franchise fees paid on non -subscriber revenues. Except as
expressly provided in this paragraph, the NSCC and the Member Cities retain all of their
rights, powers, remedies and defenses under the Franchises and applicable laws,
regulations, agreements, resolutions, orders, decisions and procedures, including (but not
limited to) all rights and powers granted by Section 626 of the Cable Act, 47 U.S.C.
§ 546, and Chapter 238 of Minnesota Statutes.
3. At the request of the NSCC and its advisors, Comcast provided an
accurate and representative advertising scenario example to Front Range Consulting, Inc.
This example and summary, which is attached to the February 24, 2012, Chambers
Certification, accurately sets forth the typical flow of revenue and fees for advertising
transactions. This example and summary describes essentially all of the advertising sales
transactions entered into by Comcast and its affiliates, including but not limited to NCC
and Comcast Spotlight. For purposes of this paragraph, the term "affiliates" means any
person(s) and/or entity(ies) who own or control, are owned or controlled by or are under
common ownership or control with Comcast of Minnesota, Inc.
4. Since January 1, 2010, Comcast has been calculating franchise fees on
video/cable service advertising sales on a single -net basis (which means excluding third -
party agency fees, but including rep fees, affiliate fees, rebates and commissions earned,
received or derived by affiliates such as NCC and Comcast Spotlight), instead of the prior
triple -net basis (which means excluding third -party agency fees, affiliate fees, and NCC
and Comcast Spotlight rep fees). The information provided by Robbin Pepper to Front
Range Consulting, Inc. tracing advertising sales revenues from their inception to the
general ledger for the NSCC franchise area and reconciling all such revenues to the
Comcast Cable Communications, LLC "Trend Reports" is complete and accurate, and
documents Comcast's proposed additional payment of franchise fees on certain
advertising revenues in calendar year 2009 for settlement purposes only, as a result of
moving to a "single net" basis for calculating gross revenues upon which franchise fees
are paid to the NSCC's member cities.
5. Prior to the expiration of the Franchises, Comcast shall update and operate
its billing system so as to ensure that persons or entities that subscribe only to non -cable
service (e.g., persons who subscribe only to high-speed Internet access, telephone service,
alarm monitoring, or a combination of services that does not include cable service) are
not assessed cable service franchise fees on ancillary charges imposed by Comcast on
such subscribers, including but not limited to late fees, convenience fees and non -
sufficient funds (NSF) charges, unless the imposition of cable service franchise fees is
permitted by applicable laws or regulations. Comcast shall provide the Executive
Director of the NSCC with written confirmation of the solution implemented and specify
whether refunds were issued if possible.
Exhibit D - 2012 Settlement Agreement
6. The Parties agree that the definition of "gross revenues" set forth in
Section 1.2.m of the Franchises:
a. incorporates all advertising revenues directly or indirectly received or
derived by Comcast of Minnesota, Inc. and/or its affiliates from the operation of the cable
system to provide Cable Service in the Member Cities, including (but not limited to), rep
fees, affiliate fees, rebates and commissions. For purposes of this paragraph, the term
"affiliates" means any person(s) and/or entity(ies) who own or control, are owned or
controlled by or are under common ownership or control with Comcast of Minnesota,
Inc., and shall include (but not be limited to) Comcast Spotlight and NCC. The
Commission understands and accepts Comcast's assertion that the practice of including
affiliate fees, rep fees, rebates and commissions in "gross revenues" began in 2010, and is
ongoing. Comcast shall follow this practice, as described in this paragraph, for the
remaining term of the Franchises (and any extensions) for all future franchise fee
payments.
b. does not include advertising revenues and commissions that are received
by persons and/or entities that are not affiliates.
C. shall include revenues from all dual- or multi -service packages containing
cable service to which one or more customers in the Member Cities subscribe, in
accordance with a methodology that allocates revenue on a pro rata basis when
comparing the bundled service price and its components to the sum 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
methodology shall also be applied to any discounts to a bundled service package
containing cable service by way of a "Bottom of the Bill" discount. This calculation shall
be applied to every bundled service package containing cable service from which
Comcast receives revenues in the Member Cities, and must be updated within sixty (60)
days of the date any rate change for cable and/or non -cable services is implemented for a
service package containing cable service or the date any rate change is implemented for
any service included in a service package that contains cable service. The NSCC may,
at its sole discretion, review information retained by Comcast pursuant to this Section to
determine whether Comcast is in compliance with this Settlement Agreement. For
purposes of such review, Comcast agrees to retain quarterly bundled service package
subscriber counts and quarterly bundled service package revenue allocation data and
"package cards" for three (3) years following the date of this Settlement Agreement.
