(a) Posting and publication. Grantee shall assume the cost of posting and publication of this franchise as such posting and publication is required by law and such is payable upon grantee’s filing of acceptance of this franchise.
(b) Guarantee of performance. Grantee agrees that it enters into this franchise voluntarily in order to secure and in consideration of the grant from the of a ten year franchise. Performance pursuant to the terms and conditions of this franchise is guaranteed by grantee.
(c) Entire agreement. This franchise contains the entire agreement between the parties, supersedes all prior agreements or proposals except as specifically set forth herein, and cannot be changed orally but only by an instrument in writing executed by the parties. This franchise is made pursuant to M.S. § 238 and the and is intended to comply with all requirements set forth therein.
(d) Consent. Wherever the consent or approval of either grantee or the is specifically required in this agreement, such consent or approval shall not be unreasonably withheld.
(e) Franchise acceptance. No later than 45 following City approval of this franchise, grantee shall execute and return to the three original franchise agreements. The executed agreements shall be returned to the accompanied by performance bonds, security funds, and evidence of insurance, all as provided in this franchise. The ’s “notice of intent to consider an application for a franchise” (“notice”) provided, consistent with M.S. § 238.081, subd. 8, as it may be amended from time to time, that applicants would be required to reimburse the for all necessary costs of processing a cable communications franchise. Grantee submitted an application fee with its application to the . The notice further provided that any unused portion of the application fee would be returned and any additional fees required to process the application and franchise, beyond the application fee, would be assessed to the successful applicant. The grantee shall therefore submit to the at the time of acceptance of this franchise, a check made payable to the City of Bloomington, Minnesota for all additional fees and costs incurred by the . The shall provide grantee with a letter specifying such additional costs following approval of this franchise by the City . In the event grantee fails to accept this franchise, or fails to provide the required documents and payments, this franchise shall be null and void. The grantee agrees that despite the fact that its written acceptance may occur after the , the obligations of this franchise shall become effective on December 1, 2015.
(f) Amendment of franchise. Grantee and may agree, from time to time, to amend this franchise. Such written amendments may be made subsequent to a review session pursuant to § 20.37(f) or at any other time if and grantee agree that such an amendment will be in the public interest or if such an amendment is required due to changes in federal, state or local laws; provided, however, nothing herein shall restrict ’s exercise of its police powers.
(g) Franchise renewal. Any renewal of this franchise shall be in accordance with . The term of any renewed franchise shall be limited to a period not to exceed 15 years.
(h) Notice. Any notification that requires a response or action from a party to this franchise, within a specific time-frame or would trigger a timeline that would affect one or both parties’ rights under this franchise, shall be made in writing and shall be sufficiently given and served upon the other party by hand delivery, first class mail, registered or certified, return receipt requested, postage prepaid, or by reputable overnight courier service and addressed as follows:
To the :
City Manager, City of Bloomington
1800 West Old Shakopee Road
Bloomington, MN 55431-3027
To the grantee:
Attention Public Policy
1801 California Street, 10th Floor
Denver, CO 80202
With courtesy copy to:
Attn: Public Policy
200 South Fifth Street, 21st Floor
Minneapolis, MN 55402
Recognizing the widespread usage and acceptance of electronic forms of communication, emails will be acceptable as formal notification related to the conduct of general business amongst the parties to this contract, including but not limited to programming and price adjustment communications. Such communication should be addressed and directed to the of record as specified above.
(i) Rights of individuals.
(1) Grantee shall provide under non-discriminatory rates and reasonable terms and conditions to all who reside in . Grantee shall not arbitrarily refuse to provide cable services to any or in any location where the grantee is capable of proving . Grantee shall not deny cable services to any group of subscribers or potential residential subscribers based upon the income level of residents of the local area in which such group resides, nor shall grantee base decisions about construction or maintenance of its or facilities based upon the income level of residents of the local area in which such group resides. Grantee shall provide such service at non-discriminatory monthly rates for residential subscribers, consistent with applicable law. Grantee shall not discriminate between or among any individuals in the availability of based upon income in accordance and consistent with 47 U.S.C. § 541(a)(3), or based upon race or ethnicity. Grantee shall adhere to the applicable equal employment opportunity requirements of , as now written or as amended from time to time including 47 U.S.C. § 551, Protection of Subscriber Privacy.
