HomeMy WebLinkAbout8E - Transfer of Cable Television Franchise Agreement to Mediacom LLC
CITY COUNCIL AGENDA REPORT
MEETING DATE:
AGENDA #:
PREPARED BY:
October 18, 1999
8E
Frank Boyles, City Manager
AGENDA ITEM:
CONSIDER APPROVAL OF TRANSFER OF CABLE TELEVISION
FRANCHISE AGREEMENT AND FRANCHISE ORDINANCE FROM
TRIA)( MIDWEST ASSOCIATES TO MEDlACOM LLC.
DISCUSSION:
History
On May 24, 1999, the City received a letter from Triax Midwest Cable
Company requesting consent to assign the cable television franchise
to Mediacom LLC. The letter included a lengthy application packet as
set forth in Federal Communications (FCC) rules and has been
reviewed by attorney Brian Grogan.
Given the concern among the community for the quality of cable
television services, the City Council published notice and held a public
hearing on July 19, 1999 to receive public input regarding the
proposed assignment. Staff had also contacted persons by mail who
had previously expressed concerns with cable television service
advising them of the public hearing. Representatives from Triax
Midwest and Mediacom LLC were both present to hear public
comment.
On August 16, 1999, the City Council approved Resolution 99-74
which approved transfer and assignment of the Cable Television
Franchise from Triax to Mediacom subject to six conditions. Two of
the conditions required further negotiations between the City and
cable representatives. The conditions included:
. Execution of a mutually acceptable Cable Television
Franchise Ordinance; and
. Triax compliance with Franchise provisions regarding
reimbursement to the City of expenses incurred as a
result of the transfer.
Current Circumstances
In accordance with the Council's direction, we have proceeded to
negotiate a Franchise Ordinance and Franchise Agreement
satisfactory to both parties. The Council's Cable TV subcommittee of
Mayor Mader and Council member Kedrowski are aware of the key
issues and have provided direction for the resolution of each.
1620(c~'ESf9.~'R'a~J&ikE),~tiliycMe~372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245
AN EQUAL OPPORTUNITY E"lPLOYER
A Franchise Ordinance and Franchise Agreement have been
prepared which are acceptable to both parties. The key provisions
contained in each are as follows:
1. Mediacom agrees to rebuild the present cable television system to a
state-of-the-art 750mhz. eighty channel system utilizing a fiber optic
backbone serving no more than 500 homes per fiber node by May 31,
2001. The system will meet all FCC technical standards.
2. Mediacom will establish a $100,000 security fund which is a
performance bond to guaranty completion and operation of the re-
built system..
3. A perpetual $10,000 security fund in the form of a letter of credit is
also established to protect against material violations or breaches of
the Franchise Agreement.
4. The Franchise term is 15 years.
5. The City may request periodic customer service and system operation
reports to verify conformance with the Franchise Ordinance and
Agreement.
6. Mediacom will provide a one-time capital grant in the total amount of
$77,000 (half at the execution of Franchise and half at 12 months
therefrom) to replace the cable studio equipment at the High School.
Mediacom will not be responsible for on-going maintenance or
replacement of the equipment.
7. A $.65 public education and government per subscriber fee is
remitted to the City to provide funding assistance to operate the cable
studio and Channels 50 and 51. This amount may be escalated
subject to various conditions to $1.20 per subscriber during the life of
the Franchise.
8. A Franchise fee in the amount of 5% may be collected by the City.
The City agrees not to collect fees on internet services for 24 months
after their introduction and provided the law authorizes such
collection.
The School District also has a data link agreement with Triax which
expires at the end of this year. Triax and Mediacom have agreed to
extend the agreement to May 31, 2001 subject to the existing terms
and conditions. This will afford the School District and cable company
time to determine how and whether they wish to modify and renew
the agreement.
ISSUES:
Because negotiations involve give and take, the Ordinance and
Franchise Agreement do not represent the exact language and
provisions we desired. They do however, represent satisfactory
resolution of key issues between the two parties. The final Ordinance
I:\COUNCIL\AGNRPTS\99\1 018_ 8E.DOCKelly Meyer
ALTERNATIVES:
RECOMMENDED
MOTION:
and Agreement are included with this memo. They were received
after 4:30 p.m. on October 15th. The City Attorney and I will review
the documents prior to the Council meeting.
Because of the timing of the closing on this transfer, it is important
that the City Council feel comfortable acting upon these documents at
the October 18th meeting. The only other outstanding item is
calculating City costs related to the transfer. The amount, once
determined, will be collected from the company before final execution
and distribution of the documents.
(1) Adopt Resolution 99-XX Approving the Franchise Agreement and
a separate motion and second to adopt Ordinance 99-XX the Cable
Television Regulatory Ordinance.
(2) Take no action and provide staff with specific direction.
Alternative (1)
I:\COUNCIL\AGNRPTS\99\1 0 18 _ 8E.DOCKelly Meyer
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
RESOLUTION 99-XX
Approving a Cable Television Franchise Agreement
between the City of Prior Lake and Triax Midwest Associates, L.P.
Motion By:
Second By:
on or about August 15, 1983, the City of Prior Lake ("City") passed and adopted an
Ordinance granting a Cable Television Franchise ("Franchise") currently held by Triax
Midwest Associates, L.P. ("Triax"); and
on April 29, 1999, a certain Asset Purchase Agreement ("Agreement") was made and
entered into by and among Triax and Mediacom LLC; and
Triax and Mediacom have requested consent by the City to transfer the Franchise and
the assets comprising the Cable System to Mediacom Minnesota LLC ("Mediacom");
and
in compliance with the terms of the Asset Purchase Agreement, the name of
grantee/franchisee under the Franchise will be changed to Mediacom; and
under the Franchise and applicable law, the proposed Transfer requires consent from
the City; and
the City has reviewed the proposed Transfer and the legal, technical and financial
qualifications of Mediacom and Mediacom LLC; and
based on information obtained and on the reports and information received by the City,
including the report prepared by the City's cable television consultants, Moss & Barnett,
a Professional Association, which is hereby incorporated by reference, the City has
found no reason to disapprove of the proposed Transfer to Mediacom; and
by Resolution 99-74, the Prior Lake City Council has approved of the transfer and
assignment subject to six conditions including satisfactory completion of a new Cable
Television Franchise Ordinance and Cable Television Franchise Agreement; and
both documents have been prepared and are to be considered by the Prior Lake City
Council on or before October 18, 1999.
Now THEREFORE, be it resolved by the City Council of the City of Prior Lake as follows:
1. The Franchise Agreement dated October 18, 1999 is hereby approved, and the Mayor and City
Manager are hereby authorized to execute said Agreement on behalf of the City.
16200 Eagle Creek Ave. S.E.. Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245
AN EQUAL OPPORTUNITY EMPLOYER
This Resolution shall take effect and continue and remain in effect from and after the date of its
passage, approval and adoption.
PASSED AND ADOPTED THIS 18TH DAY OF OCTOBER, 1999.
Mader Mader
Kedrowski Kedrowski
Petersen Petersen
Schenck Schenck
Wuellner Wuellner
YES
NO
{Seal}
City Manager, City of Prior Lake
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October 14, 1999
Brian T. Grog&n. Esq.
Moss & Barnen
4800 Norwest Centel'
90 South Seventh Strec1
Minneapolis, MN 55402-4129
VIAJ'A-CS1MILE &. ItS. MAIl.
Re: Cif)' of Prior Litke, MinncSQ1atrri" Midwest A5sotiatcs. L.P.
D~ar Brian:
On bc:h:ilf ofTri~ Mid-cst I\ssocint~;;~ L.P. ("Triax'1 zmd. M~clia.c:om LLC ("'M~aiacomn)l Lhi:i ktJ,l:r
hc:reby represents the a~emCIlt by alld betWeen TriO' and Tnd~pend,"m School District 719 C'Districf-j
to extend the Data Link Licen:ie ^t.'feement. dated Decembt!f 3D, 1994, between the District lUI.d DD
Ca.hle Partners, Triax's predecessor in interest. \U1ril May 31, 2001, subject to the adoption of the .uew
Cable Tele"ision h<wcbise by the Cit)' of hior LUc on Octo~r 18, 1999. McdiaJ;om hCI'cby agn:cs lO
commence ne:gotiOltioo of a new Jia~;;a l~a.sc: agc~Q~jJ.IlJl1 mutually Q.~~CpLAbh:: lams i:UUl ~ollditiOD;; 4fYer
the closing ofthe LT4Tlsfer (lfrhe Franchise and Sy:stc:m from Tria.:x to Medixom Minneso1a. LLC
ane E. Bremer, fOl
LARKIN, HOfFMAN. DAt y &: LINDGREN. Ltd.
cc: Rick Finch
Tom Bordwell
Chris O'Toulc:
C~lvin C.raib
Eric Breisacb.. Esq.
Bruce Olul;kman.. Esq.
ClS:Z~IW 01
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
WHEREAS,
RESOLUTION 99-74
Approving the Transfer and Assignment
of the Cable Television Franchise
From Triax Midwest Associates to Mediacom LLC.
Motion By: Kedrowski
Second By: Schenck
on or about August 15, 1983, the City of Prior Lake ("City") passed and adopted an
Ordinance granting a Cable Television Franchise ("Franchise") currently held by Triax
Midwest Associates, L.P. ("Triax"); and
on April 29, 1999, a certain Asset Purchase Agreement ("Agreement") was made and
entered into by and among Triax and Mediacom LLC; and
Triax and Mediacom have requested consent by the City to transfer the Franchise and
the assets comprising the Cable System to Mediacom Minnesota LLC ("Mediacom");
and
in compliance with the terms of the Asset Purchase Agreement, the name of
grantee/franchisee under the Franchise will be changed to Mediacom; and
under the Franchise and applicable law, the proposed Transfer requires consent from
the City; and
the City has reviewed the proposed Transfer and the legal, technical and financial
qualifications of Mediacom and Mediacom LLC; and
based on information obtained and on the reports and information received by the City,
including the report prepared by the City's cable television consultants, Moss & Barnett,
a Professional Association, which is hereby incorporated by reference, the City has
found no reason to disapprove of the proposed Transfer to Mediacom.
Now THEREFORE, be it resolved by the City Council of the City of Prior Lake as follows:
1. Triax is the lawful holder of the Franchise.
2. The City hereby consents and approves of the proposed Transfer subject to:
. Closing of the transaction contemplated within the Asset Purchase Agreement pursuant to
the terms and conditions described in information provided to the City by Triax and
Mediacom LLC.
. Mediacom LLC notifying the City in writing of the completion of the Transfer within thirty (30)
days of the date of closing of the Transfer.
. Mediacom, within thirty (30) days of the closing of the Transfer, providing the City with a
signed Acceptance of the Franchise in .the form attached hereto and incorporated by
reference and a Certificate of Good Standing or Existence for Mediacom for the State of
16200 Eagle Creek Ave. S.E., Prior Lake, Minnesota 55372-1714 / Ph. (612) 447-4230 / Fax (612) 447-4245
AN EQUAL OPPORTU:\ITY EMPLOYER
,l:
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Minnesota, and Mediacom LLC providing the City with a Corporate Guaranty in the form
attached hereto.
· The City and Triax executing a mutually acceptable Cable Television Franchise Ordinance
on or before October 10, 1999, the date on which the franchise is due to close.
· Triax complying with Article XII, Section 1 (H) of the Franchise regarding reimbursement of
costs incurred by City.
3. The City hereby waives any right of first refusal which the City may have to purchase the
Franchise, or the cable television system serving the City, but only as such right of first refusal
applies to the request for approval of the Transfer now before the City.
4. In the event the Transfer from Triax to Mediacom contemplated by the foregoing resolutions is not
completed, for any reasons, the City's consent shall not be effective. .
5. Mediacom may, at any time and from time to time, assign, grant, or pledge or otherwise convey
one or more liens or security interest in its assets, including its rights, obligations and benefits in
and to the Franchise to any lender providing financing to Mediacom.
6. To the maximum extent permitted by all applicable local, state and federal laws, this Resolution
shall not be construed to in any way relieve Triax nor limit Mediacom from any liability under the
Franchise.
This Resolution shall take effect and continue and remain in effect from and after the date of its
passage, approval and adoption.
PASSED AND ADOPTED THIS 16TH DAY OF AUGUST, 1999.
Mader X Mader
Kedrowski X Kedrowski
Petersen X Petersen
Schenck X Schenck
Wuellner X Wuellner
YES
NO
{Seal}
R:\COUNCI L \RESOLUTI\ADM I N RES\99\99-7 4. DOC
LAW OFFICES
BRIAN 1. GROGAN
(612) 347-0340
E-Mail: GroganB@moss-barnett.com
MOSS & BARNETT
A PROFESSIONAL AsSOCIATION
4800 NORWEST CENTER
90 SOUTH SEVENTH STREET
MINNEAPOLIS, MINNESOTA 55402-4129
TELEPHONE 16121 347-0300
FACSIMILE 16121 339-6686
October 15, 1999
VIA J\1ESSENGER
Mr. Frank Boyles
City Manager
City of Prior Lake
16200 Eagle Creek Avenue NE
Prior Lake, MN 55372
Re: Final Franchise Documentation
Our File No.: 39411.1
Dear Frank:
I did speak this morning with Susan Pace regarding her concerns on the franchise
documentation. Additional revisions to the documents were made following that conversation.
I have enclosed herewith the final versions of the documents for action and consideration
by the City council at its October 18, 1999 meeting. I plan to be in attendance at that meeting
although I would appreciate if you could give me call and let me know approximately what time
the City council will be taking action on this matter.
If you should have any questions or if I can provide any additional information or
assistance, please feel free to contact me.
Brian T. Grogan
BTG/tlh
Enclosures
cc: Jane Bremer, Esq. (via facsimile w/o enclosures and U.S. Mail w/enclosures)
288615/1
THE CITY OF PRIOR LAKE, MINNESOTA
CABLE TELEVISION
FRANCHISE AGREEMENT
OCTOBER 15, 1999
Prepared by:
BRIAN T. GROGAN, ESQ.