7. For purposes of Section 6 of this Settlement Agreement, the terms,
phrases, words, and abbreviations used therein shall have the meaning given herein, or if
no meaning is given herein the meaning set forth in the Franchises. Unless otherwise
expressly stated, words not defined herein or in the Franchises shall be given the meaning
set forth in applicable law and, if not defined therein, the words shall be given their
common and ordinary meaning. The word "shall" is always mandatory and not merely
directory. The word "may" is directory and discretionary and not mandatory.
Exhibit D - 2012 Settlement Agreement
8. During the remaining term of the Franchises, or any extensions thereto,
Comcast shall maintain and provide to the Member Cities and/or the Commission, upon
request, all records and data reasonably necessary to confirm the accurate payment of
franchise fees as set forth in the Franchises.
9. Comcast and the NSCC will proceed in good faith to obtain written
franchise renewals prior to the expiration of the current Franchises, and shall incorporate
the following requirements and terms in any renewed cable service franchises to be
executed by the Member Cities and Comcast, regardless of whether such franchises are
awarded by the Member Cities and executed by the Member Cities and Comcast pursuant
to the formal or informal renewal processes established in Section 626 of the Cable Act,
47 U.S.C. § 546:
a. Comcast and the NSCC agree that the final definition of "Gross
Revenues" in any franchise renewals shall be:
"Gross Revenues" shall be defined as and shall be construed broadly to include all
revenues derived directly or indirectly by Comcast and/or an Affiliate that is a
cable operator of the Cable System, from the operation of Comcast's Cable
System to provide Cable Services within the City (including cash, credits,
property or other consideration of any kind or nature). Gross revenues include, by
way of illustration and not limitation: monthly fees for Cable Services, regardless
of whether such Cable Services are provided to residential or commercial
customers, including revenues derived from the provision of all Cable Services
(including but not limited to pay or premium Cable Services, digital Cable
Services, pay-per-view, pay -per -event and video -on -demand Cable Services);
installation, reconnection, downgrade, upgrade or similar charges associated with
changes in subscriber Cable Service levels; fees paid to Comcast for channels
designated for commercial/leased access use; converter, remote control, lockout
device and other Cable Service equipment rentals and/or leases or sales;
advertising revenues received or derived by Comcast and/or its Affiliates,
including but not limited to, rep fees, Affiliate fees, rebates and commissions, but
excluding unaffiliated agency fees; late fees, convenience fees and administrative
fees; revenues from program guides; franchise fees; and commissions from home
shopping channels and other revenue sharing arrangements. Gross Revenues
subject to franchise fees shall include revenues derived from sales of advertising
that ran on Comcast's Cable System within the City and shall be allocated on a
pro rata basis using total Cable Service subscribers reached by the advertising.
Additionally, Comcast agrees that Gross Revenues subject to franchise fees shall
include all commissions paid to National Cable Communications ("NCC") and
Comcast Spotlight ("Spotlight") or their successors associated with sales of
advertising on the Cable System within the City allocated according to this
paragraph using total Cable Service subscribers reached by the advertising. Gross
revenues shall not include: actual bad debt write-offs, provided, however, that all
or part of any such actual bad debt that is written off but subsequently collected
shall be included in Gross Revenues in the period collected; and any taxes on
Exhibit D - 2012 Settlement Agreement
services furnished by Comcast imposed by any municipality, state or other
governmental unit, provided that franchise fees shall not be regarded as such a
tax.
(i) To the extent revenues are received by Comcast for the provision
of a discounted bundle of services which includes Cable Services and non -Cable
Services, Comcast shall calculate revenues to be included in Gross Revenues
using a methodology that allocates revenue on a pro rata basis when comparing
the bundled service price and its components to the sum of the most recent
published rate card rate for the components, except it is expressly understood that
equipment may be subject to inclusion in the bundled price at full rate card value.
