HomeMy WebLinkAbout5.a. Cable Franchise Ordinance CITY OF ROSEMOUNT
EXECUTIVE SUMMARY FOR ACTION
CITY COUNCIL MEETING DATE: APRIL 20, 1999
AGENDA: CABLE TV FRANCHISE ORDINANCE AGENDA SECTION:
DEPT. HEAD REPORT
PREPARED BY: THOMAS D. BURT, CITY ADMINISTRATOR AGENI����� �� �
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ATTACHMENTS: FR.ANCHISE ORDINANCE APPROVED BY:
The negotiations with Marcus Cable have been finalized and a final draft is attached. The renewal of the
franchise agreement was a joint effort with the cities of Apple Valley, Fannington, and Rosemount. The term of
the franchise is 15 years. Tom Creighton, the attorney who negotiated the franchise with Marcus will be present
to answer questions.
One of the primary changes to the agreement is the three cities will now be responsible for providing the public,
educational and government programming (PEG)which Marcus no longer wanted to provide,nor were they
required to continue to provide. As a result it is the intention of the three cities to work together to create a
shared facility, equipment and staff to provide this service. Once further work is completed on a plan for the
three cities to work in partnership, the plan will be brought back to the Utilities Commission and then to City
Council.Until the plan is finalized the cities will pay Marcus to continue to provide those services. This will be
paid for by a newly created PEG fee. Marcus previously funded PEG access through their normal rate structure.
The initial PEG fee will be $.25 per month,per subscriber. This fee will be used to pay Marcus for the service
until an agreement is reached by the three cities to jointly operate PEG programming. The PEG fee can be
increased annually by the Consumer Price Index or 3%,which ever is less to a maximum of$1.25. All
equipment now owned by Marcus for PEG access will be given to the three cities and upon the effective date of
this agreement Marcus will also give Rosemount a$60,000 capital grant for equipment. Once this money is
received staff will discuss the possibility of acquiring equipment for the Council Chambers to begin
broadcasting meetings. Separate from the PEG fee the City will continue to collect the 5% franchise fee.
The Utility Commission recommends approval of the franchise agreement.
RECOMMENDED ACTION: MOTION to adopt AN ORDINANCE GRANTING A FRANCHISE TO
MARCUS CABLE PARTNERS, LLC, A DELAWARE LIMITED PARTNERSHIP, TO CONSTRUCT,
OPERATE, AND MAINTAIN A CABLE SYSTEM IN THE CITY OF ROSEMOUNT, SETTING FORTH
CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR
REGULATION AND USE OF THE SYSTEM AND THE PUBLIC RIGHTS-OF-WAY, AND
PRESCRIBING PENALTIES FOR THE VIOLATION OF THE PROVISIONS HEREIN.
COUNCIL ACTION:
ORDINANCE NO.
AN ORDINANCE GRANTING A FRANCHISE TO MARCUS CABLE PART'NERS,L.L.C.,A
DELAWARE LIMITED PARTNERSHIP, TO CONSTRUCT, OPERATE,AND MAINTAIN A
CABLE SYSTEM IN THE CITY OF ROSEMOUNT, SETTING FORTH CONDITIONS
ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION
AND USE OF THE SYSTEM AND THE PUBLIC RIGHTS-OF-WAY, AND PRESCRIBING
PENALTIES FOR THE VIOLATION OF THE PROVISIONS HEREIN;
The City Council of the City of Rosemount("City") ordains:
STATEMENT OF INTENT AND PURPOSE
The City intends, by the adoption of this Franchise, to bring about the further development of a
Cable System, and the continued operation of it. Such a development can contribute significantly
to the communication needs and desires of residents of the City. Further, the City may achieve
better utilization and improvement of public services with the development and operation of a Cable
System.
Past studies by the City have led the way for organizing a means of procuring and securing a Cable
System which, in the judgment of the City,is best suited to meet the needs of the community. This
has resulted in the preparation and adoption of this Franchise.
FINDINGS
In the review of the request and proposal for renewal by Marcus Cable Partners, L.LC., ("Grantee")
and negotiations related thereto, and as a result of a public hearing, the City makes the following
findings:
1. The Grantee's technical, financial,legal qualifications and ability, and character were
considered and approved in a full public proceeding after due notice and a reasonable
opportunity to be heard;
2. Grantee's plans for constructing, upgrading, and operating the System were
considered and found adequate and feasible in a full public proceeding after due
notice and a reasonable opportunity to be heard;
3. The Franchise granted to Grantee by the City complies with the existing applicable
Minnesota Statutes, federal laws and regulations; and
4. The Franchise granted to Grantee is nonexclusive.
SECTION 1.
SHORT TITLE AND DEFINITIONS
1. Short Title. This Franchise Ordinance shall be known and cited as the Cable
Communications Ordinance.
2. Definitions. For the purposes of this Franchise,the following terms,phrases,words,
and their derivations shall have the meaning given herein. When not inconsistent
with the context,words in the singular number include the plural number. The word
"shall" or"must" are always mandatory and not merely directory. The word "may"
is directory and discretionary and not mandatory.
a. "Basic Cable Service" means any service tier which includes the lawful
retransmission of local television broadcast signals and any public,
educational, and governmental access programming required by the
Franchise to be carried on the basic tier. Basic Cable Service as defined
herein shall not be inconsistent with 47 U.S.C. § 543(b)(7).
b. "Cable Svstem"or"S_ sy tem"means a system of antennas,cables,wires,lines,
towers,waveguides,or other conductors, Converters, equipment,or facilities
located in the City and designed and constructed for the purpose of
producing,receiving, transmitting, amplifying, or distributing audio, video,
and data. System as defined herein shall not be inconsistent with the
definitions set forth in Minn. Stat. §238.02, subd. 3 and 47 U.S.C. §522(7).
c. "Cable Programming Service"means any video programming provided over
a cable system, regardless of service tier, including installation or rental of
equipment used for the receipt of such video programming, other than:
i. Basic Cable Service;
ii. Video programnung offered on a pay-per-channel or pay-per-program
basis; or
iii. A combination of multiple channels of pay-per-channel or
pay-per-program video programming offered on a multiplexed or
time-shifted basis so long as the combined service:
(1) consists of commonly-identified video programming; and
(2) is not bundled with any regulated tier of service.
Cable Programming Service as defined herein shall not be inconsistent with the
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definition as set forth in 47 U.S.C. §543(1)(2) and 47 C.F.R.§ 76.901(b).
d. "Cable Service" or"Service"means the one-way transmission to subscribers
of(i)video programming,or(ii) other programming service, and subscriber
interaction, if any, which is required for the selection or use of such video
programming or other programming service pursuant to Minn. Stat. §238.01
et seq. and 47 U.S.0 §521 et seq., as may be amended from time to time.
e. "C�"means the City of Rosemount,Minnesota.
f. "Class IV Channel" means a signaling path provided by a Cable System to
transmit signals of any type from a Subscriber terminal to another point in the
System.
g. "Converter"means an electronic device which converts signals to a frequency
acceptable to a television receiver of a Subscriber and by an appropriate
selector permits a Subscriber to view all Subscriber signals included in the
service.
h. "Drop" means the cable that connects the ground block on the Subscriber's
residence to the neazest feeder cable of the System.
i. "FCC" means the Federal Communications Commission and any legally
appointed, designated or elected agent or successor.
j. "Franchise" or "Cable Franchise" means this ordinance and the contractual
relationship established hereby.
k. "Franchise Fee" includes any tax, fee,or assessment of any kind imposed by
a franchising authority or other governmental entity on a cable operator or
cable subscriber, or both, solely because of their status as such;
The term "Franchise Fee" does not include:
(A) 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);
(B) in the case of any franchise granted after October 30, 1984, any
payments which are required by the franchise to be incurred by the
cable operator for public, educational, or governmental access
facilities;
3.