Moss & Barnett
A Professional Association
4800 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402-4129
(612) 347-0340
TABLE OF CONTENTS
1. GENERAL PROVISIONS...................................................................................................... 1
1.1) Definitions. ............................................................................................................... 1
1.2) Written Notice...... .......... ................... ......... ................ ....... .................. ............ ......... 1
2. RENEWAL OF FRANCHISE... .............................. ......................... ............... ........................ 2
2. 1) Grant. . . .. . . . . . .... . . . . . . . . ... . . .... .... .... . . . . .. . . . . ... . . .... ... . . . . . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . ....... . . .. . . . ....... . . . 2
2.2) Right of Grantor to Issue and Renew Franchise. .......................................................2
2.3) Effective Date of Renewal. ................................................................... ....................2
2.4) Term. ....................................................................................................................... 3
2.5) Franchise Not Exclusive. ..... .............. ...... ......................... ........ ........ .......... ..... .........3
2.6) Ownership of Grantee.. ...... ....................... .... .................................... ................ ........3
3. GENERAL REQUIREMENTS............................................................................................... 3
3. 1) Governing Requirements. ......................................................................................... 3
3.2) Franchise Fee....... ........ .................................................................... ................ ......... 3
3.3) Not Franchise Fees. .................................................................................................. 4
3.4) Recovery of Processing Costs. .................................................................................. 4
3.5) Liability Insurance. ..... ....................... .... ............. ...... ................... ..... .......... ..... .........5
3.6) Indemnification. . . . ....... . .... . ... .. . . . . . . . . . . . . .... . ..... . . . . . . . .. ... . . .. . . . . .. . . .. . . . ... . .. . . . ..... . . ..... . . . ..... . . . 6
3.7) Grantee's Insurance. .. . . ..... . . . .. . . . . . . . . . . . . .... . . ..... . . . . . . . .... . . .. . . . . .... .. . . . . .. . .. . . ...... . . .... . . ... . . .. . . . 7
3.8) Workers' Compensation Insurance. ... ..... ............ ........... ........... ....... ..... ....................7
3.9) Security Fund. .......................................................................................................... 7
3.10) Procedure for Enforcing Franchise Agreement. ....................................................... 8
3.11) Reservation of Rights. ................ ............. .......... ........... ................. ..... ....................8
4. DESIGN PROVISION............ ................................ ....................... ................ ...... ...................8
4. 1) Minimum Channel Capacity. ..................................................................................... 8
4.2) System Design. ..... ...... .................................................. ............................................9
4.3) Operation and Maintenance of System. .....................................................................9
4.4) Special Testing. ... ............. ................................................................................ ........ 9
4.5) FCC Reports. ...... ....... .......... .......................... ................................................. ....... 10
4.6) Emergency Alert Capability. .................. ....... ...... .... ................ ....... ................... ...... 10
4.7) Parental Control Lock. . ................................... ................................................. ...... 10
4.8) Technical Standards........... ....... .................. ...................................................... ...... 10
4.9) Right of Inspection. ... ...... .... ..... ........... ...... ............. ............. .............. ......... ...... ...... 10
4.10) Periodic Evaluation, Review and Modification. ..................................................... 10
5 . SERVICES AND PROGRAMMING.................................................................................... 11
5.1) Services and Programming...................................................................................... 11
5.2) Leased Channel Service. ......................................................................................... 12
5.3) Periodic Subscriber Survey. .................................................................................... 12
6. PUBLIC ACCESS PROVISIONS. .......... .................. ......................... ............. ............... ....... 12
6.1) Public, Educational and Government Access. .......................................................... 12
6.2) Grantee Support for PEG Usage............................................................................. 12
7 . REGULATION..................................................................................................................... 13
7.1) Amendment of Franchise Agreement. ..................................................................... 13
7.2) Conflict Between Ordinance and Agreement. .. .. .. ..... .. .. .. ..... ... .. .. . .. . .. .. .. ... ... .. .. . .. .. .... 13
288602/1
7.3) Force Majeure. .. ............................................................................................. ........ 13
7.4) Rate Regulation. . . ... . . . . . . .. .. . . . . . . . .. . . .. . . . . . . .. . . . . . .. . ... . . . . . . . . . . . ..... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . .. 13
288602/1
11
FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT (hereinafter the "Agreement"), made and
entered into this day of 1999, by and between the City of Prior Lake, a
municipal corporation of the State of Minnesota (hereinafter the "City" or '''Grantor''),
and Triax Midwest Associates, L.P. (hereinafter the "Grantee").
WITNESSETH
WHEREAS, pursuant to Ordinance No. (the 'Ordinance'), the City is authorized
to grant and renew one or more nonexclusive revocable Franchises to operate,
construct, maintain and reconstruct a cable television system within the City; and
WHEREAS, the City, after due evaluation of the Grantee's technical ability,
financial condition and legal qualifications, and after public hearings, has determined
that it Is in the best interest of the City and its residents to renew the Franchise held by
the Grantee;
WHEREAS, in consideration of a System upgrade, as provided and required by
this Agreement, the City has agreed to renew the Franchise held by the Grantee; and
NOW, THEREFORE, in consideration of the foregoing promises and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1.
GENERAL PROVISIONS
1.1) Definitions.
Capitalized terms used in this Agreement shall be defined as set forth in the
Ordinance unless (i) otherwise defined herein, or (ii) the context otherwise requires.
1.2) Written Notice.
All notices, reports or demands required or permitted to be given under this
Agreement and/or the Ordinance shall be in writing and shall be deemed to be given
when delivered personally to the party designated below, or when five (5) days have
elapsed after it has been deposited in the United States mail in a sealed envelope, with
registered or certified mail, postage prepaid thereon, or on the next business day if sent
by express mail or nationally recognized overnight air courier addressed to the party to
which notice, report or demand is being given, as follows:
288602/1
1
If to City:
City Manager
16200 Eagle Creek Ave., S.E.
Prior Lake, MN 55372-1714
If to Grantee: Regional Manager
Triax Cablevision
212 -15th Avenue NE
Suite 2010
Waseca, MN 56093
Such addresses may be changed by either party upon notice to the other party given as
provided in this Section.
SECTION 2.
RENEWAL OF FRANCHISE
2.1) Grant.
Upon acceptance of this Franchise by Grantee, the Franchise granted pursuant
to Ordinance No. , passed and adopted on the day of 19_ to,
Triax Midwest Associated, L.P., is hereby replaced and superseded by the provisions
of the Ordinance, subject to the terms and conditions of this Agreement. This
Franchise hereby provides Grantee with the authority, right and privilege to construct,
reconstruct, operate and maintain a Cable Television System to provide Cable Services
within the Franchise Area.
2.2) Right of Grantor to Issue and Renew Franchise.
Grantee acknowledges and accepts the right of Grantor to issue and/or renew
the Franchise under federal or state law as it existed on the Effective Date hereof. All
future renewals will be governed by the applicable federal or state law at the time of
renewal.
2.3) Effective Date of Renewal.
The renewal of the Franchise provided for in this Agreement shall be effective on
the date that both parties have executed this Agreement (the "Effective Date"), provided
that said date is no later than thirty (30) days after the date the City Council, by
Resolution, approves this Agreement (the "Approval Date"). The renewal of the
Franchise provided for in this Agreement is further contingent upon the filing by
Grantee with the City Clerk of the City, of this Agreement duly executed by Grantee
together with the security fund and insurance certificates provided for in this Agreement
and the Ordinance, except that if such filing does not occur within thirty (30) days after
the Approval Date, the Grantor may, in its sole discretion, declare the renewal of the
Franchise provided for herein to be null and void.
288602/1
2
2.4) Term.
The term of the Franchise renewed pursuant to this Agreement shall be for the
period of fifteen (15) years commencing on the Effective Date, at which time it shall
expire and be of no force or effect unless the Franchise is then renewed in accordance
with the Ordinance and Applicable Laws.
2.5) Franchise Not Exclusive.
The Franchise renewed pursuant to this Agreement shall not be construed as
limiting the right of Grantor, through its proper offices, and in accordance with the
Ordinance and Applicable Law, to grant other Franchises containing terms and
conditions that are no more favorable or less burdensome than those imposed on
Grantee by this Franchise; provided, however, that such additional grants shall not
operate to materially modify, revoke or terminate any rights granted to Grantee herein
and shall be in accord with the provisions of the Ordinance.
2.6) Ownership of Grantee.
Grantee represents and warrants to Grantor that the names of the shareholders,
partners, members or other equity owners of the Grantee and of any of the
shareholders, partners, members and/or other equity owners of Grantee holding an
equity interest of more than five percent (5%) are as set forth in Exhibit A hereto.
SECTION 3.
GENERAL REQUIREMENTS
3.1) Governing Requirements.
Grantee shall comply with all lawful requirements of this Agreement, the
Ordinance and Applicable Laws.
3.2) Franchise Fee.
(a) In consideration of the renewal of the Franchise provided for herein, the
Grantee shall, at all times during the term of this Agreement, pay to Grantor a
Franchise Fee of five percent (5%) of Grantee's Gross Revenues as defined in the
Ordinance but excluding any Access Operating Support funds collected. The
Franchisee Fee shall be payable quarterly within thirty (30) days of the expiration of the
preceding calendar quarter. Each payment shall be certified by Grantee's controller or
chief financial officer and shall be accompanied by a report in such form as the City
may reasonably request showing the computation of the Franchise Fee as it relates
specifically to the Prior Lake franchise area (CUID # MN0441) for the preceding
calendar quarter and such other relevant facts as may be required by the City,
including the completion of a Franchise Fee Payment Worksheet in the form attached
hereto as Exhibit B.
288602/1
3
3.3) Not Franchise Fees.
(a) Grantee acknowledges and agrees that the Franchise Fees payable by
Grantee to the City pursuant to Section 3.2 hereof shall take precedence over all other
payments, contributions, Services, equipment, facilities, support, resources or other
activities to be provided or performed by the Grantee pursuant to this Agreement
and/or the Ordinance and that the Franchise Fees provided for in Section 3.2 of this
Agreement shall not be deemed to be in the nature of a tax, and shall be in addition to
any and all taxes of general applicability and other fees and charges which the Grantee
shall be required to pay to the City and/or to any other governmental authority, all of
which shall be separate and distinct obligations of Grantee.
(b) Grantee shall not apply or seek to apply or make any claim that all or any
part of the Franchise Fees or other payments or contributions to be made by Grantee to
Grantor pursuant to this Agreement and/or the Ordinance shall be deducted from or
credited or offset against any taxes, fees or assessments of general applicability levied
or imposed by the City or any other governmental authority, including any such tax, fee
or assessment imposed on both utilities and cable operators or their services.
(c) Grantee shall not apply or seek to apply all or any part of any taxes, fees
or assessments of general applicability levied or imposed by the City or any other
governmental authority (including any such tax, fee or assessment imposed on both
utilities and cable operators or their services) as a deduction or other credit from or
against any of the Franchise Fees or other payments or contributions to be paid or
made by Grantee to Grantor pursuant to this Agreement and/or the Ordinance, each of
which shall be deemed to be separate and distinct obligations of the Grantee.
3.4) Recovery of Processing Costs.
(a) During the term of this Agreement, if the Grantee initiates a request for
approval regarding the transfer of this Franchise or a change in control of the Grantee,
the Grantee shall, to the extent permitted by Applicable Laws, reimburse the Grantor for
all reasonable out-of-pocket costs, including attorneys' and consultants' fees and costs,
incurred by the Grantor in connection with Grantor's review and processing of
Grantee's request up to a mutually agreed upon reasonable cap.
(b) To aid in the analysis and resolution of any future disputed matters
relative to this Agreement, the Grantor and Grantee may, by mutual written agreement
(both as to whether to hire and whom to hire), employ the services of technical,
financial and/or legal consultants, as mediators. All reasonable fees of the consultants
incurred by the Grantor and/or the Grantee in this regard shall, unless the parties
otherwise agree, be borne equally by Grantor and Grantee.
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3.5) Liability Insurance.
(a) Upon the Effective Date, the Grantee shall, at its sole expense and in
addition to all required insurance under Section 1.27 of the Ordinance, take out and
maintain during the term of this Agreement public liability insurance with a company
licensed to do business in the State of Minnesota with a rating by AM. Best & Co. of
not less than "A" that shall protect the Grantee, the Grantor and their officials, officers,
directors, employees and agents from claims which may arise from operations under
this Agreement, 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 Two
Million Dollars ($2,000,000.00). The following endorsements shall attached to the
liability policy:
(1) The policy shall provide coverage on an "occurrence" basis.
(2) The policy shall cover personal injury as well as bodily injury.
(3) 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.
(4) Property damage liability.
(5) The Grantor shall be named as an additional insured on the policy.
(6) An endorsement shall be provided which states that the coverage
is primary insurance and that no other insurance maintained by the
Grantor will be called upon to contribute to a loss under this
coverage.
(7) Standard form of cross-liability shall be afforded.
(8) An endorsement stating that the policy shall not be canceled
without providing thirty (30) days written notice of such cancellation
to the Grantor.
(b) Grantor reserves the right to adjust the insurance limit coverage
requirements of this Agreement no more often than once every three (3) years. Any
such adjustment by the Grantor will be no greater than the increase in the State of
Minnesota Consumer Price Index (all consumers) for such three (3) year period.
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;T
(c) Grantee shall submit to Grantor documentation of the required insurance,
including a certificate of insurance signed by the insurance agent and companies
named, as well as all properly executed endorsements.
3.6) Indemnification.
(a) In addition to Grantee's indemnification obligations under Section 1.26 of
the Ordinance, Grantee shall indemnify, defend and hold Grantor, its officers, boards,
commissions, agents and employees (collectively the 'Indemnified Parties') harmless
from and against any and all lawsuits, claims, causes of action, actions, liabilities,
demands, damages, judgments, settlements, disability, losses, expenses (including
attorney's fees and disbursements of counsel) and costs of any nature that any of the
Indemnified Parties may at any time suffer, sustain or incur arising out of, based upon
or in any way connected with the Grantee's operations, the exercise of the Franchise
renewed pursuant to this Agreement, the breach by Grantee of its obligations under
this Agreement or the Ordinance and/or the activities of Grantee, its subcontractor,
employees and agents hereunder. Grantee shall be solely responsible for and shall
indemnify, defend and hold the Indemnified Parties harmless from and against any and
all matters relative to payment of Grantee's employees, including compliance with
Social Security and withholdings.
(b) The indemnification obligations of Grantee set forth in this Agreement are
not limited in any way by the amount or type of damages or compensation payable by
or for Grantee under Workers' Compensation, disability or other employee benefit acts,
acceptance of insurance certificates required under this Agreement, or the terms,
applicability or limitations of any insurance held by Grantee.
(c) Grantor does not, and shall not, waive any rights against Grantee which it
may have by reason of the indemnification provided for in this Agreement, because of
the acceptance by Grantor, or the deposit with Grantor by Grantee, of any of the
insurance policies described in this Agreement.
(d) The indemnification of Grantor by Grantee provided for in this Agreement
shall apply to all damages and claims for damages of any kind suffered by reason of
any of the Grantee's operations referred to in this Agreement, regardless of whether or
not such insurance policies shall have been determined to be applicable to any such
damages or claims for damages.
(e) Grantee shall not be required to indemnify Grantor for negligence or
misconduct on the part of Grantor or its officials, boards, commissions, agents, or
employees. Grantor shall hold Grantee harmless, subject to the limitations in
Minnesota Statutes Chapter 466, for any damage resulting from the negligence or
misconduct of the Grantor or its officials, boards, commissions, agents, or employees in
utilizing any PEG access channels, equipment, or facilities and for any such negligence
or misconduct by Grantor in connection with work performed by Grantor and permitted
by this Agreement, on or adjacent to the Cable System.
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3.7) Grantee's Insurance.
Grantee shall not commence any Cable System reconstruction work or permit
any subcontractor to commence work until all insurance required under this Agreement
and the Ordinance has been obtained and the certificate of insurance required in
Section 3.4(c) is provided to Grantor. Said insurance shall be maintained in full force
and effect until the expiration of this Agreement.
3.8) Workers' Compensation Insurance.
Grantee shall obtain and maintain Workers' Compensation Insurance for all of
Grantee's employees, and in case any work is sublet, Grantee shall require any
subcontractor similarly to provide Workers' Compensation Insurance for all of their
employees, all in compliance with State laws, and to fully indemnify the Grantor from
and against any and all claims arising out of occurrences on the work performed by
Grantee and/or its subcontractors. Grantee hereby indemnities Grantor for any and all
costs, expenses (including attorneys' fees and disbursements of counsel), damages
and liabilities incurred by Grantor as a result of any failure of either Grantee or any
subcontractor to take out and maintain such insurance. Grantee shall provide the
Grantor with a certificate of insurance indicating Workers' Compensation coverage on
the Effective Date.
