IV.2. Second Reading Ordinance Granting Comcast a Cable Television Franchise; Lenz
CITY OF HOPKINS
City Council Report 2023-063
To: Honorable Mayor and Council Members
Mike Mornson, City Manager
From: Ari Lenz, Assistant City Manager
Date: June 20, 2023
Subject: Second Reading: Ordinance Granting Comcast a Cable Television
Franchise
_____________________________________________________________________
RECOMMENDED ACTION
MOTION TO adopt Ordinance 2023-1192 an Ordinance Renewing the Grant of a
Franchise to Comcast of Minnesota, Inc. to Operate and Maintain a Cable System in
the City of Hopkins, Minnesota; Setting Forth Conditions Accompanying the Grant of
the Franchise; Providing for City Regulation and Administration of the Cable System;
and Terminating Ordinance No. 2012-1051.
OVERVIEW
No changes have been made to the ordinance since the June 6 first reading.
SUPPORTING INFORMATION
• Draft Ordinance 2023-1192
Administration
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City of Hopkins, Minnesota
Ordinance Granting a Cable Television Franchise
to
Comcast of Minnesota, Inc.
June 1, 2023
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TABLE OF CONTENTS
SECTION 1 DEFINITIONS ....................................................................................................... 1
SECTION 2 FRANCHISE ......................................................................................................... 7
SECTION 3 OPERATION IN STREETS AND RIGHTS-OF-WAY ..................................... 10
SECTION 4 REMOVAL OR ABANDONMENT OF SYSTEM ............................................ 14
SECTION 5 SYSTEM DESIGN AND CAPACITY ............................................................... 15
SECTION 6 PROGRAMMING AND SERVICES.................................................................. 17
SECTION 7 PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS .................... 20
SECTION 8 REGULATORY PROVISIONS .......................................................................... 26
SECTION 9 BOND .................................................................................................................. 27
SECTION 10 SECURITY FUND .............................................................................................. 27
SECTION 11 DEFAULT ........................................................................................................... 30
SECTION 12 FORECLOSURE AND RECEIVERSHIP .......................................................... 32
SECTION 13 REPORTING REQUIREMENTS ....................................................................... 33
SECTION 14 CUSTOMER SERVICE POLICIES.................................................................... 34
SECTION 15 SUBSCRIBER PRACTICES............................................................................... 40
SECTION 16 COMPENSATION AND FINANCIAL PROVISIONS ..................................... 41
SECTION 17 MISCELLANEOUS PROVISIONS .................................................................... 44
EXHIBIT A COMPLIMENTARY SERVICE LOCATIONS ................................................ A-1
EXHIBIT B EXISTING PEG TRANSFPORT LOCATIONS ................................................B-1
EXHBIT C FRANCHISE FEE PAYMENT WORKSHEET .................................................C-1
EXHIBIT D SUMMARY OF ORDINANCE FOR PUBLICATION ..................................... D-1
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CITY OF HOPKINS
COUNTY OF HENNEPIN
ORDINANCE NO. 2023-1192
AN ORDINANCE RENEWING THE GRANT OF A FRANCHISE TO COMCAST
OF MINNESOTA, INC. TO OPERATE AND MAINTAIN A CABLE SYSTEM IN THE
CITY OF HOPKINS, MINNESOTA; SETTING FORTH CONDITIONS
ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR CITY
REGULATION AND ADMINISTRATION OF THE CABLE SYSTEM; AND
TERMINATING ORDINANCE NO. 2012-1051
RECITALS
The City of Hopkins, Minnesota (“City”) 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.
Comcast of Minnesota, Inc. (“Grantee”) has operated a Cable System in the City, under a
cable television franchise granted pursuant to Ordinance No. 2012-1051.
Negotiations between Grantee and the City have been completed and the franchise
renewal process followed in accordance with the guidelines established by the City Code,
Minnesota Statutes Chapter 238, and the Cable Act (47 U.S.C. § 546).
The Franchise granted to Grantee by the City is nonexclusive and complies with existing
applicable Minnesota Statutes, federal laws and regulations.
The City has exercised its authority under Minnesota law to enter into a Joint and
Cooperative Agreement with other cities authorized to grant cable communications franchises
and has delegated certain authority to the Southwest Suburban Cable Communications
Commission to make recommendations to the City regarding this Franchise and to be responsible
for the ongoing administration and enforcement of this Franchise as herein provided.
The City has determined that it is in the best interest of the City and its residents to renew
the cable television franchise with Grantee.
NOW, THEREFORE, THE CITY OF HOPKINS, MINNESOTA DOES ORDAIN
that a franchise is hereby granted to Comcast of Minnesota, Inc., to operate and maintain a Cable
System in the City upon the following terms and conditions:
SECTION 1
DEFINITIONS
For the purpose of this Franchise, 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
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singular number and words in the singular number include the plural number. In the event the
meaning of any word or phrase not defined herein is uncertain, the definitions contained in
applicable local, state, or federal law shall apply.
1.1 “Access Channels” means any channel or portion of a channel utilized for public,
educational, or governmental programming.
1.2 “Affiliate” or “Affiliated Entity” means any Person who owns or controls, is
owned or controlled by, or is under common ownership or control with, Grantee and its
successors.
1.3 “Applicable Laws” means any law, statute, charter, ordinance, rule, regulation,
code, license, certificate, franchise, permit, writ, ruling, award, executive order, directive,
requirement, injunction (whether temporary, preliminary, or permanent), judgment, decree or
other order issued, executed, entered or deemed applicable by any governmental authority of
competent jurisdiction.
1.4 “Basic Cable Service” means any service tier which includes the lawful
retransmission of local television broadcast.
1.5 “Cable Act” means the Cable Communications Policy Act of 1984, 47 U.S.C. §§
521 et seq., as amended by the Cable Television Consumer Protection and Competition Act of
1992, as further amended by the Telecommunications Act of 1996, as further amended from time
to time.
1.6 “Cable Service” means (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.
