IV.6. Second Reading of Ordinance 2016-1103; Genellie (Memo)
CITY OF HOPKINS
MEMORANDUM
To:Hopkins City Council
From:Jim Genellie, Assistant City Manager
Date:January 19, 2016
Subject:Second Reading of Ordinance 2016-1103
Staff recommends that the Council approve the following motion: Move that the Hopkins City
Council approve Ordinance 2016-1103for second reading, approve the summary of Ordinance 2016-
1103,and order the summary published and posted at the Hopkins Library.
Nochanges have been made to thisOrdinance since the first reading.
It requires a four-fifths vote of the City Council to approve the publication of the summary
Ordinance.
Attachments:
Summary of Ordinance 2016-1103
Ordinance 2016-1103
CITY OF HOPKINSCOUNTY OF HENNEPIN
SUMMARY OF
2016-1103
ORDINANCE NO.
AN ORDINANCE ESTABLISHING A CABLE TELEVISION FRANCHISE FOR
QWEST BROADBAND SERVICES, INC., D/B/A CENTURYLINK
The following is a summary of the major provisions of the new ordinance:
Grants to Qwest Broadband Services, Inc., d/b/a CenturyLink (the Grantee) a cable television
Franchise.
This Franchise shall be in effect for a term of five years from the date of acceptance by
Grantee. If theCity determines that Grantee is in compliance with all other material terms of
this Franchise including the build out obligations set forth in theFranchise, the City shall
have the unilateral right to extend the Franchise for an additional term of no less than five
years and no more thanten years.
The Franchise establishes build out obligations for the Grantee. Regular reporting
requirements are established to ensure that the Grantee is meeting these obligations.
The franchise requires the Grantee to provide service, if needed, to all public buildings.
The Grantee is required to provide a direct connection to Edina City Hall for public and
educational programming and a direct connection to Hopkins City Hall for government
programming. PEG channels will have the capability of providing high definition as well as
standard definition for all programming.
The Ordinance requires Grantee to pay to the City a Franchise Fee in an amount equal to five
percent (5%) of its annual Gross Revenues.
The Ordinance requires a bond to ensure that, during the construction of the System, money
will be available to pay any costs incurred by the City due to a failure of the cable company
in installation of the system.
The Ordinance subjects the Grantee to the City’sRight-of-Way ordinance.
A printed copy of the entire ordinance is available from the City Clerk and at the Hopkins
library.
First Reading of Ordinance 2001-850January 2, 2001
Second Reading of Ordinance 2001-850February 6, 2001
Publication of Summary Ordinance 2001-850February 14, 2001
Effective Date of Ordinance 2001-850March 7, 2001
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City ofHopkins,Minnesota
Ordinance Granting a Cable Television Franchise
to
Qwest Broadband Services, Inc. d/b/a CenturyLink
January 5, 2015
Prepared by:
BRIAN T. GROGAN, ESQ.
Moss & Barnett
A Professional Association
150 South Fifth Street, Suite 1200
Minneapolis, MN 55402
(612) 877-5340
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TABLE OF CONTENTS
SECTION 1DEFINITIONS....................................................................................................1
SECTION 2FRANCHISE......................................................................................................6
SECTION 3OPERATION IN STREETSAND RIGHTS-OF-WAY..................................12
SECTION 4REMOVAL OR ABANDONMENT OF SYSTEM.........................................16
SECTION 5SYSTEM DESIGN AND CAPACITY............................................................17
SECTION 6PROGRAMMING AND SERVICES...............................................................20
SECTION 7PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS.................21
SECTION 8REGULATORY PROVISIONS.......................................................................29
SECTION 9BOND...............................................................................................................30
SECTION 10SECURITY FUND...........................................................................................31
SECTION 11DEFAULT........................................................................................................33
SECTION 12FORECLOSURE AND RECEIVERSHIP.......................................................35
SECTION 13REPORTING REQUIREMENTS....................................................................36
SECTION 14CUSTOMER SERVICE POLICIES.................................................................37
SECTION 15SUBSCRIBER PRACTICES............................................................................43
SECTION 16COMPENSATION AND FINANCIAL PROVISIONS..................................44
SECTION 17MISCELLANEOUS PROVISIONS.................................................................48
EXHIBIT AFREE CABLE SERVICE TO PUBLIC BUILDINGS...................................A-1
EXHIBIT BFRANCHISE FEE PAYMENT WORKSHEET............................................B-1
EXHIBIT CINDEMNITY AGREEMENT........................................................................C-1
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ORDINANCE NO. 2016-1103
AN ORDINANCE GRANTINGA FRANCHISE TO QWEST BROADBAND SERVICES,
INC., D/B/A CENTURYLINKTO OPERATE AND MAINTAIN A CABLE SYSTEM
AND PROVIDE CABLE SERVICES IN THE CITY OF HOPKINS; SETTING FORTH
CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE; PROVIDING FOR
CITY REGULATION AND ADMINISTRATION OF THE CABLE SYSTEM AND
CABLE SERVICES.
RECITALS
The City of Hopkins, Minnesota (“City”) pursuant to applicable federal and state law is
authorized to grant one or more nonexclusive cable television franchises to construct, operate,
maintain and reconstruct cable television systems within the City limits.
Qwest Broadband Services, Inc., d/b/a CenturyLink (“Grantee”) seeks a competitive
cable television franchise with the City.
Negotiations between Grantee and the City have been completed in accordance with the
guidelines established by the City Code, Minnesota Statutes Chapter 238 and the Cable Act (47
U.S.C.Section 546).
The City reviewed the legal, technical and financial qualifications of Grantee and, after a
properly noticed public hearing, determined that it is in the best interest of the City and its
residents to grant this competitive cable television franchise to Grantee.
NOW, THEREFORE, THE CITY OF HOPKINSDOES ORDAIN
that a franchise is
hereby granted to Qwest Broadband Services, Inc. to operate and maintain a Cable System and
provide Cable Services in the City upon the following terms and conditions:
SECTION 1
DEFINITIONS
For the purpose of this Franchise, the following, terms, phrases, words, derivations and
their derivations shall have the meanings given herein. Whennot inconsistent with the context,
words used in the present tense include the future tense, words in the plural number include the
singular number and words in the singular number include the plural number. In the event the
meaning of any word or phrasenot defined herein is uncertain, the definitions contained in
applicable local, State or Federal law shall apply.
“Access Channels” means any channel or portion of a channel utilized for public,
educational or governmental programming.
“Affiliate”shall mean any Person controlling, controlled by or under common control of
Grantee.
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“Applicable Laws” means any law, statute, charter, ordinance, rule, regulation, code,
license, certificate, franchise, permit, writ, ruling, award, executive order, directive, requirement,
injunction (whether temporary, preliminary or permanent), judgment, decree or other order
issued, executed, entered or deemed applicable to Grantee by any governmental authority of
competent jurisdiction.
“Basic Cable Service” means any service tier which includes the lawful retransmission of
local television broadcastand shall include the public, educational and governmental access
channels.Basic Cable Service as defined herein shall be the definition set forth in47 U.S.C. §
522(3).
“Cable Act” means the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 et
seq., as amended by the Cable Television Consumer Protection and Competition Act of 1992, as
further amended by the Telecommunications Act of 1996, as further amended from time to time.
“Cable Service” shall mean (a) the one-way transmission to Subscribers of (i) Video
Programming or (ii) Other Programming Service, and b) Subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming service. For
the purposes of this definition, “video programming” is programming provided by, or generally
considered comparable to programming provided by a television broadcast station; and, “other
programming service” is information that a cable operator makes available to all Subscribers
generally.
“Cable System” or “System” shall have the meaning specified for “Cable System” in the
Cable Act. Unless otherwise specified, it shall in this document refer to the Cable System
utilized by the Grantee in the City under this Franchise.
“Channel” means a portion of the electromagnetic frequency spectrum which is used in a
Cable System and which is capable of delivering a television channel as defined by the FCC by
regulation.
“City” shall mean the City of Hopkins, a municipal corporation in the State of Minnesota.
“City Code” means the Municipal Code of the City of Hopkins, Minnesota, as may be
amended from time to time.
“Commission” means the Southwest Suburban Cable Communications Commission
consisting of the cities of Edina, Eden Prairie, Hopkins, Minnetonka and Richfield, Minnesota.
“Connection” means the attachment of the Drop to the television set or Set Top Box of
the Subscriber.
“Council” shall mean the governing body of the City.
“Day” unless otherwise specified shall mean a calendar day.
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“Drop” shall mean the cable that connects the Subscriber terminal to the nearest feeder
cable of the cable.
“Effective Date” shall mean January 28, 2016.
“Expanded Basic Service” means all Subscriber services other than Basic Cable Service
provided by the Grantee covered by a regular monthly charge, but not including optional
programming offered on a pay-per-channel or pay-per-view basis.
“FCC” means the Federal Communications Commission, or a designated representative.
“Franchise” shall mean the right granted by this Ordinance and conditioned as set forth
herein.
“Franchise Area”means the entire geographic area within the City as it is now
constituted or may in the future be constituted.
“Franchise Fee” shall mean the fee assessed by the City to Grantee, in consideration of
Grantee’s right to operate the Cable System within theCity’s Streets and rights of way,
determined in amount as a percentage of Grantee’s Gross Revenues and limited to the maximum
percentage allowed for such assessment by federal law. The term Franchise Fee does not include
the exceptions noted in 47 U.S.C. §542(g)(2)(A-E).
“GAAP” means generally accepted accounting principles as promulgated and definedby
the Financial Accounting Standards Board (“FASB”), Emerging Issues Task Force (“EITF”)
and/or the U.S. Securities and Exchange Commission (“SEC”).
“Grantee” means Qwest Broadband Services, Inc., d/b/a CenturyLink.
“Gross Revenues” means any and all compensation in whatever form, from any source,
directly or indirectly earned by Grantee or any Affiliate of Grantee or any other Person who
would constitute a cable operator of the Cable System under the Cable Act, derived from the
operation of the Cable System to provide Cable Service within the City. Gross Revenues include,
by way of illustration and not limitation, monthly fees charged Subscribers for Cable Services
including Basic Cable Service, any expanded tiers of Cable Service, optional premium or digital
services; pay-per-view services; Pay Services, installation, disconnection, reconnection and
change-in-service fees, Leased Access Channel fees, allCable Service lease payments from the
Cable System to provide Cable Services in the City, late fees and administrative fees, payments
or other consideration received by Grantee from programmers for carriage of programming on
the Cable System and accountedfor as revenue under GAAP; revenues from rentals or sales of
Set Top Boxes or other Cable System equipment; advertising sales revenues booked in
accordance with Applicable Law and GAAP; revenues from program guides and electronic
guides, additional outletfees, Franchise Fees required by this Franchise, revenue from
Interactive Services to the extent they are considered Cable Services under Applicable Law;
revenue from the sale or carriage of other Cable Services, revenues from home shopping and
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other revenue-sharing arrangements. Copyright fees or other license fees paid by Grantee shall
not be subtracted from Gross Revenues for purposes of calculating Franchise Fees. Gross
Revenues shall include revenue received by any entity other than Grantee where necessary to
prevent evasion or avoidance of the obligation under this Franchise to pay the Franchise Fees.
Gross Revenues shall not include any taxes on services furnished by Grantee, which taxes
are imposed directly on a Subscriber or user by a city, county, state or other governmental unit,
and collected by Grantee for such entity. The Franchise Fee is not such a tax. Gross Revenues
shall not include amounts which cannot be collected by Grantee and are identified as bad debt;
provided that if amounts previously representing bad debt are collected, then those amounts shall
be included in Gross Revenues for the period in which they are collected. Gross Revenues shall
not include payments for PEG Access capital support. The City acknowledges and accepts that
Grantee shall maintain its books and records in accordance with GAAP.
“Interactive Services” are those services provided to Subscribers whereby the Subscriber
either (a) both receives information consisting of either television or other signal and transmits
signals generated by the Subscriber or equipment under his/her control for the purpose of
selecting what information shall be transmitted to the Subscriber or for any other purpose or (b)
transmits signals to any other location for any purpose.
“Living Unit” means a distinct address as tracked in the QC network inventory, used by
CenturyLink to identify existing or potential Subscribers. This includes, but is not limited to,
single family homes, multi-dwelling units (e.g., apartment buildings andcondominiums) and
business locations.
“Minnesota Cable Communications Act” means the provisions of Minnesota law
governing the requirements for a cable television franchise as set forth in Minn. Stat. § 238, et.
seq., as amended.
“Mosaic Channel” means a channel which displays miniaturized media screens and
related information for a particular group of Channels with common themes. The Mosaic
Channel serves as a navigation tool for Subscribers, which displays the group of Access
Channels on a single Channel screen and also provides for easy navigation to a chosen Access
Channel.
“Normal Business Hours” means those hours during which most similar businesses in
City are open to serve customers. In all cases, “Normal Business Hours” must include some
evening hours, at least one (1) night per week and/or some weekend hours.
“Normal Operating Conditions” means those Service conditions which are within the
control of Grantee. Those conditions which are not within the control of Grantee include, but are
not limited to, natural disasters, civil disturbances, power outages, telephone network outages,
and severe or unusual weather conditions. Those conditions which are ordinarily within the
control of Grantee include, but are not limited to, special promotions, pay-per-view events, rate
increases, regular peak or seasonal demand periods, and maintenance or upgrade of the Cable
System.
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“Pay Service” means programming (such as certain on-demand movie channels or pay-
per-view programs) offered individuallyto Subscribers on a per-channel, per-program or per-
event basis.
“PEG” means public, educational and governmental.
“Person” means any natural person and all domestic and foreign corporations, closely-
held corporations, associations, syndicates, joint stock corporations, partnerships of every kind,
clubs, businesses, common law trusts, societies and/or any other legal entity.
“QC”means Qwest Corporation, wholly owned subsidiary of CenturyLink, Inc.and an
Affiliate of Grantee.
“Qualified Living Unit” means a Living Unit which meets the minimum technical
qualifications defined by Grantee for the provision of Cable Service. A Living Unit receiving a
minimum of 25Mbps downstream will generally be capable of receiving Cable Service subject to
Grantee performing certain network grooming and conditioning.
“Set Top Box” means an electronic device, which converts signals to a frequency not
susceptible to interference within the television receiver of a Subscriber, and by an appropriate
Channel selector also permits a Subscriber to view all signals included in the Basic Cable
Service tier delivered at designated converter dial locations.
“Street” shall mean the surface of and the space above and below any public Street, road,
highway, freeway, lane, path, public way, alley, court, sidewalk, boulevard, parkway, drive or
any easement or right-of-way now or hereafter held by City which shall, within its proper use
and meaning in the sole opinion of City, entitle Grantee to the use thereof for the purpose of
installing or transmitting over poles, wires, cables, conductors, ducts, conduits, vaults, man-
holes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and
pertinent to a Cable System.
“Subscriber” means a Person who lawfully receives Cable Service from Grantee.
“Wireline MVPD”means a multichannel video programming distributor that utilizes the
Streets to install cable or fiber and is engaged in the business of making available for purchase,
by Subscribers, multiple Channels of video programmingin the City.
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SECTION 2
FRANCHISE
Grant of Franchise
2.1.
(a)The City hereby authorizes Grantee to occupy or use the City’s Streets
subject to:1) the provisions of this non-exclusive Franchise to provide Cable Service
within the City; and 2) all applicable provisions of the City Code. Said Franchise shall
constitute both a right and an obligation to provide Cable Services as required by the
provisions of this Franchise. Nothing in this Franchise shall be construed to prohibit
Grantee from: (1) providing services other than Cable Services to the extent not
prohibited by Applicable Law; or (2) challenging any exercise of the City’s legislative or
regulatory authority in an appropriate forum. The City hereby reserves all of its rights to
regulate such other services to the extent not prohibited by Applicable Law and no
provision herein shall be construed to limit or give up any right to regulate.