3.9) Security Fund.
(a) Within sixty (60) days of the Approval Date, Grantee shall establish and
provide to Grantor a security fund, as security for the full and timely payment and
performance by Grantee of all of its obligations under this Agreement and the
Ordinance. The security fund shall consist of two (2) parts. The first part shall be in
the amount of One Hundred Thousand Dollars ($100,000) and shall be in the form of a
performance bond, which shall be in a form acceptable to Grantor's City Attorney. The
second part shall be in the amount of at least Ten Thousand Dollars ($10,000) and
shall be in the form of an irrevocable letter of credit reasonably acceptable to the City
Attorney, established in a local bank.
(b) The first part of the security fund shall be maintained at the One Hundred
Thousand Dollar ($100,000) level until the System upgrade and/or rebuild provided for
in Section 4.1 hereof is completed as determined by City, at which time that part of the
fund shall be released. The second part of the security fund shall be maintained at the
Ten Thousand Dollar ($10,000) level throughout the term of this Franchise Agreement.
If, at any time during the term of this Franchise, Grantee seeks consent to a transfer or
assignment of its rights hereunder, Grantor may unilaterally increase the security fund
up to Twenty Thousand Dollars ($20,000) if it so chooses.
(c) The security fund may be drawn upon by Grantor for those purposes
specified in Section 3.10 hereof, in accordance with the procedures of Section 3.10 and
the Ordinance. Grantee's recourse, in the event Grantee believes that Grantor's
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actions in taking any security funds is improper, shall be through legal action after the
security has been drawn upon. Actions brought by Grantee hereunder may be subject
to 47 U.S.C. ~555A - Limitations of Franchising Authority Liability - which is hereby
incorporated by reference as if fully set forth herein.
(d) Nothing herein shall be deemed a waiver of the normal permit
requirements made of all contractors working within the City's rights-of-way.
3.10) Procedure for Enforcing Franchise Agreement.
(a) The procedures for enforcing violations or breaches of this Franchise
Agreement and/or the Ordinance shall be consistent with the procedures set forth in
Section 1.30 of the Ordinance in effect on the date of enactment of the Franchise.
(b) In the event the Council finds that a material violation or breach exists
and that Grantee has not cured the same in a satisfactory manner, has not diligently
commenced correction of such violation or breach or has not diligently proceeded to
fully remedy such violation or breach, the Council may impose liquidated damages,
assessable from the security fund, of Three Hundred Dollars ($300) per day or per
incident (City may require Grantee to apply the proceeds of any such penalties to a pro
rata subscriber credit; City and Grantee shall mutually agree on the methodology for
any such credit), for unexcused violations or breaches of the System upgrade and/or
rebuild completion schedule provided in Section 4.1 herein, and up to One Hundred
Fifty Dollars ($150) per day or per incident for all other violations or breaches of this
Agreement and/or the Ordinance, provided that all violations or breaches of a similar
nature occurring at the same time shall be considered one (1) incident. However, City
reserves the right to impose separate penalties for each day said violation continues.
3.11) Reservation of Rights.
Grantor and Grantee reserve all rights that they may possess under Applicable
Laws unless expressly waived herein.
SECTION 4.
DESIGN PROVISION
4.1) Minimum Channel Capacity.
(a) On or before May 31, 2001, Grantee shall develop, construct and operate
within the City a 750 MHz (550 MHz analog and 200 MHz digital) fiber/coaxial hybrid
cable system which shall be capable of delivering a minimum of eighty (80) video
program channels and which shall initially deliver to all subscribers capable of
receiving said channels a minimum of sixty (60) video program channels.
(b) All programming decisions remain the sole discretion of Grantee provided
that Grantee complies with federal law regarding notice to City and Subscribers prior to
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any channel additions, deletions, or realignments, and further subject to Grantee's
signal carriage obligations pursuant to 47 U.S.C. SS 531-536, and subject to City's
rights pursuant to 47 U.S.C. S 545. .
4.2) System Design.
(a) The System required herein will be engineered and built to provide a
minimum of eighty (80) channels using a 750 MHz (550 MHz analog and 200 MHz
digital) bandwidth technology. Grantee shall meet with City to review its system design
and construction plans prior to the commencement of construction and shall, at the
request of City, participate in a public meeting designed to inform residents of City of
said design and construction plans. In those residential areas where fiber optic cable
will be deployed, the system shall incorporate multiple strands of fiber and serve an
average of five hundred (500) homes per fiber node. The System shall at all times
meet the technical standards established by the FCC as they may be amended from
time to time and shall be operated so as to minimize disruption of signal to Subscribers.
The general System description is outlined in Exhibit E, which is incorporated herein by
reference.
(b) On or about thirty (30) days prior to construction of the upgraded system,
affected subscribers will receive a letter notifying them of same. Upon completion of
system construction, Grantee shall provide that if installation is not accomplished within
the time frame specified by the operator, installation shall be free for the subscriber or
operator shall provide said subscriber with a Twenty Dollar ($20) credit.
4.3) Operation and Maintenance of System.
The Grantee shall render effective service, make repairs promptly, and interrupt
service only for good cause and for the shortest time possible. Such interruption, to the
extent feasible, shall be preceded by notice in accordance with Section 1.2 herein and
all applicable provisions of the Ordinance, and shall occur, to the extent feasible,
during periods of minimum use of the System.
4.4) Special Testing.
City may require special testing of a location or locations within the System if
there is a particular matter of controversy or unresolved complaints pertaining to such
location(s). Demand for such special tests may be made on the basis of complaints
received or other evidence indicating an unresolved controversy or noncompliance.
Such tests shall be limited to the particular matter in controversy or unresolved
complaints. The City shall endeavor to so arrange its request for such special testing
so as to minimize to the extent reasonably feasible hardship or inconvenience to
Grantee or to the Subscribers caused by such testing. Before ordering such tests,
Grantee shall be afforded thirty (30) days to correct problems or complaints upon which
tests were ordered. The City shall meet with Grantee prior to requiring special tests to
discuss the need for such and, if possible, visually inspect those locations which are
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.''''
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 by a qualified
engineer selected by City. In the event that special testing is required by City to
determine the source of technical difficulties, the cost of said testing shall be borne by
the Grantee if the testing reveals the source of the technical difficulty to be within
Grantee's reasonable control. If the testing reveals the difficulties to be caused by
factors which are beyond Grantee's reasonable control then the cost of said test shall
be borne by City.
4.5) FCC Reports.
Upon request, the results of tests required to be filed by Grantee with the FCC
shall also be copied to City.
4.6) Emergency Alert Capability.
Grantee shall at all times comply with all Applicable Laws regarding the
provision of emergency alert services. At a minimum, Grantee shall at all times have
the capability for an emergency override alert. The emergency override by City shall
emanate from Fire Station NO.1 on Fish Point Road in City.
4.7) Parental Control Lock.
Grantee shall provide, for sale or lease, to Subscribers, upon request, a parental
control locking device or digital code that permits inhibiting the video and audio
portions of any Channels offered by Grantee.
4.8) Technical Standards.
Grantee shall, at a minimum, comply at all times with all applicable Federal
Communications Commission (FCC) Rules and Regulations, including but not limited
to, Part 76, Subpart K (Technical Standards), as may be amended from time to time.
4.9) Right of Inspection.
Grantor shall have the right to inspect all construction, reconstruction or
Installation work performed by Grantee under the provisions of this Agreement and
Applicable Laws, to ensure Grantee's compliance and to protect the health, safety and
welfare of Grantor's citizens.
4.10) Periodic Evaluation, Review and Modification.
Grantor and Grantee acknowledge and agree that the field of cable television is
a relatively new and rapidly changing one which may see many regulatory, technical,
financial, marketing and legal changes during the term of this Agreement. Therefore, in
order to provide for the maximum degree of flexibility in this Agreement, and to help
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achieve a continued, advanced and modern Cable System, the following evaluation
provisions will apply:
(a) The City reserves the right to adopt rules and regulations controlling the
procedures as set forth below and the subjects for evaluation sessions. In the absence
of any City action taken to exercise these rights, Grantee shall be subject to the
procedures and the subjects described in this Section 4.10.
(b) The City may require, in its sole discretion, that the Grantee participate in
evaluation sessions with the City at any time and from time to time during the term of
this Agreement; provided, however, there shall not be more than one (1) evaluation
session during any calendar year.
(c) Topics which may be discussed at any evaluation session include, but are
not limited to, rates, channel capacity, the System performance, programming, PEG
access, municipal uses of the System, Subscriber complaints, judicial rulings, FCC
rulings and any other topics the City or Grantee may deem relevant.
(d) During an evaluation session, Grantee shall fully cooperate with the City
and shall provide without cost and in a timely manner such information and documents
as the City may reasonably request to perform the evaluation and the disclosure of
which would not violate federal law or reveal confidential proprietary information.
(e) As a result of an evaluation session, the City or Grantee may determine
that an amendment in the terms of this Agreement may be required, that the
requirements of the System or this Agreement should be updated, changed or revised,
and/or that additional services should be provided by Grantee (collectively a "Proposed
Modification"). If the Proposed Modification is consistent with the terms of this
Agreement, the Ordinance, the needs of the City and existing state-of-the-art
technology, including what is provided by Grantee in other Systems owned, operated or
managed by it, its parent company or any affiliated company, Grantee and the City will,
in good faith, review the terms of the Proposed Modification and consider amending
this Agreement accordingly. All franchise modifications, however, must be mutually
acceptable to both the City and Grantee and shall take into consideration technical and
financial feasibility considering the remaining life of the franchise, among other factors.
SECTION 5
SERVICES AND PROGRAMMING
5.1) Services and Programming.
Grantee shall provide Grantor with a list of programming services and other
services offered, which list shall be attached hereto as Exhibit C(the 'Channel Line-up').
The Channel Line-up shall include all applicable charges and pricing schedules. The
Channel Line-up shall be updated each time a change is made by Grantee. Grantee
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-....
shall not alter the number of program services or other services without thirty (30) days
prior written notification to the Grantor and System Subscribers.
5.2) Leased Channel Service.
Grantee shall offer leased channel service on reasonable terms and conditions
and in accordance with Applicable Laws.
5.3) Periodic Subscriber Survey.
(a) To the extent Grantee conducts customer surveys with respect to all or a
portion of the system serving the City, upon request, it shall provide the City with all
information and findings from such surveys, subject to the privacy rights of subscribers
and the right of Grantee to withhold confidential proprietary material.
(b) Grantee shall provide the City with the results of any survey conducted
and shall report in writing or orally before the City Council what steps Grantee is taking,
if any, to implement the findings of the survey, such as correcting problems and
expanding services.
SECTION 6.
PUBLIC ACCESS PROVISIONS
6.1) Public, Educational and Government Access.
(a) City or its designee is hereby designated to operate, administer, promote,
and manage access (public, education, and government programming) (hereinafter
"PEG access") to the cable system established pursuant to this Section 6. Grantee
shall have no responsibility whatsoever for PEG access except as expressly stated in
this Section 6.
6.2) Grantee Support for PEG Usage.
In accordance with the provisions of the Cable Act and Minn. Stat. 9238.084,
Grantee shall provide and make available for public, educational and governmental
(PEG) access usage within the Service Area the following:
(a) Provision and use of the grant funds and Channels designated in Exhibit
o of this Agreement for local educational and governmental programming and access
use at no charge in accordance with the requirements of Exhibit D.
(b) Maintenance of the Access Facilities and Channels, and support of
educational and governmental programming to the extent specified in Exhibit 0 of this
Agreement.
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(c) Provision of free public building Installation and cable service as more
clearly specified in Exhibit 01, and provision of cablecasting capability to the locations
specified in Exhibit 02.
(d) Access Facilities shall be operated by the City.
SECTION 7
REGULATION
7.1) Amendment of Franchise Agreement.
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
4.1 0 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. City shall act pursuant to local law pertaining to the ordinance
amendment process.
7.2) Conflict Between Ordinance and Agreement.
In the event of any conflict between the terms and conditions of this Franchise
Agreement and the provisions of the Ordinance, the provisions of this Franchise
Agreement shall control. Grantee expressly acknowledges and agrees that the City
hereby retains all of its police powers and the City may unilaterally amend the
Ordinance in the exercise of its police powers and Grantee shall comply with said
Ordinance as may be amended; provided, however that City hereby agrees to use
reasonable efforts to address public health, welfare and safety needs without resorting
to amending the Ordinance. By executing this Franchise Agreement both City and
Grantee acknowledge and agree that neither is aware of any conflicts between this
Franchise Agreement and the Ordinance.
7.3) Force Majeure.
In accordance with Section 1.31 of the Ordinance, in the event Grantee's
performance of any of the terms, conditions, obligations or requirements of this
Agreement or the Ordinance is prevented or impaired due to any cause beyond its
reasonable control, such inability to perform shall be deemed to be excused for the
period of such inability and no penalties or sanctions shall be imposed as a result
thereof.
7.4) Rate Regulation.
Nothing in this Agreement shall in any way prevent Grantor from regulating any
rates charged by Grantee. If Grantor elects to so regulate, Grantor shall follow the
procedures outlined in Section 1.19 of the Ordinance or Applicable Laws.
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IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement
the day, month and year first above written.
CITY OF PRIOR LAKE, MINNESOTA
Dated:
By:
Its: Mayor
ATTEST:
By:
Its: City Manager
(SEAL)
TRIAX MIDWEST ASSOCIATES, L.P.
Dated:
By:
Its:
(CORPORATE SEAL)
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me on , 1999,
by , the Mayor of the City of Prior Lake, on behalf of the City.
Notary Public
STATE OF MINNESOTA )
) ss.
COUNTY OF )
The foregoing instrument was acknowledged before me on , 1999,
by , the of Triax Midwest Associates, L.P., on
behalf of the Company.
Notary Public
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EXHIBIT A
OWNERSHIP
TRIAX MIDWEST ASSOCIATES, L.P.
is a [wholly owned subsidiary of parent name].
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~ ..- -- - ._._-~- ---
-- -----T---- -
(I"
f~
EXHIBIT B
FRANCHISE FEE PAYMENT WORKSHEET
Triax Midwest Associates, L.P.
(Prior Lake)
Subs
Franchise Fee: 5% Gross
Date
,1999
Revenue Source
Basic
Pay
Tier
Advertising and
Pay-Per-View
Other
Total $
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EXHIBIT C
CHANNEL LINE-UP
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EXHIBIT 0
GRANTEE COMMITMENT TO
PEG ACCESS FACILITIES AND EQUIPMENT
1. PUBLIC, EDUCATIONAL AND GOVERNMENT (PEG) ACCESS CHANNELS
Grantee shall provide to each of its subscribers who receive some or all of the
services offered on the Cable System, reception on at least one (1) specially
designated noncommercial public access channel available for use by the general
public on a first come, first-served nondiscriminatory basis; at least one (1) specially
designated access channel for use by local educational authorities; at least one (1)
specially designated access channel available for government use (hereinafter
collectively referred to as the 'PEG Channels'); and at least one (1) specially
designated access channel available for lease on a first-come, first-served,
nondiscriminatory basis by commercial and noncommercial users. The VHF spectrum
must be used for at least one (1) of the PEG Channels required in this paragraph. No
charges may be made for channel time or playback of prerecorded programming on the
specially designated noncommercial access channels. Personnel, equipment and
production costs may be assessed, however, for live studio presentations exceeding
five (5) minutes in length. Charges for those production costs and fees for use of other
public access channels must be consistent with the goal of affording the public a low-
cost means of television access.