1.7 “Cable System” or “System” means a facility, consisting of a set of closed
transmission paths and associated signal generation, reception and control equipment which is
designed to provide Cable Service that includes Video Programming, and which is provided to
multiple Subscribers within a community, but such term does not include:
(a) a facility that serves only to retransmit the television signals of one (1) or
more television broadcast stations;
(b) a facility that serves Subscribers without using any Streets;
(c) a facility of a common carrier which is subject, in whole or in part, to the
provisions of 47 U.S.C. § 201 et seq., except that such facility shall be considered a Cable
System (other than for purposes of 47 U.S.C. § 541(c)) to the extent such facility is used
in the transmission of Video Programming directly to Subscribers, unless the extent of
such use is solely to provide interactive on-demand services;
(d) an open video system that complies with 47 U.S.C. § 573; or
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(e) any facilities of any electric utility used solely for operating its electric
utility system.
Unless otherwise specified, it shall in this document refer to the Grantee’s Cable System
constructed and operated in the City under this Franchise.
1.8 “Channel” means a portion of the electromagnetic frequency spectrum which is
used in a Cable System, and which is capable of delivering a television channel as defined by the
FCC by regulation.
1.9 “City” means the City of Hopkins, a municipal corporation in the State of
Minnesota.
1.10 “City Code” means the Municipal Code of the City of Hopkins, Minnesota, as
may be amended from time to time.
1.11 “Commission” means the Southwest Suburban Cable Communications
Commission consisting of the cities of Eden Prairie, Edina, Hopkins, Minnetonka and Richfield,
Minnesota.
1.12 “Connection” means the attachment of the Drop to the television set of the
Subscriber.
1.13 “Converter” means an electronic device, including digital transport adapters,
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 Cable Service signals.
1.14 “Council” means the governing body of the City.
1.15 “Day” means a calendar day, unless otherwise specified.
1.16 “Drop” means the cable that connects the Subscriber terminal to the nearest feeder
cable of the cable in the Street and any electronics on Subscriber property between the Street and
Subscriber terminal.
1.17 “Effective Date” means February 1, 2023.
1.18 “FCC” means the Federal Communications Commission, or a designated
representative.
1.19 “Franchise” means the right granted by this Ordinance and conditioned as set
forth herein.
1.20 “Franchise Area” means the entire geographic area within the City as it is now
constituted or may in the future be constituted.
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1.21 “Franchise Fee” means the fee assessed by the City to Grantee, in consideration of
Grantee’s right to operate the Cable System within the City’s Streets, determined in amount as a
percentage of Grantee’s Gross Revenues and limited to the maximum percentage allowed for
such assessment by federal law. The term Franchise Fee does not include the exceptions noted
in 47 U.S.C. §542(g)(2)(A-E).
1.22 “GAAP” means generally accepted accounting principles as promulgated and
defined by the Financial Accounting Standards Board (“FASB”), Emerging Issues Task Force
(“EITF”) and/or the U.S. Securities and Exchange Commission (“SEC”).
1.23 “Gross Revenues” means, and shall be construed broadly to include, all revenues
derived directly or indirectly by Grantee and/or an Affiliated Entity that is the cable operator of
the Cable System, from the operation of Grantee’s Cable System to provide Cable Services
within the City. Gross Revenues include, by way of illustration and not limitation:
(a) monthly fees for Cable Services, regardless of whether such Cable
Services are provided to residential or commercial customers, including revenues derived
from the provision of all Cable Services (including but not limited to pay or premium
Cable Services, pay-per-view, pay-per-event, and video-on-demand Cable Services);
(b) fees paid to Grantee for Channels designated for commercial/leased access
use and shall be allocated on a pro rata basis using total Cable Service Subscribers within
the City;
(c) Converter, digital video recorder, remote control, and other Cable Service
equipment rentals, leases, or sales;
(d) installation, disconnection, reconnection, change-in service, “snow-bird”
fees;
(e) Advertising Revenues as defined herein;
(f) late fees, convenience fees, and administrative fees;
(g) other service fees such as HD fees, convenience fees, broadcast fees,
regional sports fees, home tech support fees, bill payment fees for in-person or phone
payments, additional outlet fees, and related charges relating to the provision of Cable
Service;
(h) revenues from program guides and electronic guides;
(i) Franchise Fees;
(j) FCC regulatory fees;
(k) except as provided in subsection (ii) below, any fee, tax or other charge
assessed against Grantee by municipality, which Grantee chooses to pass through and
collect from its Subscribers; and
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(l) commissions from home shopping channels and other Cable Service
revenue sharing arrangements, which shall be allocated on a pro rata basis using total
Cable Service Subscribers within the City.
(i) “Advertising Revenues” shall mean revenues derived from sales of
advertising that are made available to Grantee’s Cable System Subscribers within
the City and shall be allocated on a pro rata basis using total Cable Service
Subscribers reached by the advertising. Additionally, Grantee agrees that Gross
Revenues subject to Franchise Fees shall include all commissions, representative
fees, Affiliated Entity fees, or rebates paid to National Cable Communications
and Comcast Spotlight, or their successors associated with sales of advertising on
the Cable System within the City allocated according to this paragraph using total
Cable Service Subscribers reached by the advertising.
(ii) “Gross Revenues” shall not include:
1. actual bad debt write-offs, except any portion which is
subsequently collected, which shall be allocated on a pro rata basis using
Cable Services revenue as a percentage of total Subscriber revenues within
the City; and
2. unaffiliated third-party advertising sales agency fees which
are reflected as a deduction from revenues.
(m) Grantee shall allocate fees and revenues generated from bundled packages
and services to cable revenues pro rata based on the current published rate card for the
packaged services delivered on a stand-alone basis as follows:
(i) To the extent revenues are received by Grantee for the provision of
a discounted bundle of services which includes Cable Services and non-Cable
Services, Grantee shall calculate revenues to be included in Gross Revenues using
a GAAP methodology that allocates revenue, on a pro rata basis, when comparing
the bundled service price and its components to the sum of the published rate
card, except as required by specific Applicable Law (for example, it is expressly
understood that equipment may be subject to inclusion in the bundled price at full
rate card value). The City reserves its right to review and to challenge Grantee’s
calculations.
(ii) Grantee reserves the right to change the allocation methodologies
set forth in this section in order to meet the standards required by governing
accounting principles as promulgated and defined by the Financial Accounting
Standards Board (“FASB”), Emerging Issues Task Force (“EITF”) and/or the
U.S. Securities and Exchange Commission (“SEC”). Grantee will explain and
document the required changes to the City upon request or as part of any audit or
review of Franchise Fee payments, and any such changes shall be subject to the
next subsection below.