(b)Grantee promises and guarantees, as a condition of exercising the
privileges granted by this Franchise, that any Affiliated Entity of the Grantee involved in
the offering of Cable Service in the City, or directly involved in the ownership,
management or operation of the Cable System in the City, shall also comply with all
obligations of this Franchise. However, the City and Grantee acknowledge that QC will
be primarily responsible for the construction and installation of the facilities in the
Rights-of-Waywhich will be utilized by Grantee to provide Cable Services. So long as
QC does not provide Cable Service to Subscribers in the City, QC will not be subject to
the terms and conditions contained in this Franchise. QC’s installation and maintenance
of facilities in the Rights-of-Way is governed by applicable local, state and federal law.
To the extent Grantee constructs and installs facilities in the Rights-of-Way, such
installation will be subject to the terms and conditions contained in this Franchise.
Grantee is responsible for all provisions in this Franchise related to: 1) its offering of
Cable Services in the City; and 2) the operation of the Cable System regardless of what
entity owns or constructs the facilities used to provide the Cable Service.The City and
Grantee agree that to the extent QC violates any applicable federal, state, or local laws,
rules, and regulations, the City shall first seek compliance directly from QC. In the event
the City cannot resolve these violations or disputes withQC, then the City may look to
Grantee to ensure such compliance. Failure by Grantee to ensure QC’s or any other
Affiliate’s compliance with Applicable Laws, rules, and regulations, shall be deemed a
material breach of this Franchise by Grantee.
Reservation of Authority.
2.2The Grantee specifically agrees to comply with the
lawful provisions of the City Code and applicable regulations of the City. Subject to the police
power exception below, in the event of a conflict between A) the lawful provisions of theCity
Code or applicable regulations of the City and B) this Franchise, the express provisions of this
Franchise shall govern.Subject to express federal and state preemption, the material terms and
conditions contained in this Franchise may not be unilaterally altered by the City through
subsequent amendments to the City Code, ordinances or any regulation of City, except in the
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lawful exercise of City’s police power. Grantee acknowledges that the City may modify its
regulatory policies by lawful exerciseof the City’s police powers throughout the term of this
Franchise. Grantee agrees to comply with such lawful modifications to the City Code; however,
Grantee reserves all rights it may have to challenge such modifications to the City Code whether
arisingin contract or at law. The City reserves all of its rights and defenses to such challenges
whether arising in contract or at law.Nothing in this Franchise shall (A) abrogate the right of the
Cityto perform any public works or public improvements of any description, (B) be construed as
a waiver of any codes or ordinances of general applicability promulgated by the City, or (C) be
construed as a waiver or release of the rights of the Cityin and to the Streets.
Franchise Term
2.3.This Franchise shall be in effect for a term of five (5) years
from the date of acceptance by Grantee, unless terminated sooner as hereinafter provided. Six
(6) months prior to the expiration of the initial five (5) year term, if City determines that Grantee
is in compliance with all other material terms of this Franchise including the build out
obligations set forth in this Franchise as required by Applicable Law, the City shall have the
unilateral right to extend the Franchise for an additional term of no less than five (5) years and no
more than ten (10) years.
Franchise Area
2.4.The Grantee is hereby authorized to provide Cable Services over
a Cable System within the jurisdictional boundaries of the City, including any areas annexed by
the City during theterm of this Franchise. The parties acknowledge that Grantee is not the first
entrant into the wireline video market in the City. The Grantee acknowledges that the City
desires wireline competition throughout the entire City so all residents may receivethe benefits
of competitive Cable Services. Grantee aspires to provide Cable Service to all households within
the City by the end of the five year (5) term of this Franchise. Grantee agrees that its deployment
of Cable Service in the City will be geographically dispersed throughout the City, and shall be
made available to diverse residential neighborhoods of the City without discrimination.
Franchise Nonexclusive
2.5. The Franchise granted herein shall be nonexclusive.
The City specifically reserves the right to grant, at any time, such additional franchises for a
Cable System as it deems appropriate provided, however, such additional grants shall not operate
to materially modify, revoke, or terminate any rights previously granted to Grantee other than as
described in Section 17.17. The grant of any additional franchise shall not of itself be deemed to
constitute a modification, revocation, or termination of rights previously granted to Grantee.
Any additional cable franchise grants shall comply with Minn. Stat. Section 238.08 and any
other applicable federal level playing field requirements.
Build Out.
2.6
(a)Initial build out. No later than the second anniversary of the Effective
Date of this Franchise, Grantee shall be capable of serving a minimum of fifteen percent
(15%) of the City’s households with Cable Service; provided, however, Grantee will
make its best efforts to complete such deployment within a shorter period of time.
Grantee agrees that this initial minimum build-out commitment shall include a significant
number of households below the median income in the City. City shall, upon written
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request of Grantee, provide detailed maps of such areas. Nothing in this Franchise shall
restrict Grantee from serving additional households in the City with Cable Service.
(b)Quarterly Meetings. In order to permit the Commission to monitor and
enforce the provisions of this section and other provisions of this Franchise, the Grantee
shall, upon demand, promptly make availableto the Commission maps and other
documentation showing exactly where within the City the Grantee is currently providing
Cable Service. Grantee shall meet with the Commission, not less than once quarterly, to
demonstrate Grantee’s compliance with the provisions of this section concerning the
deployment of Cable Services in the City including, by way of example, the provision of
this section in which Grantee commits that a significant portion of its initial investment
will be targeted to areas below the median income within the City, and the provisions of
this section that prohibit discrimination in the deployment of Cable Services. In order to
permit the Commission and the City to monitor and enforce the provisions of this section
and other provisions of this Franchise, the Grantee shall, commencingApril 15, 2016,
and continuing throughout the term of this Franchise, meet quarterly with the
Commission and make available tothe Commission the following information:
(i)The total number of Living Units throughouttheCity;
(ii)The geographic area within theCitywhere the Grantee is capable
of delivering Cable Service through either a FTTH or FTTN method of service
deliverywhich shall include sufficient detail to allow the City to determine the
availability of Cable Services at commercially-zoned parcels;
(iii)The actual numberof Qualified Living Unitscapable of receiving
Cable Service from Grantee through FTTH and FTTN; and
(iv)Alist of the public buildings and educational institutions capable
of receiving Cable Service from the Grantee (see list attached hereto as Exhibit
A).
(c)Additional buildout based on Market Success. If, at any quarterly
meeting, including any quarterly meeting prior to the second anniversary of the Effective
Date of this Franchise as referenced in Section 2.6(a) herein, Grantee is actually serving
twenty seven and one-half percent (27.5%) of the households capable of receiving Cable
Service, then Grantee agrees the minimum build-out commitment shall increase to
include all of the households then capable of receiving Cable Service plus an additional
fifteen (15%) of the total households in the City, which Grantee agrees to serve within
two (2) years from the quarterly meeting; provided, however, the Grantee shall make its
best efforts to complete such deployment within a shorter period of time. For example,
if, at a quarterly meeting with the Commission, Grantee shows that it is capable of
serving sixty percent (60%) of the households in the City with Cable Service and is
actually serving thirty percent (30%) of those households with Cable Service, then
Grantee will agree to serve an additional fifteen percent (15%) of the total households in
the City no later than two (2) years after that quarterly meeting (a total of seventy-five
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percent (75%) of the total households). This additional build-out based on market
success shall continue until every household in the City is served.
(d)Nondiscrimination. Grantee shall provide Cable Service under non-
discriminatory rates and reasonable terms and conditions to all Subscribers who reside in
Living Unitsin any location where the Grantee is capable of providing Cable Service.
Grantee shall not arbitrarily refuse to provide Cable Services to any Person or in any
location where the Grantee is capable of providing Cable Service. Any Qualified Living
Unit should also include Commercially-Zoned Parcels. “Commercially-Zoned Parcels”
mean any Street address or municipally identified lot or parcel of real estate with a
building. Grantee shall not deny Cable Services to any group of Subscribers or potential
residential Subscribers based upon the income level of residents of the local area in which
such group resides, nor shall Grantee base decisions about construction or maintenance of
its Cable System or facilities based upon the income level of residents of the local area in
which such group resides. Grantee shall provide such service at non-discriminatory
monthly rates for residential Subscribers, consistent with Applicable Law. Grantee shall
not discriminate between or among any individuals in the availability of Cable Service
based upon income in accordance and consistent with 47 U.S.C. Section 541(a)(3), or
based upon race or ethnicity.
(e)Standard Installation. Grantee shall provide Cable Services at its standard
installation within seven (7) days of a request by any Person in a Qualified Living Unit.
A request shall be deemed made on the date of signing a service agreement, receipt of
funds by Grantee or receipt by Grantee of a verified verbal or written request.
(f)Multiple Dwelling Units.The Grantee shall offer the individual units of a
multiple dwelling unit all Cable Services offered to other Dwelling Units in the City.
Grantee shall, upon request,individually wire units upon request of the property owner or
renter who has been given written authorization by the owner. Such offering is
conditioned upon the Grantee having legal access to said unitand any payment (for
Grantee’s reasonable costs of internal wiring) as applicable. The City acknowledges that
the Grantee cannot control the dissemination of particular Cable Services beyond the
point of demarcation at a multiple dwelling unit.
Periodic Public Review of Franchise
2.7.Within sixty (60) Days of the third
anniversary of the Effective Date of this Franchiseor third annual anniversary of any extension
of the Franchise term, the City may conduct a public review of the Franchise. The purpose of
any such review shall be to ensure, with the benefit of full opportunity for public comment, that
the Granteecontinues to effectively serve the public in the light of new developments in cable
law and regulation, cable technology, cable company performance with the requirements of this
Franchise, local regulatory environment, community needs and interests, and other such factors.
Both the City and Granteeagree to make a full and good faith effort to participate in the review.
So long as Grantee receives reasonable notice, Grantee shall participate in the review process
and shall fully cooperate. The review shall not operate to modify or change any provision of this
Franchise without mutual written consent in accordance with Section 17.6 of this Franchise.
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Transfer of Ownership
2.8.
(a)No sale, transfer, assignment or “fundamental corporate change”, as
defined in Minn. Stat. § 238.083, of this Franchise shall take place until the parties to the
sale, transfer, or fundamental corporate change files a written request with City for its
approval, provided, however, that said approval shall not be required where Grantee
grants a security interest in its Franchiseand assets to secure an indebtedness.
(b)City shall have thirty (30) Days from the time of the request to reply in
writing and indicate approval of the request or its determination that a public hearing is
necessary due to potential adverse affect on Grantee’s Subscribers resulting from the sale
or transfer. Such approval or determination shall be expressed in writing within thirty
(30) Days of receipt of said request, or the request shall be deemed approved as a matter
of law.
(c)If a public hearing is deemed necessary pursuant to (b) above, such
hearing shall be commenced within thirty (30) Days of such determination and notice of
any such hearing shall be given in accordance with local law or fourteen (14) Days prior
to the hearing by publishing notice thereof once in a newspaper of general circulation in
City. The notice shall contain the date, time and place of the hearing and shall briefly
state the substance of the action to be considered by City.
(d)Within thirty (30) Days after the closing of the public hearing, City shall
approve or deny in writing the sale or transfer request. City shall set forth in writing with
particularity its reason(s) for denying approval. City shall not unreasonably withhold its
approval.
(e)The parties to the sale or transfer of the Franchise only, without the
inclusion of the System in which substantial construction has commenced, shall establish
that the sale or transfer of only the Franchise will be in the public interest.
(f)Any sale or transfer of stock in Grantee so as to create a new controlling
interest in the System shall be subject to the requirements of this Section 2.8. The term
“controlling interest” as used herein is not limited to majority stock ownership, but
includes actual working control in whatever manner exercised.
(g)In no event shall a transfer or assignment of ownership or control be
approved without the transferee becoming a signatory to this Franchise and assuming all
rights and obligations thereunder, and assuming all other rights and obligations of the
transferor to the City.
(h)In the event of any proposed sale or assignment pursuant to paragraph (a)
of this section, City shall have the right of first refusal of any bona fide offer to purchase
only the Cable System. Bona fide offer, as used in this section, means anoffer received
by the Grantee which it intends to accept subject to City’s rights under this section. This
written offer must be conveyed to City along with the Grantee’s written acceptance of the
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offer contingent upon the rights of City provided for in this section. City shall be deemed
to have waived its rights under this paragraph (h) in the following circumstances:
(i)If it does not indicate to Grantee in writing, within thirty (30) Days
of notice of a proposed sale or assignment, 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)A transfer of the Franchise shall not include a transfer of ownership or
other interest in Grantee to the parent of Grantee or to another Affiliate of Grantee;
transfer of an interest in the Franchise or the rights held by Grantee under the Franchise
to the parent of Grantee or to another Affiliate of Grantee; any action which is the result
of a merger of the parent of Grantee; or any action which is the result of a merger of
another Affiliate of Grantee. Nothing in this Section 2.8 (i) shall be read to serve as a
waiver of Grantee’s obligation to obtain the City’s advance written consent to any
proposed transfer that constitutes a change in the“controlling interest” of the Grantee as
set forth in 2.8 (f) herein and Minn. Stat. Section 238.083.
Expiration
2.9. Upon expiration of the Franchise, the City shall have the right at its
own election and subject to Grantee’s rights under Section 626 of the Cable Act to:
(a)extend the Franchise, though nothing in this provision shall be construed
to require such extension;
(b)renew the Franchise, in accordance with Applicable Laws;
(c)invite additional franchise applications or proposals;
(d)terminate the Franchise subject to any rights Grantee has under Section
626 of the Cable Act; or
(e)take such other action as the City deems appropriate.
Right to Require Removal of Property
2.10. At the expiration of the term for which
the Franchise is granted provided no renewal is granted, or upon its forfeiture or revocation as
provided for herein, the City shall have the right to require Grantee to remove at Grantee’s own
expense all or any part of the Cable System, used exclusively to provide Cable Service, from all
Streets and public ways within the Franchise Area within a reasonable time. If Grantee fails to
do so, the City may perform the work and collect the cost thereof from Grantee.
Continuity of Service Mandatory
2.11. It shall be the right of all Subscribers to
receive all availableservices insofar as their financial and other obligations to Grantee are
honored. In the event that Grantee elects to overbuild, rebuild, modify, or sell the system, or the
City revokes or fails to renew the Franchise, Grantee shall make its best effort to ensure that all
Subscribers receive continuous uninterrupted service, regardless of the circumstances, during the
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lifetime of the Franchise. In the event of expiration, purchase, lease-purchase, condemnation,
acquisition, taking over or holding of plant and equipment, sale, lease, or other transfer to any
other Person, including any other grantee of a cable communications franchise, the current
Grantee shall cooperate fully to operate the system in accordance with the terms and conditions
of this Franchise for a temporary period sufficient in length to maintain continuity of service to
all Subscribers.
SECTION 3
OPERATION IN STREETSAND RIGHTS-OF-WAY
Use of Streets.
3.1
(a)Grantee may, subject to the terms of this Franchise, erect, install,
construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and
along the Streets within the City such lines, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, pedestals, attachments and other property and
equipment as are necessary and appurtenant to the operation of a Cable System within the
City. Without limiting the foregoing and subject to Section 2.1(b) herein, Grantee
expressly agrees that it will construct, operate and maintain its Cable System in
compliance with, and subject to, the requirements of the City Code, including by way of
example and not limitation, those requirements governing the placement of Grantee’s
Cable System; and with other applicable CityCodes, and will obtain and maintain all
permits and bonds required by the City Code in addition to those required in this
Franchise.
(b)All wires, conduits, cable and other property and facilities of Grantee shall
be so located, constructed, installed and maintained as not to endanger or unnecessarily
interfere with the usual and customary trade, traffic and travel upon, or other use of, the
Streets of City. Grantee shall keep and maintain all of its property in good condition,
order and repair so that the same shall not menace or endanger the life or property of any
Person. Grantee shall keep accurate maps and records of all of its wires, conduits, cables
and other property and facilities located, constructed and maintained in the City.