Whenever the PEG Channels are in use during eighty percent (80%) of the
weekdays, Monday to Friday, for eighty percent (80%) of the time for any consecutive
three (3) hour period for six (6) weeks running, and there is demand for use of an
additional channel for the same purpose, the Grantee shall then have six (6) months in
which to provide a new PEG Channel for the same purpose, provided that provision of
the additional channel or channels must not require the Cable System to install
converters.
The PEG Channels shall be dedicated for PEG use for the term of the Franchise
Agreement, provided that Grantee may, utilize any portions of the PEG Channels not
scheduled for PEG use. Grantor shall establish rules and procedures for such
scheduling in accordance with Section 61 1 of the Cable Act (47 U.S.C. S 53 1).
Grantee shall also designate the standard VHF channel 6 for uniform regional
channel usage currently provided by 'Metro Channel 6' as required by Minn. Stat. S
238.43. Programming on this regional channel shall include a broad range of
informational, educational, and public service programs and materials to cable
television subscribers throughout the Twin Cities metropolitan area.
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2. PEG OPERATIONS
Grantor may in its sole discretion, negotiate agreements with neighboring
jurisdictions served by the same Cable System, educational institutions or others to
share the operating expenses of the PEG Channels. Grantor and Grantee may
negotiate an agreement for management of PEG facilities, if so desired by both parties.
3. TITLE TO PEG EQUIPMENT
Grantor shall retain title to all PEG equipment and facilities purchased or
otherwise acquired pursuant to the previous Prior Lake franchise Ordinance No.
4. PROMOTION OF PEG ACCESS
Grantee shall allow the Grantor to place bill stuffers in Grantee's Subscriber
statements at a cost to the Grantor not to exceed Grantee's cost, no more than twice
per year upon the written request of the Grantor if the placement of such materials
would not materially and adversely effect Grantee's cost for the production and mailing
of such statements. The Grantor agrees to pay Grantee in advance for the actual cost
of such bill stuffers. Upon request, Grantee shall also make available access
information provided by Grantor in Subscriber packets at the time of Installation and at
the counter in the System's business office within the Service Area. Grantee shall also
distribute, at no charge to Grantor, through advertising insertion equipment, 28 weekly
promotional and awareness commercial spots at randomly selected times in
unpurchased advertising space on a 'run of schedule basis' produced at the Grantor's
cost and submitted by the Grantor in a format compatible with such advertising
insertion equipment once Grantee has acquired and activated such capability.
5. SERVICE TO PUBLIC BUILDINGS
(a) One (1) cable drop connection and the highest level of cable service
excluding pay-per-view and pay-per-channel programming shall be provided free of
charge to each public building listed in Exhibit 0-1 with no Installation charges or
monthly service charges. Said drop connection and service provision shall be
concurrent with the construction schedule required by Section 4.1 of the Agreement.
Grantee shall, in any public building hereinafter built, provide all materials, design
specifications and technical advice for anyone cable outlet to be installed during the
construction of such building, without cost to the Grantor and Grantee shall provide the
same service to such new public building as required in this paragraph (a).
(b) After completion of the upgrade provided in Section 4, a two-way
connection shall be provided to the public buildings listed in Exhibit 0 2 to facilitated
cablecast programming from those buildings.
(c) Upon request, Grantee shall provide to City up to twelve (12) cable
modems for use in the twelve (12) public building listed in Exhibit 0-1. Nothing herein
shall require Grantee to provide free Internet service to said institutions. Grantee shall
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not be required to provide said modems before Internet services are available to
Grantee's Subscribers.
(d) Grantee shall at all times cooperate with City in providing technical
assistance desired by City regarding PEG access programming. Within a reasonable
time period following City's request, Grantee shall provide technical assistance
necessary to improve signal quality on the PEG access Channels.
6. PEG ACCESS OPERATING SUPPORT.
Grantee shall provide City with a capital grant of seventy-seven thousand dollars
($77,000.00). Grantee shall pay City thirty-eight thousand five hundred dollars
($38,500.00) of said Grant upon acceptance of this franchise. Grantee shall pay City
the remaining thirty-eight thousand five hundred dollars ($38,500.00) within twelve (12)
months of acceptance of this franchise. Grantee shall also collect on behalf of City a
per Subscriber fee of sixty-five cents ($.65) per month, which may be increased to a
maximum of one dollar twenty cents ($1.20) per month in City's sole discretion, solely
to fund public, educational and governmental access -related expenditures (hereinafter
"Access Operating Fee"). The Access Operating Fee may be adjusted by the City,
upon ninety (90) days advanced written notice to Grantee, no more frequently than
every two (2) years during the term of this Franchise. In addition, the Access Operating
Fee shall automatically be adjusted every two (2) years equal to the cumulative
increase in the Consumer Price Index ('CPI') during the preceding years. Any and all
payments by Grantee to City in support of PEG access programming shall not be
deemed 'franchise fees' within the meaning of Section 622 of the Cable Act (47 USC
Section 542).
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EXHIBIT 01
SERVICE TO PUBLIC FACILITIES
1. PUBLIC BUILDINGS:
CITY OF PRIOR LAKE, MINNESOTA BUILDINGS;
City Hall
Fire Station
Public Works
Library
Other:
SCHOOLS IN PRIOR LAKE:
District Services Center
Five Hawks
Glendale
Grainwood
Hidden Oaks
Pond's Edge
Prior Lake Senior High
Westwood
Other: Any school district building hereinafter built
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.,.
EXHIBIT D2
1. PUBLIC BUILDINGS TO BE PROVIDED WITH CABLECASTING CAPABILITY
A. BUILDINGS CURRENTLY EQUIPT WITH CABLECASTING CAPABILITY:
City Hall
Fire Station Five Hawks
Glendale
Grainwood
Hidden Oaks
Pond's Edge
Prior Lake Senior High
Westwood
B. BUILDINGS TO BE PROVIDED WITH CABLECASTING CAPABILITIES
AFTER COMPLETION OF THE UPGRADE PROVIDED IN SECTION 4 HEREIN,
NO EQUIPMENT INCLUDED
District Services Center
Library
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EXHIBIT E
DESCRIPTION OF SYSTEM UPGRADE
TRIAX MIDWEST ASSOCIATES, L.P.
Prior Lake
(This exhibit is intended to provide City with a general description of the System and
Grantee reserves the right to substitute comparable technology or design parameters
to provide or enhance the described System.))
The need for an enhanced network
Triax Midwest Associates, L.P.'s (Triax) currently services the area, while still
functional, is operating near its designed channel capacity. In order to respond to
requests for additional services from our customers, it is necessary to increase the
available capacity of the system.
Beyond traditional cable television video service, there are a host of other
services that can be supported by an upgraded network. High speed data, Internet
access, cost-effective telecommunications across the network, and even telephony can
be implemented according to the needs of the communities served.
Along with the potential for increasing the number of services supported by the
network, increased reliability and picture quality will be major priorities. Individual
neighborhoods can be isolated on the network so that unexpected outages in one area
do not affect several other areas, as is the case in many conventional coaxial cable
television systems.
The same techniques that allow additional signals to be carried, and keep
service interruptions to a minimum, provide an added benefit of improving the quality of
pictures seen by customers. In every coaxial cable television system, picture quality is
degraded as the signal moves further out into the system, passing through amplifier
after amplifier. In an upgraded network, there are significantly less amplifiers between
the origination site and the customer, resulting in better picture quality regardless of
where the customer may be in the system.
What the new network will look like
The proposed upgraded HFC (hybrid fiber/coax) network will operate with a
bandwidth of 5 MHz to 750 MHz, with 50 MHz to 550 MHz being allocated for 77
conventional analog channels. The remaining upper 200 MHz of bandwidth will be
reserved for future digital use consistent with Section 4. Through the use of digital
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compression, many channels can be carried in the same space as one analog channel.
The result is a large number of available channels, with plenty of additional capacity for
future needs.
The network will be capable of not only sending signals out to customers, but
returning signals back to the origination site from anywhere in the system, as well. This
'return' capability utilizes spectrum from 5 MHz to 40 MHz. The return system can be
used to transmit data and video, and may be used for insertion of locally-originated
programming, monitoring of certain key components in the network, and transmission of
data from set-top terminals used for pay-per-view and other customer services.
Fiber optic transmitters, cable, and optical receivers will be used to transport the
signals from the origination site, to a receiving location, or 'node.'. There will be a
maximum of 500 homes served from each node, which is an accepted industry
standard used when considering implementation of future services.
After each node, the number of active electronics, or amplifiers, would be
reduced to the minimum required to reach the limits of the community, while still
maintaining measurable picture quality better than current FCC requirements.
Each customer will have the option to use an 'addressable' set-top terminal to
access programming carried on the network. Special programming, such as 'impulse
pay-per-view' will be available simply by pressing a button to authorize the purchase.
Fiber optics and coaxial plan in the network
The optical transmission system will be the backbone of the new network,
providing the primary means of moving signals from the origination site out to each
community. At the origination site, all the programming to be carried on the system will
be converted to optical signals, and transmitted out into the system by a network of
fiber optic cables.
The combination of optical transmitters and cables allow more reliable, higher-
quality pictures to be received in each community. Earlier means of transmission,
involving many miles of metal-sheathed coaxial cable, and cascades of amplifiers,
created the potential for service interruptions anywhere along the transmission route.
A problem appearing at one point mid-way into the system affected all customers
beyond that point. Power outages, lightning storms, isolated outages, vandalism, and
isolated equipment failure will have much less of an effect on the new network than on
the coaxial system in the past.
In each neighborhood, at least one optical node will be placed, to convert the
optical signal back into the normal signals used in the coaxial system. Each node will
serve a maximum of 500 homes via coaxial cable. This limitation on node size insures
that the more reliable optical plant is as large as possible, and that coaxial electronics
are kept to the minimum required to deliver a good-quality picture to all customers.
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The optical network will provide 6 individual fibers to each node location.
Although it currently requires only one of these fibers to provide all the programming
required by the network, extra fibers are included for return transmission, and any
special or future requirements, on an as needed basis.
The coaxial portion of the plant will begin at the node itself, where signals will be
distributed over a short coax network, consisting of modern, high-quality. network
amplifiers. These amplifiers are specifically designed for use in HFC networks, and
incorporate return-transmission capability, surge protection, and remove monitoring
capability.
Since most of the currently existing coaxial cable is still serviceable and
electrically sound, it will be reused along most of the coaxial portion of the network.
Reuse of the cable will, in many cases, eliminate the need for construction in
residential areas, causing fewer upgrade construction issues.
All of the electronic components in the existing coaxial system will be replaced
with new 750 MHz devices. This insures a complete 750 MHz network, and provides a
simpler construction solution should any future upgrade work be required.
The upgrade process
There will be a considerable amount of work required to upgrade the entire
existing system to the new network. Since the upgrade work will be performed on an
already-active system, care must be taken to keep customers and communities well-
informed, and service interruptions to a minimum.
The first step will be to install the fiber optic network alongside the existing
coaxial system. Normally, this work does not affect the operation of the existing
system. In areas where the cables are already carried on utility poles, the new fiber will
be attached to the existing cables were possible. In areas where existing cables are
underground, additional construction will be required to install the new fiber optic
cables. . Any new coaxial cable required by the network design, in the path of the fiber
optic cable, will be installed at the same time.
Once the fiber 'backbone' is in place, the optical receivers are installed. The
optical system is then activated and tested. When testing of the optical network is
complete, then the upgrading of the coaxial plant can begin.
When the coaxial plant is upgraded, each existing amplifier and distribution
device are removed, and replaced with a new 750 MHz device. The new equipment is
activated, and any customers served from that equipment are switched to the new
equipment. This process begins at the node, branching out through each leg of the
coaxial plant. It is this portion of the upgrade that causes several brief interruptions in
service. As the upgrade crews move further out into the coaxial system, fewer and
fewer customers experience the interruptions in service. When the upgrade of a node
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is finally complete, all customers served from that node are now receiving service from
the new network.
During the primary upgrade of each node, installation upgrade crews sweep
through the same area, inspecting each of the service lines that connect customers'
homes to the distribution system. Connections are checked, updated splitting
equipment is installed if necessary, and in some cases, the entire line is replaced. At
this point, the upgrade of that node is complete, and work moves on to the next node
area.
Community access and use of the network
The upgraded network will allow for individual communities to produce their own
legal programming, and place it on an available channel on the system. Normally, one
site in a community is designated as a 'studio' where local programs are taped for later
broadcast, or transmitted 'live' over-the system. It is also possible for the community to
originate informational services, such as public service messaging, school information,
or other items of community interest.
The video feed from the community would be inserted on the network on a
special channel, and transmitted via the return system - through the coaxial network
back to the node, and transmitted optically from the node back to the origination site.
From there, the signal would be reprocessed and retransmitted back through the
normal network, available to customers.
Since each of the nodes are community-based, it is possible to allow
communities to transmit their own programming to only the residents of that community,
if they desire.
The addressable converter system
The "addressable set-top terminals" used in the network are computer-controlled
"smart" converters. To the customers, they function very much the same as the normal
converters they are accustomed to. In reality, they are very sophisticated computer
terminals that allow for the processing of programming information both to and from the
customer.
The converter system is controlled by a master computer connected to Triax's
billing system. The master computer is then connected to the network, by either a
direct connection or a satellite link. Information regarding the operation of each one of
the converters is continually transmitted over the network, and received by the
converters.
If a customer calls one of our service centers, and orders HBO, the information
regarding the change in services is keyed into the billing system. Since the billing
system and master computer are connected, information about that transaction is
immediately transmitted to the network, and the customer's converter receives
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immediate authorization to receive HBO. The entire process takes just a few seconds,
and the customer has immediate access to the programming that as ordered, without
the need to wait for a visit from a service technician. Services can be added, changed,
or removed in the same manner. .
Additionally, customers will have access to multiple channels of "impulse pay-
per-view." This is one of the most popular features of the converter. The "impulse"
feature takes advantage of the return system on the network, allowing a request for a
pay-per-view event to be processed immediately. The customer simply tunes to the
channel desired, and presses a button to purchase the program. There is no need to
make a phone call, and no order to place in advance.
The addressable converters are equipped with several self-diagnostic and
security features. If the converter is not functioning properly, it will display a diagnostic
code for troubleshooting. The master computer communicates with each converter at
regular intervals, and can alert service personnel if a problem is found. There are
signal security safeguards built into each converter, to prevent unauthorized tampering.
The converter recognizes its 'home' network, and will not function properly if removed
without authorization.
Potential for future expansion
The upgraded network is completely expandable, due to its fiber optic backbone.
The optical system incorporates extra fibers that run to each node, along with
additional extra fibers along main routes. As communities grow, there will be capacity
available to serve their residents.
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THE CITY OF PRIOR LAKE, MINNESOTA
CABLE TELEVISION
REGULATORY ORDINANCE
OCTOBER 15, 1999
O(('\\l'\a,Y\c.~ q~ - IL(
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1/11 I h f..(\tu'e+\{ .