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(iii) Resolution of any disputes over the classification of revenue
should first be attempted by agreement of the parties, but should no resolution be
reached, the parties agree that reference shall be made to GAAP as promulgated
and defined by the Financial Accounting Standards Board (“FASB”), Emerging
Issues Task Force (“EITF”) and/or the U.S. Securities and Exchange Commission
(“SEC”). Notwithstanding the foregoing, the City reserves its right to challenge
Grantee’s calculation of Gross Revenues, including the interpretation of GAAP as
promulgated and defined by the FASB, EITF and/or the SEC.
1.24 “Normal Business Hours” means those hours during which most similar
businesses in City are open to serve customers. In all cases, “Normal Business Hours” must
include some evening hours, at least one (1) night per week and/or some weekend hours.
1.25 “Normal Operating Conditions” means those Service conditions which are within
the control of Grantee. Those conditions which are not within the control of Grantee include, but
are not limited to, natural disasters, civil disturbances, power outages, telephone network
outages, and severe or unusual weather conditions. Those conditions which are ordinarily within
the control of Grantee include, but are not limited to, special promotions, pay-per-view events,
rate increases, regular peak or seasonal demand periods, and maintenance or upgrade of the
Cable System.
1.26 “Other Programming Service” is information that a cable operator makes
available to all Subscribers generally.
1.27 “PEG” means public, educational and governmental.
1.28 “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.
1.29 “Section 621 Order” means the Third Report and Order in MB Docket No. 05-311
adopted by the FCC on August 1, 2019, as modified by any court of competent jurisdiction or
any subsequent order of the FCC.
1.30 “Street” means the area on, below, or above a public roadway, highway, street,
cartway, bicycle lane, and public sidewalk in which the City has an interest, including other
dedicated rights-of-way for travel purposes and utility easements. A Street does not include the
airwaves above a public right-of-way with regard to cellular or other non-wire
telecommunications or broadcast service.
1.31 “Subscriber” means a Person who lawfully receives Cable Service.
1.32 “Twin Cities Region” shall mean the cities in Minnesota wherein Grantee or
Affiliate hold a franchise agreement to provide Cable Service.
1.33 “Video Programming” means programming provided by, or generally considered
comparable to programming provided by, a television broadcast station.
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1.34 “Wireline MVPD” means any entity, including the City, that utilizes the Streets to
install cable or fiber and is engaged in the business of making available for purchase, by
Subscribers, multiple Channels of Video Programming in the City, which could also include the
City. For purposes of this Franchise, the term “Wireline MVPD” shall not be limited to entities
defined by the FCC as “multichannel video programming distributors” and shall include entities
that provide multiple Channels of Video Programming via open video systems, as defined by the
FCC, but it is the intent of the Grantee and the City that the term Wireline MVPD shall not
include small cell providers, unless the City has the legal authority under Applicable Law to
regulate or to impose cable franchise obligations upon such small cell providers.
SECTION 2
FRANCHISE
2.1 Grant of Franchise. The City hereby authorizes Grantee to occupy or use the
City’s Streets subject to: ) the provisions of this non-exclusive Franchise to provide Cable
Service within the City; and 2) all applicable provisions of the City Code. Unless this Franchise
has expired pursuant to Section 2.8 herein or this Franchise is otherwise terminated pursuant to
Section 11.2 herein, this 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 City’s legislative or
regulatory authority in an appropriate forum. The City 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.
2.2 Reservation of Authority. The Grantee specifically agrees to comply with the
lawful provisions of the City Code and applicable regulations of the City. Subject to the police
power exception below, in the event of a conflict between (A) the lawful provisions of the City
Code or applicable regulations of the City 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 City through
subsequent amendments to the City Code, ordinances, or any regulation of City, except in the
lawful exercise of City’s police power. Grantee acknowledges that the City may modify its
regulatory policies by lawful exercise of the City’s police powers throughout the term of this
Franchise. Grantee agrees to comply with such lawful modifications to the City Code; however,
Grantee reserves all rights it may have to challenge such modifications to the City Code whether
arising in contract or at law. The City 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
City 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 City, or (C) be
construed as a waiver or release of the rights of the City in and to the Streets.
2.3 Franchise Term. The term of this Franchise shall be ten (10) years from the
Effective Date, unless renewed, amended, or extended by mutual written consent in accordance
with Section 17.7 or terminated sooner in accordance with this Franchise.
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2.4 Franchise Area. This Franchise is granted for the Franchise Area defined herein.
Grantee shall extend its Cable System to provide Service to any residential unit in the City in
accordance with Section 6.6 herein. This Franchise governs any Cable Services provided by
Grantee to residential and commercial Subscribers to Grantee’s Cable System.
2.5 Franchise Nonexclusive. The Franchise granted herein shall be nonexclusive.
The City specifically reserves the right to grant, at any time, such additional franchises for a
Cable System 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 Section 17.18. 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 Minn. Stat. § 238.08 and any other
applicable federal level playing field requirements.
2.6 Periodic Public Review of Franchise. Within sixty (60) Days of the third and
sixth annual anniversary of the Effective Date of this Franchise, the City 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, and other such factors. Both the City 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 Section 17.7 of this Franchise.
2.7 Transfer of Ownership.
(a) No sale, transfer, assignment or “fundamental corporate change”, as
defined in Minn. Stat. § 238.083, of this Franchise shall take place until the parties to the
sale, transfer, or fundamental corporate change files a written request with City for its
approval, provided, however, that said approval shall not be required where Grantee
grants a security interest in its Franchise and assets to secure an indebtedness.
(b) City shall reply in writing and indicate approval of the request or its
determination that a public hearing is necessary due to potential adverse effect on
Grantee’s Subscribers resulting from the sale or transfer.
(c) If a public hearing is deemed necessary pursuant to (b) above, such
hearing shall be handled in accordance with local law or fourteen (14) Days prior to the
hearing by publishing notice thereof once in a newspaper of general circulation in 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.
(d) After the closing of the public hearing, City shall approve or deny in
writing the sale or transfer request. City shall set forth in writing with particularity its
reason(s) for denying approval. City shall not unreasonably withhold its approval.
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(e) The parties to the sale or transfer of the Franchise only, without the
inclusion of the System in which substantial construction has commenced, shall establish
that the sale or transfer of only the Franchise will be in the public interest.
