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HomeMy WebLinkAboutOrdinance - 53-96 - Cable TV Regulatory Ordinance - City Code Chapter 25 - 11/19/1996 Cable Television Regulatory Ordinance No. 53-96 Prepared by: Adrian E.Herbst,Esq. Theresa M.Harris,Esq. Fredrikson&Byron,P.A. 1100 International Centre 900 Second Avenue South Minneapolis,MN 55402 Telephone: (612)347-7000 Fax: (612)347 7077 With the assistance of: The Southwest Suburban Cable Commission TABLE OF CONTENTS STATEMENT OF INTENT AND PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Sec. 1. Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Sec. 2. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . 2 Sec. 3. Authority to Grant Franchises . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Sec. 4. Application for Franchise . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Sec. 5. Acceptance and Duration of Franchise . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Sec. 6. Franchise Territory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Sec. 7. Franchise Administration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Sec. 8. Construction of System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Sec. 9. Work Performed by Others . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Sec. 10. Conditions on Use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Sec. 11. Use of Grantee's Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Sec. 12. Failure to Complete Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Sec. 13. Technical Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Sec. 14. Interconnection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Sec. 15. Removal or Abandonment of A System . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Sec. 16. Customer Service Standards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Sec. 17. Programming Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Sec. 18. Subscriber Practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Sec. 19. Local Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 588627 Franchise Ordinance December 2,1996-Page i Sec. 20. Subscriber Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Sec. 21. Rate Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Sec. 22. Rights of Individuals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Sec. 23. Public, Educational and Governmental Access . . . . . . . . . . . . . . . . . . . . . 18 Sec. 24. Grantee Records and Books . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Sec. 25. Transfer of Ownership. . . . ... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Sec. 26. Right to Purchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Sec. 27. Mediation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Sec. 28. Special Provisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Sec. 29. Franchise Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Sec. 30. Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Sec. 31. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Sec. 32. Security Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Sec. 33. Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Sec. 34. Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Sec. 35. Continuity of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 Sec. 36. Foreclosure and Receivership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Sec. 37. Compliance with Laws, Rules and Regulations . . . . . . . . . . . . . . . . . . . . . 28 Sec. 38. Force Majeure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Sec. 39. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Sec. 40. Effective Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 588627 Franchise Ordinance December 2,1996-Page ii Sec. 41. Certification and Publication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 588627 Franchise Ordinance December 2,1996-Page iii EXHIBITS Exhibit A - Federal Communications Commission Customer Service Obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Exhibit B - Annual Performance Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 588627 Franchise Ordinance December 2,1996-Page iv ORDINANCE NO. 53-96 AN ORDINANCE TO REGULATE THE GRANTING OF FRANCHISES TO OPERATE AND MAINTAIN A CABLE 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 PROVISION. The City Council of Eden Prairie, Minnesota ordains: STATEMENT OF INTENT AND PURPOSE The City of Eden Prairie, pursuant to applicable federal and state law, is authorized to grant one or more nonexclusive cable television franchises to construct, operate, maintain and reconstruct Cable Television Systems within the City limits. The City Council finds that the development of Cable Television Systems has the potential of having great benefit and impact upon the residents of Eden Prairie. Because of the complex and rapidly changing technology associated with cable television, the City Council further finds that the public convenience, safety and general welfare can best be served by establishing regulatory powers which should be vested in the City or such Persons as the City shall designate. It is the intent of this Ordinance and subsequent amendments to establish minimum requirements regarding the granting of cable television franchises consistent with Minnesota and federal law recognizing that these laws and the requirements of local government are continuously changing, and to provide for and specify the means to attain the best possible cable television service to the public. Any franchises issued pursuant to this Ordinance shall be deemed to include this intent as an integral part thereof. 588627 Franchise Ordinance December 2,1996-Page 1 Sec. 1. Title. This Ordinance shall be entitled, "Cable Regulatory Ordinance." Sec. 2. Definitions. For the purpose of this Ordinance, the following, terms, phrases, words, derivations and their derivations shall have the meanings given herein. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number. A. "Access Channels" shall mean those Channels which, by the terms of this Ordinance or the Franchise Agreement, are required to be kept available by the Minnesota Cable Communications Act for partial or total dedication to public access, educational access, or local government access. B. "Affiliate" shall mean any person controlling, controlled by or under common control of a Grantee of a franchise issued pursuant to this Ordinance. C. "Applicant" means any person that applies for a Franchise under this Ordinance. D. "Application" or "Proposal" are synonymous for the purposes of this Ordinance. An Application or Proposal means the process by which the Applicant submits a request and indicates a desire to be granted a franchise for all, or a part, of the City. An Application or Proposal includes all written documentation, including official city council minutes concerning the construction, detailed description of services to be provided, the area to be served within the City, the portion of Street to be used, rendering of services and the manner thereof, rates and charges, maintenance, or any other matter pertaining to the proposed Cable Communications System. E. "Basic Cable Service" means any service tier which includes the retransmission of local television broadcast signals. This definition shall be deemed to change pursuant to any changes in applicable federal law and shall be interpreted in a manner consistent with the rules of the Federal Communications Commission. F. "Cable Communications System," "Cable Television System," "Cable System," "CATV" or "System", shall mean a System of coaxial cables or other electrical conductors and equipment used or to be used to originate or receive television or radio signals directly or indirectly off the air and to transmit them via cable or fiber optics to Subscribers for a fixed or variable fee, including the origination, receipt, transmission, and distribution of voices, sound signals, pictures, visual images, digital signals, telemetry, or any other type of closed circuit 588627 Franchise Ordinance December 2,1996-Page 2 transmission by means of electrical impulses, whether or not directed to originating signals or receiving signals off the air. G. "Cable Service" shall mean (a) the one-way transmission to subscribers of(i) Video Programming or (ii) Other Programming Service, and (b) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. For the purposes of this definition, "video programming" is programming provided by, or generally considered comparable to programming provided by a television broadcast station; and, "other programming service" is information that a cable operator makes available to all subscribers generally. H. "City" shall mean the City of Eden Prairie, a municipal corporation in the State of Minnesota. I. "Connection" means the attachment of the drop to the first radio or television set of the subscriber. J. "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 signals included in the basic service delivered at designated converter dial locations. K. "Council" shall mean the governing body of the City. L. "Drop" shall mean the cable that connects the subscriber terminal to the nearest feeder cable of the cable. M. "FCC" means the Federal Communications Commission, or a designated representative. N. "Franchise" means the non-exclusive right and authority granted to an Applicant by a Franchise Agreement Ordinance to construct, maintain and operate any part of a Cable Communications System described in the Application, through use of the public Streets, public utility easements or other public rights-of-way or public places in the City. The Franchise shall describe in detail all requirements applicable to the Franchise including all applicable requirements of federal, state and local laws. O. "Franchise Agreement Ordinance" or "Franchise Agreement" means the ordinance adopted by City granting a Franchise to an Applicant. P. "Grantee" shall mean any Person to whom a Franchise is granted pursuant to this Ordinance and any lawful successor or assignee of the original Grantee. 