HomeMy Public PortalAbout547 Ordinance Granting a Franchise to Mediacom Minnesota LLC to Construct, Operate, and Maintain a Cable System in the City of Medina, MinnesotaORDINANCE NO. 547
AN ORDINANCE GRANTING A FRANCHISE TO MEDIACOM MINNESOTA LLC TO
CONSTRUCT, OPERATE, AND MAINTAIN A CABLE SYSTEM IN THE CITY OF
MEDINA, MINNESOTA; SETTING FORTH CONDITIONS ACCOMPANYING THE
GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE
SYSTEM; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF ITS PROVISIONS.
The City Council of the City of Medina ordains.
STATEMENT OF INTENT AND PURPOSES
The City of Medina intends, by the adoption of this Franchise, to bring about the development of
a Cable System, and the continued operation of it. Such a development can contribute
significantly to the communications' needs and desires of the residents and citizens of the City
and the public generally. Further, City may achieve better utilization and improvement of public
services and enhanced economic development with the development and operation of a Cable
System.
FINDINGS
The City Council makes the following findings:
1. The Franchise granted to Grantee by City complies with the existing applicable City
Code, State statutes, federal laws and regulations; and
2. The Franchise granted to Grantee is nonexclusive.
(1) SHORT TITLE AND DEFINITIONS
(2) Short Title. This Franchise shall be known and cited as the Cable Television
Franchise Ordinance.
(3) Definitions. For purposes of this Franchise, 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) "Actual Cost" means Grantee's cost without any increase due to overhead,
interest, profit or administrative expense.
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(b) "Applicable Laws" means any local law, or federal or State statute, law,
regulation or other final legal authority governing any of the matters addressed in this
Franchise.
(c) "Basic Cable Service means any service tier which includes the lawful
retransmission of local television broadcast signals. Basic Cable Service as defined
herein shall not be inconsistent with 47 U.S.C. § 543(b)(7)(1993).
(d) "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. §§ 521-611 (1982 & Supp. V
1987)) as amended by the Cable Television Consumer Protection and Competition Act of
1992, Pub. L. No. 102-385 and the Telecommunications Act of 1996, Pub. L. No. 104-
458 and as the same may, from time to time, be amended.
(e) "Cable Service or "Service" means:
(i) The one-way transmission to Subscribers of (i) video
programming, or (ii) other programming service; and
(ii) Subscriber interaction, if any, which is required for the selection or
use of such video programming or other programming service.
(f) "Cable System," or "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:
(i) A facility that serves only to retransmit the television signals of
one (1) or more television broadcast stations;
(ii) A facility that serves Subscribers without using any public rights -
of -way;
(iii) A facility of a common carrier which is subject, in whole or in
part, to the provisions of 47 U.S.C. §§ 201-226, except that such facility shall be
considered a Cable System (other than for purposes of 47 U.S.C. § 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;
(iv) An open video system that complies with Section 653 of the Cable
Act; or
(v) Any facilities of any electric utility used solely for operating its
electric utility system.
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(g) "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.
(h) "City" means the City of Medina, Minnesota as represented by the
Council or any official delegate of the Council acting within the scope of its jurisdiction.
(i) "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.
(j) "Council" means the City Council of the City of Medina, Minnesota.
(k) "Drop" means the cable that connects the ground block on the
Subscriber's residence to the Node or the Tap on the nearest Feeder Cable of the System.
(1) "FCC" means the Federal Communications Commission and any legally
appointed, designated or elected agent or successor.
(m) "Feeder Cable means coaxial cables that run along Streets within the
served area and connects between the individual Taps which serve the Drops.
(n) "Franchise" means this Franchise and the regulatory and contractual
relationship established hereby.
(o) "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 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 17 of the United States Code.
(p) "GAAP" means generally accepted accounting principles as promulgated
and defined by the Financial Accounting Standards Board ("FASB"), Emerging Issues
Task Force ("EITF") and/or the U.S. Securities and Exchange Commission ("SEC").
(q) "Governmental Authority" means any court or other federal, State, county,
municipal or other governmental department, commission, board, agency or
instrumentality.
(r) "Grantee" is Mediacom Minnesota LLC, its agents and employees, lawful
successors, transferees or assignees.
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(s) "Gross Revenues" means any and all revenues received by the Grantee
from or in connection with the operation of the Cable System to provide Cable Services
in the Service Area. Gross Revenues shall include, by way of example but not limitation,
revenues from Basic Cable Service, all Cable Service fees, premium, pay -per -view, Pay
Television, Franchise Fees, late fees, guides, home shopping revenue, Installation and
reconnection fees, upgrade and downgrade fees, advertising revenue, Converter rental
fees and Lockout Device fees. Gross Revenue shall not include fees for the sale, leasing
or servicing of equipment, network capacity and facilities rent for the provision of non -
cable services (voice or data services), any fees itemized and passed through as a result of
Franchise imposed requirements, tower rent, refundable deposits, bad debt, investment
income, or any taxes, fees or assessments of general applicability imposed or assessed by
any Governmental Authority. A Franchise Fee is not such a tax, fee or assessment.
Gross Revenues shall not include any PEG Fees billed to or collected from Subscribers.
The City acknowledges and accepts that Grantee shall maintain its books and records in
accordance with GAAP.
(t) "Headend" means the point of origination and processing for most of the
signals received by the Cable System from external content providers.
(u) "Installation" means the connection of the System from Feeder Cable to
the point of connectivity.
(v) "Node" means a device that consists of receivers and transmitters that
amplify signals as they travel away from the Headend and receive upstream signals from
connected coaxial legs.
(w) "Non -Standard Installation" means any Drop in excess of Five Hundred
(500) feet for a residential property.
(x) "Normal Business Hours" means those hours 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 (1) night per week and/or some
weekend hours.
(y) "Normal Operating 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.
(z) "PEG" means public, educational and governmental.
(aa) "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.
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(bb) "Public, Educational or Government Access Facilities" or "PEG Access
Facilities" means:
(i) Channel capacity designated for public, educational or
governmental use; and
(ii) Facilities and equipment for the use of such Channel capacity.
(cc) "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.
(dd) "Service Interruption" means the loss of picture or sound on one 1) or
more Cable Channels.
(ee) "Standard Installation" means the first Five Hundred (500) feet of a
residential Drop.
(ff) "State" means the State of Minnesota.
(gg) "Street" means any street, alley, other land or waterway, dedicated or
commonly used for utility purposes, including general or utility easements in which the
City has the right and authority to authorize, regulate or permit the location of facilities
other than those of the City. "Street" shall not include any real or personal City property
that is not specifically described in the previous sentence and shall not include City
buildings, fixtures and other structures or improvements, regardless of whether they are
situated in the public right-of-way.
(hh) "Subscriber" means any Person who lawfully elects to subscribe to Cable
Service via the System. In the case of multiple office buildings or multiple dwelling
units, the "Subscriber" means the lessee, tenant or occupant.
(ii) "Tap" means a device which connects a Drop to the Feeder Cable.
(jj) "Wireline MVPD" means a multichannel video programming distributor
that utilizes the Streets to install cable or fiber and is engaged in the business of making
available for purchase, by Subscribers, multiple Channels of video programming in the
City.
(4) Written Notice. A11 notices, reports or demands required or permitted to be given
under this Franchise 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:
If to City: City Administrator
City of Medina City Hall
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2052 County Road 24
Medina, MN 55340
Copy to: City Attorney
Ron Batty
Kennedy and Graven
200 South 6th Street, Suite 470
Minneapolis, MN 55402
If to Grantee:
Copy to:
Regional Manager
Mediacom Minnesota LLC
P.O. Box 110
1504 Second Street Southeast
Waseca, MN 56093
Bruce Gluckman, Esq.
Mediacom Communications Corporation
100 Crystal Run Road
Middletown, NY 10941
Such addresses may be changed by either party upon notice to the other party given as provided
in this section.