(2) Neither grantee, nor any , agency, or entity shall, without the ’s consent, tap or arrange for the tapping, of any cable, line, signal input device, or outlet or receiver for any purpose except routine maintenance of the system, detection of unauthorized service, polling with audience participating, or audience viewing surveys to support advertising research regarding viewers where individual viewing behavior cannot be identified.
(3) Grantee shall not, without lawful court order or other applicable valid legal authority, utilize the system’s interactive two-way equipment or capability for unauthorized personal surveillance of any or general citizen.
(4) No cable line, wire, amplifier, , or other piece of equipment owned by grantee shall be installed by grantee in the ’s premises, other than in appropriate easements, without first securing any required consent. If a requests service, permission to install upon ’s property shall be presumed. Where a property owner or his or her predecessor was granted an easement including a public utility easement or a servitude to another and the servitude by its terms contemplates a use such as grantee’s intended use, grantee shall not be required to service the written permission of the owner for the Installation of cable television equipment.
(j) Rights reserved to . In addition to any rights specifically reserved to the by this franchise, the reserves to itself every right and power which is required to be reserved by a provision of this franchise.
(k) Severability. If any provision of this franchise is held by any governmental authority of competent jurisdiction, to be invalid as conflicting with any now or hereafter in effect, or is held by such governmental authority to be modified in any way in order to conform to the requirements of any such , such provision shall be considered a separate, distinct, and independent part of this franchise, and such holding shall not affect the validity and enforceability of all other provisions hereof. In the event that such are subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof which had been held invalid or modified is no longer in conflict with such laws, said provision shall thereupon return to full force and effect and shall thereafter be binding on and grantee, provided that shall give grantee 30 written notice of such change before requiring compliance with said provision or such longer period of time as may be reasonably required for grantee to comply with such provision.
(l) Force majeure. In the event that either party is prevented or delayed in the performance of any of its obligations, under this franchise by reason of acts of god, floods, fire, hurricanes, tornadoes, earthquakes, or other unavoidable casualties, insurrection, war, riot, vandalism, strikes, delays in receiving permits where it is not the fault of grantee, public easements, sabotage, acts or omissions of the other party, or any other similar event beyond the reasonable control of that party, it shall have a reasonable time under the circumstances to perform such obligation under this franchise, or to procure a substitute for such obligation to the reasonable satisfaction of the other party.
(m) Work of contractors and subcontractors. Work by contractors and subcontractors of grantee are subject to the same restrictions, limitations and conditions as if the work were performed by grantee. Grantee shall be responsible for all work performed by its contractors and subcontractors, and others performing work on its behalf as if the work were performed by it and shall ensure that all such work is performed in compliance with this franchise, the and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is grantee’s responsibility to ensure that contractors, subcontractors or other performing work on grantee’s behalf are familiar with the requirements of this franchise, the and other governing the work performed by them.
(n) Governing law. This franchise shall be deemed to be executed in the State of Minnesota, and shall be governed in all respects, including validity, interpretation and effect, and construed in accordance with, the laws of the State of Minnesota, as applicable to contracts entered into and performed entirely within the state.
(o) Non-enforcement by . Grantee shall not be relieved of its obligation to comply with any of the provisions of this franchise by reason of any failure of the or to enforce prompt compliance.
(p) Captions. The paragraph captions and headings in this franchise are for convenience and reference purposes only and shall not affect in any way the meaning of interpretation of this franchise.
(q) 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 of the prescribed or fixed period or duration of time. When the last of the period falls on Saturday, Sunday or a legal holiday, that shall be omitted from the computation and the next business shall be the last of the period.
(r) Survival of terms. Upon the termination or forfeiture of the franchise, grantee shall no longer have the right to occupy the streets for the purpose of providing . However, grantee’s obligations to the (other than the obligation to provide service to subscribers) shall survive according to their terms.
(s) Competitive equity. If any other enters into any agreement with the after the of this franchise to provide multi video programming or its equivalent to residents in the , the , upon written request of the grantee, shall permit the grantee to construct and/or operate its and provide multi video programming or its equivalent to subscribers in the under the same terms as applicable to the new MVPD. Within 120 after the grantee submits a written request to the , the grantee and the shall enter into an agreement or other appropriate authorization (if necessary) containing the same terms and conditions as are applicable to the new .
(Ord. 2015-36, passed 11-16-2015)