(C)requirements or chazges 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
(D) any fee imposed under Title 17.
1. "Grantee" is Marcus Cable Partners,L.L.C.,its agents and employees, lawful
successors,transferees or assignees.
m. "Gross Revenues" means all revenue received directly or indirectly by the
Grantee, its affiliates, subsidiaries, parent, or person in which Grantee has
financial interest of five percent (5%) or more, from the operation of its
System, including but not limited to Cable Service fees,interest,Installation
and reconnection fees, upgrade and downgrade fees, advertising revenue,
Franchise Fee receipts, revenues generated by sales on home shopping
channel(s), leased channel fees, Converter rental fees, Lockout Device fees
or fees for any other Cable Services provided via the System. The term
Gross Revenues shall not include bad debt,or any taxes on services furnished
by Grantee which are imposed by any municipality, state, or other
governmental unit and collected by Grantee for such governmental unit.
n. "Installation" means the connection of the System from feeder cable to the
point of connection with the ground block.
o. "Lockout Device"means an optional mechanical or electrical accessory which
inhibits the viewing of a certain program, certain channel,or certain channels
provided by way of the Cable Communication System.
p. "Node" means the demarcation point in the System where fiber optic
components and signals are converted to coaxial or non-optical components,
and all related equipment.
q. "Normal business hours"means at least 8 a.m. to 5 p.m. In all cases, "normal
business hours"must include some evening hours at least one night per week
and/or some weekend hours. '
r. "Normal operating conditions" means those service conditions which are
within the control of Grantee. Those conditions which are typically not
within the control of Grantee include,but are not limited to,natural disasters,
civil disturbances,power outages,telephone network outages, and severe or
unusual weather conditions. Those conditions which are typically within the
control of Grantee include, but are not limited to, special promotions,
pay-per-view events,rate increases,regular peak or seasonal demand periods,
and maintenance or upgrade of the System.
4.
s. "PEG Access" or "PEG" means public, educational and governmental
programming channels, equipment, facilities, funding, or operations as the
context may require.
t. "PEG Fee" means a fee to subscribers for support of PEG Access.
u. "Pav Television" means the delivery over the System of pay-per-channel or
pay-per-program audio-visual signals to Subscribers for a fee or charge, in
addition to the charge for Basic Cable Service or Cable Programming
Services.
v. "Person" is any person, fum,partnership, association, corporation, company,
or other legal entity.
w. "Right-of-Way" or"Ri�hts-of-Wa.,y"means the area on,below, or above any
real property in the City in which the City has an interest including,but not
limited to any street,road,highway, alley, sidewalk,parkway,park, skyway,
or any other place, area, or real property owned by or under the control of the
City, including any other Rights-of-Way dedicated for travel purposes and
utility easements.
x. "Right-of-Wav Ordinance" means such ordinance adopted by the City
creating requirements regarding regulation, management and use of Rights-
of-Way, including registration and permitting requirements.
y. "Service interruption"means the loss of picture or sound on one or more cable
channels (for longer than a momentary period).
z. "Standard Installation" means any residential installation which can be
completed using a Drop of 200 feet or less.
aa. "Subscriber"means any Person who lawfully receives service via the System.
SECTION 2.
GRANT OF AUTHORITY AND GENERAL PROVISIONS
1. Grant of Franchise. This Franchise is granted pursuant to the terms and conditions
contained herein.
2. Franchise Required. It shall be unlawful for any Person to construct, operate or
maintain a System or provide Service in City unless such Person shall first obtain and
hold a valid Franchise.
5.
3. Grant of Nonexclusive Authoritv.
a. The Grantee shall have the right and privilege pursuant to this Franchise,
subject to the requirements of any applicable ordinance,rule or procedure,to
construct, erect, maintain, and operate a Cable System in, upon, along,
across, above,over and under the Rights-of-Way in the City and shall have
the right and privilege to provide Cable Service. The System constructed
� and maintained by Grantee or its agents shall not interfere with other uses of
the Rights-of-Way. Grantee shall make use of existing poles and other above
and below-ground facilities available to Grantee to the extent it is technically
and economically feasible to do so.
b. Notwithstanding the above grant to use Rights-of-Way,use of such Rights-of-
Way shall not be inconsistent with the terms and conditions by which such
Rights-of-Way were created or dedicated and with all legal requirements
related to the use of such Rights-of-Way, including the terms and conditions
of any applicable Right-of-Way Ordinance. This provision in no way limits
Grantee's rights pursuant to Minn. Stat. §238.35.
c. This Franchise shall be nonexclusive. Additional Cable Franchises granted
� by the City shall be granted the substantially similar substantive terms and
conditions.
4. Lease or Assi�nment Prohibited. No Person may lease Grantee's System for the
purpose of providing Service until and unless such Person shall have first obtained
and shall currently hold a valid Franchise.
5. Franchise Term. This Franchise shall be in effect for a period of 15 years from the
date of acceptance by Grantee.
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6. Previous Franchises. Upon acceptance by Grantee as required by Section 13 herein,
this Franchise shall supersede and replace the previous Ordinance granting a
Franchise to Grantee.
7. Com�liance with Applicable Laws Resolutions and Ordinances. The Grantee shall
at all times during the term of this Franchise be subject to all lawful exercise of the
police power, statutory rights, local ordinance-making authority, and eminent domain
rights of the City. This Franchise shall comply with Minnesota franchise standards
contained in Minn. Stat. §238.01 et seq.
8. Territorial Area Involved. This Franchise is granted for the corporate boundaries of
the City as it exists from time to time. In the event of annexation by City or as
development occurs, any new territory shall become part of the territory for which
this Franchise is granted provided, however, that Grantee shall not be required to
extend Service beyond its present System boundaries unless there is a minimum of
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thirty(30)homes per cable mile. Grantee shall extend Service to any other areas or
Persons requesting Service at a cost equal to the construction costs, including
material,labor and any necessary easements,per mile multiplied by a fraction whose
numerator equals the actual number of homes per mile, and whose denominator
equals thirty (30) homes. Those Persons wishing to become Subscribers and
requesting Service will bear the remainder of the construction costs on a pro rata
basis. The Grantee may require that the payment of these costs by such potential
Subscribers be made in advance. Access to Cable Service shall not be denied to any
group of potential residential cable Subscribers because of the income of the
residents of the area in which such group resides. Grantee shall be given a
reasonable period of time to construct and activate cable plant to service annexed or
newly developed areas but in no event not to exceed twelve(12)months from notice
thereof by City to Grantee.
9. Written Notice. All notices, reports, or demands required to be given in writing
under this Franchise shall be deemed to be given when delivered personally to any
officer of Grantee or City's Administrator of this Franchise or forty-eight (48) hours
after it is deposited in the United States mail in a sealed envelope,with registered or
certified mail postage prepaid thereon,addressed to the party to whom notice is being
given, as follows:
If to City: City of Rosemount
c/o City Administrator
2875 - 145�' St. W.
Rosemount,MN 55068
With copies to: Thomas D. Creighton, Esq.
Robert J. V. Vose, Esq.
Bernick and Lifson
Suite 1200,The Colonnade
5500 Wayzata Boulevard
Minneapolis,MN 55416
If to Grantee: Marcus Cable Partners, L.L.C.
16900 Cedar Avenue South
Rosemount,MN 55068
With copies to: Jane E. Bremer,Esq.
Larkin,Hoffinan,Daly&Lindgren,Ltd.
1500 Norwest Financial Center
7900 Xerxes Avenue South
Bloomington,MN 55431
7.
Such addresses may be changed by either party upon notice to the other party given as provided in
this Section.
10. Drops to Public Buildin�s. Grantee shall provide, free of charge, Installation of one
(1) two-way activated cable Drop which does not include upstream transmission
equipment, one(1)cable outlet, and monthly Basic Cable Service without charge to
the institutions identified in Exhibit A attached and such other public or educational
institutions within the cable service temtory which the City may designate and which
are within 200 feet of the System.