Prepared by:
BRIAN T. GROGAN, ESQ.
Moss & Barnett
A Professional Association
4800 Norwest Center
90 South Seventh Street
Minneapolis, MN 55402-4129
(612) 347-0340
SECTION 1.1.
SECTION 1.2.
SECTION 1.3.
SECTION 1.4.
SECTION 1.5.
SECTION 1.6.
SECTION 1.7.
SECTION 1.8.
SECTION 1.9.
SECTION 1.10.
SECTION 1.11.
SECTION 1.12.
SECTION 1.13.
SECTION 1.14.
SECTION 1.15.
SECTION 1.16.
SECTION 1.17.
SECTION 1.18.
SECTION 1.19.
SECTION 1.20.
SECTION 1.21.
SECTION 1.22.
SECTION 1.23.
SECTION 1.24.
SECTION 1.25.
SECTION 1.26.
SECTION 1.27.
SECTION 1.28.
SECTION 1.29.
SECTION 1.30.
SECTION 1.31.
SECTION 1.32.
SECTION 1.33.
SECTION 1.34.
SECTION 1.35.
SECTION 1.36.
SECTION 1.37.
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TABLE OF CONTENTS
INTENT. ....................................................................................................... 1
DEFINITIONS. ............................................................................................. 1
FRANCHISE TO INSTALL AND OPERATE............................................... 5
FRANCHISE REQUIRED............................................................................. 5
TERM OF THE FRANCHISE. ......................................................................6
FRANCHISE TERRITORY........................................................................... 6
FEDERAL, STATE AND CITY JURISDICTION. ........................................6
FRANCHISE NON-TRANSFERABLE. ........................................................7
CITY'S RIGHT TO PURCHASE SYSTEM. ................................................. 8
PURCHASE BY CITY UPON EXPIRATION OR REVOCATION. .............9
EMERGENCY USE. . .... ............................ ............................................... ..... 9
GEOGRAPHICAL COVERAGE. ........... .............................. .......... ...............9
NONEXCLUSIVE FRANCHISE. ............................................................... 10
MULTIPLE FRANCHISES. ........................................................................ 10
FRANCHISE APPLICATIONS. .................................................................. 11
CONSIDERATION OF INITIAL APPLICATIONS. ................................... 12
FRANCHISE RENEWAL............................................................................ 12
CONSUMER PROTECTION AND SERVICE STANDARDS. ...................12
RATE REGULATION............................................................... .................. 15
FRANCHISE FEE. ...................................................................................... 15
DESIGN AND CONSTRUCTION REQUIREMENTS................................ 16
TECHNICAL STANDARDS................................ ..................... .......... ........ 19
TRIMMING OF TREES. ............................................................................. 20
USE OF GRANTEE FACILITIES. .............................................................. 20
PROGRAMMING DECISIONS. ................................................................. 20
INDEMNIFICATION. ................................................................................. 20
INSURAN"CE. ............................................................................................. 21
RECORDS REQUIRED AND GRANTOR'S RIGHT TO INSPECT. .......... 22
ANNUAL REPORTS. ..... ...... ...................................................................... 23
FRANCHISE VIOLATION. .... ............................................. .......................23
FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM. ................ 24
ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTy............ 25
EXTENDED OPERATION AND CONTINUITY OF SERVICES. .............26
RECEIVERSHIP AND FORECLOSURE.................................................... 26
RIGHTS RESERVED TO GRANTOR. ....................................................... 26
RIGHTS OF INDIVIDUALS....................................................................... 27
SEVERABILITY. ........................................................................................ 28
ORDINANCE NO.
THE CITY COUNCIL OF THE CITY OF PRIOR LAKE, MINNESOTA DOES
HEREBY ORDAIN AS FOLLOWS:
The following Chapter is added to the City of Prior Lake, MN Municipal Code:
CHAPTER
CABLE TELEVISION REGULATORY ORDINANCE
SECTION 1.1.
INTENT.
a. The City of Prior Lake, Minnesota, pursuant to Applicable Laws, is
authorized to grant one or more nonexclusive Franchises to construct, operate,
maintain and reconstruct Cable Television Systems within the City limits.
b. The City Council finds that the development of Cable Television Systems
has the potential of having great benefit and impact upon the residents of the City.
Because of the complex and rapidly changing technology associated with cable
television, the City Council further finds that the public convenience, safety and general
welfare can best be served by establishing regulatory powers which should be vested
in the City or such Persons as the City shall designate. It is the intent of this Ordinance
and subsequent amendments to provide for and specify the means to attain the best
possible cable television service to the public and any Franchises issued pursuant to
this Ordinance shall be deemed to include this finding as an integral part thereof.
SECTION 1.2.
DEFINITIONS.
For the purpose of this Ordinance, the following terms, phrases, words and their
derivations shall have the meaning given herein. Words used in the present tense
include the future, words in the plural number include the singular number, and words
in the singular number include the plural number. All capitalized terms used in the
definition of any other term shall have their meaning as otherwise defined in this
Section. The words "shall" and "will" are mandatory and "may" is permissive. Words
not defined shall be given their common and ordinary meaning.
a. "Applicable Laws" means any law, statute, charter, ordinance, rule,
regulation, code, license, certificate, franchise, permit, writ, ruling, award, executive
order, directive, requirement, injunction (whether temporary, preliminary or permanent),
judgment, decree or other order issued, executed, entered or deemed applicable by
any Governmental Authority.
b. "Basic Cable Service" means any service tier which includes the I
retransmission of local television broadcast signals. Basic Cable Service as defined
herein shall not be inconsistent with 47 U.S.C. 9543(b)(7)(1993).
c. "Cable Act" means the Cable Communications Policy Act of 1984, Pub. L.
No. 98-549, 98 Stat. 2779 (1984) (codified at 47 U.S.C. 99521-611 (1982 & Supp. V
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1987)) as amended by the Cable Television Consumer Protection and Competition Act
of 1992, Pub. L. NO.1 02-385 and the Telecommunications Act of 1996, Pub. L. No.
104-458 and as the same may, from time to time, be amended.
d. "Cable Television System," "System" or "Cable System" means a facility,
consisting of a set of closed transmission paths and associated signal generation,
reception and control equipment that is designed to provide Cable Service which
includes video programming and which is provided to multiple Subscribers within a
community, but such term does not include:
1. A facility that serves only to retransmit the television signals of one
(1) or more television broadcast stations;
2. A facility that serves subscribers without using any public rights-of-
way;
3. A facility of a common carrier which is subject, in whole or in part,
to the provisions of 47 U.S.C. SS 201-226- except that such facility shall be
considered a Cable System (other than for purposes of 47 U.S.C. S 541) to the
extent such facility is used in the transmission of video programming directly to
subscribers; unless the extent of such use is solely to provide interactive on-
demand services;
4.
Act; or
An open video system that complies with Section 653 of the Cable
5. Any facilities of any electric utility used solely for operating its
electric utility system.
e. "Cable Service" means:
1. The one-way transmission to Subscribers of (i) video programming,
or (ii) other programming service; and
2. Subscriber interaction, if any, which is required for the selection or
use of such video programming or other programming service.
f. "Channel" or "Cable 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 Federal Communications Commission.
g. "Council" means the City Council of the City of Prior Lake, Minnesota.
h. "Franchise" means an initial authorization, or renewal thereof, issued by
the City, whether such authorization is designated as a Franchise, permit, license,
resolution, contract, certificate, agreement or otherwise, which authorizes the
construction or operation of a Cable System over publicly owned rights-of-way.
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i. "Franchise Aqreement" means a Franchise granted pursuant to this
Ordinance containing the specific provisions of the Franchise granted, including
references, specifications, requirements and other related matters.
j. "Franchise Fee" means any tax, fee or assessment of any kind imposed
by the City or any other Governmental Authority on a Grantee or cable Subscriber, or
both, solely because of their status as such. The term "Franchise Fee" does not
include: (i) any tax, fee or assessment of general applicability (including any such tax,
fee or assessment imposed on both utilities and cable operators or their services but
not including a tax, fee, or assessment which is unduly discriminatory against cable
operators or cable subscribers); (ii) capital costs which are required by the Franchise
Agreement to be incurred by the Grantee for PEG Access Facilities; (iii) requirements
or charges incidental to the awarding or- -enforcing of the Franchise, including
payments for bonds, security funds, letters of credit, insurance, indemnification,
penalties or liquidated damages; or (iv) any fee imposed under Title 1 7 of the United
States Code.
k. "Governmental Authority" means any Court or other federal, state, county,
municipal or other governmental department, commission, board, agency or
instrumentality.
I. "Grantee" means any Person receiving a Franchise pursuant to this
Ordinance and its agents, employees, officers, designees, or any lawful successor,
transferee or assignee.
m. "Grantor" or "City" means the City of Prior Lake, Minnesota as
represented by the Councilor any delegate acting within the scope of its jurisdiction.
The City Administrator shall be responsible for the continuing administration of the
franchise.
n. "Gross Revenues" means all revenue received directly or indirectly by the
Grantee, its affiliates, subsidiaries, parents, or any Person in which Grantee has a
financial interest offive percent (5%) or more arising from or attributable, to the
provision of Cable Service by the Grantee within the City including, but not limited to,
monthly fees charged to Subscribers for Basic Cable Service; monthly fees charged to
Subscribers for any optional service; monthly fees charged to Subscribers for any tier
of service other than Basic Cable Service; Installation, disconnection and reconnection
fees- leased Channel fees; converter and remote revenues; advertising revenues; and
revenues from home shopping Channels. Gross Revenues shall be the basis for
computing the Franchise Fees imposed pursuant to Section 1.20 hereof. Grantee shall
not be required to pay a franchise fee on gross revenues derived from any Person
receiving free Cable Service pursuant to a Franchise Agreement. Gross Revenues
shall include franchise fees collected by Grantee on behalf of the City. Gross
Revenues shall not include revenues received from Internet services for a period of two
years from the date of introduction of high-speed Internet access. Thereafter, Gross
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Revenues shall include revenues received from Internet services to the extent
permitted by State or Federal law.
o. "Initial Service Area" means the area of the City which will receive Cable
Service initially, as set forth in any Franchise Agreement.
p. "Installation" means the connection of the System to a Subscriber and the
provision of Cable Service.
q. "Normal Business Hours" means those hours (8 a.m.-5 p.m. Monday-
Friday) during which most similar businesses in the City are open to serve customers.
In all cases, "Normal Business Hours" must include some evening hours at least one
night per week and/or some weekend hours.
r. "Normal Operatinq Conditions" means those service conditions which are
within the control of the Grantee. Those conditions which are not within the control of
the 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 the 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 System.
s. "Person" means any individual or any association, firm, general
partnership, limited partnership, joint stock company, joint venture, trust, corporation,
limited liability company or other legally recognized entity, private or public, whether
for-profit or not-for-profit.
t. "Public. Educational or Government Access Facilities" or "PEG Access
Facilities" means:
1. Channel capacity designated for public, educational or
governmental use; and
2. Facilities and equipment for the use of such Channel capacity.
u. "Section" means any Section, subsection or provision of this Ordinance.
v. "Service Area" or "Franchise Area" means the entire geographic area
within the City as it is now constituted or may in the future be constituted, unless
otherwise specified in the Franchise Agreement.
w. "Service Interruption" means the loss of picture or sound on one or more
Cable Channels.
x.
"State" means the State of Minnesota.
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y. "Street" or "publicly owned riqht of way" means each of the following
which have been dedicated to the public or are hereafter dedicated to the public and
maintained under public authority or by others and located within the City limits:
streets, roadways, highways, avenues, lanes, alley's, sidewalks, easements, rights-of-
way and similar public property and areas that the Grantor shall permit to be included
within the definition of Street from time to time.
Z. "Subscriber" means any Person who or which lawfully elects to subscribe
to, for any purpose, a service provided by the Grantee by means of or in connection
with the Cable System whether or not a fee is paid for such service.
SECTION 1.3.
FRANCHISE TO INSTALL AND OPERATE.
a. A Franchise granted by the City under the provisions of this Ordinance
shall encompass the following purposes:
1. To engage in the business of providing Cable Service, and such
other lawful services as may be permitted by Applicable Law, to Subscribers
within the Service Area.
2. To erect, install, construct, repair, rebuild, reconstruct, replace,
maintain and retain cables, lines, related electronic equipment, supporting
structures, appurtenances and other property in connection with the operation of
a Cable System in, on, over, under, upon, along and across Streets within the
Service Area.
3. To maintain and operate said Franchise properties for the
origination, reception, transmission, amplification and distribution of television
and radio signals for the delivery of Cable Services.
4. To set forth the obligations of a Grantee under the Franchise
Agreement.
b. Nothing contained in this Ordinance relieves a Person from liability
arising out of failure to exercise reasonable care to avoid injuring Grantee's facilities
while performing work connected with grading, regarding or changing the line of a
Street or public place or with the construction or reconstruction of a sewer or water
system.
SECTION 1.4.
FRANCHISE REQUIRED.
It shall be unlawful for any Person, other than the City unless specifically
required by Applicable Laws, to construct, install or operate a Cable Television System
in the City in, on, over, under, upon, along or across any Street or publicly owned right
of way without a Franchise properly granted pursuant to the provisions of this
Ordinance.
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SECTION 1.5.
TERM OF THE FRANCHISE.
a. A Franchise granted hereunder shall be for the term established in the
Franchise Agreement and shall not exceed fifteen (15) years.
b. A Franchise granted hereunder may be renewed upon application by the
Grantee pursuant to the provisions of this Ordinance and Applicable Laws.
SECTION 1.6.
FRANCHISE TERRITORY.
Any Franchise granted pursuant to this Ordinance shall be valid within the
Service Area.
SECTION 1.7.
FEDERAL, STATE AND CITY JURISDICTION.
a. This Ordinance shall be construed in a manner consistent with Applicable
Laws.
b. This Ordinance shall apply to all Franchises granted or renewed after the
effective date of this Ordinance. This Ordinance shall further apply to the extent
permitted by Applicable Laws to all existing Franchises granted prior to the effective
date of this Ordinance.
c. The rights of all Grantees are subject to the policing powers of the City to
adopt and enforce ordinances necessary to the health, safety and welfare of the public.
All Grantees shall comply with all Applicable Laws enacted by the City pursuant to that
power.
d. No Grantee shall be relieved of its obligation to comply with any of the
provisions of this Ordinance or any Franchise granted pursuant to this Ordinance by
reason of any failure of the City to enforce prompt compliance.
e. This Ordinance and any Franchise granted pursuant to this Ordinance
shall be construed and enforced in accordance with the substantive laws of the City,
State of Minnesota and applicable federal laws, including the Cable Act.
f. This Ordinance together with any Franchise granted hereunder shall
comply with the Minnesota franchise standards contained in Minnesota Statutes
Section 238.084.
g. Grantee and the City shall conform to state laws and rules regarding
cable communications not later than one year after they become effective, unless
otherwise stated, and shall conform to federal laws and regulations regarding cable
communications as they become effective.
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SECTION 1.8.