SECTION 2
GRANT OF AUTHORITY
(1) Franchise Required. It shall be unlawful for any Person, unless specifically
required by Applicable Laws, to construct, install, operate or maintain a Cable System or to offer
Cable Service in the City, unless such Person or the Person for whom such action is being taken
shall have first obtained and shall currently hold a valid franchise.
(2) Grant of Franchise. This nonexclusive Franchise is granted pursuant to the terms
and conditions contained herein. The City hereby authorizes Grantee to occupy or use the City's
Streets subject to: 1) the provisions of this non-exclusive Franchise to provide Cable Service
within the City; and 2) all applicable provisions of the City Code. Said Franchise shall constitute
both a right and an obligation to provide Cable Services as required by the provisions of this
Franchise. Nothing in this Franchise shall be construed to prohibit Grantee from: (1) providing
services other than Cable Services to the extent not prohibited by Applicable Law; or (2)
challenging any exercise of the City's legislative or regulatory authority in an appropriate forum.
The City hereby reserves all of its rights to regulate such other services to the extent not
prohibited by Applicable Law and no provision herein shall be construed to limit or give up any
right to regulate.
(3) Grant of Nonexclusive Authority/Competitive Equity.
(a) The Franchise granted herein shall be nonexclusive. The City specifically
reserves the right to grant, at any time, such additional franchises for a Cable System as it
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deems appropriate provided, however, such additional grants shall not operate to
materially modify, revoke, or terminate any rights previously granted to Grantee other
than as described herein. If any other Wireline MVPD enters into any agreement with the
City to provide multi channel video programming or its equivalent to residents in the
City, the City, upon written request of the Grantee, shall permit the Grantee to construct
and/or operate its Cable System and provide multi channel video programming or its
equivalent to Subscribers in the City under the same material terms as applicable to the
new MVPD with the goal of competitive equity, taking into consideration the City's
capital contribution towards System extension as set forth in Section 3 of this Franchise.
Within one hundred eighty (180) days after the Grantee submits a written request to the
City, the Grantee and the City shall enter into an agreement or other appropriate
authorization (if necessary) containing any modified terms and conditions to this
Franchise. In no event shall this provision be used by Grantee to avoid the System
extension obligations or Performance Bond obligations contained in this Franchise.
(b) The Cable System constructed and maintained by Grantee or its agents
shall not interfere with other uses of Streets. Grantee shall make use of existing poles
and other facilities available to Grantee to the extent commercially reasonable. Nothing
in this section authorizes the Grantee to construct poles in the City without prior City
consent consistent with the City Code.
(c) Notwithstanding the above grant to use Streets, no Street shall be used by
Grantee if City, in its sole opinion, determines that such use is inconsistent with the
terms, conditions, or provisions by which such Street was created or dedicated, or with
the present use of the Street.
(d) Grantee shall have the authority to use Streets for the distribution of
Grantee's System. The City may require all developers of future subdivisions to allow
and accommodate the construction of the System as part of any provisions for utilities to
serve such subdivisions.
(e) The Grantee specifically agrees to comply with the lawful provisions of
the City Code and applicable regulations of the City. Subject to the police power
exception below, in the event of a conflict between A) the lawful provisions of the City
Code or applicable regulations of the City and B) this Franchise, the express provisions
of the City Code shall govern. Subject to express federal and state preemption, the
material terms and conditions contained in this Franchise may not be unilaterally altered
by the City through subsequent amendments to the City Code, ordinances or any
regulation of City, except in the lawful exercise of City's police power. Grantee
acknowledges that the City may modify its regulatory policies by lawful exercise of the
City's police powers throughout the term of this Franchise. Grantee agrees to comply
with such lawful modifications to the City Code; however, Grantee reserves any rights it
may have to challenge such modifications to the City Code whether arising in contract or
at law. The City reserves all of its rights and defenses to such challenges whether arising
in contract or at law.
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(f) Nothing in this Franchise shall (A) abrogate the right of the City to
perform any public works or public improvements of any description, (B) be construed as
a waiver of any codes or ordinances promulgated by the City, or (C) be construed as a
waiver or release of the rights of the City in and to the Streets.
(g) This Franchise complies with the Minnesota franchise standards set forth
in Minnesota Statutes Section 238.084. The City and the Grantee shall conform to
Minnesota laws promulgated subsequent to the date of this Franchise. The City and the
Grantee shall conform to federal laws and regulations as they become effective.
(4) Term. The term of this Franchise shall be for the period of ten (10) years from the
date of acceptance by Grantee, unless renewed, revoked or, terminated sooner as herein provided
("Initial Term"). The Initial Term shall be extended for an additional five (5) years if Grantee has
substantially complied with the material terms and conditions of this Franchise. Grantee shall
provide written notice to City at least twelve (12) months prior to the end of the Initial Term
indicating its compliance with the material terms and conditions of this Franchise. City shall
respond within six (6) months of such notice from Grantee by either granting the five (5) year
extension or stating in writing any objection the City may have to the five (5) year extension.
The parties shall work in good faith to address any issues or concerns on mutually acceptable
terms.
(5) Previous Franchise. Upon acceptance of this Franchise by Grantee as required in
Section 11.2 herein, this Franchise shall supersede and replace any previous Franchise granting a
franchise to Grantee to own, operate and maintain a Cable System within the City.
(6) Ownership of Grantee. Grantee represents and warrants to City that the corporate
structure of the Grantee, including all affiliated companies and ultimate parent company, are as
set forth in the organizational chart attached hereto as Exhibit A.
(7) Rules of Grantee. The Grantee shall have the authority to promulgate such rules,
regulations, terms and conditions governing the conduct of its business as shall be reasonably
necessary; provided that such rules, regulations, terms and conditions shall not be in conflict with
Applicable Law.
SECTION 3
CONSTRUCTION STANDARDS
(1) Territorial Area Involved. This Franchise is granted for the Service Area.
(2) Construction Standards. If the System, or subsequent rebuilds or extensions,
proposed for the Service area consist of fewer than one hundred (100) plant miles of cable
subject to the specific terms of this Franchise:
(a) Within ninety (90) days of the granting of the Franchise, the Grantee shall
apply for the necessary governmental permits, licenses, certificates, and authorizations;
(b) The energized trunk cable must be extended substantially throughout the
authorized area within one (1) year after receipt of the necessary governmental permits,
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licenses, certificates, and authorizations and the Persons along the route of the energized
cable shall have individual Drops as desired during the same period of time; and
(c) The above -stated requirements may be waived by City only upon
occurrence of acts beyond the reasonable control of Grantee or acts of God.
(3) Service to Residences.
(a) Grantee shall provide Cable Service to any requesting Subscriber within
the Service Area that requires a Standard Installation 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 on reasonable terms and conditions.
(b) If a Subscriber requires a non -Standard Installation (e.g. a Drop in excess
of 500 feet), Grantee shall, upon request, provide a quote for construction of the non -
Standard Installation and shall establish a mutually acceptable payment schedule not to
exceed one (1) calendar year. For residential Installations only, Grantee shall be
responsible for all costs of the Standard Installation and the Subscriber shall be
responsible for one half (1/2) of the Actual Cost of any construction required beyond the
cost of the Standard Installation; Grantee shall be responsible for the balance of the costs
for the non -Standard Installation.
(c) Grantee shall promptly bury all Drops to Subscribers' dwellings. 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 1st of each year.
(4) System Extensions.
(a) The City and Grantee desire to construct approximately thirty (30) miles
of System facilities in the City. Said thirty (30) miles shall be constructed on the
following schedule, subject to the terms and conditions herein (all schedules may be
accelerated upon mutual agreement between Grantee and City):
(i) Subject to Grantee's ability to secure access to all rights -of -way
necessary to extend the System on reasonable terms and conditions, Grantee shall
construct and activate fifteen (15) miles of System cable at its sole cost and
expense on the following schedule:
6.46 miles in the first twelve (12) months after the Effective Date of this
Franchise (this includes a 1.46 mile connection to Medina City Hall);
5 miles in second twelve (12) months after the Effective Date of this
Franchise;
5 miles in the third twelve (12) months after the Effective Date of this
Franchise.
