(a) . During the term of the franchise, grantee shall pay to the a of 5% of . If any such law, regulation or valid rule alters the 5% ceiling enacted by the , then the shall have the authority to (but shall not be required to) increase the accordingly, provided such increase is for purposes not inconsistent with applicable law. In the event grantee bundles or combines cable services (which are subject to the ) with non-cable services (which are not subject to the ) so that subscribers pay a single fee for more than one class of service resulting in a discount on cable services, grantee agrees that for the purpose of calculation of the , it shall allocate to revenue no less than a pro rata share of the revenue received for the bundled or combined services. The pro rata share shall be computed on the basis of the published charge for each service in the bundled or combined classes of services when purchased separately. At no time during the term of this franchise shall the grantee be required to pay a that is a greater percentage of than that paid by any other provider.
(1) shall be paid quarterly not later than 45 following the end of a given quarter. In accordance with § 20.51 of this franchise, grantee shall file with the a payment worksheet, attached as Exhibit A, signed by an authorized representative of grantee, which identifies earned by grantee during the period for which payment is made. No acceptance of any payment shall be construed as an accord that the amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed as a release of any claim which the may have for further or additional sums payable under the provisions of this section.
(2) Neither current nor previously paid shall be subtracted from the amount upon which are calculated and due for any period, unless otherwise required by applicable law.
(3) Any owing pursuant to this franchise which remain unpaid more than 30 after the dates specified herein shall be delinquent and shall thereafter accrue interest at 12% per annum or 2% above prime lending rate as quoted by the Wall Street Journal, whichever is greater.
(b) Auditing and financial records. Throughout the term of this franchise, the grantee agrees that the , upon reasonable prior written notice of 20 to the grantee, may review such of the grantee’s books and records regarding the operation of the and the provision of in the which are reasonably necessary to monitor and enforce grantee’s compliance with the provisions of this franchise. Grantee shall provide such requested information as soon as possible and in no event more than 30 unless grantee explains that it is not feasible to meet this timeline and provides a written explanation for the delay and an estimated reasonable date for when such information will be provided. All such documents pertaining to financial matters that may be the subject of an inspection by the shall be retained by the grantee for a minimum period of seven years, pursuant to M.S. § 541.05, as it may be amended from time to time. The grantee shall not deny the access to any of the grantee’s records on the basis that the grantee’s records are under the control of any parent corporation, or a third party. The may request in writing copies of any such records or books that are reasonably necessary, and the grantee shall provide such copies within 30 of the receipt of such request. One copy of all reports and records required under this or any other section shall be furnished to the at the sole expense of the grantee. If the requested books and records are too voluminous, or for security reasons cannot be copied or removed, then the grantee may request, in writing within ten of receipt of such request, that the inspect them at the grantee’s local offices or at one of grantee’s offices more convenient to or its duly authorized agent. If any books or records of the grantee are not kept in such office and not made available in copies to the upon written request as set forth above, and if the determines that an examination of such records is necessary for the enforcement of this franchise, then all reasonable travel expenses incurred in making such examination shall be paid by the grantee.
(c) Review of record keeping methodology. Upon request, grantee agrees to meet with a representative of the to review its methodology of record-keeping, financial reporting, computing obligations, and other procedures the understanding of which the deems necessary for understanding the meaning of reports and records.
(d) Audit of records. The or its authorized agent may at any time and at the ’s own expense conduct an independent audit of the revenues of grantee in order to verify the accuracy of paid to the . Grantee and any shall cooperate fully in the conduct of such audit and shall provide all necessary records related to the provision of cable services regardless of which corporate entity controls such records. In the event it is determined through such audit that grantee has underpaid in an amount of 5% or more than was due the , then grantee shall reimburse the for the entire cost of the audit within 30 of the completion and acceptance of the audit by the .
(e) Records to be reviewed. The agrees to request access to only those books and records, in exercising its rights under this section, which it deems reasonably necessary for the enforcement and administration of the franchise.
(f) Indemnification by grantee.