(c)All wires, conduits, cables and other property and facilities of Grantee,
shall be constructed and installed in an orderly and workmanlike manner. All wires,
conduits and cables shall be installed, where possible, parallel with electric and telephone
lines. Multiple cable configurations shall be arranged in parallel and bundled with due
respect for engineering considerations.
Construction or Alteration
3.2. Subject to Section 2.1(b) herein, Grantee shall in all
cases comply with the City Code, City resolutions and City regulations regarding the acquisition
of permits and/or such other items as may be reasonably required in order to construct, alter or
maintain the Cable System. Grantee shall, upon request, provide information to the City
regarding its progress in completing or altering the Cable System.
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Non-Interference
3.3. Grantee shall exert its best efforts to construct and maintain a
Cable System so as not to interfere with other use of Streets. Grantee shall, where possible in the
case of above ground lines, make use of existing poles and other facilities available to Grantee.
When residents receiving underground service or who will be receiving underground service will
be affected by proposed construction or alteration, Grantee shall provide suchnotice as set forth
in the permit or in City Code of the same to such affected residents.
Consistency with Designated Use
3.4. Notwithstanding the above grant to use
Streets, no Street shall be used by Grantee if the City, in its sole opinion, determines thatsuch
use is inconsistent with the terms, conditions or provisions by which such Street was created or
dedicated, or presently used under Applicable Laws.
Undergrounding
3.5. Grantee shall place underground all of its transmission lines
which are located or are to be located above or within the Streets of the City in the following
cases:
(a)all other existing utilities are required to be placed underground by statute,
resolution, policy or other Applicable Law;
(b)Grantee is unable to get pole clearance;
(c)underground easements are obtained from developers of new residential
areas; or
(d)utilities are overhead but residents prefer underground (service provided at
cost).
If an ordinance is passed which involves placing underground certain utilities including
Grantee’s cable plant which is then located overhead, Grantee shall participate in such
underground project and shall remove poles, cables and overhead wires if requested to do so and
place facilities underground.Nothing herein shall mandate that City provide reimbursement to
Grantee for the costs of such relocation and removal. However, if the City makesavailable
funds for the cost of placing facilities underground, nothing herein shall preclude the Grantee
from participating in such funding to the extent consistentwith the City Code or Applicable
Laws.
Grantee shall use conduit or its functional equivalent to the greatest extent possible for
undergrounding, except for Drops from pedestals to Subscribers’ homes and for cable on other
private property where the owner requests that conduit not be used. Cable and conduit shall be
utilized which meets the highest industry standards for electronic performance and resistance to
interference or damage from environmental factors. Grantee shall use, in conjunction with other
utility companies or providers, common trenches for underground construction wherever
available.
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Maintenance and Restoration
3.6.
(a)Restoration. In case of disturbance of any Street, public way, paved area
or public improvement by Grantee, Grantee shall, at its own cost and expense and in
accordance with the requirements of Applicable Law, restore such Street, public way,
paved area or public improvement to substantially the same condition as existed before
the work involving such disturbance took place. All restoration occurring in private
easements or on other private property shall be performed in accordance with the City
Code. Grantee shall perform all restoration work within a reasonable time and with due
regard to seasonal working conditions. If Grantee fails, neglects or refuses to make
restorations as required under this section, then the City may do such work or cause it to
be done, and the cost thereof to the City shall be paid by Grantee. If Grantee causes any
damage to private property in the process of restoring facilities, Grantee shall repair such
damage.
(b)Maintenance. Grantee shall maintain all above ground improvements that
it places on City right-of-way pursuant to theCity Code and any permit issued by the
City. In order to avoid interference with the City’s ability to maintain the right-of-way,
Grantee shall provide such clearance as is required by the City Code and any permit
issued by the City. If Grantee fails to comply with this provision and by its failure
property is damaged, Granteeshall be responsible for all damages caused thereby.
(c)Disputes. In any dispute over the adequacy of restoration or maintenance
relative to this section, final determination shall be the prerogative of the City,
Department of Public Works and consistent with the City Code and any permit issued by
the City.
Work on Private Property
3.7. Grantee, with the consent of property owners, shall
have the authority, pursuant to the City Code, to trim trees upon and overhanging Streets, alleys,
sidewalks, and public ways so as to prevent the branches of such trees from coming in contact
with the wires and cables of Grantee, except that at the option of the City, such trimming may be
done by it or under its supervision and direction at the reasonable expense of Grantee.
Relocation
3.8.
(a)City Property. If, during the term of the Franchise, the City or any
government entity elects or requires a third party to alter, repair, realign, abandon,
improve, vacate, reroute or change the grade of any Street, public way or other public
property; or to construct, maintain or repair any public improvement; or to replace, repair
install, maintain, or otherwise alter any cable, wire conduit, pipe, line, pole, wire-holding
structure, structure, or other facility, including a facility used for theprovision of utility
or other services or transportation of drainage, sewage or other liquids, for any public
purpose, Grantee shall, upon request, except as otherwise hereinafter provided, at its sole
expense remove or relocate as necessary its poles, wires, cables, underground conduits,
vaults, pedestals, manholes and any other facilities which it has installed. Nothing herein
shall mandate that City provide reimbursement to Grantee for the costs of such relocation
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and removal. However, if the City makesavailable funds for the cost of placing facilities
underground, nothing herein shall preclude the Grantee from participating in such
funding to the extent consistent with the City Code or Applicable Laws.
(b)Utilities and Other Franchisees. If, during the term of the Franchise,
another entity which holds a franchise or any utility requests Grantee to remove or
relocate such facilities to accommodate the construction, maintenance or repair of the
requesting party’s facilities, or their more efficient use, orto “make ready” the requesting
party’s facilities for use by others, or because Grantee is using a facility which the
requesting party has a right or duty to remove, Grantee shall do so. The companies
involved may decide among themselves who is to bear the cost of removal or relocation,
pursuant to City Code, and provided that the City shall not be liable for such costs.
(c)Notice to Remove or Relocate. Any Person requesting Grantee to remove
or relocate its facilities shall give Grantee no less than forty-five (45) Days’ advance
written notice to Grantee advising Grantee of the date or dates removal or relocation is to
be undertaken; provided, that no advance written notice shall be required in emergencies
or in cases where public health and safety or property is endangered.
(d)Failure by Grantee to Remove or Relocate. If Grantee fails, neglects or
refuses to remove or relocate its facilities as directed by the City; or in emergencies or
where public health and safety or property is endangered, the City may dosuch work or
cause it to be done, and the cost thereof to the City shall be paid by Grantee. If Grantee
fails, neglects or refuses to remove or relocate its facilities as directed by another
franchisee or utility, that franchisee or utility may do such work or cause it to be done,
and if Grantee would have been liable for the cost of performing such work, the cost
thereof to the party performing the work or having the work performed shall be paid by
Grantee.
(e)Procedure for Removal of Cable. Grantee shall not remove any
underground cable or conduit which requires trenching or other opening of the Streets
along the extension of cable to be removed, except as hereinafter provided. Grantee may
remove any underground cable from the Streets which has been installed in such a
manner that it can be removed without trenching or other opening of the Streets along the
extension of cable to be removed. Subject to Applicable Law, Grantee shall remove, at
its sole cost and expense, any underground cable or conduit by trenching or opening of
the Streets along the extension thereof or otherwise which is ordered to be removed by
the City based upon a determination, in the sole discretion of the City, that removal is
required in order to eliminate or prevent a hazardous condition. Underground cable and
conduit in the Streets which is not removed shall be deemed abandoned and title thereto
shall be vested in the City.
(f)Movement of Buildings. Grantee shall, upon request by any Person
holding a building moving permit, franchise or other approval issued by the City,
temporarily remove, raise or lower its wire to permit the movement of buildings. The
expense of such removal, raising or lowering shall be paid by the Person requesting same,
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and Grantee shall be authorized to require such payment in advance. The City shall
require all building movers to provide not less than fifteen (15) Days’ notice to the cable
company to arrange for such temporary wire changes.
SECTION 4
REMOVAL OR ABANDONMENT OF SYSTEM
Removal of Cable System
4.1. In the event that: (l) the use of the Cable System is
discontinued for any reason for a continuous period of twelve (12) months; or (2) the Cable
System has been installed in a Street without complying with the requirements of this Franchise,
Grantee, at its expense shall, at the demand of the City remove promptly from the Streets all of
the Cable System, used only to provide Cable Service, other than any which the City may permit
to be abandoned in place. In the event of any such removal Grantee shall promptly restore to a
condition as nearly as possible to its prior condition the Street or other public places in the City
from which the System has been removed.
Abandonment of Cable System
4.2.In the event of Grantee’s abandonment of the
Cable System, used only to provide Cable Service,City shall have the right to require Grantee to
conform to the state right-of-way rules, Minn. Rules, Chapter 7819.The Cable System to be
abandoned in place shall be abandoned in the manner prescribed by the City. Grantee may not
abandon any portion of the System without having first given three (3) months written notice to
the City. Grantee may not abandon any portion of the System without compensating the City for
damages resulting from the abandonment.
Removal after Abandonmentor Termination
4.3.If Grantee has failed to
commence removal of System, used only to provide Cable Service, or such part thereof as was
designated by City, within thirty (30) days after written notice of City’s demand for removal
consistent with Minn. Rules, Ch. 7819, is given, or if Grantee has failed to complete such
removal within twelve (12) months after written notice of City’s demand for removal is given,
City shall have the right to apply funds secured by the letter of credit and performance bond
toward removal and/or declare all right, title, and interest to the Cable System to be in City with
all rights of ownership including, but not limited to, the right to operate the Cable System or
transfer the Cable System to another for operation by it.
City Options for Failure to Remove Cable System
4.4. If Grantee has failed to
complete such removal within the time given after written notice of the City’s demand for
removal is given, the City shall have the right to exercise one of the following options:
(a)Declare all right, title and interest to the System, used only to provide
Cable Service, to be in the City or its designee with all rights of ownership including, but
not limited to, the right to operate the System or transfer the System to another for
operation by it; or
(b)Declare the System abandoned and cause the System, if used only to
provide Cable Service, or such part thereof as the City shall designate, to be removed at
no cost to the City. The cost of said removal shall be recoverable from the security fund,
indemnity and penalty section provided for in this Franchise or from Grantee directly.
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(c)Upon termination of service to any Subscriber, Grantee shall promptly
remove all its facilities and equipment from within the dwelling of a Subscriber who
owns such dwelling upon his or her written request, except as provided by Applicable
Law. Such Subscribers shall be responsible for any costs incurred by Grantee in
removing the facilities and equipment.
System Construction and Equipment Standards
4.5. The Cable System shall be
installed and maintained in accordance with standard good engineering practices and shall
conform, when applicable, with the National Electrical Safety Code, the National Electrical Code
and the FCC’s Rules and Regulations.
System Maps and Layout
4.6. To the extent not otherwise provided for in Section
2.6(b), Grantee, or an affiliate, shall maintain complete and accurate records, maps and diagrams
of the location of all its facilities usedto provide Cable Services and the Cable System
maintained by QC in the Streets and make them available to the City upon request.
SECTION 5
SYSTEM DESIGN AND CAPACITY
Availability of Signals and Equipment
5.1.
(a)The Cable System shall have a bandwidth capable of providing the
equivalent of a typical 750 MHz Cable System. Recognizing that the City has limited
authority under federal law to designate the technical method by which Grantee provides
Cable Service, as of the Effective Date of this Franchise, Grantee provides its Cable
Service utilizing two (2) different methods. First, using a PON platform, the Grantee
provides Cable Service to some Qualified Living Units by connecting fiber directly to the
household ("FTTP"). Second, the Grantee provides Cable Service to some Qualified
Living Units by deploying fiber further into the neighborhoods and using the existing
copper infrastructure to increase broadband speeds ("FTTN"). Generally speaking, when
Grantee deploys FTTN, households located within four thousand (4,000)cable feet of a
remote terminal shall receive broadband speeds capable of providing Cable Service. In
both the FTTP and FTTN footprint, a household receiving a minimum of 25Mbps
downstream willgenerally be capable of receiving Cable Service after Grantee performs
certain network grooming and conditioning.
(b)The Grantee shall comply with all FCC regulations regarding carriage of
digital and HDTV transmissions.
(c)Grantee agrees to maintain the Cable System in a manner consistent with,
or in excess of the specifications in Section 5.1 (a) and (b) throughout the term of the
Franchise with sufficient capability and technical quality to enable the implementation
and performance of all the requirements of this Franchise, including the exhibits hereto,
and in a manner which meets or exceeds FCC technical quality standards at 47 C.F.R. §
76 Subpart K, regardless of the particular format in which a signal is transmitted.
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Free Cable Service to Public Buildings
5.2.
(a)As part of its support for PEG use of the System, the Grantee shall provide
a free drop to the Subscriber network and free BasicCable Service and Expanded Basic
Cable Service to all of the sites listed on Exhibit A attached hereto, and to such other
public institutions as the City may reasonably request from time to time provided such
location is a Qualified Living Unit and not currently receiving service from another
provider. However, City may determine to disconnect the other cable provider and
require Grantee to meet the free service obligation, as determined in City’s sole
discretion.
(b)The Grantee is only required to provide a single free drop to the
Subscriber network, to a single outlet at a point within the location selected by that
location. However, the location may extend the drop to multiple outlets and receive free
Basic and Expanded Basic Cable Service at each outlet so long as such extension does
not result in any violations of applicable leakage standards which the Grantee is obligated
to meet. A location that wishes to install multiple outlets may do so itself, or may
contract with the Grantee to do so. Grantee shall provide up tothree (3) additional Set
Top Boxesto each new location free of charge so that the services can be received and
individually tuned by each receiver connected to the drop at a location. If an institution
physically moves locations, such institution may move existing Set Top Boxesto the new
locations with a free drop, and the moved Set Top Boxwill not count against the three (3)
additional Set Top Boxes. Grantee will replace and maintain Set Top Boxesit provides
or that it had provided as necessary so that locations may continue to view the free
services Grantee is required to provide. Provided such location is a Qualified Living Unit
and not currently receiving service from another provider. However, City may determine
to disconnect the other cable provider and require Grantee to meet the free service
obligation, as determined in City’s sole discretion.
(c)Outlets of Basic and Expanded Basic Cable Service provided in
accordance with this section may be used to distribute Cable Services throughout such
buildings; provided such distribution can be accomplished without causing Cable System
disruption and general technicalstandards are maintained. Such outlets may only be used
for lawful purposes. Grantee agrees that if any broadband service is required in order to
receive the free service obligation set forth in this section, Grantee will provide such
broadband service free of charge for the sole purpose of facilitating the provision of free
Cable Service required by this section. Grantee agrees that it will not offset, deduct or
reduce its payment of past, present or future Franchise Fees required as a result of its
obligation to connections or services to public facilities.
System Specifications
5.3.
(a)System Maintenance. In all its construction and service provision
activities, Grantee shall meet or exceed the construction, technical performance,
extension and service requirements set forth in this Franchise.
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(b)Emergency Alert Capability. At all times during the term of this
Franchise, Grantee shall provide and maintain an Emergency Alert System (EAS)
consistent with applicable federal law and regulations including 47 C.F.R., Part 11, and
any Minnesota State Emergency Alert System requirements. The City may identify
authorized emergency officials for activating the EAS consistent with the Minnesota
State Emergency Statewide Plan (“EAS Plan”).The City may also develop alocal plan
containing methods of EAS message distribution, subject to Applicable Laws and the
EAS Plan. Nothing in this section is intended to expand Grantee’s obligations beyond
that which is required by the EAS Plan and Applicable Law.
(c)Standby Power. Grantee shall provide standby power generating capacity
at the Cable System control center. Grantee shall maintain standby power system
supplies, rated at least at two (2) hours’ duration, throughout the trunk and distribution
networks. In addition, Grantee shall have in place throughout the Franchise term a plan,
and all resources necessary for implementation of the plan, for dealing with outages of
more than two (2) hours.