(f) Any sale or transfer of stock in Grantee so as to create a new controlling
interest in the System shall be subject to the requirements of this Section 2.7. The term
“controlling interest” as used herein is not limited to majority stock ownership but
includes actual working control in whatever manner exercised.
(g) In no event shall a transfer or assignment of ownership or control be
approved without the transferee becoming a signatory to this Franchise and assuming all
rights and obligations thereunder, and assuming all other rights and obligations of the
transferor to the City.
(h) In accordance with Minn. Stat. § 238.084, Subd. 1(y), the City shall have
the right to purchase the System in the event the Franchise or System is proposed to be
transferred or sold on the same terms and conditions as the offer pursuant to which
transfer notice was provided pursuant to this section.
(i) City shall be deemed to have waived its rights under this paragraph (h) in
the following circumstances:
(i) If it does not indicate to Grantee in writing, within ninety (90)
Days of notice of a proposed sale or assignment, its intention to exercise its right
of purchase; or
(ii) It approves the assignment or sale of the Franchise as provided
within this section.
2.8 Expiration. Upon expiration of the Franchise, the City shall have the right at its
own election and subject to Grantee’s rights under Section 626 of the Cable Act to:
(a) extend the Franchise, though nothing in this provision shall be construed
to require such extension;
(b) renew the Franchise, in accordance with Applicable Laws;
(c) invite additional franchise applications or proposals;
(d) terminate the Franchise subject to any rights Grantee has under Section
626 of the Cable Act; or
(e) take such other action as the City deems appropriate.
2.9 Right to Require Removal of Property. At the expiration of the term for which
this Franchise is granted, provided no renewal is granted, or upon its forfeiture or revocation as
provided for herein, the City shall have the right to require Grantee to remove at Grantee’s own
expense all or any part of the Cable System from all Streets and public ways within the Franchise
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Area within a reasonable time. If Grantee fails to do so, the City may perform the work and
collect the cost thereof from Grantee. However, Grantee shall have no obligation under this
Franchise to remove the Cable System where it utilizes the system to provide other non-Cable
Services and has any other authority under Applicable Law to maintain facilities in the Streets, or
where Grantee is able to find a purchaser of the Cable System who holds such authorization.
2.10 Continuity of Service Mandatory. It shall be the right of all Subscribers to
receive Cable Service in accordance with the terms of this Franchise and Applicable Law. In the
event that Grantee elects to overbuild, rebuild, modify, or transfer the Cable System in
accordance with Section 2.7, or the City 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, while the Franchise remains effective. 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 Person, including any other grantee of a
cable franchise, the current Grantee shall cooperate fully to operate the Cable System in
accordance with the terms and conditions of this Franchise for a temporary period sufficient in
length to maintain continuity of Cable Service to all Subscribers.
SECTION 3
OPERATION IN STREETS AND RIGHTS-OF-WAY
3.1 Use of Streets.
(a) Grantee may, subject to the terms of this Franchise, erect, install,
construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across and
along the Streets within the City such lines, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, appliances, pedestals, attachments and other property and
equipment as are necessary and appurtenant to the operation of a Cable System within the
City. Without limiting the foregoing, Grantee expressly agrees that it will construct,
operate, and maintain its Cable System in compliance with, and subject to, the
requirements of the City Code, including by way of example and not limitation, those
requirements governing the placement of Grantee’s Cable System; and with other
applicable City Codes, and will obtain and maintain all permits and bonds required by the
City Code in addition to those required in this Franchise.
(b) All wires, conduits, cable and other property and facilities of 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. 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.
(c) All wires, conduits, cables and other property and facilities of Grantee,
shall be constructed and installed in an orderly and workmanlike manner in accordance
with the City Code and Applicable Law. 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.
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(d) Nothing in this Franchise shall be construed to prevent the City from
constructing, maintaining, repairing, or relocating sewers; grading, paving, maintaining,
repairing, relocating and/or altering any Street; constructing, laying down, repairing,
maintaining, or relocating any water mains; or constructing, maintaining, relocating, or
repairing any sidewalk or other public work.
3.2 Construction or Alteration. Grantee shall in all cases comply with the City
Code, City resolutions and City regulations regarding the acquisition of permits and/or such
other items as may be reasonably required in order to construct, alter, or maintain the Cable
System. Grantee shall, upon request, provide information to the City regarding its progress in
completing or altering the Cable System.
3.3 Non-Interference. Grantee shall exert its best efforts to construct and maintain a
Cable System so as not to interfere with other use of Streets. Grantee shall, where possible in the
case of above ground lines, make use of existing poles and other facilities available to Grantee.
When residents receiving underground service or who will be receiving underground service will
be affected by proposed construction or alteration, Grantee shall provide such notice as set forth
in the permit or in City Code of the same to such affected residents.
3.4 Consistency with Designated Use. Notwithstanding the above grant to use
Streets, no Street shall be used by Grantee if the City, in its sole opinion, determines that such
use is inconsistent with the terms, conditions or provisions by which such Street was created or
dedicated, or presently used under Applicable Laws.
3.5 Undergrounding.
(a) Grantee shall place underground all of its transmission lines which are
located or are to be located above or within the Streets of the City in the following cases:
(i) all other existing utilities are required to be placed underground by
statute, resolution, policy or other Applicable Law;
(ii) Grantee is unable to get pole clearance;
(iii) underground easements are obtained from developers of new
residential areas; or
(iv) utilities are overhead but residents prefer underground (service
provided at cost).
(b) If an ordinance is passed which involves placing underground certain
utilities including Grantee’s cable plant which is then located overhead, Grantee shall
participate in such underground project and shall remove poles, cables and overhead
wires if requested to do so and place facilities underground. Nothing herein shall
mandate that City provide reimbursement to Grantee for the costs of such relocation and
removal. However, if the City makes available funds for the cost of placing facilities
underground, nothing herein shall preclude the Grantee from participating in such
funding to the extent consistent with the City Code or Applicable Laws.
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(c) Grantee shall use conduit or its functional equivalent to the greatest extent
possible for undergrounding, except for Drops from pedestals to Subscribers’ homes and
for cable on other private property where the owner requests that conduit not be used.
Cable and conduit shall be utilized which meets the highest industry standards for
electronic performance and resistance to interference or damage from environmental
factors. Grantee shall use, in conjunction with other utility companies or providers,
common trenches for underground construction wherever available.
