1980-33Bi11 1980-33
AN ORDINANCE, INCLUDING ADDENDUM WITH EXHIBITS, GRANTING A FRANCHISE
TO MINNESOTA CABLESYSTEMS-SOUTHWEST, A MINNESOTA LIMITED PARTNERSHIP,
TO OPERATE AND MAINTAIN A CABLE COMMUNICATION SYSTEM IN THE CITY:
SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE: PROVIDING
FOR REGULATION, AND USE OF THE SYSTEM: AND PRESCRIBING PENALTIES FOR
THE VIOLATION OF ITS PROVISIONS
i`]
LJ
ORDINANCE N0. 1980-33
AN ORDINANCE, INCLUDING ADDENDUM WITH E~iIBITS, GRF-NTI*~G
A FRANCHISE TO MINNESOTA CABLESYSTEMS-SOU'I'Fi~EST, A
MINNESOTA LIMITED PARTNERSHIP, TO OPERATE AND MAINTAIN A CABLE
COMMiJNICATION SYSTEM ZN THE CITY; SETTING FORTH CONDITIONS
ACCOMPANYING THE GRANT OF FRANCHISE; PROVIDING ''JR
REGULATION, AND USE OF THE SYSTEM; AND PRESCRIBING PENA..IiES
FOR THE VIOLATION OF ITS PROVISIONS
The City Council of the City of Richfield ordains:
STATEMENT OF INTENT AND PURPOSE
The City intends, by the adoption of this Franchise, to
bring about the development of a System, and the continued oYera-
tion of it. Such a development can contribute significantly ~~
the communication needs and desires of many. Further, the Ci ..y
may achieve better utilization and improvement of public services
with the development and operation of a Cable Communicat:o::s
System.
Past studies, participated in by City, have led the way fo:
organizing a means of procu~inq and securing a Cable Communica-
tions System deemed best suited to the City, in the jud „ent o°
the Council. This has resulted in the preparation and adoption
of this Franchise.
FINDINGS
In the review of Grantee's proposal and application and as a
result of public hearings, the City Council makes the followi::y
findings:
A• The Grantee's technical ability, financial condition, legal
qualifications, and character were considered and approve3
in a full public proceeding after due notice and reasor.ab~e
opportunity to be heard;
B. Grantee's plans for constructing and operating the System
were considered and found adequate and feasible in a full
- public proceeding after due notice and reasonable opportu-
nity to be heard;
C. The Franchise granted to Grantee by City complies with t.`:e
existing applicable Minnesota Statutes and regulations ar.
Franchise standards of Board; and
D. The Franchise granted to Grantee is nonexclusive.
1
2
ARTICLE I.
SHORT TITLE AND DEFINITIONS
SECTION 1. SHORT TITLE
This Ordinance shall be known and cited as the Cable Commun_
ications Ordinance.
SEC': ION 2. DEFINITIONS
For the purpose of the Franchise, the following terms,
phrases, words and their derivations shall have the meaning given
herein. When not inconsistent with the context, words used i:,
the present tense include the future, words in the plural nur~,ber
include the singular number, and words in the singular number
include the plural number. The words "shall" and "will" are
mandatory and "may" is permissive. Words not defined shall be
given their common and ordinary meaning.
A• "Basic Service" means all subscriber services provided by
Grantee including the delivery of broadcast signals, covered
by the regular monthly charge paid by all subscribers, ex-
cluding optional services for which a separate charge is
made.
B• "Board" means the Minnesota Cable Communications Board.
C• "City" means City of Richfield, a municipal corporation, in
the State of Minnesota.
D• "Class IV Channel" means a signaling path provided by a
System to transmit signals of any type from a subscriber
terminal to another point in System.
E• "Connection" means the attachment of the drop to the first
radio or television set of the subscriber.
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F. "Converter" means an electronic device, which corver_s s~~
pals to a frequency not susceptible to interference with.
the television receiver of a subscriber, and by an appropri-
ate channel selector also permits a subscriber to view all
- basic subscriber signals included in the basic service
delivered at designated converter dial locations.
G. "Council" means the governing body of City.
H. "Drc~," shall mean the cable that connects the subscriber
terminal to the nearest feeder cable of the cable.
I. "FCC" shall mean the Federal Communications Commission ar.~
any legally appointed, designated or elected agent or suc-
cessor.
J. "Grantee" is Minnesota Cablesystems - Southwest, a Minreso~a
Limited Partnership, its agents or employees.
K• "Gross Revenues" shall mean all revenue derived direc~~y ~_
indirectly by Grantee, its affiliates, subsidiaries, pare^"
and any person in which Grantee has a financial interest o~
five percent {5%) or more from or in connection with tr':e
operation of the System, including but not limited to, basic
subscriber service monthly fees, pay cable fees, installa-
tion and reconnection fees, leased channel fees, conver~~~
rentals, studio rental, production equipment and persor~^.e~
fees, and advertising revenues. The term does not incl~~e
any taxes on services furnished by Grantee and imposed di-
rectly upon any subscriber or user by the State, City or
other governmental unit and collected by Grantee on behal~
of said governmental unit.
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L. "Installation" means the connection of tre System from .eo-~_
er cable to the point of connection.
M. "Lockout Device" is an optional mechanical or electrical
accessory to a subscriber's terminal which inhibits the
viewing of a certain channel or channels provided by way o~
cable communications system.
N. "Offering of Grantee" or "Offering" shall mean that certa~~
document dated December 5, 1980, entitled "Offering o_°
Grantee" and signed by Grantee and City, which docu.~nent is
on file with the City Clerk.
0. "Public Property" is any real property owned by City ot::e~
than a street.
P. "Scrambler/Descrambler" refers respectively to the equiY:^en-
installed to the cable communications system's heade^~
equipment and subscriber terminal used to isolate pay cable
and other ancillary- service channels from basic serv•ce
which is accomplished by electronically distorting the sig-
nal prior to its transmission through the cable communica-
tions system and reconstituting the singal at each aut.~o-
rized location for subsequent display.
Q. "Sidewalk" is the potion of a street delineated for pedes-~
trian travel.
R• "Street" shall mean the surface of and the space above ar.~
below any public street, road, highway, freeway, lane, pat:,
public way, alley, court, sidewalk, boulevard, parkway,
drive or any easement or right-of-way now or hereafter held
5
by City which shall, within its proper use and mear.i:,y
the sole opinion of City, entitle Grantee to the use there
for the purpose of installing or transmitting over pole ,
wires, cables, conductors, ducts, conduits, vaults, man-
- holes, amplifiers, appliances, attachments and other pr~p-
erty as may be ordinarily necessary and pertinent to a
System.
S. "SwSCC" shall mean the Southwest Suburban CATV Study Corr^is_
lion.
T. "Subscriber" means any person or entity who subscribes to a
service provided by Grantee by means of or in connect~~n
with the System regardless of whether a fee is paid for sucz
service.
v• "System" means a system of antennas, cables, wires, ling
towers, waveguides or other conductors, converters, e.;.:;~
ment or facilities, designed and constructed for the pu r.^se
of producing, receiving, transmitting, amplifying and d~s-
tributinq, audio, video and other forms of electronic ~r
electrical signals, located in City. Said definition shall
not include any system wholly internal to one or more mult~-
ple unit dwellings under common ownership, control or ma:,-.
agement, and does not use City streets or other pub:;.
property. In any event, system as defined herein shall r.o~
be inconsistent with the definition as set out in the rues
of the Board.
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ARTICLE II.
GRANT OF AUTHORITY AND GENERAL PROVISIONS
SECTION 1. GRANT OF FRANCHISE AND ACCEPTANCE
City hereby grants to Grantee, a nonexclusive franchise sub-
ject to all of the terms and conditions as herein provided:
A. Grantee shall accept this Franchise in the following mar..-per,
and not later than the time set out in Article XIV, Sec~ion
2:
(1) This Franchise will be properly executed and ack-
nowledged by Grantee and delivered to City.
(2) At the same time as delivery of the executed Fran-
chise, Grantee shall deposit with City its nonre-
fundable acceptance fee in the sum of 520,000.00,
for the purpose of defraying the costs and expen-
ses of developing this Franchise and for the en-
forcement and administration costs to be incurred
until other Franchise fees may be realized. If
such costs to City exceed the sum of 520,000.00,
City may charge such excess costs to Grantee and
Grantee shall pay them on demand by City.
(3) All security deposits, Letters of Credit, insur-
ance contracts, acceptances, bonds, attorneys'
opinions, organizational and creation documents
and guarantees required of Grantee by this Fran-
chise, shall be delivered with the executed Fran-
chise and in accordance therewith.
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SEC'T'ION 2. AUT?iORIT'l GRAN'T'ED
A. City grants to Grantee the permission to use streets for
erecting, constructing, operating and maintaining the Sys-
tem. Other rights necessary for the System on other public
_ or private property must be obtained by Grantee, but City
shall have no obligation to give or grant or assist in ob-
taining the same.
B. Grantee shall construct and maintain the System so as not to
interfere with other uses of streets. Grantee shall make
use of existing poles and other facilities available to
Grantee.
C. Notwithstanding the above grant to use streets, no street
shall be used by Grantee if City in its sole opinion deter-
mines that such use is inconsistent with the terms, cond;-
tions or provisions by which such street was created er
dedicated, or presently used.
SECTION 3. AGREEMENT
A. Grantee agrees to be bound by all the terms and conditions
of this Franchise.
B. The Grantee also agrees to provide all services specifically
set forth in, and to comply with all provisions of, its
Offering to provide a System within the boundaries of City.
Further, failure of Grantee to provide a System as described
in its Offering, at City's option, shall be a violation of
the provisions of this Franchise. In the event of conflicts
or discrepancies between the Offering of Grantee and the
provisions of this Franchise, the provisions which provide
8
the greatest benefit to City, in the opinion of t: e Cc~,;;;~~~ •
shall prevail.
SECTION 4. FRANCHISE TERM
This Franchise shall commence upon acceptance by Grantee and
shall expire 15 years from date of acceptance.
SECTION 5. AREA
This Franchise is granted for City as it exists from tine t~
time during the term of this Franchise.
SECTION 6. POLICE POWERS
A. Grantee's rights are subject to the police power of City t;,
adopt and enforce ordinances necessary to the health, safe-;
and welfare of the public.
g• Any conflict between the provisions of this Franchise ar.~
• any other present or future lawful exercise of police powers
of City shall be resolved in favor of City.
SECTION 7. USE OF GRANTSE FACILITIES
City shall have the right to install and maintain, free o~
charge, upon the poles and within the underground pipes and con-
duits of Grantee any wires and fixtures desired by City. Grantee
waives any claim against City arising from City's exercise o~
these rights.
SECTION 8. WRITTEN NOTICE'.
All notices, reports or demands required to be given i.^.
writing under this Franchise shall be deemed to be given whet,
delivered personally to any officer of Grantee or City's Adminis-
trator of this Franchise or 48 hours after it is deposited in the
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United States mail in a sealed envelope, with registered or Ce~_~---~
mail postage prepaid thereon, addressed to the party to which no
is being given, as follows:
If to City.: 6700 Portland Avenue South
_ Richfield, Minnesota 55423
If to Grantee: 4344 IDS Center
Minneapolis, Minnesota 55402
Such addresses may be changed by either party upon notice to the
other party given as provided in this section.
SECTION 9. RIGHTS OF INDIVIDUALS
A. No signals, including signals of a Class IV Channel, shad
be transmitted from a subscriber terminal except as required
to provide a service authorized by this Franchise and t::e
subscriber. Grantee and any other person shall neither ir.:-
tiate nor use any procedure or device for procur;ng cr
storing information or data from a subscriber's terminals or
terminal by any means, without the prior authorization of
the affected subscriber which shall not have been obtained
from the subscriber as a condition of service. The request
for such authorization shall be contained in a separate doc-
ument and identify the purpose for which the data or infor-
mation is being gathered or stored. After the first year of
the authorization's initial signing, Grantee shall, for each
year said authorization is in effect without revocation,
mail a notice to each authorizing subscriber informing hi;~
or her of his right to revoke said. authorization. The
authorization shall be revocable at any time by the
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subscriber without penalty of any kind whatsoever. A se:,a-
rate authorization shall be required for each type or clas-
sification of data or information sought from a subscriber
terminal.
g. _ Grantee shall not, without the written authorization of the
affected subscriber, provide to anyone data identifying or
designating any subscriber. Any data authorized shall be
made available upon request by and without charge to t::e
authorizing subscriber in understandable fashion, includir.3
specification of the purpose for which the information is
being gathered and to whom and for what fee the information
is to be sold.
C. Grantee shall not tap or monitor, arrange for the~tappir.q or
monitoring, or permit any other person to tap or monitor,
any cable, line, signal input device, or subscriber outset
or receiver for any purpose whatsoever, without the prior
written authorization of the affected subscriber as required
by paragraph A of this section.
D. Nothing herein contained shall prohibit Grantee from veri`y-
inq System operation and the transmission of signals to an
affected subscriber or from monitoring for the purpose cf
billing.
SECTION 10. CERTIFICATE OF CONFIRMATION
Grantee shall abide by the then current rules and regula-
tions of-Board regarding the application, approval, and renewal
of a Certificate of Confirmation. Failure of Grantee to obtain a
Certificate of Confirmation or a renewal thereof shall result in
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automatic termination of this Franchise, and this Franchise s~a~
cease to be of any force or effect. However, Grantee may operat
the System while the Board is considering, an application for
renewal of the Certificate of Confirmation.
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ARTICLE III.
DESIGN OF SYSTEM
SECTION I. CHANNEL CAPACITY -_SUBSCRIBER NETWORK
Grantee shall .initially activate and thereafter maintain a
subscriber network having at least a forward capacity of 54 video
channels, plus the FM audio band, and a reverse capacity of four
video channels. The design will provide for a self-contalr.ed
bidirectional network in each City forming part of this System.
The System will be programmed from a central point, but the con-
figuration will accommodate the practical isolation of City,
allowing for the distribution of unique programming to it. T::e
System shall be capable of increasing its channel capacity as
technology permits and needs arise.
SECTION 2. PICTURE QUALITY AND TECHI`1ICAL RE UIREMENTS
A• The System will produce a picture upon each subscriber's
television screen in black and white or color, dependi:~
upon whether color is being telecast and provided the sub-
scriber's television set is capable of producing a color
picture, that is undistorted and free from ghost images,
without material degradation of color fidelity. The System
shall produce a sound that is undistorted on any receiver of
a subscriber. Grantee, at its expense, shall install and
maintain the System so as not to interfere with any sub-
scriber's receipt of local broadcast stations.
B• The System shall transmit or distribute signals to all tele-
vision and radio receivers of all subscribers without caus-
ing crossmodulation in the cables or interfering with other
13
electrical or electronic systems or the reception of ct.~e-
television or radio receivers.
C. Grantee shall construct and maintain a System that at least
meets minimum technical standards now or hereafter Fromul-
_ gated by the FCC relating to cable communications systems;
provided, however, that in no event shall the tec:~.nica~
standards required to be met by Grantee be less stringent
than the FCC standards in effect at the time of the adoption
of the Ordinance, nor shall Grantee be required to meet
minimum FCC technical standards which apply solely to cab~e
communications systems for which franchises are granted sub-
sequent to the acceptance of this Franchise.
D. The System shall be installed and remain capable of usin3
all band equipment and of passing the entire v'riF bar.~s,
mid-band, super-bands and FM band up to 402 NII~Z.
E. The System shall be designed for and operated on a 24 hogs
a day continuous operation basis.
F. Grantee shall specify the procedure for initially and subse-
quently testing the technical capacity of the System any
agrees to have City select a consultant to review and per-
form such testing procedure. The results of any tests
required by the FCC shall be filed within ten days of the
conduct of such tests with the City and the Board. Other
representatives of City may be present during testing. The
tests may be done annually at such times as is determined by
City, with notice to Grantee. All expenses for all such
tests shall be paid by Grantee.
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SEC':IC*1 3. TWO-WAY CAPACITY
Grantee shall initially activate and thereafter maintain a
two-way capable System (audio, video and data impulse). This
will include fully interactive service capability provided by a
centralized computer system and customized subscriber home termi-
nals, backed up by full standby powerirq throughout the System.
SECTICN 4. FACILITIES
The Grantee shall construct, maintain and continue to pro-
vide all facilities and equipment set forth in the Offering
including, but not limited to, the headend, hubs, distribution
system, studios, equipment and other facilities. Grantee's plan,
as set forth in the Offering, for implementing the construction,
utilization and maintenance of these facilities, including its
plans for accommodating future growth and changing needs and
desires, shall be fully and timely performed.
SECTION 5. SPECIAL CHANNEL AND ACCESS RE UIREMENTS
A. Grantee will carry broadcast stations in accordance with FCC
rules as from time to time revised.
B. No converter will be required for the seven channels of the
Universal Service Tier. Converters may be required for the
Family Service Tier and for the Full Service and Interactive
Tiers. A charge for lease or purchase from Grantee may be
made by Grantee, or a subscriber may lease or purchase a
converter from any other source. For premium services
Grantee may require the use of a Grantee converter or
descrambler.
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~. Channel 12 shall be an emergency channel operated by C~~1•
D. Grantee will provide an audio/visual emergency alert ov~r-
ride system that will permit the initial interruption by
City of -all audio (including FM) and video programming.
E. _ Grantee shall provide at least seven channels for access use
(including one for each of the following uses: public,
government, leased, educational, regional). All residential
subscribers who receive all or any part of the total ser-
vices offered on the System shall also receive all of said
seven access channels at no additional charge. These
channels shall be activated upon System activation and
thereafter maintained. Grantee shall establish rules and
regulations prior to System activation for the use of access
channels which shall be approved by City before implemen-
tation and thereafter shall not be altered or amended
without approval of City. In preparing such rules:
(1) Grantee shall provide an equal opportunity for use
of access services.
(2) Grantee will consider needs assessments prepared
by City.
(3) Grantee shall develop a plan to allocate to City a
reasonable use and fair schedule of channel time,
use of equipment and facilities so that it can
receive programming unique to its needs.
(4) Grantee will comply, at a minimum, with the
requirements of City and the~Board now-or here-
after adopted or determined by City or the Board
16
regarding access channels. Such requirements o~
the Board are hereby made apart of this ordinance
and include the following:
(a) Grantee shall, to the extent of the
System's available channel capacity,
provide to each of its subscribers who
receive all or any part of the total
services offered on the System, recep-
tion on at least one specially designat-
ed noncommercial public access channel
available for use by the general public
on a first. come,. nondiscriminatory
basis; at least one specially designated
access channel for use by local educa-
tional authorities; at least one speci-
ally designated access channel available
for local government use; and at least
one specially designated access channel
available for lease on a first come,
nondiscriminatory basis by commercial
and noncommercial users (hereinafter the
"access channels"). Subscribers re-
ce~_v~ng only alarm system services or
only data transmission services for
computer operated functions shall be
exempt from this requirement. The VHF
spectrum shall be used for at least one
17
of the specially designated noncommer-
cial public access channels required.
No charges shall be made for channel
time or playback of prerecorded
- programming on at least one of the
specially designated noncommercial
public access channels. However, per-
sonnel, equipment and production costs
may be assessed for live studio presen-
tations exceeding five minutes in
length. Charges for such production
costs and any fees for use of other pub-
lic access channels shall be consistent
with the goal of affor~3inq the public a
low cost means of television access.
Access facilities, equipment and/or cha-
nnel time will be made available to the
general public, any group or individual
resident in City for the production
and/or cablecastinq of noncommercial
Programming free of charge on a first
come, nondiscriminatory basis.
(b) whenever any of the access channels are
in use during 80 percent of the weekdays
(Monday-Friday), for 80 percent of the
time during any consecutive three hour
period for six weeks running, and there
18
is demand for use of an additional chan-
nel for the same purpose, Grantee shall
then have six months in which to provide
a new specially designated access chan-
_ nel for the same purpose at no addition-
al cost to subscribers.
(c) The rules and regulations established by
the Grantee and approved by City govern-
ing the access channels shall be filed
with the Board within 90 days after any
such channels are put into use.
(d) Subscribers receiving programs on one or
more special service channels without
also receiving the regular subscriber
services may receive only one specially
designated composite access channel com-
posed of the programming on access chan-
nels. Subscribers receiving only alarm
system services or only data transmis-
sion services for computer operated
functions shall not be included in this
requirement.
(5) The Grantee shall compl;~, at a minimum, with the
requirements of City and Board, now or hereafter
adopted by City or Board regarding public use of
its equipment, including the following:
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(a) Grantee shall make readily available for
public use at least minimal equipment
necessary for the production of program-
minq and playback of prerecorded pro-
grams for the specially designated
noncommercial public access channel.
The Grantee shall also make readily
available upon need being shown, the
minimum equipment necessary to make it
possible to record programs at remote
locations with battery operated portable
equipment.
(b) Need within the meaning of this para=
graph shall be determined in the sole
discretion of City or by subscriber
petition. Said petition must contain
the signatures of at least 10 percent of
the subscribers of System, but in no
case more than 500 nor fewer than 100
signatures.
SECTION 6. INSTITUTIONAL NETWORK
The System shall include at a minimum a separate instit::-
tional telecommunications nexwotk, interconnected with t::e
subscriber network, of eight sections with a combined trans-
mission capacity of 472 channels, with full two-way capability.
Said network shall be offered, activated, expanded, marketed and
developed at a minimum in full compliance with the Offering.
20
Need for the provision of institutional service shall be deter-
mined in the sole discretion of City.
SECTION 7. SERVICE TO PUBLIC BUILDINGS AND EDUCATIONAL INSTITU-
TINS
_ Grantee shall provide, at a minimum, subscriber and institu-
tional network service to all publicly owned buildings, in City
(City Hall, police department, fire department, schools, libra-
ries, etc.), all educational institutions in City, and all
buildings now or hereafter wholly or partially owned or leased
for governmental use by any state, federal or local government in
City, or owned or leased by school districts or educationa_
institutions in City, all as set out in the Offering. .Need for
either or both of such network services as referred' to in the
• Offering shall be determined in the sole discretion of Citl.
SECTION 8. INTERCONNECTION
Grantee will comply with all present and future rules, regu-
lations and orders of the Board regarding interconnection of sys-
tems, and will cooperate with any agencies or utilities involved
with interconnection. At such times as interconnection is
required, Grantee shall accomplish this without additional charge
to subscribers. System shall be initially constructed so that
other systems now or hereafter constructed in any area adjacent
to System may be interconnected with system without delay.
SECTION 9. NARROWCASTING
Grantee shall provide separate programming capability to
City on each of the access channels on the Universal Service
Tier.
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SECTION 10. COMPUTER SERVICES
Grantee shall construct System to accorr~odate interacti•~
data communications with a total network transmission time o
less than one-tenth .(1/10).of a second.
SECTION 11. REGIONAL CHANNEL
The standard VHF Channel 6 is hereby designated for unifor;.t
regional channel usage. However, until the regional channel
becomes operational, Grantee may utilize the standard V'r':'
Channel 6 as it deems appropriate. Use of time on the regional
channel shall be made available without charge.
1
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ARTICLE IV.
SERVICES AND PROGRAMMING,
SUBSCRIBER CONTRACTS, COMPLAINTS
SECTION 1. SERVICES AND PROGRAMMING
A. Services and Programming. The programming and services
shall be structured in three tiers, all of which will be
programmed at the time of System activation, providing, at a
minimum, the programming and services set forth in t::e
Offering. Programming and services as designated in t:-:e
Offering shall be changed by Grantee only upon prior written
approval of City. The three tiers are as follows:
(1) The Universal Service Tier. The Universal Service Tier
shall be provided as a public service without charge
after installation, permitting free view of seven
access channels. A subscriber may lease or buy a ce^-
vertez`; permitting a total service of 13 chanre_s.
(2) The Family Service Tier. The Family Service Tier shall
incorporate the Universal Service Tier with 14 pro-
grammed video channels, a total of 21 channels of
service combining access and local broadcasting with
local origination. In addition, this tier shall pro-
vide a community information service and offer twc
premium services, a family-oriented mini-pay-TV serv;:,e
and a comprehensive FM radio service._
(3) The Full Service Tier. The Full Service Tier shall
provide 54 channels which increases the Family Service
Tier by incorporating distant stations, several
23
B.
C.
satellite-fed services, additional local or:yirat:~~
channels, additional premium channels and several cu~_
tomized alpha-numeric services. Included in this tier
shall be a sub-tier called "expanded service" which
shall have the same channel capacity and shall include
a converter and an interactive unit.
Locally originated programming. Grantee shall provide at a
minimum 23 locally programmed channels.
Community Access and Programming.
(1 ) Grantee shall, at a minimum, comply with the commu:.it•.•
access and programming plan of the Offering.
(2) Grantee shall provide upon system activation a com.T,u-
nity access and programming staff of at least 22 per-
sons, provided, however, that City recognizes said
staff-as well as the entire community access and pr~-
gramming plan of the Offering encompasses all of the
systems of the Cities then a party to a Joint Powers
Agreement relating to System (referred to herein as the
"joint system").
(3) The community access and programming staff shall:
(a) Identify community access needs;
(b) Train and consult with interested residents o:
~i.ty ~n zhe use of the access equipment; and
(c) Promote the availability and uses of community
access.
(4) Access facilities and equipment shall be provided at a
minimum as set forth in the Offering.
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(5) Modulators shall be provided at 20 locations throug:~~::_
the joint system in addition to those which shall be
provided to educational institutions. Further, there
shall be a mobile production unit and portable video
_ recorders as set forth in the Offering, all of which
shall be available upon System activation.
(6) Grantee shall cooperate in the development of an access
nonprofit corporation if determined to be needed by
City.
(7) Grantee shall establish a citizen advisory board frcm
City to provide community advice and recommendations to
Grantee relative to the community access and program-
ming of System.
D. Interactive Services.
System shall be fully activated to receive inter-
active services. Interactive services shall at a
minimum be provided as designated in the Offering.
Grantee warrants, represents and guarantees that
no invasion of privacy can occur in connection
with any aspects of the services provided by
System.
SECTION 2. INTERRUPTION OF SERVICE AND COMPLAINTS.
A. Whenever i_t .is necessary to shut off or interrupt service,
Grantee shall do so during periods of minimum use of the
System.. Unless such interruption is unforeseen .and imme-
diately necessary, Grantee shall give reasonable notice
thereof to subscribers. All costs incurred in repairing
25
System and handling complaints shall be paid by Grantee, ar.~
if service is interrupted or discontinued for more than 42
hours, subscribers shall be credited pro rata for such inter-
ruption. The cause for any such interruption shall be
_ removed and service restored as promptly as reasonably
possible.
g. Grantee shall maintain an office in the Minneapolis/St. Paul
metropolitan area which shall be open during all usual busi-
ness hours, have a listed local telephone, and be so opera-
ted that complaints and requests for repairs or adjustments
may be received at any time, 7 days per week.
(1) Notice of this information shall be provided to all new
subscribers at time of subscription and to existing
. subscribers annually.
(2) Grantee snail not engage in the sale of television sets
or provide other television repair service, but in the
event such service is required, shall promptly notify
subscriber of that need for service.
(3) All complaints by City, subscribers, or other persons
regarding the quality of service, equipment malfunc-
tion, billing disputes, and any other matters relative
to the System, shall be investigated and responded to
_ by a service representative at the location of the
complaint by Grantee within 24 hours. If reasonably
possible, Grantee shall. rectify the cause of all valid
complaints. If a complaint is not rectified within
three days, the complainant may then file the complaint
with City.