(d)Technical Standards. The technical standards used in the operation of the
Cable System shall comply, at minimum, with the applicable technical standards
promulgated by the FCC relating to Cable Systems pursuant to Title 47, Section 76,
Subpart K of the Code of Federal Regulations, as may be amended or modified from time
to time, whichregulations are expressly incorporated herein by reference. The Cable
System shall be installed and maintained in accordance with standard good engineering
practices and shall conform with the National Electrical Safety Code and all other
Applicable Lawsgoverning the construction of the Cable System.
Performance Testing
5.4. Grantee shall perform all applicable system tests at the
intervals required by the FCC, and all other tests reasonably necessary to determine compliance
with technical standards requiredby this Franchise. These tests shall include, at a minimum:
(a)Initial proof of performance for any construction;
(b)Semi-annual compliance tests;
(c)Tests in response to Subscriber complaints;
(d)Tests requested by the City to demonstrate franchise compliance; and
(e)Written records of all system test results performed by or for Grantee shall
be maintained, and shall be available for City inspection upon request.
Special Testing
5.5.
(a)Throughout the term of this Franchise, City shall have the right to inspect
all construction or installation work performed pursuant to the provisions of the
Franchise. In addition, City may require special testing of a location or locations within
the System if there is a particular matter of controversy or unresolved complaints
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regarding such construction or installation work or pertaining to such location(s).
Demand for such special tests may be made on the basis of complaints received or other
evidence indicating an unresolved controversy or noncompliance. Such tests shall be
limited to the particular matter in controversy or unresolved complaints. City shall
endeavor to so arrange its request for such special testing so as to minimize hardship or
inconvenience to Grantee or to the Subscribers caused by such testing.
(b)Before ordering such tests, Grantee shall be afforded thirty (30) Days
following receipt of written notice to investigate and, if necessary, correct problems or
complaints upon which tests were ordered. City shall meet with Grantee prior to
requiring special tests to discuss the need for such and, if possible, visually inspect those
locations which are the focus of concern. If, after such meetings and inspections, City
wishes to commence special tests and the thirty (30) Days have elapsed without
correction of the matter in controversy or unresolved complaints, the tests shall be
conducted at Grantee’s expense by Grantee’s qualified engineer. The City shall have a
right to participate in such testing by having an engineer of City’s choosing, and at City’s
expense, observe andmonitor said testing.
SECTION 6
PROGRAMMING AND SERVICES
Categories of Programming Service
6.1. Grantee shall provide video programming
services in at least the following broad categories:
Local Broadcast (subject tofederal carriage requirements)
Public Broadcast
News and Information
Sports
General Entertainment
Arts/Performance/Humanities
Science/Technology
Children/Family/Seniors
Foreign Language/Ethnic Programming
Public, Educational and Governmental Access Programming (to the extent required by
the Franchise)
Movies
Leased Access
Changes in Programming Services
6.2. Grantee shall not delete or so limit as to
effectively delete any broad category of programming within its control without the City’s
consent. Further, Grantee shall provide at least thirty (30) Days’ prior written notice to
Subscribers and to the City of Grantee’s request to effectively delete any broad category of
programming or any Channel within its control, including all proposed changes in bandwidth or
Channel allocation and any assignments including any new equipment requirements that may
occur as a result of these changes.
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Parental Control Device
6.3. Upon request by any Subscriber, Grantee shall make
available for sale or lease a parental control or lockout device that will enable the Subscriber to
block all access to any and all Channels without affecting those not blocked. Grantee shall
inform Subscribers of the availability of the lockout device at the time of original subscription
and annually thereafter.
FCC Reports
6.4. The results of any tests required to be filed by Grantee with the
FCC shall also be copied to City within ten (10) Days of the conduct of the date of the tests.
Annexation
6.5. Unless otherwise provided by ApplicableLaw, including the City
Code, upon the annexation of any additional land area by City, the annexed area shall thereafter
be subject to all the terms of this Franchise upon sixty (60) Days written notification to Grantee
of the annexation by City. Unless otherwise required by Applicable Laws, nothing herein shall
require the Grantee to expand its Cable System to serve, or to offer Cable Service to any area
annexed by the City if such area is then served by another Wireline MVPD franchised to provide
multichannel video programming.
Line Extension
6.6.Grantee shall not have a line extension obligation until the first
date by which Grantee is providing Cable Service to more than fifty percent (50%) of all
Subscribers receiving facilities based Cable Service fromboth the Grantee and any other
provider(s) of Cable Service within the City. At that time, the City, in its reasonable discretion
and after meeting with Grantee, shall determine the timeframe to complete deployment to the
remaining households in the City, including a density requirement that is the same or similar to
the requirement of the incumbent franchised cable operator.
Nonvoice Return Capability
6.7. Grantee is required to use cable and associated
electronics having the technical capacity for nonvoicereturn communications.
SECTION 7
PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
Number of PEG Access Channels
7.1. Within one hundred eighty (180) days of the
Effective Date, Grantee will make available three (3) PEG Access Channels.
Digital and High Definition PEG Carriage Requirements.
7.2While the parties
recognize that while the primary signals of local broadcast stations are simulcast in standard
definition (“SD”) and high definition (“HD”) formats, the Grantee’s obligation with respect to
carriage of PEG in HD and SD formats shall be as follows:
(a)Grantee agrees to carry all PEG Access Channels in HD provided the
entity originating the signal provides the Grantee an HD signal. Further, Grantee will
downconvert any such signal to an SD format so that Subscribers who choose not to
subscribe to an HD package may receive said signal in an SD format.
(b)Grantee is not required to convert a signal delivered in a lower quality
format to a higher quality format. The City shall have no obligation to provide a signal to
the Grantee in a HD format.
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(c)All PEG Access Channels must be receivable by Subscribers without
special expense in addition to the expense paid to receive commercial services the
Subscriber receives. 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 Access Channels at that receiver,
without additional charges or equipment. By agreeing to make PEG available in HD
format, Grantee is not agreeing to provide free HD equipment to Subscribers including
complimentary municipal and educational accounts, or to modify its equipment or pricing
policies in any manner. City acknowledges that not every Subscriber may be able to
view HD PEG programming (for example, because they do not have an HDTV in their
home or have chosen not to take an HD-capable receiving device from Grantee or other
equipment provider) or on every television in the home.
(d)The Grantee, upon request of the City, will provide technical assistance or
diagnostic services to determine whether or not the problem with the PEG signals is the
result of matters for which the Grantee is responsible, and if so the Grantee will take
prompt corrective actions.
(e)The Grantee will provide any PEG Access Channels on the Basic Cable
Service tier throughout the life of the Franchise, or if there is no Basic Cable Service tier,
shall provide the PEG Access Channels to any Person who subscribes to any level of
cable video programming service, and otherwise in accordance with Applicable Laws.
To the extent technically feasible, Grantee shall, upon request from the City, provide City
with quarterly viewership numbers for each of the PEG Access Channels carried on
Grantee’s Cable System.
(f)Grantee shall facilitate carriage of PEG Access Channel program listings
on its interactive programming guide, at no cost to the City provided that the City shall
hold Grantee harmless should the City or PEG providers fail to provide correct or timely
information to the interactive guide programmers.
(g)If Channels are selected through menu systems, the PEG Access Channels
shall be displayed in the same manner as other Channels, and with equivalent information
regarding the programming on the Channel. To the extent that any menu system is
controlled by a third party, Grantee shall ensure that the Grantee will provide PEG
listings on that menu system, if it is provided with the programming information by the
City.
Control of PEG Channels
7.3. The control and administration of the Access
Channels shall rest with the City and the City may delegate, from time to time over the term of
this Franchise, such control and administration to various entities as determined in City’s sole
discretion.
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Transmission of Access Channels
7.4. Access Channels may be used for
transmission of non-video signals in compliance with Applicable Laws. This may include
downstream transmission of data using a protocol such as TCP/IP or current industry standards.
Should Grantee develop the capability to provide bi-directional data transmission, spectrum
capacity shall be sufficient to allow Subscribers to transmit data to PEG facilities.
Access Channel Locations
7.5.
(a)Granteeshall provide the City’s government access channel in both HD
and SD. The government access channel will be located on Channel 237 and shall at all
times be located in the Channel neighborhood offering news/public affairs programming
on Grantee’s Cable System channel lineup. The government access channel shall have
video and audio signal strength, signal quality, and functionality equivalent to the highest
quality broadcast and commercial cable/satellite Channels carried by the Granteeon its
Cable System.
(i)Granteeshall carry the remaining public and educational Channels
(PE Channels) on Channel 26in its Channel lineup as a means to provide ease of
access by Subscribers to the group of PEChannels placed consecutively on
Channel numbers significantly higher in the Channel lineup. This use of one (1)
Channel to access the group of PEChannels required under this Franchise shall be
referred to as a “Mosaic Channel.” The Mosaic Channel shall display the group
of PEChannels on a single Channel screen and serve as a navigation tool for
Subscribers. The Mosaic Channel shall allow Subscribers to navigate directly
from Channel26to any of the PEChannels requested in a single operation
without any intermediate steps to a chosen PEChannel in the group.
(ii)Granteeshalluse Channel26as a Mosaic Channel to access the PE
Channels required under this Franchise. The group of consecutive PE channels
residing at higher Channel numbers will retain Channel names and identity for
marketing purposes, unless approved by the City. Granteeshall not include any
other programming or Channels on the Commission’s PE Mosaic Channel unless
the Cityprovides advance written consent.
(iii)When using the Mosaic Channel, Subscribers shall be directed to
the requested PE Channel in anHD format if appropriate to the Subscriber’s level
of service; otherwise, the Subscriber shall be directed to the SD PE Channel.The
Mosaic Channel mechanism shall allow Subscribers to navigate directly from
Channel26to the requested Commission Access Channels which shall belocated
on Channel numbers8110 (educational access) and 8111(public access).
(iv)Granteeshall consult with the City(or City’s designee) to
determine the PE Channel information displayed on the Mosaic Channel.
However, the information shall have video and audio signal strength, signal
quality, and functionality equivalent to the highest quality broadcast and
commercial cable/satellite channels carried by the Granteeon its Cable Systemin
a Mosaic format.
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(v)The Mosaic Channel assigned for use by the City shall be used to
navigate to the group of CityPEChannels and will be placed nearother PEG
Mosaic Channels
(vi)If through technology changes or innovation in the future, the
Granteediscontinues the use of Mosaic presentations,then Granteeshall provide
the PE Channels to Subscribers at equivalent visual and audio quality and
equivalent functionality as Granteedelivers the highest quality broadcast stations
and highest quality commercial cable/satellite channels on its Cable System with
no degradation.
(b)The Grantee shall not charge for use of the PEG Access Channels,
equipment, facilities or services.
(c)In no event shall any Access Channel reallocations be made prior to ninety
(90) Days written notice to the City by Grantee, except for circumstances beyond
Grantee’s reasonable control. The Access Channels will be located within reasonable
proximity to other commercial video or broadcast Channels, excluding pay-per-view
programming offered by Grantee in the City.
(d)Grantee agrees not to encrypt the Access Channels differently than other
commercial Channels available on the Cable System.
(e)In conjunction with any occurrence of any Access Channel(s) relocation,
as may be permitted by this Franchise, Grantee shall provide a minimum of Nine
Thousand Dollars ($9,000) of in-kind air time per event on advertiser supported Channels
(e.g. USA, TNT, TBS, Discovery Channel, or other comparable Channels) for the
purpose of airing City’s, or its designees’, pre-produced thirty (30) second announcement
explaining the change in location, or if Grantee does not have air time capabilities a
mutually agreed equivalent shall be provided.
Navigation to Access Channels
7.6. Grantee agrees that if it utilizes a visual
interface under its control on its Cable System for all Channels, the Access Channels shall be
treated in a non-discriminatory fashion consistent with Applicable Laws so that Subscribers will
have ready access to Access Channels. This shall not be construed to require Grantee to pay any
third party fees that may result from this obligation.
Ownership of Access Channels
7.7. Grantee does not relinquish its ownership of or
ultimate right of control over a Channel by designating it for PEG use. A PEG access user –
whether an individual, educational or governmental user –acquires no property or other interest
by virtue of the use of a Channel position so designated. Grantee shall not exercise editorial
control over any public, educational, or governmental use of a Channelposition, except Grantee
may refuse to transmit any public access program or portion of a public access program that
contains obscenity, indecency, or nudity in violation of Applicable Law.
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Noncommercial Use of PEG
7.8. Permitted noncommercial uses of the Access
Channels shall include by way of example and not limitation: (1) the identification of financial
supporters similar to what is provided on public broadcasting stations; or (2) the solicitation of
financial support for the provision of PEG programming by the City or third party users for
charitable, educational or governmental purposes; or (3) programming offered by accredited,
non-profit, educational institutions which may, for example, offer telecourses over a Access
Channel.
Dedicated Fiber Return Lines.
7.9
(a)Granteeshallprovide and maintain, free of charge with no transport costs
or other fees or costs imposed,a direct fiber connection and necessary equipment to
transmit PEG programming from the City Hall control room racks to the Grantee
headend (“PEG Origination Connection”).
(b)In addition to the PEG Origination Connection, the Grantee shall, free of
charge, construct a direct connection and necessary equipment to the programming
origination sitelocated at Edina City Hall where PEG programming is originated by the
Commission.
(c)Grantee shall at all times provide and maintain, free of charge, a drop to
the Cable System, required Set-Top Box and free Basic Cable Service and Expanded
Basic Service to the City Hall and the location from which PEG programming is
originated (currently the playback facility at the Edina City Hall), to allow these facilities
to view (live) the downstream PEGprogramming Channels on Grantee’s Cable System
so they can monitor the PEG signals and make certain that PEG programming is being
properly received (picture and sound) by Subscribers.
Interconnection.
7.10To the extent technically feasibleand permitted under
Applicable Laws, Grantee will allownecessary interconnection with any newly constructed City
and school fiber for noncommercial programming to be promoted and administered by the City
as allowed under Applicable Laws and at no additional cost to the City or schools.This may be
accomplished through a patch panel or other similar facility and each party will be responsible
for the fiber on their respective sides of the demarcation point. Grantee reserves its right to
review on a case-by-case basis the technical feasibility of the proposed interconnection. Based
on this review Grantee may condition the interconnection on the reasonable reimbursement of
Grantee’s incremental costs, with no markup for profit, to recoup Grantee’s construction costs
only. In no event will Grantee impose any type of recurring fee for said interconnection.
Ancillary Equipment.
7.11Any ancillary equipment operated by Granteefor the
benefit of PEG Access Channels onGrantee’sfiber paths or Cable System, whether referred to
switchers, routers or other equipment, willbe maintained by Grantee, at no cost to the City or
schoolsfor the lifeof the Franchise. Granteeis responsible for any ancillary equipment on its
side of the demarcation point and the City or school isresponsible for all other
production/playback equipment.
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Future Fiber Return Lines for PEG
7.12. At such time that the City determines:
(a)that the City desires the capacity to allow Subscribers in the City to
receive PEG programming (video or character generated) which may originate from
schools, City facilities, other government facilities or other designated facilities (other
than those indicated in paragraph 10); or
(b)that the City desires to establish or change a location from which PEG
programming is originated; or
(c)that the City desires to upgrade the Connection to Grantee from an
existing signal point of origination,
the City will give Grantee written notice detailing the point of origination and the capability
sought by the City. Grantee agrees to submit a cost estimate to implement the City’s plan within
st
a reasonable period of time but not later than September 1in the year preceding the request for
any costs exceeding Twenty-five Thousand and No/100 Dollars ($25,000). The cost estimate
will be on a time and materials basis with no additional markup. After an agreement to
reimburse Grantee for Grantee’s out of pocket time and material costs, Grantee will implement
any necessary Cable System changes within a reasonable period of time. Nothing herein
prevents the City, or a private contractor retained by the City, from constructing said return fiber.
Access Channel Carriage
7.13.