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(ii) Grantee shall submit its construction plans to City as soon as
practicable after the Effective Date of this Franchise, showing the schedule and
route for each of the 5 mile segments. City shall have thirty (30) days to review,
comment on and approve the construction plans. Such approval shall not be
unreasonably withheld and the parties shall work cooperatively to reach mutual
agreement on the construction plans.
(iii) City and Grantee shall share equally the cost of construction of an
additional 15 miles of System cable within the first three (3) years of the Effective
Date of this Franchise. The fifteen (15) additional miles of System cable
construction shall be based on an Actual Cost not to exceed Twenty Four
Thousand Dollars ($24,000) per mile. Therefore the total cost to be paid by City
for the construction of the additional 15 miles of System cable shall not exceed
$180,000 (15 miles x $12,000).
(iv) In the unlikely event the City and Grantee do not construct the
second fifteen (15) miles of plant, Grantee shall remain obligated to extend plant
to all areas of the City where the density reaches or exceeds fifteen (15) homes
per cable mile as measured from the nearest Node or terminating amplifier
required to deliver a signal that complies with the FCC Technical Standards.
(v) The thirty (30) miles of System construction contemplated herein
shall be in addition to any System construction which Grantee elects to undertake
in the City and System construction in new developments.
(5) Permits and Permit Fees. Grantee shall not construct any Cable System facilities
until Grantee has secured the necessary permits Grantee and Subscribers shall not be required to
pay a permit fee for Drops or System Extensions.
(6) City Code Grantee shall comply with all relevant City Codes in the course of
fulfilling its obligations under this Franchise.
(7) Grantee's Facilities and Equipment.
(a) 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 System underground.
(b) Grantee shall be granted access to any easements granted to a public
utility, municipal utility or utility district in any areas annexed by City or new
developments.
(c) In those areas of the City where Grantee's cables are located on the above-
ground transmission or distribution facilities of the utility providing telephone or electric
power service, and in the event that the facilities of both such utilities subsequently are
placed underground, then the Grantee likewise shall remove its overhead facilities from
any affected poles and construct, operate and maintain its transmission and distribution
facilities underground, at Grantee's cost.
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(d) 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 enclosures, however, the City specifically reserves all of its rights to approve
above -ground or underground locations for pedestals subject to Applicable Laws.
(e) Grantee shall comply with Minnesota Statutes §216D (the Gopher State
One Call process).
(8) New Residential Developments. 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 following procedure apply with respect to access to and utilization of
underground easements:
(a) The developer shall be responsible for contacting Grantee to provide
Cable Service to that development.
(b) The developer shall accommodate all Wireline MVPD's in the joint
utilities trench on the same terms and conditions.
(c) Grantee will install infrastructure in all new developments planned by the
City at the same time as other utilities, however, said infrastructure may be limited to a
conduit only system. Grantee reserves the right to participate in the common trench or to
dig its own trench but will complete its infrastructure at the same time as other utilities.
(d) The developer shall provide at least ten (10) business days notice of the
date that utility trenches will be open to Grantee. Grantee shall not be required to use
utility trenches provided by a developer and reserves the right to install its System in a
separate trench at its own expense, subject to its compliance with applicable permitting
requirements.
(i)
Developer shall submit evidence to City that:
1. It has notified Grantee that underground utility trenches are
to be open as of an estimated date, and that Grantee is allowed access to
such trenches, including trenches from proposed Streets to individual
homes or home sites, on the same terms and conditions as other Wireline
MVPD's; and
2. It has received a written notification from Grantee that
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.
(9) Use 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
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to promptly perform the restoration required herein, City shall have the right, subject to
Applicable Law, to put the Streets, public, or private property back into good condition. City
reserves its rights to pursue reimbursement for such restoration from Grantee in accordance with
Applicable Law and the terms of this Franchise.
(a) Nothing in this Franchise shall be construed to prevent City from
constructing, maintaining, repairing or relocating sewers; grading, paving, maintaining,
repairing, relocating and/or altering any Street; constructing, laying down, repairing,
maintaining or relocating any water mains; or constructing, maintaining, relocating, or
repairing any sidewalk or other public work.
(b) The Grantee shall furnish to and file with City Administrator strand maps
of the System, including the location of 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. City shall have right to travel to Grantee's office, within reasonable
proximity of the City, to review an as -built map in accordance with Section 7 (3) of this
Franchise.
(c) If at any time during the period of this Franchise, the 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 standards and specifications of City. If City reimburses other occupants
of the Street, Grantee shall be likewise reimbursed.
(d) 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.
(10) Tree Trimming. 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. Grantee will contact the
owners of private easements prior to engaging in the trimming of trees or shrubs adjacent to
Grantee's System. Grantee will make reasonable accommodations with and for the property
owner to ensure Grantee's System and cable plant is safe and secure as well as that the property
owner's trees and shrubs are trimmed in accordance with established standards of the National
Arborist Association.
(11) Protection of facilities. Nothing contained in this section shall relieve any Person
from liability arising out of the failure to exercise reasonable care to avoid damaging Grantee's
facilities while performing any work connected with grading, regrading or changing the line of
any Rights -of -Way or public place or the construction or reconstruction of any sewer or water
system.
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SECTION 4
DESIGN PROVISION
(1) Minimum Channel Capacity.
(a) Grantee shall provide a System utilizing a 750 MHz fiber/coaxial hybrid
Cable System which shall be capable of delivering a minimum of eighty (80) video
program Channels.
(b) All programming decisions remain the sole discretion of Grantee subject
to City's rights pursuant to 47 U.S.C. § 545.
(2) Technical Standards. The System shall at all times meet or exceed 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 System specifications are
outlined in Exhibit B for information purposes.
(3) 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 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 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 control. If the testing reveals the difficulties to be caused by factors which are beyond
Grantee's control then the cost of said test shall be borne by City.
(4) FCC Reports. Upon request, the results of tests required to be filed by Grantee
with the FCC shall also be copied to City within ten (10) days of the conduct of the date of the
test.
(5) Emergency Alert Capability. At all times during the term of this Franchise,
Grantee shall provide and maintain an Emergency Alert System (EAS) consistent with applicable
federal law and regulations including 47 C.F.R., Part 11, and any Minnesota State Emergency
Alert System requirements. The City may identify authorized emergency officials for activating
the EAS consistent with the Minnesota State Emergency Statewide Plan ("EAS Plan"). The City
may also develop a local plan containing methods of EAS message distribution, subject to
Applicable Laws and the EAS Plan. Nothing in this section is intended to expand Grantee's
obligations beyond that which is required by the EAS Plan and Applicable Law.
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(6) Stand-by Power. Grantee shall provide 20,000 Watt standby power -generating
capacity at the headend. Grantee shall maintain standby power system supplies, rated for at least
two and one-half (2.5) hours duration at all optical Node locations in the distribution network.
(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.
SECTION 5
SERVICE PROVISIONS
(1) 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.
(2) Consumer Protection and Customer Service Standards. Grantee shall comply
with the consumer protection standards attached hereto as Exhibit C under Normal Operating
Conditions.
SECTION 6
PUBLIC ACCESS PROVISIONS
(1) Public, Educational and Government Access. City or its designee is hereby
designated to operate, administer, promote, and manage public, educational, and governmental
programming (hereinafter "PEG Access") for 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.
(2) Grantee Support for PEG Usage. In accordance with the provisions of the Cable
Act and Minnesota Statutes Section 238.084, Grantee shall provide and make available for PEG
Access usage within the Service Area in accordance with Exhibit D hereto.
(a) PEG Access Facilities shall be operated by the City.
(b) Community Access/PEG Programming. Subject to the legal and technical
feasibility of same, Grantee shall, upon request from the City provide carriage of the
Lake Minnetonka Cable Commission (LMCC) PEG programming originating from the
LMCC and the Cities of Wayzata and Orono. Grantee will work with the City to explore
the feasibility of broadcasting programming originating from the City in the future.
SECTION 7
OPERATION AND ADMINISTRATION PROVISIONS
(1) Franchise Fee.
