§ 20.37  FRANCHISE.
   (a)   Franchise required. Other than the , it shall be unlawful for any , unless specifically required by , to construct, install, operate or maintain a or to offer in the , unless such or the for whom such action is being taken shall have first obtained and shall currently hold a valid franchise. Grantee promises and guarantees, as a condition of exercising the privileges granted by this franchise, that any of the grantee involved in the offering of in the , or directly involved in the ownership, management or operation of the in the , shall also comply with all obligations of this franchise. However, the and grantee acknowledge that will be primarily responsible for the construction and installation of the facilities in the rights-of-way which will be utilized by grantee to provide cable services. So long as does not provide to subscribers in the , will not be subject to the terms and conditions contained in this franchise. ’s installation and maintenance of facilities in the rights-of-way is governed by applicable local, state and federal law. To the extent grantee constructs and installs facilities in the rights-of-way, such installation will be subject to the terms and conditions contained in this franchise. Grantee is responsible for all provisions in this franchise related to: 1) its offering of cable services in the ; and 2) the operation of the regardless of what entity owns or constructs the facilities used to provide the . The and grantee agree that to the extent violates any applicable federal, state, or local laws, rules, and regulations, the shall first seek compliance directly from . In the event the cannot resolve these violations or disputes with , then the may look to grantee to ensure such compliance. Failure by grantee to ensure ’s or any other compliance with applicable local, state and federal laws, rules, and regulations, shall be deemed a material breach of this franchise by grantee.
   (b)   Grant of franchise. The hereby authorizes grantee to occupy or use the ’s streets subject to: 1) the provisions of this non-exclusive franchise to provide within the ; and 2) all applicable provisions of the . Said franchise shall constitute both a right and an obligation to provide cable services as required by the provisions of this franchise. Nothing in this franchise shall be construed to prohibit grantee from: (1) providing services other than cable services to the extent not prohibited by applicable law; or (2) challenging any exercise of the ’s legislative or regulatory authority in an appropriate forum. The hereby reserves all of its rights to regulate such other services to the extent not prohibited by applicable law and no provision herein shall be construed to limit or give up any right to regulate.
   (c)   Reservation of authority. The grantee specifically agrees to comply with the lawful provisions of the and applicable regulations of the . Subject to the police power exception below, in the event of a conflict between A) the lawful provisions of the or applicable regulations of the and B) this franchise, the express provisions of this franchise shall govern. Subject to express federal and state preemption, the material terms and conditions contained in this franchise may not be unilaterally altered by the through subsequent amendments to the , ordinances or any regulation of , except in the lawful exercise of ’s police power. Grantee acknowledges that the may modify its regulatory policies by lawful exercise of the ’s police powers throughout the term of this franchise. Grantee agrees to comply with such lawful modifications to the ; however, grantee reserves all rights it may have to challenge such modifications to the whether arising in contract or at law. The reserves all of its rights and defenses to such challenges whether arising in contract or at law. Nothing in this franchise shall (A) abrogate the right of the to perform any public works or public improvements of any description, (B) be construed as a waiver of any codes or ordinances of general applicability promulgated by the , or (C) be construed as a waiver or release of the rights of the in and to the streets.
   (d)   Franchise term. This franchise shall be in effect for a term of five years from the , unless terminated sooner as hereinafter provided. Six months prior to the expiration of the initial five year term, if determines that grantee is in compliance with all other material terms of this franchise including the build out obligations set forth in this franchise as required by applicable law, the shall have the unilateral right to extend the franchise for an additional term of no less than five years and no more than ten years.
   (e)    . The grantee is hereby authorized to provide cable services over a within the jurisdictional boundaries of the , including any areas annexed by the during the term of this franchise. The parties acknowledge that grantee is not the first entrant into the wireline video market in the . The grantee acknowledges that the desires wireline competition throughout the entire so all residents may receive the benefits of competitive cable services. Grantee aspires to provide to all households within the by the end of the five year term of this franchise. Grantee agrees that its deployment of in the will be geographically dispersed throughout the , and shall be made available to diverse residential neighborhoods of the without discrimination. This franchise governs any cable services provided by grantee to residential and commercial subscribers.
   (f)   Initial build out. No later than the second anniversary of the of this franchise, grantee shall be capable of serving a minimum of 15% of the ’s households with ; provided, however, grantee will make its best efforts to complete such deployment within a shorter period of time. Grantee commits that a material and substantial portion of its investment and its deployment of cable services in the , whether mandated by Section 2.8 below or on a voluntary basis, will be targeted to U.S. Census areas with the highest percentage of households below the ’s median household income. Nothing in this franchise shall restrict grantee from serving additional households in the with .