Redistribution of the free Basic Cable Service provided pursuant to this Section shall
be allowed with the Grantee's prior written consent or for educational purposes.
Additional Drops and/or outlets in any of the above locations shall be provided by
Grantee at the cost of Grantee's time and material. Alternatively, at the City or
institution's request, said institution may add outlets at its own expense, as long as
such Installation meets applicable FCC technical standards. Drops to subsequently
designated institutions in excess of 200 feet shall be provided by the Grantee at the
cost of Grantee's time and materials less the cost of the 200 feet closest to the
building. Grantee shall have one (1) year from the date of the City designation of
additional institution(s)to complete construction of the Drop and outlet.
SECTION 3.
CONSTRUCTION STANDARDS
l. Re�istration, Permits and Construction Codes.
a. Grantee shall strictly adhere to all state and local laws and building and
zoning codes currently or hereafter applicable to location, construction,
installation, operation or maintenance of the System in the City.
b. 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
as it shall find necessary to ensure compliance with the terms of the Franchise
and applicable provisions of local, state and federal law.
2. Repair of Ri�hts-of-Wav and Propertv. Any and all Rights-of-Way 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 the same
condition as that prevailing prior to Grantee's work, as approved by City in the case
of Rights-of-Way and other public property. If, after reasonable notice, Grantee fails
to promptly perform the restoration required herein, City may perform the restoration
of the Rights-of-Way, public, or private property as required herein at Grantee's
expense.
s.
3. Conditions on Ri t-of-Wav Use.
a. Nothing in this Franchise shall be construed to prevent the City from adopting
and enforcing requirements for the usage of Rights-of-Way or from
_ constructing, maintaining, repairing or relocating sewers; grading, paving,
maintaining, repairing, relocating and/or altering any Right-of-Way;
constructing, laying down, repairing, maintaining or relocating any water
mains; or constructing,maintaining,relocating, or repairing any sidewalk or
other public work.
b. All System transmission and distribution structures, lines and equipment
erected by the Grantee shall be located so as not to obstruct or interfere with
the use of Right-of-Way and to cause minimum interference with the rights
of property owners who abut any of said Right-of-Way and not to interfere
with existing public utility installations. The Grantee shall furnish to and file
with the City the maps, plats, and permanent records of the location and
character of all facilities constructed, including underground facilities, and
Grantee shall file with the City updates of such maps,plats and permanent
records annually if changes have been made in the System.
c. If at any time during the period of this Franchise City shall elect to alter or
change the grade or location of any Right-of-Way, the Grantee shall, upon
reasonable notice in a manner consistent with applicable ordinances,remove
and relocate its poles,wires,cables,conduits,manholes and other fixtures of
the System. If the City enters into an agreement to reimburse other occupants
of the Right-of-Way for such relocation or removal,Grantee shall be likewise
reimbursed.
d. The Grantee shall not place poles,conduits,or other fixtures of System above
or below ground where the same will interfere with any gas, electric,
telephone,water or other utility fixtures and all such poles,conduits, or other
fixtures placed in any Right-of-Way shall be so placed as to comply with all
requirements of the City. Grantee shall utilize existing poles, conduits, or
other wire-holding structures of existing utilities to the extent technically and
economically feasible. City shall have no obligation to assist Grantee in
obtaining the consent for use of existing facilities from any utility company.
e. The Grantee shall, upon request of any Person holding a moving permit
issued by the City, temporarily move its wires or fixtures to permit the
moving of buildings with the expense of such temporary removal to be paid
in advance 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.
f. The Grantee shall have the authority to trim any trees upon and overhanging
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the Rights-of-Way only to the extent necessary to prevent the branches of
such trees from coming in contact with the wires and cables of the Grantee.
g. Nothing contained in this Franchise shall relieve any person from liability
arising out of the failure to exercise reasonable care to avoid injuring
Grantee's facilities.
4. Under�rounding of Cable. Grantee must place newly constructed facilities
underground in areas of the City where all other utility lines are placed underground.
Amplifier boxes and pedestal mounted terminal boxes may be placed above ground
if existing technology reasonably requires,but shall be of such size and design and
shall be so located as not to be unsightly or unsafe, all as may be approved by the
City in accordance with applicable requirements.
5. Drop Burial. Grantee shall bury all Drops in a reasonable time period which shall not
exceed ten(10)business days, subject to weather conditions and the completion of
required utility locates. In the event the ground is frozen, Grantee shall be permitted
to delay burial until the ground is suitable for burial which in no event shall be later
than June 30th.
6. Erection, Removal and Joint Use of Poles. No poles, conduits, amplifier boxes,
pedestal mounted terminal boxes, similar structures, or other wire-holding structures
shall be erected or installed by the Grantee without prior approval of the City with
regard to location,height,type and other pertinent aspects.
7. Safetv Requirements.
a. The Grantee shall at all times employ ordinary and reasonable care and shall
install and maintain in use nothing less than commonly accepted methods and
devices for preventing failures and accidents which are likely to cause
damage, injuries,or nuisances to the public.
b. The Grantee shall install and maintain its System and other equipment in
accordance with all federal, state and local laws and regulations, and the
requirements of the National Electric Safety Code and in such manner that
they will not interfere with private radio,police and fire communications or
any installations of the City or of any public utility serving the City.
c. All System structures, and lines, equipment and connections in, over, under
and upon the Rights-of-Way,wherever situated or located, shall at all times
be kept and maintained in good condition, order,and repair so that the same
shall not menace or endanger the life or property of the City or any Person.
8. Emer�encv Use of Facilities. In the case of any emergency or disaster, the Grantee
shall upon request of the City,make available its facilities to City during the period
l0.
of emergency or disaster.
SECTION 4.
DESIGN PROVISIONS
l. Svstem Up�rade; Minimum Channel Capacitv.
a. Grantee shall develop, construct and continue for the term of this Franchise
to provide a 750 MHz fiber/coaxial hybrid System which is engineered and
activated so as to be capable of delivering a minimum of 80 video
programmed channels. The System shall be designed with an average five
hundred(500)homes per fiber node configuration as more fully detailed in
Exhibit B attached.
b. All programming decisions remain the discretion of Grantee; provided,
however, that any change in the broad catagories of video programming or
other information services shall require the approval of the City consistent
with 47 U.S.C. § 544(b),which approval shall not be unreasonably withheld,
and further provided that Grantee notifies the City and Subscribers in writing
thirty(30)days prior to any channel additions,deletions,or realignments, and
further subject to Grantee's signal carriage obligations hereunder and
pursuant to 47 U.S.C. § 531-536, and further provided that Grantee may not
eliminate, move or renumber any PEG access or other community
programming channel required hereunder without prior approval of the City.
Grantee shall conduct programming surveys from time to time to obtain
input on programming decisions from Subscribers.
c. Grantee shall interconnect with any adjoining Cable System at such time as
consent from the adjoining operator is received. Nothing herein shall require
Grantee to interconnect unless the operator of the adjoining System agrees to
pay a pro rata share of the interconnection costs.
2. Reserved Capacity for Institutional Services. In the event public institutions within
the City elect to utilize the System for non-commercial applications, they shall be
offered service on terms and conditions substantially similar to those contained in the
Agreement between Marcus Fiberlink and the City of Lakeville, dated November l,
1998. Grantee shall not be required to provide any particular service or application
which Grantee lacks technological ability or regulatory approval to provide. A
requesting institution may provide equipment or seek regulatory approval
independent of Granee in order to provide such service or application via reserved
capacity.
3. Construction Timetable. Grantee shall complete construction related to the System
upgrade required herein and activate such upgrade within 18 months of the effective
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date of this Franchise. Failure to timely complete such construction shall be a
violation of this Franchise.