FRANCHISE NON-TRANSFERABLE.
a. Grantee shall not voluntarily or involuntarily, by operation of law or
otherwise, sell, assign, transfer, lease, sublet or otherwise dispose of, in whole or in
part, the Franchise and/or Cable System or any of the rights or privileges granted by
the Franchise, without the prior written consent of the Council and then only upon such
terms and conditions as may be prescribed by the Council with regard to the proposed
transferee's legal, technical and financial qualifications, which consent shall not be
unreasonably denied or delayed. Any attempt to sell, assign, transfer, lease, sublet or
otherwise dispose of all or any part of the Franchise and/or Cable System or Grantee's
rights therein without the prior written consent of the Council shall be null and void and
shall be grounds for termination of the Franchise pursuant to Section 1.30 hereof and
the applicable provisions of any Franchise Agreement.
b. Without limiting the nature of the events requiring the Council's approval
under this Section, the following events shall be deemed to be a sale, assignment or
other transfer of the Franchise and/or Cable System requiring compliance with this
Section: (i) the sale, assignment or other transfer of all or a majority of Grantee's assets
or the assets comprising the Cable System to any Person; (ii) the merger of the
Grantee or any of its parents with or into another Person (including the merger of
Grantee or any parent with or into any parent or subsidiary corporation or other
Person); (iii) the consolidation of the Grantee or any of its parents with any other
Person; (iv) the transfer of the Franchise and/or Cable System to a subsidiary
corporation or other entity; (v) the sale, assignment or other transfer of capital stock or
partnership, membership or other equity interests in Grantee or any of its parents by
one or more of its existing shareholders, partners, members or other equity owners so
as to create a new Controlling Interest (as defined by Minn. Stat. ~ 238.084) in
Grantee; (vi) the issuance of additional capital stock or partnership, membership or
other equity interest by Grantee or any of its parents so as to create a new Controlling
Interest (as defined by Minn. Stat. ~ 238.084) in Grantee; and (vii) the entry by the
Grantee into an agreement with respect to the management or operation of the
Grantee, any of Grantee's parents and/or the System or the subsequent amendment
thereof, other than with an affiliate of Grantee. The term "Controlling Interest" as used
herein is not limited to majority ownership of the Grantee, but also includes actual
working control over the Grantee in whatever manner exercised.
c. Grantee shall notify Grantor in writing of any foreclosure or any other
judicial sale of all or a substantial part of the property and assets comprising the Cable
System of the Grantee or upon the termination of any lease or interest covering all or a
substantial part of said property and assets. Such notification shall be considered by
Grantor as notice that a change in control or ownership of the Franchise has taken
place and the provisions under this Section governing the consent of Grantor to such
change in control or ownership shall apply.
d. For the purpose of determining whether it shall consent to such change,
transfer or acquisition of control, Grantor may inquire into the qualifications of the
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prospective transferee or controlling party, and Grantee shall assist Grantor in any
such inquiry. In seeking Grantor's consent to any change of ownership or control,
Grantee shall have the responsibility of insuring that the transferee completes an
application in form and substance reasonably satisfactory to Grantor, which application
shall include the information required under this Ordinance and Applicable Laws. The
transferee shall be required to establish to the satisfaction of the City that it possesses
the legal, technical and financial qualifications to operate and maintain the System and
comply with all Franchise requirements for the remainder of the term of the Franchise.
If, after considering the legal, financial, character and technical qualities of the
transferee and determining that they are satisfactory, the Grantor finds that such
transfer is acceptable, the Grantor shall permit such transfer and assignment of the
rights and obligations of such Franchise as may be in the public interest. The consent
of the Grantor to such transfer shall not be unreasonably denied.
e. Any financial institution having a security interest in any and al I of the
property and assets of Grantee as security for any loan made to Grantee or any of its
affiliates for the construction and/or operation of the Cable System must notify the
Grantor that it or its designee satisfactory to the Grantor shall take control of and
operate the Cable Television System, in the event of a default in the payment or
performance of the debts, liabilities or obligations of Grantee or its affiliates to such
financial institution. Further, said financial institution shall also submit a plan for such
operation of the System within thirty (30) days of assuming such control that will insure
continued service and compliance with all Franchise requirements during the term the
financial institution or its designee exercises control over the System. The financial
institution or its designee shall not exercise control over the System for a period
exceeding one (1) year unless extended by the Grantor in its discretion and during said
period of time it shall have the right to petition the Grantor to transfer the Franchise to
another Grantee.
f. In addition to the aforementioned requirements in this Section 1.8, the
City and Grantee shall, at all times, comply with the requirements of Minnesota Statutes
Section 238.083 regarding the sale or transfer of a franchise and with all other
Applicable Laws.
SECTION 1.9.
CITY'S RIGHT TO PURCHASE SYSTEM.
The City shall have a right of first refusal to purchase the Cable System in the
event the Grantee receives a bona fide offer to purchase the Cable System from any
Person. Bona fide offer as used in this Section means a written offer which has been
accepted by Grantee, subject to the City's rights under this Ordinance and any
Franchise Agreement. The price to be paid by the City shall be the amount provided
for in the bona fide offer, including the same terms and conditions as the bona fide
offer. The City shall notify Grantee of its decision to purchase within sixty (60) days of
the City's receipt from Grantee of a copy of the written bona fide offer and such other
relevant and pertinent information as is necessary to understand the transaction..
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SECTION 1.10.
PURCHASE BY CITY UPON EXPIRATION OR REVOCATION.
Consistent with Section 627 of the Cable Act and all other Applicable Laws, at
the expiration, cancellation, revocation or termination of any Franchise Agreement, the
City shall have the option to purchase, condemn or otherwise acquire and hold the
Cable System.
SECTION 1.11.
EMERGENCY USE.
In the case of any emergency or disaster, Grantee shall, upon request of the City
or authorized emergency management personnel, make its Cable System and related
facilities available to the City for emergency use.
SECTION 1.12. GEOGRAPHICAL COVERAGE.
a. Grantee shall design, construct and maintain the Cable Television System
to have the capability to pass every dwelling unit in the Service Area, subject to any
Service Area line extension requirements of the Franchise Agreement.
b. After service has been established by activating trunk and/or distribution
cables for any Service Area, Grantee shall provide Cable Service to any requesting
Subscriber within that Service Area within thirty (30) days from the date of request,
provided that the Grantee is able to secure access to all rights-of-way necessary to
extend service to such Subscriber within such thirty (30) day period on reasonable
terms and conditions.
c. No Subscriber shall be refused service arbitrarily. However, for unusual
circumstances such as the existence of more than 150 feet of distance from distribution
cable to connection of service to Subscribers, or a density equivalent of less than 40
homes per mile, service may be made available on the basis of a capital contribution in
aid of construction, including cost of material, labor and easements. For the purpose of
determining the amount of capital contribution in aid of construction to be borne by the
Grantee and Subscribers In the area in which service may be expanded, the Grantee
will contribute an amount equal to the construction and other costs per mile, multiplied
by a fraction whose numerator equals the actual number of residences per mile, and
whose denominator equals 40 residences. Subscribers who request service-
hereunder, will bear the remainder of the construction and other costs on a pro rata
basis. The Grantee may require that the payment of the capital contribution in aid of
construction borne by such potential subscribers be paid in advance.
d. Grantee shall immediately bury all drops to subscribers dwellings when
required by local construction standards. In the event the ground is frozen or otherwise
unsuitable to permit immediate burial, Grantee shall be permitted to delay such burial
until the ground becomes suitable for burial and shall complete said burial no later than
June 1 st of each year.
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SECTION 1.13.
NONEXCLUSIVE FRANCHISE.
Any Franchise granted under this Ordinance shall be nonexclusiye. The Grantor
specifically reserves the right to grant, at any time, such additional Franchises for a
Cable Television System as it deems appropriate on terms and conditions no more
favorable nor less burdensome than those imposed in previously granted Franchises,
subject to Applicable Laws. The Grantor also specifically reserves the right to operate
a municipal Cable Television System pursuant to Applicable Laws.
SECTION 1.14. MULTIPLE FRANCHISES.
a. Grantor may grant one or more Franchises for a Service Area. Grantor
may, in its sole discretion, limit the number of Franchises granted, based upon, but not
necessarily limited to, the requirements of Applicable Laws and specific local
considerations; such as:
1. The capacity of the public rights-of-way to accommodate multiple
coaxial cables in addition to the cables, conduits and pipes of the utility systems,
such as electrical power, telephone, gas and sewage.
2. The impact on the City of having multiple Franchises.
3. The disadvantages that may result from Cable System competition,
such as the requirement for multiple pedestals on residents' property, and the
disruption arising from numerous excavations of the rights-of-way.
4. The financial capabilities of the applicant and its guaranteed
commitment to make necessary investment to erect, maintain and operate the
proposed System for the duration of the Franchise term.
b. Each Grantee awarded a Franchise to serve the entire City shall offer
service to all residences in the City, in accordance with construction and service
schedules mutually agreed upon between Grantor and Grantee, and consistent with
Applicable Laws.
c. The City may, in its sole discretion, require developers of new residential
housing with underground utilities to provide conduit to accommodate cables for a
minimum of two (2) Cable Systems in accordance with the provisions of Section 1.21
(d).
d. Grantor may require that any new Grantee be responsible for its own
underground trenching and the costs associated therewith, if, in Grantor's opinion, the
rights-of-way in any particular area cannot feasibly and reasonably accommodate
additional cables.
e. Any additional Franchise granted by the City to provide Cable Service in
a part of the City in which a Franchise has already been granted and where an existing
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Grantee is providing service shall require the new Grantee to provide service
throughout its Service Area within a reasonable time and in a sequence which does not
discriminate against lower income residents.
SECTION 1.15.
FRANCHISE APPLICATIONS.
Any Person, other than the City unless specifically required by Applicable Laws,
desiring an initial Franchise for a Cable Television System shall file an application with
the City. A reasonable nonrefundable application fee in an amount established by the
City shall accompany the initial application. Such application fee shall not be deemed
to be "franchise fees" within the meaning of Section 622 of the Cable Act (47 U.S.C.
S 542), and such payments shall not be deemed to be (i) "payments in kind" or any
involuntary payments chargeable against the Franchise Fees to be paid to the City by
Grantee pursuant to Section 1.20 hereof and applicable provisions of a Franchise
Agreement, or (ii) part of the Franchise Fees to be paid to the City by Grantee pursuant
to Section 1.20 hereof and applicable provisions of a Franchise Agreement.
An application for an initial Franchise for a Cable Television System shall be in a
form reasonably acceptable to Grantor and shall contain, where applicable:
a. A statement as to the proposed Service Area.
b. A resume of prior history of applicant, including the legal, technical and
financial expertise of applicant in the cable television field.
c. A list of the general and limited partners of the applicant, if a partnership,
or the shareholders, if a corporation.
d. The percentage ownership of the applicant of each of its partners,
shareholders or other equity owners;
e. A list of officers, directors and managing employees of applicant or its
general partner, as applicable, together with a description of the background of each
such Person;
f. The names and addresses of any parent or subsidiary of applicant or any
other business entity owning or controlling applicant in whole or in part, or owned or
controlled in whole or in part by applicant;
g. A current financial statement of applicant verified by an audit or otherwise
certified to be true, complete and correct to the reasonable satisfaction of the City;
h.
Proposed construction and service schedule.
I.
Any additional information that the City deems applicable.
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SECTION 1.16.
CONSIDERATION OF INITIAL APPLlCA liONS.
a. Upon receipt of any application for an initial Franchise, the City
Administrator shall prepare a report and make his or her recommendations respecting
such application to the City Council.
b. A public hearing shall be set prior to any initial Franchise grant, at a time
and date approved by the Council. Within thirty (30) days after the close of the
hearing, the Council shall make a decision based upon the evidence received at the
hearing as to whether or not the Franchise(s) should be granted, and, if granted subject
to what conditions. The Council may grant one (1) or more initial Franchises, or may
decline to grant any Franchise.
SECTION 1.17.
FRANCHISE RENEWAL.
Franchise renewals shall be in accordance with Applicable Laws. Grantor and
Grantee, by mutual consent, may enter into renewal negotiations at any time during the
term of the Franchise. To the extent consistent with Applicable Laws, a reasonable
non-refundable renewal application fee in an amount established by the City may be
required to accompany any renewal application. Such application fee shall not be
deemed to be "franchise fees" within the meaning of Section 622 of the Cable Act (47
U.S.C. S 542), and such payments shall not be deemed to be (i) "payments in kind" or
any involuntary payments chargeable against the Franchise Fees to be paid to the City
by Grantee pursuant to Section 1.20 hereof and applicable provisions of a Franchise
Agreement, or (ii) part of the Franchise Fees to be paid to the City by Grantee pursuant
to Section 1.20 hereof and applicable provisions of a Franchise Agreement.
SECTION 1.18. CONSUMER PROTECTION AND SERVICE STANDARDS.
Grantee shall maintain a convenient local customer service or bill payment
location for receiving Subscriber payments. Grantee shall also maintain or arrange for
a location where equipment can be dropped-off or exchanged as is necessary or, in the
alternative, establish a system for having Subscriber equipment picked-up at the
Subscriber residence free-of-charge. Grantee shall also provide the necessary
facilities, equipment and personnel to comply with the following consumer protection
standards under Normal Operating Conditions:
a. Cable System office hours and telephone availability:
1. Grantee will maintain a local, toll-free or collect call telephone
access line which will be available to its Subscribers 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.
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(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.
2. Under Normal Operating Conditions, telephone answer time by a
customer representative, including wait time, shall not exceed thirty (30) seconds
when the connection is made. If the call needs to be transferred, transfer time
shall not exceed thirty (30) seconds. These standards shall be met no less then
ninety (90%) percent of the time under Normal Operating Conditions, measured
on a quarterly basis.
3. The Grantee will 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.
4. Under Normal Operating Conditions, the customer will receive a
busy signal less than three percent (3%) of the time.
5. Customer service center and bill payment locations will be open at
least during Normal Business Hours.
b. Installations. outaqes and service calls. Under Normal Operating
Conditions, each of the following four standards will be met no less than ninety-five
percent (95%) of the time measured on a quarterly basis:
1. Standard Installations will be performed within seven (7) business
days after an order has been placed. "Standard" Installations are those that are
located up to 125 feet from the existing distribution system. Grantee has agreed
to 150 feet at Section 1.12(c).
2. Excluding conditions beyond the control of Grantee, Grantee will
begin working on "service interruptions" promptly and in no event later than 24
hours after the interruption becomes known. The Grantee must begin actions to
correct other service problems the next business day after notification of the
service problem.
3. The "appointment window" alternatives for Installations, service
calls, and other Installation activities will be either a specific time or, at
maximum, a four-hour time block during Normal Business Hours. (The Grantee
may schedule service calls and other Installation activities outside of Normal
Business Hours for the express convenience of the customer.)
4. Grantee may not cancel an appointment with a customer after the
close of business on the business day prior to the scheduled appointment.
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..~
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5. If Grantee's representative Is running late for an appointment with
a customer and will not be able to keep the appointment as scheduled, the
customer will be contacted prior to the time of the scheduled appointment. The
appointment will be rescheduled, as necessary, at a time which is convenient for
the customer.
c. Communications between Grantee and Subscribers:
1. Notifications to Subscribers:
(i) The Grantee shall 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;
(0) Instructions on how to use the Cable Service;
(E) Channel positions of the programming carried on the
System; and
(F) Billing and complaint procedures, including the
address and telephone number of the Grantee's office within the
Service Area.