(a)Any and all costs associated with any modification of the Access Channels
or signals after the Access Channels/signals leave the City’s designated playback
facilities, or any designated playback center authorized by the City shall be borne entirely
by Grantee. Grantee shall not cause any programming to override PEG programming on
any Access Channel, except by oral or written permission from the City, with the
exception of emergency alert signals.
(b)The City may request and Grantee shall provide an additional Access
Channel when the cumulative time on all the existing Access Channels combined meets
the following standard: whenever one of the Access Channelsin use during eighty
percent(80%)of the weekdays, Monday through Friday, for eighty percent (80%)of the
time during a consecutive three(3) hour period for six (6) weeks running, and there is a
demand for use of an additional Channelfor the same purpose, the Granteehas six (6)
months in which to provide a new, Access Channel for the same purpose;provided that,
the provision of the additional Channelor Channels does not require the Cable System to
install Converters.
(c)The VHF spectrum shall be used for one (1) of the public, educational, or
governmental specially designated Access Channels.
(d)Subject to the terms of this Franchise, the City or its designee shall be
responsible for developing,implementing, interpreting and enforcing rules for PEG
Access Channel use.
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(e)The Grantee shall monitor the Access Channelsfor technical quality to
ensure that they meet FCC technical standards including those applicable to the carriage
of Access Channels, provided however, that the Grantee is not responsible for the
production quality of PEG programming productions. The City, or its designee, shall be
responsible for the production and quality of all PEG access programming. Grantee shall
carry all components of the standard definition of Access Channel including, but not
limited to, closed captioning, stereo audio and other elements associated with the
programming.
Access Channel Support
7.14.
(a)Upon the Effective Date of this Franchise, Granteeshall collect and remit
to the CitySixty cents (60¢)per Subscriberper month in support of PEG capital (“PEG
Fee”).
(b)On August 1, 2017, the City, at its discretion, and upon ninety (90) Days
advance written notice to Grantee, may require Granteeto increase the PEG Feeto Sixty-
five cents (65¢)per Subscriberper month for the remaining term of the Franchise.The
PEG Fee shall be used by City in its sole discretion to fund PEG access capital
expenditures. In no event shall the PEG Fee be assessed in an amount different from that
imposed upon the incumbent cable provider. In the event the incumbent cable provider
agrees to a higher or lower PEG Fee, Grantee will increase or decrease its PEG Fee upon
ninety (90) Days written notice from the City.
(c)The PEG Fee is not intended to represent part of the Franchise Fee and is
intended to fall within one (1) or more of the exceptions in 47 U.S.C. § 542. The PEG
Fee may be categorized, itemized, and passed through to Subscribers as permissible, in
accordance with 47 U.S.C. §542 or other Applicable Laws. Grantee shall pay the PEG
Fee to the City quarterly at the same time as the payment of Franchise Fees under Section
16.1 of the Franchise. Grantee agrees that it will not offset or reduce its payment of past,
present or future Franchise Fees required as a result of its obligation to remit the PEG
Fee.
(d)Any PEG Fee amounts owing pursuant to this Franchise which remain
unpaid more than twenty-five (25) Days after the date the payment is due shall be
delinquent and shall thereafter accrue interest at twelve percent (12%) per annum or the
prime lending rate published by the Wall Street Journal on the Day the payment was due
plus two percent (2%), whichever is greater.
PEG Technical Quality
7.15.
(a)Grantee shall not be required to carry a PEG Access Channel in a higher
quality format than that of the Channel Signal delivered to Grantee, but Grantee shall not
implement a change in the method of delivery of Access Channelsthat results in a
material degradation of signal quality or impairment of viewer reception of Access
Channels, provided that this requirement shall not prohibit Grantee from implementing
new technologies also utilized for commercial Channels carried on its Cable System.
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Grantee shallmeet FCC signal quality standards when offering Access Channelson its
Cable System and shall continue to comply with closed captioning pass-through
requirements.There shall be no significant deterioration in an Access Channelssignal
from the point of origination upstream to the point of reception downstream on the Cable
System.
(b)Within twenty-four (24) hours of a written request from City to the
Grantee identifying a technical problem with a Access Channel and requesting assistance,
Grantee will provide technical assistance or diagnostic services to determine whether or
not a problem with a PEG signal is the result of matters for which Grantee is responsible
and if so, Grantee will take prompt corrective action. If the problem persists and there is
a dispute about the cause, then the parties shall meet with engineering representation
from Grantee and the City in order to determine the course of action to remedy the
problem.
Access Channel Promotion
7.16. Grantee shall allow the City to print and mail a post
card for promoting a designated entity’s service or generally promoting community
programming to households in the City subscribing to Grantee’s Cable Service at a cost to the
City not to exceed Grantee’s out of pocket cost, no less frequently than twice per year, or at such
time as a Access Channel is moved or relocated, upon the written request of the City. The post
card shall be designed by the City and shall conform to the Grantee’s standards and policies for
size and weight. Any post card denigrating the Grantee, its service or its programming is not
permitted. The City agrees to pay Grantee in advance for the actual cost of such post card.
Change in Technology
7.17. In the event Grantee makes any change in the Cable
System and related equipment and facilities or in its signal delivery technology, which requires
the City to obtain new equipment in order to be compatible with such change forpurposes of
transport and delivery of the Access Channels, Grantee shall, at its own expense and free of
charge to City or its designated entities, purchase such equipment as may be necessary to
facilitate the cablecasting of the Access Channels in accordance with the requirements of the
Franchise.
Relocation of Grantee’s Headend
7.18. In the event Grantee relocates its headend,
Grantee will be responsible for replacing or restoring the existing dedicated fiber connections at
Grantee’s cost so that all the functions and capacity remain available, operate reliably and satisfy
all applicable technical standards and related obligations of the Franchise free of charge to the
City or its designated entities.
Regional Channel Six
7.19.Grantee shall make available Regional Channel Six as
long as it is required to do so by the State of Minnesota.
Government Access ChannelFunctionality
7.20. Grantee agrees to provide the
capability such that the City, from its City Hall, can switch its government Access Channel in the
following ways:
(a)Insert live Council meetings from City Hall;
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(b)Replay government access programming from City Hall; and
(c)Transmit character generated programming.
(d)Schedule for Grantee to replay City-provided tapes in pre-arranged time
slot on the government Access Channel; and
(e)Switch to other available programming where the City has legal authority.
Compliance with Minnesota Statutes Chapter 238
7.21. In addition to the
requirements contained in this Section 7 of this Franchise, Grantee and City shall comply with
the PEG requirements mandated by Minn. Stat. 238.084.
SECTION 8
REGULATORY PROVISIONS.
Intent
8.1. The City shall have the right to administer and regulate activities under the
Franchise up to the full extent permitted by Applicable Law.
Delegation of Authority to Regulate
8.2. The City reserves the right to delegate its
regulatory authority wholly or in part to agents of the City, including, but not limited to, an
agency which may be formed to regulate several franchises in the region in a manner consistent
with Applicable Laws. This may include but shall not be limited to the Commission or other
entity as City may determine in its sole discretion. Any existing delegation in place at the time
of the grant of this Franchise shall remain intact unless expressly modified by City.
Areas of Administrative Authority
8.3. In addition to any other regulatory authority
granted to the City by law or franchise, the City shall have administrative authority in the
following areas:
(a)Administering and enforcing the provisions of this Franchise, including
the adoption of administrative rules and regulations to carry out this responsibility.
(b)Coordinating the operation of Access Channels.
(c)Formulating and recommending long-range cable communications policy
for the Franchise Area.
(d)Disbursing and utilizing Franchise revenues paid to the City.
(e)Administering the regulation of rates, to the extent permitted by
Applicable Law.
(f)All other regulatory authority permitted under Applicable Law.
The City or its designee shall have continuing regulatory jurisdiction and supervision over the
System and the Grantee’s operationsunder the Franchise to the extent allowed by Applicable
Law.
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Regulation of Rates and Charges
8.4.
(a)Right to Regulate. The City reserves the right to regulate rates or charges
for any Cable Service within the limits of Applicable Law, to enforce rate regulations
prescribed by the FCC, and to establish procedures for said regulation or enforcement.
(b)Notice of Change in Rates and Charges. Throughout the term of this
Franchise, Grantee shall give the City and all Subscribers within the City at least thirty
(30) Days’ notice of any intended modifications or additions to Subscriber rates or
charges. Nothing in this Subsection shall be construed to prohibit the reduction or
waiving of rates or charges in conjunction with promotional campaigns for the purpose of
attracting Subscribers or users.
(c)Rate Discrimination Prohibited. Within any category of Subscribers,
Grantee shall not discriminate among Subscribers with regard to rates and charges made
for any service based on considerations of race, color, creed, sex, marital or economic
status, national origin, sexual preference, or (except as allowed by Applicable Law)
neighborhood of residence, except as otherwise provided herein; and for purposes of
setting rates and charges, no categorization of Subscribers shall be made by Grantee on
the basis of those considerations. Nevertheless, Grantee shall be permitted to establish (1)
discounted rates and charges for providing Cable Service to low-income, handicapped, or
low-income elderly Subscribers, (2) promotional rates, and (3) bulk rate and package
discount pricing.
SECTION 9
BOND.
Performance Bond
9.1. Upon the Effective Date of this Franchiseand at all times
thereafter Grantee shall maintain with City a bond in the sum of One Hundred Thousand Dollars
($100,000.00) in such form and with such sureties as shall be acceptable to City, conditioned
upon the faithful performance by Grantee of this Franchise and the acceptance hereof given by
City and upon the further condition that in the event Grantee shall fail to comply with any law,
ordinance or regulation, there shall be recoverable jointly and severally from the principal and
surety of the bond, any damages or losses suffered by City as a result, including the full amount
of any compensation, indemnification or cost of removal of any property of Grantee, including a
reasonable allowance for attorneys’ fees and costs (with interest at two percent(2%) in excess of
the then prime rate), up to the full amount of the bond, and which bond shall further guarantee
payment by Grantee of all claims and liens against City or any, public property, and taxes due to
City, which arise by reason of the construction, operation, maintenance or use of the Cable
System.The City shall provide Grantee reasonable advanced notice of not less than ten (10)
Days prior to any draw by the City on the performance bond required under this Section 9.
Rights
9.2. The rights reserved by City with respect to the bond arein addition to all
other rights the City may have under this Franchise or any other law.
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Reduction of Bond Amount
9.3. City may, in its sole discretion, reduce the amount
of the bond.
SECTION 10
SECURITY FUND
Security Fund
10.1.If there is an uncured breach by Grantee of a material provision of
this Franchise or a pattern of repeated violations of any provision(s) of this Franchise, then
Grantee shall, upon written request, establish and provide to the City, as security for the faithful
performance by Grantee of all of the provisions of this Franchise, a letter of credit from a
financial institution satisfactory to the City in the amount of Twenty Thousand and No/100
Dollars ($20,000.00). In no event shall Grantee fail to post a Twenty Thousand and No/100
Dollar ($20,000.00)letter of credit within thirty (30) days receipt of anotice of franchise
violation pursuant to this Section10.1. Failure to post said letter of credit shall constitute a
separate material violation of this Franchise, unless the breach is cured within such thirty (30)
Day period or longer period allowed under the Franchise.The letter of credit shall serve as a
common security fund for the faithful performance by Grantee of all the provisions of this
Franchise and compliance with all orders, permits and directions of the City and the payment by
Grantee of any claim, liens, costs, expenses and taxes due the City which arise by reason of the
construction, operation ormaintenance of the Cable System. Interest on this deposit shall be paid
to Grantee by the bank on an annual basis. The security may be terminated by the Grantee upon
the resolution of the alleged noncompliance. The obligation to establish the security fund
required by this paragraph is unconditional. The fundmust be established in those circumstances
where Grantee disputes the allegation that it is not in compliance, and maintained for the
duration of the dispute. If Grantee fails to establish the security fund as required, the City may
take whatever action is appropriate to require the establishment of that fund and may recover its
costs, reasonable attorneys’ fees, and an additional penalty of Two Thousand Dollars ($2,000) in
that action.
Withdrawal ofFunds
10.2. Provision shall be made to permit the City to withdraw
funds from the security fund. Grantee shall not use the security fund for other purposes and shall
not assign, pledge or otherwise use this security fund as security for any purpose.
Restoration of Funds
10.3. Within ten (10) Days after notice to it that any amount has
been withdrawn by the City from the security fund pursuant to 10.4of this section, Grantee shall
deposit a sum of money sufficient to restore such security fund to the required amount.
Liquidated Damages
10.4. In addition to recovery of any monies owed by Grantee to
City or damages to City as a result of any acts or omissions by Grantee pursuant to the Franchise,
City in its sole discretion may charge to and collect from the security fund the following
liquidated damages:
(a)For failure to provide data, documents, reports or information or to
cooperate with City during an application process or System review, the liquidated
damage shall be One Hundred Dollars ($100.00) per Day for each Day, or part thereof,
such failure occurs or continues.
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(b)For failure to comply with any of the provisions of this Franchise for
which a penalty is not otherwise specifically provided pursuant to this Paragraph 10.4,
the liquidated damage shall be One Hundred Fifty Dollars ($150.00) per Day for each
Day, or part thereof, such failure occurs or continues.
(c)For failure to test, analyze and report on the performance of the System
following a request by City, the liquidated damage shall be Two Hundred Fifty Dollars
($250.00) per Day for each Day, or part thereof, such failure occurs or continues.
(d)Forty-five Days following notice from City of a failure of Grantee to
comply with construction, operation or maintenance standards, the liquidated damage
shall be Two Hundred Dollars ($200.00) per Day for each Day, or part thereof, such
failure occurs or continues.
(e)For failure to provide the services Grantee has proposed, including but not
limited to the implementation and the utilization of the Access Channels the liquidated
damage shall be One Hundred Fifty ($150.00) per Day for each Day, or part thereof, such
failure occurs or continues.
Each Violation a Separate Violation
10.5. Each violation of any provision of this
Franchise shall be considered a separate violation for which separate liquidated damages can be
imposed.
Maximum 120 Days
10.6. Any liquidated damages for any given violation shall be
imposed upon Grantee for a maximum of one hundred twenty (120) Days. If after that amount
of time Grantee has not cured or commenced to cure the alleged breach to the satisfaction of the
City, the City may pursue all other remedies.
Withdrawal of Funds to Pay Taxes
10.7. If Grantee fails to pay to the City any taxes
dueand unpaid; or fails to repay to the City, any damages, costs or expenses which the City shall
be compelled to pay by reason of any act or default of the Grantee in connection with this
Franchise; or fails, after thirty (30) Days notice of such failure by the City to comply with any
provision of the Franchise which the City reasonably determines can be remedied by an
expenditure of the security, the City may then withdraw such funds from the security fund.
Payments are not Franchise Fees as defined in Section 16 of this Franchise.
Procedure for Draw on Security Fund
10.8. Whenever the City finds that Grantee
has allegedly violated one (1) or more terms, conditions or provisions of this Franchise, a written
notice shall be given to Grantee. The written notice shall describe in reasonable detail the alleged
violation so as to afford Grantee an opportunity to remedy the violation. Grantee shall have thirty
(30) Days subsequent to receipt of the notice in which to correct the violation before the City
may require Grantee to make payment of damages, and further to enforce payment of damages
through the security fund. Grantee may, within ten (10) Days of receipt of notice, notify the City
that there is a dispute as to whether a violation or failure has, in fact, occurred. Such notice by
Grantee shall specify with particularity the matters disputed by Grantee and shall stay the
running of the above-described time.
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(a)City shall hear Grantee’s dispute at the next regularly scheduled or
specially scheduled Council meeting. Grantee shall have the right to speak and introduce
evidence. The City shall determine if Grantee has committed a violation and shall make
written findings of fact relative to its determination. If a violation is found, Grantee may
petition for reconsideration.
(b)If after hearing the dispute, the claim is upheld by the City, then Grantee
shall have thirty (30) Days within which to remedy the violation before the City may
require payment of all liquidated damages due it.