588627 Franchise Ordinance December 2,1996-Page 3 Q. "Gross Revenues" shall mean all revenues received directly or indirectly by the Grantee, arising from or in connection with the provision of Cable Service in the City and consistent with local, state and federal law, including, but not limited to, Subscriber revenues (including Pay TV), advertising income, home shopping programs, rentals of equipment, antenna or signal space, and any and all other Gross Revenues received by the Grantee from the provision,of Cable Service in the area under the jurisdiction of the City. Grantee is not required to include revenues recorded as received but which are "bad debt," but it must include any recoveries of bad debt. This definition of gross revenues also does not include any sales, excise or other taxes collected by Grantee on behalf of federal, state, county, city or other governmental unit. Funds collected by Grantee to support public, educational and governmental access programming are also excluded from the definition of Gross Revenues. R. "Minnesota Cable Communications Act" means the provisions of Minnesota law governing the requirements for a cable television franchise as set forth in Minn. Stat. § 238, et. seq., as amended. S. "Ordinance" means this Ordinance concerning the granting of Franchises in and by the City for Cable Communications Systems. T. "Person" means any natural person and all domestic and foreign corporations, closely-held corporations, associations, syndicates,joint stock corporations, partnerships of every kind, clubs, businesses, common law trusts, societies and/or any other legal entity. U. "Street" shall mean the surface of and the space above and below any public Street, road, highway, freeway, lane, path, public way, alley, court, sidewalk, boulevard, parkway, drive or any easement or right-of-way now or hereafter held by City which shall, within its proper use and meaning in the sole opinion of City, entitle Grantee to the use thereof for the purpose of installing or transmitting over poles, wires, cables, conductors, ducts, conduits, vaults, man-holes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and pertinent to a System. V. "Subscriber" shall mean any person or entity receiving service provided by a Grantee pursuant to the authority of a Franchise. W. In the event the meaning of any word or phrase not defined herein is uncertain, the definitions contained in applicable State or Federal law shall apply. Sec. 3. Authority to Grant Franchises. A. The Council is empowered and authorized to issue, in accordance with the City Charter, non-exclusive Franchises to install, construct, operate and maintain Cable Communications Systems in the City's Streets, as well as to regulate these activities. 588627 Franchise Ordinance December 2,1996-Page 4 B. The Council has determined that the granting of Franchises for Cable Communications Systems in the City will promote the public interest, enhance the health & welfare and safety of the public and stimulate commerce by assuring that: (1) Cable Communications Systems are responsive to the needs and interests of the City and its residents; (2) Cable Communications Systems provide, and are encouraged to provide the widest diversity of information and service to the public; and (3) there is an orderly process for the granting or renewal of Franchises, and oversight of the services provided pursuant to Franchises. C. No person shall construct, operate, maintain, or continue to operate or maintain a Cable Communications System which occupies any part of the City's Streets, without the authority of a Franchise granted by the City pursuant to this Ordinance. D. No provision of this Ordinance shall be deemed or construed to require the granting of a Franchise by the City. E. Any Franchise granted must comply with the Minnesota Cable Communications Act standards. F. Grantee's rights are subject to the police power of City to adopt and enforce ordinances necessary to the health, safety and welfare of the public of general applicability. G. Both the City and the Grantee expressly reserve any and all rights that either may have under applicable state and federal law including but not necessarily limited to, the Cable Communications Policy Act of 1984, as amended, and the rules and regulations of the FCC. Neither adoption of this Franchise by the City nor acceptance by the Grantee shall be construed as a waiver, modification, termination or discharge of any right that either the city or the Grantee may now or hereafter have. H. Except as may be based upon public health, safety and welfare requirements of general applicability or where required by federal or state law or rules, no modification or' amendment to the Regulatory Ordinance or the franchise agreement ordinance shall be effective unless in writing and signed by both the City and Grantee. Sec. 4. Application for Franchise. A. Each Applicant for a Franchise, including the renewal of a Franchise consistent with state and federal law, requesting permission to construct, operate or maintain any Cable Communications System in the City shall file an Application with the City in a form and containing such information as is requested by the City. The contents of such Application may vary, according to the nature of the proposed Cable Communications Systems. However, an Initial Application shall contain, at a minimum, the following information. 588627 Franchise Ordinance December 2,1996-Page 5 (1) The name, address and telephone number of the Applicant. If the Applicant is a partnership, the home and business address of each partner shall also be set forth. If the Applicant is a corporation, the Application shall state the names and addresses of its directors, main officers, major stockholders and associates and the names and addresses of parent or subsidiary companies. (2) A statement setting forth in its entirety any and all agreements and understandings, whether formal or informal, written, oral or implied, existing or proposed to exist between the Applicant and any Person who proposes to have an ownership interest with respect to the proposed Franchise or to the proposed Cable Communications System. If a Franchise is granted to a Person acting as a representative of another Person and such information is not disclosed in the original Application, the Franchise shall be deemed void and of no force and effect. (3) Financial statements, as determined by the Council, prepared by a certified public accountant, or person otherwise satisfactory to the Council, showing Applicant's financial status and financial ability to complete the construction and installation of the proposed Cable Communications System and/or continue the operation of the existing Cable Communications System. (4) A statement describing the Cable Communications System and specifying the type and capacity of the Cable Communications System proposed to be construed, installed, maintained or operated by the Applicant and the proposed or existing location of the Cable Communications System. (5) A description of all previous experience of the Applicant in providing Cable Communications System service and in related or similar fields. (6) Any other details, statements, information or references pertinent to the subject matter of such Application which shall be required or requested by the Council, or by any provision of any other ordinance of the City. The City reserves the right to modify the Application in a renewal process to accommodate information regarding the Applicant that is already in the possession of the City. Any renewal of a Franchise shall comply with applicable federal, state or local law. B. Prior to the issuance of a Franchise, the City shall hold a public hearing, following reasonable notice to the public, at which Applicant and its Application shall be examined and the public and all interested parties afforded a reasonable opportunity to be heard. The City reserves the right to seek reimbursement of its costs to the extent permitted by applicable state and federal law. The preceding statement does not constitute an agreement by any Applicant to reimburse the City for the cost of the Application process. 588627 Franchise Ordinance December 2,1996-Page 6 C. In making any determination hereunder as to any Application, the City shall consider the impact on the Streets with the addition of the proposed Cable Communications System, the needs of the City and the legal, technical and financial qualifications of the Applicant. For initial franchises, the City shall give due consideration to the quality of the service proposed; experience, character, background and the financial responsibility of any Applicant and its management and owners; willingness and ability to abide by policy conditions; Franchise limitations and requirements; and any other considerations deemed pertinent to the Council for safeguarding the interest of the City and the public. For a renewal of a Franchise, the City shall also consider the factors identified in the Cable Communications Policy Act of 1984, as amended. D. The City may require the Applicant for an initial franchise to reimburse the City for its reasonable costs to review the Application including costs for technical assistance to aid the City in understanding the nature and effect of the Application. See. 5. Acceptance and Duration of Franchise. A. Any Franchise granted pursuant to this Ordinance shall be in the form of a Franchise Agreement Ordinance between the City and the Grantee which shall comply with all specifications of this Ordinance. B. Any Franchise granted pursuant to this Ordinance shall become effective in accordance with the terms and conditions approved by the Council, provided that a Grantee has filed with the City Clerk a written instrument addressed to the Council accepting the Franchise, within the time specified by the City Council, and agreeing to comply with all provisions of this Ordinance and the Franchise. C. The term of a Franchise shall be stated in the Franchise Agreement Ordinance, but shall in no event exceed 15 years. Sec. 6. Franchise Territory. Any Franchise shall be valid within all territorial limits of the City, and within any area added to City during the term of a Franchise, unless otherwise specified in the Franchise Agreement Ordinance. See. 7. Franchise Administration. A. Administrator. The City Manager or the City Manager's designee shall be responsible for the continuing administration of a Franchise. The administrator may be changed by City from time to time by written notice given to a Grantee. 