This calculation shall be applied to every bundled service package containing
Cable Service from which Comcast receives or derives revenues in the City, and
must be updated within sixty (60) days of the date any rate change for cable
and/or non -cable services is implemented for a service package containing Cable
Service or the date any rate change is implemented for any service included in a
service package that contains Cable Service. The NSCC reserves its right to
review and to challenge Comcast's calculations.
(ii) For purposes of this definition, the term "Affiliates" means any
person(s) and/or entity(ies) who own or control, are owned or controlled by or are
under common ownership or control with Comcast of Minnesota, Inc. but does
not include affiliated entities such as NBCU and Spectacor that are not directly or
indirectly involved with the programming, use, management, operation,
construction, repair and/or maintenance of Comcast Corporation's cable systems.
(iii) Resolution of any disputes over the classification of revenue
should first be attempted by agreement of the Parties, but should no resolution be
reached, the Parties agree that reference shall be made to generally accepted
accounting principles ("GAAP") as promulgated and defined by the Financial
Accounting Standards Board ("FASB"), Emerging Issues Task Force ("BITF")
and/or the U.S. Securities and Exchange Commission ("SEC"). Notwithstanding
the forgoing, the City and/or the Commission reserves its right to challenge
Comcast's calculation of Gross Revenues, including the use or interpretation of
GAAP as promulgated and defined by the FASB, EITF and/or the SEC.
b. Any renewal franchises shall provide
Comcast shall ensure that persons or entities that only subscribe to non -cable
service (e.g., persons who subscribe only to high-speed Internet access, telephone service,
alarm monitoring, or a combination of services that does not include cable service) are
not assessed cable service franchise fees on ancillary charges imposed by Comcast on
such subscribers, including but not limited to late fees, convenience fees and non -
sufficient funds (NSF) charges, unless the imposition of cable service franchise fees is
permitted by applicable laws or regulations.
Exhibit D - 2012 Settlement Agreement
C. Any renewed franchise shall contain the following language concerning
franchise fee reviews and audits:
(i) All franchise fee amounts paid shall be subject to audit and
recomputation by the City and/or the Commission, and acceptance of any
payment shall not be construed as an accord that the amount paid is in fact the
correct amount. If an audit or review discloses an overpayment or underpayment
of franchise fees, the City and/or the Commission shall notify Comcast of such
overpayment or underpayment. The City's/Commission's audit or review
expenses shall be home 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 home by Comcast, 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 Comcast by the City/Commission of the
underpayment, which notice shall include a copy of the audit/review report. If the
recomputation results in additional revenue to be paid to the City, such amount
shall be subject to a ten percent (10%) annual interest charge.
(ii) The City/Commission shall have the right to inspect and to require
Comcast to provide any and all data, documents and records maintained by
Comcast (or maintained by an Affiliate or a third -party contractor/vendor on
behalf of Comcast) reasonably related to the calculation and payment of franchise
fees. The Grantee shall maintain such records, documents and data for a
minimum of four (4) years. Such records include, but are not limited to, those set
forth in Paragraph 6 of this March 1, 2012, Settlement Agreement for the
remaining term of the obligation set forth therein.
(iii) Comcast shall have no less than twenty (20) business days to
respond fully and completely to any written request for data, documents and
records issued by the City/Commission, unless an extension of time is granted by
the City/Commission in writing. Comcast may request an extension of the twenty
(20) business day deadline applicable to a written request for data, information
and documents no later than ten (10) business days after the date of such request.
Every request for an extension of time shall describe, in detail, the reasons the
extension is necessary. The City/Commission may, in its sole discretion, grant or
deny an extension request, and shall act reasonably in making such a
determination based on the scope and complexity of the information request at
issue and the facts cited by Comcast in its written extension request.
(iv) In the event any franchise fee payment or recomputation amount is
not made on or before the required date, Comcast shall pay, during the period
such unpaid amount is owed, the additional compensation and interest charges
computed from such due date, at an annual rate of ten percent (10%).
7
Exhibit D - 2012 Settlement Agreement
(v) Nothing in this Franchise shall be construed to limit any authority
of the City to impose any tax, fee or assessment of general applicability.