4. Operation and Maintenance of Svstem. 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 2.9 herein and shall occur during periods of minimum use
of the System.
5. Technical Standards. The technical standards used in the operation of the System
shall comply, at minimum, with the technical standards promulgated by the FCC
relating to Cable Systems pursuant to Code of Federal Regulations Title 47, Section
76.601 to 76.617, as may be amended or modified from time to time, which
regulations are expressly incorporated herein by reference.
6. Special Testin�.
a. The City may require testing of a location or locations within the System or
the System as a whole. Demand for such special tests may be made on the
basis of complaints received or other evidence indicating an unresolved
controversy or noncompliance. The City shall endeavor to so arrange its
request for such special testing so as to minimize hardship or inconvenience
to Grantee or to the Subscribers caused by such testing.
b. Before ordering such tests, Grantee shall be afforded thirty (30) days to
correct problems or complaints upon which tests were ordered. If 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.
c. In the event that special testing determines that the System or Grantee is the
source of technical difficulties in violation of the FCC technical
specifications as required by this Franchise, the cost of said testing shall be
reimbursed by the Grantee.
7. FCC Reports. The results of any tests required to be filed by Grantee with the FCC
shall also be filed with the City or its designee within ten(10)days of the conduct of
such tests.
8. Nonvoice Return Capabilitv. Grantee is required to use cable having the technical
capacity for nonvoice return communications.
9. Lockout Device. Upon the request of a Subscriber, Grantee shall provide a Lockout
Device.
SECTION 5.
12.
SERVICES PROVISIONS
1. Regulation of Service Rates.
a. The City may regulate rates for the provision of Cable Service, equipment,
or any other communications service provided over the System to the extent
allowed under federal or state law(s). The City reserves the right to regulate
rates for any future services to the extent permitted by law.
b. A list of Grantee's current Subscriber rates and charges shall be maintained
on file with the City and shall be available for public inspection. Grantee
shall give the City and Subscribers written notice of any change in a rate or
charge no less than thirty(30) days prior to the effective date of the change.
2. Non-Standard Installations. Grantee shall install and provide Cable Service to any
Person requesting other than a Standard Installation provided that said Cable Service
can meet FCC technical specifications. In such case, Grantee may charge for the
incremental increase in material and labor costs incurred beyond the Standard
Installation.
3. Sales Procedures. Grantee shall not exercise deceptive sales procedures when
marketing any of its services within City. Grantee shall have the right to market
door-to-door during reasonable hours consistent with local ordinances and regulation.
1. Telephone InQuiries and Comnlaints.
a. Availabilitv Grantee will maintain an adequate number of local, toll-free or
collect call telephone access lines which will be available to its Subscribers
24 hours a day, seven days a week so as to receive Subscriber complaints,
requests, and inquiries. During normal business hours, trained
representatives of Grantee shall be available to respond to Subscriber
inquiries. Grantee will ensure that: (1) an adequate number of trained
company representatives will be available to respond to customer telephone
inquiries during normal business hours, and; (2) after normal business hours,
the access line may be answered by a service or an automated response
system, including an answering machine. Further, inquiries received after
normal business hours must be responded to by a trained company
representative on the next business day.
b. Televhone Answer Time and Busy Signals Under normal operating
conditions, telephone answer time by a customer representative, including
wait time, shall not exceed thirty(30) seconds after the connection is made.
If the call needs to be transferred, transfer time shall not exceed thirty(30)
seconds. These standards shall be met no less than ninety(90)percent of the
time under normal operating conditions, measured on a quarterly basis.
13.
Under normal operating conditions,the customer will receive a busy signal
less than three(3)percent of the time.
2. Installation. Outa�e and Service Calls. Under normal operating conditions, each of
the following four standards will be met no less than ninety five(95)percent of the
time measured on a quarterly basis: (1)Installations will be performed within seven
(7)business days after an order has been placed; (2) Grantee will begin working on
service interruptions promptly, in no event later than twenty-four(24)hours after the
, interruption becomes known, and Subscriber requests for repairs shall be performed
within twenty-four(24)hours of the request unless conditions beyond the control of
Grantee prevent such performance; (3)The "appointment window" alternatives for
Installations, service calls, and other installation activities will be either a specific
time or, at ma�cimum, 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 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; (5) If a representative of Grantee 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. The appointment will be rescheduled, as
necessary, at a time which is convenient for the customer.
3 Complaint and Other Service Records Subject to Grantee's to maintain the privacy
of certain information, Grantee shall prepare and maintain written records of all
complaints received and the resolution of such complaints,including the date of such
resolution. Such written records shall be on file at the office of Grantee. Grantee
shall provide the City with a written summary of such complaints and their resolution
on a quarterly basis. Grantee will also provide detailed compliance reports on a
quarterly basis with respect to the objectively measurable service standards herein
in a form mutually agreed upon.
4 Billing and Subscriber Communications. Grantee must give Subscribers thirty(30)
days advance written notice with copy to City before any changes in rates,
programming services, or channel positions. Bills must be clear, concise, and
understandable,with itemization of all charges for Services,equipment charges, and
any optional services, charges, and other activity during the billing period. In case
of a billing dispute, the cable operator must respond to a written complaint from a
subscriber within 30 days.
5 Subscriber Contracts. Grantee shall file with the City any standard form Subscriber
contract utilized by Grantee. If no such written contract exists, Grantee shall file
with the City a document completely and concisely stating the length and terms of
the Subscriber contract offered to customers. The length and terms of any Subscriber
contract(s) shall be available for public inspection during normal business hours.
6 Refunds and Credits. In the event a Subscriber establishes or terminates Service and
14.
receives less than a full month's Service, Grantee shall prorate the monthly rate on
the basis of the number of days in the period for which Service was rendered to the
number of days in the billing. Refund checks will be issued promptly, but no later
than the return of the equipment supplied by the Grantee if Service is terminated. If
Service is interrupted or discontinued for a total of more than 48 hours in any 30 day
period, Subscribers shall be credited pro rata for such interruption beginning with the
date of interruption. Credits for will be issued no later than the Subscriber's next
billing cycle following the determination that a credit is warranted.
7 Late Fees. Fees for the late payment of bills shall not accnze until the normal billing
cut-off for the next month's service and in no event less than one(1)month after the
unpaid bill in question was sent to the Subscriber customer service center and bill
payment locations will be open at least during normal business hours. Payments at
the cable operator's drop-box location shall be deemed received on the date such
payments are picked up by the cable operator which shall occur within 24 hours after
every due date. The cable operators shall continue to provide a"grace period" of at
least five(5)days after each due date. Late fees shall not exceed the Grantee's actual
and demonstrable costs associated with collection of late payments as may be
determined by a court of competent jurisdiction.
8 Drop Box. Grantee shall maintain a local drop box for receiving Subscriber
payrnents after hours.
9 Additional Customer Service Requirements. The City expressly reserves authority
to adopt additional or modified customer service requirements to address Subscriber
concems or complaints in accordance with law.
15.
SECTION 6.
ACCESS CHANNEL(S) PROVISIONS
l. Public,Educational and Government Access.
a. � The City is hereby designated to operate, administer,promote, and manage
community programming(public, education, and government programming)
(hereinafter"PEG access")in the Cable System.
c.b. Grantee shall dedicate five(5) channel(s),with channel defined as a six(6)
MHz spectrum allocation,for PEG access and community programming use.
All residential Subscribers who receive all or any part of the total services
offered on the System shall be eligible to receive such channels at no
additional charge. The channel(s) shall be activated upon the effective date
of this Franchise and thereafter maintained. The City may rename,
reprogram, or otherwise change the use of these channels in its sole
discretion, provided such use is non-commercial and retains the general
purpose of the provision of community programming. Nothing herein shall
diminish the City's rights to secure additional channels pursuant to Minn.