Time for Correction of Violation
10.9. The time for Grantee to correct any alleged
violation may be extended by theCity if the necessary action to collect the alleged violation is of
such a nature or character as to require more than thirty (30) Days within which to perform
provided Grantee commences corrective action within fifteen (15) Days and thereafter uses
reasonable diligence, as determined by the City, to correct the violation.
Grantee’s Right to Pay Prior to Security Fund Draw
10.10. Grantee shall have the
opportunity to make prompt payment of any assessed liquidated damages and if Grantee fails to
promptly remit payment to the City, the City may resort to a draw from the security fund in
accordance with the terms of this Section 10 of the Franchise.
Failure to so Replenish Security Fund
10.11. If any security fund is not so replaced,
City may draw on said security fund for the whole amount thereof and hold the proceeds,
without interest, and use the proceeds to pay costs incurred by City in performing and paying for
any or all of the obligations, duties and responsibilities of Grantee under this Franchise that are
not performed or paid for by Grantee pursuant hereto, including attorneys’ fees incurred by the
City in so performing and paying. The failure to so replace any security fund may also, at the
option of City, be deemed a default by Grantee under this Franchise.The drawing on the
security fund by City, and use of the money so obtained for payment or performance of the
obligations, duties and responsibilities of Grantee which are in default, shall not be a waiver or
release of such default.
Collection of Funds Not Exclusive Remedy
10.12. The collection by City of any
damages or monies from the security fund shall not affect any other right or remedy available to
City, nor shall any act, or failure to act, by City pursuant to the security fund, be deemed a
waiver of any right of City pursuant to this Franchise or otherwise. Notwithstanding this section,
however, should the City elect to impose liquidated damages that remedy shall remain the City’s
exclusive remedy for the one hundred twenty (120) Day period set forth in Section 10.6.
SECTION 11
DEFAULT
Basis for Default
11.1. City shall give written notice of default to Grantee if City, in
its sole discretion, determines that Grantee has:
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(a)Violated any material provision of this Franchise or the acceptance hereto
or any rule, order, regulation or determination of the City, state or federal government,
not in conflict with this Franchise;
(b)Attempted to evade any provision of this Franchise or the acceptance
hereof;
(c)Practiced any fraud or deceit upon City or Subscribers; or
(d)Made a material misrepresentation of fact in the application for or
negotiation of this Franchise.
Default Procedure
11.2. If Grantee fails to cure such default within thirty (30) Days
after the giving of such notice (or if such default is of such a character as to require more than
thirty (30) Days within which to cure the same, and Grantee fails to commence to cure the same
within said thirty (30) Day period and thereafter fails to use reasonable diligence, in City’s sole
opinion, to cure such default as soon as possible), then, and in any event, such default shall be a
substantial breach and City may elect to terminate the Franchise. The City may place the issue of
revocation and termination of this Franchise before the governing body of City at a regular
meeting. If City decides there is cause or reason to terminate, the following procedure shall be
followed:
(a)City shall provide Grantee with a written notice of the reason or cause for
proposed termination and shall allow Grantee a minimum of thirty (30) Days subsequent
to receipt of the notice in which to correct the default.
(b)Grantee shall be provided with an opportunity to be heard at a public
hearing prior to any decision to terminate this Franchise.
(c)If, after notice is given and an opportunity to cure, at Grantee’s option, a
public hearing is held, and the City determines there was a violation, breach, failure,
refusal or neglect, the City may declare by resolution the Franchise revoked and of no
further force and effect unless there is compliance within such period as the City may fix,
such period may not be less than thirty (30) Days provided no opportunity for compliance
need be granted for fraud or misrepresentation.
Mediation
11.3.If the Grantee and City are unable to resolve a dispute through
informal negotiations during the period of thirty (30) Days following the submission of the claim
giving rise to the dispute by one (1) party to the other, then unless that claim has been waived as
provided in the Franchise, such claim maybe subject to mediation if jointly agreed upon by both
parties. Unless the Grantee and City mutually agree otherwise, such mediation shall be in
accordance with the rules of the American Arbitration Association currently in effect at the time
of the mediation. A party seeking mediation shall file a request for mediation with the other
party to the Franchise and with the American Arbitration Association. The request may be made
simultaneously with the filing of a complaint, but, in such event, mediation shall proceed in
advance of legal proceedings only if the other party agrees to participate in mediation. Mutually
agreed upon Mediation shall stayother enforcement remedies of the partiesfor a period of ninety
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(90) days from the date of filing, unless stayed for a longer period by agreement of the Grantee
and City. The Grantee and City shall each pay one-half of the mediator’s fee and any filing fees.
The mediation shall be held in the City unless another location is mutually agreed upon.
Agreements reachedin mediation shall be enforceable as a settlement agreement in any court
having jurisdiction thereof.Nothing herein shall serve to modify or on any way delay the
franchise enforcement process set forth in Section 10 of this Franchise.
Failure to Enforce
11.4. Grantee shall not be relieved of any of its obligations to
comply promptly with any provision of the Franchise by reason of any failure of the City to
enforce prompt compliance, and City’s failure to enforce shall not constitute a waiver of rights or
acquiescence in Grantee’s conduct.
Compliance with the Laws
11.5.
(a)If any federal or state law or regulation shall require or permit City or
Grantee to perform any service or act or shall prohibit City or Grantee from performing
any service or act which may be in conflict with the terms of this Franchise, then as soon
as possible following knowledge thereof, either party shall notify the other of the point in
conflict believed to exist between such law or regulation. Grantee and City shall conform
to state laws and rules regarding cable communications not later than one (1) year after
they become effective, unless otherwise stated, and shall conform to federal laws and
regulations regarding cable as they become effective.
(b)If any term, condition or provision of this Franchise or the application
thereof to any Person or circumstance shall, to any extent, be held to be invalid or
unenforceable, the remainder hereof and the application of such term, condition or
provision to Persons or circumstances other than those as towhom 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.
SECTION 12
FORECLOSURE AND RECEIVERSHIP
Foreclosure
12.1. Upon the foreclosure or other judicial sale of the Cable System,
Grantee shall notify the City of such fact and such notification shall be treated as a notification
that a change in control of Grantee has taken place, and the provisions of this Franchise
governing the consent to transfer or change in ownership shall apply without regard to how such
transfer or change in ownership occurred.
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Receivership
12.2. The City shall have the right to cancel this Franchise subject to any
applicable provisions of state law, including the Bankruptcy Act, one hundred twenty (120) Days
after the appointment of a receiver or trustee to take over and conduct the business of Grantee,
whether in receivership, reorganization, bankruptcyor other action or proceeding, unless such
receivership or trusteeship shall have been vacated prior to the expiration of said one hundred
twenty (120) Days, or unless:
(a)Within one hundred twenty (120) Days after his election or appointment,
such receiver or trustee shall have fully complied with all the provisions of this Franchise
and remedied all defaults thereunder; and,
(b)Such receiver or trustee, within said one hundred twenty (120) Days, shall
have executed an agreement, duly approved by the Court having jurisdiction in the
premises, whereby such receiver or trustee assumes and agrees to be bound by each and
every provision of this Franchise.
SECTION 13
REPORTING REQUIREMENTS
Quarterly Reports
13.1. Within forty-five(45) calendar days after the end of each
calendar quarter, Grantee shall submit to the City along with its Franchise Fee payment a report
showing the basis for computation of such fees prepared by an officer, or designee of Grantee
showing the basis for the computation of the Franchise Fees paid during that period in a form
and substance substantially equivalent to Exhibit Battached hereto. This report shall separately
indicate revenues received by Grantee within the City including, but not limited to such items as
listed in the definition of “Gross Revenues” at Section 1 of this Franchise.
Monitoring and Compliance Reports
13.2. Upon request, but no more than once a
year, Grantee shall provide a written report of any and all applicable FCC technical performance
tests for the residential network required in FCC Rules and Regulations as now or hereinafter
constituted. In addition, Grantee shall provide City with copies of reports of the semi-annual test
and compliance procedures applicable to Grantee and established by this Franchise no later than
thirty (30) Days after the completion of each series of tests.
Reports
13.3. Upon request of the City and in no event later than thirty (30) Days from
the date of receipt of such request, Grantee shall, free of charge, prepare and furnish to the City,
at the times and in the form prescribed that Grantee is technically capable of producing, such
additional reports with respect to its operation, affairs, transactions, or property, as may be
reasonably necessary to ensure compliance with the terms of this Franchise. Grantee and City
may in good faith agree upon taking into consideration Grantee’s need for the continuing
confidentiality as prescribed herein. Neither City nor Grantee shall unreasonably demand or
withhold information requested pursuant with the terms of this Franchise.
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Communications with Regulatory Agencies
13.4.
(a)Upon written request, Granteeshall submit to City copies of any pleading,
applications, notifications, communications and documents of any kind, submitted by
Granteeor its Affiliates to any federal, State or local courts, regulatory agencies and other
government bodies if such documents directly relate to the operations of Grantee‘s Cable
System within the Franchise Area. Granteeshall submit such documents to City no later
than thirty (30) Days after receipt of City’s request. Granteeshall not claim confidential,
privileged or proprietary rights to such documents unless under federal, State, or local
law such documents have been determined to be confidential by a court of competent
jurisdiction, or a federal or State agency. With respect to all other reports, documents and
notifications provided to any federal, State or local regulatory agency as a routine matter
in the due course of operating Grantee‘s Cable System within the Franchise Area,
Granteeshall make such documents available to City upon City’s written request.
(b)In addition, Grantee and its Affiliates shall within ten (10) Days of any
communication to or from any judicial or regulatory agency regarding any alleged or
actual violation of this Franchise, City regulation or other requirement relating to the
System, use its best efforts to provide the City a copy of the communication, whether
specifically requested by the City to do so or not.
SECTION 14
CUSTOMER SERVICE POLICIES
Response to Customers and Cooperation with City
14.1. Grantee shall promptly
respond to all requests for service, repair, installation and information from Subscribers. Grantee
acknowledges the City’s interest in the prompt resolution of all cable complaints and shall work
in close cooperation with the City to resolve complaints.
Definition of “Complaint.
14.2” For the purposes of Section 14, with the exception of
Subsection 14.5, a “complaint” shall mean any communication to Grantee or to the City by a
Subscriber or a Person who has requested Cable Service; a Person expressing dissatisfaction with
any service, performance, or lack thereof, by Grantee under the obligations of this Franchise.
Customer Service Agreement and Written Information
14.3. Grantee shall provide
to Subscribers a comprehensive service agreement and information in writing for use in
establishing Subscriber service. Written information shall, at a minimum, contain the following
information:
(a)Services to be provided and rates for such services.
(b)Billing procedures.
(c)Service termination procedure.
(d)Change in service notifications.
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(e)Liability specifications.
(f)Set Top Boxes/Subscriber terminal equipment policy.
(g)How complaints are handled including Grantee’s procedure for
investigation and resolution of Subscriber complaints.
(h)The name, address, and phone number of the Person identified by the City
as responsible for handling cable questions and complaints for the City. This information
shall be prominently displayed and Grantee shall submit the information to the City for
review and approval as to its content and placement on Subscriber billing statements.
(i)A copy of the written information shall be provided to each Subscriber at
the time of initial Connection and any subsequent reconnection.
Reporting Complaints
14.4.
(a)The requirements of this Section 14.4 shall be subject to federal law
regarding Subscriber privacy. Grantee shall maintain all Subscriber data available for
City inspection. Subscriber data shall include the date, name, address, telephone number
of Subscriber complaints as well as the subject of the complaint, date and type of action
taken to resolve the complaint, any additional action taken by Grantee or the Subscriber.
The data shall be maintained in a way that allows for simplified access of the data by the
City.
(b)Subject to federal law and upon reasonable request by the City, Grantee
shall, within a reasonable amount of time, provide City with such Subscriber data for its
review.
Customer Service Standards
14.5. The City hereby adopts the customer service
standards set forth in Part 76, §76.309 of the FCC’s rules and regulations, as amended. Grantee
shall, upon request, which request shall include the reason for the request (such ascomplaints
received or other reasonable evidence of concern), provide City with information which shall
describe in detail Grantee’s compliance with each and every term and provision of this Section
14.5. Grantee shall comply in all respects with the customer service requirements established by
the FCC and those set forth herein. To the extent that this Franchise imposes requirements
greater than those established by the FCC, Grantee reserves whatever rights it may have to
recover the costs associated with compliance in any manner consistent with Applicable Law.
Local Office
14.6. During the term of the Franchise the Granteeshall comply with
one of the following requirements:
(a)Grantee shall maintain a convenient local customer service and bill
payment location for matters such as receiving Subscriber payments, handling billing
questions, equipment replacement and customer service information. Grantee shall
comply with the standards and requirements for customer service set forth below during
the term of thisFranchise.
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(b)Granteeshall maintain convenient local Subscriber service and bill
payment locations for the purpose of receiving Subscriber payments orequipment
returns. Unless otherwise requested by the Subscriber, Granteeshall deliver replacement
equipment directly to the Subscriber at no cost to the Subscriber. The Granteeshall
maintain a business office or offices for the purpose of receiving and resolving all
complaints regarding the quality of service, equipment malfunctions, billings disputes
and similar matters. The office must be reachable by a local, toll-free telephone call, and
Granteeshall provide the City with the name, address and telephone number of an office
that will act as the Grantee’s agent to receive complaints, regarding quality of service,
equipment malfunctions, billings, and similar matters. At a minimum Granteeshall also
provide the following:
(i)Subscribers can remit payments at multiple third party commercial
locations within the City (such as grocery stores or the Western Union).
(ii)Granteewill provide a service technician to any Qualified Living
Unit in the City, free of charge to the Subscriber, where necessary to install,
replace or troubleshoot equipment issues.
(iii)Subscribers shall be able to return and receive equipment, freeof
charge, via national overnight courier service (such as Fed Ex or UPS) if a service
technician is not required to visit the Subscriber’s Qualified Living Unit.
(iv)In the event Granteeprovides Cable Service to a minimum of
thirty percent (30%) of the total number of Cable Service Subscribers in the City
served by cable operators franchised by the City, the Granteeshall then be
required to also comply with the requirements of Section 14.6 (a)above.
Cable System office hours and telephone availability
14.7.
(a)Grantee will maintain a local, toll-free or collect call telephone access line
which will be available to its Subscribers twenty-four (24) hours a Day, seven (7) Days a
week.
(i)Trained Grantee representatives will be available to respond to
customer telephone inquiries during Normal Business Hours.
(ii)After Normal Business Hours, the access line may be answered by
a service or an automated response system, including an answering machine.
Inquiries received after Normal Business Hours must be responded to by a trained
Grantee representative on the next business Day.
(b)Under Normal Operating Conditions, telephone answer time by a
customerrepresentative, including wait time, shall not exceed thirty (30) seconds when
the connection is made. If the call needs to be transferred, transfer time shall not exceed
thirty (30) seconds. These standards shall be met no less than ninety percent (90%) of the
time under Normal Operating Conditions, measured on a quarterly basis.
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(c)Grantee shall not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards above unless an historical
record of complaints indicates a clear failure to comply.
(d)Under Normal Operating Conditions, the customer will receive a busy
signal less than three percent (3%) of the time.
(e)Customer service center and bill payment locations will be open at least
during Normal Business Hours and will be conveniently located.
Installations, Outages and Service Calls
14.8. Under Normal Operating Conditions,
each of the following standards will be met no less than ninety-five percent (95%) of the time
measured on a quarterly basis:
(a)Standard Installations will be performed within seven (7) business days
after an order has been placed. “Standard” Installations are those to a Qualified Living
Unit.
(b)Excluding conditions beyond the control of Grantee, Grantee will begin
working on “Service Interruptions” promptly and in no event later than twenty-four (24)
hours after the interruption becomes known. Grantee must begin actions to correct other
Service problems the next business Day after notification of the Service problem.