2b
(4) City and Grantee shall prepare and maintain a recor3 c~
all complaints made to them. If at any time after the
filing of a complaint with City, City determines, in
its sole discretion, that the complaint represents a
violation of this Franchise, any law, ordinance or
regulation, or represents a failure in the performance
of Grantee pursuant to this Franchise, City may, in
addition to any other remedy available to i'_, issue
written notice specifying the nature of the complaint
and ordering Grantee to appear at the next regularly
scheduled Council meeting. At said Council meeting,
Grantee shall explain its failure to rectify. the
complaint and show cause why the Council should not
institute default proceedings. Failure by Grantee to
appear may result, at the sole discretion of City, in
the termination of this Franchise.
C
27
ARTICLE V.
CONSTRUCTION, INITIAL SERVICE AREA
LINE EXTENSION AND CONSTRUCTION STANDARDS
SECTION 1. INITIAL SERVICE AREA
A. - Engineering and design shall be completed within one year
after date of granting of this Franchise and a significant
amount of construction, in the opinion of City, shall be
completed within one year after Grantee's receipt of all
necessary governmental permits, licenses, certificates and
authorizations.
B. Grantee shall pzovide service to all residences now or here-
after within the initial service area as such area is iden-
tified on the map attached hereto as Exhibit A and made a
part hereof.
C. Construction maps and schedules, included as a part of
Exhibit A are also hereby made a part of this Franchise.
All construction within the initial service area will be
completed according to Exhibit A within eighteen months [the
"construction period"] after the date of issuance of the
Certificate of Confirmation by the Board.
D. The energized trunk cable shall be extended throughout the
initial service area within eighteen months after the date
of issuance of the Certificate of Confirmation by the Board.
All persons and entities along the routs of the energized
trunk cable who desire them will have individual drops
installed and activated within the same eighteen-month
period.
28
E. Grantee shall give residents 30 days' advance notice o, _;;_
commencement of construction affect.inq their property, which
notice shall fully explain how the work will be carried out.
F. The requirements of paragraphs A, B, C and D may be waived
_ by City only upon the occurrence of unforeseen events or
acts of God, but in no event shall the construction period
be greater than five years from commencement of construc-
tion.
SEC': ION 2. LINE EXTENSION POLICY
Grantee's extension of service to those areas not included
in the initial service area shall be done pursuant to the follow-
ing requirements:
A. Residences located outside .the initial service area will be
• provided service upon acceptance of a quote from Grantee.
The quote shall not exceed the cost to Grantee, calculated
on a time and material basis, of extending the cable and
necessary cable equipment to service the residence.
B• Any nonresidential user requesting service will be provided
service upon acceptance of a quote from Grantee. The quote
shall not exceed the cost to Grantee, calculated on a time
and material basis, of extending the cable and necessary
cable equipment to service said user.
SECTION 3. CONSTRUCTION TIMETABLE
A• within 60 days after the granting of Franchise, Grantee
shall apply for all necessary permits, licenses, certifi-
Cates and authorizations which.are required in the conduct
of its business, including, but not limited to, any joint
use attachment agreements, microwave carrier licenses,
29
B.
C.
or any other pezZnits, licenses and authorizations to
~e
granted by duly constituted regulatory agencies having
jurisdiction over the operation of cable communication sys-
tems, or their associated microwave transmission facilities.
If after one year from the commencement of Franchise term,
Grantee has not received the permits, licenses, certificates
and authorizations described in this paragraph, City may
terminate this Franchise without regard to fault for delay
in obtaining such permits, licenses, certificates and
authorizations.
Within 90 days after obtaining all necessary permits,
licenses, certificates and authorizations, Grantee shall
give written notice thereof to City and commence construc-
tion and installation of System.
Any delays in the construction timetable or commencement of
construction shall result in penalties as provided in this
Franchise, and continued delays may result in the termina-
tion of this Franchise and all rights and privileges of
Grantee hereunder.
(1) Grantee shall promptly notify City of all delays
known or anticipated in the construction of
System.
(2 ) city may. extend. the. time for beginning construc-
tion or may extend the construction timetable in
the event Grantee, acting in good faith, experien-
ces delays by reason of circumstances beyond its
control.
30
SEC'T'ION 4. CONSTRUCTION STANDARDS
A. Grantee shall not open or disturb the surface of any streets
or public property without first obtaining a permit from
City for which permit City may impose a reasonable fee to be
_ paid by Grantee. The lines, conduits, cables and other
property placed in the streets and public property pursuant
to such permit shall be located in such part of the street
or public property as shall be determined by City. Grantee
shall, upon completion of any work requiring the opening of
any streets or public property, restore the same, including
the pavement and its grounds to as good a condition as for-
merly and in a manner and quality approved by City, and
shall exercise reasonable care to maintain the dame there-
after in good condition. Such work shall be performed with
diligence and due care, and if Grantee shall fail to perform
the work promptly, to remove all dirt and rubbish and to put
the street or public property back into the condition
required hereby, City shall have the right to put the
streets or public property back into good condition at the
expense of Grantee. Grantee shall, upon demand, pay to City
the cost of such work done or performed, together with an
additional sum as liquidated damages to be determined by
City
8• All wires, conduits, cable and other property and facilities
of Crantee shall be so located, constructed, installei and
maintained as not to endanger or unnecessarily interfere
with the usual and customary trade, traffic and travel upon,
31
or other use of, the streets and public property of City.
Grantee shall keep and maintain all of its property in good
condition, ordez and repair so that the same shall not men-
ace or endanger the life or property of any person. City
_ shall have the right to inspect acid examine at all reason-
able times and upon reasonable notice the property owned or
used, in part or in whole, by Grantee. Grantee shall keep
accurate maps and records of all of its wires, conduits,
cables and other property and facilities located, construc-
ted and maintained in the City. Further, Grantee Shari
without charge, furnish copies of such maps and records frcri
time to time as requested. by City.
C. All wires, conduits, cables and other property and facili-
ties of Grantee, shall be constructed and installed in an
orderly and workmanline manner. All wires, conduits and
cables shalt be installed, where possible, parallel with
electric and telephone lines. Multiple cable configurations
shall be arranged in parallel and bundled with due respect
for engineering considerations.
D. Grantee shall at all times comply with all applicable laws,
ordinances, rules, regulations and codes, federal, state and
local. In any event, the installation, operation or mainte-
nance_ of System shall not endanger of interfere with the
safety of persons or property in the City,
E• Whenever City shall undertake any public improvement which
affects Grantee's equipment or facilities, City shall, with
due regard to reasonable working conditions and with reason-
1
r~
32
able notice, direct Crantee to remove its wires, co::du:~;
cables and other property located in streets or public pr~p_
erty. Grantee shall relocate or protect its wires, con-
. duits, cables and other property at its own expense.
F._ Grantee's plans foF constructing its System, and the con-
struction of the System, shall be in accordance with its
Offering. However, Grantee shall comply with the following
minimum requirements:
(1) Grantee shall construct underground in any area
where another line, either electrical or tele-
phone, has been installed underground.
(2) Grantee shall change from aerial to underground,
at its own expense, in any area where another line
is hereafter changed from aerial to underground.
(3) Grantee shall change from aerial to underground,
without cost to City, whenever requested by City,
which request can be made for a certain area or
areas or for the entire System.
(4) To enable Grantee reasonable opportunity to change
its wiring from aerial to underground, and also to
allow it to pre-wire all new subdivisions or new
development areas, City shall provide Grantee with
written notice of the following, but in no event
shall city have any liability for failure to pro-
vide notice of the following:
(a) tiny changes of which City has knowledge,
or which City may order, regarding a
33
change from aerial to underground of anf
line (telephone or electrical) within
its boundaries.
(b) Any underground trenching that may be
pending.
(c) New subdivisions and development. All
of such subdividers or developers shall
be notified of the Franchise and the
System.
(d) All Franchise changes affecting the wir-
ing of the System.
SECTION 5. CONDITIONS ON USE
A. Grantee shall not place poles or other fixtures where the
same will interfere with any gas, electric or telephone fix-
ture, water hydrant or main.
B. Grantee, at the request of any person holding a buildi.^.g
moving permit and with not less than five days advance
notice, shall temporarily remove, raise or lower its wires,
conduits and cables. The expense of such temporary removal,
raising or lowering of wires, conduits and cables shall be
paid by person requestinq•the same, and Grantee shall have
the authority to require such payment in advance.
C• Grantee-shall have the authority, to the extent the City has
authority to grant the same, to trim trees upon or overhang-
ing any street or public property so as to prevent the bran-
ches of such trees from coming in contact with the wires,
conduits and cables of Grantee. All trimming shall be done
34
under the supervision and direction of City and at the ex-
pense of Grantee. .
D, Nothing contained in this Franchise shall relieve any person
from. liability .arising out of the failure to exercise reas-
onable care to avoid injuring the Grantee's facilities while
performing any work connected with grading, regrading or
changing the line of any street or public place or with t:e
construction or reconstruction of any sewer or water system.
1
3~
ARTICLE VI.
SYSTEM OPERATIONS
SECTION 1. INFORMATION AVAILABILITY
A. Throughout the term of this Franchise, Grantee shall main-
_ tain books and records in accordance with normal and accep-
ted bookkeeping and accounting practices for the Cable
Communications industry, and allow for inspection and copy-
ing of them at reasonable times at its designated office.
The books and records to be maintained by Grantee shall
include the following:
(1) A record of all requests for service;
(2) A record of all subscriber or other complaints, '
and the action taken;
(3) A file of all subscriber contracts;
(4) Grantee policies, procedures and company rules;
and
(5) Financial records.
B• City shall give Grantee at least 24 hours notice before
making inspections of any books or records of Grantee.
C• Grantee shall file with City, at the time of its annual pay-
ment of the franchise fee, as described in this Franchise,
the following:
(1) A financial statement prepared by an independent
certified public accountant showing, in such de-
tail- as acceptable to City, the gross revenues of
Grantee for the preceding fiscal year.
36
(2) Current list of names and addresses of each of=fi-
cer and director and other management personnel,
and if a corporation, each shareholder having
stock ownership of three (3%) percent or more, and
_ if a partnership, all general partners, and if a
general partner is a corporation, the foregoing
information shall be given as to the corporate
general partner.
(3) A copy of each document filed with all federal,
state and local agencies during the preceding fis-
cal year not previously filed with City (each of
these filings shall be provided at the time the
filing is made).
(4) A statement of its current billing practices.
(5) A current copy of its rules.
(b) A current copy of its subscriber service contract.
D. City, its agents and representatives shall have authority to
arrange for and conduct an audit of and copy the books and
records of Grantee. Grantee shall first be given five days
notice of the audit request, the description of and purpose
for the audit, and description, to the best of City's
ability, of the books, records and documents it wants to
review.
SECTION 2. SERVICE CONTRACT
A• Grantee shall receive approval from City of the form and
content of the service contract to be used by Grantee prior
37
to entering into any such service contracts with subsc::~_
ers, and the Grantee shall make no changes in the approved
service contract without prior written approval of City.
The service contract shall include, at a minimum, a schedule
_ of all rates and charges, description of services, instruc-
tions on the use of the system, billing and collection prac-
tices.
g. The service contract shall further contain a statement as
follows:
C.
Grantee shall not, as to rates, charges, service
facilities, rules, regulations or in any other
respect, make or grant any preference or advantage
to any person, nor subject any person to any pre-
judice or disadvantage, provided, that nothin: in
this Franchise shall be deemed to prohibit the
establishment of special contracts or rates for
heads of houehold who are 62 years of age or older
or homebound persons, or for non-profit charitable
organizations, bulk rate discounts for multiple
dwellings, or for promotional or other marketing
activities.
Grantee shall have authority to promulgate such rules, regu-
lations, terms and conditions governing the conduct of its
business as shall be reasonably necessary to enable Grantee
to exercise its rights and perform its obligations under
this Franchise and to assure an uninterrupted service to
1
38
each and all of its subscribers; provided, such rules, req_
ulations, terms and conditions shall not be in conflict with
the provisions of the Franchise, ordinances of City, and
laws of the State of Minnesota or the United States.
D," Each subscriber shall be provided with instructions on fil-
ing complaints or otherwise obtaining information or assist-
ance from Grantee.
E. All items described in this section shall be provided to
each new subscriber at the time a contract is entered or
service begun, and to all existing subscribers not less that:
once each year.
F. The term of a subscriber contract shall not be for more than
12 months duration unless after 12 months the contract may
be terminated by the subscriber at his option at any ti;r,e,
with no penalty to subscriber.
SECTION 3. SUBSCRIBER PRACTICES
A. There shall be no charge for disconnection of any installa-
tion or outlet. If any subscriber fails to pay a properly
due monthly subscriber fee, or any other properly due fee or
charge, Grantee may disconnect the subscriber's service out-
let, provided, however, that such disconnection shall not be
effected until after the later cf (i) 60 days after the due
date of said delinquent fee or charge or (ii) ten days after
delivery to subscriber of written notice of the intent to
disconnect. If a subscriber pays before expiration of the
later of (i) or (ii), Grantee shall not disconnect. After
disconnection, upon payment in full of the delinquent fee or
39
C
D.
B.
charge and the payment of a reconnection charge, Crar.tee
shall promptly reinstate the subscriber's cable service.
Refunds to subscribers shall be made or determined in the
following manner:
(1) If Grantee fails, upon request by a subscriber, to
provide any service then being offered, Grantee
shall promptly refund all deposits or advance
charges paid for the service in question by said
subscriber. This provision does not alter Grant-
ee's responsibility to subscribers under any sepa-
rate contractual agreement or relieve Grantee of
any other liability.
(2) Tf any subscriber terminates any monthly service
because of failure of Franchise to render the ser-
vice in accordance with Franchise, Grantee shall
refund to such subscriber the proportionate share
of the charges paid by the subscriber for the ser-
vices not received. This provision does not re-
lieve Grantee of liability established in other
provisions of this Franchise.
If any subscriber terminates any monthly service prior to
the end of a prepaid period, a proportionate amount of any
prepaid subscriber service fee, using the number of days as
a basis, shall be refunded to the subscriber by Grantee.
Continued failure by Grantee to provide services required by
this Franchise may, in the discretion of City, be cause for
imposition of a penalty or termination of this Franchise.
40
SEC:'ION 4. FRANCHISE FEE, RATES, CHARGES, CT-GANGES IN FErS A,*7D
PROCEDURES
p, Full Regulatory Power Reserved.
(1) All rates and charges shall be subject to regula-
_ lion by City, in a manner to be provided by Coun-
cil. In the absence of any City action taken to
exercise rate regulation, Grantee shall be subject
to the rate regulation provisions provided for
herein, and of the State or its agencies that may
from time to time be applicable.
(2) In addition to the power to regulate rates and
charges, City hereby reserves the right to adopt
regulations governing Grantee's colle:tion of
advance charges and deposits, installation and
reconnection charges, policies and procedures,
disconnection charges, policies and procedures,
and the availability of refunds.
(3) Cost for installing any part of the System will be
a factor in the rate only if such cost was
incurred within City.
(4) The territory for rates. applicable to System shall
be City and all Cities then parties to a joint
powers agreement relating to the System.
B• Franchise Fee.
(1} Throughout the term of this Franchise, Grantee
will pay to City, within 60 days after the end of
41
C.
each fiscal year of Grantee, an annual fee of five
(5%) percent of all gross revenues. No payment
will be allowed of any fee that is different from
five (5%) percent, other than the filing fee and
payment required of the successful applicant as
established to recover the costs of franchising.
Grantee agrees to support any waiver required by
the FCC for the established franchise fee. The
annual fee may be subject to renegotiation at such
time as federal or state authorities no longer
regulate the amount of the fee, but in no event
shall the renegotiated fee be less than five per-
cent (5%).
(2) Payment will be made to City with an itemization
of the gross revenues derived from the services in'
City.
Rates and Other Charges.
(1) Rates and charges charged by Grantee for monthly
service and installation and other charges here-
under shall be uniform, fair and reasonable and
designed to meet all necessary costs of service,
including a fair rate of return on the original
cost, less depreciation, of the properties devoted
to such service (without regard to any subsequent
sale or transfer .price or cost, of such proper-
ties).
(2} For two years after commencement of construction
of System, or until completion of all construction
42
required by Article V, Section 1 of this Fran-
chise, whichever is longer as determined by City,
the maximum rates. shall be the specific rates of
Grantee as included in Exhibit a, attached hereto
and made a part of this Franchise and known as
Grantee Schedule of Rates.
(3) Service requests for maintenance or repair of
Grantee's property shall be performed at no charge
to a subscriber. If such maintenance or repair is
required as a result of damage caused by subscrib-
er, Grantee may charge as a maximum its direct
costs for material and labor for service calls to
subscribers' homes.
(4) Rates for services not initially included in Exhibit B
shall be established only by amendment of this
Franchise.
D. Rate Changes.
(1> No rate change shall be approved that would result
in different rates or charges for service to simi-
larly situated subscribers in the rate territory,
in the sole opinion of City.
(2) No rate or charge change will be approved unless
all of the standards for review have been consi-
dered and evaluated and determinations have been
made, all pursuant to this Franchise.
(3) The standards for reviewing a proposed rate change
will include at least the following:
43
(a) The ability of the Grantee to render
System services and to derive a reason-
able profit therefrom under the existing
rate schedule and proposed rate sched-
ule;
(b) The revenues and profits derived from
System services;
(c) Tax benefits received by Grantee, its
partners or shareholders, as the result
of their investment in the System;
(d) Cash flow derived from System services;
(e) The efficiency of Grantee;
(f) The quality of the service offered by
Grantee;
(4) The original cost of the System, less
depreciation;
(h) A fair rate of return with respect to
investments having similar risks to that
of providing cable communication servi-
ces;
(i) The extent to which Grantee has adhered
to the terms of this Franchise;.
(7) Fairness to residents and subscribers;
(k) Capital expenditures by Grantee in pro-
. viding updated technology and service to
subscribers;
44
(1) The extent to which Grantee has then pro-
vided service to schools, hospitals,
libraries, publicly owned or leased
buildings and similar institutions
_ within City;
(m) Such other factors as City may deem rel-
evant.
(4) The procedures to be followed in changing a rate
or charge shall include at least the following:
(a) An application for a rate change will be
submitted to City and a copy filed with
the Board.
(b) The application shall be supported by
statistical and other proof indicating
that the existing rate or charge is
inadequate and unreasonable and that the
proposed increases are required to
enable Grantee to render service to ful-
fill its obligations under this Fran-
chise and to derive a reasonable prof_t
therefrom.
(c) The application shall include current
information and financial information
with at least the following:
1. Balance sheet;
2. Income statement;
45
3.
4.
5.
6.
7.
8
9.
Statement of sources and ap-
plications of funds;
Detailed supporting schedules
of expenses, income, assets
and other items as may be re-
quired by City;
Statement of current and pro-
jected subscribers;
A current list of rates and
charges of Grantee applicable
to systems owned or operated
by its parent .corporation or
other subsidiaries or affili- '
ates of its parent corporation
at~ other locations;
A current list of rates and
charges for other systems in
the seven county Metropolitan
area;
Cash flow derived from System
services since the commence-
ment of this Franchise; and
Statement of tax benefits re-
ceived by Grantee, its part-
ners or shareholders, as a
result of their investment in
System.
46
(d) City will notify Grantee and Board and
schedule a public hearing on the request
within two weeks from the date of
receipt of the application and the deter-
_ urination by City of its completeness.
Grantee will notify the public through
providing notice for one week, each day
between 7:00 p.m. and 9:00 p.m. on two
channels of the date, place and time of
the hearing. City will publish notice
ten days prior to hearing in its
official newspaper.
(e) After closing the public hearing, City
will have 31 days within which to make
its determination. Any approved change
in rates or charges shall become
effective upon the date determined by
City.
(f) If City fails to approve the requested
change or rates or charges within the 31
day period, Grantee may appeal pursuant
to the then applicable procedures of the
Board.
(g) City may utilize a rate consultant to
advise it on proposed rate changes and
. to assist ~it in maintaining uniform
47
rates within the rate territory. A rate
consultant may be any person who has
_ sufficient background and experience, in
the sole opinion of City, to properly
_ evaluate and analyze rates and charges.
(h) All costs for the review of an applica-
tion for a rate or charge change shall
be paid by Grantee upon demand of City.
The costs shall include, but not be lim-
ited to, attorneys' fees, and the reas-
onable value of services (as determined
by City) rendered by City or any city
employees, agents or representatives of
City.
(1) Any time limit may be waived only if
City and Grantee consent.
E. Periodic Reviews and Renegotiation.
The field of cable communications is a relatively new
and rapidly changing one which shall no doubt see many regs_
latory, technical, financial, marketing and legal changes
during the term of the Franchise period. Therefore, in
order to provide for a maximum degree of flexibility in this
Franchise, and to help achieve a continued advanced and mod-
ern system, the following renegotiation provisions will
apply;
(1) City reserves the right to adopt rules and requla-
tions controlling the procedures and subjects for
48
periodic reviews and renegotiation. ~ In the
absence of any City action taken to exercise these
rights, Grantee shall be subject to at least the
procedures and subjects described in this section.
(2> City may require, at its sole discretion, System
performance evaluation sessions at any time during
the term of this Franchise or as required by fed-
eral or state law. Such evaluation sessions shall
be conducted by City within 30 days of the third,
fifth and tenth anniversary dates of the effective
date of acceptance of this Franchise by Grantee.
(3) All evaluation sessions shall be open to the pub-
lic and notice of sessions published in the same
way as a legal notice. Grantee shall notify its
subscribers of all evaluation sessions by
announcemer..t on at least two channels of the
System between the hours of 7:00 p.m. and 9:00
p•m. for five consecutive days preceding each ses-
sion.
(4) Topics which may be discussed at any evaluation
session may include, but not be limited to, ser-
vice rate structures; franchise fee; penalties,
free or discounted services; application of new
technologies; system performance; services provid-
ed; programming offered; community access; local
origination; customer complaints; privacy; amend-
ments to this Ordinance; judicial, Board and FCC
49
rulings; line extension policies; ,
City rules.
(5) During a review and evaluation~by
shall fully cooperate with City and
without cost such information and
City may request to reasonably
service.
ind Grantee or
City, Grantee
shall provide
documents as
perform the
(6) If at any time during its review, City determines
that reasonable evidence exists of inadequate Sys-
tem performance, it may require Grantee to perform
tests and analyses directed toward such suspected
inadequacies at the Grantee's own expense. Grant-
ee shall fully cooperate with City in performing
such testing and shall prepare results and a re-
port, if requested, within 30 days after notice.
The report prepared by Grantee shall include at
least:
(a) A description of the problem in System
performance Which precipitated the spe-
cial tests.
(b) What System component was tested.
(c) The equipment used and procedures
employed in testing.
(d) The method, if any, by which such System
performance problem was resolved.
(e) Any other information pertinent to said
tests and analyses which may be required
50
by City, or determined when the test is
performed.
City may require that tests be supervised at
Grantee's expense by a consultant designated by
_ City. The consultant shall sign all records of
special tests and forward to City such records
with a report interpreting the results of the
tests and recommending actions to be taken.
(7) As a result of a periodic review or evaluation
session, City may require Grantee to modify the
System or to provide additional services. Grantee
will comply with any such requirement of the City
unless, in the sole opinion of City, technology
does not permit it, or Grantee establishes to the
satisfaction of City that the cost would prohibit
the implementation of Lhe modification or the ad-
ditional services.
SECTION 5. FRANCHISE RENEWAL
A. Grantee may apply for renewal of this Franchise not
earlier than 18 months prior to the expiration of this
Franchise on forms provided by City. The renegotiation
period shall commence not less than 12 months before
the expiration of the Franchise Term.
B• Grantee may be approved, and this Franchise or modifi-
cation to it may be renewed or extended, by City in
accordance with the then existing rules of the FCC, the
51
Board, the City and all other applicable laws, or~~-
nances, rules or regulations.
C, Nothing in this Franchise shall be construed to require
renewal or extension of this Franchise.
D,. City shall conduct an investigation and evaluation of
the Grantee and the System and the renewal proposal.
This investigation and evaluation shall be completed by
City within six months after receipt of the application
and determination by City of its completeness.
fi. Renewal of this Franchise may not be for more than 15
years, unless otherwise permitted by federal or state
law.
52
ARTICLE VII.
(Reserved)
0
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53
ARTICLE VIII.
INDENIIdIFICATION, INSURANCE, LETTER OF
CREDIT AND BOND
SECTICN 1. GENERAL
A._ All rights of City pursuant to indemnification, insurance,
letter of credit or bond, as provided for by this Franchise,
are in addition to all other rights the City may have under
this Franchise or any other ordinance, rule, regulation or
law.
B. The exercise or failure to exercise by City of any rights
pursuant to any section of this Franchise shall not affect
in any way the right of City to subsequently exercise any
such rights or any other right of City under this Franchise
or any other ordinance, rule, regulation or law.
SECTION 2. INDEP'IIdIFICATION AND INSURANCE
A. Grantee shall fully indemnify, defend and hold harmless,
City, its officers, boards, commissions, elected officials,
agents and employees against any and all costs, damage,
expense, claims, suits, actions, liability and judgments for
damages, including but not limited to,~ expenses for legal
fees, whether suit be brought or not, and disbursements and
liabilities incurred by Cify in connection with:
(l) Damage to persons or property, in any way arising
out of or through the acts or omissions of Grantee
or City, their respective servants, officials,
agents or employees or to which Grantee's or
City's negligence or that of their respective ser-
54
vents, agents, officials or employees shall in any
way contribute;
(2) Arising out of any claim for invasion of the right
of privacy, for defamation of any person, firm or
_ corporation, or the violation or infringement of
any copyright, trademark, trade name, service mark
or patent, or of any other right of any person,
firm or corporation, except claims because of
City's own programming; and
(3) Arising out of Grantee's failure to comply with
the provisions of this Franchise, any federal,
state or local law, ordinance or regulation appli-
cable to Grantee or the System.
(4) Any and all claims which Grantee may now or here-
after have or claim to have against City, its ser-
vants, agents, employees or officials, due to or
arising out of damage to any of Grantee's property.
or equipment, including, without limitation,
resulting or consequential loss of income, injury
to reputation, or any other resulting or conse-
quential damages of any kind, caused by or
resulting from acts or omissions of City or any of
its servants, agents, employees or officials.
B• If suit be brought or threatened against City, either inde-
pendently or jointly with Grantee, or with any other person
or municipality, Grantee, upon notice given by City, shall
defend City at the cost of Grantee, and if final judgment is
obtained against City, either independently or jointly with
55
Grantee, or any other defendants, Grantee shall indem;.~:1~
City and pay such judgment with all costs and satisfy and
discharge the same.
C. City reserves the right to cooperate with Grantee and parti-
cipate in the defense of any litigation either through inter-
vention or otherwise. Grantee shall pay upon receipt of
written demand from City, all expenses incurred by City i:.
defending itself with regard to any matters in this section.
These expenses shall include, but not be limited to, attcr-
neys' fees, and the reasonable value of services (as deter-
mined by City), rendered by City or any employees, agents or
representatives of City. .
SECTION 3. INSURANCE
A. Grantee shall maintain liability insurance covering i*.s obli-
gations of indemnification provided for in or as a result o~
the exercise of this Franchise covering both the City and
Grantee and shall maintain said insurance during the entire
term of this Franchise in the minimum amount of:
(l) 5500,000 for property damage to any one person;
(2) 52,000,000 for property damage in any one act or
occurrence;
(3) 51,000,000 for personal injury to any one person;
and
(4) S2,000,000 for personal injury in any one act or
occurrence.
B• Such insurance shall be with a company acceptable to City
and shall otherwise be in form and substance acceptable to
56
City. Such insurance policy with written evidence of pay-
ment of required premiums shall be filed and maintained with
City during the term of the Franchise. The above minimum
amounts shall be changed from time to time by Grantee as
- requested by City. Grantee shall immediately give notice to
City of any threatened or pending litigation affecting this
insurance.