Stat. § 238.084, which is expressly incorporated herein by reference. The
City shall provide ninety(90)days prior written notice to Grantee of City's
intent to activate access channels and shall allow Grantee reasonable time to
vacate said channel(s).
c. The VI-� spectnun must be used for the PEG access channel(s)required in
this Section. Grantee shall designate the channel locations of any other
access channel(s)but may not move or otherwise change the channel number
or location of any PEG access or community program channel without the
written approval of the City.
2. Charges for Use. Channel time and playback of prerecorded programming on the
PEG access and community program channel(s)must be provided without charge to
the City and the public.
3. Access Rules. City, or its designee, shall implement rules for use of any access
channel(s).
4. Access Support.
a. Grantee sha11 collect from Subscribers and quarterly pay to the City in support
of PEG operations the full amount of revenues generated by a $.25 per
month, per Subscriber fee beginning upon the Effective Date of this
Franchise. This fee may be separately itemized as a"PEG Fee" and passed
through to Subscribers independent from rates regulated pursuant to FCC
16.
regulations. The City may require increases in the PEG Fee up to a limit of
$1.25 increased annually by the Consumer Price Index(CPI) or three percent
(3%),whichever is less. The City may not increase the PEG Fee by more than
twenty-five cents ($.25) in any given year. The City shall notify Grantee of
any such increase on or before September 30, assuming a January 1
implementation. Should Grantee change the date of any annual rate change
from January 1, and so notify the City,then the City shall notify Grantee of
any PEG increase at least ninety (90) days prior to the new Grantee rate
change date. Such payment shall be separate from and in addition to the
Franchise Fee.
b. Grantee shall transfer title to any PEG equipment which it owns currently to
provide PEG programming to the City and repair or replace such other PEG
equipment as the City deems necessary, as is indicated on attached Exhibit
C.
c. Within forty-five (45) days of the effective date of this Franchise, Grantee
shall pay City$60,000.00 as a capital equipment grant. Grantee may recoup
said grant by an addition of up to twenty-five cents ($.25) to the PEG Fee.
Such additional PEG Fee shall be retained by Grantee until such time as the
capital grant above is recouped. Upon such recoupment, Grantee shall notify
the City. The City shall have the option of leaving the recoupment addition
as part of the PEG Fee on a going forward basis. Grantee shall pay this
additional amount to the City in its regular PEG Fee payment to the City. In
the year of recoupment, the City may not increase the PEG Fee an additional
amount.
SECTION 7.
OPERATION AND ADMINISTRATION PROVISIONS
1. Administration of Franchise. The City shall have continuing regulatory jurisdiction
and supervision over the System and the Grantee's operation under the Franchise.
2. Dele�ated Authoritv. The City may delegate to any other body or Person authority
to administer the Franchise and to monitor the performance of the Grantee pursuant
to the Franchise; provided, however, the City shall not delegate any enforcement
power it may have pursuant to this Franchise or any applicable laws.
3. Franchise Fee.
a.a. During the term of the Franchise, Grantee shall pay to the City a Franchise
Fee in an annual amount equal to five percent(5%) of its Gross Revenues.
b. Any payments due under this provision shall be payable quarterly. The
payment shall be made within sixty(60) days of the end of each of Grantee's
17.
current fiscal quarters together with a report in form reasonably acceptable '
to City and Grantee and which shows the basis for the computation.
c. All amounts paid shall be subject to audit and recomputation by the City and
acceptance of any payment shall not be construed as an accord that the
amount paid is in fact the conect amount.
4. Access to Records. The City shall have the right to inspect, upon reasonable notice
and during normal business hours, any records maintained by Grantee which relate
to this Franchise or System operations including specifically Grantee's accounting
and fmancial records, subject to the privacy provisions of 47 U.S.C. § 521 et seq. In
addition or alternatively, Grantee shall provide copies of any such records upon
request by City.
5. Reports and Maps to be Filed with the Citv.
a. Grantee shall file with the City, at the time of payment of the Franchise Fee,
a report of all Gross Revenues certified by an officer of the Grantee.
b. Grantee shall prepare and furnish to the City, at the times and in the form
prescribed, such other reports with respect to the operations, affairs,
transactions or property, as they relate to the System,which Grantee and the
City may agree upon.
c. Grantee shall furnish to and file with the City upon request the maps, plats,
and permanent records of the location and character of all facilities
constructed, including underground facilities.
6. Periodic Evaluation.
a. The City may require evaluation sessions at any time during the term of this
Franchise, upon thirty(30) days written notice to Grantee.
b. All evaluation sessions shall be open to the public. Grantee shall notify its
Subscribers of all evaluation sessions by announcement of at least sixty(60)
seconds in duration on at least one (1)-Basic Service channel of the System
between the hours of 7:00 p.m. and 9 00 p.m. for five (5) consecutive days
preceding each session.
c. Topics which may be discussed at any evaluation session may include, but
are not limited to, application of new technologies, System performance,
programming offered, access channels, facilities and support,municipal uses
of cable, customer complaints,amendments to this Franchise,judicial rulings,
FCC rulings, line extension policies and any other topics the City and
Grantee deem relevant.
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d. As a result of a periodic review or evaluation session, the City may request
Grantee to amend the Franchise to provide additional services or facilities as
are mutually agreed upon and which are both economically and technically
feasible.
SECTION 8.
GENERAL FINANCIAL AND INSURANCE PROVISIONS
l. Performance Bond.
a.a. At the time the Franchise becomes effective and at all times thereafter, until
the Grantee has liquidated all of its obligations with the City, the Grantee
shall furnish a bond to the City in the amount of Fifty Thousand Dollars
($50,000.00)in a form and with such sureties as are reasonably acceptable to
the City. This bond will be conditioned upon the faithful performance of the
Grantee according to the terms of the Franchise and upon the further
condition that in the event the Grantee shall fail to comply with any law,
ordinance or regulation governing the Franchise, there shall be recoverable
jointly and severally from the principal and surety of the bond any damages
or loss suffered by the City as a result, including the full amount of any
compensation, indemnification or cost of removal or abandonment of any
property of the Grantee,plus a reasonable allowance for attorneys' fees and
costs,up to the full amount of the bond, and further guaranteeing payment by
the Grantee of claims, liens and taxes due the City which arise by reason of
the construction, operation, or maintenance of the System. The rights
reserved by the City with respect to the bond aze in addition to all other rights
the City may have under the Franchise or any other law. The City may, from
year to year, in its sole discretion, reduce the amount of the bond.
b. In the event this Franchise is canceled by reason of default of Grantee or
revoked, the City shall be entitled to collect from the performance bond that
amount which is attributable to any damages sustained by the City pursuant
to said default or revocation. Grantee,however, shall be entitled to the return
of such performance bond,or portion thereof, as remains at the expiration of
the term of the Franchise.
c. The rights reserved to the City with respect to the performance bond shall not
be deemed an exclusive remedy and are in addition to all other rights of the
City whether reserved by this Franchise or authorized by law, and no action,
proceeding or exercise of a right with respect to the performance bond shall
affect any other right the City may have.
2 Construction Bond. Upon Grantee's initiation of construction and System upgrade
19.
in City as required by this Franchise, Grantee shall provide an additional
construction bond to City in the amount of Fifly Thousand Dollars ($50,000.00) or
shall increase the performance bond to One Hundred Thousand Dollars
($100,000.00). Grantee shall maintain such bond(s) during the term of the
construction upon the terms and conditions provided above. Upon completion of
such construction, Grantee shall provide written notice to City. Within thirty (30)
days of receipt of said notice, City shall indicate in writing its agreement or specify
those items of conshuction which City determines are incomplete. At such time as
City and Grantee mutually agree that said construction is complete, Grantee shall be
required to provide City only with a performance bond as required above.