(a) During the term of the Franchise, Grantee shall pay quarterly to the City a
Franchise Fee of five percent (5%) of Gross Revenues or a lower percentage amount as
established by the City Council from time to time. Grantee and City may mutually agree
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to increase the Franchise Fee subject to Applicable Law. In the event Grantee bundles or
combines Cable Services (which are subject to the Franchise Fee) with non -Cable
Services (which are not subject to the Franchise Fee) so that Subscribers pay a single fee
for more than one (1) class of service resulting in a discount on Cable Services, Grantee
agrees that for the purpose of calculation of the Franchise Fee, it shall allocate to Cable
Service revenue no less than a pro rata share of the revenue received for the bundled or
combined services. The pro rata share shall be computed on the basis of the published
charge for each service in the bundled or combined classes of services when purchased
separately.
(b) Each Franchise Fee payment shall be paid quarterly not later than thirty
(30) days following the end of a given quarter and each payment shall be accompanied by
the Franchise Fee Payment Worksheet in the form attached hereto as Exhibit G.
(c) Except as otherwise provided by law, no acceptance of any payment by
the City shall be construed as a release or as an accord and satisfaction of any claim the
City may have for further or additional sums payable as a Franchise Fee under this
Franchise or for the performance of any other obligation of the Grantee.
(d) Any Franchise Fees owing pursuant to this Franchise which remain unpaid
more than thirty (30) days after the end of a given quarter shall be delinquent and shall
immediately thereafter accrue simple interest at twelve percent (12%) per annum.
Enforcement of unpaid Franchise Fees shall be handled in accordance with Section 9.7,
however, Grantee shall in all cases be subject to interest on any payment more than thirty
(30) days after the end of a given quarter.
(e) Upon ten (10) days prior written notice, City shall have the right to
conduct an independent audit of Grantee's records. If such audit indicates a Franchise
Fee underpayment of five percent (5%) or more of the Franchise Fee due, the Grantee
shall assume all of City's out-of-pocket costs associated with the conduct of such an
audit. Grantee shall remit to City all applicable Franchise Fees and PEG fees due and
payable together with all accrued interest as set forth in paragraph 7.1 (d) above within 30
days of receiving the audit statement.
(f) Grantee acknowledges and agrees that the Franchise Fees payable by
Grantee to City pursuant to this section shall take precedence over all other material
provisions of the Franchise and 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 do not fall within the definition of a Franchise Fee under 47 U.S.C. § 542.
(g) 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 (including any
such tax, fee or assessment imposed on both utilities and cable operators or their services)
that do not fall within the definition of a Franchise Fee under 47 U.S.C. § 542 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 City pursuant to this Franchise which
shall be deemed to be separate and distinct obligations of Grantee.
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(2) Periodic Evaluation, Review and Modification. City and Grantee acknowledge
and agree that the field of cable television is rapidly changing and one which may see many
regulatory, technical, financial, marketing and legal changes during the term of this Franchise.
Therefore, in order to provide for the maximum degree of flexibility in this Franchise, and to
help achieve an 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.
(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 Franchise; provided, however, there shall not be more than one (1) evaluation session
in any three (3) year period during the Term. However, nothing shall prohibit Grantee
and City from mutually agreeing to have informal reviews as requested or deemed
advisable by either party.
(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) As a result of an evaluation session, the City or Grantee may determine
that an amendment in the terms of this Franchise may be required, that the requirements
of the System or this Franchise 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
Franchise, 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 Franchise according to
Section 10.2 herein.
(3) Records Required and City's Right to Inspect.
(a) Grantee shall at all times maintain, at its sole cost and expense, the
following records and information relating specifically to the Cable System serving the
City — the City may review these records upon request:
(i) A full and complete set of plans, records and "as -built" drawings
and/or maps which shall be updated annually showing the location of the Cable
System installed or in use in the City, exclusive of Subscriber service Drops and
equipment provided in Subscribers' homes.
(ii) A summary of trouble calls or complaints, identifying the number,
general nature and disposition of such calls, on a monthly basis. A summary of
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such service calls shall be submitted to the City within thirty (30) days following
its request in a form reasonably acceptable to the City.
(4) Upon reasonable notice and during Normal Business Hours, Grantee shall permit
examination by any duly authorized representative of the City of all Franchise property and
facilities, together with any appurtenant property and facilities of Grantee situated within or
without the City, and those records relating to this Franchise, that enable the City to carry out its
regulatory responsibilities under Applicable Laws and this Franchise. Grantee shall have the
right to be present at any such examination.
(5) Reports. All reports required under this Franchise shall be furnished at the sole
expense of Grantee.
(a) During the first three (3) years following the Effective Date of this
Franchise, Grantee shall provide City with a quarterly report evidencing the progress of
System construction and extension as set forth in Section 3 (4) of this Franchise.
(b) Grantee shall provide City with an annual statement, within ninety (90)
days of the close of each calendar year end, certified by Grantee's controller or chief
financial officer, reflecting the total amounts of Gross Revenues and all payments and
computations of the Franchise Fee and the PEG Fee for the previous calendar year.
(6) Duty to Cooperate. Each of Grantee and City shall use its commercially
reasonable efforts to communicate and promptly and in good faith resolve any issues that may
arise pursuant to this Franchise.
SECTION 8
GENERAL FINANCIAL AND INSURANCE PROVISIONS
(1) Security Fund.
(a) At the time of acceptance of this Franchise, Grantee shall provide, from a
financial institution mutually acceptable to the Parties, and in a form and substance
mutually acceptable to the Parties, an irrevocable and unconditional Letter of Credit in
the sum of Ten Thousand and No/100 Dollars ($10,000.00) for the benefit of the City to
ensure compliance by Grantee with all terms of the Franchise ("Security Fund"). Grantee
shall maintain this Security Fund throughout the term of this Franchise and pursuant to
Section 9.3.b, and until such time as Grantee has liquidated all of its obligations with
City.
(b) The Security Fund shall provide that funds will be paid to City, upon
written demand of City, and after the procedures of this section have been complied with
in payment for liquidated damages 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.
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(c) In addition to recovery of any monies owed by Grantee to City or damages
to City as a result of any acts or omissions by Grantee pursuant to the Franchise, City in
its sole discretion may charge to and collect from the Security Fund the following
mutually agreed upon liquidated damages:
(i) For failure to timely complete system upgrades as provided in this
Franchise unless the City has approved delays, and for failure to comply with
construction, operation or maintenance standards and requirements, the penalty
shall be Five Hundred and No/100 Dollars ($500) per day for each day, or part
thereof, such failure occurs or continues.
(ii) For failure to meet the customer service standards and
requirements as set forth in this Franchise and the exhibits hereto the penalty shall
be Three Hundred and No/100 Dollars ($300) per day for each day, or part
thereof, such failure occurs or continues.
(iii) For failure to comply with any of the provisions of this Franchise,
or other City ordinance related to Franchise operations for which a penalty is not
otherwise specifically provided pursuant to this subparagraph (c), the penalty
shall be One Hundred Fifty and No/100 Dollars ($150) per day for each day, or
part thereof, such failure occurs or continues.
(d) Each violation of any provision of this Franchise shall be considered a
separate violation for which a separate penalty can be imposed.
(e) Whenever City finds that Grantee has violated one (1) or more terms,
conditions or provisions of this Franchise, a written notice shall be given to Grantee,
specifying with particularity the alleged violation. At any time after thirty (30) days (or
such additional reasonable time which is necessary to cure the alleged violation)
following local receipt of notice, provided Grantee remains in violation of one (1) or
more material terms, conditions or provisions of this Franchise, City may draw from the
Security Fund all penalties and other monies due City from the date of the local receipt of
notice.
(f) Whenever notice of an alleged violation has been received by Grantee,
Grantee may, within thirty (30) days of local receipt of notice, notify City that there is a
dispute as to whether a violation or failure has, in fact, occurred. Such notice by Grantee
to City shall toll the running of the time frames for cure and the accrual of any penalties
herein and shall specify with particularity the matters disputed by Grantee. City shall
hear Grantee's dispute at its next regularly scheduled Council meeting or as soon
thereafter as possible pursuant to this Section 8.1. In no event shall City delay hearing
Grantee's dispute for more than ninety (90) days from receipt of Grantee's notice.