C. Neither the provisions of this section nor any damages re-
covered by City shall be construed to, or shall, limit t.~ie
liability of Grantee.
D. No recovery by City of any sum by reason of the Letter of
Credit or Bond required in this Franchise shall be any limi-
tation upon the liability of Grantee to City under the ter;;ts
of this section, except that the sum so received by City
from such Letter of Credit or Bond shall be deducted from a
recovery under this section, if for the same act or occur-
rence.
E. All insurance policies maintained pursuant to this Franchise
shall contain the following endorsement:
It i~ hereby understood and agreed that this in-
surance policy may not be cancelled nor the inten-
tion not to renew be stated until 60 days after
receipt to City, by registered mail, of written
notice of such intention to cancel or not to
renew.
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SEC': ION 4. LETTER OF CREDIT
p, At the time of acceptance of this Franchise, Grantee shall
deliver to City an irrevocable and unconditional Letter of
Credit, in form and substance acceptable to City, from a
_ National or State bank approved by City, in the amount of
550,000. °
g. The Letter of Credit shall provide that funds will be paid
to City, upon written demand of City, and in an amount sole-
ly determined by City in payment for penalties charged pur-
suant to paragraph C of this section, in payment for a::f
monies owned by Grantee pursuant to its obligations under
this Franchise, or in payment. for any damage incurred as a
result of any acts or omissions by Grantee pursuant to this
Franchise.
C. In addition to recovery of any monies owed by Grantee to
City or damaoes to City as a result of any acts or omissions
by Grantee pursuant to the Franchise., City in its sole dis-
cretion may charge to and collect from the Letter of Credit
the following penalties:
(11 For failure to complete System construction in accor-
dance with Grantee's initial service area plan,
unless City approves the delay, the penalty shall
be Two Hundred Dollars (S200.00) per day for each
day, or part thereof, such failure occurs or con-
tinues.
(2) For failure to provide data, documents, reports or
information or to cooperate with City during an
58
--,
i~
application process or System review, the peraity
shall be Fifty Dollars (550.00) per day for each
day, or part thereof, such failure occurs or con-
tinues.
_ (3) For failure to comply with any of the provisions
of this Franchise for which a penalty is not other-
wise specifically provided pursuant to this Para-
graph C, the penalty shall be Fifty Dollars
(550.00) per day for each day, or part thereof,
such failure occurs or continues.
(4) For failure to test, analyze and report on the
performance of the System following a request by
City, the penalty shall be Fifty Dollars (SS0.00)
per day for each day, or part thereof, such fail-
ure occurs or continues.
(5) For failure by Grantee to modify the System or to
provide additional services Within 45 days after
required by City following a periodic review or
renegotiation session the penalty shall be Two
Hur,Cred noll~.s (S2J0.00) per day for each day, or
part thereof, such, failure occurs or continues.
(6) Forty-five days following notice from City of a
failure of Grantee to comply with construction,
operation or maintenance standards, the penalty
shall be Two Hundred Dollars (5200.00) per day for
each day, or part thereof, such failure occurs or
continues.
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D.
E.
F.
(7) For failure to provide the services Grantee has
proposed, including but not limited to the imple-
mentation and the utilization of the access chan-
nels and the making available for use of the
equipment and other facilities to City, the penal-
ty shall be One Hundred Dollars (5100.00) per day
for each day, or part. thereof, such failure occurs
or continues.
{8) Each violation of any provision of this Franchise
shall be considered a separate violation for which
a separate penalty can be imposed.
Exclusive of the contractual penalties set out above in this
secticn, a violation of any provision of this Franchise is a
misdemeanor.
whenever City finds that Grantee has violated one or more
terms, conditions or provisions of this Franchise, a writte:,
notice shall be given to Grantee informing it of such viola-
tion. At any time after three days following notice, Cit•~
may draw from the Letter of Credit all ~
penalties and other
monies due City.
whenever a penalty has been assessed, Grantee ma
ten days of notice, notify City that there is Y~ withi;
to whether a violation or failure has a dispute as
in fact, occurred.
Such notice by Grantee to City shall specify with particu-
larity the matters disputed by Grantee.
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(1) City shall hear Grantee's dispute at the next reg-
ularly scheduled Council meeting. City shall sup-
plement the Council decision with written findings
of fact.
(2) Upon a determination by City that no violation has
taken place, City shall refund to Grantee without
interest all monies drawn from .the Letter of Cred-
it by reason of the alleged violation, less all
[1
0
costs and attorneys' fees incurred by City as a
result of Grantee's appeal.
~. I f said Letter of Credit or any subsequent Letter of Cred; t
delivered pursuant hereto expires prior to 15 months after
the expiration of the term of this Franchise, it shall be
renewed or replaced during the term of this Franchise tc
provide that it will not expire earlier than 15 months after
the expiration of this Franchise. The renewP~ ~,- .e,,, .,,...~
Letter of Credit shall be on the same form and with a banx
authorized herein and for the full amount stated in para-
graph A of this section.
H• If City draws upon the Letter of Credit, or any subsequent
Letter of Credit delivered pursuant hereto, in whole or in
part, Grantee shall replace the same within three days and
shall deliver to City a like replacement Letter of Credit
for the full amount stated in Paragraph A of this section as
a substitution of the previous Letter of Credit.
I• If any Letter of Credit is not so replaced, City may draw on
said Letter of Credit for the whole amount thereof and hold
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the proceeds, without interest, and use the proceeds t~ Y~:.
costs incurred by City in performing and paying for any o:
all of the obligations, duties and responsibilities of
Grantee under this Franchise that are not performed or paid
for by Grantee pursuant hereto, including attorneys' fees
incurred by the City in so performing and paying. The fail-
ure to so replace any Letter of Credit may also, at t::e
option of City, be deemed a default by Grantee under t..~;•s
Franchise. The drawing on the Letter of Credit by City, and
use of the money so obtained for payment or performance o~
the obligations, duties and responsibilities of Grantee
which are in default, shall not be a waiver or release o:
such default.
J. The collection by City of any damages, monies or penalties
from the Letter of Credit shall not affect any other riy:
or remedy available to City, noz shall any act, or failure
to act, by City pursuant to the Letter of Credit, be dee:^e~
a waiver of any right of City pursuant to this Franchise or
otherwise.
SECTION S. BONDS
A• At the commencement of this Franchise, and at all times
thereafter until Grantee has liquidated all of its obliga-
tions with Cites Grantee shall maintain with City a bond i:~
the sum of Three Hundred Thousand Dollars ($300,000.00) in
such form and with such sureties as shall be acceptable to
City, conditioned upon the faithful performance of Grantee
of this Franchise and the acceptance hereof given by Grantee
62
1
B
C.
and upon the furt.'~er condition that in the event Gra;;t~o
shall fail to comply with any law, ordinance or regulation,
there shall be recoverable jointly and severally from the
principal and surety of the bond, any damages or losses
suffered by City as a result, including the fLll amount of
any compensation, indemnif°i cation or cost of removal of any
property of Grantee, including a reasonable allowance for
attorneys' fees and costs (with interest at two (2%) perce^~
in excess of the then prime rate), up to the full amount of
the bond, and which bond shall further guarantee payment by
Grantee of all claims and liens against City or any public
property, and taxes due to City, which arise by reason of
the construction, operation, maintenance or use of the
System.
The rights reserved by City with respect to the bond are ir.
addition to all other rights the City may have under this
Franchise or any other law.
City may, in its sole discretion, reduce the amount of the
bond.
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ARTICLE IX.
DEFAULT
c~;,TION 1. NOTICE AND DEFAULT
~, City shall give written notice of default to Grantee if
_ City, in its sole discretion, determines that Grantee has:
(1> Violated any provision of this Franchise or the
acceptance hereof, or any rule, order, regulation
or determination of the City, state or federal
} government, not in conflict with this Franchise;
t
j (2} Attempted to evade any provision of this Franchise
or the acceptance hereof;
(3) Practiced any fraud or deceit upon City or sub-
scribers;
(4) Made a material misrepresentation of fact in the
application for or negotiation of the Franchise;
or
fs) Incurred a 12 month or more delay in the con-
struction schedule.
~B• If Grantee fails to cure such default within 30 days after
the giving of such notice (or if such default is of such a
character as to require more than 30 days within which tc
cure the same, and Grantee fails to commence to cure the
-same .w,i_thin said 30 day period-and tr:::e~:t.: foils to us.
reasonable diligence, in City's sole opinion, to cure such
default as soon as possible), then, and in any event, such
default shall be a substantial breach and City, at~ its
option, may elect to either cure the default or terminate
this Franchise as follows:
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(1) City may cure any default for the account at at
the cost and expense of Grantee and all
su ms so
expended by City, including attorneys' fees
incurred in curing such default, whether su it be
_ brought or not, with interest thereon at
a rate
per annum two (2%) percent in excess of the then
prime rate, shall be paid be Grantee to City u
o
, p
n
demand, and failure to so pay upon demand likewise
may be deemed by City to be a default under this
Franchise.
(2) City may place the issue of revocation and termi-
nation of the Franchise before the Council
at a
regular meeting of the City Council. If City
decides there is cause or reason to terminate, the
following procedure shall be followed:
(a) City shall provide Grantee with a writ-
ten notice of the reason or cause for
proposed. termination and shall allow
Grantee a minimum of 30 days subsequent
to receipt of the notice in which to
correct the default.
(b) Grantee shall be provided with an oppor-
Sunity to be- heard at a public hearing
prior to any decision to terminate this
Franchise.
(c) In the event that City determines to
terminate this Franchise, the Grantee
65
shall have a period of 30 days,
beginning the day next following written
notice to Grantee of such decision,
within which to file an appeal with the
Board, pursuant to the then applicable
statutes and procedures of the Board.
During such 30 day period and until the
Board determines the appeal, if an
appeal is taken, the Franchise shall
remain in full force and effect, unless
the term thereof sooner expires.
(d) If Board approves of the action of City,
the Franchise shall terminate immedi=
ately. If Board disapproves of the
action of City, the Franchise shall
remain in full force and effect for the
full term hereof unless sooner termi-
nated in accordance with the provisions
hereof, or applicable law or rules of
Board.
SECTION 2. CROSS DEFAULT
A. If Grantee should be in default under any of the terms or
-provisions of .,a_fr~nchise, or acceptance thereof, of another
city (then a party to a Joint Powers Agreement relating to
.the System), at City's option, to be exercised by notice to
Grantee given at any time while such default exists, such
default may be deemed by City a default by Grantee under
this Franchise.
66
B This section, or any other section or provisio^ og th~a
Franchise, shall not be deemed to
incorporate into this
Franchise by reference any other franchises.
n
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ARTICLE X.
FORECLOSURE, RECEIVERSHIP AND ABANDONMENT
,.TrcN 1. FORECLOSURE
5~;,..
Upon the foreclosure or other judicial sale of all or a part
of the System, or upon the termination of any lease covering all
or part of the System, Grantee shall notify City of such fact and
such notification shall be treated as a notification that a
change in control of Grantee has taken place, and the provisions
of this Franchise governing the consent to transfer or change in
ownership shall apply without regard to how such transfer or
change in ownership occurred.
S~CTICN 2. RECEIVERSHIP
City shall have the right to cancel this Franchise 120 davs
after the appointment of a receiver or trustee to take over ar.d
conduct the business of Grantee, whether in receivership,
reorganization, bankruptcy or other action or proceeding, unless
such receivership or trusteeship shall have been vacated prior to
t}ie expiration of said 120 days, or unless:
(a) within 120 days after his election or appointment, such
receiver or trustee shall have, fully complied with all
the provisions of this Franchise and remedied all
defaults hereunder; and
(b) Such receiver or trustee, within said 120 days, shall
have executed an agreement with City, duly approved by
the Court having jurisdiction in the premises, whereby
b8
such receiver or trustee assumes and agrees to be bc~.:-_
by each and every provision of this Franchise.
SECTION 3. ABANDONMENT
Grantee may not abandon any portion of System without having
9iyen not less than three months prior notice to City and Board.
Further, Grantee may not abandon any portion of System without
compensating City for damages resulting from the abandonment.
The amount of damages resulting from abandonment and due City
shall be determined in the sole discretion of City. An abandon-
ment of any portion of the System as determined in the sole dis-
cretion of City shall be a cause for termination of this
Franchise by City.
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ARTICLE XI.
PURCHASE OF SYSTEM
5~~?'ION 1. GENERAL
A, If at any time Grantee receives a bona fide purchase offer
for the System which Grantee is willing to accept, a com-
plete copy of such offer shall promptly be ,,
given to City an,.
City shall have the right to purchase the System accordi:~y
to the terms of that offer. City shall exercise such righ~
by submitting to' Grantee, within six months after City's
actual receipt of the bona fide offer, notice that Ci~y
desires to purchase the System pursuant to said offer. If
City does not exercise such right the System may be sold,
but only on the terms submitted to City. If any changes are
made in the purchase offer given to City, such purchase
offer, as so changed, shall again be given to City and Cit•:
shall have six months from actual receipt by City of the
offer, as changed, within which to exercise its right to
purchase the System pursuant to the offer, as changed, all
as above provided. If City does not exercise its right to
purchase the System pursuant to any offer given to City pur-
suant to this paragraph, and the System is not sold to the
buyer and on the terms set out in the offer given to City,
then the fight o~ City ~o purchase the_System shall con-
tinue, and all subsequent purchase offers shall be given to
City pursuant to this paragraph. Also, the City's right to
purchase pursuant to this paragraph shall survive every sale
to a buyer and shall continue and be binding upon every
buyer of the System.
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UFon forfeiture, revocation or termination of this F:a::_
B•
chise, or at the normal expiration of the Franchise term,
City shall have the right to purchase the Sys~em. Such
right shall be exercised upon written notice to Grantee
giver, within six months after the o:currence of any such
event.
Sr~;';ON 2. PROCEDURES
In the event City elects to exercise its right to purchase
t;:e System as provided in Section 18 of this Article, the follow-
ing shall t.`._n apply:
p, City and Grantee shall negotiate all terms and conditions of
the purchase of the System.
g. If City and Grantee cannot agree upon the terms and condi-
~ions of the purchase, City shall have the right to proceed
to arbitration. Arbitration shall commence and proceed
according to applicable t4innesota law except as follows:
(1) The parties shall, within 15 days of City's deci-
sion to proceed to arbitration, appoint one arbi-
trator each who is experienced and knowledgeable
in the purchase and valuation of business
property. Arbitrators shall each agree upon the
selection of a third arbitrator, similarly quali-
~ied~ within 15 days _after appointment of the
second arbitrator.
(2) within 30 days after appointment of all arbitra-
tors and upon ten days written notice to parties,
71
the arbitrators shall commence a hearing on the
terms and conditions of the purchase in dispute.
(3) The hearing shall be recorded and may be trans-
cribed at the request of either party. All hear-
ing proceedings, debates and deliberations shall
be open to the public and at such times and places
as contained in the notice or as thereafter pub-
licly stated in the order to adjourn.
(4) The arbitration panel shall be required to deter-
mine the purchase price of the System according to
the standards established in paragraph C below.
(5) At the close of the hearings and within 30 days,
the arbitrators shall prepare written findings and
make a written decision agreed upon by a majority
of the arbitrators which shall be served by mail
upon City and Grantee.
(6) The decision of a majority of the arbitrators
shall be binding upon both parties except that
City may, in its sole discretion and without any
penalty or cost to City of any kind, withdraw its
offer to purchase within 90 days of receipt of the
final decision of .a majority of the arbitrators.
(7) Either party may seek judicial relief to the ex-
tent authorized under Minnesota Statutes, M.S.A.
§572.09 and §572.19 as the sme may be amended,
and, in addition, under the following circum- ,
stances:
72
(a) A party fails to select an arbitrator;
(b) The arbitrators fail to select a third
arbitrator;
(c) One or more arbitrator is unqualified;
(d) Designated time limits have been ex-
ceeded;
(e) The arbitrators have not proceeded expe-
ditiously; or
(f) Based upon the record the arbitrators
abused their discretion.
(8) In the event a Court of competent jurisdiction
determines the arbitrators have abused their dis-
cretion, it may order the arbitration procedure
repeated and issue findings, orders and direc-
tions, with costs of suit to be awarded to the
prevailing party.
(9) Cost of arbitration shall be borne equally.
C. The purchase price of the System to be paid by City shall be
the cost less depreciation (as shown on the books and rec-
ords of Grantee) or market value, whichever is less. Good-
will shall not be included in the purchase price of the
System.
D• Grantee. .expressly waives _its _rights, if any, to relocat'
ion
costs that might otherwise be provided by law.
E• The date of valuation shall be no earlier than the day fol-
lowing the date of revocation, forfeiture, expiration or
termination of this Franchise and no later than the date
City makes a written offer for the System.
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ARTICLE XII.
MISCELLANEOUS
~.,.T•nN 1.. TRANSFER OF OWNERSHIP OR CONTROL
5:-
~• This Franchise shall not be assigned or transferred, eit!:er
in whole or in part, or leased, sublet or mortgaged in ary
manner, nor shall title theretc, either legal or equitab:e
or any right, interest or property therein, pass to or ves~
in any person without the prior written consent of Ci .~•,
which consent shall not be unreasonably withheld. Furt::e:,
Grantee shall not sell or transfer any stock or owners:::,
interest so as to create a new controlling interest excer:
with the consent of City, which consent shall not be unrea-
sonably withheld. The transfers described in thi's paragra~^
shall, in the sole discretion of City, be considered sale c~
transfer of Franchise within the meaning and intent in to
following paragraph.
B. Any sale or transfer of Franchise, including a sale or
transfer by means of a fundamental corporate change,
requires the written approval of City. Any sale or transfer
of Franchise shall be subject to the provisions of Boar:
rules prohibiting certain ownership. The parties to the
sale or transfer of Franchise shall make~a written request
- _ to .City_fo~ its_consent.._City_~hall reply in writing withi^
30 days of actual receipt of the request and shall indicate
its approval of the request or its determination that a pub-
lic hearing is necessary. City shall conduct a public hear-
inq on the request within 30 days of such determination if
74
it determines that a sale oz transfer of Franc::.se -;•,•
adversely affect the Grantee's subscribers.
~ Unless otherwise already provided for by local Iaw, notice
of any such hearing shall be given 14 days prior to the
. hearing by publishing notice thereof once in a newspaper o°
general circulation in the City. The notice shall contain
the date, time and place of the hearing and shall brie __°l~
state the substance of the action to be considered b_y Cit;~.
within 30 days after the public hearing, City shall approve
or deny in writing the sale or transfer request.
D• Any sale or transfer of Franchise, including a sale or
transfer by means of a fundamental corporate change,
requires notification to the Board by City. The notifica-
tion shall be accompanied by the written certification c~
the transferee that it meets all of the requirements estab-
lished by City for original Grantee including but no`
limited to technical ability and financial stability. City
shall cause to be sent to the Board a copy of all public
documents related to sale or transfer of the Franchise.
E• ?he parties to the sale or transfer~of only this Franchise,
without the inclusion of the System in which at least sub-
stantial construction has commenced, shall be required to
- establish-to-the--sole satisfaction of City that the sale or
transfer of only this Franchise is in the public interest.
F• For purposes of this section, fundamental corporate change
means the sale or transfer of a controlling interest in the
stock of a corporation or the sale or transfer of all or a
75
majority of a corporation's assets, merger (including a p3:_
ent and its subsidiary corporation), consolidation oz~ crea-
tion of a subsidiary corporation. For the purposes of this
Section, fundamental partnership change means the sale or
transfer of all or a majority of a partnership's assets,
change of a general partner in a limited partnership, charge
frog:. a limited to a general partnership, incorporation of a
partnership, or change in the control of a partriers:;Y.
~, The word "control", as used herein, is not limited to major
stockholders, but includes actual working control in wha~-
ever manner exercised. As a minimum, "control", as used
herein, means a legal or beneficial interest (even though
actual working control does not exist) of at least five (5°;)
percent or more. Every change, transfer or acquisition o~
control of Grantee shall make the Franchise subject to ca^-
cellation unless and until City shal_ have consented i:~
writing thereto, which consent shall not be unreasonab~•.
withheld. For the purpose of determining whether it shad
consent to such change, transfer or acquisition of control,
City may inquire into the qualifications of the prospectice
controlling party, and Grantee shall assist City in any suc
inquiry and pay all costs incurred by City in so inquiring,
including City staff time at a value determined by City.
H• In the absence of extraordinary circumstances, City will not
approve any transfer or assignment of the Franchise prior to
substantial completion of construction of System, as deter-
mined solely by City.
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I In no event shall a transfer or assignment of owners:,~r ~_
control be approved without tranferee becoming a si9nator to
this Franchise.
J• Any transferee shall be subordinate to any right, title oz
_ interest of City.
SECTION 2. REMOVAL AFTER TERMINATION OR REVOCATION
A, At the expiration of the term for which this Franchise ~s
granted, or upon its revocation or termination, as provided
for herein, City shall have the right to require Grantee to
remove, at Grantee's expense, all or any portion of the Sys-
tem from all streets and public property within City. In so
removing the System, Grantee shall refill and compact at i;.s
own expense any excavation that shall be made~by it an~
shall leave all streets and public property in as good a
condition as that prevailing prior to Grantee's removal c~
the System, and without affecting, altering or disturbing ;..
any way electric, telephone- or other utility cables, wires
or attachments. City shall have the right to inspect and
approve the condition of such streets and public property
after removal. The Letter of Credit, Bonds, Insurance, In-
demnity and Penalty provisions of this Franchise shall re-
main in full force and effect during the entire term of
_ removal.
B• If, in the sole discretion of City, Grantee has failed to
commence removal of System, or such part thereof as was des-
ignated by City, within 30 days after written notice of
77
City's demand for removal is given, or if Grantee has `a__~,
to complete such removal within one year after written
notice of City's demand for removal is given, City shall
have the right to exercise one of the .following options:
(1) Declare all right, title and interest to the Sys-
tem to be in City with all rights of ownership
including, but not limited to, the right to oper-
ate the System or transfer the System to another
for operation by it.
(2) Declare the System abandoned and cause the System
or such part thereof, as City shall designate, to
be removed at no cost to City. The cost of said
removal shall be recoverable from the Letter of
Credit, Bonds, Insurance, Indemnification and Pen-
alties provided for in this Franchise, or from
Grantee directly as a liquidated damage.
C. Any portion of the System not designated by City for
removal shall belong to and become the property of City
without payment to Grantee and Grantee shall execute
and deliver such documents, as City shall request, in
form and substance acceptable to City, to evidence such
ownership by City.
SECTION 3. WORK PERFORMED BY OTHERS
A• Grantee shall give notice to City specifying the names
and addresses of any other entity, other than Grantee,
which performs services pursuant to this Franchise,
provided, however, that all provisions of this Fran-
chise remain the responsibility of Grantee.
78
B, All provisions of this Franchise shall apply to any
subcontractor or others performing any work or services
pursuant to the provisions of this Franchise.
SECTION 4. INTEREST RATE
For purposes of this Franchise, prime rate shall mean
the interest charged from time to time by the First National
Bank of Minneapolis for 90 day unsecured loans to commercial
borrowers of the highest credit rating.
SECTION 5. GENERAL PROVISION ON RIGHTS AND REMEDIES
A. All rights and remedies given to City by this Franchise
shall be in addition to and cumulative with any and all
other rights or remedies, existing or implied, now or
hereafter available to City at law or in equity, and
such rights and remedies shall not be exclusive, but
each and every right and remedy specifically given by
this Franchise or otherwise existing or given may be
exercised from time to time and as often and in such
order as may be deemed expedient by City, and the exer-
cise of one or more rights or remedies shall not be
deemed a wa~,ver of the right to exercise at the same
time or thereafter any other right or remedy. No delay
or omission of City in the exercise of any right or
remedy-shall-impair-any such right or remedy, nor shall
any such delay or omission be construed to be a waiver
of or acquiescence to any default. The exercise of any
such right or remedy by City shall not release Grantee
from its obligations, or any liability, under this
Franchise.
79
~ ~... ,
In addition to all other remedies granted or available
B•
to City, City shall be entitled to the restraint by
injunction of the violation, or attempted or threatened
violation, by Grantee of any terms or provisions of
this Franchise, or to a decree compelling performance
by Grantee of any term or provision of this Franchise.
SL~TION b. APPLICABLE LAWS AND COURT DECISIONS:
SE4ER.ABILITY
-_.__
p. Grantee and City shall, at all times, comply with all laws,
"ordi`nances and regulations of federal, state and Ci~v
government relating to System and this Franchise.
B. If any law, ordinance or regulation shall require or perm:
Grantee to perform any service or shall prohibit Grantee
from performing any service which may be in conflict wi"
the terms of this Franchise, then as soon as possible fol-
lowing knowledge thereof, Grantee shall notify City of the
point of conflict believed to exist between such law, ordi-
nance or regulation.
~• If City determines that a material provision of this Fran-
chise is affected by such law, ordinance or regulation, City
shall have the right to amend, modify, alter or repeal ary
of the provisions of this Franchise to such reasonable ex-
tent as may be necessary to carry out the intent and purpose
of this Franchise, and Grantee hereby agrees to such amend-
ment, modification, alteration or repeal of this Franchise.
D• To the extent any provision of the Offering or rules of
Board are not specifically set out in this Franchise or not
80
validly incorporated herein by reference, City from time ~~
time may amend this Franchise to include such provision
effective as of the date of commencement of the Franchise
term or any such rule effective as of the date of commence-
- men.. of t::e Franchise term or adoption of the rule, which-
ever is later. Grantee, by acceptance of this Franchise,
consents to and agrees to be bound by any such amendments.
E, City reserves the right to revoke this Franchise and a^v
right or privilege of Grantee hereunder without incurrir.;
any obligation or liability to Grantee if any provision: of
this Franchise shall be finally adjudged by a court of law
invalid or unenforceable, and if City further finds tha~
such provision constitutes at that time a consideratio::
material to the continuance of the Franchise herein grar.tE~.
F. If any term, condition or provision of this Franchise or the
application thereof to any person or circumstance shall, •;.o
any extent, be held to be invalid or unenforceable, the re-
mainder hereof and the application of such term, condition
and provision to persons or circumstances other than those
as to whom it shall be held invalid or unenforceable shall
not be affected thereby, and this Franchise and all the
terms, provisions and conditions hereof shall, in all other
respects, continue to be effective and to be complied with.
SECTION 7. GRANTEE WILL NOT CONTEST VALIDITY OF FRANCHISE
Grantee agrees that it will not, at any time, set up against
City in any claim or proceeding, any condition or term of this
Franchise as unreasonable, arbitrary, void or that City had no
81
r
Fewer or authority to make such term or condition, but shat: ho
required to accept the validity of the terms and conditions of
this Franchise in their entirety.
5/~TION 8. INTERPRETATION BY CIT'I OF FRANCHISE
_ In case of any dispute or question as to the meaning, inter-
pretation or application of any term, provision or cond~ lion c~
this Franchise, the Council of City in its sole discreticn shay
resolve such dispute or question.
1
82
ARTICLE XIII.
ADMINISTRATION AND ADVISORY BODY
SrvTyON 1. ADMINISTRATOR
The City Manager or the City Manager's .designee shall be
responsible for the continuing administration of this Franchise.
The administrator may be changed by City from time to time by
Written notice given to Grantee.
SE~TION 2. ADVISORY $ODY
City may appoint an advisory body to monitor the
erf
p
ormance
of Grantee in executing the provisions of this Franchise. T:e
advisory body shall perform all functions required of it by t~:e
Council and applicable laws, ordinances, rules and•regulatior,s.