3.6 Maintenance and Restoration.
(a) Restoration. In case of disturbance of any Street, public way, paved area
or public improvement, Grantee shall, at its own cost and expense and in accordance with
the requirements of Applicable Law, restore such Street, public way, paved area or public
improvement to substantially the same condition as existed before the work involving
such disturbance took place. All requirements of this section pertaining to public
property shall also apply to the restoration of private easements and other private
property. Grantee shall perform all restoration work within a reasonable time and with
due regard to seasonal working conditions. If Grantee fails, neglects, or refuses to make
restorations as required under this section, then the City may do such work or cause it to
be done, and the cost thereof to the City shall be paid by Grantee. If Grantee causes any
damage to private property in the process of restoring facilities, Grantee shall repair such
damage.
(b) Maintenance. Grantee shall maintain all above ground improvements that
it places on City Streets pursuant to the City Code and any permit issued by the City. In
order to avoid interference with the City’s ability to maintain the Street, Grantee shall
provide such clearance as is required by the City Code and any permit issued by the City.
If Grantee fails to comply with this provision, and by its failure, property is damaged,
Grantee shall be responsible for all damages caused thereby.
(c) Disputes. In any dispute over the adequacy of restoration or maintenance
relative to this section, final determination shall be the prerogative of the City,
Department of Public Works and consistent with the City Code and any permit issued by
the City.
3.7 Work on Private Property. Grantee, with the consent of property owners, shall
have the authority, pursuant to the City Code, to trim trees upon and overhanging Streets, alleys,
sidewalks, and public ways so as to prevent the branches of such trees from coming in contact
with the wires and cables of Grantee, except that at the option of the City, such trimming may be
done by it or under its supervision and direction at the reasonable expense of Grantee.
3.8 Relocation.
(a) City Property. If, during the term of the Franchise, the City or any
government entity elects or requires a third party to alter, repair, realign, abandon,
improve, vacate, reroute or change the grade of any Street, public way or other public
property; or to construct, maintain or repair any public improvement; or to replace, repair
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install, maintain, or otherwise alter any cable, wire conduit, pipe, line, pole, wire-holding
structure, structure, or other facility, including a facility used for the provision of utility
or other services or transportation of drainage, sewage or other liquids, for any public
purpose, Grantee shall, upon request, except as otherwise hereinafter provided, at its sole
expense remove or relocate as necessary its poles, wires, cables, underground conduits,
vaults, pedestals, manholes and any other facilities which it has installed. Nothing herein
shall mandate that City provide reimbursement to Grantee for the costs of such relocation
and removal. However, if the City makes available funds for the cost of placing facilities
underground, nothing herein shall preclude the Grantee from participating in such
funding to the extent consistent with the City Code or Applicable Laws.
(b) Utilities and Other Franchisees. If, during the term of the Franchise,
another entity which holds a franchise or any utility requests Grantee to remove or
relocate such facilities to accommodate the construction, maintenance or repair of the
requesting party’s facilities, or their more efficient use, or to “make ready” the requesting
party’s facilities for use by others, or because Grantee is using a facility which the
requesting party has a right or duty to remove, Grantee shall do so. The companies
involved may decide among themselves who is to bear the cost of removal or relocation,
pursuant to City Code, and provided that the City shall not be liable for such costs.
(c) Notice to Remove or Relocate. Any Person requesting Grantee to remove
or relocate its facilities shall give Grantee no less than forty-five (45) Days’ advance
written notice advising Grantee of the date or dates that removal or relocation is to be
undertaken, provided that no advance written notice shall be required in emergencies or
in cases where public health and safety or property is endangered.
(d) Failure by Grantee to Remove or Relocate. If Grantee fails, neglects or
refuses to remove or relocate its facilities as directed by the City; or in emergencies or
where public health and safety or property is endangered, the City may do such work or
cause it to be done, and the cost thereof to the City shall be paid by Grantee. If Grantee
fails, neglects, or refuses to remove or relocate its facilities as directed by another
franchisee or utility, that franchisee or utility may do such work or cause it to be done,
and if Grantee would have been liable for the cost of performing such work, the cost
thereof to the party performing the work or having the work performed shall be paid by
Grantee.
(e) Procedure for Removal of Cable. Grantee shall not remove any
underground cable or conduit which requires trenching or other opening of the Streets
along the extension of cable to be removed, except as hereinafter provided. Grantee may
remove any underground cable from the Streets which has been installed in such a
manner that it can be removed without trenching or other opening of the Streets along the
extension of cable to be removed. Subject to Applicable Law, Grantee shall remove, at
its sole cost and expense, any underground cable or conduit by trenching or opening of
the Streets along the extension thereof or otherwise which is ordered to be removed by
the City based upon a determination, in the sole discretion of the City, that removal is
required in order to eliminate or prevent a hazardous condition. Underground cable and
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conduit in the Streets which is not removed shall be deemed abandoned and title thereto
shall be vested in the City.
(f) Movement of Buildings. Grantee shall, upon request by any Person
holding a building moving permit, franchise or other approval issued by the City,
temporarily remove, raise, or lower its wire to permit the movement of buildings. The
expense of such removal, raising or lowering shall be paid by the Person requesting same,
and Grantee shall be authorized to require such payment in advance. The City shall
require all building movers to provide not less than fifteen (15) Days’ notice to the
Grantee to arrange for such temporary wire changes.
SECTION 4
REMOVAL OR ABANDONMENT OF SYSTEM
4.1 Removal of Cable System. In the event that: (l) the use of the Cable System is
discontinued for any reason for a continuous period of twelve (12) months; or (2) the Cable
System has been installed in a Street without complying with the requirements of this Franchise
or the City Code, Grantee, at its expense shall, at the demand of the City remove promptly from
the Streets all of the Cable 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 the
System has been removed. However, Grantee shall have no obligation under this Franchise to
remove the Cable System where it utilizes the system to provide other non-Cable Services and
has any other authority under Applicable Law to maintain facilities in the Streets, or where
Grantee is able to find a purchaser of the Cable System who holds such authorization.
4.2 Abandonment of Cable System. In the event of Grantee’s abandonment of the
Cable System, City shall have the right to require Grantee to conform to the state right-of-way
rules, Minn. Rules, Ch. 7819. The Cable System to be abandoned in place shall be abandoned in
the manner prescribed by the City. Grantee may not abandon any portion of the System without
having first given three (3) months written notice to the City. Grantee may not abandon any
portion of the System without compensating the City for damages resulting from the
abandonment.