3 Letter of Credit.
a. At the time of acceptance of this Franchise, Grantee shall deliver to the City
an irrevocable and unconditional Letter of Credit, in form and substance
acceptable to the City, from a National or State bank approved by the City,
in the amount of Ten Thousand Dollars ($10,000.00).
b. The Letter of Credit shall provide that funds will be paid to the City, upon
written demand of the City, and in an amount solely determined by the City
in payment for penalties charged pursuant to this section, in payment for any
monies owed by Grantee pursuant to its obligations under this Franchise, or
in payment for any damage incurred as a result of any acts or omissions by
Grantee pursuant to this Franchise. •
c. In addition to recovery of any monies owed by Grantee to the City or
damages to the City as a result of any acts or omissions by Grantee pursuant
to the Franchise, the City, in its sole discretion, may charge to and collect
from the Letter of Credit the following penalties:
i. For failure to complete system upgrade as provided herein,unless the
City approves the delay, the penalty shall be Two Hundred Dollars
($200.00)per day for each day, or part thereof, such failure occurs or
continues.
ii. For failure to provide data, documents, reports or information
required herein or for failure to cooperate with the City during an
application process or system review or as otherwise provided herein,
the penalty shall be Fifty Dollazs ($50.00) per day for each day, or
part thereof, such failure occurs or continues.
iii. For failure to comply with construction, operation or customer
service, or maintenance and technical standards, including the
customer service requirements herein, the penalty shall be One
Hundred Dollars($100.00)per day for each day,or part thereof,such
failure occurs or continues.
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iv. For failure to provide the services Grantee has proposed, including,
but not limited to,the implementation and the utilization of the access
channels and the maintenance and/or replacement of the equipment
and other facilities, the penalty shall be One Hundred Dollars
($100.00) per day for each day, or part thereof, such failure occurs
or continues.
v. For violation of any other provision of this Franchise or applicable
federal, state, or local law or regulation, the penalty shall be Fifty
Dollazs($50.00)per day for each day, or part thereof, such violation
continues.
d. Each violation of any provision of this Franchise shall be considered a
separate violation for which a separate penalty can be imposed.
e. Whenever the City finds that Grantee has violated one or more terms,
conditions or provisions of this Franchise, a written notice shall be given to
Grantee informing it of such violation. At any time after thirty (30) days
following receipt of notice,provided Grantee remains in violation of one or
more terms,conditions or provisions of this Franchise, in the sole opinion of
the City,the City may draw from the Letter of Credit all penalties or monies
due the City from the date of the local receipt of notice. The City may grant
additional time beyond the initial thirty (30) days in the event the City
determines such additional time is necessary to cure the alleged violation.
f. Grantee may,within fifteen(15)days of receipt of such notice,notify the City
in writing that there is a dispute as to whether a violation or failure has in fact
occurred. Such written notice by Grantee to the City shall specify with
particularity the matters disputed by Grantee. All penalties shall continue to
accrue and the City may draw from the Letter of Credit at the end of the thirty
(30) day cure period notwithstanding Grantee's dispute regarding the
violation.
i. The City shall hear Grantee's dispute at the next regularly scheduled
meeting or within sixty(60) days,whichever period is longer.
ii. Upon deternunation by the City that no violation has taken place,the
City shall rescind the notice of violation and refund to Grantee,
without interest,all monies drawn from the Letter of Credit by reason
of the alleged violation.
g. If said Letter of Credit or any subsequent Letter of Credit delivered pursuant
thereto expires prior to five(5)months after the expiration of the term of this
Franchise, it shall be renewed or replaced during the term of this Franchise
21.
to provide that it will not expire earlier than five (5) months after the
expiration of this Franchise. The renewed or replaced Letter of Credit shall
be of the same form and amount and with a bank authorized herein.
h. If the City draws upon the Letter of Credit or any subsequent Letter of Credit
delivered pursuant hereto,in whole or in part, Grantee shall replace the same
within ten(10)days and shall deliver to the City a like replacement Letter of
Credit for the full amount required herein as a substitution of the previous
Letter of Credit.
i. If any Letter of Credit is not so replaced,the City may draw on said Letter of
Credit for the whole amount thereof and use the proceeds as the City
determines in its sole discretion. The failure to replace any Letter of Credit
may also,at the option of the City,be deemed a default by Grantee under this
Franchise. The drawing on the Letter of Credit by the City, and use of the
money so obtained for payment or performance of the obligations, duties and
responsibilities of Grantee which are in default, shall not be a waiver or
release of such default.
j. The collection by the City of any damages, monies or penalties from the
Letter of Credit shall not be deemed an exclusive remedy and shall not affect
any other right or remedy available to the City, nor shall any act, or failure
to act,by the City pursuant to the Letter of Credit,be deemed a waiver of any
right of the City pursuant to this Franchise or otherwise.
4 Indemnification of the Citv.
a. The City, its officers, boards, committees, commissions, elected officials,
employees and agents shall not be liable for any loss or damage to any real
or personal property of any Person, or for any injury to or death of any
Person, arising out of or in connection with the construction, operation,
maintenance,repair or removal of,or other action or event with respect to the
System or as to any other action or event with respect to this Franchise.
b. Grantee shall indemnify, defend, and hold hannless the City, its officers,
boards, committees, commissions, elected officials, employees and agents,
from and against all liability,damages, and penalties which they may legally
be required to pay as a result of the exercise, administration, or enforcement
of the Franchise including,but not limited to, the reimbursement to City of
any insurance deductible paid by City.
c. Nothing in this Franchise relieves a Person, except the City, from liability
arising out of the failure to exercise reasonable care to avoid injuring the
Grantee's facilities while performing work connected with grading,regrading,
or changing the line of a Right-of-Way or public place or with the
22.
construction or reconstruction of a sewer or water system.
5 Insurance.
a. Grantee shall file with its acceptance of this Franchise, and at all times
thereafter maintain in full force and effect at its sole expense, a
comprehensive general liability insurance policy, including
broadcaster's/cablecaster's liability and contractual liability coverage, in
protection of the Grantee, and the City, its officers, elected officials,boards,
commissions, agents and employees for any and all damages and penalties
which may arise as a result of this Franchise. The policy or policies shall
name the City as an additional insured, and in their capacity as such, the City
officers, elected officials,boards, commissions, agents and employees.
b. The policies of insurance shall be in the sum of not less than One Million
Dollars ($1,000,000.00) for personal injury or death of any one Person, and
Two Million Dollars ($2,000,000.00) for personal injury or death of two or
more Persons in any one occurrence,One Million Dollars($1,000,000.00) for
property damage to any one person and Two Million Dollars ($2,000,000.00)
for property damage resulting from any one act or occurrence.
c. The policy or policies of insurance shall be maintained by Grantee in full
force and effect during the entire term of the Franchise. Each policy of
insurance shall contain a statement on its face that the insurer will not cancel
the policy or fail to renew the policy,whether for nonpayment of premium,
or otherwise, and whether at the request of Grantee or for other reasons,
except after sixty(60)days advance written notice have been provided to the
City.
SECTION 9.
SALE,ABANDONMENT,TRANSFER AND REVOCATION OF FRANCHISE
1. Ci 't ��ght to Revoke.
a. In addition to all other rights which the City has pursuant to law or equity,the
City reserves the right to revoke, terminate or cancel this Franchise, and all
rights and privileges pertaining thereto,if after the hearing required by 9.2(b)
herein, it is determined that:
i. Grantee has violated any material provision of this Franchise; or
ii. Grantee has attempted to evade any of the material provisions of the
Franchise; or
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iii. Grantee has practiced fraud or deceit upon the City or Subscriber; or
iv. Grantee is adjudged a bankrupt.