Grantee shall be afforded a reasonable notice of the meeting and afforded a reasonable
opportunity to participate in and be heard at the meeting. City shall supplement its
decision with a written order sustaining or overruling the decision, and shall specify with
particularity the factual and legal basis for its decision.
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(g) Upon determination by City that no violation has taken place, City shall
withdraw the notice alleging a violation. Upon determination that a violation has
occurred, Grantee shall have 30 days to cure said violation before penalties shall accrue.
(h) Grantee shall have the right to challenge in a court of competent
jurisdiction the City's findings that Grantee has violated one (1) or more terms,
conditions or provisions of this Franchise or has failed to substantially cure such
violation.
(i) If said Security Fund or any subsequent security fund delivered pursuant
thereto expires prior to the expiration of the Franchise, it shall be renewed or replaced
during the term of this Franchise to provide that it will not expire earlier than the
expiration of this Franchise. The renewed or replaced security fund shall be for the full
amount stated in paragraph (a) of this section.
(j) If City draws upon the Security Fund or any subsequent security fund
delivered pursuant hereto, in whole or in part, Grantee shall replenish or replace the same
within fifteen (15) days and shall deliver to City a like replacement security fund for the
full amount stated in paragraph (a) of this section as a substitution of the previous
security fund.
(k) If any Security Fund is not so replenished or replaced, City may draw on
said security fund for the whole amount thereof and hold the proceeds, without interest,
and use the proceeds to pay costs incurred by City in performing and paying for any or all
of the obligations, duties and responsibilities of Grantee under this Franchise that are not
performed or paid by Grantee pursuant hereof, including attorneys' fees incurred by the
City in so performing and paying.
(1) The collection by City of any damages, monies or penalties from the
security fund shall not affect any other right or remedy available to City, nor shall any
act, or failure to act, by City pursuant to the security fund, be deemed a waiver of any
right of City pursuant to this Franchise or otherwise.
(2) Liability Insurance.
(a) Grantee shall with its acceptance of this Franchise, and at its sole expense,
take out and maintain during the term of this Franchise comprehensive general liability
insurance with a company licensed to do business in the State of Minnesota with a rating
by A.M. Best & Co. of not less than "A-" that shall protect the Grantee, the City and their
officials, officers, directors, employees and agents from any and all claims which may
arise from operations under this Franchise, whether such operations be by the Grantee, its
officials, officers, directors, employees and agents or any subcontractors of Grantee. This
liability insurance shall include, but shall not be limited to, protection against claims
arising from bodily and personal injury and damage to property, resulting from Grantee's
vehicles, products and operations. The amount of insurance for single limit coverage
applying to bodily and personal injury and property damage shall not be less than Two
Million Dollars ($2,000,000.00).
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(b) The following endorsements shall be attached to the liability policy:
(i) The policy shall provide coverage on an "occurrence" basis.
(ii) The policy shall cover personal injury as well as bodily injury.
(iii) 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.
(iv) Broad form property damage liability shall be afforded.
(v) The City shall be named as an additional insured on all policies
required under this Franchise.
(vi) An endorsement shall be provided which states that the coverage is
primary insurance and that no other insurance maintained by the City will be
called upon to contribute to a loss under this coverage.
(vii) Standard form of cross -liability shall be afforded.
(viii) An endorsement stating that the policy shall not be canceled
without thirty (30) days notice of such cancellation given to the City.
(ix) Grantee shall submit to City a certificate of insurance signed by the
insurance agent and companies named.
(x) All insurance shall be effective within thirty days after the
Franchise is executed by Grantee and shall continue in full force and effect for the
duration of the Franchise and per 9.3.b of the Franchise.
(3) 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 City from and
against any and all claims arising out of occurrences on Grantee's work. Grantee hereby
indemnifies City for any and all costs, expenses (including attorneys' fees and disbursements of
counsel), damages and liabilities incurred by City as a result of any failure of either Grantee or
any subcontractor of Grantee to take out and maintain such insurance. Grantee shall provide the
City with a certificate of insurance indicating Workers' Compensation coverage upon its
acceptance of this Franchise.
(4) Indemnification.
(a) Grantee shall indemnify, defend and hold City, 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
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attorney's fees and disbursements of counsel) and costs of any nature ("Claims") 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 grant of this Franchise, the operation of Grantee's
System, the breach by Grantee of its obligations under this Franchise 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.
(i) The indemnification obligations of Grantee set forth in this
Franchise 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 Franchise, or the terms, applicability or limitations of any insurance held by
Grantee.
(ii) City does not, and shall not, waive any rights against Grantee
which it may have by reason of the indemnification provided for in this Franchise,
because of the acceptance by City, or the deposit with City by Grantee, of any of
the insurance policies described in this Franchise.
(iii) The indemnification of City by Grantee provided for in this
Franchise 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 Franchise,
regardless of whether or not such insurance policies shall have been determined to
be applicable to any such damages or claims for damages.
(iv) Grantee shall not be required to indemnify City for Claims brought
by the Lake Minnetonka Communications Commission (LMCC) against the City,
or negligence or misconduct on the part of City or its officials, boards,
commissions, agents, or employees. City shall hold Grantee harmless, subject to
the limitations in Minnesota Statutes Chapter 466, for any damage resulting from
the negligence or misconduct of the City 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 City in connection with
work performed by City and permitted by this Franchise, on or adjacent to the
Cable System.
SECTION 9
SALE, ABANDONMENT, TRANSFER AND REVOCATION
(1) 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
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Franchise, without the prior written consent of the Council, which consent shall not be
unreasonably denied or delayed.
(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 creation of 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 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 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. The term "Controlling
Interest" as used herein is not limited to majority equity ownership of the Grantee, but
also includes actual working control over the Grantee in whatever manner exercised.
(c) Grantee shall notify City 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.
(d) For the purpose of determining whether it shall consent to such change,
transfer or acquisition of control, City may inquire into the qualifications of the
prospective transferee or controlling party. Grantee agrees to provide FCC Form 394 as
part of any request for transfer or change of control under this Franchise. If, after
considering the legal, financial, character and technical qualities of the transferee and
determining that they are satisfactory, the City finds that such transfer is acceptable, the
Council shall permit such transfer and assignment of the rights and obligations of this
Franchise as may be in the public interest. The consent of the Council to such transfer
shall not be unreasonably denied.
(e) Any financial institution having a security interest in any and all 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 City
that it or its designee satisfactory to the City shall take control of and operate the Cable
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
Ordinance 547
April 16, 2013
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control over the System for a period exceeding one (1) year unless extended by the
Council in its discretion and during said period of time it shall have the right to petition
the Council to transfer the Franchise to another Grantee.
(f) In addition to the aforementioned requirements in this Section 9.1, 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.
(2) City's Right to Purchase System.
(a) 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 Franchise. 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.
(b) Consistent with Section 627 of the Cable Act and all other Applicable
Laws, at the expiration, cancellation, revocation or termination of this Franchise, the City
shall have the option to purchase, condemn or otherwise acquire and hold the Cable
System.
(3) 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) City, upon such terms as City may impose, may give Grantee written
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 Franchise, the Grantee
shall remove all abandoned facilities and equipment upon receipt of written notice from
City 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. City
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 Franchise and any security fund and
performance bond provided for in this Franchise shall continue in full force and effect
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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 City, shall submit to City a bill of sale and/or other an instrument,
satisfactory in form and content to the City, transferring to the City the ownership of the
Franchise property abandoned.
(d) At the expiration of the term for which this Franchise is granted, or upon
its earlier revocation or termination, as provided for herein, in any such case without
renewal, extension or transfer, the City shall have the right to require Grantee to remove,
at Grantee's sole expense, all above -ground portions of the Cable 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 Franchise, the
Grantee may, with the consent of the City, 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 operator.