4.3 Removal after Abandonment or Termination. If Grantee has failed to
commence removal of System, or such part thereof as was designated by City, within thirty (30)
Days after written notice of City’s demand for removal consistent with Minn. Rules, Ch. 7819, is
given, or if Grantee has failed to complete such removal within twelve (12) months after written
notice of City’s demand for removal is given, City shall have the right to apply funds secured by
the letter of credit and performance bond toward removal and/or declare all right, title, and
interest to the Cable System for the City with all rights of ownership including, but not limited
to, the right to operate the Cable System or transfer the Cable System to another for operation by
it.
4.4 City Options for Failure to Remove Cable System. If 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:
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(a) Declare all right, title and interest to the System for the City or its
designee with all rights of ownership including, but not limited to, the right to operate the
System or transfer the System to another for operation by it; or
(b) Declare the System abandoned and cause the 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
this Franchise or from Grantee directly.
(c) Upon termination of service to any Subscriber, Grantee shall promptly
remove all its facilities and equipment from within the dwelling of a Subscriber who
owns such dwelling upon his or her written request, except as provided by Applicable
Law. Such Subscribers shall be responsible for any costs incurred by Grantee in
removing the facilities and equipment.
4.5 System Construction and Equipment Standards. The Cable System shall be
installed and maintained in accordance with standard good engineering practices and shall
conform, when applicable, with the National Electrical Safety Code, the National Electrical Code
and the FCC’s Rules and Regulations.
4.6 System Maps and Layout. In addition to any generally applicable mapping
requirements included in the City Code and required of other utilities, Grantee shall maintain
complete and accurate system maps and records of all of its wires, conduits, cables and other
property and facilities located, constructed, and maintained in the City, which shall include
trunks, distribution lines, and nodes. Such maps shall include up-to-date route maps showing the
location of the Cable System adjacent to the Streets. Grantee shall make all maps and records
available for review by the appropriate City personnel.
SECTION 5
SYSTEM DESIGN AND CAPACITY
5.1 Availability of Signals and Equipment.
(a) The Cable System utilizes a fiber to the fiber node architecture, with fiber
optic cable deployed from Grantee’s headend to Grantee’s fiber nodes, tying into
Grantee’s coaxial Cable System serving Subscribers. The System shall pass a minimum
of 750 MHz (with a minimum passband of between 50 and 750 MHz) and shall be
maintained to provide to Subscribers a minimum of at least two hundred (200) or more
activated downstream Cable Service Channels.
(b) The entire System shall be technically capable of transmitting industry-
standard digital television signals in a manner and quality consistent with applicable FCC
regulations.
(c) Grantee agrees to maintain the Cable System in a manner consistent with,
or in excess of the specifications in Section 5.1 (a) and (b) throughout the term of the
Franchise with sufficient capability and technical quality to enable the implementation
and performance of all requirements of this Franchise, including the exhibits hereto, and
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in a manner which meets or exceeds FCC technical quality standards at 47 C.F.R. § 76
Subpart K, regardless of the particular format in which a signal is transmitted.
5.2 Equal and Uniform Service. To the extent required by Applicable Law, Grantee
shall provide access to equal and uniform Cable Service throughout the City.
5.3 System Specifications.
(a) System Maintenance. In all its construction and service provision
activities, Grantee shall meet or exceed the construction, technical performance,
extension, and service requirements set forth in this Franchise.
(b) Emergency Alert Capability. At all times during the term of this
Franchise, Grantee shall provide and maintain an Emergency Alert System (EAS)
consistent with Applicable Laws including 47 C.F.R., Part 11, and any Minnesota State
Emergency Alert System requirements. The City may identify authorized emergency
officials for activating the EAS consistent with the Minnesota State Emergency Statewide
Plan (“EAS Plan”). The City may also develop a local plan, containing methods of EAS
message distribution, subject to Applicable Laws and the EAS Plan. Nothing in this
section is intended to expand Grantee’s obligations beyond that which is required by the
EAS Plan and Applicable Law.
(c) Standby Power. Grantee shall provide standby power generating capacity
at the Cable System control center and at all hubs. Grantee shall maintain standby power
system supplies, rated at least at two (2) hours duration throughout the trunk and
distribution networks. In addition, Grantee shall have in place throughout the Franchise
term a plan, and all resources necessary for implementation of the plan, for dealing with
outages of more than two (2) hours.
(d) Technical Standards. The technical standards used in the operation of the
Cable System shall comply, at minimum, with the technical standards promulgated by the
FCC relating to Cable Systems pursuant to Title 47, Section 76, Subpart K of the Code of
Federal Regulations, as may be amended or modified from time to time, which
regulations are expressly incorporated herein by reference. The Cable System shall be
installed and maintained in accordance with standard good engineering practices and
shall conform with the National Electrical Safety Code and all other Applicable Laws
governing the construction of the Cable System.
(e) System Upgrades. The Cable System will be upgraded consistent with
future System upgrades performed in Grantee’s other Twin Cities Region Cable Systems,
when any other of Grantee’s Cable Systems in Hennepin County also receives a System
upgrade, understanding that work on the Cable System is done based on Grantee’s
construction schedules.
5.4 Performance Testing. Grantee shall perform all system tests at the intervals
required by the FCC, and all other tests reasonably necessary to determine compliance with
technical standards required by this Franchise. These tests shall include, at a minimum:
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(a) Initial proof of performance for any construction; and
(b) Tests in response to Subscriber complaints; and
(c) Tests requested by the City to demonstrate franchise compliance; and
(d) Written records of all system test results performed by or for Grantee shall
be maintained and shall be available for City inspection upon request.
5.5 Special Testing.
(a) Throughout the term of this Franchise, City shall have the right to inspect
all construction or installation work performed pursuant to the provisions of the
Franchise. In addition, City may require special testing of a location or locations within
the System if there is a particular matter of controversy or unresolved complaints
regarding such construction or installation work or pertaining to such location(s).
Demand for such special tests may be made on the basis of complaints received or other
evidence indicating an unresolved controversy or noncompliance. Such tests shall be
limited to the particular matter in controversy or unresolved complaints. City shall
endeavor to so arrange its request for such special testing so as to minimize hardship or
inconvenience to Grantee or to the Subscribers caused by such testing.