   (g)   Quarterly meetings. In order to permit the to monitor and enforce the provisions of this section and other provisions of this franchise, the grantee shall, upon demand, promptly make available to the maps and other documentation showing exactly where within the the grantee is currently providing . Grantee shall meet with the , not less than once quarterly, to demonstrate grantee’s compliance with the provisions of this section concerning the deployment of cable services in the including, by way of example, the provision of subsection (f) above in which grantee commits that a significant portion of its initial investment and its deployment of cable services in the will be targeted to U.S. Census areas with the highest percentage of households below the ’s median household income, and the provisions of subsection (e) above and § 20.52(i) that prohibit discrimination in the deployment of cable services on the basis of the income level of the residents. In order to permit the to monitor and enforce the provisions of this section and other provisions of this franchise, the grantee shall, commencing on or about January 15, 2016, and continuing throughout the term of this franchise, meet quarterly with the and make available reports and maps showing the the following information:
      (1)   The total number of living units throughout the ;
      (2)   The total number of ;
      (3)   Information demonstrating grantee commitment that a significant portion of grantee’s initial investment and grantee’s deployment of cable services in the has been targeted to U.S. Census areas with the highest percentage of households below the ’s median household income; and
      (4)   A list of the public buildings and educational institutions that are in the .
   (h)   Additional build-out based on market success. If, at any quarterly meeting, including any quarterly meeting prior to the second anniversary of the of this franchise as referenced in subsection (f) herein, grantee is actually serving 27.5% of the households capable of receiving , then grantee agrees the minimum build-out commitment shall increase to include all of the households then capable of receiving plus an additional 15% of the total households in the , which grantee agrees to serve within two years from the quarterly meeting; provided, however, the grantee shall make its best efforts to complete such deployment within a shorter period of time. For example, if, at a quarterly meeting with the , grantee shows that it is capable of serving 60% of the households in the with and is actually serving 30% of those households with , then grantee will agree to serve an additional 15% of the total households in the no later than two years after that quarterly meeting (a total of 75% of the total households). This additional build-out based on market success shall continue until every household in the is served.
   (i)   Franchise nonexclusive. The franchise granted herein shall be nonexclusive. The specifically reserves the right to grant, at any time, such additional franchises for a as it deems appropriate provided, however, such additional grants shall not operate to materially modify, revoke, or terminate any rights previously granted to grantee other than as described in § 20.52(r). The grant of any additional franchise shall not of itself be deemed to constitute a modification, revocation, or termination of rights previously granted to grantee. Any additional cable franchise grants shall comply with M.S. § 238.08, as it may be amended from time to time, and any other applicable federal level playing field requirements.
   (j)   Periodic public review of franchise. Within 60 of the third and, if applicable, sixth annual anniversary of the of this franchise, the may conduct a public review of the franchise. The purpose of any such review shall be to ensure, with the benefit of full opportunity for public comment, that the grantee continues to effectively serve the public in the light of new developments in cable law and regulation, cable technology, cable company performance with the requirements of this franchise, local regulatory environment, community needs and interests, competition, and other such factors. Both the and grantee agree to make a full and good faith effort to participate in the review. So long as grantee receives reasonable notice, grantee shall participate in the review process and shall fully cooperate. The review shall not operate to modify or change any provision of this franchise without mutual written consent in accordance with § 20.52(g) of this franchise.
   (k)   Expiration. Upon expiration of the franchise, the shall have the right at its own election and subject to grantee’s rights under § 626 of the to:
      (1)   Extend the franchise, though nothing in this provision shall be construed to require such extension;
      (2)   Renew the franchise, in accordance with ;
      (3)   Invite additional franchise applications or proposals;
      (4)   Terminate the franchise subject to any rights grantee has under § 626 of the ; or
      (5)   Take such other action as the deems appropriate.
   (l)   Right to require removal of property. At the expiration of the term for which the franchise is granted provided no renewal is granted, or upon its forfeiture or revocation as provided for herein, the shall have the right to require grantee to remove at grantee’s own expense all or any part of the used exclusively for the provision of from all streets and public ways within the within a reasonable time. If grantee fails to do so, the may perform the work and collect the cost thereof from grantee.
   (m)   Continuity of service mandatory. It shall be the right of all subscribers to receive all available services insofar as their financial and other obligations to grantee are honored. In the event that grantee elects to overbuild, rebuild, modify, or sell the system, or the revokes or fails to renew the franchise, grantee shall make its best effort to ensure that all subscribers receive continuous uninterrupted service, regardless of the circumstances, during the lifetime of the franchise. In the event of expiration, purchase, lease-purchase, condemnation, acquisition, taking over or holding of plant and equipment, sale, lease, or other transfer to any other , including any other grantee of a cable communications franchise, the current grantee shall cooperate fully to operate the system in accordance with the terms and conditions of this franchise for a temporary period sufficient in length to maintain continuity of service to all subscribers.
(Ord. 2015-36, passed 11-16-2015)