2. Procedures for Revocation.
a. The City shall provide Grantee with written notice of a cause for revocation
and the intent to revoke and shall allow Grantee sixty(60) days subsequent
to receipt of the notice in which to correct the violation or to provide
adequate assurance of performance in compliance with the Franchise.
b. Grantee shall be provided the right to a public hearing affording due process
before the City prior to revocation, which public hearing shall follow the
sixty (60) day notice provided in subparagraph (a) above. The City shall
provide Grantee with written notice of its decision together with written
findings of fact supplementing said decision.
c. Only after the public hearing and upon written notice of the determination by
the City to revoke the Franchise may Grantee appeal said decision with an
appropriate state or federal court or agency.
d. During the appeal period, the Grantee may continue to operate the System
pursuant to the terms and conditions of the Franchise, unless the term thereof
sooner expires.
3. Abandonment of Service. Grantee may not abandon the System or any portion
thereof without having first given three (3) months written notice to the City.
Grantee may not abandon the System or any portion thereof without compensating
the City for damages resulting from the abandonment.
4. Removal After Abandonment, Termination or Forfeiture.
a. In the event of termination or forfeiture of the Franchise or abandonment of
the System, the City shall have the right to require Grantee to remove all or
any portion of the System from all Rights-of-Way and public property within
the City provided,however,that the Grantee shall not be required to remove
the System if it is authorized to provide telecommunications service pursuant
to state or federal law.
b. If Grantee has failed to commence removal of System, or such part thereof
as was designated by the City, within one hundred twenty (120) days after
written notice of the City demand for removal is given, or if Grantee has
failed to complete such removal within twelve (12) months after written
notice of the City demand for removal is given,the City shall have the right
to apply funds secured by the Letter of Credit and Performance Bond toward
24.
�
removal and/or declare all right,title, and interest to the System to be in the
City with all rights of ownership including, but not limited to, the right to
operate the System or transfer the System to another for operation by it
pursuant to the provisions of 47 U.S.C. § 547.
5. Sale or Transfer of Franchise.
a. No sale, transfer, or corporate change of or in Grantee, including, but not
limited to,the sale of a majority of the entity's assets, a merger including the
merger of a subsidiary and parent entity, consolidation, or the creation of a
subsidiary or affiliate entity, shall take place until the parties to the sale,
transfer, or corporate change file a written request with the City for its
approval and such approval is granted by the City, provided, however, that
said approval shall not be required where Grantee grants a security interest
in its Franchise and assets to secure an indebtedness.
b. Any sale,transfer,exchange or assignment of stock in Grantee so as to create
a new controlling interest in the System shall be subject to the requirements
of this Section 9.05. The term "controlling interest" as used herein is not
limited to majority stock ownership, but includes actual working control in
whatever manner exercised. As a minimum, "control" or "controlling
interest" as used herein, means a legal or beneficial interest (even though
actual working control does not exist) of at least five percent (5%).
c. The City shall have such time as is permitted by applicable law in which to
review a transfer request.
d. The Grantee shall reimburse City for all reasonable legal, administrative, and
consulting costs and fees associated with the City's review of any request to
transfer. Nothing herein shall prevent Grantee from negotiating partial or
complete payment of such costs and fees by the transferee.
e. In no event shall a sale, transfer, corporate change, or assignment of
ownership or control pursuant to Subparagraph(a) or(b) of this Section be
approved without the transferee becoming a signatory to this Franchise and
assuming all rights and obligations hereunder, and assuming all other rights
and obligations of the transferor to the City.
f. In the event of any proposed sale,transfer, corporate change, or assignment
pursuant to subparagraph (a) or(b) of this Section, the City shall have the
right of first refusal of any bona fide offer to purchase the System. Bona fide
offer, as used in this Section,means an offer received by the Grantee which
it intends to accept subject to the City rights under this Section. This written
offer must be conveyed to the City along with the Grantee's written
acceptance of the offer contingent upon the rights of the City provided for in
25.
this Section.
The City shall be deemed to have waived its rights under this Section in the
following circumstances:
i. If it does not indicate to Grantee in writing, within ninety (90) days
� of notice of a proposed sale or assignment,its intention to exercise its
right of purchase; or
ii. It approves the assignment or sale of the Franchise as provided within
this Section.
SECTION 10.
PROTECTION OF INDIVIDUAL RIGHTS
1. Discriminatorv Practices Prohibited. Grantee shall not deny service, deny access, or
otherwise discriminate against Subscribers or general citizens on the basis of race,
color, religion, national origin, sex, age, status as to public assistance, affectional
preference, or disability. Grantee shall comply at all times with all other applicable
federal, state, and local laws, and all executive and administrative orders relating to
nondiscrimination.
2. Subscriber Privacv.
a. Grantee shall comply with the subscriber privacy-related requirements of
47 U.S.C. § 551. No signals including signals of a Class N Channel may
be transmitted from a Subscriber terminal for purposes of monitoring
individual viewing patterns or practices without the express written
permission of the Subscriber. Such written permission shall be for a limited
period of time not to exceed one(1)year which may be renewed at the option
� of the Subscriber. No penalty shall be invoked for a Subscriber's failure to
provide or renew such authorization. The authorization shall be revocable at
any time by the Subscriber without penalty of any kind whatsoever. Such
permission shall be required for each type or classification of Class N
Channel activity planned for the purpose of monitoring individual viewing
patterns or practices.
b. No lists of the names and addresses of Subscribers or any lists that identify
the viewing habits of Subscribers shall be sold or otherwise made available
to any party other than to Grantee and its employees for internal business use,
and also to the Subscriber subject of that information, unless Grantee has
received specific written authorization from the Subscriber to make such data
available. Such written pernussion shall be for a limited period of time not
to exceed one(1)year which may be renewed at the option of the Subscriber.
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No penalty shall be invoked for a Subscriber's failure to provide or renew
such authorization. The authorization shall be revocable at any time by the
Subscriber without penalty of any kind whatsoever.
c. Written permission from the Subscriber shall not be required for the
conducting of System wide or individually addressed electronic sweeps for
� the purpose of verifying System integrity or monitoring for the purpose of
billing. Confidentiality of such information shall be subject to the provision
set forth in Subpazagraph(b) of this Section.
SECTION 11.
MISCELLANEOUS PROVISIONS
1. Franchise Renewal. Any renewal of this Franchise shall be performed in accordance
with applicable federal, state and local laws and regulations. The term of any
renewed Franchise shall be limited to a period not to exceed fifteen(15) years.
2. Work Performed bv Others. All obligations of this Franchise shall apply to any
subcontractor or others perfornung any work or services pursuant to the provisions
of this Franchise, however, in no event shall any such subcontractor or other Person
performing work obtain any rights to maintain and operate a System or provide Cable
Service. Grantee shall provide notice to the City of the name(s) and address(es) of
any entity, other than Grantee, which performs substantial services (in excess of
$70,000.00)pursuant to this Franchise.
3. Amendment of Franchise Ordinance. Grantee and the City may agree, from time to
time,to amend this Franchise. Such written amendments may be made subsequent
to a review session pursuant to Section 7.5 or at any other time if the City and
Grantee agree that such an amendment will be in the public interest or if such an
amendment is required due to changes in federal, state or local laws, provided,
however,nothing herein shall restrict the City's exercise of its police powers.
4. Compliance with Federal, State and Local Laws.
a. If any federal or state law or regulation shall require or permit the City or
Grantee to perform any service or act or shall prohibit the City or Grantee
from performing any service or act which may be in conflict with the terms
of this Franchise, then as soon as possible following knowledge thereof,
either party shall notify the other of the point in conflict believed to exist
between such law or regulation. Grantee and 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 to conform to federal
laws and regulations regarding cable as they become effective.
27.