(c)The “appointment window” alternatives for Installations, Service calls,
and other Installation activities will be either a specific time or, at maximum, a four (4)
hour time block during Normal Business Hours. (Grantee may schedule Service calls and
other Installation activities outside of Normal Business Hours for the express
convenience of the customer.)
(d)Grantee may not cancel an appointment with a customer after the close of
business on the business Day prior to the scheduled appointment.
(e)If Grantee’s representative is running latefor an appointment with a
customer and will not be able to keep the appointment as scheduled, the customer will be
contacted. The appointment will be rescheduled, as necessary, at a time which is
convenient for the customer.
Communications between Grantee and Subscribers
14.9.
(a)Refunds. Refund checks will be issued promptly, but no later than either:
(i)The customer’s next billing cycle following resolution of the
request or thirty (30) Days, whichever is earlier, or
(ii)The return of the equipment supplied by Grantee if Cable Service
is terminated.
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(b)Credits. Credits for Cable Service will be issued no later than the
customer’s next billing cycle following the determination that a credit is warranted.
Billing
14.10.
(a)Consistent with 47 C.F.R. § 76.1619, bills will be clear, concise and
understandable. Bills must be fully itemized, with itemizations including, but not limited
to, Basic Cable Service and premium Cable Service charges and equipment charges.
Bills will also clearly delineate all activity during the billing period, including optional
charges, rebates and credits.
(b)In case of a billing dispute, Grantee must respond to a written complaint
from a Subscriber within thirty (30) Days.
Subscriber Information
14.11. Grantee will provide written information on each of the
following areas at the time of Installation of Service, at least annually to all Subscribers, and at
any time upon request:
(a)Products and Services offered;
(b)Prices and options for programming services and conditions of
subscription to programming and other services;
(c)Installation and Service maintenance policies;
(d)Instructions on how to use the Cable Service;
(e)Channel positions of programming carried on the System; and
(f)Billing and complaint procedures, including the address and telephone
number of the City’s cable office.
Subscribers shall be advised of the procedures for resolution of complaints about the
quality of the television signal delivered by Grantee, including the address of the responsible
officer of the City. Subscribers will be notified of any changes in rates, programming services or
Channel positions as soon as possible in writing. Notice must be given to Subscribers a
minimum of thirty (30) Days in advance of such changes if the change is within the control of
Grantee. In addition, Grantee shall notify Subscribers thirty (30) Days in advance of any
significant changes in the information required by this Section 14.11.
Notice or Rate Programming Change
14.12. In addition to the requirement of this
Section 14.12 regarding advance notification to Subscribers of any changes in rates,
programming services or Channel positions, Grantee shall give thirty (30) Days written notice to
both Subscribers and the City before implementing any rate or Service change. If required by
Applicable Law, such notice shall state the precise amount of any rate change and briefly explain
in readily understandable fashion the cause of the rate change (e.g., inflation, change in external
costs or the addition/deletion of Channels). When the change involves the addition or deletion of
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Channels, each Channel added or deleted must be separately identified. For purposes of the
carriage of digital broadcast signals, Grantee need only identify for Subscribers, the television
signal added and not whether that signal may be multiplexed during certain dayparts.
Subscriber Contracts
14.13. Grantee shall, upon written request, provide the City with
any standard form residential Subscriber contract utilized by Grantee. If no such written contract
exists, Grantee shall file with the City a document completely and concisely stating the length
and terms of the Subscriber contract offered to customers. The length and terms of any standard
form Subscriber contract(s) shall be available for public inspection during Normal Business
Hours. A list of Grantee’s current Subscriber rates and charges for Cable Service shall be
maintained on file with City and shall be available for public inspection.
Refund Policy
14.14. If a Subscriber’s Cable Service is interrupted or discontinued,
without cause, for twenty-four (24) or more consecutive hours, Grantee shall, upon request by
the Subscriber, credit such Subscriber pro rata for such interruption. For this purpose, every
month will be assumed to have thirty (30) Days.
Late Fees
14.15. Grantee shall comply with all applicable state and federal laws with
respect to any assessment, charge, cost, fee or sum, however characterized, that Grantee imposes
upon a Subscriber for late payment of a bill. The City reserves the right to enforce Grantee’s
compliance with all Applicable Laws to the maximum extent legally permissible.
Disputes
14.16. All Subscribers and members of the general public may direct
complaints, regarding Grantee’s Service or performance to the chief administrative officer of the
City or the chief administrative officer’s designee, which may be a board or Commission of the
City.
Customer Bills
14.17. Customer bills shall be designed in such a way as to present the
information contained therein clearly and comprehensibly to Customers, and in a way that (A) is
not misleading and(B) does not omit material information. Notwithstanding anything to the
contrary in Section 14.10, above, Grantee may, in its sole discretion, consolidate costs on
Customer bills as may otherwise be permitted by Section 622(c) of the Cable Act (47 U.S.C.
§542(c)).
Failure to Resolve Complaints
14.18. Granteemust investigate and act upon any
service complaint promptly and in no event later than twenty-four (24)hours after the problem
becomes known. Granteemust address, and if feasible, resolve service complaints within three
(3) calendar days.
Maintain a Complaint Phone Line
14.19. Grantee shall maintain a local or toll-free
telephone Subscriber complaint line, available to its Subscribers twenty-four (24) hours per Day,
seven (7) Days a week.
Notification of Complaint Procedure
14.20. Grantee shall have printed clearly and
prominently on each Subscriber bill and in the customer service agreement provided for in
Section 14.3, the twenty-four (24) hour Grantee phone number for Subscriber complaints.
Additionally, Grantee shall provide information to customers concerning the procedures to
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follow when they are unsatisfied with measures taken by Grantee to remedy their complaint.
This information will include the phone number of the City office or Person designated to handle
complaints. Additionally, where possible Grantee shall state that complaints should be made to
Grantee prior to contacting the City.
Subscriber Privacy
14.21.
(a)To the extent required by Minn. Stat. §238.084 Subd. 1(s) Grantee shall
comply with the following: No signals including signals of a Class IV Channelmay be
transmitted from a Subscriber terminal for purposes of monitoring individual viewing
patterns or practices without the express written permission of the Subscriber. The
request for permission must be contained in a separate document with a prominent
statement that the Subscriber is authorizing the permission in full knowledge of its
provisions. Such written permission shall be for a limited period of time not to exceed
one (1) year which may be renewed at the option of the Subscriber. No penalty shall be
invoked for a Subscriber’s failure to provide or renew such permission. The permission
shall be revocable at any time by the Subscriber without penalty of any kind whatsoever.
(b)No information or data obtained by monitoring transmission of a signal
from a Subscriber terminal, including but not limited to lists of the names and addresses
of Subscribers or any lists that identify the viewing habits of Subscribers shall be sold or
otherwise made available to any party other than to Grantee or its agents for Grantee’s
business use, and also to the Subscriber subject of that information, unless Grantee has
received specific written permission from the Subscriber to make such data available.
The request for permission must be contained in a separate document with a prominent
statement that the Subscriber is authorizing the permission in full knowledge of its
provisions. Such written permission shall be for a limited period of time not to exceed
one (1) year whichmay be renewed at the option of the Subscriber. No penalty shall be
invoked for a Subscriber’s failure to provide or renew such permission. The permission
shall be revocable at any time by the Subscriber without penalty of any kind whatsoever.
(c)Written permission from the Subscriber shall not be required for the
conducting of system wide or individually addressed electronic sweeps for the purpose of
verifying System integrity or monitoring for the purpose of billing. Confidentiality of
such information shall be subject to the provision set forth in subparagraph (b) of this
section.
Grantee Identification
14.22. Grantee shall provide all customer service technicians and
all other Grantee employees entering private property with appropriate picture identification so
that Grantee employees may be easily identified by the property owners and Subscribers.
SECTION 15
SUBSCRIBER PRACTICES
Subscriber Rates
15.1. There shall be no charge for disconnection of any installation
or outlet. If any Subscriber fails to pay a properly due monthly Subscriber fee, or any other
properly due fee or charge, Grantee may disconnect the Subscriber’s service outlet, provided,
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however, that such disconnection shall not be effected until after the later of: (i) forty-five (45)
Days after the original due date of said delinquent fee or charge; or (ii) ten (10) Days after
delivery to Subscriber of written notice of the intent to disconnect. If a Subscriber pays before
expiration of the later of (i) or (ii), Grantee shall not disconnect. After disconnection, upon
payment in full of the delinquent fee or charge and the payment of a reconnection charge,
Grantee shall promptly reinstate the Subscriber’s Cable Service.
Refunds to Subscribers shall be made or determined in the following manner
15.2:
(a)If Grantee fails, upon request by a Subscriber, to provide any service then
being offered, Grantee shall promptly refund all deposits or advance charges paid for the
service in question by said Subscriber. This provision does not alter Grantee’s
responsibility to Subscribers under any separate contractual agreement or relieve Grantee
of any other liability.
(b)If any Subscriber terminates any monthly service because of failure of
Grantee to render the service in accordance withthis Franchise, Grantee shall refund to
such Subscriber the proportionate share of the charges paid by the Subscriber for the
services not received. This provision does not relieve Grantee of liability established in
other provisions of this Franchise.
(c)If any Subscriber terminates any monthly service prior to the end of a
prepaid period, a proportionate amount of any prepaid Subscriber service fee, using the
number of days as a basis, shall be refunded to the Subscriber by Grantee.
SECTION 16
COMPENSATION AND FINANCIAL PROVISIONS.
Franchise Fees
16.1. During the term of the Franchise, Grantee shall pay to the City a
Franchise Fee of five percent (5%) of Gross Revenues. If any such law, regulation or valid rule
alters the five percent (5%) Franchise Fee ceiling enacted by the Cable Act, then the City shall
have the authority to (but shall not be required to) increase the Franchise Fee accordingly,
provided such increase is for purposes not inconsistent with Applicable Law. In the event
Grantee bundles or combines Cable Services (which are subject to the Franchise Fee) with non-
Cable Services (which are not subject to the Franchise Fee) so that Subscribers pay a single fee
for more than one (1) class of service resulting in a discount on Cable Services, Grantee agrees
that for the purpose of calculation of the Franchise Fee, it shall allocate to Cable Service revenue
no less than a pro rata share of the revenue received for the bundled or combined services. The
pro rata share shall be computed on the basis of the published charge for each service in the
bundled or combined classes of services when purchased separately.
(a)Franchise Fees shall be paid quarterly not later than forty-five (45) Days
following the end of a given quarter. In accordance with Section 16 of this Franchise,
Grantee shall file with the City a Franchise Fee payment worksheet, attached as Exhibit
B, signed by an authorized representative of Grantee, which identifies Gross Revenues
earned byGrantee during the period for which payment is made. No acceptance of any
payment shall be construed as an accord that the amount paid is in fact, the correct
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amount, nor shall such acceptance of payment be construed as a release of any claim
which the City may have for further or additional sums payable under the provisions of
this section.
(b)Neither current nor previously paid Franchise Fees shall be subtracted
from the Gross Revenue amount upon which Franchise Fees are calculated and due for
any period, unless otherwise required by Applicable Law.
(c)Any Franchise Fees owing pursuant to this Franchise which remain unpaid
more than forty-five (45) Days after the dates specified herein shall be delinquent and
shall thereafter accrue interest at twelve percent (12%) per annum or two percent (2%)
above prime lending rate as quoted by the Wall Street Journal, whichever is greater.
(d)In no event shall the Grantee be required to pay a Franchise Fee
percentage in excess of that paid by incumbent cable provider.
Auditing and Financial Records
16.2.Throughout the term of this Franchise, the
Granteeagrees that the City, upon reasonable prior written noticeof not less than twenty (20)
Daysto the Grantee, may review such of the Grantee’s books and records regarding the
operation of the Cable System and the provision of Cable Service in the Franchise Area which
are reasonably necessary to monitor and enforce Grantee’s compliance with the provisions of
this Franchise. Grantee shall provide such requested information as soon as possible and in no
event more than thirty (30) Days after the notice unless Grantee explains that it is not feasible to
meet this timeline and provides a written explanation for the delay and an estimated reasonable
date for when such information will be provided. All such documents pertaining to financial
matters that may be the subject of an inspection by the Cityshall be retained by the Granteefor a
minimum period of six(6) years, pursuant toMinnesota StatutesSection 541.05. The Grantee
shall not deny the City access to any of the Grantee’s records on the basis that the Grantee’s
records are under the control of any parent corporation, Affiliated entity or a third party. The
City may request in writing copies of any such records or books that are reasonably necessary,
and the Granteeshall provide such copies within thirty (30) Days of the receipt of such request.
One (1) copy of all reports and records required under this or any other section shall be furnished
to the City at the sole expense of the Grantee. If the requested books and records are too
voluminous, or for security reasons cannot be copied or removed, then the Granteemay request,
in writing within ten (10) Days of receipt of such request, that the City inspect them at the
Grantee’slocal offices or at one of Grantee’s offices more convenient to City or its duly
authorized agent. If any books or records of the Granteeare not kept in such office and not made
available in copies to the City upon written request as set forth above, andif the City determines
that an examination of such records is necessary for the enforcement of this Franchise, then all
reasonable travel expenses incurred in making such examination shall be paid by the Grantee.
Review of Record Keeping Methodology
16.3. Grantee agrees to meet with
representative of the City upon request to review its methodology of record-keeping, financial
reporting, computing Franchise Fee obligations, and other procedures the understanding of
which the City deems necessary for understanding the meaning of reports and records related to
the Franchise.
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Audit of Records
16.4. The City or its authorized agent may at any time and at the
City’s own expense conduct an independent audit of the revenues of Grantee in order to verify
the accuracy of Franchise Fees paid to the City. Grantee shall cooperate fully in the conduct of
such audit and shall produce all necessary records related to the provision of Cable Services
regardless of which corporate entity controls such records. In the event it is determined through
such audit that Grantee has underpaid Franchise Fees in an amount of five percent (5%) or more
than was due the City, then Grantee shall reimburse the City for the entire reasonable cost of the
audit within thirty (30) days of the completionand acceptance of the audit by the City.
Records to be reviewed
16.5. The City agrees to request access to only those books
and records, in exercising its rights under this section, which it deems reasonably necessary for
the enforcement and administration ofthe Franchise.
Indemnification by Grantee
16.6.
(a)Grantee shall, at its sole expense, fully indemnify, defend and hold
harmless the City, and in their capacity as such, the officers and employees thereof, from
and against any and all claims, suits, actions, liability and judgments for damage or
otherwise except those arising wholly from negligence on the part of the City or its
employees; for actual or alleged injury to persons or property, including loss of use of
property due to an occurrence, whether or not such property is physically damaged or
destroyed, in any way arising out of or through or alleged to arise out of or through the
acts or omissions of Grantee or its officers, agents, employees, or contractors or to which
Grantee’s or its officers, agents, employees or contractors acts or omissions in any way
contribute, and whether or not such acts or omissions were authorized or contemplated by
this Franchise or Applicable Law; arising out of. or alleged to arise out of any claim for
damages for Grantee’s invasion of the right of privacy, defamation of any Person, firm or
corporation, or the violation of infringement of any copyright, trademark, trade name,
service mark or patent, or of any other right of any Person, firm or corporation; arising
out of or alleged to arise out of Grantee’s failure to comply with the provisions of any
Applicable Law. Nothing herein shall be deemed to prevent the City, its officers, or its
employees from participating in the defense of any litigation by their own counsel at such
parties’ expense. Such participation shall not under any circumstances relieve Grantee
from its duty of defense against liability or of paying any judgment entered against the
City, its officers, or its employees.
(b)Granteeshall contemporaneously with thisFranchise execute an
Indemnity Agreement in a form acceptable to the Cityattached hereto as Exhibit C,
which shall indemnify, defend and hold the City harmless for any claim for injury,
damage, loss, liability, cost or expense, including court and appealcosts and reasonable
attorneys’ fees or reasonable expenses arising out of the actions of the City in granting
this Franchise. This obligation includes any claims by another franchised cable operator
against the City 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 Law(s).