588627 Franchise Ordinance December 2,1996-Page 7 B. Advisory body. The City may appoint an advisory body to monitor the performance of a Grantee in executing the provisions of a Franchise. The advisory body shall perform all functions required of it by the City and applicable laws, ordinances, rules and regulations. C. Delegation of Authority by theme (1) The City reserves the right to delegate and redelegate from time to time any of its rights or obligations under a Franchise to any body or organization. (2) Any delegation by City shall be effective upon written notice by City to a Grantee of such delegation. (3) Upon receipt of notice by a Grantee of City's delegation, a Grantee shall be bound by all terms and conditions of the delegation not in conflict with a Franchise. (4) Any such delegation, revocation or redelegation, no matter how often made, shall not be deemed an amendment to a Franchise or require any consent of a Grantee. D. Nonenforcement by City. A Grantee shall not be relieved of its obligation to comply with any of the provisions of a Franchise by reason of any failure of the City or to enforce prompt compliance. E. Administration of Franchise. (1) The City shall have continuing regulatory jurisdiction and supervision over the System and a Grantee's operation under a Franchise. The City may issue such reasonable rules and regulations concerning the construction, operation and maintenance of a System as are consistent with the provisions of a Franchise. (2) A Grantee shall construct, operate and maintain a System subject to the supervision of all the authorities of the City who have jurisdiction in such matters and in strict compliance with all laws, ordinances, departmental rules and regulations affecting the System. (3) A System and all parts thereof shall be subject to the right of periodic inspection by the City where reasonably necessary to the enforcement of a Franchise and provided that such inspection shall not interfere with the 588627 Franchise Ordinance December 2,1996-Page 8 operation of a System and such inspections take place during normal business hours. F. Emergency Use. In the case of any emergency or disaster, a Grantee shall, upon request of the City or emergency management personnel, make available to the City its emergency alert system and related facilities for use during an emergency or disaster period in accordance with Section 47 C.F.R. § 11. G. Controlling Law. A Franchise shall be construed and enforced in accordance with the substantive laws of the State of Minnesota except to the extent the Supremacy Clause of the United States Constitution requires application of federal law. H. motions. The paragraph captions and headings in a Franchise are for convenience and reference purposes only and shall not affect in any way the meaning of interpretation of a Franchise. I. Calculation of Time. Where the performance or doing of any act, duty, matter, payment or thing is required hereunder and the period of time or duration for the performance is prescribed and fixed herein, the time shall be computed so as to exclude the first and include the last day of the prescribed or fixed period or duration of time. When the last day of the period falls on Saturday, Sunday or a legal holiday, that day shall be omitted from the computation and the next business day shall be the last day of the period. See. 8. Construction of System. A. A Grantee shall, at least 60 days prior to any construction regarding the System in the City, provide notice to representatives of the City of the following: (1) The nature of the work to be undertaken; (2) the estimated schedule for said work; (3) steps to be taken to minimize disruption to public; and (4) steps to be taken to notify the residents and others of said work. B. A Grantee shall not open or disturb the surface of any Streets without first obtaining a permit from City for which permit City may impose a reasonable fee to be paid by a Grantee. The lines, conduits, cables and other property placed in the Streets shall be located in such part of the Street as shall be reasonably determined by the City. In so determining the location in such part of the Street, the parties shall take into account the health, safety and welfare considerations together with the technical parameters of the System design. A Grantee shall, upon completion of any work requiring the opening of any Streets, restore the same, 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 to maintain the same thereafter in 588627 Franchise Ordinance December 2,1996-Page 9 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 back into the condition required hereby, City shall have the right to give written notice to Grantee regarding the condition of the Street. Grantee shall have 30 days from the receipt of written notice from the.City to put the Street into the condition required hereby or reach an agreement with the City. 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 back into the condition required hereby, the City shall have the right following 30 days written notice to a Grantee to put the Street back into good condition at the expense of the Grantee. A Grantee, upon demand, shall pay to the City the cost of such work done or performed including its administrative and overhead plus an additional ten percent as liquidated damages. C. All wires, conduits, cable and other property and facilities of a Grantee shall be so located, constructed, installed and maintained as not to endanger or unnecessarily interfere with the usual and customary trade, traffic and travel upon, or other use of, the Streets of City. A Grantee shall keep and maintain all of its property in good condition, order and repair so that the same shall not menace or endanger the life or property of any person. A Grantee shall keep accurate maps and records of all of its wires, conduits, cables and other property and facilities located, constructed and maintained in the City. D. All wires, conduits, cables and other property and facilities of a Grantee, shall be constructed and installed in an orderly and workmanlike manner. All wires, conduits and cables shall be installed, where possible, parallel with electric and telephone lines. Multiple cable configurations shall be arranged in parallel and bundled with due respect for engineering considerations. E. A 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 maintenance of System shall not endanger or interfere with the safety of persons or property in the City. F. Whenever City shall undertake any public improvement which affects a Grantee's equipment or facilities, City shall, with due regard to reasonable working conditions and with reasonable notice, direct a Grantee to remove its wires, conduits, cables and other property located in Streets. A Grantee shall relocate or protect its wires, conduits, cables and other property at its own expense. If the City uses its own funds to reimburse any non- municipally owned utility for relocating its property at the City's request, and if the City does not receive something of approximately equal value, to which it was not otherwise entitled, in exchange for such reimbursement, the City will reimburse Grantee in a substantially similar manner. Notwithstanding anything to the contrary, this requirement shall not apply where an electric utility has been compensated for relocating its plant underground through franchise 588627 Franchise Ordinance December 2,1996-Page 10 fees collected from the electrical utility and such fees are dedicated in whole or in part to the undergrounding of electric facilities. G. To the extent a Grantee plans to construct or rebuild its System, it shall comply with the following minimum requirements: (1) A Grantee shall construct underground in any area where both electrical and telephone has been installed underground. (2) A Grantee shall change from aerial to underground, at its own expense, in any area where both electrical and telephone are hereafter changed from aerial to underground. If the City uses its own funds to reimburse any non-municipally owned utility for relocating its property at the City's request, and if the City does not receive something of approximately equal value, to which it was not otherwise entitled, in exchange for such reimbursement, the City will reimburse Grantee in a substantially similar manner. Notwithstanding anything to the contrary, this requirement shall not apply where an electric utility has been compensated for relocating its plant underground through franchise fees collected from the electrical utility and such fees are dedicated in whole or in part to the undergrounding of electric facilities. (3) A Grantee shall change from aerial to underground, when both electrical and telephone are similarly required, without cost to City, whenever requested by City, which request can be made for a certain area or areas or for the entire System. If the City uses its own funds to reimburse any non-municipally owned utility for relocating its property at the City's request, and if the City does not receive something of approximately equal value, to which it was not otherwise entitled, in exchange for such reimbursement, the City will reimburse Grantee in a substantially similar manner. Notwithstanding anything to the contrary, this requirement shall not apply where an electric utility has been compensated for relocating its plant underground through franchise fees collected from the electrical utility and