SECTION 3. DELEGATION OF AUTHORITY $Y CITY
A. City reserves the right to delegate and redelegate from t~:-e
to time any of its rights or obligations under this Fr
a^-
chise to any body or organization.
B. Any delegation by City shall be effective upon written
notice by City to Grantee of such delegation.
C• Upon receipt of notice by Grantee of City's delegation,
Grantee shall be bound by all terms and conditions of tre
delegation not in conflict with this Franchise.
D• Any such delegation, revocation or redelegation, no matter
how often made, shall not be deemed an amendment to this
Franchise or require any consent of Grantee.
83
ARTICLE XIV.
JOINT SYSTEM, ACCEPTANCE,
INCORPORATION OF OFFERING, EXHIBITS, PUBLICATION
S~~~ION 1. OTHER FRANCHISES
A.^ The System intended for City, may be part of a joint system
that serves the cities of Eden Prairie, Edina, Hopkins, Min-
netonka and Richfield, Minnesota.
g, Grantee will, in good faith, apply for and accept, i~
offered to it, a franchise (similar franchised from each o:
the other cities on all the same terms and conditions here :;
provided, except provisions omitted as inapplicable. +
~. Notwithstanding any other provision of this Franchise, is
less than all of the other of said cities offer a similar
franchise to Grantee, which is accepted by Grantee, Grantee
or City may cancel this Franchise and all of their obl;ga-
tions hereunder by written notice given to the other nc~
later than 30 days after all the other of said cities shall
have formally acted upon their respective franchise ordi-
nances; provided, that if Grantee elects to cancel this
Franchise pursuant hereto, it must also cancel all other
franchises granted to it by the other of said cities
effective simultaneously herewith.
SECTION 2. TIME OF ACCEPTANCE; GUARANTEE; INCORPORATION OF
OFFERING; EXHIBITS
A• Grantee shall have 30 days from the last date of adoption of
a similar franchise by all of the cities listed in
Section lA of this Article; to accept this Franchise in
84
form and substance acceptable to City. However, in no evert
will acceptance occur later than 90 days after the adoption
of this Franchise, unless the time for acceptance is
extended by City. Such acceptance by Grantee shall be
_ deemed the grant of this franchise for all purposes.
g, Upon acceptance of this Franchise, Grantee shall be bound by
all the terms and conditions contained herein. Grantee
shall provide all services and offerings specifically set
forth in the Offering to provide cable communication service
within City and other cities included in or a part of a
joint system; and, by its acceptance of this Franchise,
Grantee specifically agrees that the Offering of Grantee,
including all promises, offers, representations dnd induce-
ments contained therein, is specifically incorporated by
reference and made part of this Franchise. The failure to
refer to the Offering in any specific provisions of this
Franchise shall not be a limitation on the obligation o:
Grantee to fully comply with the Offering. Grantee further
acknowledges that all promises, offers, representations and
inducements contained in the Offering of Grantee were freely
and voluntarily made to City by Grantee.
~• The Offering shall be permanently kept and filed in the
Office of the City Clerk and the originals or reproductions
thereof shall be available for inspection by the public
during normal business hours. Also, the Grantee may summa-
rize the Offering in a manner acceptable to City or repro-
duce the entire Offering, and shall have either at the
following locations in the following quantities:
85
(1) Office of the City Clerk - 1 copy;
(2) Administrator designated in this Franchise - l
copy;
(3) Public libraries - 1 copy each;
(4) Office of the City Attorney - 1 copy;
(5) Hennepin County Law Library - 1 copy;
(6} Local office of Grantee - 1 copy;
('1) Office of any School District in City - 1 copy.
D. In the event of conflicts or discrepancies between any pa:t
of the Offering and the provisions of this Franchise or
between any part of the summar
Y made by Grantee and t:-;e
Offering, those provisions which
provide the greatest bene-
fit to City, in the opinion of the Council, shall
E. Grantee shall have continuing responsibilit for prevail.
Y this Fra^-
chise, and if Grantee be a subsidiary or wholly owned cor-
porate entity of a parent corporation, performance of t.~ys
Franchise shall be secured by guarantees of the parent cor-
poration in form and substance acceptable to City, whic::
shall be delivered at time of, and as part of, acceptance of
this Franchise.
F• With its acceptance, Grantee also shall deliver to Cit as
Y
opinion from its legal counsel, acceptable to City, stating
that this Franchise has been duly accepted by Grantee, that
the guarantees have been duly executed and delivered, that
this Franchise and the guarantees are enforceable against
Grantee and the guarantors in accordance with their respec-
tive terms, and which opinion shall otherwise be in form and
substance acceptable to City.
86
~ -
~ With its acceptance, Grantee also shall deliver to City true
and correct copies of documents creating Grantee and eviden-
cing the power and authority referred to in the opinion of
Grantee's counsel, certified as of a then current da*_e by
public office holders to the extent possible and otherwise
by an officer of Grantee.
H, Each exhibit is a part of this Franchise and each is specif-
ically incorporated herein by reference. The exhibits are
as follows:
Exhibit A - Map of Construction by Area, Including Time
Schedule.
Exhibit 8 - Rate Schedule
87
passed and adopted this 22 day of DECEMBER
- 1980.
ATTEST:
ByCi y Manager ""-
.KARL NOLLENBERGER
CITY OF RICHFIELD
By
layor --
DONALD PRIEBE
terms andccasdi ions.cepted, and we agree to be bound by alI its
Dated: MINNESOTA CABLESYSTEMS - SOUTHWEST
A Minnesota Limited Partnership
BY~ Minnesota Cablesystems, Inc.,
a Min~ne~ota Corporation
Its,~l Partner
By ~,
I is /rte
BY
Its
88
SUN
NEWSPAPERS
AFFIDAVIT OF PUBLICATION
RICHFIELD SUN .:4
9615 Lyndale Avenue South Bloomington, Minnesota
State of Minnesota °~~
County of Hennepin
D. K. MORTENSON, being duly sworn, on oath says he is and during all times here stated has been the ;,.,.;
vice president and general manager of the newspaper know as The Richfield Sun and has full knowledge
of the facts herein stated as follows: (1) Said newspaper is printed in the English language in newspaper
format and in column and sheet form equivalent in printed space to at least 900 square inches. (2) Said
newspaper is a weekly and is distributed at least once every week. (3) Said newspaper has 50% of its
news columns devoted to news of local interest to the community which it purports to serve and does not
wholly duplicate any other publication and is not made up entirely of patents, plate matter and
advertisement. (4) Said newspaper is circulated in and near the municipalities which it purports to
serve, has at least 500 copies regularly delivered to paying subscribers, has an average of at least 75%
of its total circulation currently paid or no more than three months in arrears and has entry as second- ~; ~~, ~ °'ns
class matter in its local post-office (5) Said newspaper purports to serve the City of Richfield in the ,,,,
County of Hennepin, and it has its known office of issue in the City of Bloomington in said county,
established and open during its regular business hours for the gathering of news, sale of advertisements
and sale of subscriptions and maintained by the managing officer of said newspaper or persons in its
employ and subject to his direction and control during all such regular business hours and devoted
exclusively during such regular business hours and at which said newspaper is printed. (6) Said.
newspaper files a copy of each issue immediately with the State Historical Society. (7) Said newspaper
is made available at single or subscription prices to any person, corporation, partnership or other
unincorporated association requesting the newspaper and making the applicable payment. (8) Said
newspaper has complied with all foregoing conditions for at least one year preceding the day or dates of
publication mentioned below. (9) Said newspaper has filed with the Secretary of State of Minnesota prior ; }~' ;
to January 1, 1966 and each January 1 thereafter and affidavit in the form prescribed by the Secretary
of State and signed by the managing officer of said newspaper and sworn to before a notary public stating '
that the newspaper is a legal newspaper.
tL
He further states on oath that the printed Ordinance No . 19 8 ~ - 3 3
hereto attached as a part hereof was cut from the columns of said newspaper, and was printed
and published therein in the English language, once each week, for One successive weeks;
that it was first so published on Wed • the 31St • day of DE'C • 19 $~
and was thereafter printed and published on every to and including
the day of , 19 and that the following is a printed copy
of the lower case alphabet from A to Z, both inclusive, and is hereby acknowledged as being the size and
kind of type used in the composition and publication of said notice, to wit:
a bedefghij klmnopgrstuvwxyz
/ ~„~,~ a
v ~ i`~I.r tom.,;-, _ ~.
mE?~
31st. Dec. 80 "~'"~
Subscribed and sworn to before me this day of 19
ORDINANCE NO. 1980-33
AN ORDINANCE, INCLUDING ADDENDUM WITH EXHIBITS,
GRANTING A FRANCHISE TO MINNESOTA CABLESYSTEMS-
SOUTHWEST, AMINNESOTA LIMITED PARTNERSHIP, TO OPERATE
AND MAINTAIN A CABLE COMMUNICATION SYSTEM IN THE CITY;
SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF
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 Richfield ordains:
STATEMENT OF INTENT AND PURPOSE
The City intends, by the adoption of this Franchise, to bring about the
development of a System, and the continued operation of it. Such a
development can contribute significantly to the communication needs and
desires of many. Further, the City may achieve better utilization and
improvement of public services with the development and operation of a
Cable Communications System.
Past studies, participated in by City, have led the way for organizing a
.means of procuring and securing a Cable Communications System deemed
best suited to the City, in the judgment of the Council. This has resulted in the
preparation and adoption of this Franchise.
FINDINGS ~~
In the review of Grantee's proposal and application and as a result of public
hearings, the City Council makes the following findings:
A. The Grantee's technical ability, financial condition, legal qualificatioria,
and character were considered and approved in a full public proceeding after
due notice and reasonable opportunity [o be heard:
B. Grantee's plans for constructing and operating the System were
considered and found adequate and feasible in a full public proceeding otter
due notice and reasonable opportunity to be heard;
C. The Franchise granted to Grantee by City complies with the existing
applicable Minnesota Statutes and regulations and Franchise standards of
Board; and •
D. The Franchise granted to Grantee is nonexclusive.
ARTICLE I.
SHORT TITLE AND DEFINITIONS
SECTION 1. SHORT TITLE
This Ordinance shall be known and cited as the Cable Communications
Ordinance.
SECTION 2. DEFINITIONS
For the purpose of the Franchise, the following terms, phrases, words and
their derivations shall have the meaning given herein. When not inconsistent
with [he context, 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. The words "shall" and "will" are
mandatory and "may" is permissive. Words not defined shall be given their
common and ordinary meaning.
A. "Basic Service" means all subscriber services provided by Grantee
including the delivery of broadcast signals, covered by the regular monthly
charge paid by all subscribers, excluding optional services For which a
separate charge is made.
B. "Board" means the Minnesota Cable Communications Board.
C. "City" means City of Richfield, a municipal corporation, in the State of
Minnesota.
D. "Class IV Chanhel" means a signaling path provided by.a System to
transmit signals of any type from a subscriber terminal to another point in
System,
E. "Connection" means the attachment of the drop to the first radio or
television set of the subscriber.
F. "Converter" means an electronic device; which converts signals to a
frequency not susceptible to interference within the television receiver of a
subscriber, and by an appropriate channel selector also permits a subscriber
to view all basic subscriber signals included in the basic service delivered at
designated converter dial locations.
G. "Council" means the governing body of City.
H. "Drop" shall mean the cable that connects the subscriber terminal to
the nearest feeder cable of the cable.
I. "FCC" shall mean the Federal Communications Commission and any
legally appointed, designated or elected agent or successor.
J. "Grantee" is Minnesota Cablesystems - Southwest, a Minnesota Limited
Partnership, its agents or employees.
K. "Cross Revenues" shall mean all revenue derived direcfty orindirectly
by-Grantee, its affiliates, subsidiaries, parent, and any person in which
Grantee has a financial interest of five percent (5%) or more from or in
connection with the operation of the System, including but not limited to,
basic subscriber service monthly fees, pay cable fees, installation and
reconnection fees, leased channel fees, converter rentals, studio rental,.
production.equipment and personnel fees, and advertising revenues. The
term does not include any taxes on services furnished by Grantee and
imposed directly upon any subscriber or user by the State, City or other
governmental unit and collected by Grantee on behalf of said governmental
unit.
L. "Installation" means the connection of the System from feeder cable to
:he point of connection.
M. "Lockout Device" is an optional mechanical or electrical accessory to a
oubscriber's terminal which inhibits the viewing of a certain channel or
'hannels provided by way of cable communications system.
N. "Offering of Grantee" of "Offering" shall mean that certain document
fated December 5, 1980, entitled "Offering of Grantee" and signed by
;rantee and City, which document is on file with the City Clerk.
0. "Public Property" is any real property owned by City other than a
treet,
P. 'Scrambler/Descrambler" refers respectively to the equipment in-
talled to the cable communications system's headend equipment and
ubscriber terminal used to isolate pay cable and other ancillary service
hannels from basic service which is accomplished by electronically distort-
ng the signal prior to its transmission through the cable communications
ystem. and reconstituting the signal at each authorized location for
ubsequent display.
Q. "Sidewalk" is the portion of a street delineated for pedestrian travel.
R. "Street" shall mean the surface of and the space above and below any
ublic street, road, highway, freeway, lane, path; public way, alley, court,
idewalk, boulevard, parkway, drive or any easement or right-of-way now or
ereafter held by City which shall, within its proper use and meaning in the
ole opinion o[ City, entitle Grantee to the use thereof for the purpose of
tstalling or transmitting over poles, wires, cables, conductors, ducts,
onduits, vaults, manholes, amplifiers, appliances, attachments and other
roperty as may be ordinarily necessary and pertinent to a System.
S. "SWSCC" shall mean the Southwest Suburban CATV Study Commission.
T. "Subscriber" means any person or entity who subscribes to a service
rovided by Grantee by means of or in connection with the System regardless
f whether a fee is paid for such service.
U. "System" means a system of antennas, cables, wires, lines, towers,
laveguides or other conductors, converters, equipment or facilities, de-
ignedand constructed for the purpose of producing, receiving, transmitting,
mplitying and distributing; audio, video and other forms of electronic or
lectrical signals, located in City. Said definition shall not include any system
vholly internal to one or more multiple unit dwellings under common
wnership, control or management; and does not use City streets or other
ublic property. In any event, system as defined herein shall not be
!consistent with the definition as set out in the rules of the Board.
ARTICLE II.
GRANT OF AUTHORITY AND GENERAL PROVISIONS
SECTION 1. GRANT OF FRANCH/5E AND A_ C_C_E___P_T_A_N_CE ___ - _
firm's and conditions as herefn'prgvide~~~_- - - - '~° ~ •~~ "`~
A. Grantee shall accept this Franchise in the following manner, and not
ster than the time set out in Article XIV, Section 2:
(1) This Franchise will be properly executed and acknowledged by Grantee
' and delivered to City. '
(2) At the same time as delivery of the executed Franchise, Grantee shall
deposit with City its nonrefundable acceptance fee in the sum of
$20,000.00, for the purpose of defraying the costs and expenses of
developing this Franchise and for the enforcement and administration
costs to be incurred until other Franchise fees may be realized. If such
costs to City exceed the sum of $20,000.00, City may charge such excess
costs to Grantee and Grantee shall pay them on demand by City.
(3) All security deposits, Letters of Credit, insurance contracts, accep-
tances, bonds, attorneys' opinions, organizational and creation docu-
ments and guarantees required of Grantee by this Franchise, shall be
delivered with the executed Franchise and in accordance therewith.
SECTION 2. AUTHORITY GRANTED
A. City grants to Granteethe permission to use streets for erecting,
nstructing, operating and maintaining the System. Other rights necessary
• the System on other public or private property must be obtained by
'antee, but City shall have no obligation to give or grant or assist in
twining the same.
B. Grantee shall construct and maintain the System so as not Yo interfere
th other uses of streets. Grantee shall make use of existing poles and other
:ilities available to Grantee. ~ -
C. Notwithstanding the above grant to use streets, no street shall be used by
antee if City in its sole opinion determines that such use is inconsistent with
terms, conditions or provisions by which such street was created or
dicated, or presently used.
iECTION 3. AGREEMENT
1. Grantee agrees to be bound by all the terms and conditions of this
anchise.
4. The Grantee also agrees to provide all services specifically set forth in,
d to comply with al] provisions of, its Offering to provide a System within
boundaries of City. Further, failure of Grantee to provide a System as
scribed in its Offering, at City's o lion, shall be a violation of the provisions
this Franchise. In the event ot~conflicts or discrepancies between the
'ering of Grantee and the provisions of this Franchise', the provisions which
!vide the greatest benefit to City, in the opinion of the Council, shall
wail
;ECTION 4. FRANCHISE TERM
'his Franchise shalt commence upon acceptance by Grantee and shall
sire 15 years from date of acceptance.
IECTION 5. AREA
'his Franchise is granted for City as it exists from time to time during the
m of this Franchise.
~ECTION 6. POLICE POWERS
~. Grantee's rights are subject to the police power of City [o adopt and
orce ordinances necessary to the health, safety and welfare of the public.
.. Any conflict between the provisions of this Franchise and any ,other
sent or future lawful exercise of police powers of City shall be resolved in
or of City.
ECTION 7. USE OF GRANTEE FACILITIES
ity shall have the right to install and maintain, tree of charge, upon the
es and within the underground pipes and conduits of Grantee any wires
I fixtures desired by City. Grantee waives any claim against City arising
m City's exercise of these rights.
ECTION 8. WRITTEN NOTICE
II notices, reports or demands required to be given in writing under this
inchise shall be deemed to be given when delivered personally to any
cer of Grantee or City's Administrator of this Franchise or 48 hours after
deposited'in the United States mail in a sealed envelope, with registered
certified mail postage thereon, addressed to the party to which notice is
tg given, as follows:
I[ to City: 8700 Portland Avenue South
Richfield, Minnesota 55423
If to Grantee: 4344 IDS Center
Minneapolis; Minnesota 55402
ich addresses may be changed by either party upon notice to the other
ty given as provided in this section:
ECTION 9. RIGHTS OF INDIVIDUALS
No signals, including signals of a Class IV Channel, shall be transmitted
n a subscriber terminal except as required to provide a service
iorized by this Franchise and the subscriber. Grantee and. any other
.on shall neither initiate nor use any procedure or device for procuring or
ing information or data from a subscriber's terminals or terminal by any
ins, without the prior authorization of the affected subscriber which shall
have been obtained from the subscriber as a condition of service. The
lest for such authorization shall be contained in a separate document and
dify the purpose for which the data nr infnrmat;nn ;e brine vorhn.n.1 .._
the subscriber's, television set is capable of producing a color picture, that is undistor-
tea and free from ghost images, without material degradation.of color responde•.i to by a service representarive at the locatie~.,of the
comiilt:wK.by Grantee within 24 hours. If reasonably~ossible, ., antee
fidelity. The System shall produce a sound that is undistorted on any receiver
stem so as
shall install
nd maintain the S
of a s
ense
b
iber
G
t
t it shat] reMii;r ~;k cause of all valid complaints. If a complaint is not
ri
a
y
u
scr
.
s exp
;
ran
ee, a
' rectified wi[i
n three days, the complainant may then file [he complaint
s receipt of local broadcast stations.
not to interfere with any subscriber with City.
B. The System shall transmit or distribute signals to all television and radio (4) City and Grantee shall prepare and maintain a record of all complaints
[f at any time after the filing of a complaint with City
made to them
receivers of all subscribers without causing crossmodulation in the catiles or
interfering with other electrical or electronic systems or the reception of .
,
City determines, in its sole discretion, that the complaint represents a
othertetevision or radio receivers. violation of this Franchise, any law, ordinance or regulation, or
C. Grantee shall construct and maintain a System that at least meets
minimum technical standards now or hereafter promulgated by the FCC represents a failure in the performance of Grantee pursuant to this
Franchise, City may. in addition to any other remedy available to it,
relating to cable communications systems; provided, however, that in no issue written notice specifying the nature of the complaint and ordering
Grantee to appear at the next regularly scheduled Council meeting. At
event shall the technical standards required to be met by Grantee be less
stringent than the FCC standards in effect at the time of the adoption of the said Council meeting. Grantee shall explain its failure to rectify the
Ordinance, nor shall. Grantee be reyuired to meet minimum FCC technical
standards which apply solely to cable communications systems for which complaint and show cause why the Council should not institute default
proceedings. Failure by Grantee to appear may result, at the sole
franchises are granted subsequent to the acceptance of this Franchise. discretion o[ City, in the termination of [his Franchise.
ARTICLE V
D. The System shall be installed and remain capable of using all band
equipment and of passing the entire VHF bands, mid-band, super-bands and .
CONSTRUCTION, INITIAL SERVICE AREA
FM band up to 402 MHz. LINE. EXTENSION AND CONSTRUCTION STANDARDS
E. The System shall be designed for and operated on a 24 hours a day
continuous operation basis. .SECTION 1. INITIAL SERVICE AREA
A. Engineering and design shall be completed within one year after date of
F. Grantee shall specify the procedure for initially and subsequently testing granting of this Franchise and tl significant amount of construction; in the
shall be completed within one year after Grantee's receipt of
opinion of City
the technical capacity of the System and agrees to have City select a
consultant to review and perform such testing procedure. The results of any ,
all necessary governmental permits, licenses, certificates and author-
tests required by the FCC shall be filed within ten days of the conduct of such
tests with the City and the Board. Other representatives of City may be izations.
B. Grantee shall provide service to all residences now or hereafter within
present during testing. The tests may be done annually at such times as is the initial service area as such area is identified on the map attached hereto
as Exhibit A and made a part hereof
determined by City, with notice to Grantee. All expenses for all such tests
shall be paid by Grantee. .
C. Construction maps and schedules, included as a part of Exhibit A are
SECTION 3. TWO-WAY CAPACITY eilso hereby made a part of this Franchise. All construction within the initial
Grantee shall initially activate and thereafter maintain atwo-way capable -
i
T service area will be completed according to Exhibit A within eighteen months
(the "construction period") after the date of issuance of the Certificate of
nclude fully interactive
his will
System (audio, video and data impulse).
service capability provided by a centralized computer system and custom- Confirmation by the Board.
!zed subscriber home terminals, backed up by full standby powering D. The energized trunk cable shall be extended throughout the initial
service area within eighteen months after the date of issuance of the
throughout the System.
SECTION 4. FACILITIES Certificate of Confirmation by the Board. All persons and entities along the
id
l
h
ill h
l
The Grantee shall construct, maintain and continue to provide all facilities e who desire t
em w
ave indiv
ua
route of the energized trunk cab
drops
and equipment set forth in the Offering including, but not limited to, the
equipment and other facilities.
headend
hubs, distribution system, studios installed and activated within the same eighteen-month period.
E. Grantee shall give residents 30 days' advance notice of the commence-
,
,
Grantee's plan, as set forth in the Offering, for implementing the construe- meet of construction affecting their property, which noticq shall fully explain
lion, utilization and maintenance of these facilities, including its plans for
acc•ommodating future growth and changing needs and desires, shall be fully how the work will be carried out. -
F. The requirements of paragraphs A, B, C and D may be waived by City
and timely performed. only upon the occurrence of unforeseen events or acts of.God, but in no event
- SECTION S. SPECIAL CHANNEL AND ACCESS REQUIREMENTS shall the construction period be greater than five years from commencement
A. Grantee will carry broadcast stations in accordance with FCC rules as
from time to time revised. - of construction.
SECTION 2. LINE EXTENSION POLICY
B. No converter will be required-for the seven channels of the Universal Grantee's extension of service to those areas not included in the initial
Service Tier. Converters may be required for the Family Service Tier and for
the Full Service and interactive Tiers: A charge for lease or purchase from service area shall be done pursuant to the following requirements:
A. Residences located outside the initial service area will be provided
Grantee may be made by Grantee, or a subscriber may lease or purchase a
converter from any other source. For premium services Grantee may service upon acceptance of a quote from Grantee. The quote shall not exceed
the cost to Grantee, calculated on a time and material basis, of extending the
require the use of a Grantee converter pr descrambler.
C. Channel 12 shall be an emergency channel operated by City. cable and necessary cable equipment to service the residence.
B. Any nonresidential user requesting service will be provided service upon
D. Grantee will provide an audio/visual emergency alert override system
that will permit the initial interruption by City of all audio (including FM) acceptance of a quote from Grantee. The quote shall not exceed the cost to
Grantee, calculated on a time and material basis, of extending the cable and
and video programming. necessary cable equipment to service said user.
E. Grantee shall provide at least seven channels for access use (including
one for each of the following uses: public, government, leased, educational, SECTION 3. CONSTRUCTION TIMETABLE
A. Within 60 days after the granting of Franchise, Grantee shall apply for
the total
regional). All residential subscribers who receive all or any part of all necessary permits, licenses, certificates and authorizations which are
!
services offered on the System shall also receive all rof said seven access required in the conduct of its business, including, but not limited to, any joint
channels at no additional charge. These channels shall be activated upon use attachment agreements, microwave career licenses, or any other
System activation and thereafter maintained. Grantee shall establish rules
access channels
and regulations prior to System activation for the use of permits, licenses and authorizations to be granted. by duly constituted
regulatory agencies having jurisdiction over the operation of cable com-
,
which shall be approved by City
before implementation and thereafter shall munica[ion systems, or their associated microwave transmission facilities. If
.
not be altered or amended without approval of City. In preparing such rules: after one year from the commencement of Franchise term, Grantee has not
(ti Grantee shall provide an equal opportunity for use of access services. received the permits, licenses, certificates and authorizations described in
City may terminate this Franchise without regard to fault for
this paragraph
(2) Grantee will consider needs assessments prepared by City.
(3) Grantee shall develop a plan to allocate to City a reasonable use and ,
delay in obtaining such permits, licenses, certificates and authorizations.
fair schedule of channel time, use of eyuipment and facilities so that it
' B. Within 90 days after obtaining all necessary permits, licenses,
Grantee shall give written notice thereof to
certificates and authorizations
can receive programming unique to its needs.
(4) Grantee will comply, at a minimum, with the requirements of City and ,
City and commence construction and installation of System. '
the Board now or hereafter adopted or determined by City or the Board C. Any delays in the construction timetable or commencement of construc-
'
regarding access channels. Such requirements of the Board are hereby in this Franchise, and continued
Lion shall result in penalties as provided
delays riay result in the termination of this Franchise and all rights and
made a part of this ordinance and include the following:
' privileges of Grantee hereunder.
(a) Grantee shall, to the extent of the System
s available channel capacity,
provide to each of its subscribers who receive all or any part of the total ser- (1) Grantee shall promptly notify City of all delays known or anticipated in
vices offered on the System, reception on at least one specially designated non- the construction of System.
(2) City may extend the time for beginning construction or may extend the
commercial public access channel available for use by the general public on a
first come
nondiscriminatory basis; at leas[ one specially designated access construction timetable in the event. Grantee, acting. in good faith,
,
channel for use by local educational authorities; at least one specially + experiences delays by reason of circumstances beyond its control.
CONSTRUCTION STANDARDS
SECTION 4
designated access channel available for local government use; and at least one
specially designated access channel available for lease on a first come
non- .
A. Grantee shall not open or disturb the surface of any streets or public
,
discriminatory basis by commercial and noncommercial users (hereinafter
"
" property without first obtaining a permit from City for which permit City
may impose a reasonable fee to be paid by Grantee. The lines, conduits
the
access channels
). Subscribers receiving only alarm system services or
only data transmission services for computer operated functions shall be ex- ,
cables and other property placed in.the streets and public property pursuant
empt from this requirement. The VHF spectrum shall be used for at least one to such permit shall be located in such part of the street or public roperty as
shall be determined by City. Grantee shall, upon completion of any work
of the specially designated noncommercial public access channels required.