(b) Before ordering such tests, Grantee shall be afforded thirty (30) Days
following receipt of written notice to investigate and, if necessary, correct problems or
complaints upon which tests were ordered. City shall meet with Grantee prior to
requiring special tests to discuss the need for such and, if possible, visually inspect those
locations which are the focus of concern. If, after such meetings and inspections, City
wishes to commence special tests and the thirty (30) Days have elapsed without
correction of the matter in controversy or unresolved complaints, the tests shall be
conducted at Grantee’s expense by Grantee’s qualified engineer. The City shall have a
right to participate in such testing by having an engineer of City’s choosing, and at City’s
expense, observe and monitor said testing.
SECTION 6
PROGRAMMING AND SERVICES
6.1 Categories of Programming Service. Grantee shall provide Video
Programming services in at least the following broad categories:
Local Broadcast (subject to federal carriage requirements)
Public Broadcast
News and Information
Sports
General Entertainment
Arts/Performance/Humanities
Science/Technology
Children/Family/Seniors
Foreign Language/Ethnic Programming
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PEG Programming (to the extent required by the Franchise)
Movies
Leased Access
6.2 Changes in Programming Services. As required by Applicable Law, Grantee
shall provide at least thirty (30) Days’ prior written notice to Subscribers and to the City of
Grantee’s request to effectively delete any broad category of programming or any Channel
within its control, including all proposed changes in bandwidth or Channel allocation and any
assignments including any new equipment requirements that may occur as a result of these
changes.
6.3 Parental Control Device. Upon request by any Subscriber, Grantee shall make
available for sale or lease a parental control or lockout device that will enable the Subscriber to
block all access to any and all Channels without affecting those not blocked. Grantee shall
inform Subscribers of the availability of the lockout device at the time of original subscription
and annually thereafter.
6.4 FCC Reports. The results of any tests required to be filed by Grantee with the
FCC shall also be copied to City within ten (10) Days of the conduct of the date of the tests.
6.5 Annexation. Unless otherwise provided by Applicable Law, including the City
Code, upon the annexation of any additional land area by City, the annexed area shall thereafter
be subject to all the terms of this Franchise upon sixty (60) Days written notification to Grantee
of the annexation by City. Unless otherwise required by Applicable Laws, nothing herein shall
require the Grantee to expand its Cable System to serve, or to offer Cable Service to any area
annexed by the City if such area is then served by another Wireline MVPD franchised to provide
multichannel video programming.
6.6 Line Extension.
(a) Grantee shall construct and operate its Cable System so as to provide
Cable Service within the Franchise Area where there exists a density equivalent of seven
(7) dwelling units per one-quarter (1/4) mile of feeder cable as measured from the nearest
active plant of the Cable System if the extension is to be constructed using aerial plant,
and nine (9) dwelling units per one-quarter (1/4) mile of feeder cable as measured from
the nearest active plant if the extension is to be constructed using underground plant. The
City, for its part, shall endeavor to exercise reasonable efforts to require developers and
utility companies to provide the Grantee with at least fifteen (15) Days advance notice of
an available open trench for the placement of necessary cable.
(b) Where the density is less than that specified above, Grantee shall inform
Persons requesting Service of the possibility of paying for installation or a line extension
and shall offer to provide them with a free written estimate of the cost, which shall be
provided within fifteen (15) working days of such a request. Grantee may offer the
Persons requesting Service the opportunity to “prepay” some or all of the necessary line
extensions according to its regular business policies. Grantee shall at all times implement
such line extension policy in a nondiscriminatory manner throughout the City.
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(c) Any residential unit located within one hundred twenty-five (125) feet
from the nearest point of access on the Street from which the Cable System is designed to
serve the site shall be connected to the Cable System at no charge other than the standard
installation charge. Grantee shall, upon request by any potential Subscriber residing in
City beyond the one hundred twenty-five (125) foot limit, extend service to such
Subscriber provided that the Subscriber shall pay the net additional Drop costs, unless the
Grantee agrees to waive said costs. To the extent consistent with Applicable Laws,
Grantee agrees that it shall impose installation costs for non-standard installations in a
uniform and nondiscriminatory manner throughout the City.
6.7 Nonvoice Return Capability. Grantee is required to use cable and associated
electronics having the technical capacity for nonvoice return communications
6.8 Free Cable Service to Public Buildings.
(a) The parties acknowledge that as of the Effective Date of this Franchise,
Grantee continues to provide, free of charge, basic Cable Service (including the PEG
Channels) to certain schools, libraries and public institutions within the Franchise Area as
set forth in Exhibit A (“Complimentary Services”). In the event Grantee elects, to the
extent permitted by Applicable Law, to invoice the City for the marginal cost of the
Complimentary Services, the Grantee agrees that it will do so only after providing City
with one hundred twenty (120) Days ’ prior written notice.
(b) The City shall have right to discontinue receipt of all or a portion of the
Complimentary Service provided by Grantee in the event Grantee elects to impose a
charge to the City for the Complimentary Service as set forth in the preceding paragraph.
Within ninety (90) days of receiving the aforementioned notice, the City will notify the
Grantee whether, with respect to each identified Complimentary Service location, the
Grantee is relieved, or temporarily relieved, of its obligations or is required to comply,
subject either to the Grantee taking an offset to the Franchise Fee payments payable
under Section 16.1 as may be permitted by the Section 621 Order or to the Grantee and
the City agreeing to a separately negotiated charge payable by the City to the Grantee.
(c) Additional Subscriber network Drops and/or outlets will be installed at
designated institutions by Grantee at the cost of Grantee’s time and material, or such
other price as may be required to comply with Applicable Law. Alternatively, said
institution may add outlets at its own expense as long as such installation meets Grantee’s
standards. Grantee will complete construction of the additional Drop and outlet within
three (3) months from the date of City’s designation of additional institution(s) unless
weather or other conditions beyond the control of Grantee requires more time. The City
may substitute locations listed on Exhibit A attached hereto as long as the number of
locations to receive Complimentary Service remains the same as Exhibit A.
(d) The City or the building occupant shall have the right to extend Cable
Service throughout the building to additional outlets without any fees imposed by
Grantee for the provision of Complimentary Service to such additional outlets. If
ancillary equipment, such as a Converter, is required to receive the signal at additional
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outlets, Grantee will provide up to three (3) devices at no charge and will provide
additional devices at Grantee’s lowest residential rate charged within the Twin Cities
Region.