such fees are dedicated in whole or in part to the undergrounding of electric facilities. (4) To enable a 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 arrange for the Grantee to receive timely notice of a new Franchise granted for Cable Services, but in no event shall City have any liability for failure to arrange for notice of the following: 588627 Franchise Ordinance December 2,1996-Page 11 (a) Any changes of which City has knowledge of, or which City may order, regarding a change from aerial to underground of any 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 a Franchise and a System. See. 9. Work Performed by Others. A. A Grantee shall give notice to City specifying the names and addresses of any entity, other than a Grantee, which performs construction services pursuant to a Franchise, provided, however, that all provisions of a Franchise remain the responsibility of a Grantee. B. All provisions of a Franchise shall apply to any subcontractor or others performing any work or services pursuant to the provisions of a Franchise. Sec. 10. Conditions on Use. A. A Grantee shall not place poles or other fixtures where the same will interfere with any gas, electric or telephone fixture, water hydrant or main. B. A Grantee, at the request of any person holding a building moving permit and with not less than five business 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 requesting the same, and Grantee shall have the authority to require such payment in advance of any required work taking place. C. A Grantee shall have the authority, to the extent the City has authority to grant the same, to trim trees upon or overhanging any Street so as to prevent the branches of such trees from coming in contact with the wires, conduits and cables of a Grantee. All trimming shall be done under the supervision and direction of City and at the expense of a Grantee. D. Nothing contained in a Franchise shall relieve any Person from liability arising out of the failure to exercise reasonable care to avoid injuring a Grantee's facilities while performing any work connected with grading, regrading or changing the line of any Street or public place or with the construction or reconstruction of any sewer or water system. Sec. 11. Use of Grantee's Facilities. 588627 Franchise Ordinance December 2,1996-Page 12 A Grantee is authorized to use Streets to construct, operate and maintain a Cable Television System and to provide Cable Services in the City. All uses by Grantee or others authorized by Grantee shall be subject to applicable permits, licenses, certificates or franchises as may be required by the City, state or federal law or rules. Sec. 12. Failure to Complete Work. Upon the failure, refusal or neglect of a Grantee to cause any work or other act required by law, this Ordinance or a Franchise to be properly completed or performed, after notice to a Grantee the City may cause work or other activity to be completed or performed, in whole or in part, to the satisfaction of the City. Upon so doing, the City shall submit to a Grantee an itemized statement of the cost thereof. A Grantee shall, within 30 days after receipt of the statement, pay to the City the entire amount thereof. Sec. 13. Technical Standards. A. A Cable System shall be designed, constructed and operated so as to meet those technical standards promulgated by the Federal Communications Commission relating to Cable Television Systems contained in part 76 of the Federal Communications Commission's rules and regulations relating to Cable Television Systems and found in Code of Federal Regulations, Title 47, Sections 76.601 to 76.630. The City shall be able to enforce these standards to the extent allowable under local, state or federal law. Any tests required by the Federal Communications Commission pursuant to these rules must be filed with the City upon request. B. A Grantee shall perform additional tests if requested by City. The tests may be done at such times as is determined by City, with notice to a Grantee. All expenses for all such tests shall be paid by City, unless otherwise agreed upon. Sec. 14. Interconnection. A. A System shall be designed to be interconnected with other adjacent Systems. At a minimum, a System shall be capable of interconnecting the access channel programming to other adjacent systems. Grantee shall not be required to provide more access channels as a result of interconnecting with another system than the number of channels required by the franchise agreement ordinance. B. The City may request a Grantee to negotiate interconnecting the Subscriber Network with other adjacent Systems in the general area. A Grantee shall use its good faith to negotiate such interconnection and shall keep the City informed of the progress of any negotiations. 588627 Franchise Ordinance December 2,1996-Page 13 Sec. 15. Removal or Abandonment of A System. A. In the event that: (1) the use of any System is discontinued for any reason for a continuous period of 12 months; or (2) any System has been installed in a Street without complying with the requirements off this Ordinance and a Franchise, a Grantee, at its expense shall, at the demand of the City remove promptly from the Streets all of a System other than any which the City may permit to be abandoned in place. In the event of any such removal Grantee shall promptly restore to a condition as nearly as possible to its prior condition the Street or other public places in the City from which a System has been removed. B. A System to be abandoned in place shall be abandoned in the manner prescribed by the City. A Grantee may not abandon any portion of a System without having first given three months written notice to the City. A Grantee may not abandon any portion of a System without compensating the City for damages resulting from the abandonment. C. At the termination or expiration of the term for which a Franchise is granted and following a denial of renewal, or upon its revocation, as provided for, the City shall have the right to require a Grantee to remove within two years, at a Grantee's expense, all or any portion of a System from all Streets within the City. In so removing a System, a Grantee shall refill and compact at its own expense, any excavation that shall be made and shall leave all Streets and private property in as good a condition as that prevailing prior to a Grantee's removal of a System, and without affecting, altering or disturbing in any way electric, telephone or utility, cables wires or attachments. The City, or its delegation, shall have the right to inspect and approve the condition of such Streets after removal. The security fund, insurance, indemnity and penalty provision of a Franchise shall remain in full force and effect during the entire term of removal. The indemnity and insurance provisions of this Ordinance in Sections 31 and 33 shall survive any termination or revocation. D. If a Grantee has failed to complete such removal within the time given after written notice of the City's demand for removal is given, the City shall have the right to exercise one of the following options: (1) Declare all right, title and interest to a System to be in the City or its designee with all rights of ownership including, but not limited to, the right to operate a System or transfer a System to another for operation by it; or (2) Declare a System abandoned and cause a System, or such part thereof as the City shall designate, to be removed at no cost to the City. The cost of said removal shall be recoverable from the security fund, indemnity and penalty section provided for in the Franchise, or from a Grantee directly. 588627 Franchise Ordinance December 2,1996-Page 14 E. Upon termination of service to any Subscriber, a Grantee shall promptly remove all its facilities and equipment from a dwelling of a Subscriber who owns such dwelling upon his or her written request, except as provided by applicable state and federal law. Such Subscribers shall be responsible for any costs incurred by a Grantee in removing the facilities and equipment. Sec. 16. Customer Service Standards. A. At all times, a Grantee shall meet the requirements of the Federal Communications Commission regulations on Consumer Service Obligations. A Grantee shall comply with the Customer Service Obligations of the Federal Communications Commission as such standards may from time to time be amended. A copy of the Consumer Service Obligations is attached hereto as Exhibit A. B. A Grantee shall begin actions to correct service or maintenance problems no later than 24 hours after it is notified of a System outage for 95% of Subscribers. A Grantee shall bear the costs of making any repairs, adjustments, or installations, unless the Subscriber caused the damage necessitating the repairs or maintenance. A Grantee may charge for service. C. Subscriber Complaints to the City. (1) Subscribers shall direct all complaints regarding service to a Grantee. (2) If such complaints are not rectified within seven days from the date the complaint is made, the Subscriber may file a complaint with the City. (3) The City shall maintain a record of all complaints it receives. (4) If, at any time after receipt of a complaint, the City believes that the complaint may constitute a violation of a Franchise, or local, state or federal law, the City may notify a Grantee regarding the complaint. (5) If the City and a Grantee cannot resolve the complaint within seven days after the date that the Subscriber files a complaint with the City, the City may issue a written notice specifying the nature of the complaint and ordering a Grantee to appear at the next regularly scheduled meeting or other appropriate public forum, as determined by City. (6) If the City and Grantee fail to rectify the complaint, the City may begin default procedures as specified in Section 34. 