No charges shall be made for channel time or playback of prerecrorded requiring the opening of any streets or public property, restore the same,
including the pavement and its grounds to as good a condition as formerly and
programming on at least one of the specially designated noncommercial public
access channels. However, personnel, equipment. and production costs maybe in a manner and quality approved by City, and shall exercise reasonable care
to maintain the same thereafter in good condition. Such work shall be
assessed for live studio presentations exceeding five minutes in length. performed with diligence and due care, and if Grantee shall fail to perform
Charges for such production costs and any fees for use of other public access
~ the ;work promptly, to remove all dirt and rubbish and to put the street or
channels shall be consistent with the goal affording the public a low cost means
of television access.Access facilities,equipment and/or channel time will be public property back into the condition required hereby, City shall have [he
right to put the streets or public property back into good condition at the
made available to the general public, any group or individual esident in City
for the production and/or cablecasting of noncommercial programming free of expense o[ Grantee. Grantee shall, upon demand, pay to City the cost of such
together with an additional sum as liquidated
work done or performed
charge on a first come, nondiscriminatory basis. ,
damages to be determined by City.
(b) Whenever any of the access channels are in use during 80 percent. B: All wires, conduits, cable and other property and facilities of Grantee
o[ the weekdays (Monday-Friday), for 80 percent of the time during any shall be so located, constructed, installed and maintained as not to endanger
consecutive three hour period for six weeks running, and there is or unnecessarily interfere with the usual and customary trade, traffic and
demand for use of an additional channel for the same purpose, Grantee travel upon, or other use of, the streets and public property of City. Grantee
shall then have six months in which to provide a new specially shall keep and maintain all of its property in good condition, order and repair
designated access channel for the same purpose at no additional cost to so that the same shall not menace or endanger the life or property of any
subscribers. person. City shall have the right to inspect and examine at all reasonable
(c) The rules and regulations established by the Grantee and times and upon reasonable notice the property owned or used, in part or in
approved by City governing the access channels shall be filed with the whole, by Grantee. Grantee shall keep accurate maps and records of all of its
Board within 90 days after any such channels are put into use. conduits, cables and other property and facilities located, constructed
wires
(d) Subscribers receiving programs on one or more special service
'
h
l
ith
l
i
t
i
th
b
l
ib ,
and maintained in the City. Further, Grante shall, without charge, furnish
o
c
anne
s w
ou
v
a
so rece
ng
e regu
scr
ar su
er services may me as requested by City.
copies of such maps and records from time t
receive only one specially designated composite access channel coin- C. All wires, conduits, cables and other property and facilities of Grantee,
posed of the programming on access channels. Subscribers receiving shall be constructed and installed in an orderly and workmanline manner. All
only alarm system services or only data transmission service's for wires, conduits and cables shall be installed, where possible, parallel with
computer operated functions shall not be included in this requirement. electric and telephone lines. Multiple cable configurations shall be arranged
(5) The Grantee shall comply, at a minimum, with the requirements of City in parallel and bundled with due respect for engineering considerations.
and Board, now or hereafter adopted by City or Board regarding public D. Grantee shall at all times comply with all applicable laws, ordinances,
use ofits equipment, including the following: rules, regulations and codes, federal, state and local. In any event, the
(a) Grantee shall make readily available for public use a[ least installation, operation or maintenance of System shall not endanger of
minimal equipment necessary for the production of programming and interfere with the safety of persons or prdperty m the City.
playback of prerecorded programs for the specially designated non- E. Whenever City shall undertake any public improvement which affects
commercial public access channel. The Grantee shall also make Grantee's equipment or facilities; City shall, with due regard to reasonable
readily available upon need being shown, the minimum equipment working conditions and with reasonable notice, direct Grantee to remove its
necessary to make it possible to record programs at remote locations y. wires, conduits, cables and other property located in streets or public
__
t~i)`hleed wiffi3ii'th"e rfieatYin~+Bf`ffifs'pai`agrapn shall be tle[erminetl in other property at its own expeiise.~- ~~"~~"~ ~~ ~ _
the sole discretion o[ City or by subscriber petition. Said petition must F. Grantee's plans for constructing its System, and the construction of the
contain the signatures of at least 10 percent of the subscribers of System, shall be in accordance with its Offering. However, Grantee shall
System, but in no case more than 500 nor fewer than 100 signatures. comply with the following minimum requirements:
SECTION 6. INSTITUTIONAL NETWORK (1) Grantee shall construct underground in any area where another line,
Thu System shall include at a minimum a separate institutional tele- either electrical or telephone; has been installed underground.
communications network, interconnected with the subscriber network, of (2) Grantee shall change from aerial to underground, at its own expense, in
eight sections with a combined transmission capacity of 472 channels, with
full two-way capability
Said network shall be offered
activated
ex
anded any area where another line is hereafter changed from aerial to
d
d
.
,
,
p
,
marketed and developed at a minimum in full compliance with the Offering.
Need for the
rovision of institutional service shall be determined i
th
l ergroun
.
un
(3) Grantee shall change from aerial to underground, without cost to City,
t
t
i
i
h
b
d
f
p
n
e so
e
discretion of City. or a cer
a
n
ty, Whic
reques
can
e ma
e
whenever requested by C
area or areas or for the entire System.
SECTION 7. SERVICE TO PUBLIC BUILDINGS AND EDUCATIONAL (4) To enable Grantee reasonable opportunity to change its wiring from
INSTITUTIONS aerial to underground, and also to allow it to pre-wire all new
Grantee shall provide, at a minimum, subscriber and institutional network subdivisions or new development areas, City shall provide Grantee with
service to all publicly owned buildings, in City (City Hall, police department,
fire department, schools, libraries, etc.), all educational institutions in City, written notice of the following, but in no event shall city have any
liability for failure to provide notice of the following:
and all .buildings now or hereafter wholly or partially owned or leased for (a) Any changes of which City has knowledge, or which City~may
governmental use by any state, federal or local government in City, or owned order, regarding a change from aerial to underground of any line
or leased by school districts or educational institutions in City, alas set out in (telephone or electrical) within its boundaries.
the Offering. Need for either or both of such network services as referred to in ib) Any underground trenching that maybe pending.
the Offering shall be determined in the sole discretion of City. (c) New subdivisions and development. All of such subdividers or
SECTION 8. INTERCONNECTION ~ develgpers shall be notified of the Franchise and the System.
Grantee will comply with all. present and future rules, regulations and (d) All Franchise changes affecting the wiring of the System.
orders of the Board regarding interconnection of systems, and will cooperate SECTION 5. CONDITIONS ON USE
with any agencies or utilities involved with interconnection. At such times as . A. Grantee shall not place poles or other fixtures where- the same will
interconnection is required, Grantee shall accomplish this without additional interfere with any gas, electric or telephone fixture, water hydrant or main.
charge to subscribers. System shall be initially constructed so that other B. Grantee, at the request of any person holding a building moving permit
systems now or hereafter constructed in any area adjacent to System may be and with not less than five days advance notice, shall temporarily remove,
interconnected with System without delay. raise or lower its wires, conduits and cables. The expense o£ such temporary
SECTION 9. NARROWCASTING 'removal, raising or lowering of wires, conduits and cables shall be paid by
Grantee sha11 provide separate programming capability to City on each of person requesting the same, and Grantee shall have the authority to require
the access channels on the Universal Service Tier. such payment in advance.
SECTION 10. COMPUTER SERVICES
Grantee shall construct System to accommodate interactive data coin- C. Grantee shall have the authority, to the extent the City has authority to grant the
same, to trim trees upon or overhanging any street or public property so as to prevent
munications with a total network transmission time of less than one-tenth the branches of such trees from coming in contact with the wires, rnnduits and cables
(1 / t0) of a second.
SECTION 11. REGIONAL CHANNEL ~ of Grantee. All trimming shall be done under the supervision and direMion of City and
at the expense of Grantee.
The standard VHF Channel 6 is hereby designated for uniform regional D. Nothing contained in this Franchise shall relieve any person from
channel usage. However, until the regional channel becomes operational,
Grantee may utilize the standard VHF Channel 6 as it deems appropriate. fiabilfty arising out of the failure to exercise reasonable care to avoid injuring
the Grantee's facilities while performing any work connected with grading,
Use of time on the regional channel shall be made available Without charge. regrading or changing the line of any street or public place or with the
ARTICLE IV. construction or reconstruction of any sewer or water system.
SERVICES AND PROGRAMMING, ARTICLE VI.
SUBSCRIBER CONTRACTS, COMPLAINTS SYSTEM OPERATIONS
SECTION 1. SERVICES AND PROGRAMMING SEf.T10N 1. INFORMATION AVAILABILITY
A. Services and Programming. The programming and services shall be A. Throughout the term of this Franchise, Grantee shall maintain books
structured in three tiers, all of which will be programmed at the time of and records in accordance with normal and accepted bookkeeping and
System activation, providing, at a minimum, the programming and services accounting practices for the Cable Communications industry, and allow for
set forth in the Offering. Programming and services as designated in the inspection and copying o[ them at reasonable times at its designated office.
Offering shall be changed by Grantee only upon prior written approval of The books and records to be maintained by Grantee shall include the
City. The three tiers are as follows: following:
(1) The Universal Service Tier. The Universal Service Tier shall be ~~ (1) A record o[ all~requestsfor service;.
provided as a public service without charge after installation, per- (2) A record of all subscriber or other complaints, and the action taken;
milting free view of seven access channels. A subscriber may lease or (3) A file of all subscriber contracts;
buy a converter, permitting a total service of 13 channels. (4) Grantee policies, procedures and company rules; and
(2) The Family Service Tier. The Family Service Tier shall incorporate the (5) Financial records.
Universal Service Tier with 14 programmed video channels, a total of 21 B. City shall give Grantee at least 24 hours notice before making
channels of service combining access and local broadcasting with local inspections of any books or record of Grantee.
origination. In addition, this tier shall provide a community information ~ C. Grantee shall file with City, at the time of its annual payment of the
service and offer two premium services, afamily-oriented mini-pay- franchise fee, as described in this Franchise, the following:
TV service and a comprehensive FM radio service.
(3) The Fult Service Tier. The Full Service Tier shall provide 54 channels (1) A financial statement prepared by an independent certified public
accountant showing, in such detail as acceptable to City, the gross
which increases the Family Service Tier by incorporating distant revenues of Grantee for the preceding fiscal year.
stations, several .satellite-fed services, additional local origination (2) Current list of names and addresses of each officer and director and
channels, additional premium channels and several customized alpha- other management personnel, and if a corporation, each shareholder
numeric services. Included in this tier shall be a sub-tier called having stock ownership of three (3%) percent or more, and if a
"expanded service" which shall have the same channel capacity and partnership, all general partners, and if a general partner is a
shall include a converter and an interactive unit. corporation, the foregoing information shall be given as to the
B. Locally originated programming. Grantee shall provide at a minimum corporate general partner.
23 locally programmed channels. (3) A copy of each document filed with all federal, state and local agencies
C. Community Access and Programming. during the preceding fiscal year not previously filed with City (each of
(1) Grantee shall, at d minimum, comply with the community access and these filings shall be provided at the time the filing is made).
programming plan of the Offering. (4) A statement of its current billing practices.
(2) Grantee shall provide upon system activation a community access and (5) A current copyof its rules.
programming staff of at least 22 persons, provided, however, that City (8) A current copy of its subscriber service contract.
recognizes said staff as well as. the entire community access and D. City, its agents and representatives shall have authority to arrange for
programming plan of the Offering encompasses all of the systems of the and conduct an audit of and copy the books and records of Grantee. Grantee
Cities then a party to a Joint Powers Agreement relating to System the description of and
shall first be given five days notice of the audit request
lreferrad fn hurain ~,e ihn ~~; of nr r.,oro.., ••i :
... .. .. _.. - - -
n~~c suuxnoer service moncnly tees, pay cable tees, installation and
reconnection tees, leased channel tees, converter rentals, studio rental,.
production equipmenC and personnel fees, and advertising revenues. The
term does not include any taxes on services furnished by Grantee and
imposed directly upon any subscriber or user by the State, City or other
governmental unit and collected by Grantee on behalf of said governmental
unit.
L. "Installation" means the connection of the System from feeder cable to
the point of connection.
M. "Lockout Device" is an optional mechanical or electrical accessory to a
subscriber's terminal which inhibits the viewing of a certain channel or
channels provided by way of cable communications system.
N. "Offering of Grantee" of "Offeringg" shall mean that certain document
dated December 5, 1980, entitled "Of(ering of Grantee" and signed by
Grantee and City, which document is on file with the City Clerk.
0. "Public Property" is any real property owned by City other than a
street.
P. "Scrambler/Descrambler" refers respectively to the equipment in-
stalled to the cable communications system's headend equipment and
subscriber terminal used to isolate pay cable and other ancillary service
channels from basic service which is accomplished by electronically distort-
ing the signal prior to its transmission through the cable communications
system. and reconstituting the signal at each authorized location for
subsequent display.
Q. "Sidewalk" is the portion of a street delineated for pedestrian travel.
R. "Street" shall mean the surface of and [he space above and below any
public street, road, highway, freeway, lane, path, public way, alley, court,
sidewalk, boulevard, parkway, drive or any easement or right-of-way now or
hereafter held by City which shall, within its proper use and meaning in the
,sole opinion of City, entitle Grantee to the use thereof for the purpose of
.installing or transmitting over poles, wires, cables, conductors, ducts,
conduits, vaults, manholes, amplifiers, appliances, attachments and other
property as may be ordinarily necessary and pertinent to a System.
S. "SWSCC" shall mean the Southwest Suburban CATV Study Commission.
T. "Subscriber" means any person or entity who subscribes to a service
provided by Grantee by means of or in connection with the System regardless
of whether a fee is paid for such service.
U. "System" means a system of antennas, cables, wires, lines, towers,
waveguides or other conductors, converters, equipment or facilities, de-
signed and constructed for the purpose of producing, receiving, transmitting,
amplifying and distributing; audio, video and other forms of electronic or
electrical signals, located in City. Said definition shall not include any system
wholly internal to one or more multiple unit dwellings under common
ownership, control or management, and does not use City streets or other
public property. In any event, system as defined herein shalt not be
inconsistent with the definition as set out in the rules of the Board.
ARTICLE II.
i GRANT OF AUTHORITY AND GENERAL PROVISIONS
SECTION 1. GRANT OF FRANCHISE AND ACCEPTANCE
terms and conditions as herein provided:
A. Grantee shall accept this Franchise in the following manner, and not
later than the time set out in Article XIV, Section 2:
(1) This Franchise will be properly executed and acknowledged by Grantee
and delivered to City. '
(2) At the same time as delivery of the executed Franchise, Grantee shall
deposit with City its nonrefundable acceptance fee in the sum of
$20,000.00, for the purpose of defraying the costs and expenses of
developing this Franchtse and for the enforcement and administration
costs to be incurred unfit other Franchise fees may be realized. If such
costs to City exceed the sum of $20,000.00, City may charge such excess
costs to Grantee and Grantee shall pay them on demand by City.
(3) All security deposits, Letters of Credit, insurance contracts, accep-
tances, bonds, attorneys' opinions, organizational and creation docu-
ments and guarantees required of Grantee by this Franchise, shall be
delivered with the executed Franchise and in accordance therewith.
SECTION 2. AUTHORITY GRANTED
A. City grants to Grantee the permission to use streets for erecting,
constructing, operating and maintaining the System. O[h'er rights necessary
for the System on other public or private property must be obtained by
Grantee, but City shall have no obligation to give or grant or assist in
obtaining the same.
B. Grantee shall construct and maintain the System so as not to interfere
with other uses of streets. Grantee shall make use of existing poles and other
facilities available to Grantee.
C. Notwithstanding the above gran[ to use streets, nostreet 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 presently used.
SECTION 3. AGREEMENT
A. Grantee agrees to be bound by all the terms and conditions of this
Franchise.
B. The Grantee also agrees to provide all services specifically set forth in,
and to comply with all provisions of, its Offering to provide a System within
the boundaries of City. Further, failure of Grantee to provide a System as
described in its Offering, at City's option, shall be a violation of the provisions
of this Franchise. In the event of conflicts or discrepancies between the
Offering of Grantee and the rovisions of this Franchise; the provisions which
provide the greatest'benetpit to City, in the opinion of the Council, shall
prevail
SECTION 4. FRANCHISE TERM
This Franchise shall commence upon acceptance by Grantee and shall
expire 15 years from date of acceptance.
SECTION 5. AREA ,
This Franchise is granted for City as i[ exists from time to time during the
term of [his Franchise.
SECTION 6. POLICE POWERS
A. Grantee's rights are subject to the police power of City to adopt and
:n[orce ordinances necessary to the health, safety and welfare of the public.
B. Any conflict between the provisions of this Franchise and any ,other
iresent or future lawful exercise of police powers of City shall be resolved in
'avor of City.
SECTION 7. USE OF GRANTEE FACILITIES
City shalt have the right to install and maintain, free of charge, upon the
soles and within the underground pipes and conduits of Grantee any wires
Ind fixtures desired by City. Grantee waives any claim against City arising
'rom City's exercise of these rights.
SECTION 8. WRITTEN NOTICE
All notices, reports or demands required to be given imwriting under this
Franchise shall be deemed to be given when delivered personally to any
officer of Grantee or City's Administrator of this Franchise or 48 hours after
t is depositedin the United States mail in a sealed envelope, with registered
it certified mail postage thereon, addressed to the party to which notice is
ieing given, as follows:
I[ to City: 6700 Portland Avenue South
.Richfield, Minnesota 55423
If to Grantee: 4344 IDS Center
Minneapolis; Minnesota 55402
Such addresses may be changed by either party upon notice to the other
party given as provided in this section.
SECTION 9. RIGHTS OF INDIVIDU_ ALS
A. No signals, including signals of a Class IV Channel, shall be transmitted
rom a subscriber terminal except as required to provide a service
uthorized by this Franchise and the subscriber. Grantee and. any other
erson shall neither initiate nor use any procedure or device for procuring or
Goring information or data from a subscriber's terminals or terminal by any
Zeans, without the prior authorization of the affected subscriber which shall
of have been obtained from the subscriber as a condition of service. The
equest for such authorization shall be contained in a separate document and
fentify the purpose for which the data or information is being gathered or
Gored. After the first year of the authorization's initial, signing, Grantee
hall, for each year said authorization is in effect without revocation, mail a
once to each authorizing subscriber informing him or her of his right to
woke said authorization. The authorization shalt be revocable' at any time
y the subscriber without penalty of any kind whatsoever. A separate .
uthorization shall be required for each type or classification of data or
iforrnation sought from a subscriber terminal.
B. Grantee shall not, without the written authorization of the affected
ibscriber, provide to anyone data identifying or designating any subscriber.
ny data authorized shall be made available upon reqquest by and without
large to the authorizing subscriber in dnderstandable fashion, including
iecification of the purpose for which the information is being gathered and
whom and for what fee the information is to be sold.
C. Grantee shall not tap or monitor, arrange for the tapping or monitoring,
• permit any other person to tap or monitor, any cable, line, signal input
vice, or subscriber outlet or receiver for any purpose whatsoever, without
ie prior written authorization of the affected subscriber as required by
iragraph A of this section.
D. Nothing herein contained shall prohibit Grantee from verifying System
ieration and the transmission of signals to an affected subscriber or from
mitoring for [he purposcof billing. ,
SECTION 10. CERTIFICATE OF CONFIRMATION
3rantee shall abide by the then current rules and regulations of Board
grrding the application, approval, and renewal of a Certificate of Con-
~maUOn. Failure of Grantee to obtain a Certificate of Confirmation or a
tewal thereof shall result in automatic termination of this Franchise, and
s Franchise shall cease to be of any force or effect. However, Grantee may
crate the System while the Board is considering an application for renewal
the Certificate of Confirmation.
ARTICLE III.
DESIGN OF SYSTEM
iECTION I. CHANNEL CAPACITY -SUBSCRIBER NETWORK
;rantee shall initially activate and thereafter maintain a subscriber
work having at least a forward capacity of 54 video channels, plus the FM
iio band, and a reverse capacity of four video channels. The design will
wide for a sett-contained bidirectional network in each City Forming part
;his System. The System will be programmed from a central point, but the
ifiguration will accommodate the practical isolation of City, allowing for
distribution of unique programming to i[. The System shall be capable of
raasing its channel capacity as technology permits and needs arise.
IECTION 2.PICTURE QUALITY AND TECHNICAL REQUIREMENTS
+. The System will produce a piMure upon each subscriber's television screen in
ck and white or color, depending upon whether color is being telecast and provided
(a) Grantee shall, to the extent of the System's available channel capacity, privueges of G=rantee nereunaer.
(1) Grantee shall promptly notify City of all delays known or anticipated in
provide to each of its subscribers who receive all or any part of the total ser- the construction of System.
vices offered on the System, reception on at least one specially designated non-
commercial public access channel available for use by the general public on a (2) City may extend the time for beginning construction or may extend the
constructwn timetable in the event Grantee, acting. in good faith,
first wine, nondiscriminatory basis; at least one specially designated access
channel for use by local educational authorities; at least one specially + experiences delays by reason of circumstances beyond its control.
designated access channel available for local government use; and at least one SECTION 4. CONSTRUCTION STANDARDS
A. Grantee shall not open or disturb the surface of any streets or public
specially designated access channel available for lease on a first come, non-
discriminatory basis by rnmmercial and noncommercial users (hereinafter property without first obtaining a permit [,rom City for which permit City
the "access channels"). Subscribers receiving only alarm system services or may impose a reasonable fee to be paid by Grantee. The lines, conduits,
cables and other property placed in-the streets and public property pursuant
only data transmission services for computer operated functions shall be ex-
empt from this requirement. The VHF spectrum shall be used for at least one to such permit shall be located in such part of the street or public property as
of the specially designated noncommercial public access channels required. shall be determined by City. Grantee shall, upon completion of any work
requiring the opening of any streets or public property, restore the same,
No charges shalt be made for channel time or playback of prerecorded
programming on at least one of the specially designated noncommercial public including the pavement and its grounds to as good a condition as formerly and
in a manner and quality approved by City, and shall exercise reasonable care
access channels. However, personnel, equipment. and production costs may be to maintain the same thereafter in good condition. Such work shall be
assessed for live studio presentations exceeding five minutes in length.
Charges for such production costs and any fees for use of other public access
~ perf~irmed with diligence and due care, and if Grantee shall fail to perform
the .work promptly, to remove all dirt and rubbish and to put the street or
channels shall be consistent with the goal affording the public a low cost means public property back into the condition required hereby, City shall have the
of television access.Access facilities,equipment and/or channel time will be right to put the streets or public property back into good condition at the
made available to the general public, any group or individual esident in City expense of Grantee. Grantee shall, upon demand, pay to City the cost of such
for the production and/or cablecasting of noncommercial programming free of work done pr performed, together with an additional sum as liquidated
charge on a first come, nondiscriminatory basis. damages to be determined by City.
(b) Whenever any of the access channels are in use during 80 percent B. All wires, conduits, cable and other property and facilities of Grantee
of the weekdays (Monday-Friday), for 80 percent of the time during any shall be so located, constructed, installed and maintained as not to endanger
consecutive three hour Qeriod for six weeks running, and there is ~ or unnecessarily interfere with the usual and customary trade, traffic and
demand for use of an additional channel for the same purpose, Grantee travel upon, or other use of, the streets and public property of City. Grantee
shall then have six months in which to provide a new specially shall keep and maintain all of its property in good condition, order and repair
designated access channel for the same purpose at no additional cost to so that the same shall not menace or endanger the life or property of any
subscribers. person. City shall have the right to inspect and examine at all reasonable
Yc) The rules and regulations established by the Grantee and times and upon reasonable notice the property owned or used, in part or in
approved by City governing the access channels shall be filed with the whole, by Grantee. Grantee shall keep accurate maps and records of all of its
Board within 90 days after any such channels are put into use. wires, conduits, cables and other property and facilities located, constructed
(d) Subscribers receiving programs on one or more special service and maintained in the City. Further, Grantee shall, without charge, furnish
' channels without also receiving the regular subscriber services may copies of such maps and records from time to time as requested by City.
receive only one specially designated composite access channel coin- C. All wires, conduits, cables and other property and facilities of Grantee,
posed of the programming on access channels. Subscribers receiving shall be constructed and installed in an orderly and workmanline manner. All
only alarm system services or only data transmission services for wires, conduits and cables shall be installed, where possible, parallel with
computer operated functions shall not be included in this requirement. electric and telephone lines. Multiple cable configurations shall be arranged
(5) The Grantee shall comply, at a minimum, with the requirements of City in parallel and bundled with due respect for engineering considerations.
and Board, now or heXeafter adopted by City or Board regarding public D. Grantee shall at all times comply with all applicable laws, ordinances,
use of its equipment, including the following: rules, regulations and codes, federal, state and local. In any event, the
(a) Grantee shall make readily available for public use at least installation, operation or maintenance of System shall not endanger of
minimal equipment necessary for the production of programming and interfere with the safety of persons or property in the City.
playback of prerecorded programs for the specially designated non- E. Whenever City shall undertake any public improvement which affects
commercial public access channel. The Grantee shall also make Grantee's equipment or facilities; City shall, with due regard to reasonable
readily available upon need being shown, the minimum equipment working conditions and with reasonable notice, direct Grantee to remove its
necessary to make it possible to record programs at remote locations wires, conduits, cables and other property located in streets or public
~~~( ) eed~ within the meztimg o'ff6is pa"ragraph shall be tletermfnetl in other property at'its own expense.
the sole discretion of City or by subscriber petition. Said petition must F. Grantee's plans for constructing its System, and the construction of the
contain the signatures of a[ least 10 percent of the subscribers of System, shall be in accordance with its Offering. However, Grantee shall
System, but in no case more than 500 nor fewer than 100 signatures. comply with the following minimum requirements:
SECTION 6. INSTITUTIONAL NETWORK (1) Grantee shall construct underground in any area where another line,
The System shall include at a minimum a separate institutional fete- either electrical or telephone, has blen installed underground.
communications network, interconnected with the subscriber network, of (2) Grantee shall change from aerial to underground, at its own expense, in
eight sections with a combined transmission capachy of 472 channels, with
full two-way capability
Said network shall be offered
activated
ex
anded any area where another line is hereafter changed from aerial to
d
d
.
,
,
p
,
marketed and developed at a minimum in full compliance with the Offering. ergroun
.
un
(3) Grantee shall change from aerial to underground, without cost to City,
Need for the provision of institutional service shall be determined in the sole whenever requested by City, which request can be made for a certain
discretion of Ci[y. area or areas or for the entire System.
SECTION 7. SERVICE TO PUBLIC BUILDINGS AND EDUCATIONAL (4) To enable Grantee reasonable opportunity to change its wiring from
INSTITUTIONS
Grantee shall provide, at a minimum, subscriber and institutional network aerial to underground, and also to allow it to pre-wire all new
subdivisions or new development areas, City shall provide Grantee with
service to all publicly owned buildings, in City (City Hall, police department, written notice of the following, but in no event shall city have any
fire department, schools, libraries, etc.), all educational institutions in City,
and all .buildings now or hereafter wholly or partially owned or leased for liability for failure to provide notice of the following:
(a) Any changes of which City has knowledge, or which City may
governmental use by any state, federal or local government in City, or owned' order, regarding a change from aerial to underground of any line
or leased by school districts or educational institutions in City, all as set out in (telephone or electrical) within its boundaries.
the Offering. Need for either or both of such network services as referred to in (b) Any underground trenching that may be pending.
the Offering shall be determined in the sole discretion of City. (c) New subdivisions and development. All of such subdividers or
SECTION 8. INTERCONNECTION ~ develgpers shall be notified of the Franchise and the System.