(4) Extended Operation and Continuity of Services. Upon termination or forfeiture of
this Franchise, 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 9.3 of this Franchise.
(5) Receivership and Foreclosure. The Franchise granted hereunder shall, at the
option of City, 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 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 this Franchise or
provided a plan for the remedy of such defaults and violations which is satisfactory to the City;
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 this Franchise.
(6) Performance Bond. Within thirty (30) days of Grantee's execution of this
Franchise Grantee shall provide City with a $500,000 Performance Bond in a form and with such
sureties as are mutually acceptable to the Parties. The Performance Bond shall be in the amount
of $500,000 to be reduced to $300,000 twenty-four (24) months from the Effective Date and
reduced further to $100,000 upon completion of the System extension obligations set forth in
Ordinance 547
April 16, 2013
24
Section 3 of this Franchise which the parties anticipate to be completed thirty—six months from
the Effective Date of the Franchise. The Performance Bond shall ensure compliance with all
infrastructure requirements of the Franchise. If additional construction is undertaken in the City,
Grantee shall comply with Applicable Law regarding any bonding requirements.
(7) Procedure for Enforcing Franchise. In the event City believes that Grantee has
breached or violated any provision of this Franchise, City shall act in accordance with Section
8.1 (c-f).
(a) If the City chooses to terminate this Franchise, the following additional
procedure shall be followed:
(i) The City shall provide Grantee with written notice of the City's
intention to terminate this 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.
(ii) 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
this Franchise.
(iii) In the event that City determines to terminate this Franchise, the
Grantee shall have an opportunity to appeal said decision in accordance with all
Applicable Laws.
(iv) 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.
(8) Reservation of Rights. City and Grantee reserve all rights that they may possess
under Applicable Laws unless expressly waived herein.
SECTION 10
MISCELLANEOUS PROVISIONS
(1) Franchise Renewal. Any renewal of this Franchise shall be in accordance with
Applicable Laws. The term of any renewed Franchise shall be limited to a period not to exceed
fifteen (15) years.
(2) Amendment of Franchise. Grantee and City may agree, from time to time, to
amend this Franchise. Such written amendments may be made subsequent to a review session
pursuant to Section 7 (2) 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 Applicable
Laws. City shall act pursuant to local law pertaining to the ordinance amendment process.
(3) Right of Individuals.
Ordinance 547
April 16, 2013
25
(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) 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. If a Subscriber
requests service, permission to install upon Subscriber's property shall be presumed.
Where a property owner or his or her predecessor was granted an easement including a
public utility easement or a servitude to another and the servitude by its terms
contemplates a use such as Grantee's intended use, Grantee shall not require the written
permission of the owner for the Installation of cable television equipment.
(d) 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
renewable 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 must be required for each
type or classification or class IV cable communications activity planned.
(i) 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.
(ii) 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 (i) above.
(iii) For purposes of this Section 10.3, 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.
Ordinance 547
April 16, 2013
26
(4) Rights Reserved to City. In addition to any rights specifically reserved to the City
by this Franchise, the City reserves to itself every right and power which is required to be
reserved by a provision of this Franchise.
(5) Confidential Information. Notwithstanding anything herein to the contrary,
Grantee shall have the right to provide any confidential books and records that it is obligated to
make available to the City pursuant to this Franchise, by allowing the City, or its designated
representative(s), to view the books and records at a mutually agreeable location and without
City obtaining its own copies of such books and records. Alternatively, Confidential or
proprietary information may be disclosed pursuant to a reasonable mutually agreeable non-
disclosure agreement. The intent of the parties is to work cooperatively to insure that all books
and records reasonably necessary for City's monitoring and enforcement of Franchise
obligations are provided to City.
(6) Severability. If any provision of this Franchise 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 Franchise, 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 City and Grantee, provided that City 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.
(7) Force Majeure. In the event Grantee's performance of any of the terms,
conditions, obligations or requirements of this Franchise 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,
provided Grantee has notified City in writing within a reasonable time of its discovery of the
occurrence of such an event. Such causes beyond Grantee's reasonable control shall include, but
shall not be limited to, acts of God, civil emergencies and labor unrest or strikes, untimely
delivery of equipment, inability of Grantee to obtain access to an individual's property and
inability of Grantee to secure all necessary permits to utilize utility poles and conduit so long as
Grantee utilizes due diligence to timely obtain said permits.
(8) Most Favored Nations. In the event Grantee enters into a new franchise with the
Lake Minnetonka Communications Commission during it 2013 - 2014 franchise renewal
proceeding ("LMCC Franchise") the City may notify Grantee in writing of its intent to require
such benefits, rights or privileges contained in the LMCC Franchise and Grantee agrees to
extend to City, at City sole option, the benefits, rights and privileges of any term or terms within
the LMCC Franchise on mutually acceptable terms.
SECTION 11
PUBLICATION EFFECTIVE DATE; ACCEPTANCE AND EXHIBITS
Ordinance 547
April 16, 2013
27
(1) Publication; Effective Date. This Franchise shall be published in accordance with
Applicable Law and accepted by the Grantee. The "Effective Date" of this Franchise shall be the
date the City's withdrawal from the LMCC is final.
(2) Acceptance. Grantee shall accept this Franchise within thirty (30) of its
enactment by the City Council, unless the time for acceptance is extended by City. In the event
acceptance does not take place, this Franchise and any and all rights previously granted to
Grantee shall be null and void.
(a) Upon acceptance of this Franchise, Grantee shall be bound by all the terms
and conditions contained herein, subject to the effectiveness of the Franchise as required
in Section 11(1).
(b) Grantee shall accept this Franchise in the following manner:
(i) This Franchise will be properly executed and acknowledged by
Grantee and delivered to City.
(ii) With its acceptance, Grantee shall also deliver any performance
bond and insurance certificates required herein that have not previously been
delivered.
Passed and adopted this 16th day of April, 2013.
CITY OF MEDINA, MINNESOTA
Dated: / ?(i I i °l , 2013. By:
SWORN TO BEFORE ME this
)1 day of
r
Notary Public
, 2013
Its: Mayor
Its: City Administrator
siz JO01 MARIE GALLUP
NOTARY PU8UC•MMNESOTA
My Commission Expires Jan. 31, 2017
Ordinance 547
April 16, 2013
28
ACCEPTED: This Franchise is accepted, and we agree to be bound by its terms and conditions.
Dated: l\�`y
, 2013.
SWORN TO BEFORE ME this
ze4 M day of ! "1 y , 2013
otary Public
MEDIACOM MINNESOTA LLC
Lt s1,
S �
James McKnight
Notary Public, State of New York
Qualified in Orange County
Commission Expires 9/28/2013
Ordinance 547
April 16, 2013
29
EXHIBIT A
OWNERSHIP
Grantee must maintain on file with City an accurate chart outlining its complete ownership
structure.
Ordinance 547
April 16, 2013
A-1
EXHIBIT B
DESCRIPTION OF SYSTEM
1. The Cable System shall be designed, constructed, routinely inspected, and maintained to
guarantee that the Cable System meets or exceeds the requirements of the most current editions
of the National Electrical Code (NFRA 70) and the National Electrical Safety Code (ANSI C2).
In all matters requiring interpretation of either of these codes, the City's interpretation shall
control over all other sources and interpretations.
2. General Requirements. Grantee shall use equipment used in high -quality, reliable,
modern Cable Systems of similar design.
3. General Description. The Cable System shall provide Subscribers with a technically
advanced and reliable Cable System. The System shall have at least 750 MHz of bandwidth
capacity, capable of delivering approximately 80 analog channels of programming. The System
will be two-way active, and it will be designed to have capability to transmit return signals
upstream in the 5-40 MHz spectrum. The design will provide the benefits of proven 80-channel
electronics while positioning the System for expansion of bandwidth and channel capacity as
technology and future services develop.