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Grantee Insurance
16.7. Upon the Effective Date, Grantee shall, at its sole expense
take out and maintain during the term of this Franchise public liability insurance with a company
licensed to do business in the state of Minnesota with a rating by A.M. Best & Co. of not less
than “A-” that shall protect the Grantee, City and its officials, officers, directors, employees and
agents from claims which may arise from operations under this Franchise, whether such
operations be by the Grantee, its officials, officers, directors, employees and agents or any
subcontractors of Grantee. This liability insurance shall include, but shall not be limited to,
protection against claims arising from bodily and personal injury and damage to property,
resulting from Grantee’s vehicles, products and operations. The amount of insurance for single
limit coverage applying to bodily and personal injury and property damage shall not be less than
Three Million Dollars ($3,000,000). The liability policy shall include:
(a)The policy shall provide coverage on an “occurrence” basis.
(b)The policy shall cover personal injury as well as bodily injury.
(c)The policy shall cover blanket contractual liability subject to the standard
universal exclusions of contractual liability included in the carrier’s standard
endorsement as to bodily injuries, personal injuries and property damage.
(d)Broad form property damage liability shall be afforded.
(e)City shall be named as an additional insured on the policy.
(f)An endorsement shall be provided which states that the coverage is
primary insurance with respect to claims arising from Grantee’s operations under this
Franchiseand that no other insurance maintained by the Grantor will be called upon to
contribute to a loss under this coverage.
(g)Standard form of cross-liability shall be afforded.
(h)An endorsement stating that the policy shall not be canceled without thirty
(30) Days notice of such cancellation given to City
(i)City reserves the right to adjust the insurance limit coverage requirements
of this Franchise no more than once every three (3) years. Any such adjustment by City
will be no greater than the increase in the Stateof Minnesota Consumer Price Index (all
consumers) for such three (3) year period.
(j)Upon the Effective Date, Grantee shall submit to City a certificate
documenting the required insurance, as well as any necessary properly executed
endorsements. The certificate and documents evidencing insurance shall be in a form
acceptable to City and shall provide satisfactory evidence that Grantee has complied with
all insurance requirements. Renewal certificates shall be provided to City prior to the
expiration date ofany of the required policies. City will not be obligated, however, to
review such endorsements or certificates or other evidence of insurance, or to advise
Grantee of any deficiencies in such documents and receipt thereof shall not relieve
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Grantee from, nor be deemed a waiver of, City’s right to enforce the terms of Grantee’s
obligations hereunder. City reserves the right to examine any policy provided for under
this paragraph or to require further documentation reasonably necessary to form an
opinion regarding the adequacy of Grantee’s insurance coverage.
SECTION 17
MISCELLANEOUS PROVISIONS.
Posting and Publication
17.1. Grantee shall assume the cost of posting and
publication of this Franchise as such posting and publication is required by law and such is
payable upon Grantee’s filing of acceptance of this Franchise.
Guarantee of Performance
17.2. Grantee agrees that it enters into this Franchise
voluntarily in order to secure and in consideration of the grant from the City of a five (5) year
Franchise. Performance pursuant to the terms and conditions of this Franchise is guaranteed by
Grantee.
Entire Agreement
17.3. This Franchise contains the entire agreement between the
parties, supersedes all prior agreements or proposalsexcept as specifically set forth herein, and
cannot be changed orally but only by an instrument in writing executed by the parties. This
Franchise is made pursuant to Minnesota Statutes Chapter 238 and is intended to comply with all
requirements set forththerein.
Consent
17.4. Wherever the consent or approval of either Grantee or the City is
specifically required in this agreement, such consent or approval shall not be unreasonably
withheld.
Franchise Acceptance
17.5. No later than forty-five (45) Days followingCity Council
approval of this Franchise, Grantee shall execute and return to the City three (3) original
franchise agreements. The executed agreements shall be returned to the City accompanied by
performance bonds, and evidence of insurance, all as provided in this Franchise. The City’s
“Notice of Intent to Consider an Application for a Franchise” (“Notice”) provided, consistent
with Minn. Stat. 238.081 subd. 8, that applicants would be required to reimburse the City for all
necessary costs of processing a cable communications franchise. Grantee submitted an
application fee with its application to the City. The Notice further provided that any unused
portion of the application fee would be returned and any additional fees required to process the
application and franchise, beyond the application fee, would be assessed to the successful
applicant. The Grantee shall therefore submit to the City at the time of acceptance of this
Franchise, a check made payable to the City of Hopkins, Minnesota for all additional fees and
costs incurred by the City. Within thirty (30)days of City Council approval,the City shall
provide Grantee with a letter specifying such additional costs following approval of this
Franchise by the City Council. In the event Grantee failsto accept this Franchise, or fails to
provide the required documents and payments, this Franchise shall be null and void. The
Grantee agrees that despite the fact that its written acceptance may occur after the Effective Date,
the obligations of this Franchise shall become effective on the Effective Date.
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Amendment of Franchise
17.6. 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 2.7 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.
Notice
17.7. Any notification that requires a response or action from a party to this
Franchise, within a specific time-frame or would trigger a timeline that would affect one or both
parties’ rights under this Franchise, shall be made in writing and shall be sufficiently given and
served upon the other party by hand delivery, first class mail, registered or certified, return
receipt requested, postage prepaid, or by reputable overnight courier service and addressed as
follows:
To the City:City Manager, City of Hopkins
1010 South First Street
Hopkins, MN 55343
Courtesy Copy to:Southwest Suburban Cable Commission
c/o Moss & Barnett (BTG)
150 South Fifth Street, Suite 1200
Minneapolis, MN 55402
To the Grantee:CenturyLink
Attn: Public Policy
th
1801 California Street, 10Floor
Denver, Colorado 80202
Courtesy Copy to:Qwest Broadband Services, Inc.
Attn: Public Policy
st
200 South Fifth Street, 21Floor
Minneapolis, MN 55402
Recognizing the widespread usage and acceptance of electronic forms of communication,
emails will be acceptable as formal notification related to the conduct of general business
amongst the parties to this contract, including but not limited to programming and price
adjustment communications. Such communication should be addressed and directed to the
Person of record as specified above.
Force Majeure
17.8. In the event that either party is prevented or delayed in the
performance of any of its obligations, under this Franchise by reason of acts of God, floods, fire,
hurricanes, tornadoes, earthquakes, or other unavoidable casualties, insurrection, war, riot,
vandalism, strikes, delays in receiving permits where it is not the fault of Grantee, public
easements, sabotage, acts or omissions of the other party, or any other similar event beyond the
reasonable control of that party, it shall have a reasonable time under the circumstances to
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perform such obligation under this Franchise, or to procure a substitute for such obligation to the
reasonable satisfaction of the other party.
Work of Contractors and Subcontractors
17.9. Work by contractors and
subcontractors are subject to the same restrictions, limitations and conditions as if the work were
performed by Grantee. Grantee shall be responsible for all work performed by its contractors
and subcontractors, and others performing work on its behalf as if the work were performed by it
and shall ensure that all such work is performed in compliance with this Franchise, the City Code
and other Applicable Law, and shall be jointly and severally liable for all damages and correcting
all damage caused by them. It is Grantee’s responsibility to ensure that contractors,
subcontractors or other Persons performing work on Grantee’s behalf are familiar with the
requirements of this Franchise, the City Code and other Applicable Laws governing the work
performed by them.
Abandonment of System
17.10. Grantee may not abandon the System or any portion
thereof used exclusively for Cable Services, without having first given three (3) months written
notice to City and conforming to the City Code, as well as the state right-of-way rules, Minn.
Rules, Chapter 7819. To the extent required by Minn. Stat. §238.084 Subd. 1 (w), Grantee shall
compensate City for damages resultingfrom the abandonment.
Removal After Abandonment
17.11. In the event of Grantee’s abandonment of the
System used exclusively for Cable Services, City shall have the right to require Grantee to
conform to the City Code, as well as the state right-of-way rules, Minn. Rules, Chapter 7819. If
Grantee has failed to commence removal of System, or such part thereof as was designated by
City, within thirty (30) Days after written notice of City’s demand for removal consistent with
City Code and Minn. Rules, Ch. 7819, is given, or if Grantee has failed to complete such
removal within twelve (12) months after written notice of City’s demand for removal is given
City shall have the right to apply funds secured by the performance bond toward removal and/or
declare all right, title, and interest to the System to be in City with all rights of ownership
including, but not limited to, the right to operate the System or transfer the System to another for
operation by it.
Governing Law
17.12. This Franchise shall be deemed to be executed in the State of
Minnesota, and shall be governed in all respects, including validity, interpretation and effect, and
construed in accordance with, the laws of the State of Minnesota, as applicable to contracts
entered into and performed entirely within the State.
Nonenforcement by City
17.13. Grantee shall not be relieved of its obligation to
comply with any of the provisions of this Franchise by reason of any failure of the City or to
enforce prompt compliance.
Captions
17.14. The paragraph captions and headings inthis Franchise are for
convenience and reference purposes only and shall not affect in any way the meaning of
interpretation of this Franchise.
Calculation of Time
17.15. Where the performance or doing of any act, duty, matter,
payment or thing is required hereunder and the period of time or duration for the performance is
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prescribed and fixed herein, the time shall be computed so as to exclude the first and include the
last Day of the prescribed or fixed period or duration of time. When the last Day of the period
falls on Saturday, Sunday or a legal holiday that Day shall be omitted from the computation and
the next business Day shall be the last Day of the period.
Survival of Terms
17.16. Upon the termination or forfeiture of the Franchise, Grantee
shall no longer have the right to occupy the Streets for the purpose of providing Cable Service.
However, Grantee’s obligations to the City (other than the obligation to provide service to
Subscribers) shall survive according to their terms.
Competitive Equity.
17.17If any other Wireline MVPD enters into any agreement with
the City to provide multi channel video programming or its equivalent to residents in the City,
the City, upon written request of the Grantee, shall permit the Grantee to construct and/or operate
its Cable System and provide multi channel video programming or its equivalent to Subscribers
in the City under the same agreement as applicable to the new MVPD. Within one hundred
twenty (120) Days after the Grantee submits a written request to the City, the Grantee and the
City shall enter into an agreement or other appropriate authorization (if necessary) containing the
same terms and conditions as are applicable to the new Wireline MVPD.
th
Passed and adopted this 19day of January 2016.
CITY OF HOPKINS, MINNESOTA
ATTEST
By: By:
Its: City ClerkIts: Mayor
ACCEPTED: This Franchise is accepted, and we agree to be bound by its terms and conditions.
QWEST BROADBAND SERVICES,
INC., D/B/A CENTURYLINK
Date:By:
Its:
SWORN TO BEFORE ME this
___ day of ___________, 201__.
NOTARY PUBLIC
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Exhibit A
Free Cable Service to Public Buildings
SERVS,HOPKINS M1001 HIGHWAY 7 APT B
1.
ELEMENTARY,JOHN I1320 MAINSTREET APT ELEM
2.
SCHOOL,HOPKINS ARTS1320 MAINSTREET# ART
3.
GARAGE,HOPKINS11100 EXCELSIOR BLVD
4.
ELEM SCHOOL,EISENHOWER1001 HIGHWAY 7 APT A
5.
ELEMENTARY,ALICE SMITH801 MINNETONKA MILLS RD
6.
CENTER,HOPKINS33 14TH AVE N
7.
CITY HALL,HOPKINS1010 1ST ST S APT HALL
8.
FIRE STATION,HOPKINS1010 1ST ST S APT FIRE
9.
POLICE DEPT,HOPKINS1010 1ST ST S APT COPS
10.
PAVILLION,HOPKINS11000 EXCELSIOR BLVD STE A
11.
SCHOOL,HOPKINS PUBLIC1001 HIGHWAY 7
12.
FIRE DEPT,HOPKINS101 17TH AVE S
13.
TOWERS,DOW22 5TH AVE S STE CMCL
14.
FOR THE ARTS,HOPKINS CENTE1111 MAINSTREET
15.
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Exhibit B
Franchise Fee Payment Worksheet
TRADE SECRET –CONFIDENTIAL
Month/YearMonth/YearMonth/YearTotal
A la Carte Video Services
Audio Services
Basic Cable Service
Installation Charge
Bulk Revenue
Expanded Basic Cable
Service
Pay Service
Pay-per-view
Guide Revenue
Franchise Fee Revenue
Advertising Revenue
Home Shopping Revenue
Digital Services
Inside Wiring
Other Revenue
Equipment Rental
Processing Fees
PEG Fee
FCC Fees
Bad Debt
Late Fees
REVENUE
Fee Calculated
Fee Factor:5%
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Exhibit C
Indemnity Agreement
INDEMNITY AGREEMENT
made this ____ day of _____________________, 201__,
by and between Qwest Broadband Services, Inc., a Delaware Corporation, party of the first part,
hereinafter called “CenturyLink,” and the City of Hopkins, a Minnesota Municipal Corporation,
party of the second part, hereinafter called “City.”
WITNESSETH
:
WHEREAS
, the City of Hopkinshas awarded to Qwest Broadband Services, Inc. a
franchise for the operation of a cable communications system in the City of Hopkins; and
WHEREAS
, the City has required, as a condition of its award of a cable communications
franchise, that it be indemnified with respect to all claims and actions arising from the award of
said franchise,
NOW THEREFORE
, in consideration of the foregoing promises and the mutual
promises contained in this agreement and in consideration of entering into a cable television
franchise agreement and other good and valuable consideration, receipt of which is hereby
acknowledged, CenturyLink hereby agrees, at its sole cost and expense, to fully indemnify,
defend and hold harmless the City, its officers, boards, commissions, employees and agents
against any and all claims, suits, actions, liabilities and judgments for damages, cost or expense
(including, but not limited to, court and appeal costs and reasonable attorneys’ fees and
disbursements assumed or incurred by the City in connection therewith) arising out of the actions
of the City in granting a franchise to CenturyLink. This includes any claims by another
franchised cable operator against the City that the terms and conditions of the CenturyLink
franchise are less burdensome than another franchise granted by the City or that the CenturyLink
Franchise does not satisfy the requirements of applicable federal, state, or local law(s). The
indemnification provided for herein shall not extend or apply to any acts of the City constituting
a violation or breach by 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 CenturyLink.
The City shall give CenturyLink reasonable notice of the making of any claim or the
commencement of any action, suit or other proceeding covered by this agreement. The City shall
cooperate with CenturyLink in the defense of any such action, suit or other proceeding at the
request of CenturyLink. The City may participate in the defense of a claim, but ifCenturyLink
provides a defense at CenturyLink’s expense then CenturyLink shall not be liable for any
attorneys’ fees, expenses or other costs that 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 City and the
counsel selected by CenturyLink to represent the City, CenturyLink shall pay, from the date such
separate representation is required forward, all reasonable expenses incurred by the City in
defending itself with regard to any action, suit or proceeding indemnified by CenturyLink.
Provided, however, that in the event that such separate representation is or becomes necessary,
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and City desires to hire counsel or any other outside experts or consultants and desires
CenturyLink to pay those expenses, then City shall be required to obtain CenturyLink’s consent
to the engagement of such counsel, experts or consultants, such consent not to be unreasonably
withheld. Notwithstanding the foregoing, the parties agree that the City may utilize at any time,
at its own cost and expense, its own City 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 obligationof 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 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 City by CenturyLink. This agreement shall bea binding obligation of and shall inure to the
benefit of, the parties hereto and their successor's and assigns, if any.
QWEST BROADBAND SERVICES, INC.
Dated: ,201__By:
Its:
STATE OF LOUISIANA )
) SS
)
The foregoinginstrument was acknowledged before me this day of 201__,
by , the of Qwest
Broadband Services, Inc., a Delaware Corporation, on behalf of the corporation.
Notary Public
Commission Expires
CITY OF HOPKINS, MINNESOTA
By
Its
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