Grantee will comply with all. present and future rules, regulations and (d) All Franchise changes affecting the wiring of the System.
orders of the Board regarding interconnection of systems, and will cooperate SECTION 5. CONDITIONS ON USE
with any agencies or utilities involved with interconnection. At such times as A. Grantee shall not place poles or other fixtures where the same will
interconnection is required, Grantee shall accomplish this without additional interfere with any gas, electric or telephone fixture, water hydrant or main.
charge to subscribers. System shall be initially constructed so that other B. Grantee, at the request of any person holding a building moving permit
systems now or hereafter constructed in any area adjacent to System may be
interconnected with S
stem witho
t dela and with not less than five days advance notice, shall temporarily remove,
y
u
y.
SECTION 9. NARROWCASTING raise or lower its wires, conduits and cables. The expense of such temporary
'removal, raising or lowering of wires, conduits and cables shall be paid by
Grantee sha11 provide separate programming capability to City on each of person requesting the same, and Grantee shall have the authority to require
the access channels on the Universal Service Tier. such payment m advance.
SECTION 30. COMPUTER SERVICES
Grantee shall construct System to accommodate interactive data coin- C. Grantee shall have the authority, to the extent the City has authority to grant the
same, to trim trees upon or overhanging any street or public property so as to prevent
munications with a total network transmission time of less than one-tenth
(1 / 10) of a second the branches of such trees from coming in contact with the wires, conduits and cables
. ~
SECTION 11. REGIONAL CHANNEL of Grantee. All trimming shall be dope under the supervision and direction of City and
at the expense of Grantee.
The standard VHF Channel 6 is hereby designated for uniform regional D. Nothing contained in this Franchise shall relieve any person from
channel usage. However, until the regional channel becomes operational,
Grantee may utilize the standard VHF Channel 6 as it deems a
ro
riate liability arising out of the failure to exercise reasonable care to avoid injuring
ili
i
hil
k
t
d
i
h
di
f
f
i
'
pp
p
.
Use of time on the regional channel shall be made available without charge. ac
es w
ng any wor
connec
e
w
gra
ng,
the Grantee
s
t
e per
orm
t
regrading or changing the line of any street or public place or with the
ARTICLE IV. construction or reconstruction of any sewer or water system.
SERVICES AND PROGRAMMING, ARTICLE VI.
SUBSCRIBER CONTRACTS, COMPLAINTS SYSTEM OPERATIONS
SECTION 1. SERVICES AND PROGRAMMING SECTION 1. INFORMATION AVAILABILITY
A. Services andProgramming. The programming andservices shall be A. Throughout the term of this Franchise, Grantee shall maintain books
structured in three tiers, all of which will be programmed at the time of and records in accordance with normal and accepted bookkeeping and
System activation, providing, at a minimum, the programming and services accounting practices for the Cable Communications industry, and allow for
set forth in the Offering. Programming and services as designated in the inspection and copying of them at reasonable times at its designated office.
Offering shall be changed by Grantee only upon prior written approval of The books and records to be maintained by Grantee shall include the
City. The three tiers are as follows: following:
(1) The Universal Service Tier. The Universal Service Tier shall be •~ (1) A record of all•requestsforservice;.
provided as a public service without charge after installation, per- (l) A record of all subscriber or other complaints, and the action taken;
milting free view of seven accesschannels. Asubscriber may lease or (3) A file of all subscriber contracts;
buy a converter, permitting a total service of 13 channels. (4) Grantee policies, procedures and company rules; and
(2) The Family Service Tier. The Family Service Tier shall incorporate the (5) Financial records.
Universal Service Tier with 14 programmed video channels, a total of 21 B. City shall give Grantee at least 24 hours notice before making
channels of service combining access and local broadcasting with local inspections of any books or record of Grantee.
origination. In addition, this tier shall provide a community information C. Grantee shall file with City, at the time of its annual payment of the
service and offer two premium services, afamily-oriented mini-pay- franchise tee, as described in this Franchise, the following:
TV service and a comprehensive FM radio service.
(3) The Fult Service Tier. The Full Service Tier shall provide 54 channels (1) A financial statement prepared by an independent certified public
accountant showing, in such detail as acceptable to City, the gross
which increases the Family Service Tier by incorporating distant revenues of Grantee for the preceding fiscal year.
stations, several .satellite-fed services, additional local origination (2) Current list of names and addresses of each officer and director and
channels, additional premium channels and several customized alpha- other management personnel, and if a corporation, each shareholder
numeric services. Included in this tier shall be a sub-tier called hewing stock ownership of three (3%) percent or more, and if a
"expanded service" which shall have the same channel capacity and partnership, all general partners, and if a general partner is a
shall include a converter and an interactive unit. corporation, the foregoing information shall be given as to the
B. Locally originated programming. Grantee shall provide at a minimum corporate general partner.
'l3 locally programmed channels. (3) A copy of eachdocument filed with all federal, state and local agencies
C. Community Access and Programming. during the preceding fiscal year not previously filed with City (each of
(1) Grantee shall, at a minimum, comply with the community access and these filings shall be provided at the time the filing is made).
programming plan of the Offering.
(2) Grantee shall provide upon system activation a community access and (4) A statement of its current billing practices.
(5) A current copy~of its rules.
programming staff of at least '22 persons, provided, however, that City (8)' A current copy of its subscriber service contract.
recognizes said staff as well as. the entire community access and D. City, its agents and representatives shall have authority to arrange for
programming plan of the Offering encompasses all of the systems of the and conduct an audit of and copy the books and records of Grantee. Grantee
Cities then a party to a Joint Powers Agreement relating to System shall first be given five days notice of the audit request, the description of and
(referred to herein as the "joint system").
(3) The communit
d
i
t
ff
h
l
- purpose for the audit, and description, to the best of City's ability, of the
y access an
programm
ng s
a
s
a
l:
(a) Identify community access needs; books, records and documents it wants to review.
SECTION 2. SERVICE CONTRACT
(ti) Train and consult with interested residents of City in the use of the A. Grantee shall receive approval from City of the form and content of the
access equipment: and service contract to be used by Grantee prior to entering into any such service
(c) Promote the availability and uses of community access. contracts with subscribers, and the grantee shall make no changes in the
(4) Access facilities and equipment shall be provided at a minimum as set approved service contract without prior written approval of City. The service
forth in the Offering. contract shall include, at a minimum, a schedule of all rates and charges,
(5) Modulators shall be provided at 201ocations throughout the joint system description of services, instructions on the use of the system, billing and
in addition to those which shall be provided to educational institutions. collection practices.
~ Further, there shall be a mobile production unit and portable video B. The service contract shall further contain a statement as follows:
recorders as set forth in the Offering, all of which shall be available
upon System activation.. Grantee shall not, as to rates, char es, service facilities, rules, re ulations
g g
(6) Grantee shall cooperate in the development of an access nonprofit or in any other respell, make or grant any preference or advantage to any
+acorporation if determined to be needed by City. person, nor subject any person to any prejudice or disadvantage, provided,
(7) Grantee shall establish a citizen advisory board from City to provide that nothing in this Franchise shall be deemed to prohibit the establishment
community advice and recommendations to Grantee relative to the of specialrnntractsorratesforheadsofhouseholdwhoare62yearsofageor.
community access and programming of System. older or homebound persgns, or for non-profit charitable organizations, bulk
D. Interactive Services. rate discounts for multiple dwellings, or for promotional or other marketing
System shall be fully activated to receive interactive services. Interactive activities.
services shall at a minimum be provided as designated in Che Offering.
Grantee warrants, represents and guarantees that no invasion of privacy can C. Grantee shall have authority to promulgate such rules, regulations,
terms-and conditions governing the conduct of its business as shall be
occur in cotxiection with any aspects of the services provided by System. reasonably necessary to enable Grantee to exercise its rights and perform its
SECTION 2. INTERRUPTION OF SERVICE AND COMPLAINTS. obligations under this Franchise and to assure an uninterruped service to
A. Whenever it is necessary to shut off or interrupt service, Grantee shall each and all of its subscribers; provided, such rules regulations, terms and
do so during periods of minimum use of the System. Unless such interruption conditions sha^ not be in conflict with the provisions of the Franchise,
is unforeseen and immediately necessary, Grantee shall give reasonable ordinances of City, and laws of the State ~! Minnesota or the United States.
notice thereof to subscribers. All costs incurred in repairing System and D. Each subscriber shall be provided with instructions on filing complaints
handling coin taints shall be paid by Grantee; and if service is interrupted or
di
i
fo or otherwise obtaining information or assistance from Grantee.
E
All h
d
ib
n
scont
nued
r more than 48 hours, subscribers shall be credited pro rata for
such interruption. The cause for any such interruption shall be removed and .
ums
escr
ed i
this secuon shall be proviaed w e~cu new
subscriber at the time a contract is entered or service begun, and to all
service restored as promptly as reasonably possible. existing subscribers not less than once each year.
B. Grantee shall maintain an office in the Minneapolis/St. Paul metropoli- F. The term of a subscriber contract shall not be for more than 12 months
tun area which shall be open during all usual business hours, have a listed duration unless after 12 months the contract may be terminated by the
local telephone, and be so operated that complaints and requests for repairs subscriber at his option at any time, with no penalty to subscriber.
or adjuslnrents may be received at any time, 7 days per week. SECTION 3. SUBSCRIBER PRACTICES
(1) Notice of this information shall be provided to all new subscribers at A. There shall be no charge for disconnection of any installation or outlet. If
time of subscription and to existing subscribers annually. any subscriber fails to -pay a properly due monthly subscriber fee; or any
(2) Grantee shall not engage in the sale of television sets or provide other other properly due fee or charge. Grantee may disconnect the subscriber's
television repair service, but in the event such service is required, shall service outlet, provided, however, that such disconnection shall not be
promptly notify subscriberof that need for service. effected until after the later of (i) 60 days after the due date of said delinquent
(3) All complaints by City, subscribers, or other persons regarding the fee or charge or (ii) ten days after delivery to subscriberof written notice of
qua"sty of service, equipment mal[unctiun, billing disputes, and any the intent to disconnect. If a subscriber pays before expiration of the later of
other matters relative to the System, shall be investigated .and (i) or (ii), Grantee shalt not disconnect. After disconnection, upon payment.in
~elinyuent 1'ee or charge and the payment of a reconnection charge, of their respective servants. agents, officials or employees shall in any ~. remedied all defaults hereunder; and
ll promptly reinstate the subs riber's cable service. way contribute:.
~ds to subscribers shall be ma~e or determined in the following (2) Arisin out of an • claim for invasion of the ri 'nt of (b) Such °eceiver or trustee, within said 120 days, shall i}FVe executed an
g y g privacy, for agreemerA~i<;;h City, duly approved by the Court having ~arisdic>,r~ in the
rantee [ails, upon reyuest by a subscriber, to rovide any service defamation of any, person, firm or corporation, or the violation or premises, whereb.r;lgch receiver or trustee assumes and agrees to be bound
P infringement of any copyright, trademark, trade name, service mark by each • nd every provision of this Franchise.
n being offered, Grantee shall promptly refund all deposits or or patent. or of any other right of any person, firm or corporation. SECTION 3. ABANDONMENT
i once charges. paid for the service m question by said subscribes except claims because of City's own programming: and Grantee may not abandon an
pus provision does not alter Grantee's responsibility to subscribers y portion of System without having given not
hder any separate contractual a reement or relieve Grantee of an (3) Arising out of Grantee's failure to comply with the provisions of this less than three months prior notice to City and Board. Further, Grantee may
g Y Franchise, any federal, state or local law, ordinance or regulation not abandon any portion of S stem without coin ensating Cit for dams es
ether liability. applicable to Grantee or the System. resultin from the abandonment. The amount of dams es resultin from
f any subscriber terminates any monthly service because of failure of (4) Any and all claims which Grantee may now or hereafter have or claim •ibandonment and due City shall be determined in the sole discretion of City.
A Franchise to render the service in accordance with Franchise, Grantee shall to have agaiinst City, its servants, agents, employees or officials, due to An abandonment of any portion of the System as determined in the sole
refund to such subscriber the proportionate share of the charges paid by [he or arising out of damage to any of Grantee's property or equipment, discretion of City shall be a cause for termination of this Franchise by City.
subscriber for the services not received. Thls provision does not relieve Gran- including, without limitation, resulting or consequential loss of income, ARTICLE XL.
tee of liability established in other provisions of this Franchise. injury to reputation, or any other resulting or consequential damages of PURCHASE OF SYSTEM
s .: If any subscriber terminates any monthly service prior to the end of a shy kind, caused by or resulting from acts or omissions of City or any of SECTION 1. GENERAL
paid period, a proportionate amount of any prepaid subscriber service 'its servants, agents, employees or officials. A. IF at any time Grantee receives a bona fide purchase offer for the System
using the number of days as a basis, shall be refunded to the subscriber B. If suit be brought or threateded against City, either independently or which Grantee is willing to accept, a complete copy of such offer shall
Grantee. jointly with Grantee, or with any other person or municipality, Grantee, upon promptly be given to City and City shall have the right to purchase the System
D: Continued failure by Grantee to provide services required by this notice given by City, shall defend City at the cost of Grantee, and if final according to the terms of that offer. City shall exercise such right by
ranchise may, in the discretion of City, be cause for imposition of a penalty judgment is obtained against City, either independently or jointly with submitting to Grantee, within six months after City's actual receipt of the
terrfiiination of this Franchise. Grantee. or any other defendants, Grantee shall indemnify City and pay such bona fide offer, notice that City desires to purchase the System pursuant to
SECTION 4. FRANCHISE FEE, RATES, CHARGES, CHANGES [N FEES judgment with all costs and satisfy and discharge the same. said offer. If City does not exercise such right the System may be sold, but
ND PROCEDURES C. City reserves the right to cooperate with Grantee and participate in the only on the terms submitted to pity. If any changes are made in the purchase
A. FuII Regulatory Power Reserved.. defense of any litigation either through intervention or otherwise. Grantee offer given [o City, such purchase offer, as so changed, shall again be given to
(1) All rates~and'ch8rges shall subject to regulation by City, in a manner shall pay upon receipt of written demand from City, all expenses incurred by City and City shall have six months from actual receipt by City of the offer, as
to be.provlded by Council:n the absence of any City Action taken to City 'in defending itself with regard to any matters in [his section. These changed, within which to exercise its right to purchase the System pursuant
exerclse•rale regulation, Gtantee shall be subject to the rate regulation - ixpenses shall include, but not be limited to, attorneys' fees, and -the to the offer, as changed, all as above provided. If City does not exercise its
provisions,~ovided for herein, and of the State or its agencies that may reasonable value of services (as determined by City), rendered 6y City or any right to purchase the System pursuant to any offer given to City pursuant to
from time to time be applicable. employees, agents or representatives of City. this paragraph, and the System is not sold to the buyer and on the terms set
(2) In addition to the power to regulate rates and charges, City hereby SECTION 3. INSURANCE out in the offer given to City, then the right of City to purchase the System
reserves the right to adopt regulations governing Grantee's collection A, Grantee shall maintain liability insurance covering its obligations of shall continue, and all subsequent purchase offers shall be given to City
of advs}rice charges and deposits, installation and reconnection charges, indemnification provided for in or as a result of the exercies of this Franchise pursuant to this paragraph. Also, the City's right to purchase pursuant to this
policies and procedures, disconnection charges, policies and pro- covering both the City and Grantee and shall maintain said insurance during
ceder@s; and the availabilit of refunds. paragraph shall survive every sale to a buyer and shall continue and be
Y the entire term of this Franchise in the minimum amount of: binding upon every buyer of the System.
(3) Cost for installing any part of theSystem will be a factor in the rate only (U $500,000 for property damage to any one person; B. Upon forfeiture, revocation or termination of this Franchise, or at the
if such+cosC Was :incurred within City. - ~ (2) $2,000,000 for property damage in any one act or occurrence; normal expiration of the Franchise term, City shall have the right to
(4) The territory<fqr rates applicable to System shall be Ci[y and all-Cities (3) $1.000.,000 for personal injury to any one person; and , purchase the System. Such right shall be exercised upon written notice to
then parties Lo a joint powers agreement relating to the System. (4) $2,000,000 [or personal injury in any one act or occurrence. Grantee given within six months after the occurrence of any such event.
B. Francltise~i":.cea B. Such insurance shall be with a company acceptable to City and shall SECTION 2. PROCEDURES
(I) ThroughouL;Ehe term of this Franchise, Grantee will pay to City, within otherwise be in form and substance acceptable to City. Such insurance policy In the event City elects to exercise its right to purchase the System as
60 days after thg;end oL each fiscal year of Grantee, an annual fee of five ~ with written evidence of payment of required premiums shall be filed and provided in Section 1B of this Article, the following shall then apply:
(5 %) percent of all gross revenues. No payment will be allowed of'any maintained with City during the term of the Franchise. The above minimum A. City and Grantee shall negotiate all terms and conditions of the purchase
tee that is different from five (5%) percent, other than the filing tee and amounts shall be changed from time to time by Grantee as requested by City. of the System.
payment reyuired of the successful applicant as established to recover Grantee shall immediately give notice to City of any threatened or pending B. If City and Grantee cannot agree upon the terms and conditions of the
the costs of franchising. Grantee agrees to support any waiver required litigation affecting this insurance. purchase, City shall have the right to proceed to arbitration. Arbitration shall
by the FCC'for the established franchise Fee. The annual fee may be C. Neither the provisions of this section nor any damages recovered by City commence and proceed according to applicable Minnesota law except as
subject tp renegotiation at such as federal or state authorities no longer shall be construed to, or shall, limit [he liability of Grantee. follows: '
regulate Ehe amount of the fee, but in no event shall the renegotiated fee D. No recovery by City of any sum by reason of the Letter of Credit or Bond (1) The parties shall, within 15 days of City's decision to proceed to
be less than file percent {5%). required in this Franchise shall be any limitation upon the liability of Grantee arbitration, appoint one arbitrator each who is experienced and
(2) Payment will.be made to City with an itemization of the gross revenues to City under the terms of this section, except that the sumso received by City knowledgeable in the purchase and valuation of business property.
derived Lrom the services in City. from such Letter of Credit or Bond shall be deducted from a recovery under Arbitrators shall each agree upon the selection of a third arbitrator,
C. Rates and Other Charges: this section, if for the same act or occurrence. similarly qualified, within I5 days after appointment of the second
(1) Rates and charges charged by Grantee for monthly service and E All insurance policies maintained pursuant to this Franchise shall ~ arbitrator.
installation and' other charges hereunder shall be uniform, fair and contain the following endorsement: (L) Within 30 days after appointment of alt arbitrators and upon ten days
reasonable and' designed to meet all necessary costs of service, It is hereby understood and agreed that this insurance policy may written notice to parties, the arbitrators shall commence a hearing on
including a fair rate o[ return on the original cost, less depreciation; of not be cancelled nor the intention not to renew be stated until 60 days the terms and conditions of the purchase in dispute.
the properties devoted to such service (without regard to any subse- after receipt lo. City, by registered mail, of written notice of such (3) The hearing shall be recorded and may be transcribed at the request of
quent sale or transfer price or cost of such properties). intention to cancel or not to renew. either party. All hearing proceedings, debates and deliberations shall
(2) For two years after commencement of construction of System, or until SECTION 4. LETTER OF CREDIT be open to the public and at such times and places as contained in the
completion of aU construction required by Article V, Section I of this A. At the time of acceptance of this Franchise, Grantee shall deliver to City notice or as thereafter publicly staled in the order to adjourn.
Franchise; whichever is longer as determined by City, the maximum an irrevocable and unconditional Letter of Credit, in form and substance (4) The arbitration panel shall be required to determine the purchase price
rates shall be the specific rates of Grantee as included in Exhibit,B, acceptable to City, from a National,or State bank approved by City, in the of the System according to the standards established in paragraph C
attached heret,0;,and made a part of this Franchise and known as amount of $50,000.
below.
Grantee Schedule of Rates. B. The Letter of Credit shall provide that funds will be paid to City, upon (5) At the close of the hearings and within 30 days,. the arbitrators shall
3) Service requestsfor maintenance or repairot Grantee's property shall be per-, written demand of City, and in an amount solely determined by City in prepare written findings and make a written decision agreed upon by a
formed at no charge to a subscriber. If such maintenance or repair is required payment for penalties charged pursuant to paragraph C of this section, in majority of the arbitrators which shall be served by mail uponCity and
as a resulf6t damage caused by subscriber, Grantee may charge as a max- payment for any monies owned by Grantee pursuant to its obligations under Grantee.
imum itg'direct costs for material and labor for service calls to subscribers' this-Franchise, or in payment for any damage incurred as a result of any acts (6) The decision-of a majority of the arbitrators shall be binding upon both
homes. or omissions by Grantee pursuant to this Franchise. r
(4) Rates for services not initially included in Exhibit B shall be established ~ ~ C. In, addition to recovery of an monies owed b Grantee to City or parties except that City may, in its sole discretion and' wi hoot any
only by am¢adment of this Franchise. Y Y penalty or cost to City of any kind, withdraw its offer to purchase within
D. Rate Chan e5. - damages to City as a result of any acts or omissions by Grantee pursuant to 90 days of receipt of the final decision, of a majority of the arbitrators.
(1) No rate ch~rf eshall be a the Franchise, City in its sole discretion may charge to and collect from the (7) Either party may seek udicial relief to the extent authorized under
g pproved that would result in different rates or Letter o[ Credit the followin ~
g penalties:. Minnesota Statutes, M.S.A. 572.09 and 572.19 as the same ma be
charges .for service to similarly situated subscribers in the rate (4) For failure to complete System construction in accordance with amended, and, in addition, under the followin circumstances: Y
territory, inthe„sole opinion of City. Grantee''s initial service area tan, unless City approves the delay, the g
(2) No rate orcharge change will be approved unless all of the standards - ~ P (a) A party fails to select an arbitrator;
for review have. been considered and evaluated and determinations Penalty shall be Two Hundred Dollars ($200.00) per day for each day, or (b) The arbitrators fail to select a third arbitrator:
have been made, all pursuant to this Franchise. part thereof, such failure occurs or continues. (c) One or more arbitrator is unqualified;
(3) The standards for reviewin a ro osed rate chan a will include at (2) For failure to provide data, documents, reports or information or to (d) Designated time limits have been exceeded;
g P P g cooperate with City during an application process or System review, the (e) The arbitrators have not proceeded ex editiousl or
least the following: P Y:
(a) The abfl4tY of the Grantee to render S stem service and to derive penalty shall be Fifty Dollars ($50.00) per day for each day, or part (p Based upon the record the arbitrators abused their discretion.
Y thereof, such failure occurs or continues.. (8) In the event a Court of competent jurisdiction determines the arbi-
a reasonable profit therefrom under the existing rate schedule and (3) For failure to comply with any of the provisions of this Franchise for trators have abused their discretion, it may order the arbitration
proposed rate schedule; ~ which a penalty is not otherwise specifically provided pursuant to this procedure repeated and issue findings; orders and directions, with costs
(b) Therevenues and profits derived from System services; paragraph C, the penalty shall be Fifty Dollars ($50.00) per day for of soft to be awarded to the revailin
) (c) T'ax,3tienefits:received by Grantee, its partners or shareholders, as p g party.
each day, or part thereof, such failure occurs or continues. (9) Cost of arbitration shall be borne a uall
the result of their investment in the System; (4) For failure to test, anayyze and report on the performance of the S stem q y
(d) Cash flow derived from S stem services; Y C. The purchase price of the System to be paid by City shall be the cost less
(e) The efficienc of GranteeY following a request by City, the penalty shall be Fifty Dollars ($50.00) depreciation (as shown on the books and records of Grantee) or market
per day for each day, or part thereof, such failure occurs or continues. value, whichever is less. Goodwill shall not be included in the purchase price
(f) The quality o the service offered by Grantee; (5) For failure by Grantee,to modify the System or to provide additional of the System.
(g) The original cost of the System, less depreciation; services within 45 days after required by City following a periodic ~ D. Grantee expressly waives its rights, if any, to relocation costs that might
(h) A fair. rate of return with respect to investments having similar review or renegotiation session the penalty shall be Two Hundred otherwise be provided by law.
risks to that of providing cable communication services; Dollars ($200.00) per day for each day, or part thereof, such failure E. The date of valuation shall be no earlier than the da followin the date
(i) The ~@xtent to which Grantee has adhered to [he terms of this occurs or continues. of revocation, forfeiture, ex iration or termination of this Franch se and no
Franchise;"' P
(j) Fairness to residents and subscribers; (6) Forty-five days following notice from City of a failure of Grantee to later than the date City makes a wntten offer for the System.
(k) Capital expenditures by Grantee in providing updated technology comply wgith construction, operation or maintenance standards, the ARTICLE XII
.and service to subscribers; penalty shall he Two Hundred Dollars ($200.00) per day for each day, or MISCELLANEOUS
part thereof, such failure occurs or continues. ~ SECTION 1. TRANSFER OF OWNERSHIP OR CONTROL
(I) The extent to which Grantee has then provided service to schools, (7) For failure to provide the services Grantee has proposed, including but A. This Franchise shall not be assigned or transferred, either in whole or in
hospitals, libraries, publicly owned or leased buildings and similar not limited to the implementation and the utilization of the access part, or leased, sublet or mortgaged in any manner, noi• shall title thereto,
.institutions within City: channels and the making available for use of the equipment and other either legal or equitable or any right, interest or property therein, pass to or
(m) Such other factors as City may deem relevant. facilities to City, the penalty shall be One Hundred Dollars ($100.00) per vest in any person without the prior written consentof City, which consent
(4) The procedures to be followed in changing a rate or charge shall include day for each day, or part thereof, such failure occurs or continues. ~ shall not be unreasonably withheld: Further, Grantee shall not sell or transfer
at least the following: (8) Each violation of any provision of this Franchise shall be considered a any stock or ownership interest so as to create a new controlling interest
(a) An application for a rate change will be submitted to City and a separate violation for which a separate penalty can be imposed. arse t with the consent of Cit which consent shall not be unreasonabl
copy filed with the Board. U. Exclusive of the contractual enalties set out above in this section, a P Y' y
(b) The application shall be supported: by statistical and other proof p withheld. The transfers described in this paragraph shall, in the sole
indicating that the existing rate or charge is inade uate and un- violation of any provision of this Franchise is a misdemeanor. discretion of City, be considered sale or transfer of Franchise within the
4 E. Whenever City finds that Grantee has violated one or more terms, meanin and intent in the followin
reasonable and that the proposed increases are required to enable g g paragraph.
Grantee to'render service to fulfill its obligations under this Franchise conditions or provisions of this Franchise, a written notice shall be given to B. Any sale or transfer of Franchise, including a sale or transfer by means
and to derive a reasonable.profit therefrom. Grantee informing it of such violation. At any time after three days following of a fundamental corporate change, requires the written approval of City.
(c) The application shall include current information and financial notice, City may draw from the Letter of Credit all penalties and other monies Any sale or transfer of Franchise shall be subject to the provisions of Board
due City. rules inhibiting certain ownershi The
information with at least the following: p' p. parties to the sale or transfer of
1, Balance sheet,. F. W henever a penalty has been assessed, Grantee may, within ten days of Franchise shall make a written request to City for its consent. City shall reply
notice, notify'City that there is a dispute as to whether a violation or failure in writin within 30 da s of actual recei t of the re oast and shall indicate its
::. ;2' Inwme statement; has, in fact, occurred. Such notice b Grantee to City shall s ecif with g Y P q
',;<3,'- Statement of sources and applications of funds; Y P Y approval of the request or its determination that a public hearing is
I3et i1e particularity the matters disputed by Grantee. necessary. City shall conduct a public hearing on the request within 30 days of
;~ ¢. ~~, .d supporting schedules of expenses, income, assets and (1) City shall hear Grantee's dispute at the next regularly scheduled such determination if it determines that a sale or transfer of Franchise may
Sbther items as.may be required 6Y City; Council meeting. City shall supplement the Council decision with adversely affect the Grantee's subscribers.