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b. If any term,condition or provision of this Franchise or the application thereof
to any Person or circumstance shall, to any extent, be held to be invalid or
unenforceable, the remainder hereof and the application of such term,
condition or provision to Persons or circumstances other than those as to
whom it shall be held invalid or unenforceable shall not be affected thereby,
and this Franchise and all the terms,provisions and conditions hereof shall,
in all other respects,continue to be effective and complied with provided the
loss of the invalid or unenforceable clause does not substantially alter the
agreement between the parties. In the event such law, rule or regulation is
subsequently repealed,rescinded, amended or otherwise changed so that the
provision which had been held invalid or modified is no longer in conflict
with the law, rules and regulations then in effect, said provision shall
thereupon return to full force and effect and shall thereafter be binding on
Grantee and the City.
5. Nonenforcement bv Citv. Grantee shall not be relieved of its obligations to comply
with any of the provisions of this Franchise by reason of any failure or delay of the
City to enforce prompt compliance. The City may only waive its rights hereunder
by expressly so stating in writing. Any such written waiver by the City of a breach
or violation of any provision of this Franchise shall not operate as or be construed to
be a waiver of any subsequent breach or violation.
6. Rights Cumulative. All rights and remedies given to the City by this Franchise shall
be in addition to and cumulative with any and all other rights and remedies, existing
or implied,now or hereafter available to the City at law or in equity, and such rights
and remedies shall not be exclusive,but each and every right and remedy specifically
given by this Franchise or otherwise existing or given may be exercised from time
to time and as often and in such order as may be deemed expedient by the City and
the exercise of one or more rights or remedies shall not be deemed a waiver of the
right to exercise at the same time or thereafter any other right or remedy.
7. Grantee Acknowledgment of Validitv of Franchise. Grantee acknowledges that it has
had an opportunity to review the terms and conditions of this Franchise and that
under current law Grantee believes that said terms and conditions are not
unreasonable or arbitrary, and that Grantee believes the City has the power to make
the terms and conditions contained in this Franchise.
SECTION 12.
PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
1. Publication: Effective Date. This Franchise shall be published in accordance with
applicable local and Minnesota law. The Effective Date of this Franchise shall be the
date of acceptance by Grantee in accordance with the provisions of Section 12.2.
28.
2. Acce�tance.
a. Grantee shall accept this Franchise within sixty(60)days of its enactment by
the City, unless the time for acceptance is extended by the City. Such
acceptance by the Grantee shall be deemed the grant of this Franchise for all
purposes provided. In the event acceptance does not take place,or should all
ordinance adoption procedures and timelines not be completed,this Franchise
and any and all rights previously granted to Grantee shall be null and void.
b. Upon acceptance of this Franchise, Grantee shall be bound by all the terms
and conditions contained herein
c. Grantee shall accept this Franchise in the following manner:
i. This Franchise will be properly executed and acknowledged by
Grantee and delivered to the City.
ii. With its acceptance, Grantee shall also deliver any grant payments,
performance bond and insurance certificates required herein that have
not previously been delivered.
29.
Passed and adopted this day of , 1999.
ATTEST:
CITY OF ROSEMOUNT
By: By:
Its: Its:
ACCEPTED: This Franchise is accepted and the undersigned agrees to be bound by its terms and
conditions.
MARCUS CABLE PART`NERS, L.L.C.
Dated: By:
Its:
p
30.
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CORPORATE ACKNOWLEDGMENT
STATE OF MINNESOTA )
) SS.
COUNTY OF DAKOTA )
On this day of , 1999, before me , the
(Name of Notary)
undersigned officer,personally appeared , known personally to me to be the
of Marcus Cable Partners, L.L.C., and that he, as such officers, being
authorized so to do, executed the foregoing City of Rosemount, Ordinance No. , for the
purposes therein contained, by signing the name of the corporation by himself as such officers.
IN WITNESS WHEREOF, I have hereunto set my hand and official seal.
Notary Public
My Commission expires:
(NOTARIAL SEAL)
The"foregoing instrument"referred to above is City of Rosemount Ordinance No.
� EXHIBIT A
' (Assuming all necessary permits and Right-of-Way clearances)
Government Buildings in Rosemount
City Hall 2875 145`h Street W.
Fire Station#1 14700 Shannon Parkway
First Station#2/P.W. Building 14425 Brazil Avenue
� Public Works Garage 14455 Brazil Avenue
Community Center 13885 S. Robert Trail
Central Park Shelter 2875 145`h Street W.
Family Resource Center 14521 Cimarron Avenue
Educational Buildings in Rosemount
St. Joseph Catholic School 14335 S. Robert Trail
Rosemount Elementary 3155 W. 144`h Street
Rosemount Middle School 3135 W. 143ia Street
Rosemount High School 3335 W. 142na Street
Shannon Park Elementary 13501 Shannon Parkway
Dakota County Technical College `1300 E. 145`h Street
'Assuming mutually acceptable funding by Grantee and school.
EXHIBIT B
SYSTEM UPGRADE OVERVIEW
System Capacity
The upgraded HFC (hybrid fiber/coax)network required pursuant to Section 4.1 of the
Agreement will be designed to operate with a bandwidth of 5 MHz to 750 MHz, with 50 MHz to
550 MHz being allocated for video services. The remaining upper 200 MHz of bandwidth will
be reserved for compressed digital signals.
The network will have return capability utilizing spectrums from 5 MHz to 40 MHz and will be
activated on both the coaxial and optical systems. The return system can be used to transmit
both data and video, and will have the capacity to be used for insertion of locally-originated
programming consistent with Exhibit E2, 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 at least one receiving location, or"node,"in each community. There will be
an average of 500 homes served from each node.
After each node is installed, the number of active electronics, or amplifiers,will be reduced to
the minimum required to reach the limits of the community,while still maintaining measurable
picture quality better than current FCC requirements. "Standby"power supplies will
automatically provide battery power to the coaxial system for several hours in the event of a
commercial power interruption. The batteries will be automatically recharged after power is
restored.
Customers will have the option of an"addressable"set-top terminal to access programming
carried on the network. Through the set-top terminal the customer can purchase special
programming, such as"pay-per-view."
Fiber Optics and Coaxial Plant in the Network
The optical transmission system is the backbone of the new network. At the origination site, all
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 optical network will provide six(6)individual fibers to each node location. Each node will
serve an average of 500 homes via coaxial cable.
The coaxial portion of the plant will begin at the node itself,where signals will be distributed
over a short coax network, consisting of network amplifiers. The amplifiers aze designed to
accommodate return transmission capability, surge protection, and remote monitoring capability.
The Upgrade Process
The first step will be to install the fiber optic network alongside the existing coaxial system. In
areas where the cables are already carried on utility poles, the new fiber will be attached to the
existing cables. 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.
When testing of the optical network is complete,then the second phase,upgrading of the coaxial
plant,will begin.
When the coaxial plant is upgraded, each existing amplifier and distribution device will be
removed and replaced with a new 750 MHz device. The new equipment will be activated and
any customers served from that equipment will be 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 will experience interruptions in service.
When the upgrade of a node is finally complete, all customers served from the node are now
receiving service from the new network.
After the primary upgrade of each node is complete, installation upgrade crews will sweep
through the same area inspecting each of the service lines that connect customers' homes to the
distribution system. Connections will be checked,updated splitting equipment will be installed,
if necessary, and in some cases, the entire line will be replaced. At this point, the upgrade of that
node will be complete and work will move on to the next node area.
EXHIBIT C
ITEM MODEL NUMBER
Quasar Video Camera WK93550021
Adaptor Battery Charger CK93520095
Lens �
Camera Mike
Carrying Case
Panasonic 7150 SVHS Deck JSTC00077
Control Cord
Panasonic High Performance Recorder AG 7500A
Panasonic Edit Controller AGA750
(2) JVC 9" Monitors
Panasonic 7 pin cable AGC65
JVC Cable VGC3030
ACME Location Light Pack LP333
Bogan Tripod 3140