588627 Franchise Ordinance December 2,1996-Page 15 Sec. 17. Programming Provisions. A Grantee shall identify its initial services in an Exhibit attached to a franchise agreement ordinance. Sec. 18. Subscriber Practices. A. There shall be no charge for disconnection of any installation or outlet. If any subscriber fails to pay a properly due monthly subscriber fee, or any other properly due fee or charge, a Grantee may disconnect the subscriber's service outlet, provided, however, that such disconnection shall not be effected until after the later of. (i) 45 days after the original 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), a Grantee shall not disconnect. After disconnection, upon payment in full of the delinquent fee or charge and the payment of a reconnection charge, a Grantee shall promptly reinstate the subscriber's cable service. B. Refunds to subscribers shall be made or determined in the following manner: (1) If a Grantee fails, upon request by a subscriber, to provide any service then being offered, a Grantee shall promptly refund all deposits or advance charges paid for the service in question by said subscriber. This provision does not alter a Grantee's responsibility to subscribers under any separate contractual agreement or relieve a Grantee of any other liability. (2) If any subscriber terminates any monthly service because of failure of a Grantee to render the service in accordance with a Franchise, a Grantee shall refund to such subscriber the proportionate share of the charges paid by the subscriber for the services not received. This provision does not relieve a Grantee of liability established in other provisions of a Franchise. C. If any subscriber terminates any monthly service prior to the end of a prepaid period, a proportionate amount of any prepaid subscriber service fee, using the number of days as a basis, shall be refunded to the subscriber by a Grantee. D. Continued failure by a Grantee to provide services required by a Franchise may, in the discretion of City, be cause for imposition of a penalty or termination of a Franchise. 588627 Franchise Ordinance December 2,1996-Page 16 Sec. 19. Local Office. Each Franchise shall require that a Grantee maintain a local business office, as described in a Franchise, or agent, which subscribers may access by telephone 24 hours a day, seven days a week, without incurring long distance toll charges, so that complaints, questions or requests regarding the service provided pursuant to a Franchise may be promptly reported to a Grantee. Sec. 20. Subscriber Charges. Current subscriber charges, the length and terms of residential subscriber contracts, and the procedure by which subscriber charges are established shall be available during normal business hours for public inspection. Sec. 21. Rate Regulation. The City reserves the right to regulate rates for services offered over the Cable System, to the extent not expressly preempted by federal and state law. A Grantee shall be subject to the rate regulation provisions provided for herein, and those of the FCC at 47 C.F.R., Part 76.900, Subpart N. Sec. 22. Rights of Individuals. A. Discriminatory Practices Prohibited. In the performance of a Franchise, a Grantee shall not discriminate against any person on the ground of or because of race, creed, color, national origin or ancestry, sex, religion, sexual preference, or political opinion or affiliation or age. A Grantee shall comply at all times with all other applicable federal, state and City laws, and all executive and administrative orders relating to non-discrimination. B. Subscriber Privacy. (1) No signals, including signals of a Class IV Channel, shall be transmitted from a subscriber terminal except as required to provide a service authorized by a Franchise and the Subscriber. A Grantee and any other Person shall neither initiate nor use any procedure or device for procuring or 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 document and identify the purpose for which the data or information is being gathered or stored. After the first year of the authorization's initial signing, a Grantee shall, for each year said 588627 Franchise Ordinance December 2,1996-Page 17 authorization is in effect without revocation, mail a notice to each authorizing Subscriber informing him or her of the right to revoke said authorization. The authorization shall be revocable at any time by the Subscriber without penalty of any kind whatsoever. A separate authorization shall be required for each type or classification of data or information sought from a Subscriber terminal. (2) A Grantee shall not, without the written authorization of the affected Subscriber, provide to anyone data identifying or designating any Subscriber other than where that third-party is performing a service or task in furtherance of the Grantee's business including, but not necessarily limited to, billing or telemarketing functions. Any data authorized shall be made available upon request by and without charge to the authorizing subscriber in understandable fashion, including 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. A Grantee shall not tap or monitor, arrange for the tapping or monitoring, or permit any other person to tap or monitor, any cable, line, signal input device, or Subscriber outlet or receiver for any purpose whatsoever, without the prior written authorization of the affected Subscriber as required by paragraph B of this section. D. Nothing herein contained shall prohibit a Grantee from verifying System operation and the transmission of signals to an affected subscriber or from monitoring for the purpose of billing. Sec. 23. Public, Educational and Governmental Access. Each Franchise shall include a requirement for public, educational and governmental access programming and facilities consistent with state and federal law. Sec. 24. Grantee Records and Books. A. Throughout the term of a Franchise, a Grantee shall maintain books and records in accordance with normal and accepted bookkeeping and accounting practices for the Cable Communications industry, and allow for inspection of them at reasonable times at its designated office where necessary to enforcement of a Franchise. The books and records to be maintained by a 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; 588627 Franchise Ordinance December 2,1996-Page 18 (3) A file of all subscriber contracts; (4) Grantee policies, procedures and company rules; and (5) Financial records. B. A Grantee shall file with City, at the time of its annual payment of a Franchise Fee, as described in a Franchise, the following: (1) A copy of the most recent performance review for a Grantee utilizing the Annual Performance Review Form attached hereto as Exhibit B. (2) A statement certified by an officer of Grantee showing, in such detail as acceptable to City, the gross revenues of a Grantee for the preceding fiscal year. (3) Current list of names and addresses of each officer and director and other management personnel, and if a corporation, each shareholder having stock ownership of three 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. (4) If requested by City, a copy of each document filed with all federal, state and local agencies during the preceding fiscal year not previously filed with City. (5) A statement of its current billing practices. (6) A current copy of its rules governing use of equipment and facilities and public, educational and government access and leased access programming. (7) A current copy of its subscriber service contract. (8) A copy of any subscriber surveys conducted during the last calendar year. C. City, its agents and representatives shall have authority where necessary to enforcement of a Franchise to arrange for and conduct an inspection or audit of the books and records of a Grantee. A Grantee shall first be given five days notice of the inspection or audit request, the description of and purpose for the inspection or audit, and description, to the best of City's ability, of the books, records and documents it wants to review. 588627 Franchise Ordinance December 2,1996-Page 19 Sec. 25. Transfer of Ownership. A. A Franchise shall not be assigned or transferred, either in whole or in part, or leased, sublet or mortgaged in any manner, nor shall title thereto, either legal or equitable or any right, interest or property therein, pass to or vest in any person other than an Affiliate of Grantee without the prior written consent of City, which consent shall not be unreasonably withheld. Further, Grantee shall not sell or transfer any stock or ownership interest so as to create a new controlling interest except with the consent of City, which consent shall not be unreasonably withheld. 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. The parties to the sale or transfer of Franchise shall make a written request to City for its consent. City shall reply in writing within 30 days of actual receipt of the request and shall indicate its approval of the request or its determination that a public hearing is necessary. City shall conduct a public hearing on the request within 30 days of such determination if it determines that a sale or transfer of Franchise may adversely affect the Grantee's subscribers. C. Unless otherwise already provided for by local law, notice of any such hearing shall be given 14 days prior to the hearing by publishing notice thereof once in a newspaper of general circulation in the City. The notice shall contain the date, time and place of the hearing and shall briefly state the substance of the action to be considered by City. Within 30 days after the public hearing, City shall approve or deny in writing the sale or transfer request. D. In a sale or transfer of only a Franchise, without the inclusion of the System in which at least substantial initial construction has commenced, a Grantee shall be required to establish to the sole satisfaction of City that the sale or transfer of a Franchise is in the public interest. E. 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 majority of a corporation's assets, merger (including a parent and its subsidiary corporation), consolidation or creation 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, change from a limited to a general partnership, incorporation of a partnership, or change in the control of a partnership. 