5. StateneCgqtof teYirretri~and projected subscribers; written findings of fact. C. Unless otherwise ahead r
6. A curreniaiift of ~atei; and charges of Grantee applicable to systems y p ovided for by local law, notice o[ any such
'owned or. operated by its parent corporation or other subsidiaries (2) Upon a determination by City that no violation has taken place, City hearing- shall be given 14 days prior to the hearing by publishing notice
shall refund to Grantee without interest all monies drawn from the thereof once in a newspaper of general circulation in the City. The notice shall
or aKiliates of its parent corporation at other locations; Letter of Credit by reason of the alleged violation, less all costs and contain the date, time and place of the hearing and shall briefly state the
7. q current'7fst>pt rates and charges for other systems in the seven +,; attorneys' fees incurred by City as a result of Grantee's appeal substance of fhe action to be considered b Cit Within. 30 days after the
couq gpolitari area, ,.,.~F _..,.,;,;,, ;, _,:, _,r.t ~. ~ -- . ,,~ -G Eaaid, tter.of Credit or any-subse uent Letter of Credit delivered
~y;~ public hearing, City shall approve or deny in writing the sale or transfer
b. Cash Ilo,w ~erit-ed from S~rsteia:_ e y Y
"'~'~~~ ~..t; ~ ~ - ~",`Y~-di'ta~ bye=renewed~otr replacededurngtthe termtof this request.
9. Statement of tax benefits received by Grantee, ns partners or ~p~rauon ',
shareholders, as a result of their investment in system. ~ ~~.. D. Any sale or transfer of Franchise, including a sale or transfer by means
(d) City will notlty Grantee and'Board and schedule a public hearing on the same for ;~~,,,,t~, ,
on the request within two weeks from the date of receipt of the a ;ouIfiCity drawsauponathe Lettersof Credit, or any subsequen a documents related to sa a or cans er ~~ '~'`~~~'
Ifr application and the determination by City of its completeness. Grantee Credit delivered pursuant hereto, in whole or in part, Grantee shall replace
r will notify the public through providing notice for one week, each day E. The parties to the sale or transfer of only this Franchise, without the
between 7:00 p.m. and 9:00 p.m. on two channels of the date, place and the same within three days and shall deliver to City a like replacement Letter inclusion o[ the System in which at least substantial construction has
substitution of the previous Letter of Credit. commenced, shall be required to establish to the sole satisfaction of City that
time of the hearing. City will publish notice ten days prior to hearing in of Credit for the full amount stated in Paragraph A of this section as a
its official newspaper. F. For purposes of this section, fundamental corporate change means the
(e) Alter closing the public hearing, City will have 31 dnyrateshor Credit for thetwholeCamoiunt thereofeand hold the proceeds, wiithout interestt sale oretransferfof a controlling 'interest in thetstoekbota corporation or the
which to make its determmahon. Any approved change i and use the, proceeds to pay costs incurred by City m performing and paying
charges shall become effective upon the date determined by City.
i e that are not erformed or paid for by Grantee pursuant hereto, (including a parent and its subsidiary corporation) ,consolidation or creation
(f) I[ City fails to approve the requested change or rates or charges for any or all of the obligations, duties and responsibilUies of Grantee under otla subsid ary cornnrationaForathe purposes otpth stSectionssfundamental
within the 31 day period, Grantee may appeal pursuant to the then includingcattorneys'fees incurred by the City m so performing and paying. artnershi change means the sale or transfer of all or a majority of a
applicable procedures of the Board. artnership s assets, change of a general partner in a limited partnership,
(g) City may utilize a rate consultant to advise it on proposed rate The failure to so replace any Letter of Credit may also, at the option of Ctty, Phan a from a limited to a general partnership, incorporation of a partner-
changes and to assist it in maintaining uniform rates within the rate be deemed a default by Grantee under this Franchise. The drawing on the P"
shi or change in the control of a partnership.
territory. A rate consultant may be any person who ha`osu`foicerit Lerformance of the obl gations,sdutieshand responsibil ties offGrantee which G.~The word "control", as used herein, is not limited to major stockholders,
background and experience, in the sole opinion of City, P P Y are in default, shall not be a waiver or release of such default. but includes .actual working control in whatever manner exercised. As a
evaluate and analyze rates and charges. ' J. The collection by City of any damages, monies or penalties from the
' (h) All costs for the review of an application for a rate or charge minimum, "control", as used herein, means a legal or beneficia interes
chan a shall be paid by Grantee upon demand of City. The costs shall Letter of Credit shall not affect any other right or remedy available to W15e: percent or more. Every change, transfer or acquisition of control o[ Grantee
include, but not be limited to, attorneys' fees, and the reasonable value deemedlaawa ver of any right of Cityypuirsuantsto this Franchiserorfothedit, be shall makehe Franchise sub)ect to cancellation unlessf andluntil City shall
of services (as determined by City) rendered by City or any city SECTION 5. BONDS
employees, agents or representatives of City. A, At the commencement of this Franchise, and at all times thereafter until have consented in writing thereto, which consent shall not be unreasonably
(i) A time limit may be waived only if City and Grantee consent. withheld. For the purpose of determining whether it shall consent to suet
E. Periodic Reviews and Renegotiation. Grantee has liquidated all of its obligations with City, Grantee shall maintain chan e, transfer or acquisition of control, City may inquire into thr
The field of cable communications is a relatively new and rapidly chan ing with City a bond m the sum of Three Hundred Thousand Dollars ($300,000.00) ual gications of the prospectice controlling party, and Grantee shall oasis
ggkk City in any such inquiry and pay all costs incurred by City in so inquiring
me which shall no doubt see many regula he Franchise l~eriiod. The~reforeein uponchher faithful itperformanceeSOfs G anteea ofeth sleFranchise nand the q
ing and legal changes during their term of t P includin City staff time at a value determined by City.
g H. In the absence of extraordinary circumstances, City will not appprov
order to provide for a maximum degree of flemoderni ststemrathe ifollowing eventtGrantee shall failbto comply w th anytlawu ord nanceioir regulat one any transferor assignment of the Franchise prior to substantial completio.
help achieve a continued advanced and Y there shall be recoverable jointly and severally from the principal and surety of construction of System, as determined solely by City.
renegotiation provisions will apply: I. In no event shall a transfer or assignment of ownership or control b
(1) CUy reserves [he right to adopt rules vndws and cane otiation In the full amount of any ompensat on Sindefmnf cation orscost otlremovaliogany approved without tranferee becoming a signator to this Franchise.
procedures and subjects for periodic re e 8 J. Any transferee shall be subordinate to any right, title or interest of Cit7
absence of any City action ta~oceduresrand subjects dcscribede nsthis coste(with merest at two (2%) percent bn excess of theothen.prime rate)aup SECTION 2. REMOVAL AFTER TERMINATION OR REVOCATION
be subject to at least the p to the full amount of the bond, and which bond shall further guarantee A. At the expiration of the term for which this Franchise is granted, or upo
its revocation or termination, as provided for herein, City shall have the rig
section. p, ublic
(2) City may require, at its sole discretion, System performance evaluation ro arty, and taxes duet tolCitywhich arise byageaison off the construction, to require Grantee to remove, at Grantee's expense, all or any portion o[ tt
sessions at any time during the term of this Franchise or as required by operation, maintenance or use of the System. System from all streets and public property within City. In so removing tt
federal or state law. Such evaluation sessions shall be conducted by City
within 30 days of the third, fifth and tenth anniversary dates of the nth r rights the City may have under this Fratnchise or any othed aiNion to all System, Grantee shall refill and compact at its own expense any excavate
effective date of acceptance of this Franchise by Grantee. that shall be made by it and shall leave all streets and public property in
good a condition as that prevailing prior to Grantee's removal of the Syster
(3) All evaluation sessions shall be open to the public and notice of sessions C. City may, in its sole discretiAoRTICLE IX a amount of the bond. and without affecting, altering or disturbing in any way electric, telephone
published in the same way as a legal notice. Grantee shall notify its DEFAULT
subscribers of all evaluation sessions by announcement on at least two other utility cables, wires or attachments. City shall have the right to inspe
channels of the System between the hours of 7:00 p.m. and 9:00 p.m. for p~ CTIYOshallNgive w it en notce of default to Grantee if City, in its sole and approve the condition of such streets and public property after remov:
five consecutive days preceding each session. discretion, determines that Grantee has: The Letter of Credit, Bonds, Insurance, Indemnity and Penalty provisions
this Franchise shall remain m full force and effect dunng the entire term
(4) Topicswhich may be discussed at any evaluation session may include, removal.
but not be limited to, service rate structures; franchise fee; penalties, (1) any rule, orderrregulationtor de erminiation of the Citytstate or federal B, If, in the sole discretion of City, Grantee hasdailed'to commence remot
free or discounted services; application of new technologies; system overnment, not in conflict with this Franchise;
performance; services provided; programming offered; community g of System, or such part thereof as was designated by City. within 30 days a I
written notice of City's demand for removal is given, or if Grantee has fail
access; local origination; customer complaints; privacy; amendments (2) hereofpted to evade any provision of this Franchise or-the acceptance to complete such removal within one year after written notice of Cit;
to this Ordinance; judicial, Board and FCC rulings; line extension (3J practiced any fraud or deceit upon City or subscribers;
policies; and Grantee or City rules. demand for removal is given, City shall have the right to exercise one of t
(5) During a review and evaluation by City, Grantee shall fully cooperate (4) Made a mafenal misrepresentation of fact in the application for or following options:
with City and shall provide without cost such information and docu- negotiation of the Franchise; (1) Declare all right, title and interest to the System to be in City with
menu as City may request [o reasonably perform the service. or rights of ownership including, but not limited to, the right to operate i
System or transfer the System to another for operation by it.
(6) If at any time dunng its review, City determines that reasonable g~gn~rantee fa?Is to cure such default within 30tdays aftehthelgiving of 2 Declare the System abandoned and cause the System or such p
evidence exists of inadequate System performance, it may require thereof, as City shall designate, to be removed at no cos[ to City. 7
Grantee to perform tests and analyses directed toward such suspected days within(whichuto ore theisame,candeGranteerfailsotoecommence to cure cost of said removal shall be recoverable from the Letter of Cre~
inadequacies at the Grantee's own expense. Grantee shall fully Bonds, Insurance, Indemnification and Penalties provided for in t
cooperate with City in performing such tdai s after nolticee The rreport diligence, initCityss sole0opinion,rto cure suchedefaultaas soonsas poss ble)e Franchise, or from Grantee directly as a liquidated damage.
and a report, if requested, within 30 y then, and in any event, such default shall be a substantial breach and City, at C. 'Any portion of the System not designated by City for removal st
prepared by Grantee shall include at least: ment to Gra tee
(a) A description of the problem in System performance which its option, may elect to either cure the default or terminate this Franchise as belong to and become the property of City without pay P
precipitated the special tests. follows: Grantee shall execute and deliver such documents, as City shall request
(b) What System component was tested. (1) City may cure any default for the account a including attorn ys'Sfees form and substance acceptable to City, to evidence such ownership by Cit
Grantee and all sums so expended by City, SECTION 3. WORK PERFORMED BY OTHERS
(c) The equipmem used and procedures employed in testing. _
interest ,thereon at a rate per annum two (2 /)percent in excess of the A. Grantee shall give notice to City specifying the names and a resse
(d) The method, if any, by which such System performance problem incurred in curing such default, whether suit be brought or not, with any other entity, other than Grantee, which performs services pursuan
was resolved. then prime rate, shall be paid be Grantee to City, upon demand, and this Franchise, provided, however, that all provisions of this Francl
(e) Any other information pertinent to said tests and analyses which failure to so pay upon demand likewise may be deemed by City to be a remain the responsibility of Grantee.
may be required by City, or determined when the test is performed. default under this Franchise.
City may require that tests be supervised at, Grantee's expense by a B. All provisions of this Franchise shall apply to any subcontrac m
before the Council at a regular meeting of the City Council. If City others performing any work or services pursuant to the provisions of
consultant designated by City. The consultant shall sign all Tecords of ('L) City may place the issue o[ revocation and termination of the Franchise Franchise.
special tests and forward to City such records with a report interpreting decides there is cause or reason to terminate, the following procedure SECTION 4. INTEREST RATE
the results of the tests and recommending actions to be taken. shall be followed:
(a) City shall provide Grantee with a written notice of the reason or For purposes of this Franchise, prime rate shall mean the interest c ar
_ .. „_-. ,.___. .... .. ............... ~r from time to time by the First National Bank of Minneapolis or~9
(7) As a result of a periodic review or evaluation session,~City mayQ edupee
,pro[¢ [nerefrom under the existing rate schedule and
proposed rate schedule;
(b) Therev~ennes and profits derived from System services;
~ (c) Tax;tienefitsreceived by Grantee, its partners or shareholders, as
the result of their investment in the System;
(d) Cash flow tlergived from System services;
(f)) The quality of the service offered by Grantee;
(g) The original cost of the System, less depreciation;
(h) A fair.raie of return with respect to investments having similar
risks to that of providing cable communication services;
(i) The'~xtent to which Grantee has adhered to the terms of this
Franchise;"' ;;
(k) Cap tat expendidtures by Grantee 1b'n providing updated technology
,..and service to subscribers;
(1) The extent to which Grantee has then provided service to schools,
hospitals, libraries, publicly owned or leased buildings and similar
.institutions within City:
{4) The p)roeedureseto be followed ~n hanging a rate or barge shall include
at least the following:
(a) An aptalicatibn for a rate change will be submitted to City and a
copy filed with the Board.
(b} The application shall be supported by statistical and other proof
indicating that the existing rate or charge is inadequate and un-
reasonable and that the proposed increases are required to enable
Grantee to'render service to fulfill its obligations under this Franchise
and to derive a reasonable.profit therefrom.
(c) The application shall include current information and financial
information with ableast the following:
I, Balance sheet;.
'2' Income statement;
'~ .~ Statement of sources and applications of funds;
¢. Detpi}ed supporting schedules of expenses, income, assets and
5. ~StatEr>'•2er~t of a•''urrerttb''and projected subscribers;
6. A current li>!I of rates and charges of Grantee applicable to systems
owned on oper8ted by its parent corporation or other subsidiaries
or affiliates of its parent corporation at other locations;
7. A current listof rates and charges for other systems in the seven
coutif,~^,MeyKppolitan area;
•8. Cash flow derived from System services since the commencement
of this•h'raacirlse-;;ar~,._.__-
9. Statement of tax benefits received by Grantee, its ~~ " ~ `~~ ~ ~
shareholders, as a result of their investment in Systempartners or
~ on(the [request w th nrtwo weeks from thecdateulofareceipthotrth
application and the determination by City of its completeness. Grantee
will notify the public through providing notice for one week, each day
between 7:00 p.m. and 9:00 p. m. on two channels of thedate, place and
time of the hearing. City will publish notice ten days prior to hearing in
its official newspaper.
(e) After closing the public hearing, City will Have 31 days within
which to make its determination. Any approved change in rates or
charges shall become effective upon the date determined by City.
(q IC Cfty (ails to approve the requested change or rates or charges
within the 31 day period, Grantee may appeal pursuant to the then
applicable procedures .of the Board.
(g) City may utilize a rate consultant to advise it on proposed rate
charges and to assist it in maintaining uniform rates within the rate
territory. A rate consultant may be any person who has sufficient
background and experience, in the sole opinion of City, to properly
evaluate and analyze rates and charges..:.
(h) All costs for the review of an application for a rate or charge
change shall be paid by Grantee upon demand of City. The costs shall
include, but not be limited to, attorneys' fees, and the reasonable value
of services (as determined by City) rendered by City or any city
employees, agents or representatives of City.
{i) A time limit may be waived only if City and Grantee consent,
E. Periodic Reviews and Renegotiation.
The field of cable cgmmunications is a relatively new and rapidly changging
one which shall no doubt see many regulatory, technical, financial, market-
ingand Legal changes during their term of the Franchise period, Therefore, in
order to provide For a maximum degree of flexibility in this Franchise, and to
help achieve a continued advanced and modern system, the following
renegotiation provisions will apply:
(1) City reserves the right to adopt rules and regulations controlling the
procedures and subjects for periodic reviews and renegotiation. In the
absence of any City action taken to exercise these rights, Grantee shall
be subject to at least the procedures and subjects described in this
section.
(2) City may require, at its sole discretion, System performance evaluation
sessions at any time during the term of this Franchise or as required by
federal or state law. Such evaluation sessions shall be conducted by Clty
within 30 days of the third, fifth and tenth anniversary dates of the
effective date of acceptance of this Franchise by Grantee.
(3) All evaluation sessions shall be open to the public and notice of sessions
published in the same way as a legal notice. Grantee shall notify its
subscribers of all evaluation sessions by announcement on at least two
channels oF[he System between the hours of 7:00 p. m. and 9:00 p.m. for
Live consecutive days preceding each session.
(4) Topicswhich may be discussed at any evaluation session may include,
but not be limited to, service rate structures; franchise fee; penalties,
free or discounted services; application of new technologies; system
performance; services provided; programming offered; community
access; local origination; customer complaints; privacy; amendments
to this Ordinance; judicial, Board and FCC rulings; line extension
policies: and Grantee or City rules.
(5) During a review and evaluation by City, Grantee shall fully cooperate
with City and shall provide without cost such information and docu-
ments as City may request to reasonably perform the service.
(0) If at any time during its review, Cfty determines that reasonable
evidence exists of inadequate System performance, it may require
Grantee to perform tests and analyses directed toward such suspacted
inadequacies at the Grantee's. own expense. Grantee shall fatty
cooperate with City in performing such testing and shall prepare results
and a reporf, if requested; within 30 days after notice. The report
prepared by Grantee shall include at least:
(a) A description of the problem in System performance which
precipitated the special tests.
(b) What System component was tested.
(c) The equipment used and procedures employed in testing.
(d) The method, iC any, by which such System performance problem
was resolved.
(e) Any other information pertinent to said tests and analyses which
may be required by City, or determined when the test is performed.
City may require that tests be supervised at, Grantee's expense by a
consultant designated by City. The consultant shall sign a1lTecords of
special tests and forward to City such records with a report interpreting
the results of the tests and recommending actions to be taken.
(7) As a result of a periodic review or evaluation session, Ci[y may require
Grantee to modify the System or to,provide additional services.
Grantee will comply with any such requirement of the City unless, in
the sole opinion of City, technology does not permit it, or Grantee
establishes to the satisfaction of City that the cost would prohibit the
implementation of the modification or the additional services.
SECTION 5. FRANCHISE RENEWAL
A. Grantee may apply for renewal of this Franchise not earlier than 18
months prior to the expiration of this Franchise on forms provided by City.
The renegotiation period shall commence not less than 12 months before the
expiration of the Franchise Term.
B. Grantee may be approved, and this Franchise or modification to it may
be renewed or extended,. by City in accordance with the then existing rules of
the FCC, the Board, the City and all other applicable laws, ordinances, rules
or regulations.
C. Nothing in this Franchise shall be construed to require fenewal or
extension of this Franchise.
D. City shall conduct an investigation and evaluation of the Grantee and the
System and the renewal proposal. This investigation and evaluation shall be
completed by City within six months after receipt of the application and
determination by City of its completeness.
E. Renewal of this Franchise may not be for more than 1S years, unless
otherwise permitted by federal or state law.
ARTICLE VII.
(Reserved)
ARTICLE VIII. ,
INDEMNIFICATION, INSURANCE, LETTE;:t OF CREDIT AND BOND
SECTION I. GENERAL
A. All rights of City pursuant to indemnification, insurance, letter of credit
or bond, as provided for by this Franchise, are in addition to all other rights
the City may have under this Franchise or any other ordinance, rule,
reggulation or law.
B. The exercise or failure to exercise by City of any rights pursuant to any
section oC this Franchiseshall not affect in any way the right of City to
subsequently exercise any such rights or any other right of City under this
Franchise or any other ordinance, rule, regulation or law.
SECTION 2. INDEMNIFICATION AND INSURANCE
A. Grantee shall fully indemnify, defend and hold harmless, City, its
officers, boards, commissions, elected officials, agents and employees
against any and ail costs, damage, expense, claims, suits, actions, liability'
and ludgmenu for damages, including but not limited to, expenses for legal
fees, whether suit be brought or not, and disbursements and liabilities
Incurred by City in connection with:
(1) Damage to persons or property, in any way arising out of or through the
acts or omissions of Grantee or City, their respective servants, officials,
agents or employees or to which Grantee's. or City's negligence or that
thereof such fail retoc Dols ur con tnuesPer day for each day, or part
(3) For failure to comply with any of the provisions of this Franchise for
which a penalty is not otherwise specifically provided pursuant to this
Paragraph C, the penalty shall be Fifty Dollars ($50.00) per day for
each day, or part thereof, such failure occurs or continues,
(4) For failure to test, anaylze and report on the performance of the System
following a request by City, the penalty shall be Fifty Dollars .($50.00)
(5) Fordfailure by Grantee toamod'fy thesSy temloretocprovide additions
services within 45 days after required by City following a periodic
review or renegotiation session the penalty shall be Two Hundred
Dollars ($200.00) per day for each day, or part thereof, such failure
occurs or continues.
(6) Forty-five days following notice from City of a failure of Grantee to
comply [kith construction, operation or maintenance standards, the
penalty shall be Two Hundred Dollars ($200.00) per day for each day, or
part thereof, such failure occurs or continues.
(7) For failure to provide the services Grantee has proposed, including but
not limited to the implementation and the utilization of the access
channels and the making available for use of the equipment and other
facilities to City, the penalty shall be One Hundred Dollars ($200.00) per
day for each day, or part thereof, such failure occurs or continues.
(8) Each violation of any provision of this Franchise shall be considered a
D. ExPlusitve oflthe contractual penaltieseset out above inmposed.
violation of any provision of this Franchise is a misdemeanor. hh s section, a
E. Whenever City finds that Grantee has violated one or more terms,
conditions or provisions of this Franchise, a written notice shaill be given to
Grantee informing it of such violation. At any time after three days following
notice, City.may draw from the Letter o[ Credit all penalties and other monies
due City.
noFce, noG'fy rC1ty that there sea d spate as~to whether a v olation ortlfa lure
has, in fact, occurred. Such notice by Grantee to City shall specify with
particularity the matters disputed by Grantee.
(1) City shall hear Grantee's. dispute at the next regularly scheduled
Council meeting. City shall supplement the Council decision with
written findings of fact.
(2) Upon a determination by City that no violation has taken place, City
shall refund to Grantee without interest all monies drawn from the
Letter of Credit by reason of the alleged violation, less all costs and.
attorneys' fees incurred by City as a result of Grantee's appeal.
G. It said Letter of Credit or any-subsequent Letter of Credit delivered
1?y ss Fe a~ hereto expires prior to 15 months after the expiration of the term of
peon.,..,__
nehise, ttshal~ berenewed or re laced
expiration of this rcau.:wer,,,~,x,, P during the term of this
}]~~e on the same form and w[ a'"6aYi1c"~tttnor~,~,,,,~,-.~,
9mount stated in paragraph A of this section.
H. It City draws upon the Letter of Credit, or any subsequent Letter of
Credit delivered pursuant hereto, in whole or in part, Grantee shall replace
the same within three days and shall deliver to City a like replacement Letter
of Credit for the full amount slated in Paragraph A of this section as a
substitution of the previous Letter of Credit.
I. If any Letter of Credit is not so replaced, City may draw on said Letter of
Credit for the whole amount thereof and hold the proceeds, without interest,
and use the proceeds to pay costs incurred by City in performing and paying
for any or all of the obligations, duties and responsibilities of Grantee under
this Franchise that are not performed or paid for by Grantee pursuant hereto,
including attorneys fees incurred by the City in so performing and paying.
The failure to so replace any Letter of Credit may also, at the option of City,
be deemed a default by Grantee under this Franchise. The drawing on the .
Letter of Credit by City, and use of the money so obtained for payment or
performance of the obligations, duties and responsibilities of Grantee which
are in default, shall not be a waiver or release of such default,
J. The collection by City of any damages, monies or penalties from the
Letter oC Credit shall not affect any other right or remedy available to City,
nor shall any act, or failure to act, by City pursuant to the Letter o] Credit, be
deemed a waiver of any right of City pursuant to this Franchise or otherwise.
SECTION 5. BONDS
A. At the commencement of this Franchise, and at all times thereafter until
Grantee has liquidated all of its obligations with City, Grantee shall maintain
with City a bond in the sum of Three Hundred Thousand Dollars ($300,000.00)
in such form and with such sureties as shall be acceptable to City, conditioned
upon the faithful performance of Grantee of this Franchise and the
acceptance hereof given by Grantee and upon the further condition that in the
event Grantee shall tail to comply with any law, ordinance or regulation;
there shall be recoverable jointly and severally from the principal and surety
of the bond, any, damages or losses suffered by City as a result, including the
full amount of any compensation, indemnification or cost of removal of any
property of Grantee, including a reasonable allowance for attorneys' fees and
costs (with interest at two (2%) percent in excess of the then prime rate) , up
to the foil amount of the bond, and which bond shall further guarantee
payment by Grantee of all claims and liens against City or any public
property, and taxes due to City, which arise by reason of the construction,
operation, maintenance or use of the System.
B. The rights reserved by City with respect to the bond are in addition to all
other rights the City may have under this Franchise or any other law.
C. City may, in its sole discretion, reduce the amount of the bond.
ARTICLE IX
DEFAULT
SECTION 1. NOTICE AND DEFAULT
A. City shall give written notice of default to Grantee if City, in its sole
discretion, determines that Grantee has:
(1) Violated any provision of this Franchise or the acceptance hereof, or '
any rule, order, regulation or determination of the City, state or federal
government, not in conflict with this Franchise;
(2) Attempted to evade any provision of this Franchise or-the acceptance
hereof;
(3) Practiced any fraud or deceit upon City or subscribers; -
(4) Made a material misrepresentation of fact in the application for or
negotiation of the Franchise;
or
(5) Incurred a 12 month or more delay in the construction schedule.
B. If Grantee fails to cure such default within 30 days after the giving of
such notice (or if such default is of such a character as to require more than 30 '
days within which to cure the same, and Crantee fails to commence to cure
the same within said 30 day period and thereafter fails io use reasonable
diligence, in City's sole opinion, to cure such default as soon as possible),
then, and in any event, such default shall be a substantial breach and City, at
its option, may elect to either cure the default or terminate this Franchise as
follows:
(1) City may cure any default for the account at the cost and expense of
r Grantee and all sums so expended by City, including attorneys' tees
incurred in cur+ng such default, whether suit be brought or not, with
interest ,thereon at a rate per annum two (2%) percent in excess of the
.then prime rate, shall be paid be Grantee to City, upon demand, and
failure to so pay upon demand likewise may be deemed by City to be a
default under this Franchise.
(2) City may place the issue of revocation and termination of the Franchise
before the Council at a regular meeting o[ the City Council. If City
decides there is cause or reason to terminate, the following procedure
shall be followed:
(a) City shall provide Grantee with a written notice of the reason or
cause for proposed termination and shall allow Grantee a minimum of
30 days gubsequent to receipt of the notice in which to correct the
default.
