A. Institutional Network Facilities And Capacity; Cost Recovery By Grantee:
1. The grantee shall construct an institutional network which, at the outset, consists of the following infrastructure: a) bi-directional minimum six (6) count fiber optic lines in a ring and/or a star architecture to the locations within the NDC4 franchise area as listed in section 13-1-19, exhibit G (I-Net user sites), of this chapter as designated as primary sites by the commission; b) bi-directional fiber optic lines in a star architecture from certain primary sites to certain secondary sites, as designated by the commission and in a minimum quantity consisting of a four (4) count fiber per site; and c) a minimum of a two (2) count HFC network per node to certain other secondary sites, as designated by the commission. Within the first ninety (90) days from the effective date of this franchise, grantee shall provide the commission with a complete, detailed design and cost estimate for the I-Net infrastructure described above. Within ninety (90) days thereafter, the commission shall work with I-Net users to review the design and cost estimate, and provide changes to the grantee for incorporation into the final I-Net design. Final architecture, site designation, and fiber count of a), b), and c) herein are subject to commission or designee approval. The grantee shall only begin work on construction of the I-Net once final approval is received from the commission, and shall complete I-Net construction within twenty one (21) months from the effective date of this franchise. Some portions of the I-Net will be activated prior to final completion. The institutional network shall have the infrastructure (and, where noted, the equipment) that provides the capability to transmit any and all signals between the sites listed in section 13-1-19, exhibit G, of this chapter.
2. I-Net users may not sell or resell services or capacity to any third party. However, I-Net users may provide services to themselves, including those which the grantee otherwise sells to others (for example, an institution may provide internet service to itself or to other institutions that the grantee sells to others). The limitations of this subsection A2 shall not prevent the city or the commission from subleasing, bartering, selling, reselling or giving away capacity on the institutional network to any other public or nonprofit entity for noncommercial purposes that do not directly compete with any products or services offered by the grantee.
3. The city or the institutions listed in section 13-1-19, exhibit G (I-Net user sites), of this chapter shall be responsible for reimbursing grantee for its actual cost of constructing and maintaining all portions of the I-Net required by this section. The institutions listed in section 13-1-19, exhibit G (I-Net user sites), of this chapter shall not be charged by the grantee for usage of the institutional network. The city or other I-Net users may elect to pay the actual cost of the I-Net on a monthly basis, appropriately amortized over the life of the franchise. The terms and conditions of such payment option will be reflected in an I-Net service agreement to be developed prior to construction of the I-Net. Such terms and conditions must be in accordance with the other provisions of this section and associated exhibits. If future I-Net sites are identified and activated under subsection C of this section, grantee shall submit an invoice for those construction costs in a manner similar to submission of the initial construction costs of the I-Net.
4. "Actual cost", as used in this subsection, means the incremental cost to the grantee of materials and capitalized labor necessary to install and construct fiber optic lines, coaxial cable, and/or equipment together with the most recent return on investment authorized by the FCC. For fiber infrastructure that was in place prior to the effective date of this franchise, "actual cost" shall include only fifty percent (50%) of grantee's incremental cost of grantee materials devoted to the I-Net but not the cost of installation of such materials.
5. Except as provided in this section, I-Net users connected to the I-Net via fiber or HFC shall be responsible for any end user or interface equipment needed for transmission or reception of signals. However, grantee shall provide at no charge, upon request and at the time necessary for use, modulators and associated fiber optic signal transmission and reception equipment for single channel return purposes for each public and private accredited educational institution, each city hall and the commission's office, as approved by the city and/or commission. (Note: Grantee presently maintains several modulators at the commission's office to facilitate various cable casting requirements; these modulators must be maintained throughout the term of the franchise.) With respect to nonvideo end user equipment, upon request by a designated institution, grantee must either lease the equipment requested to the requesting institution or make reasonable efforts to arrange for the lease of such equipment. Within thirty (30) days of a written request, grantee must notify the requesting institution in writing of its ability or inability to lease the requested equipment and the terms of such lease. The city, its designee, or the requesting institution may purchase or lease the equipment from any vendor.