(ii) Customers 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 changes are within the control of the
Grantee. In addition, the Grantee shall notify subscribers thirty (30) days
in advance of any significant changes in the other information required by
this Section 1.18(c)(1 )(i). Grantee shall not be required to provide prior
notice of any rate changes as a result of a regulatory fee, franchise fee, or
other fees, tax, assessment or charge of any kind imposed by any federal
agency, state or franchising authority on the transaction between the
operator and the subscriber.
2. Billing:
(i) Bills will be clear, concise and understandable. Bills must
be fully itemized, with itemizations including, but not limited to, basic and
premium service charges and equipment charges. Bills will also clearly
14
delineate all activity during the billing period, including optional charges,
rebates and credits.
(ii) In case of a billing dispute, the Grantee must respond to a
written complaint from a Subscriber within thirty (30) days.
3.
either:
Refunds: Refund checks will be issued promptly, but no later than
(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 the Grantee if
service is terminated.
4. Credits: Credits for service will be issued no later than the
customer's next billing cycle following the determination that a credit is
warranted.
Grantee shall provide City with a quarterly customer service compliance report
specific to the system serving the City of Prior Lake in a form mutually agreed to, which
report shall, at a minimum, describe in detail Grantee's compliance with each and every
term and provision of this Section 1.1 8 and any additional customer service
requirements contained in Grantee's Franchise and shall outline and summarize all
subscriber complaints received by Grantee during the preceding calendar quarter.
SECTION 1.19.
RATE REGULATION.
The City reserves the right to regulate rates for Basic Cable Service and any
other services offered over the Cable System, to the extent not prohibited by Applicable
Laws. The Grantee shall be subject to the rate regulation provisions provided for
herein, and those of the Federal Communications Commission (FCC) at 47 C.F.R., Part
76, Subpart N, as the same may be amended from time to time. The City shall follow
the rules relating to cable rate regulation promulgated by the FCC at 47 C.F.R., Part
76, Subpart N, as the same may be amended from time to time.
SECTION 1.20.
FRANCHISE FEE.
a. Following the issuance and acceptance of a Franchise, the Grantee shall
pay to the Grantor a Franchise Fee in the amount set forth in the Franchise Agreement.
b. The Grantor, oh an annual basis, shall be furnished a statement within
ninety (90) days of the close of the calendar year, certified by the Company controller
or chief financial officer, reflecting the total amounts of Gross Revenues and all
payments, and computations of the Franchise Fee for the previous calendar year.
Upon ten (1 0) days prior written notice, Grantor shall have the right to conduct an
independent audit of Grantee's records. If such audit indicates a Franchise Fee
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.1
underpayment of five percent (5%) or more, the Grantee shall assume all of City's
reasonable out-of-pocket costs associated with the conduct of such an audit and shall
remit to Grantor all applicable Franchise Fees due and payable together with interest
thereon at the lesser of the maximum rate permitted by Applicable Laws or 18% per
annum.
c. Except as otherwise provided by law, no acceptance of any payment by
the Grantor shall be construed as a release or as an accord and satisfaction of any
claim the Grantor may have for further or additional sums payable as a Franchise Fee
under this Ordinance or any Franchise Agreement or for the performance of any other
obligation of the Grantee.
d. In the event that any Franchise Fee payment or recomputed amount is not
made on or before the dates specified in the Franchise Agreement, Grantee shall pay
as additional compensation an interest charge, computed from such due date, at an
annual rate equal to the lesser of the maximum rate permitted by Applicable Laws or
18% per annum during the period for which payment was due.
e. Franchise Fee payments shall be made in accordance with the schedule
indicated in the Franchise Agreement.
SECTION 1.21.
DESIGN AND CONSTRUCTION REQUIREMENTS.
a. Grantee shall not construct any Cable System facilities until Grantee has
secured the necessary permits from Grantor, or other applicable Governmental
Authorities.
b. In those areas of the City where transmission or distribution facilities of all
the public utilities providing telephone and electric power service are underground, the
Grantee likewise shall construct, operate and maintain its transmission and distribution
facilities therein underground.
c. In those areas of the City where Grantee's cables are located on the
above-ground transmission or distribution facilities of the public utility providing
telephone or electric power service, and in the event that the facilities of both such
public utilities subsequently are placed underground, then the Grantee likewise shall
construct, operate and maintain its transmission and distribution facilities underground,
at Grantee's cost. Certain of Grantee's equipment, such as pedestals, amplifiers and
power, supplies, which normally are placed above ground, may continue to remain in
above-ground closures, however, the City specifically reserves all of its rights to
approve above-ground or underground locations for pedestals subject to Applicable
Laws.
d. In new residential developments in which all the electric power and
telephone utilities are underground, the City may, in its sole discretion, require that the
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following procedure apply with respect to access to and utilization of underground
easements:
1. The developer shall be responsible for contacting and surveying all
Grantees to ascertain which Grantees desire (or, pursuant to the terms and
provisions of this Ordinance and any Franchise Agreement, may be required) to
provide Cable Service to that development. The developer may establish a
reasonable deadline to receive responses from Grantees. The final
development map shall indicate the Grantees that have agreed to serve the
development.
2. If one (1) or more Grantees wish to provide service within all or
part of the development, they shall be accommodated in the joint utilities trench
on a nondiscriminatory shared basis. If fewer than two (2) Grantees indicate
interest, the developer shall provide conduit to accommodate a minimum of two
(2) sets of cable television cables and dedicate to the City any initially
unoccupied conduit.
3. The developer shall provide at least ten (10) business days notice
of the date that utility trenches will be open to the Grantees that have agreed to
serve the development. When the trenches are open, such Grantees shall have
two (2) business days to begin the Installation of their cables, and five (5)
business days after beginning Installation to complete Installation.
4. The final development map shall not be approved until the
developer submits evidence that:
A. It has notified each Grantee that underground utility
trenches are to open as of an estimated date, and that each Grantee will
be allowed access to such trenches, including trenches from proposed
Streets to individual homes or home sites, on specified nondiscriminatory
terms and conditions; and
B. It has received a written notification from each Grantee that
the Grantee intends to install its facilities during the open trench period on
the specified terms and conditions, or such other terms and conditions as
are mutually agreeable to the developer and Grantee, or has received no
reply from a Grantee within ten (10) days after its notification to such
Grantee, in which case the Grantee will be deemed to have waived its
opportunity to install its facilities during the open trench period.
5. Sharing the joint utilities trench shall be subject to compliance with
State regulatory agency and utility standards. If such compliance is not
possible, the developer shall provide a separate trench for the cable television
cables, with the entire cost shared among the participating Grantee(s). With the
concurrence of the developer, the affected utilities and the Grantees, alternative
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Installation procedures, such as the use of deeper trenches, may be utilized,
subject to the requirements of Applicable Laws.
6. Any Grantee wishing to serve an area where the trenches have
been closed shall be responsible for its own trenching and associated costs and
shall repair all property to the condition which existed prior to such trenching.
e. Construction Codes and Permits.
1. Grantee shall obtain all necessary permits from City before
commencing any construction upgrade or extension of the System, including the
opening or disturbance of any Street, or private or public property within City.
Grantee shall strictly adhere to all state and local laws and building and zoning
codes currently or hereafter applicable to construction, operation or
maintenance of the System in City and give due consideration at all times to the
aesthetics of the property.
2. The City shall have the right to inspect all construction or
installation work performed pursuant to the provisions of the Franchise and to
make such tests at its own expense as it shall find necessary to ensure
compliance with the terms of the Franchise and applicable provisions of local,
state and federal law.
f. Repair of Streets and Property. Any and all Streets or public property or
private property, which are disturbed or damaged during the construction, repair,
replacement, relocation, operation, maintenance or reconstruction of the System shall
be promptly and fully restored by Grantee, at its expense, to a condition as good as
that prevailing prior to Grantee's work, as approved by City in the case of Streets and
other public property. If Grantee shall fail to promptly perform the restoration required
herein, City shall have the right to put the streets, public, or private property back into
good condition. City reserves its rights to pursue reimbursement for such restoration
from Grantee.
g. Conditions on Street Use.
1. Nothing in this Franchise shall be construed to prevent City from
constructing, maintaining, repairing or relocating sewers; grading, paving,
maintaining, repairing, relocating and/or altering any Street; constructing, laying
down, repairing, maintaining or relocating any water mains; or constructing,
maintaining, relocating, or repairing any sidewalk or other public work.
2. All System transmission and distribution structures, lines and
equipment erected by the Grantee within City shall be located so as not to
obstruct or interfere with the proper use of Streets, alleys and other public ways
and places, and to cause minimum interference with the rights of property
owners who abut any of the said Streets, alleys and other public ways and
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places, and not to interfere with existing public utility installations. The Grantee
shall furnish to and file with City Administrator the maps, plats, and permanent
records of the location and character of all facilities constructed, including
underground facilities, and Grantee shall file with City updates of such maps,
plats and permanent records annually if changes have been made in the
System.
3. If at any time during the period of this Franchise City shall elect to
alter, or change the grade or location of any Street, alley or other public way, the
Grantee shall, at its own expense, upon reasonable notice by City, remove and
relocate its poles, wires, cables, conduits, manholes and other fixtures of the
System, and in each instance comply with the reasonable standards and
specifications of City. If City reimburses other occupants of the Street, Grantee
shall be likewise reimbursed.
4. The Grantee shall not place poles, conduits, or other fixtures of
System above or below ground where the same will interfere with any gas,
electric, telephone, water or other utility fixtures and all such poles, conduits, or
other fixtures placed in any Street shall be so placed as to comply with all
requirements of City.
5. The Grantee shall, on request of any Person holding a moving
permit issued by City, temporarily move its wires or fixtures to permit the moving
of buildings with the expense of such temporary removal to be paid by the
Person requesting the same, and the Grantee shall be given not less than ten
(10) days advance notice to arrange for such temporary changes.
SECTION 1.22.
TECHNICAL STANDARDS.
a. The Grantee shall construct, install, operate and maintain its System in a
manner consistent with all Applicable Laws and the Federal Communications
Commission technical standards, and any standards set forth in its Franchise
Agreement. In addition, the Grantee shall provide to the Grantor, upon request, a copy
of the results of the Grantee's periodic proof of performance tests conducted pursuant
to Federal Communications Commission standards and guidelines.
b. Failure to comply with the FCC's technical standards shall entitle the City
to utilize the procedures of Section 1.30 hereof.
c. All construction practices shall be in accordance with all applicable
sections of the Occupational Safety and Health Act of 1970, as amended, as well as all
other Applicable Laws.
d. All Installation of electronic equipment at the time of installation shall be
of a permanent nature, durable and installed in accordance with the provisions of the
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""' -
National Electrical and Safety Code and National Electrical Code in effect at the time of
installation.
e. Antennae and their supporting structures (towers) shall be painted,
lighted, erected and maintained in accordance with all applicable rules and regulations
of the Federal Aviation Administration and all other Applicable Laws.
f. All of Grantee's plant and equipment, including, but not limited to, the
antenna site, head end and distribution system, towers, house connections, structures,
poles, wire, coaxial cable, fixtures and appurtenances shall be installed, located,
erected, constructed, reconstructed, replaced, removed, repaired, maintained and
operated in accordance with good engineering practices, performed by experienced
maintenance and construction personnel so as not to endanger or interfere with
improvements the City may deem appropriate to make or to interfere in any manner
with the rights of any property owner, or to unnecessarily hinder or obstruct pedestrian
or vehicular traffic.
g. Grantee shall at all times employ ordinary care and shall install and
maintain in use commonly accepted methods and devices preventing failures and
accidents which are likely to cause damage, injury or nuisance to the public.
SECTION 1.23.
TRIMMING OF TREES.
Grantee shall have the authority to trim trees, in accordance with all applicable
utility restrictions, ordinance and easement restrictions, upon and hanging over Streets
and public places of the City so as to prevent the branches of such trees from coming
in contact with the wires and cables of Grantee. City representatives shall have
authority to supervise and approve all trimming of trees conducted by Grantee.
SECTION 1.24.
USE OF GRANTEE FACILITIES.
The City shall, at its own expense, have the right to install and maintain upon the
pOle" 3nd within the underground pipes and conduits of Grantee, any wires and fixtures
desil"'_ j by the City to the extent that such installation and maintenance does not
interfere with existing operations of Grantee.
SECTION 1.25.
PROGRAMMING DECISIONS.
All programming decisions shall be at the sole discretion of Grantee; provided,
however, that any-change in the mix, quality or level of service pursuant to 47 U.S.C.
S 545(E. -) shall require the prior approval of the City. Such approval by the City shall not
be unreasonably withheld.
SECTION 1.26.
INDEMNIFICA TION.
Grantee shall indemnify, defend and hold the City, its officers, boards,
commissions, agents and employees (collectively the "Indemnified Parties") harmless
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from and against any and all lawsuits, claims, causes of action, actions, liability,
demands, damages, judgments, settlements, losses, expenses (including reasonable
attorneys' fees) and costs of any nature that any of the Indemnified Parties may at any
time, directly or indirectly, suffer, sustain or incur arising out of, based upon or in any
way connected with the grant of a Franchise to Grantee, the operation of Grantee's
System and/or the acts and/or omissions of Grantee or its agents or employees,
whether or not pursuant to the Franchise. This indemnity shall apply, without limitation,
to any action or cause of action for invasion of privacy, defamation, antitrust, errors and
omissions, theft, fire, violation or infringement of any copyright, trademark, trade names
service mark, patent, or any other right of any Person, whether or not any act or
omission complained of is authorized, allowed or prohibited by this Ordinance or any
Franchise Agreement, but shall exclude any claim or action arising out of the acts or
omissions of the Indemnified Parties or related to any City programming or other
access programming for which the Grantee is not legally responsible or arising from the
operation of access facilities and equipment.
SECTION 1.27. INSURANCE.
Within sixty (60) days following the grant of a Franchise, the Grantee shall
obtain, pay all premiums for and make available to the City at its request copies of the
following insurance policies:
a. A general comprehensive liability insurance policy insuring, indemnifying,
defending and saving harmless the Indemnified Parties from any and all claims by any
Person whatsoever on account of injury to or death of a Person or Persons occasioned
by the operations of the Grantee under any Franchise granted hereunder, or alleged to
have been so caused or occurred with a minimum coverage of One Million Dollars
($1,000,000) for personal injury or death of one Person, and Three Million Dollars
($3,000,000) for personal injury or death of any two (2) or more Persons in anyone
occurrence. The policy limits provided for in this Section 1.27(a) shall be reviewed and
adjusted by the city as necessary not more than once every three (3) years.
b. Property damage insurance for property damage occasioned by the
operation of Grantee under any Franchise granted pursuant to this Ordinance, or
alleged to have been so caused or occurred, with minimum coverage of One Million
Dollars ($1,000,000) for property damage to the property of anyone Person and Two
Million Dollars ($2,000,000) for property damage to the property of two or more
Persons in anyone occurrence. The policy limits provided for in this Section 1.27(b)
shall be reviewed and adjusted by the city as necessary not more than once every
three (3) years.
c. Workers Compensation Insurance as provided by Applicable Laws.
d. All insurance policies called for herein shall be in a form satisfactory to
the City 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," and shall require thirty (30) days written notice
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of any cancellation to both the City and the Grantee. The Grantee shall, in the event of
any such cancellation notice, obtain, pay all premiums for, and file with the City, written
evidence of the issuance of replacement policies within thirty (30) days following
receipt by the City or the Grantee of any notice of cancellation.
e. If Grantee sells or transfers the Cable System, or in the event of
expiration, termination or revocation of a Franchise, insurance tail coverage shall be
purchased and filed with the City for the then applicable amounts, providing coverage
for the time periods according to applicable statutes of limitation, insurance for any
issues attributable to the period Grantee held its Franchise.
f. it shall be the obligation of Grantee to promptly notify the City of any
pending or threatened litigation that would be likely to affect the Indemnified Parties.