(vi) The franchise fee payments required by this Franchise shall be in
addition to any and all taxes or fees of general applicability. Comcast shall not
have or make any claim for any deduction or other credit of all or any part of the
amount of said franchise fee payments from or against any of said taxes or fees of
general applicability, except as expressly permitted by law. Comcast shall not
apply nor seek to apply all or any part of the amount of said franchise fee
payments as a deduction or other credit from or against any of said taxes or fees
of general applicability, except as expressly permitted by law. Nor shall Comcast
apply or seek to apply all or any part of the amount of any of said taxes or fees of
general applicability as a deduction or other credit from or against any of its
franchise fee obligations, except as expressly permitted by law.
10. The Commission will pass a resolution withdrawing or rescinding the
Notice, Resolution No. 2011-04 and Resolution No. 2011-05 after this Settlement
Agreement has been executed by the Parties.
11. This Settlement Agreement is intended to be a binding and enforceable
agreement among the Parties, and will be effective upon execution by the Parties on the
date first set forth above. The Parties agree that they will execute this Settlement
Agreement no later than Friday, March 30, 2012. The Parties further agree that this
Agreement may be executed in multiple counterparts.
12. The Parties agree that all promises, commitments, obligations and
payments set forth in Section 1 of this Settlement Agreement shall not be deemed to
exceed the franchise fee cap specified in Section 622(a) of the Cable Act, 47 U.S.C.
§ 542(a), and shall at no time be offset against or deducted from franchise fee payments,
grants or other financial support or in-kind compensation paid to the NSCC, the Member
Cities and/or their designee(s) under the Franchises. In addition, all promises,
commitments, obligations and payments set forth in Section 1 of this Settlement
Agreement shall not be treated as costs eligible for treatment as conditions or
requirements of a franchise for any purpose under 47 C.F.R. § 76.925. Comcast hereby
waives any current or future right it may have to claim that any promise, commitment,
obligation or payment in Section 1 herein exceeds the franchise fee cap in 47 U.S.C.
§ 542 or may be offset against or deducted from franchise fee payments, grants and other
compensation paid to the NSCC, the Member Cities and/or their designee(s).
13. Nothing in this Settlement Agreement amends or alters the Franchises in
any way, and all provisions of the Franchises as hereafter renewed or amended, remain in
full force and effect and are enforceable in accordance with their terms and with
applicable law.
14. Any violation of this Settlement Agreement by Comeast shall be deemed a
violation of the Franchises or any renewed franchises, as appropriate, and the
Exhibit D - 2012 Settlement Agreement
Commission and/or Member Cities may invoke all rights and remedies they may have
under the Franchises and any renewed Franchises. Any failure by a Member City to
adopt and execute a renewal cable service franchise that contains the terms set forth in
Section 9 shall not be deemed a violation of this Settlement Agreement on Comcast's
part.
15. Comcast and its affiliates shall not take any action to challenge, or cause
another person or entity to challenge, any provision of this Settlement Agreement as
contrary to or unenforceable under applicable laws, regulations, orders and decisions, nor
will they participate with any other person or entity in any such challenge,
16. Nothing in this Settlement Agreement usurps, preempts, waives or limits
the Member Cities' authority to grant or deny the renewal of the Franchises currently
held by Comcast, or to establish the terms and conditions of any renewal cable service
franchises/ordinances.
17. Nothing in this Settlement Agreement waives, limits or modifies the
Parties' rights, remedies, responsibilities and defenses under applicable laws, regulations,
ordinances, agreements, orders and decisions, including but not limited to Chapter 238 of
Minnesota Statutes, Section 626 of the Cable Act and the Franchises, unless otherwise
expressly provided herein.
18. Nothing in this Settlement Agreement shall be construed to mean that
Comcast is entitled to renewed cable service franchises.
19. Nothing in this Settlement Agreement shall be construed to mean that
Comcast is in compliance with the Franchises and applicable laws and regulations except
as to the franchise fee payment review for the Review Period which is hereby resolved
and for which Comcast is in full compliance as to the specific issues addressed in this
Agreement for the Review Period. By executing this Settlement Agreement, Comcast is
not admitting that it has failed to comply with the Franchises and applicable laws and
regulations.
20. The Parties agree that, other than the Member Cities, there shall be no
third party beneficiaries to this Settlement Agreement. Nothing herein shall give rise to
any rights or causes of action that may be enforced or brought by a third party, other than
the Member Cities.
21. This Settlement Agreement shall be binding upon and shall inure to the
benefit of the Parties hereto, and their successors in interest, assigns, personal
representatives and heirs.