6. All I-Net users shall be connected via fiber optic lines or a combination of fiber optics and coaxial cable as determined by the commission to a hub located within the NDC4 system. The I-Net architecture shall facilitate transmission of all required signals within the city boundaries, transmission of signals beyond the city boundaries within the NDC4 area, and transmission of signals to other networks in the Twin Cities area. The grantee shall provide and install all equipment and infrastructure necessary, which is reimbursable to grantee under same terms and conditions set forth in subsection A3 of this section, to achieve the required level of interconnection with other Twin Cities area I-Nets provided by grantee. Specifically, this includes, but is not limited to, interconnecting the NDC4 area I-Net with I-Nets that have been or may be constructed in Burnsville/Eagan, the NSCC area and Hastings. Grantee shall also work with the commission to establish interconnects with the cable system in Apple Valley and with the connecting Minnesota network.
7. I-Net equipment at the hub shall be connected to a gas powered generator capable of providing continuous electrical power, or equivalent, and to an uninterruptible power supply that both conditions commercial power and provides for zero transfer time between normal commercial power and hub backup generators.
B. Hybrid Fiber Coaxial Portions Of Institutional Network:
1. The hybrid fiber coaxial (HFC) portion of the I-Net shall provide 450 MHz of activated capacity (5-42 MHz for upstream channels and 54-450 MHz for downstream channels) to the HFC I-Net sites. The HFC I-Net shall have fiber introduced into it to limit amplifier cascades to no more than five (5).
2. All I-Net distribution system power supplies shall have the standby capability of providing at least three (3) hours of backup power and shall have status monitoring installed in them. Prior to battery failure, the grantee shall connect I-Net node power supplies to portable generators capable of producing adequate electrical current until commercial power is restored.
C. Future Fiber To Institution Requirements:
1. The city or commission may identify certain I-Net sites that will not be activated at the time the initial I-Net is activated. So long as such sites are located on the I-Net user sites list, grantee agrees to include splice points and splice point housings on those portions of the system where additional fiber will need to be deployed or additional connections will need to be made. Upon notification from the city, the grantee will provide cost estimates within ninety (90) days of a request by the grantor for I-Net extension to the additional sites.
2. The city or commission may also identify sites following completion and activation of the I-Net. Estimated costs for serving those sites will be provided within ninety (90) days of notification by the city or commission. If an extension of the I-Net is required to serve the site, grantee will make the I-Net available within one hundred twenty (120) days from the initial request. The fiber optic lines required by this section shall be passively terminated to standard connectors at the patch panel of the telephone equipment room of each site or at another designated location.
D. Grantee's Use Of I-Net Capacity: The I-Net shall be for the exclusive use of the city, the commission and I-Net users throughout the term of the franchise, or any renewal or extension thereof. Notwithstanding the foregoing, the grantee may use capacity on the I-Net, including for lease or other commercial purposes; provided, that the city, the commission and I-Net users are not using such capacity; and further provided, that the grantee's use does not interfere with use of the I-Net by the city, the commission or I-Net users. Upon receiving oral or written notice from the commission, the grantee or a lessee shall immediately cease using the I-Net for any purpose that the commission, in its sole discretion, determines is interfering with I-Net users' communications. The grantee or a lessee may appeal any determination of commission concerning I-Net interference to the city within ten (10) days of the date that the requisite notice is received by the grantee. Any such appeal shall: 1) be in writing; 2) list the reasons that the commission's determination regarding interference with I-Net users' communications is incorrect; and 3) include any other information the grantee or a lessee wishes the city to consider. Within forty five (45) calendar days of receiving a written appeal under this subsection, the city shall: 1) determine whether the commission's conclusion that the grantee or lessee was interfering with I-Net users' communications was justified; and 2) inform the grantee or lessee in writing of its findings. This provision shall not limit any other appeal rights of grantee. Use of the I-Net by the city, the commission and I-Net users shall, at all times, have priority over any use by the grantee or any lessee. The grantee or a lessee shall terminate its use of any channel capacity on the I-Net within six (6) months after receiving notice from the commission that the city, the commission, or any I-Net user has determined to use such capacity. Any agreement entered into by the grantee and a third party for the lease of I-Net capacity shall be subject to the terms and conditions of this franchise.
E. I-Net Performance Standards:
1. The grantee shall maintain the I-Net in accordance with technical and performance standards set forth in section 13-1-19, exhibit D (minimum I-Net performance standards), of this chapter. The grantee shall provide the city, or its designee, upon request, with reports of the performance of the I-Net and the grantee's compliance with the aforementioned technical and performance standards.