(b) Grantee shall be provided with an opportunity to be heard at a
public hearing prior to any decision to terminate this Franchise,
(c) In the event that City determines to terminate this Franchise, the
Grantee shall have a period of 30 days beginning the day next following
written notice to Grantee ol'such decision, within which to file an appeal
with the Board, pursuant to the then applicable statutes and procedures
of the Board. During such 30 day period and until the Board determines
the appeal, if an appeal is taken, the Franchise shall remain in full
force and effect, unless the term thereof sooner expires.
(d) It' Board approves of the action of City, the Franchise shall
terminate immediately. If Board disapproves of the action o[ City, the
Franchise shall remain m full force and effect for the full term hereof
unless sooner terminated in accordance with the provisions hereof, or
applicable low or rules of Board.
SECTION 2. L'ROSS DEFAULT
A. If Grantee should be in default under any of the terms or provisions of a
franchise, or acceptance thereof, of another city (then a party to a Joint
Powers Agreement relating to the System), at City's option, to be exercised
by notice to Grantee gfven,at any time while such default exists, such default
may be deemed by City a default by Grantee under this Franchise.
B. This section, or any other section or provision of this Franchise, shall not
be deemed to incorporate into this Franchise by reference any other
franchises.
ARTICLE X.
FORECLOSURE. RECEIVERSHIP AND ABANDONMENT
SECTION 1. FORECLOSURE
Upon the fpreclosure or other judicial sale of all or a part of the System, or
upon the termination of any lease covering all or part of the System, Grantee
shall notify City of such tact and such notification shall be treated as a
notification that a change in control of Grantee has taken place, and the
provisions of this Franchise governing the consent to transfer or bhange in
ownership shall apply without regard to how such transfer or change in
ownership occurred.
SECTION 2, RECEIVERSHIP
City shall have the right to cancel this Franchise 120 days after the
appointment of a receiver or trustee to take over and conduct the business of
Grantee, whether in receivership, reorganization, bankruptcy or other action
or proceeding, unless such receivership or trusteeship shall have been
vacated prior to the expiration of said 1l0 days, or unless:
(a) Within 120 days after his election or appointment, such receiver or
trustee shall have [ally complied with all the provisions of this Franchise and
(f)) Basedrupon the record the a~bitratorsxabused thel'r discreti
(8) In the event a Court of competent jurisdiction determines the
trators have abused their discretion, it may order the arbit
procedure repeated and issue findings; orders and directions, wit:
(9) Cost oftarbltragon shall be borne equaPyrty.
deprdia tonchas shown oon htheybookstand re ordsCofyGrantee) oreno
value, whichever is less. Goodwill shall not be included in the purchase
of the System.
D: Grantee expressly waives its rights, if any, to relocation costs that
otherwise be provided by taw.
of~evoeatdion forfeiture, expiragon or termination of this Frao chile a~
later than the date City makes a written offer for the System.
MISCELLANEOUS
SECTION 1. TRANSFER OF OWNERSHIP OR CONTROL
A. This Franchise shall noC be assigned or transferred, either in whole
part, or leased, sublet or mortgaged in any manner, nor shall title the
either legal or equitable or any right, interest or property therein, pass
vest in any person without the prior written consent of City, which cor
any11stock ornownershibpyinterestso astto create a newalcont offing iota
except with the consent of City, which consent shall `not be unreason
withheld. The transfers described in this paragraph shall, in the
discretion of City, be considered sale or transfer of Franchise within
meaning and intent in the following paragraph.
B. Any sale or transfer of Franchise, including a sale or transfer by mf
rules pproval of
Any sale or transfer rof Franchise shall be subject to theeprovisions of Be
Franchise shall maketa~written req~i est to City for ifs consenteCi[y shalif E
in writing within 30 days of actual receipt of the request and shall indicat[
approval of the request or its determination that a public hearing
necessary. City shall conduct a public hearing on the request within 30 day.
such determination if it determines that a sale or transfer of Franchise n
adversely affect the Grantee's subscribers.
hear ng~shalltbe given 114 day~rpr~prdootheyheoarinla b' °otice of any si
thereof once in a newspaper of general circulation in the City Then tigce sh
contain the date, time and place of the hearing and shall briefly state I
substance of lice action to be considered by City. Within. 30 days after t
public hearing, City shall approve or deny in writing the sale or transl
request.
' D. Any~ale or transfer of N'ranchise, including a sate or transfer by mea
stability. City s is ~`-pe-seRt~eo°k„~.,,,,,a,.,.,, ~ __~..,,"
documents related to sale or transfer of the Franchise. ~~ """°'`'
E. The parties to the sale or transfer of only this Franchise, without t
inclusion of the System in which at least substantial construction h
commenced, shall be required to establish to the sole satisfaction of City th
the sale or transfer of only this Franchise is in the public interest.
F: For purposes of this sectioo-, fundamental corporate change means t
safe or transfer of a controlling interest in the stock of a corporation or t
sale or transfer of all or a majority of a corporation's assets, merg
(including a parent and its subsidiary corporation), consolidation or treat
of a subsidiary cornoration. For the purposes of this Section, fundament
partnership change means the sale or transfer of all or a majority of
partnership's assets, change of a general partner in a limited partnersh
change from a limited to a general partnership, incorporation of a partn[
ship, or change in the control oC a partnership.
G. The word "control", as used herein, is not limited to major stockholder
but includes actual working control in whatever manner exercised. As
minimum, "control", as used herein, means a legal or beneficial inters
(even though actual working control does not exist) of at least five (5°
percent or more. Every change, transfer or acquisition of control o[ Grant
shall make the Franchise subject to cancellation unless and until City shy
have consented in writing thereto, which consent shall not be unreasona6
withheld. For the purpose of determining whether it shall consent to su
change, transfer or acquisition of control, City may inquire into t.
qualifications of the prospectice controlling party, and Grantee shall asst
City in any such inquiry and pay all costs incurred byi City in so inquirin
including City staff time at a value determinedby City.
H. In the absence of extraordinary circumstances, City will not apppro~
any transferor assignment of the Franchise prior to substantial completic
of construction of System, as determined solely by City.
I. In no event shall a transfer or assignment of ownership or control I
approved without tranteree becoming a signator to this Franchise.
J. Any transferee shall be subordinate to any right, title or interest of Cit
SECTION 2. REMOVAL AFTER TERMINATION OR REVOCATION
A. At the expiration of the term for which this Franchise is granted, or upi
its revocation or termination, as provided for herein, City shall have the rig
to require Grantee to remove, at Grantee's expense, all or any portion of tl
System from all streets and public property within City. In so removing ti
System, Grantee shall refill and compact at its own expense any excavatic
that shall be made by it and shall leave all streets and public property in
good a condition as that prevailing prior to Grantee's removal of the Syster,
and without affecting, altering or disturbing in any way electric, telephone 1
other utility cables, wires or attachments. City shall have the right to inspe~
and approve the condition of such streets and public property after remova
The Letter of Credit, Bonds, Insurance, Indemnity and Penalty provisions i
this Franchise shall remain in full force and effect during the entire term i
removal.
B. If, in the sole discretion of City, Grantee has failed'to commence remov;
of System, or such part thereof as was designated by City, within 30 days sits
written notice of City's demand for removal is given, or if Grantee has fade
. to complete such removal within one year after written notice of City
demand for removal is given, City shall have the right to exercise one of th
following optwns:
(1) Declare all right, title and interest to the System to be in City with a
' rights of ownership including, but not limited to, the right to operate th
System or transfer the System to another for operation by it.
(2} Declare the System abandoned and cause the System or such psi
thereof, as City shall designate, fo be removed at no cost to City. Th
cost of said removal shall be recoverable from the Letter of Credi
Bonds, Insurance, Indemnification and Penalties provided for in thi
Franchise, or from Grantee directly as a liquidated damage.
C. 'Any portion of the System not designated by City for removal sha
belong to and become the property of City wifhouC payment to Grantee an
Grantee shalLexecute and deliver such documents, as City shall request,
form and substance acceptable to City, to evidence such ownership by City.
SECTION 3. WORK PERFORMED BY OTHERS
A. Grantee shall give notice to City specifying the names and addresses
any other entity, other than Grantee, which performs services pursuant
this Franchise, provided, however, that all provisions of this Franchi
remain the responsibility of Grantee.
B. All provisions of this, Franchise shall apply to any subcontractor
others performing any work or services pursuant. to the provisions of tt
Franchise.
SECTION 4. INTEREST RATE
For purposes o£ this Franchise, prime rate shall mean the interest chargg
from time to time by the First National Bank of Minneapolis for 90 d
unsecured loans to commercial borrowers of the highest credit rating.
SECTION 5. GENERAL PROVISION ON RIGHTS AND REMEDIES
A. All rights and remedies given to City by this Franchise shall be
addition to and cumulative with any and all other rights or remedies, existi
or implied, now or hereafter available to City at law or in equity, and su
rights and remedies shat! not be exclusive, but each and every right a
remedy specifically given by this Franchise or otherwise existing or giv
may be exercised from time to time and as often and in such order as may
deemed expedient by City, and the exercise of one or more rights or remed,
shall not be deemed a waiver of the right to exercise at the same time
thereafter any other right or remedy. No delay or omission of City in f
exercise of any right or remedy shall impair any such right or remedy, r
shall any such delay or omission be construed to be a waiver oL
acquiescence to any default. The exercise of any such right or remedy by C
shall not release Grantee from its obligations, or any liability, under t
Franchise.
B. In addition to ail other remedies granted or available to City, City sh
be entitled to the restraint by injunction of the violation, or attempted
threatened violation, by Grantee of any terms or provisions of this Franchi
or to a decree compelling performance by Grantee of any term or provisiot
this Franchise.
SECTION 6. APPLICABLE LAWS AND COURT DECISIONS:
SEVERABILITY
A. Grantee and City shall, at all times, comply with all laws, ordinan
and regulations of federal, state and City government relating to System
this Franchise.
B. If any law, ordinance or regulation shall require or permit Grante
perform any service or shall prohibit Grantee from performing any sere
which may be in conflict with the terms of this Franchise, then as Boor
possible following knowledge thereof, Grantee shall notify City of the poir
conflict believed to exist-between such law, ordinance or regulation. •
C. If City determines that a material provision of this Franchise is affel
by such law, ordinance or regulation, City shall have the right to amt
modify, alter or repeal any of the provisions of this Franchise to s
reasonable extent as may be necessary to carryout the intent and purpo:
this Franchise, and Grantee hereby agrees to such amendment, modificat
alteration or repeal of this Franchise.
D. To the extent any provision of the Offering or rules of Board are
specifically set out in this Franchise or not validly incorporated hereir
reference, City from time to time may amend this Franchise to include
To Page qg
u1. RATES FOA HOME SECURITY STATUS MONITORING
A. Single: fire, alarm, Installation Monthly
medic alert, or
security alert button ,¢19.95 maximum 4.95 maximum
Double: any two services 99,95 maximum 5.95 maximum
Triple: alI three services 119.95 maximum 6.45 maximum
Intrusion sensor
system of Grantee or
other provider variable 4.95 up
depending on depending on
optionstaken options taken
and provider and provider
of system of system
B. This rate schedule is exclusive of other third party charges that
may be levied by emergency agencies or city licensing.
C. Promotional Discounts.
Rates in this Exhibit B are maximum rates. Grantee map allbvd
special discounts during promoti~pYSin`arketing activities.
A. Installation.
EXHIBIT B Grantee's installation charge wilt . be based upon the cost of
5CHEDULE OF RATES material and labor. Grantee will provide an installation quote free of
charge on request of any potential in
tit
ti
s
u
onal network subscriber.
Grantee may waive the installation charge.
Standard Institutional subscribers must supply any conduits, raceways,
1 trenches or other passages necessar
to
e
it i
150 Ft. Aerial Seniors &
Installati y
p
rm
nstallation of cable
from the distribution line to the location(s) of the terminal equip-
on Monthly Homebound _ ment.
_ (First Outlet) $. Institutional Network Rates.'
E19.95 Free Free 1. Institutional rates depend upon the use (video or data channel)
-• ,
the number of points involved in the communication, whether the
communication is acne-way or two-way, an~i whether the use is full-
time (24 hours a day, 365 days a year) or only part-time (o
h
l
' n an
our
y
basis). Packet data rates are calculated on a use basis per 1
000
• ,
packets of data. One packet is 80 characters or less
;19.95 ~3 95 ~, ~ .
2. Rates for transmission capacity do not include the costs of ter-
minalequipment modulators, modems, and demodulators. ~
'
;19
95 3. The institutional subscriber may be charged $20 per month. For
.
Various Various this charge Grantee shall provide communications security system
equipment installed on the subscribeY's premises by Grantee. Such
equipment may include addressable taps, transmitter and filters or
$19.95 ;5.95 $5,06 converter as required and allow access to the special channels frnm
300 to 402 MHz.
4. Rates are as follows:
;19.95 •Various •Various TYPE OF SERVICE
RATE
A, Far Video (6MHZ•) Channels, used full-
er time twenty-four hours a day)
$19.95 ;10.95 ~g,31
mt for iwo years after commencement of (1) One point to one other point on network ;435/month max.
(2) One point to one other point on network
until completion of all construction re-
I of this Franchise, whichever is longer and return ;865/month max.
(3) One point to all other points on network
(4) One point to all other points on network ~~~/month max.
e option of renting various types of con- and return ;6,000/month max.
b. For Video (6MHZ) Channels, used part-time
~dute (1} From one point to one other point on
Initial Monthly
' Rate network ;7.50/hour max.
(2) From one point to one other point on
$1,00- network and return ;15.00/hour max.
(3) From one point to all other points on
1.50 network ;50.00/hour max.
(4) From one point to all other
points on
2•~
3.00 .
network and return ;110.00/hour max.
{5) Special Teleconference Yearly Rate for
4•~
5.00 (not initially available) one hour per business day ;1,800.00/year max.
'd to the appropriate base rate shown in
b c. For data channel •*, full-time (0.25MHz)
(1) From one point to one' other
oint on
er rents the. converter from Grantee. ,p
network
rt or buy converters from sources other
Grantee converter or descrambler will (2) Frbm one point to one other point on ~/month max.
vices.
i network and return
(3} From bne point to all other points on ~/month max.
rate will
nclude the installation.of 150 ttetwork '
to each subscriber dwelling within the
!allations within the initial service area (4) From one point to all other points on '1232/month max.
harged at cost on a time and material network and return
E366/month max.
ns will be charged at cost on a time and d. For data channel, full-time (0:50MHz) `- "
installation on TIERS 2 and 3 will be . (1) From one point to one other point on
ys of energizing newly completed con- network j.52/month max.
:vice area. (2) From one point to one other point on
1 within the initial service area but in - network and return ;100/month max,
'r than 40 homes per street mile, Gran- (3) From one point to al] other points on
s the following additional installation network ;355/month max
ngconditions: ~ .
(4) From one point to all other points on
Additional Cost Per network and return 8596/month.max.
Installation e. For data channel, full-time (1.00 MHz}
san nn (11 From nna nnint r., ,,..e ,..~.,._ __._. __
From Page SB
Give as of the date of commencement of the Franchise term or
dfective as of the date of commencement of the Franchise term
the rule, whichever is later. Grantee, by acceptance of this
isents to and agrees to be bound by any such amendments.
:rves the right to revoke this Franchise and any right or
entee hereunder without incurring any obligation or liability to
Jrovision of this Franchise shall be finally adjudged by a court
or unenforceable, and if City ttu•ther finds that such provision
that time a consideration material to the continuance of the
)in granted.
m, condition or provision of this Franchise or the application
pperson or circumstance shalt, to any extent, be held to be
nforceable,the remainder hereof and the application of such
i and provision to persons or circumstances other than those as
call be held invalid or unenforceable shall not be affected
.his Franchise and all the terms, provisions and conditions
all other respects, continue to be effective and to be complied
GRANTEE WILL NOT CONTEST VALIDITY OF
yes that it will not, at any time, setup against City in any claim
any condition or term of this Franchise as unreasonable,
or that City had no power or authority to makesuch term or
shall be required to accept the validity of the terms and
is Franchise in their entirety.
INTERPRETATION BY CITY OF FRANCHISE
oy dispute or question as to the meaning, interpretation or
my term, provision or conditioe of this Franchise, the Council
le discretion shall resolve such dispute or question.
ARTICLE XIII. •
ADMINISTRATION AND AUVISORY BODY
4DMINISTRATOR
lager or the City Manager's designee shall be responsible for
administration of this Franchise. The administrator may be
y from time to time by written notice given to Grantee.
ADVISORY BODY
point an advisory body to monitor the performance of Grantee
he provisions of this Franchise. The advisory body shall
notions required of it by the Council and applicable laws,
es and regulations.
DELEGATION OF AUTHORITY BY CITY
yes the right to delegate and r8delegate from time to time any
tbligations under this Franchise to any body or organization.
Ilion by City shall be effective upon written notice by City to
i delegation.
pt of notice by Grantee of City's delegatfon, Grantee shall be
rms and conditions of the delegation not in conflict with this
delegation, revocation or redelegation, no matter how often
be deemed an amertdment to this Franchise or require any
tee.
ARTICLE XIV.
JOINTSYST,EM,ACCEPTANCE,
ORATION OF OFFERING, EXHIBITS, PUBLICATION
)THER FRANCHISES
i intended for Ci[y, may be part of a join[ system that serves
den Prairie, Edina, Hopkins, Minnetonka and Richfield,
ill,in good faith, apply far and accept, if offered to it, a
ar franchise) from each o[ the other cities on all the same
~itfons herein provided, except provisions omitted as inap-
'iding any other provision of this Franchise, if less than all of
cities otter a similar franchise to Grantee, which is accepted
antee or City may cancel this Franchise and all of their
under by written notice given to the other not later than 30
ie other o[ said cities shall have formally acted upon their
hire ordinac•es: provided, that if Grantee elects to cancel this
ant hereto, it must also cancel all other franchises granted to
'said cities effective simuLanebusly herewith.
LIME OF ACCEPT.gNCE; GUARANTEE; INCORPORA-
RING; EXHIBITS
all have 30 days from the last date of adoption of a similar
of [he cities listed in Section lA of this Article, to accept this
m and substance acceptable to City. However, in no event
occur later than 90 days after the adoption of this Franchise,
for acceptance is extended by City. Such acceptance by
deemed the grant of this franchise for all purposes.
tance of this Franchise, Grantee shall be bound by all'the
ions contained herein. Grantee shall provide all services and
:ally set Ibrth in the Offering to provide cable communica-
n City and other cities included in or a part of a joinC system;
Lance of this Franchise. Grantee specifically agrees that the
aloe, including all promises, offers, representations and
twined therein, is specifically incorporated by reference and
is Franchise. The failure to refer to the Offering in any
is of this Franchise shalt not be a limitation on the obligation
y comply with the Offering. Grantee further acknowledges
. offers, representations and inducements contained in the
ee were freely and voluntarily made'to City by Grantee.
shall be permanently kept and filed in the Office of the City
riginals or reproductions thereof shall be available for
public during normal business hours. Also, the Grantee may
il'fering in a manner acceptable to City or reproduce the
and shall have either at the following locations in [he
es:
r City Clerk -1 copy;
or designated in this Franchise - 1 copy:
ries - 1 copy each;
City Attornoy - 1 copy;
nmty Luw Library - 1 copy;
u[ Grantee - 1 coyy:
/ School District in City - t copy.
t of conflicts or disc•repanc•ies between any part of the
provisions of this Franchise or between any part of the
y Grantee and [he Offering. those provisions which provide
~it to Citp, in the opinion of Lhe Council, shall prevail.
'I have continuing responsibility for this Franchise, and if
bsidiary or wholly owned corporate entity of a parent
rmnnco ol'this Franchise shall be secured by guarantees of
Ilion in 1'urm and substance acceptable to City, which shall
to of, and as part of. acceptance of this Franchise.
>4me•e. Grantee also shall deliver to City an opinion from its
eptable to City. stating that this Franchise has been duly
ttec, that the guarantees have been duly executed and
s Franchise and the guarantees arc enforceable against
uaranlors in accordance with their respective terms, and
I otherwise be in form and substance acceptable to City.
ptanc•c. Grantee also shall deliver to City true and correct
EXHIBIT B
GRANTEE SCHEDULE OF RATES
I. SUBSCRIBER NETWORK
A. Basic Rates.
1. TIERS Standard
__ 150 Ft. Aerial Seniors &
Instalhation Monthly Homebound
(First Outlet)
TIER 1 Universal Service. $19.95 Free Free
Converter not re- -.
quired for this
' service ,
TIER 2 Family Service.
Subscriber owns ~
converter $19.95 x.95 $3.36
Subscriber rents
converter from
Grantee $19'95 Various Various
TIER 3 Full service.
Subscriber owns
converter $19.95 $5.95 $5.06
Subscriber rents
converter from
Grantee $19.95 'Various 'Various
TIER 3 Expanded Service.
(Expanded) (Included converter
and unit) $19.95 $10.95 $9.31
2. Rates will remain constant for two years after commencement of
construction of System or until completion of all constructfon re-
quired by Article V, Section l of this Franchise, whichever is longer
as determined by City.
3. Subscribers will have the option of renting various types of con-
verters asfollows:
Grantee Converter Rate Schedule.
Initial Monthly
Description - Rate
i. Block Converter $1 ~
2.OAK L-35 1.50
3. Scientific Atlanta 6700
-set-up converter 2.50
-Descrambler option 3 ~
-remote control option 4 ~
-addressable feature 5.00 (not initially available)
.The rental rate shall be added to the appropriate base rate shown in
the table above. if the subscriber rents the, converter from Grantee.
Subscribers may choose to rent or buy converters from sources other
than the Grantee, however, a Grantee converter or descrambler will
be necessary for premium services.
4. The standard installation rate will include the installation :of 150
feet or less of aerial cable drop to each subscriber dwelling within the
initial service area. Aerial installations. within the initial service area
in excess of 150 feet will be charged at cost on a time and material
basis. Underground installations will be charged at cost on a time and
material basis. Free standard installation on TIERS 2 and 3 will be .
provided within the first 30 days of energizing newly completed con-
structionareas in the initial service area.
5. For dwelling units located within the initial service area but in
areas where the density is lower than 40 homes per street mile, Gran-
tee retains the right to assess the following additional installation
charges pursuant to the following conditions:
Density/Mile ~ Additional Cost Per
30 to 39 Installation
20 to 29 $40.00
1 to 19 $~•~
a. There will be no free installation period. $80
b. Grantee will make special financial arrangements to allow sub-
scribers to pay the installation charges over time as part of the
monthly billing at the prevailing terms on consumer loans.
c. The rates quoted are based on currently projected costs,of con-
struction. Should the cost of construction be less than anticipated, in-
stallation charges will be lowered accordingly.
6. Senior Citizen and Homebound discounts of 15% will be offered on
standard installation and monthly service of TIERS 2 and 3. The dis-
count is available to all dwelling units where the head of the household
is a senior, 62 years of age or older, or homebound.
B. Extra Outlets.
'Installation IAt
time of initial
TIER 1 Converter not required Installation)
$10.00 each Monthly
Free
TIER 2 Subscriber owns converter $10.00 each $1.95 each
Subscriber rents converter
from Grantee $10.00 each "Various
TIER 3 Subscriber owns converter $10.00 each $3.95 each
Subscriber rents converter
from Grantee $10.00 each '*Various
is creating t,rmtee and evmenemg the powerand authorit}• 'Each outlet installed after the initial installation will be $14.95
)pinion of Grantee's counsel certified as of a then current each.
:e holders to the extent possible and otherwise by an officer
"'Same Converterrental option as provided for under Section IA of
t ~a a part of this Franchise and each is spec•ific•ally thlS Exhibit B.
n by reference. The exhibits are us follows: C. Reconnection.
ul Ginstruc•tion by Aroa.Including Time Schedule.. '
Sc•hedulc Charges for reconnection of existing installations shall be $14.95 for
each reconnection regardless of the number of outlets.
D. Commercial Rates For Subscriber Network Services.
These rates will be subject to negotiation and will depend on the
number of outlets required and the type of servicesxelected. Atypical
vcancee: s tnstauatton charge will, be based upon the cost of
material and labor. Grantee will provide an installation quote free of
charge on request of any potential institutional network subscriber.
Grantee may waive the installation charge.
Institutional subscribers must supply any conduits, raceways,
trenches or other passages necessary to permit installation of cable
from the distribution line to the location(s) of the terminal equip-
ment-
B. Institutional Network Rates.
1. Institutional rates depend upon the use (video or data channel),
the number of points involved in the communication, whether the
communication is one-way or two-way, and whether the use is full-
time (24 hours a day, 365 days a year) or only part-time (on an hourly
basis). Packet data rates are calculated on a use basis per 1,000
packets of data. One packet is 80 characters or less.
2. Rates for transmission capacity do not include the costs of ter-
minalequipment modulators, modems, and demodulators. ~
3. The institutional subscriber may be charged $20 per month. For
this charge Grantee shall provide communications security system
equipment installed on the subscribe~•'s premises by Grantee. Such
equipment may include addressable taps, transmitter and filters or
converter as required and allow access to the special channels from
300 to 402 MHz.
4. Rates areas follows:
TYPE OF SERVICE RATE
A. For Video (6MH2') Channels, used full-
time twenty-four hours a day)
(1) One point to one other point on network
(2) One point to one other point on network $435/month max.
and return
(3) One int to all other
po points on network
$865/month max.
(4) One point to all other points on network ~ 000/month max.
and return $6,000/month max.
b. For Video (6MHZ) Channels, used part-time
(1) From one point to one other point on
network
(2) From one point to one other point on >;7.50/hour max.
network and return $15.00/hour max
(3) From one point to all other points on .
network
(4) From one point to all other points on $50.U0/hour max.
network and return $110.00/hour max
(5) Special Teleconference Yearly Rate for .
one hour per business day $ I,g00•00/year max.
c. For data channel'', full-time (0.25MHz) '
(1) From one point to one other point on
network.
(2) Frbm one point to one other point on $36/month max.
network and return
(3) From one point to all other points on $56/month max.
network
(4) From one point to all other points on $232Jmonth max.
network and return- $366/month max.
d. For data channel, full-time (O:50MHz) --
(1) From one point to one other point on
network $52/month max.
(2) From one point to one other point on
network and return $100/month max.
(3) From one point to all other points on
network $355/month max
(4) From one point to all other points on .
network and return [1596/month max.
e. For data channel, full-time (1.00 MHz)
(1) From one point to one other point on
network $87/month max
(2) From one point to one other point on .
network and return $168/month max
(3) From one point to all other points on .
network $614/month max
(4) From one point to all other points on .
network and return $1,050/month max.
f. For data channel, full-time (2.OOMHz)
(1) From one point to one other point on
network $157/month max.
(2) From one point to one other point on
network and return $308/month max
(3) From one point to all other points on .
network $1,132/month max
(4) From one point to all other points on .
network and return $1,960/mono. max.
g. Packet Switching Data Network
(1) Data transmission $1.00/1000 packets
(2) Connection to Packet Network $100
(3) Cable Access Processor lease $25/month
'To calculate the rate for FM video channels
,
multiply the 6MHz rate by 2.3.
''Data channels may be used for analog signal
transmission such as audio.
Passed and adopted this 22nd day of December. 1980,
ATTEST: CITY OF RICHFIELD
By SYLVIA K. BERGH By DONALD J. PRIEBE
Acting City Clerk Mayor '
This Franchise is accepted, and we agree to be twixa{ by aU ite tet>nts aqd,,
[loos.
M I N N ESpTA C`~LB$Y'$f$',~t,;. ~p ~;g,",
A Nlinneseta Lt~ted PartneralYi6R
By: Minnesota Cabiesystems Inc.,
a Minnesota Corporation
Its General Partner
Bv-
lls
By -
• I t s.___ __--