4. Design. The design of the System shall be based upon a "Fiber to the node" architecture
that will deliver the signals by fiber optics directly to each neighborhood. Grantee's initial
design includes a minimum of six (6) fibers to each node site having a neighborhood group
average of approximately three hundred (300) homes. If Grantee splits nodes into smaller sizes,
fewer fibers will extend to such smaller nodes. There shall be no more than seven (7) active
amplifiers in a cascade from each node to the residential dwelling. The incorporation of stand-by
power supplies, strategically placed throughout the system including all hubs, will further reduce
the likelihood of service interruptions.
5. Technical Standards. The System shall meet or exceed FCC requirements. In no event
shall the System fall below the following standards:
a. The System shall be capable of meeting the following distortion parameters:
1 Carrier to RMS Noise 48 dB
2. Carrier to Second Order 53 dB
3. Carrier to Cross Modulation 51 dB
4. Carrier to Composite Triple Beat 53 dB
b. The frequency response of a single channel as measured across any 6 MHz analog
channel shall not exceed +/- 2 dB.
c. The frequency response of the entire passband shall not exceed N/10+ 2 dB for
the entire System where N is the number of amplifiers in cascade.
d. The System shall be designed such that at a minimum all technical specifications
of this Franchise Agreement are met.
2 The System shall be designed such that no noticeable degradation in signal quality will
appear at the Subscriber terminal.
Ordinance 547
April 16, 2013
B-1
EXHIBIT C
CONSUMER PROTECTION AND CUSTOMER SERVICE STANDARDS
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 twenty-four (24) hours a day, seven (7) days a week.
(2) Trained Grantee representatives will be available to respond to customer
telephone inquiries during Normal Business Hours.
(i) 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.
(ii) Under Normal Operating Conditions, telephone answer time by a
customer representative, including wait time, shall not exceed thirty (30) seconds
when the connection is made. If the call needs to be transferred, transfer time
shall not exceed thirty (30) seconds. These standards shall be met no less than
ninety percent (90%) of the time under Normal Operating Conditions, measured
on a quarterly basis.
(iii) Grantee shall not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards above unless an
historical record of complaints indicates a clear failure to comply.
(iv) Under Normal Operating Conditions, the customer will receive a busy
signal less than three percent (3%) of the time.
(v) Customer service center and bill payment locations will be open at least
during Normal Business Hours and will be conveniently located. Current
locations include Mound and Chanhassen. Grantee will provide adequate
notice to customers of any changes or modifications to locations or hours of
operation.
Installations, Outages and Service Calls. Under Normal Operating Conditions, each of
the following standards will be met no less than ninety-five percent (95%) of the time
measured on a quarterly basis:
Ordinance 547
April 16, 2013
(iii) Standard Installations will be performed within seven (7) business
days after an order has been placed.
(iv) Excluding conditions beyond the control of Grantee, Grantee will
begin working on "Service Interruptions" promptly and in no event later than
twenty-four (24) hours after the interruption becomes known. Grantee must begin
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actions to correct other Service problems the next business day after notification
of the Service problem.
(v) The "appointment window" alternatives for Installations, Service
calls, and other Installation activities will be either a specific time or, at
maximum, a four (4) hour time block during Normal Business Hours. (Grantee
may schedule Service calls and other Installation activities outside of Normal
Business Hours for the express convenience of the customer.)
(vi) Grantee may not cancel an appointment with a customer after the
close of business on the business day prior to the scheduled appointment.
(vii) 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. The appointment will be rescheduled, as necessary,
at a time which is convenient for the customer.
(c) Communications between Grantee and Subscribers:
(i)
either:
Refunds. Refund checks will be issued promptly, but no later than
1. The customer's next billing cycle following resolution of
the request or thirty (30) days, whichever is earlier, or
2. The return of the equipment supplied by Grantee if Cable
Service is terminated.
(ii) Credits. Credits for Cable Service will be issued no later than the
customer's next billing cycle following the determination that a credit is
warranted.
(d) Billing:
(i) Consistent with 47 C.F.R. § 76.1619, bills will be clear, concise
and understandable. Bills must be fully itemized, with itemizations including, but
not limited to, Basic Cable Service and premium Cable Service charges and
equipment charges. Bills will also clearly delineate all activity during the billing
period, including optional charges, rebates and credits.
(ii) In case of a billing dispute, Grantee must respond to a written
complaint from a Subscriber within thirty (30) days.
(e) Subscriber Information. Grantee will provide written information on each
of the following areas at the time of Installation of Service, at least annually to all
Subscribers, and at any time upon request:
Ordinance 547
April 16, 2013
(i) Products and Services offered;
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(ii) Prices and options for programming services and conditions of
subscription to programming and other services;
(iii) Installation and Service maintenance policies;
(iv) Instructions on how to use the Cable Service;
(v) Channel positions of programming carried on the System; and
(vi) Billing and complaint procedures, including the address and
telephone number of the Grantee's customer service department.
Subscribers shall be advised of the procedures for resolution of complaints
about the quality of the television signal delivered by Grantee, including the
address of the responsible officer of the Grantee. Subscribers will be notified of
any changes in rates, programming services or Channel positions as soon as
possible in writing. Notice must be given to Subscribers a minimum of thirty (30)
days in advance of such changes if the change is within the control of Grantee. In
addition, Grantee shall notify Subscribers thirty (30) days in advance of any
significant changes in the information required by this Section 5.3(e).
(0 Notice or Rate Programming Change. In addition to the requirement of
this subparagraph (f) regarding advance notification to Subscribers of any changes in
rates, programming services or Channel positions, Grantee shall give thirty (30) days
written notice to both Subscribers and the City before implementing any rate or Service
change. Such notice shall state the precise amount of any rate change and briefly explain
in readily understandable fashion the cause of the rate change (e.g., inflation, change in
external costs or the addition/deletion of Channels). When the change involves the
addition or deletion of Channels, each Channel added or deleted must be separately
identified. For purposes of the carriage of digital broadcast signals, Grantee need only
identify for Subscribers, the television signal added and not whether that signal may be
multiplexed during certain dayparts.
(g) Subscriber Contracts. Grantee shall, upon written request, provide the
City with any standard form residential Subscriber contract utilized by Grantee. If no
such written contract exists, Grantee shall file with the City a document completely and
concisely stating the length and terms of the Subscriber contract offered to customers.
The length and terms of any standard form Subscriber contract(s) shall be available for
public inspection during Normal Business Hours. A list of Grantee's current Subscriber
rates and charges for Cable Service shall be maintained on file with City and shall be
available for public inspection.
(h) Refund Policy. If a Subscriber's Cable Service is interrupted or
discontinued, for twenty-four (24) or more consecutive hours, Grantee shall, upon request
by the Subscriber, credit such Subscriber pro rata for such interruption. For this purpose,
every month will be assumed to have thirty (30) days.
Ordinance 547
April 16, 2013
C-3
(i) Late Fees. Grantee shall comply with all applicable state and federal laws
with respect to any assessment, charge, cost, fee or sum, however characterized, that
Grantee imposes upon a Subscriber for late payment of a bill. The City reserves the right
to enforce Grantee's compliance with all Applicable Laws to the maximum extent legally
permissible.
(j) Customer Bills. Customer bills shall be designed in such a way as to
present the information contained therein clearly and comprehensibly to Customers, and
in a way that (A) is not misleading and (B) does not omit material information.
Notwithstanding anything to the contrary in Section 14.10, above, Grantee may, in its
sole discretion, consolidate costs on Customer bills as may otherwise be permitted by
Section 622(c) of the Cable Act (47 U.S.C. §542(c)).
(k) Failure to Resolve Complaints. Grantee shall resolve a complaint within
thirty (30) days in a manner deemed reasonable by the City under the terms of the
Franchise.
(1) Maintain a Complaint Phone Line. Grantee shall maintain a local or toll -
free telephone Subscriber complaint line, available to its Subscribers twenty-four (24)
hours per day, seven (7) days a week.
(m) Notification of Complaint Procedure. Grantee shall have printed clearly
and prominently on each Subscriber bill and in the customer service agreement provided
for in Section 5.3(e), the twenty-four (24) hour Grantee phone number for Subscriber
complaints. Additionally, Grantee shall provide information to customers concerning the
procedures to follow when they are unsatisfied with measures taken by Grantee to
remedy their complaint. This information will include the contact information for
Grantee's corporate customer service department as provided in Grantee's Privacy
Policy.