588627 Franchise Ordinance December 2,1996-Page 20 F. The word "control", as used herein, shall apply to the sale or transfer of all or a majority of Grantee's assets or shares of stock, merger (including any parent and its subsidiary corporation), consolidation, creation of a subsidiary corporation of the parent company, or sale or transfer of stock in Grantee so as to create a new controlling interest. The term "controlling interest" as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised, including the creation or transfer of decision-making authority to a new or different board of directors. Every change, transfer or acquisition of control of a Grantee shall make the Franchise subject to cancellation unless and until City shall have consented in writing thereto, which consent shall not be unreasonably withheld. For the purpose of determining whether it shall consent to such change, transfer or acquisition of control, City may inquire into the qualifications of the prospective controlling party. The City reserves the right to seek reimbursement of its costs for conducting an inquiry to the extent permitted by applicable state and federal law. The preceding statement does not constitute an agreement by any party to reimburse the City. G. In no event shall a transfer or assignment of ownership or control be approved without transferee becoming a signatory to a Franchise. H. Any transferee of a Franchise shall be subordinate to any right, title or interest of City. I. For information on the right of the City to purchase the cable system during a transfer of ownership, see Section 26. J. Notwithstanding anything to the contrary, no such consent or approval shall be required for a transfer or assignment to any Person controlling, controlled by or under the same common control as the Grantee. Sec. 26. Right to Purchase. A. Transfer of Ownership. If at any time a Grantee receives a bona fide purchase offer for an asset sale of a System which a Grantee is willing to accept, a complete copy of such offer shall promptly be given to City and City shall have the right to purchase a System according to the terms of that offer. City shall exercise such right by submitting to a Grantee, within 60 days after City's actual receipt of the bona fide offer, notice that City desires to purchase a System pursuant to said offer. If City does not exercise such right a System may be sold, but only on terms 588627 Franchise Ordinance December 2,1996-Page 21 substantially similar to those terms submitted to City. If any substantive changes are made in the purchase offer given to City, such purchase offer, as so changed, shall again be given to City and City shall have 60 days from actual receipt by City of the offer, as changed, within which to exercise its right to purchase a System pursuant to the offer, as changed, all as above provided. If City does not exercise its right to purchase a System pursuant to any offer given to City pursuant to this paragraph, and a System is not sold to the buyer and on the terms set out in the offer given to City, then the right of City to purchase a System shall continue, 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. B. Upon Forfeiture, Revocation or Expiration (1) Upon forfeiture, revocation or termination of a Franchise, or at the normal expiration and denial of any renewal of a Franchise term, City shall have the right to purchase the System. Such right shall be exercised upon written notice to Grantee given within 120 days after the occurrence of any such event. (2) In the event City elects to exercise its right to purchase the System as provided in this Paragraph B, the following shall then apply: (a) If a Franchise expires and the renewal of the Franchise is denied and the City acquires ownership of the Cable System or effects a transfer of ownership of the System to another Person, any such acquisition or transfer shall be at fair market value, determined on the basis of the Cable System valued as a going concern but with no value allocated to the Franchise itself, or (b) If a Franchise held by a Grantee is revoked for cause and the City acquires ownership of the Cable System or effects a transfer of ownership of the System to another Person, any such acquisition or transfer shall be at an equitable price. (c) A Grantee expressly waives its rights, if any, to relocation costs that might otherwise be provided by law. (d) The date of valuation shall be no earlier than the day following the date of revocation, forfeiture, expiration or termination of a 588627 Franchise Ordinance December 2,1996-Page 22 Franchise and no later than the date City makes a written offer for a System. See. 27. Mediation. It either a Grantee or City asserts that the other is in default in the performance of any obligation of a Franchise or in the event of a dispute relating to a right to purchase or terms and conditions of it as described in Section 26 of this Ordinance, the complaining party shall notify the other of the default or claim and the desired remedy. The notification shall be written. Representatives of City and a Grantee must promptly meet and attempt in good faith to negotiate a resolution. If the dispute is not resolved within 30 days of the written notice, the City and a Grantee may jointly select a mediator to facilitate further discussion. The City and a Grantee will equally share the fees and expenses of this mediator. If a mediator is not used, or if the City and a Grantee are unable to resolve the matter within 30 days after first meeting with the selected mediator, either may commence an action in any court of competent jurisdiction in Minnesota to interpret and enforce a Franchise or for such other relief as may be permitted by law or equity, or either Grantee or City may take any other action permitted by law. Sec. 28. Special Provisions. A. As permitted by state and federal law, and specified in a Franchise Agreement Ordinance, each Franchise may require a Grantee to provide facilities and services to public schools and community colleges within the City, and to fire and police stations and other buildings owned and controlled by the City used for public non-residential purposes. B. System Maps and Layout- A Grantee shall have, at all times, up-to-date route maps showing the location of the Cable Communications System adjacent to the Streets. A Grantee shall make all maps available for review by the appropriate City personnel. C. System Construction and Equipment Standards - The Cable Communications System shall be installed and maintained in accordance with standard good engineering practices and shall conform, when applicable, with the National Electrical Safety Code and the FCC's Rules and Regulations. Sec. 29. Franchise Fee. A. As permitted by state and federal law, a Grantee may be required to pay to the City a Franchise Fee as set forth in a Franchise, in compensation for the use of the City's Streets pursuant to a Franchise. 588627 Franchise Ordinance December 2,1996-Page 23 B. If a Franchise requires payment of a Franchise Fee, each such Franchise shall authorize the City to audit a Grantee's financial records and accountings relating to a Franchise Fee. A Grantee shall make available at its local business office, upon reasonable request, such data as needed to conduct such audit in accordance with generally accepted accounting principles. C. The City and its representatives shall have the right to inspect a Grantee's financial records during normal business hours to determine whether a Grantee has properly paid all sums due to the City pursuant to the terms of a Franchise. D. Any neglect, omission or refusal of a Grantee to cooperate with the City in reviewing its financial information for the purpose of auditing payment of a Franchise Fee, or to pay a Grantee fee in full, at the time and in the manner provided in the Franchise, which neglect, omission or refusal shall continue for more than 30 days following written notice thereof to a Grantee from the City, shall be grounds for default of a Franchise as provided for in Section 34 hereof. Sec. 30. Liability. A. A Grantee shall pay all damages and penalties which the City may legally be required to pay as a result of granting a Grantee's Franchise. B. A Grantee shall pay all expenses incurred by the City in defending itself with regard to all damages and penalties mentioned above. The expenses shall include all costs, such as attorney's fees. Sec. 31. Indemnification. A. Grantee shall indemnify, defend, and hold harmless the City for all damages and penalties, at all times during the term of this Franchise, as a result of the procedures for granting this Franchise, the granting of this Franchise, or Grantee's conduct or performance under this Franchise. These damages and penalties shall include, but shall not be limited to, damages arising out of Personal injury, property damage, copyright infringement, defamation, antitrust, errors and omission, theft, fire, and all other damages arising out of Grantee's exercise of this Franchise, whether or not any act or omission complained of is authorized, allowed or prohibited by this Franchise. B. In order for the City to assert its rights to be indemnified, defended, or held harmless, the City must: (1) Notify Grantee of any claim or legal proceeding which gives rise to such right; 588627 Franchise Ordinance December 2,1996-Page 24 (2) Afford Grantee the opportunity to participate in and fully control any compromise, settlement or other resolution or disposition of such claim or proceeding, unless, however, the City, in its sole discretion, determines that its interests cannot be represented in good faith by Grantee; and (3) Fully cooperate with the reasonable requests of Grantee in its participation in, and control, compromise, settlement or resolution or other disposition of such claim or proceeding subject to paragraph (2) above. (4) Act reasonably under all