SECTION 1.28. RECORDS REQUIRED AND GRANTOR'S RIGHT TO INSPECT.
a. Grantee shall at all times maintain the following records and
information relating specifically to the Cable System serving the City as
identified by the FCC Community Unit Identifier ("CUID") as opposed to a
regional cable system or other operating unit of Grantee: A full and complete set
of plans, records and "as-built" drawings and/or maps in an electronic form
agreed to by City and Grantee which shall be updated annually showing the
location of the Cable Television System installed or in use in the City, exclusive
of Subscriber service drops and equipment provided in Subscribers' homes.
2. If requested by Grantor, a summary of service calls, identifying the
number, general nature and disposition of such calls, on a monthly basis going
back no further than three (3) months from the date of the request. A summary
of such service calls shall be submitted to the Grantor within thirty (30) days
following its request in a form reasonably acceptable to the Grantor.
b. Upon reasonable notice, and during Normal Business Hours, Grantee
shall permit examination by any duly authorized representative of the Grantor, of all
Franchise property and facilities, together with any appurtenant property and facilities
of Grantee situated within or without the City, and all records relating to the Franchise,
provided they are necessary to enable the Grantor to carry out its regulatory
responsibilities under Applicable Laws, this Ordinance and the Franchise Agreement.
Grantee shall have the right to be present at any such examination.
c. The City shall also have the right to inspect, upon twenty-four (24) hours
written notice, at any time during Normal Business Hours at Grantee's office, all books,
records, maps, plans, financial statements, service complaint logs, performance test
results, records of request for service, and other like materials of Grantee to the extent
such examination will not violate federal law or disclose proprietary information.
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d. Copies of all petitions, applications, communications and reports
submitted by Grantee or on behalf of or relating to Grantee to the Federal
Communications Commission, Securities and Exchange Commission, or any other
Governmental Authority having jurisdiction with respect to any matters affecting the
Cable System authorized pursuant to this Ordinance and any Franchise shall, upon
request, be submitted, upon request to the City. Copies of responses from the
Governmental Authority to Grantee shall likewise be furnished to the City.
SECTION 1.29.
ANNUAL REPORTS.
a. Grantee shall, upon request, within ninety (90) days of each calendar
year end, submit a written end of the year report to Grantor with respect to the
preceding calendar year containing the following information:
1. A Summary of the previous year's (or in the case of the initial
reporting year, the initial year's) activities in development of the Cable System,
including but not limited to, services commenced or discontinued during the
reporting year;
2. A list of Grantee's officers, members of its board of directors, and
other principals of Grantee;
3. A list of stockholders or other equity investors holding five percent
(5%) or more of the voting interest in Grantee; and
4. Information as to the number of Subscribers, additional television
outlets, and the number of basic and pay service Subscribers.
b. All reports required under this Ordinance, except those required by law to
be kept confidential, shall be available for public inspection in the Grantee's offices
during Normal Business Hours.
c. All reports and records required under this Ordinance shall be furnished
at the sole expense of Grantee, except as otherwise provided in this Ordinance or the
Franchise agreement.
SECTION 1.30.
FRANCHISE VIOLATION.
a. In the event Grantor believes that Grantee has breached or violated any
material provision of this Ordinance or a Franchise granted hereunder, Grantor may act
in accordance with the following procedures:
b. Grantor may notify Grantee of the alleged violation or breach, stating with
specificity the nature of the alleged violation or breach, and demand that Grantee cure
the same within a reasonable time, which shall not be less than ten (10) days in the
case of an alleged failure of the Grantee to pay any sum or other amount due the
Grantor under this Ordinance or the Grantee's Franchise and thirty (30) days in all
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other cases. If Grantee fails either to cure the alleged violation or breach within the
time prescribed or to commence correction of the violation or breach within the time
prescribed and thereafter diligently pursue correction of such alleged violation or
breach, the Grantor shall then give written notice of not less than fourteen (14) days of
a public hearing to be held before the Council. Said notice shall specify the violations
or breaches alleged to have occurred. At the public hearing, the Council shall hear and
consider relevant evidence and thereafter render findings and its decision. In the event
the Council finds that a material violation or breach exists and that Grantee has not
cured the same in a satisfactory manner or has not diligently commenced to cure of
such violation or breach after notice thereof from Grantor and is not diligently
proceeding to fully cure such violation or breach, the Council may impose penalties
from any security fund required in a Franchise Agreement or may terminate Grantee's
Franchise and all rights and privileges of the Franchise. If the City chooses to
terminate Grantee's Franchise, the following additional procedure shall be followed:
1. After holding the public hearing, the City shall provide Grantee with
written notice of the City's intention to terminate the Franchise and specify
in detail the reason or cause for the proposed termination. The City shall
allow grantee a minimum of fifteen (15) days subsequent to receipt of the
notice in which to cure the default.
2. Grantee shall be provided with an opportunity to be heard at a regular or
special meeting of City prior to any final decision of City to terminate
Grantee's Franchise.
3. In the event that City determines to terminate Grantee's franchise, the
Grantee shall have an opportunity to appeal said decision in accordance
with all Applicable Laws.
4. If a valid appeal is filed, the Franchise shall remain in full force and affect
while said appeal is pending, unless the term of the Franchise sooner
expires.
SECTION 1.31.
FORCE MAJEURE; GRANTEE'S INABILITY TO PERFORM.
In the event Grantee's performance of any of the terms, conditions or obligations
required by this Ordinance or a Franchise granted hereunder is prevented by a cause
or event not within Grantee's control, such inability to perform shall be deemed excused
for the period of such inability and no penalties or sanctions shall be imposed as a
result thereof. For the purpose of this Section, causes or events not within the control
of Grantee shall include, without limitation, acts of God, strikes, sabotage, riots or civil
disturbances, restraints imposed by order of a governmental agency or court, failure or
loss of utilities, explosions, inability to obtain necessary permits or approvals after
having submitted timely and complete applications, acts of public enemies, and natural
disasters such as floods, earthquakes, landslides and fires.
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SECTION 1.32.
ABANDONMENT OR REMOVAL OF FRANCHISE PROPERTY.
a. In the event that the use of any property of Grantee within the Franchise
Area or a portion thereof is discontinued for a continuous period of twelve (12) months,
Grantee shall be deemed to have abandoned that property.
b. Grantor, upon such terms as Grantor may impose, may give Grantee
permission to abandon, without removing, any System facility or equipment laid, directly
constructed, operated or maintained in, on, under or over the Franchise Area. Unless
such permission is granted or unless otherwise provided in this Ordinance, the Grantee
shall remove all abandoned facilities and equipment upon receipt of written notice from
Grantor and shall restore any affected Street to its former state at the time such
facilities and equipment were installed, so as not to impair its usefulness. In removing
its plant, structures and equipment, Grantee shall refill, at its own expense, any
excavation made by or on behalf of Grantee and shall leave all streets and other public
ways and places in as good condition as that prevailing prior to such removal without
materially interfering with any electrical or telephone cable or other utility wires, poles
or attachments. Grantor shall have the right to inspect and approve the condition of the
streets, public ways, public places, cables, wires, attachments and poles prior to and
after removal. The liability, indemnity and insurance provisions of this Ordinance and
any security fund provided for in the Franchise Agreement shall continue in full force
and effect during the period of removal and until full compliance by Grantee with the
terms and conditions of this Section.
c. Upon abandonment of any Franchise property in place, the Grantee, if
required by the Grantor, shall submit to Grantor a bill of sale and/or other an
instrument, satisfactory in form and content to the Grantor, transferring to the Grantor
the ownership of the Franchise property abandoned.
d. At the expiration of the term for which the Franchise is granted, or upon
its earlier revocation or termination, as provided for herein and/or in the Franchise
Agreement, in any such case without renewal, extension or transfer, the Grantor shall
have the right to require Grantee to remove, at its own expense, all above-ground
portions of the Cable Television System from all Streets and public ways within the City
within a reasonable period of time, which shall not be less than one hundred eighty
(180) days.
e. Notwithstanding anything to the contrary set forth in this Ordinance, the
Grantee may, with the consent of the Grantor, abandon any underground Franchise
property in place so long as it does not materially interfere with the use of the Street or
public rights-of-way in which such property is located or with the use thereof by any
public utility or other cable Grantee.
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SECTION 1.33. EXTENDED OPERATION AND CONTINUITY OF SERVICES.
Upon termination or forfeiture of a Franchise, the Grantee shall remove its cable,
wires, and appliances from the streets, alleys, or other public places within the Service
Area if the City so requests. Failure by the Grantee to remove its cable, wires, and
appliances as referenced herein shall be subject to the requirements of Section 1.32 of
this Ordinance.
SECTION 1.34. RECEIVERSHIP AND FORECLOSURE.
a. A Franchise granted hereunder shall, at the option of Grantor, cease and
terminate one hundred twenty (120) days after appointment of a receiver or receivers,
or trustee or trustees, to take over and conduct the business of Grantee, whether in a
receivership, reorganization, bankruptcy or other action or proceeding, unless such
receivership or trusteeship shall have been vacated prior to the expiration of said one
hundred twenty (120) days, or unless: (1) such receivers or trustees shall have, within
one hundred twenty (120) days after their election or appointment, fully complied with
all the terms and provisions of this Ordinance and the Franchise granted pursuant
hereto, and the receivers or trustees within said one hundred twenty (120) days shall
have remedied all the defaults and violations under the Franchise and/or this
Ordinance or provided a plan for the remedy of such defaults and violations which is
satisfactory to the Grantor; and (2) such receivers or trustees shall, within said one
hundred twenty (120) days, execute an agreement duly approved by the court having
jurisdiction in the premises, whereby such receivers or trustees assume and agree to
be bound by each and every term, provision and limitation of the Franchise and this
Ordinance.
b. In the case of a foreclosure or other judicial sale of the Franchise
property, or any material part thereof, Grantor may give notice of termination of any
Franchise granted pursuant to this Ordinance upon Grantee and the successful bidder
at such sale, in which the event the Franchise granted and all rights and privileges of
the Grantee hereunder shall cease and terminate thirty (30) days after such notice has
been given, unless (1) Grantor shall have approved the transfer of the Franchise in
accordance with the provisions of the Franchise and this Ordinance; and (2) such
successful bidder shall have covenanted and agreed with Grantor to assume and be
bound by all terms and conditions of the Franchise.
SECTION 1.35.
RIGHTS RESERVED TO GRANTOR.
In addition to any rights specifically reserved to the Grantor by this Ordinance,
the Grantor reserves to itself every right and power which is required to be reserved by
a provision of any ordinance or under the Franchise.
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SECTION 1.36.
RIGHTS OF INDIVIDUALS.
a. Grantee shall not deny service, deny access, or otherwise discriminate
against Subscribers, Channel users, or general citizens on the basis of race, color,
religion, disability, national origin, age, gender or sexual preference. Grantee shall
comply at all times with all other Applicable Laws, relating to nondiscrimination.
b. Grantee shall adhere to the applicable equal employment opportunity
requirements of Applicable Laws, as now written or as amended from time to time
including 47 U.S.C. Section 551, Protection of Subscriber Privacy.
c. Neither Grantee, nor any Person, agency, or entity shall, without the
Subscriber's consent, tap or arrange for the tapping, of any cable, line, signal input
device, or Subscriber outlet or receiver for any purpose except routine maintenance of
the System, detection of unauthorized service, polling with audience participating, or
audience viewing surveys to support advertising research regarding viewers where
individual viewing behavior cannot be identified.
d. In the conduct of providing its services or in pursuit of any collateral
commercial enterprise resulting therefrom, Grantee shall take reasonable steps to
prevent the invasion of a Subscriber's or general citizen's right of privacy or other
personal rights through the use of the System as such rights are delineated or defined
by Applicable Laws. Grantee shall not, without lawful court order or other applicable
valid legal authority, utilize the System's interactive two-way equipment or capability for
unauthorized personal surveillance of any Subscriber or general citizen.
e. No cable line, wire, amplifier, converter, or other piece of equipment
owned by Grantee shall be installed by Grantee in the Subscriber's premises, other
than in appropriate easements, without first securing any required consent or as
permitted by Applicable Law. If a Subscriber requests service, permission to install
upon Subscriber's property shall be presumed. Where a property owner or his or her
predecessor granted an easement including a public utility easement or a servitude to
another and the servitude by its terms is a compatible use to Grantee's intended usage,
Grantee shall not be required to obtain the written permission of the owner for the
Installation of equipment required to deliver Cable Service.
f. No signals of a class IV cable communications channel may be
transmitted from a Subscriber terminal for purposes of monitoring individual viewing
patterns or practices without the express written permission of a 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. The written permission must be for a limited period of time not to exceed
one year which is renewal at the option of the Subscriber. No penalty may be invoked
for a Subscribers failure to provide or renew the authorization. The authorization is
revocable at any time by the Subscriber without penalty of any kind. The permission
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must be required for each type or classification or class IV cable communications
activity planned.
1. No information or data obtained by monitoring transmission of a
signal from a Subscriber terminal, including but not limited to the lists of the
names and addresses of the Subscribers or lists that identify the viewing habits
of Subscribers may be sold or otherwise made available to any Person other
than to Grantee and its employees for internal business use, or to the Subscriber
who is the subject of that information, unless the Grantee has received specific
written authorization from the Subscriber to make the data available.
2. Written permission from the Subscriber must not be required for
the systems conducting system wide or individually addressed electronic sweeps
for the purpose of verifying system integrity or monitoring for the purpose of
billing. Confidentiality of this information is subject to paragraph 1 above.
3. For purposes of this Section 136, a "class IV cable communications
channel" means a signaling path provided by a System to transmit signals of any
type from a Subscriber terminal to another point in the System.
SECTION 1.37.
SEVERABILITY.
If any provision of this Ordinance is held by any Governmental Authority of
competent jurisdiction, to be invalid as conflicting with any Applicable Laws now or
hereafter in effect, or is held by such Governmental Authority to be modified in any way
in order to conform to the requirements of any such Applicable Laws, such provision
shall be considered a separate, distinct, and independent part of this Ordinance, and
such holding shall not affect the validity and enforceability of all other provisions
hereof. In the event that such Applicable Laws are subsequently repealed, rescinded,
amended or otherwise changed, so that the provision hereof which had been held
invalid or modified is no longer in conflict with such laws, said provision shall thereupon
return to full force and effect and shall thereafter be binding on Grantor and Grantee,
provided that Grantor shall give Grantee thirty (30) days written notice of such change
before requiring compliance with said provision or such longer period of time as may be
reasonably required for Grantee to comply with such provision.
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PASSED, APPROVED, AND ADOPTED this _ day of
1999.
THE CITY OF
PRIOR LAKE, MINNESOTA
By:
Its: <>
ATTEST:
By:
Its: City Manager
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