Ordinance 547
April 16, 2013
(n) Subscriber Privacy.
(i) To the extent required by Minn. Stat. §238.084 Subd. 1(s) Grantee
shall comply with the following: No signals including signals of a Class IV
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. The request for permission must be contained in a
separate document with a prominent statement that the Subscriber is authorizing
the permission in full knowledge of its provisions. Such written permission shall
be for a limited period of time not to exceed one (1) year which may be renewed
at the option of the Subscriber. No penalty shall be invoked for a Subscriber's
failure to provide or renew such permission. The permission shall be revocable at
any time by the Subscriber without penalty of any kind whatsoever.
(ii) No information or data obtained by monitoring transmission of a
signal from a Subscriber terminal, including but not limited to lists of the names
and addresses of Subscribers or any lists that identify the viewing habits of
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Subscribers shall be sold or otherwise made available to any party other than to
Grantee or its agents for Grantee's business use, and also to the Subscriber subject
of that information, unless Grantee has received specific written permission from
the Subscriber to make such data available. The request for permission must be
contained in a separate document with a prominent statement that the Subscriber
is authorizing the permission in full knowledge of its provisions. Such written
permission shall be for a limited period of time not to exceed one (1) year which
may be renewed at the option of the Subscriber. No penalty shall be invoked for a
Subscriber's failure to provide or renew such permission. The permission shall be
revocable at any time by the Subscriber without penalty of any kind whatsoever.
(iii) Written permission from the Subscriber shall not be required for
the conducting of system wide or individually addressed electronic sweeps for the
purpose of verifying System integrity or monitoring for the purpose of billing.
Confidentiality of such information shall be subject to the provision set forth in
subparagraph (ii) of this section.
(o) Grantee Identification. Grantee shall provide all customer service
technicians and all other Grantee employees, subcontractors and agents entering private
property with appropriate picture identification so that Grantee employees may be easily
identified by the property owners and Subscribers.
Ordinance 547
April 16, 2013
C-5
EXHIBIT D
PEG ACCESS FACILITIES AND EQUIPMENT
1. PUBLIC, EDUCATIONAL AND GOVERNMENT (PEG) ACCESS CHANNELS.
a) 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 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.
b) 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.
c) The PEG Channels shall be dedicated for PEG use for the term of the Franchise,
provided that Grantee may, utilize any portions of the PEG Channels not scheduled for
PEG use. City shall establish rules and procedures for such scheduling in accordance
with Section 611 of the Cable Act (47 U.S.C. § 531).
d) Grantee shall also designate Channel 6 for uniform regional channel usage
currently provided by "Metro Channel 6" as required by Minnesota Statutes Section
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.
e) Grantee shall provide the Access Channels on the Basic Cable Service tier.
2. PEG TECHNICAL QUALITY. Grantee shall meet FCC signal quality standards when
offering Access Channels on its Cable System.
3. RELOCATION OF GRANTEE'S HEADEND. In the event Grantee relocates its
headend, Grantee will be responsible for replacing or restoring the existing dedicated fiber
Ordinance 547
April 16, 2013
D-1
connections at Grantee's cost so that all the functions and capacity remain available, operate
reliably and satisfy all applicable technical standards and related obligations of the Franchise free
of charge to the City or its designated entities.
4. PEG OPERATIONS. City 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. City and Grantee may negotiate an
agreement for management of PEG Access Facilities, if so desired by both parties.
5. TITLE TO PEG EQUIPMENT. City shall retain title to all PEG equipment and facilities
purchased or otherwise acquired.
6. PEG ACCESS OPERATING SUPPORT.
a) Upon Grantee's acceptance of this Franchise, Grantee shall collect on behalf of
City a per Subscriber fee of One Dollar and Twenty Cents ($1.20) per month solely to
fund public, educational and governmental access expenditures (hereinafter "PEG Fee")
which shall be payable quarterly and included in the Fee worksheet Exhibit G. The City
Council may reduce the PEG Fee at any time and the parties may mutually agree to
increase the PEG Fee at any time.
b) The PEG Fee shall be used by City in its sole discretion to fund PEG Access
expenditures in a manner consistent with Applicable Law.
c) The PEG Fee is not intended to represent part of the Franchise Fee and is intended
to fall within one (1) or more of the exceptions in 47 U.S.C. § 542. The PEG Fee may be
categorized, itemized, and passed through to Subscribers as permissible, in accordance
with 47 U.S.C. §542 or other Applicable Laws. Grantee shall pay the PEG Fee to the
City quarterly at the same time as the payment of Franchise Fees under Section 7.1 of the
Franchise. Grantee agrees that it will not offset or reduce its payment of past, present or
future Franchise Fees required as a result of its obligation to remit the PEG Fee.
d) Any PEG Fees owing pursuant to this Franchise which remain unpaid more than
thirty (30) days after the end of a given quarter shall be delinquent and shall immediately
thereafter accrue interest at the same rate and under the same terms as late franchise fee
payments as set forth in Section 7.1 of the Franchise. Enforcement of unpaid PEG Fees
shall be handled in accordance with Section 9.7 of the Franchise, however, Grantee shall
in all cases be subject to interest on any payment more than thirty (30) days after the end
of a given quarter.
7. SERVICE TO PUBLIC BUILDINGS.
a) Throughout the term of this Franchise Grantee shall provide, free of charge, one
(1) service Drop, one outlet, one (1) Converter, if necessary and requested, and Basic
Cable Service and the next highest penetrated level of Cable Service generally available
Ordinance 547
April 16, 2013
D-2
to all Subscribers (as of the Effective Date referred to as Expanded Basic Cable Service)
("Complimentary Service"), to all of the sites listed on Exhibit D attached hereto.
b) The City or the building occupant shall have the right to extend Cable Service
throughout the building to additional outlets without any fees imposed by Grantee for the
provision of such service to such additional outlets except for the cost of additional
terminal equipment required to receive the signals.
c) Notwithstanding anything to the contrary set forth in this section, Grantee shall
not be required to provide Complimentary Service to such buildings unless it is
technically feasible.
d) Grantee shall, in any public building hereinafter built, provide all Drop materials,
design specifications and technical advice to provide Complimentary Service to a demark
point at such building. If the Drop line to such building exceeds five hundred (500) feet
the City or other agency shall pay the Actual Cost of such Drop in excess of five hundred
(500) feet.
e) Two-way capability allowing for live transmission of PEG programming
upstream to Grantee's headend shall be provided to the public buildings listed in Exhibit
F.
e) Because the City desires to continue providing transparency to its citizens of its
government proceedings via broadcast of- or web access to- its City Council sessions and
other government proceedings as it may elect, Grantee agrees to address the technical and
budget issues involved in achieving this goal and to provide advice and where possible
seed money to enable Medina to meet this goal with minimal expense.
Ordinance 547
April 16, 2013
D-3
EXHIBIT E
SERVICE TO PUBLIC FACILITIES
1. City Hall
2. Police and Public Works Facility
3. City Water Treatment Plant
4. Hamel Community Center
Ordinance 547
April 16, 2013
2052 County Road 24
600 Clydesdale Trail
Tower Drive
3200 Mill Drive
F-1
EXHIBIT F
PUBLIC BUILDINGS TO BE PROVIDED WITH TWO-WAY CAPABILITY
1. CITY BUILDINGS:
City Hall
Hamel Community Center
Ordinance 547
April 16, 2013
2052 County Road 24
3200 Mill Drive
F-2
EXHIBIT G
FRANCHISE FEE and PEG FEE PAYMENT WORKSHEET
TRADE SECRET — CONFIDENTIAL
Month/Year
Month/Year
Month/Year
Total
Cable Service Revenue
Installation Charge
Advertising Revenue
Home Shopping Revenue
Other Revenue
Equipment rental
REVENUE
Fee Calculated
Fee Factor: 5%
PEG Fee
Ordinance 547
April 16, 2013
G-1