circumstances so as to protect the indemnitor against liability and refrain from compromising any of indemnitor's rights. C. In the event the City, in its sole discretion, determines that its interests cannot be represented in good faith by Grantee, Grantee shall pay, upon receipt of written demand from City, all reasonable expenses incurred by the City in defending itself with regard to all damages and penalties mentioned in paragraph A above. These expenses shall include, but not be limited to, all out-of-pocket expenses, such as attorney's fees and costs and the reasonable value of services (as determined by City, rendered by City or any employees, agents or representatives of City; provided, however, the attorney fees shall not exceed (on an hourly basis) those customarily charged for similar work in the Twin Cities Metropolitan area of Minnesota. City reserves the right to cooperate with a Grantee and participate in the defense of any litigation either through intervention or otherwise. Sec. 32. Security Funds. A. The City may require a Grantee to file with the City Clerk, concurrently with its acceptance of a Franchise and at a Grantee's sole expense, a corporate surety bond, construction bond or letter of credit. Such bond or letter of credit shall be in an amount specified in the Franchise Agreement Ordinance, issued by a responsible company licensed to do business in Minnesota and conditioned upon the faithful performance of the Grantee to meet its obligations under this Ordinance and the Franchise Agreement Ordinance. The bond or letter of credit may be reduced at the sole discretion of the franchising authority. B. The provisions of this Section shall not be construed to excuse unfaithful performance by a Grantee or limit the liability of a Franchise under this Ordinance or a Franchise for damages. See. 33. Insurance. A. A Grantee shall maintain liability insurance covering its obligations of indemnification provided for in or as a result of the exercise of a Franchise covering both the 588627 Franchise Ordinance December 2,1996-Page 25 City and a Grantee (and shall maintain said insurance during the entire term of a Franchise) in the minimum amount of: (1) $500,000 for property damage to any one person; (2) $2,000,000 for property damage in any one act or occurrence; (3) $1,000,000 for personal injury to any one person; and (4) $2,000,000 for personal injury in any one act or occurrence. B. During the term of this Franchise, the Grantee shall maintain insurance, as required by paragraph (A) above, issued by a carrier or carriers with an A.M. Best rating of "A-" or better. The Grantee shall maintain on file with the City certificates of insurance together with written evidence of payment of required premiums throughout the term of this Franchise. The above minimum amounts may be changed from time to time by Grantee as requested by the City;provided, however, the Grantee shall not be required to provide insurance in excess of what is customarily provided by other cable television operators in the Twin Cities Metropolitan area. C. A Grantee shall immediately give notice to City of any threatened or pending litigation likely to affect this insurance. D. Neither the provisions of this section nor any damages recovered by City shall be construed to, or shall, excuse unfaithful performance by a Grantee or limit the liability of a Grantee. E. No recovery by City of any sum by reason of the Letter of Credit or Bond required in a Franchise shall be any limitation upon the liability of a Grantee to City under the terms 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 occurrence. F. All insurance policies maintained pursuant to a Franchise shall contain the following endorsement: It is hereby understood and agreed that this insurance policy may not be cancelled nor the intention not to renew be stated until 30 days after receipt by the City, by registered mail, of written notice of such intention to cancel or not to renew. G. A Grantee shall provide worker's compensation insurance as required by state law. 588627 Franchise Ordinance December 2,1996-Page 26 H. All such insurance coverage shall provide a 30 day notice to the City Manager in the event of material alteration or cancellation of any coverage afforded in said policies prior to the date said material alteration or cancellation shall become effective. See. 34. Default. A. City shall give written notice of default to a Grantee if City, in its sole discretion, determines that a Grantee has: (1) Violated any provision of a Franchise or the acceptance hereof, or any rule, order, regulation or determination of the City, state or federal government, not in conflict with a Franchise; (2) Attempted to evade any provision of a 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 a Franchise; or (5) Incurred a 12 month or more delay in the construction schedule. B. If a 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 a Grantee fails to commence to cure the same within said 30 day period and thereafter fails to use reasonable diligence, in City's sole opinion, to cure such default as soon as possible), then, and in any event, such default shall be a substantial breach and City may elect to terminate the Franchise. The City may place the issue of revocation and termination of a Franchise before the governing body of City at a regular meeting. If City decides there is cause or reason to terminate, the following procedure shall be followed: (1) City shall provide a Grantee with a written notice of the reason or cause for proposed termination and shall allow a Grantee a minimum of 30 days subsequent to receipt of the notice in which to correct the default. (2) A Grantee shall be provided with an opportunity to be heard at a public hearing prior to any decision to terminate a Franchise. (3) If, after notice is given and an opportunity to cure, at a Grantee's option, a public hearing is held, and the City determines there was a violation, breach, failure, refusal or neglect, the City may declare by resolution the 588627 Franchise Ordinance December 2,1996-Page 77 franchise revoked and of no further force and effect unless there is compliance within such period as the City may fix, such period may not be less than 30 days provided no opportunity for compliance need be granted for fraud or misrepresentation. Sec. 35. Continuity of Service. A. It shall be the right of all Subscribers to continue receiving services insofar as their financial and other obligations to a Grantee are honored. In the event that a Grantee elects to rebuild, modify or sell the System, or the City gives notice of intent to terminate or fails to renew a Franchise, a Grantee shall act so as to insure that all Subscribers receive reliable service. B. In the event of a change of a Grantee, or in the event a new operator acquires a System, a Grantee shall cooperate with the City's new Grantee or operator in maintaining continuity of service to all Subscribers. During such period, a Grantee shall be entitled to the revenues for any period during which it operates a System and shall be entitled to reasonable cost for its services when it no longer operates the System. C. In the event a Grantee fails to operate the System for three consecutive days without approval of the City or without just cause, the City may, at its option, operate the System or designate an operator until such time as a Grantee restores service under conditions acceptable to the City or a permanent operator is selected. This section shall not apply if the cable operator is unable to operate the system due to Force Majeure as defined in Section 38. If the City is required to fulfill this obligation for a Grantee, a Grantee shall reimburse the City for all reasonable cost or damages in excess of revenue from the System received by the City that are a result of a Grantee's failure to perform. D. A Grantee shall not allow its cable or other operations to interfere with the television reception of Persons not served by a Grantee, nor shall a System interfere with, obstruct or hinder in any manner, the operation of the various utilities serving the residents of the City, as the facilities of such utilities exist at the time of construction or extension of a Grantee's System. Sec. 36. Foreclosure and Receivership. A. Foreclosure. Upon the foreclosure or other judicial sale of a System, a Grantee shall notify the City of such fact and such notification shall be treated as a notification that a change in control of a Grantee has taken place, and the provisions of a Franchise governing the consent to transfer or change in ownership shall apply without regard to how such transfer or change in ownership occurred. 588627 Franchise Ordinance December 2,1996-Page 28 B. Receivershiv. The City shall have the right to cancel a Franchise subject to any applicable provisions of state law, including the Bankruptcy Act, 120 days after the appointment of a receiver or trustee to take over and conduct the business of a 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 120 days, or unless: (1) Within 120 days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of a Franchise and remedied all defaults thereunder; and, (2) Such receiver or trustee, within said 120 days, shall have executed an agreement, duly approved by the Court having jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be bound by each and every provision of a Franchise. See. 37. Compliance with Laws, Rules and Regulations. Any of the provisions or terms of this Ordinance may be amended by the City in order to be made consistent with any new or amended local, state or federal law, rule, or regulation of governmental authorities with jurisdiction to regulate Cable Communications Systems. The City and a Grantee shall conform to federal and state laws and regulations as soon as they become effective. Where amendment to laws, rules or other regulatory standards requires modification of any Franchise granted pursuant to this Ordinance, the modifications necessary to effect compliance with such laws, rules or regulations shall be made within one year of the effective date of such change, or at the time of renewal of a Franchise, whichever occurs first. See. 38. Force Majeure. A. In the event a Grantee's performance of any of the terms, conditions or obligations required by this Ordinance or a Franchise granted hereunder is prevented by a cause or event not within a Grantee's control, such inability to perform shall be deemed excused and no penalties or sanctions shall be imposed as a result thereof. B. For the purpose of this section, causes or events not within the control of a Grantee shall include but not be limited to acts of God, strikes, sabotage, riots or civil disturbances, restraints imposed by order of a governmental agency or court, failure or loss of utilities, explosions, acts of public enemies and natural disasters such as floods, earthquakes, storms, landslides, and fires. 