22. This Settlement Agreement is freely and voluntarily entered into by the
Parties, without any duress or coercion, and after each party has consulted with its
counsel. Each party hereto has carefully and completely read all of the terms and
provisions of this Settlement Agreement.
Exhibit D - 2012 Settlement Agreement
23. This Settlement Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota. Any disputes concerning this
Settlement Agreement shall be venued exclusively in a court in Minnesota.
24. This Settlement Agreement constitutes the entire understanding and
agreement between the Parties with respect to the subject matter hereof, and supersedes
all prior oral or written term sheets, agreements, communications, drafts and
understandings, whether oral or written.
Executed by:
NORTH SUBURBAN
COMMUNICATIONS
COMMISSION
'Ga
Its Chair
Its s
Dated: 3 11,
COMCAST OF MINNESOTA, INC.
Region Vice President
Dated: -Y - 8-- e' Z
COMCAST CABLE COMMUNICATIONS, LLC
Region ice Pr sident
Dated: .! - E i Z
10
Exhibit E — Sample Gross Revenues Report
Exhibit E - Gross Revenue Report
Comcast®
System Name: Comcast of Minnesota, Inc.
Email: Present _Nadella@cable.comcast
.com
Phone: 610-665-2579
CITY OF ROSEVILLE MN
2660 CIVIC CENTER DR
ROSEVILLE, MN, 55113
VendorlD:
174064
Contract Name:
Roseville
Statement Period:
Jul - Sep, 2016
Payment Amount:
$112,192.15
Statement Number:
344679
CUID:
MN0304
System ID:
8772-1000-5290
This statement represents your payment for the period
listed above.
!Revenue Category
Amount
Expanded Basic Video Service
$697,994.40
Limited Basic Video Service
$306,386.27
Digital Video service
$433,684.93
Pay
$264,008.98
PPVIVOD
$41,279.77
Digit.! video Equipment
$83,000.50
Video Installation I Acliva8on
$13,066.69
Franchise Fees
$126,676.40
PEO Fees
$137,886.60
GVlde
$679.83
other
$22.988.63
Late Fee.
$8,044.16
Write-offs I R...no.
($21,224.03)
Ad Sales
$121A67.67
Nome Shopping Commissions
$9,099.32
Total -
- $2,243,839.93
Franchise Fee % 6.00%
Franchise Fee $112,192.15
To the best of my knowledge and belief, the above is a true and correct statement for the accounting of the gross revenues received by
this corporation for the period and is consistent with the Franchise Agreement and all Settlement Agreements applicable to this
franchise area.
Present Nadella
Sr. Analyst
Exhibit F — Performance Bond
Bond No. 10088717287
REVISED BO' Exhibit F
FRANCHISE BOND
KNOW ALL AIEN EY THESE PRESENTS, That we, Conicast of Minnesota, Ire., as Principal
and Travelers Casuahy arid Surety Company of America, a corporation of the State of
Connecticut, as Surety are held and firmly bound unto the Cities of Arden Hills, Falcon
Heights, Lauderdale, Little Canada, Mounds View, New Brighten, North Oaks, Roseville,
St. Anthony and Shoreview, Minnesota as Obligee in the sum *of' Five Hundred Thousand
Dollars and 00/100 ($500,000,00) lawful money ofthe United States of America, to be paid unto
said Obligee, its successors and assigns,jointly and severally, firmly by these presents.
WHEREAS, the Principal has entered into written agreements dated _See Attacked Schedule
"A" _ with the Obligees which grants a franchise to the Principal use its public streets and
places to transmit and distribute electrical impulses through an open line -coaxial antenna system
located therein. Principal has agreed to faithfully perform and observe and fulfill all terms and
conditions of said Franchise Agreements referred to above and said agreements is hereby made a
part of this bond with like force and effect as if herein set forth in length.
NOTV, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, That if the
above named Principal, its successors or assigns, does and shall well and truly observe, perform
and fulfill its obligations as set forth in the above mentioned Franchise agreements, for which a
bond must be posted, then the above obligation to be void; otherwise to remain in full force and
effect.
Tile bond is subject, however to the following express conditions:
FIRST: That in event of a default on the part of the Principal its successors or assigns, a written
statement of such default with full details thereof shall be given to Surety by obligee or its lawful
delegatee promptly, and in any event, within 60 days after the Obligees shall learn of such
default, such notice to be delivered to Surety 215 Shuman Blvd., Naperville, II. 60563-8458 by
registered mail,
SECOND: That no claim, suit or action under this bond by reason of any such default shall be
brought against Surety unless asserted or commenced with 12 months after the effective date of
any termination or cancellation of this bond.