2. If, at any time, the performance of the I-Net is not in compliance with pertinent technical and performance standards, and continues to be in noncompliance for a period of fifteen (15) days after notice and opportunity to correct is given to grantee, then affected city or other I-Net users may cease payment until the noncompliance situation is resolved.
3. The city or I-Net users may ultimately terminate their use of and payment for I-Net infrastructure based on repeated, demonstrated nonperformance or noncompliance by grantee with the terms of this section and the associated exhibits, after giving grantee notice and opportunity to correct the problem causing nonperformance or noncompliance. Grantee will also be liable for all other applicable noncompliance penalties contained in the franchise.
F. Completion Of Institutional Network: Construction of the institutional network pursuant to this section shall be deemed completed upon satisfaction of the following:
1. The grantee shall notify the city, or its designee, in writing at least ten (10) days in advance of completion of construction of each I-Net node, I-Net site on the ring, I-Net star connection, and HFC end-of-line. The notice shall include the date the grantee is prepared to conduct an OTDR test at 1550 nm and 1310 nm end-to-end, RF noise, distortion and peak- to-valley tests according to FCC rules, NCTA recommended practices and other acceptable test methodologies and other applicable tests. The commission, or its designee, shall have the option of attending any test conducted pursuant to this subsection F1. All tests must be successfully completed. The fiber optic test shall be deemed successfully completed if the optical performance standards in section 13-1-19, exhibit D, of this chapter are met or bettered. The coaxial tests shall also be deemed successfully completed if the specifications detailed in said exhibit D are met or exceeded.
2. The city, or its designee, shall also have the option of conducting a physical inspection of the construction and connections to each I-Net site and each I-Net node. This inspection shall be conducted no later than the date of the test in subsection F1 of this section.
3. After completing installation to each I-Net site or each I-Net node, the grantee shall provide the following documentation to the city or its designee: splice locations, panel numbers, cable numbering schemes, location of splitters, location of all RF actives and passives, OTDR, other optical, RF and coaxial test results and documentation, and any other pertinent documentation.
G. Institutional Network Security: The grantee and the city shall at all times use reasonable efforts to protect the security of the institutional network. For purposes of this subsection, "to protect security" means to protect those physical elements of the institutional network under the party's direct control from unauthorized intrusion, signal theft, tampering, wiretapping or other actions that might: 1) compromise the integrity of or degrade the signals carried over the institutional network; or 2) result in the unauthorized interception and disclosure of information. Grantee's hub site shall be made available, upon request, for placement and operation of end user supplied equipment.
H. Institutional Network Repair And Maintenance:
1. The grantee shall maintain, repair, reconstruct and, as necessary, replace the fiber optic or HFC portions of the I-Net and shall recover the actual cost for such activities from the city and I-Net users, as set forth in subsection A of this section.
2. The grantee shall maintain, repair, reconstruct and, as necessary, replace portions of the institutional network plant, as described in subsections H2a and H2b of this section, during the term of this franchise or any extension thereof:
a. Preventative and routine maintenance of the I-Net shall be performed in the same time frame and in the same fashion as routine and preventative maintenance are performed for the grantee's subscriber network. Actual or potential problems discovered during the course of preventative and routine maintenance shall be immediately reported to the commission. After informing the commission of an actual or potential problem, the grantee shall, within a reasonable period of time, prepare and transmit a report to the commission describing the corrective action, if any, that was or will be taken.
b. Within ten (10) minutes of receiving notice or otherwise learning of a maintenance or repair problem, the grantee's technicians shall begin actively working on the problem. The grantee shall work on the problem continuously until it is resolved. Notwithstanding the above, the grantee shall meet the network availability standard described in section 13-1-19, exhibit D, of this chapter for each site on the I-Net.
I. Institutional Network Ownership: The I-Net is a dedicated transmission path owned and maintained by the grantee and governed by this agreement. The obligations for provision of the I-Net will convey to all successors and assigns. If at any time, the I-Net is considered abandoned as such is defined in this franchise, ownership shall convey to the city at the city's discretion. The city and the sites to which infrastructure is provided via the I-Net will use the I-Net in accordance with the limitations of this franchise. (Ord. 353, 2-15-2000)