588627 Franchise Ordinance December 2,1996-Page 29 See. 39. Severability. A. This Ordinance shall be construed in a manner consistent with all applicable federal and Minnesota laws. B. If any section, subsection, sentence, clause, phrase or portion of this Ordinance or any Franchise granted hereunder is for any reason held illegal, invalid or unconstitutional by the decision of any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof or thereof. See. 40. Effective Date. This Cable Regulatory Ordinance shall become effective on January 1, 1997 and simultaneously Ordinance No. 80-33, also known as the Cable Communications Ordinance, and Ordinance No. 37-91, also know as the Local Programming Restructuring Ordinance, shall be repealed, provided that the current Grantee under the Cable Communications Ordinance has executed a Franchise Agreement Ordinance in compliance with this Ordinance before December 25, 1996. If the current Grantee under the Cable Communications Ordinance has not executed a Franchise Agreement Ordinance pursuant to this Ordinance by December 25, 1996, this Cable Regulatory Ordinance becomes null and void, and the existing Cable Communications Ordinance remains in force. Sec. 41. Certification and Publication. The City Clerk shall certify to the passage of this Ordinance and shall cause the same to be printed in accordance with the requirements of the City and state law. PASSED, ADOPTED AND APPROVED by the Mayor and Council of the City of Eden Prairie, Minnesota, this 3rd day of December, 1 Mayor ATTEST: C1 588627 Franchise Ordinance December 3,1996-Page 30 EXHIBIT A FEDERAL COMMUNICATIONS COMMISSION CUSTOMER SERVICE OBLIGATIONS 588627 Franchise Ordinance December 2,1996-Page 31 EXHIBIT B ANNUAL PERFORMANCE REVIEW Check Where Applicable 1. RATES AND CHARGES No change Changed Notices sent to City and subscriber Changes in rates and costs identified by attachment Change "reasonable" and consistent with the standards prescribed by the FCC Other (describe in attachment) 2. PROGRAMS AND SERVICES No change in programs and services New programs and services added Identify new programs and services Other (describe in attachment) 3. CUSTOMER SERVICE Customer service requirements complied with Periodic subscriber satisfaction survey performed Results of subscriber satisfaction survey with comment on meeting needs identified (attached) 588627 Franchise Ordinance December 2,1996-Page 32 4. FILINGS WITH FCC Summary of all filings with FCC described in attachment 5. PERFORMANCE TEST IN FRANCHISE COMPLETED Summary of performance test results (attached) 6. FRANCHISE FEE PAYMENTS MADE WITH REVENUE SOURCES IDENTIFIED (SUMMARY ATTACHED) 7. COMPLETION OF CONSTRUCTION Upgrade/rebuild (summary attached) New technologies incorporated into system Channel capacity increased Service extended to new areas Other S. NEW SERVICES No Changes Services other than programming made available in the subscriber network (summary attached) 9. TERMS AND CONDITIONS IN THE FRAN HI HAVE BEEN COMPLIED WITH Summary attached of outlining incomplete matters requiring action by Company Company participated in planning studied and Cable Advisory Committee activities (summary attached) 588627 Franchise Ordinance Dcc=ber 2,1996-Page 33 All insurance, bonds and deposits are updated and filed with City Duplication of materials already filed with the City is not required with this filing. Dated this day of , 19_ by Officer of Cable Company City of Verification: The above Annual Performance Review has been filed by as required. The Office of Administrative Services for the City of has reviewed the information and finds that the filing is complete /is not complete The following matters are deemed incomplete and require further information and/of compliance by THE CITY OF By: Dated this _ day of , 19_. 588627 Franchise Ordinance December 2,1996-Page 34 SUMMARY OF THE FRANCHISE RENEWAL ORDINANCES FOR THE CITY OF EDEN PRAIRIE I.SUMMARY OF THE CABLE TELEVISION REGULATORY ORDINANCE NO. 53-96 The Cable Television Regulatory Or- dinance ("Regulatory Ordinance") pro- vides the franchising process and require- ments for all cable operators within the City Affidavit of Publication Ci of Eden Prairie. It defines the terms used within the documents. It also out- lines the authority that City Eden Southwest Suburban Publishing Prairie has to grant cablele franchises. ranchisese s. The Regulatory Ordinance provides an application process for new applicants and a renewal process for current appli- cants. The Regulatory Ordinance speci- fies that no franchise can be granted for a period of time longer than 15 years.Italso )SS. describes the franchise territory. Within the Regulatory Ordinance, County of Hennepin ) franchise administration procedures are outlined.The Regulatory Ordinancespeci- Stan Rolfsrud,being duly sworn,on oath says that he is the authorized agent of the publisher of fies that the City Manager or the City the newspaper known as the Eden Prairie News and has full knowledge of the facts herein stated Manager's designee is responsible for as follows: cable administration. Under the Regula- (A)This newspaper has complied with the requirements constituting qualification as a legal tory Ordinance,the City is authorized to newspaper,as provided by Minnesota Statute 331A.02,331A.07,and other applicable laws,as delegate its rights regarding administra- amended. lion of the Regulatory Ordinance.During emergencies or disasters,the City is au- (B)The printed public notice that is attached to this Affidavit and identified as No.5�!- /og. thorized to use the Grantee's emergency was published on the date or dates and in the newspaper stated in the attached Notice,and said alert system. Notice is hereby incorporated as part of this affidavit.Said notice was cut from the columns of the The Regulatory Ordinance provides newspaper specified. Printed below is a copy of the lower case alphabet from A to Z,both construction requirements thatoutline the inclusive,and is hereby acknowledged as being the ki d size of type used in the composition responsibilities of a Grantee during the and publication of the Notice: construction of a cable system and speci- fies the process for the movement of or abcdefghijklmn pq yZ removal of the Grantee's egaipmentatthe request of the City or another person. Additional construction issues addressed by the Regulatory Ordinance include in- By: terconnection with adjacentsystems,aban- Stan Rolfsrud,G'ebefaH4anager donment of the cable system and removal or his designated agent of the cable system. The Regulatory Or- dinance incorporates the Federal Com- municationsCommission'stechnicalstan- Subscribed and sworn before me on dards by reference. To address customer service issues, the Regulatory Ordinance incorporates the Federal Communications thisZZ!�—Q day of , 1996 - Commission's customer service standards GWEN M. RADUENZ and includes additional customer service f TARY PUBLIC—MINNESOTA standards regarding outages, subscriber _ OMMISSION EXPIRES 1-31-0o complaints, subscriber practices, sub- scriber charges, rate regulation and the otary Public rights of individuals.It also requires each Grantee to maintain a local office. The Regulatory Ordinance requires each Grantee to provide public, educa- tional and governmental access program- ming and facilities consistent with state and federal law. Provisions within the Regulatory Or- dinance allow theCity to review Grantee's records and books.The Regulatory Ordi- nance also specifies the documents and records that each Grantee must provide annually including an Annual Perfomm ce Review. RATE INFORMATION The Regulatory Ordinance provisions state that the City has the right to review Lowest classified rate paid by commercial users for comparable space......$16.00 per column inch transfers of ownership and to match a Maximum rate allowed by law for the above matter...................................$16.00 per column inch bona fide purchase offer for an asset sale Rate actually charged for the above matter.............................................. $ 7.67 r column inch of the system.Additional provisions gov- ern the City,s right to purchase the cable system upon forfeiture,revocation or ex- piration. To minimize litigation, the Regula- tory Ordinance contains mediationproce- dures. The Regulatory Ordinance also affirms the City's right to assess a fran- chise fee. To protect the City, the Regulatory Ordinance includes provisions detailing the Grantee's liability for damages and penalties,the Grantee's responsibility for indemnifying the City,requirements for security funds, and insurance require- ments. The Regulatory Ordinance contains extensive default provisions including requirements for the continuation of cable services if a franchise is terminated or if it is not renewed, and foreclosure and re- ceivership procedures. Additional provi- sions in the Regulatory Ordinance in- clude a Force Majeureprovision allowing exceptions for events beyond the Grantee's control,a severability procedure and an effective date provision. (Published in the Eden Prairie News on Thursday,Dec.12, 1996;No.7569)