THIRD: That this bond may be terminated or cancelled by surety by 60 days prior notice in
writing to Principal and to Obligees, such notice to be given by registered mail. Such termination
or cancellation shall not affect any liability incurred or accrued under this bond prior to the
effective date of such termination or cancellation. The liability of the Surety shall be limited to
the amount set forth above and is not cumulative.
FOURTH: That no right of action shall accrue under this bond to or for the use of any person
other than the Obligees, and it successors and assigns:
IN WITNESS WTIEREOF, the principal and Surety have signed and sealed this instrument this
28h day of May 2003.
Comcast orMinnesota, Ire
Travelers Casualty and Surety Company of America
Kohlntan, Attorney -In -Fact
** the maximum penal sum of Five Hundred Thousand Dollars
TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA
TRAY 'ERS CASUALTY AND SURETY COMPANY Fxhibit•F ,
-.,RMINGTON CASUALTY COMPANY
Hartford, Connecticut 06183-9062
POWER OF ATTORNEY AND CERTIFICATE OF AUTHORITY OF ATTORNEY(S)-IN-FACT
KNOW ALL PERSONS BY THESE PRESENTS, THAT TRAVELERS CASUALTY AND SURETY COMPANY OF
AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY,
corporations duly organized under the laws of the State of Connecticut, and having their principal offices in the City of Hartford,
County of Hartford, State of Connecticut, (hereinafter the "Companies") hath made, constituted and appointed, and do by these
presents make, constitute and appoint: Donna Wright, Brenda D. Hockberger, Ann Formhals, Debra Kohlman, Diane M.
O'Leary, William Reidinger, Amy Wickett, Karen E. Bogard, Matthew V. Buol, Jennifer E. Rome, Steven B. Cade, William
T. Krumm, Jeffrey M. Leadley, Sylvia J. Garcia, Brian Passolt, of Chicago, Illinois, their true and lawful Atiorney(s)-in-Fact,
with full power and authority hereby conferred to sign, execute and acknowledge, at any place Within the United States, the
following instrument(s): by his/her sole signature and act, any and all bonds, recognizances, contracts of indemnity, and other
writings obligatory in the nature of a bond, recognizance, or conditional undertaking and any and all consents incident thereto and to
bind the Companies, thereby as fully and to the same extent as if the same were signed by the duly authorized officers of the
Companies, and all the acts of said Attorney(s)-in-Fact, pursuant to the authority herein given, are hereby ratified and confirmed.
This appointment is made under and by authority of the following Standing Resolutions of said Companies, which Resolutions are
now in full force and effect:
VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President, any Vice President, any
Sewnd Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any Assistant Secretary may appoint Attorneys -in -Fact
and Agents to act for and on behalf of the company and may give such appohttee such authority as his or her certificate of authority may prescribe
to sign with the Company's name and seal with the Company's seal bonds, recognisances, contracts of indemnity, and other writings obligatory in
the nature of a bond, recognizance, or conditional undertaking, and any of said officers or the Board of Directors at any time may remove any such
appointee and revoke the power given him or her.
VOTED: That the Chairman, the President, any Vice Chairman, any Executive Vice President, any Senior Vice President or any Vice President
�- may delegate all or any part of the foregoing authority to one or more officers or employees of this Company, provided that each such delegation is
in writing and a copy thereof is filed in the office of the Secretary.
VOTED: That any bond, recognizance, contract of indemnity, or writing obligatory in the nature of a bond, recognizance, or conditional
undertaking shall be valid and binding upon the Company when (a) signed by the President, any Vice Chairman, any Executive Vice President, any
Senior Vice President or any Vice President, any Second Vice President, the Treasurer, any Assistant Treasurer, the Corporate Secretary or any
Assistant Secretary and duly attested and sealed with the Company's seal by a Secretary or Assistant Secretary, or (b) duly executed (under seal, if
required) by one or more Attomeys-in-Fact and Agents pursuant to the power prescribed in his or her certificate or their certificates of authority or
by one or more Company officers pursuant to a written delegation of authority.