(1) Grantee shall, at its sole expense, fully indemnify, defend and hold harmless the , and in their capacity as such, the officers and employees thereof, from and against any and all claims, suits, actions, liability and judgments for damage or otherwise except those arising wholly from negligence on the part of the or its employees; for actual or alleged injury to or property, including loss of use of property due to an occurrence, whether or not such property is physically damaged or destroyed, in any way arising out of or through or alleged to arise out of or through the acts or omissions of grantee or its officers, agents, employees, or contractors or to which grantee’s or its officers, agents, employees or contractors acts or omissions in any way contribute, and whether or not such acts or omissions were authorized or contemplated by this franchise or applicable law; arising out of, or alleged to arise out of any claim for damages for grantee’s invasion of the right of privacy, defamation of any , firm or corporation, or the violation of infringement of any copyright, trademark, trade name, service mark or patent, or of any other right of any , firm or corporation; arising out of or alleged to arise out of grantee’s failure to comply with the provisions of any applicable law. Nothing herein shall be deemed to prevent the , its officers, or its employees from participating in the defense of any litigation by their own counsel at such parties’ expense. Such participation shall not under any circumstances relieve grantee from its duty of defense against liability or of paying any judgment entered against the , its officers, or its employees.
(2) Grantee shall contemporaneously with this franchise execute an indemnity agreement in a form acceptable to the attached as Exhibit B, which shall indemnify, defend and hold the harmless for any claim for injury, damage, loss, liability, cost or expense, including court and appeal costs and reasonable attorneys’ fees or reasonable expenses arising out of the actions of the in granting this franchise. This obligation includes any claims by another franchised cable operator against the that the terms and conditions of this franchise are less burdensome than another franchise granted by the or that this franchise does not satisfy the requirements of applicable federal, state, or local laws.
(g) Grantee insurance. Upon the , grantee shall, at its sole expense take out and maintain during the term of this franchise public liability insurance with a company licensed to do business in the State of Minnesota with a rating by A.M. Best & Co. of not less than “A-” that shall protect the grantee, and its officials, officers, directors, employees and agents from claims which may arise from operations under this franchise, whether such operations be by the grantee, its officials, officers, directors, employees and agents or any subcontractors of grantee. This liability insurance shall include, but shall not be limited to, protection against claims arising from bodily and personal injury and damage to property, resulting from grantee’s vehicles, products and operations. The amount of insurance for single limit coverage applying to bodily and personal injury and property damage shall not be less than $3,000,000. The liability policy shall include:
(1) The policy shall provide coverage on an “occurrence” basis.
(2) The policy shall cover personal injury as well as bodily injury.
(3) The policy shall cover blanket contractual liability subject to the standard universal exclusions of contractual liability included in the carrier’s standard endorsement as to bodily injuries, personal injuries and property damage.
(4) Broad form property damage liability shall be afforded.
(5) shall be named as an additional insured on the policy.
(6) An endorsement shall be provided which states that the coverage is primary insurance with respect to claims arising from grantee’s operations under this franchise and that no other insurance maintained by the grantor will be called upon to contribute to a loss under this coverage.
(7) Standard form of cross-liability shall be afforded.
(8) An endorsement stating that the policy shall not be canceled without 30 ’ notice of such cancellation given to .
(9) reserves the right to adjust the insurance limit coverage requirements of this franchise no more than once every three years. Any such adjustment by will be no greater than the increase in the State of Minnesota Consumer Price Index (all consumers) for such three year period.
(10) Upon the , grantee shall submit to a certificate documenting the required insurance, as well as any necessary properly executed endorsements. The certificate and documents evidencing insurance shall be in a form acceptable to and shall provide satisfactory evidence that grantee has complied with all insurance requirements. Renewal certificates shall be provided to prior to the expiration date of any of the required policies. will not be obligated, however, to review such endorsements or certificates or other evidence of insurance, or to advise grantee of any deficiencies in such documents and receipt thereof shall not relieve grantee from, nor be deemed a waiver of, ’s right to enforce the terms of grantee’s obligations hereunder. reserves the right to examine any policy provided for under this paragraph or to require further documentation reasonably necessary to form an opinion regarding the adequacy of grantee’s insurance coverage.
(Ord. 2015-36, passed 11-16-2015)