This Power of Attorney and Certificate of Authority is signed and sealed by facsimile (mechanical or printed) under and by
authority of the following Standing Resolution voted by the Boards of Directors of TRAVELERS CASUALTY AND SURETY
COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY
COMPANY, which Resolution is now in full farce and effect:
VOTED: That the signature of each of the following officers: President, any Executive Vice President, any Senior Vice President, any Vice
President, any Assistant Vice President, any Secretary, any Assistant Secretary, and the seal of the Company may be affixed by facsimile to any
power of attorney or to any certificate relating thereto appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys -in -Fact for
purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof, and any such power of attorney
or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company and any such power so executed and
certified by such facsimile signature and facsimile seal shall be valid and binding upon the Company in the future with respect to any bond or
undertaking to which it is attached.
(11-00 standard)
Exhibit G — Indemnification Agreement
Exhibit G — Indemnity Agreement
A'- /^ moi$
INDEMNITY AGREEMENT made this,294+day of ��c" ` ,—q917, 6y and
between Comcast of Minnesota, Inc., party of the first part, hereinafter called "Comcast," and the
City of Mounds View and the North Suburban Communications Commission, a municipal Joint
Powers Commission, parties of the second part, hereinafter called "City" or "Commission".
WITNESSETH:
WHEREAS, the City has awarded to Comcast a franchise for the operation of a cable
communications system in the City;
WHEREAS, the City has required, as a condition of its award of a cable communications
franchise, that the City and the Commission be indemnified with respect to all claims and actions
arising from the award of said franchise; and
WHEREAS, the term of the Indemnity Agreement shall not exceed 180 days' from the Effective
Date of the cable communications franchise, unless the City or the Commission has received
statutory notice of a claim based upon the renewal of the franchise.
NOW THEREFORE, in consideration of the foregoing promises and the mutual promises
contained in this agreement and in consideration of entering into a cable television franchise
agreement and other good and valuable consideration, receipt of which is hereby acknowledged,
Comcast hereby agrees, at its sole cost and expense, to fully indemnify, defend and hold
harmless the Commission and City, its officers, boards, commissions, employees and agents
l against any and all claims, suits, actions, liabilities and judgments for damages, cost or expense
(including, but not limited to, court and appeal costs and reasonable attorneys' fees and
disbursements assumed or incurred by the Commission and the City in connection therewith)
arising out of the actions of the City in granting a franchise to Comcast. This includes any claims
by another franchised cable operator against the City or the Commission that the terms and
conditions of the Comcast franchise are less burdensome than another franchise granted by the
City that the Comcast Franchise does not satisfy the requirements of applicable federal, state, or
local law(s). The indemnification provided for herein shall not extend or apply to any acts of the
Commission or the City constituting a violation or breach by the Commission or the City of the
contractual provisions of the franchise ordinance, unless such acts are the result of a change in
applicable law, the order of a court or administrative agency, or are caused by the acts of
Comcast.
The Commission or the City shall give Comcast reasonable notice of the making of any claim or
the commencement of any action, suit or other proceeding covered by this agreement. The
Commission and the City shall cooperate with Comcast in the defense of any such action, suit or
other proceeding at the request of Comcast. The Commission and the City may participate in the
defense of a claim, but if Comcast provides a defense at Comcast's expense then Comcast shall
not be liable for any attorneys' fees, expenses or other costs that the Commission and/or the City
may incur if it chooses to participate in the defense of a claim, unless and until separate
representation is required. If separate representation to fully protect the interests of both parties is
or becomes necessary, such as a conflict of interest, in accordance with the Minnesota Rules of
Professional Conduct, between the Commission and/or the City and the counsel selected by
Exhibit G — Indemnity Agreement
Comcast to represent the Commission and/or the City, Comcast shall pay, from the date such
separate representation is required forward, all reasonable expenses incurred by the Commission
and the City in defending itself with regard to any action, suit or proceeding indemnified by
Comcast. Provided, however, that in the event that such separate representation is or becomes
necessary, and the Commission or the City desires to hire a counselor any other outside experts
or consultants and desires Comcast to pay those expenses, then the Commission and/or the City
shall be required to obtain Comcast's consent to the engagement of such counsel, experts or
consultants, such consent not to be unreasonably withheld. Notwithstanding the foregoing, the
parties agree that the Commission and/or City may utilize at any time, at its own cost and
expense, its own attorney or outside counsel with respect to any claim brought by another
franchised cable operator as described in this agreement.
The provisions of this agreement shall not be construed to constitute an amendment of the cable
communications franchise ordinance or any portion thereof but shall be in addition to and
independent of any other similar provisions contained in the cable communications franchise
ordinance or any other agreement of the parties hereto. The provisions of this agreement shall not
be dependent or conditioned upon the validity of the cable communications franchise ordinance
or the validity of any of the procedures or agreements involved in the award or acceptance of the
franchise, but shall be and remain a binding obligation of the parties hereto even if the cable
communications franchise ordinance or the grant of the franchise is declared null and void in a
legal or administrative proceeding.
It is the purpose of this agreement to provide maximum indemnification to the Commission and
the City under the terms set out herein and, in the event of a dispute as to the meaning of this
Indemnity Agreement, it shall be construed, to the greatest extent permitted by law, to provide
for the indemnification of the Commission and the City by Comcast. This agreement shall be a
binding obligation of and shall inure to the benefit of, the parties hereto and their successor's and
assigns, if any.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2
Exhibit G Indemnity Agreement
COMCAST OF MINNESOTA
Dated: _ a8 on 2017 By:
Its:
17kkj- 7,91C
The foregoing instrument was acknowled7d before me this X day of 2019, by
Nis r h �"I'Ashd tl , the 5 A`7"6C of Comcast of Minnesota, on
behalf of the corporation,
NOTARY PUBLIC
Print Name:��I�
Bar Roll #/Notary iD #: M—i9E/
My Commission Expires: 1-2-21
ELLY 1 0t3REN
Notary Public
State of Colorado
Notary I D # 201240$371 1
M CommissionExpires0l-02.2021
CITY OF MOUNDS VIEW
By: uAIJ
Its'-`C—
C®MCAST
February 15, 2018
The Honorable Carol Mueller
Mayor, City of Mounds View
Dear Mayor Mueller:
The purpose of this letter agreement is to set forth additional commitments between Comcast of
Minnesota, Inc. (hereinafter, "Comcast"), and the City of Mounds View (hereinafter, "the City")
that are in addition to the Franchise Agreement to be adopted by Ordinance (hereinafter, "the
Franchise"). These items have been negotiated in good faith and agreed to as part of the informal
franchise renewal process pursuant to 47 U.S.C. 546(h), and specifically relate to unique
community needs.that exist inthe City. This letter agreement shall become effective upon approval
of the Franchise by the City Council.
A. In addition to the complimentary services described in Section 2.10 of the
Franchise, Grantee shall, at no cost to the City or the North Suburban
Communications Commission (the "Commission"), provide Digital Starter or
equivalent package of Cable Service and City's choice of Grantee's necessary
reception equipment (a digital cable box or digital adapter) to up to seven (7) outlets
at the Commission Office and at each City Hall of each Member City.
B. For purposes of interpreting Section 2.2 of the Franchise, a "similar authorization"
shall be a franchise or other agreement between the Commission or member city
that contains Material Obligations and not a standard construction permit. In
addition, Comcast agrees that the current franchise with CenturyLinlc in effect on
the Effective Date of this Franchise will not trigger changes to the Franchise under
Section 2.2.
C. For purposes of calculating amounts retained and owed under Section 6.8(b) - (c)
and (e) of the Franchise, Comcast estimates that it will recover an additional
130,000.00 through May 31, 2019, and that the NSAC shall be paid per NSAC
Sponsorship Agreement an additional 76,000.00 through December 31, 2019.
10 River Park Plaza, Saint Paul, MN 55107
The terms and conditions of this letter agreement are binding upon the City and Comcast and their
successors and assigns. Comcast stipulates that a violation of these terms by Comeast may be
considered by the City as a violation of the Franchise. It is understood that fulfillment of these
obligations is also necessary and part of the consideration to secure the Renewed Franchise.
Acluiowledged and agreed to this 22 -day of, 2015.
Comcast of Minnesota, Inc.
Byj a, ofLkx6111
-
Its: p) -ye
Date: 9712 Z12WIV
City of Mounds View
By: 4e�
Its: /r -I )� Yo ti
Date: '-�2 -/z/-
10
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10 River Park Plaza, Saint Paul, MN 55107