(e) Notwithstanding anything to the contrary set forth in this section, Grantee
shall not be required to provide Complimentary Service to such buildings unless it is
technically feasible. Outlets and maintenance of said Complimentary Service shall be
provided free of fees and charges.
SECTION 7
PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
7.1 Number of PEG Access Channels.
(a) Grantee will make available three (3) PEG Access Channels in addition to
Channels required by the State of Minnesota, such as Regional Channel 6, throughout the
entire term of this Franchise and any extensions of the Franchise term.
(b) Grantee shall provide the PEG Access Channels on the Basic Cable
Service tier, or such other most subscribed tier of Cable Service (within the Franchise
Area) as may be offered by Grantee.
(c) For purposes of this Franchise, a high definition (“HD”) format or signal
refers to a PEG signal delivered by Grantee to Subscribers in a resolution that is either:
(i) the same as received by Grantee from City or the entity from
which Grantee received the PEG signal, or
(ii) the highest resolution used for the delivery of the primary signals
of local broadcast stations, if lower than the level described in subparagraph (c)(i)
above.
7.2 HD PEG Carriage Requirements.
(a) No later than September 1, 2023, Grantee shall provide all three (3) PEG
Access Channels in HD format and shall also simulcast all three (3) PEG Access
Channels in standard definition (“SD”) until SD is no longer offered by Grantee. The
parties agree that PEG funding may be used to support streaming of PEG programming,
provided the City does not permit PEG funding to be used for operational expenses
except as permitted by Applicable Law.
(b) The City acknowledges that receipt of an HD format PEG Access Channel
may require Subscribers to buy or lease special equipment or pay additional HD charges
applicable to all HD services.
(c) Grantee agrees that it shall be responsible for costs associated with the
provision of encoders or other equipment necessary to receive HD/SD signals at the
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Grantees’ headend, and to convert PEG HD signals to SD consistent with the historic
practice between the parties related to the government PEG Access Channel.
7.3 Control of PEG Access Channels. The control and administration of the PEG
Access Channels shall rest with the City and the City may delegate, from time to time over the
term of this Franchise, such control and administration to various entities as determined in City’s
sole discretion.
7.4 Transmission of PEG Access Channels. PEG Access Channels may be used for
transmission of non-video signals in compliance with Applicable Laws. This may include
downstream transmission of data using a protocol such as TCP/IP or current industry standards.
Should Grantee develop the capability to provide bi-directional data transmission, spectrum
capacity shall be sufficient to allow Subscribers to transmit data to PEG facilities.
7.5 PEG Access Channel Locations.
(a) PEG Access Channels shall be carried on the Basic Cable Service tier to
the extent required by Applicable Law and as set forth in Section 7.2 herein. Nothing
herein precludes the Grantee from charging for equipment needed for Basic Cable
Service. Grantee shall make every reasonable effort to coordinate the cablecasting of
PEG access programming on the Cable System on the same Channel designations as such
programming is currently cablecast within the City. In no event shall any Access
Channel reallocations be made prior to ninety (90) Days written notice to the City by
Grantee, except for circumstances beyond Grantee’s reasonable control. The Access
Channels will be located within reasonable proximity to other commercial video or
broadcast Channels, excluding pay-per-view programming offered by Grantee in the
City.
(b) Grantee agrees not to encrypt the Access Channels differently than other
commercial Channels available on the Cable System.
(c) In conjunction with any occurrence of any Access Channel(s) relocation,
Grantee shall provide a minimum of One Thousand Five Hundred Dollars ($1,500)
Thousand Five-Hundred Dollars ($1,500) of reimbursement for costs incurred by City to
promote the new Channel locations.
7.6 Navigation to PEG Access Channels and Electronic Programming Guide.
Grantee agrees that if it utilizes any navigation interfaces, the PEG Access Channels shall be
treated in a non-discriminatory fashion consistent with Applicable Laws so that Subscribers will
have ready access to Access Channels. Grantee will maintain the existing ability of the City to
place PEG Access Channel programming information on the interactive Channel guide via the
electronic programming guide (“EPG”) vendor (“EPG provider”) that Grantee utilizes to provide
the guide service. PEG programming provided by the City shall appear on the EPG for each
Channel carried in the City. Grantee will be responsible for providing the designations and
instructions necessary for the PEG Access Channels to appear on the EPG. Each programming
stream will not be individually listed for narrowcast Channels unless technically feasible. All
costs and operational requirements of the EPG provider shall be the responsibility of the City.
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City acknowledges that the EPG may not be technically possible for all PEG programming, and
that Grantee is not responsible for operations of the EPG provider.
7.7 Ownership of PEG Access Channels. Grantee does not relinquish its ownership
of or ultimate right of control over a Channel by designating it for PEG use. A PEG access user
– whether an individual, educational, or governmental user – acquires no property or other
interest by virtue of the use of a Channel position so designated. Grantee shall not exercise
editorial control over any public, educational, or governmental use of a Channel position, except
Grantee may refuse to transmit any public access program or portion of a public access program
that contains obscenity, indecency, or nudity in violation of Applicable Law.
7.8 PEG Monitoring. Grantee shall provide the capability, without charge, to the
City and to the City of Edina (location of the Commission’s master control facility), to monitor
and verify the audio and visual quality of PEG Access Channels received by Subscribers as well
as the existing connections and equipment at the City and the City of Edina. This will include
equipment comparable to that deployed to residential cable Subscribers that will allow the City
and the City of Edina to verify the accuracy of EPG listings for the PEG Access Channels
consistent with what is currently provided. Grantee shall also maintain one (1) feed to the City
and one (1) additional feed to the City of Edina to provide the ability to monitor Subscriber
services and address Subscriber concerns which feed shall include all cable boxes and platforms
(i.e., Xfinity X1).
7.9 Noncommercial Use of PEG. Permitted noncommercial uses of the Access
Channels shall include by way of example and not limitation: (1) the identification of financial
supporters similar to what is provided on public broadcasting stations; or (2) the solicitation of
financial support for the provision of PEG programming by the City or third party users for
charitable, educational or governmental purposes; or (3) programming offered by accredited,
non-profit, educational institutions which may, for example, offer telecourses over a Access
Channel.
7.10 PEG Transport. Grantee will maintain all existing fiber paths in place as of the
Effective Date to facilitate PEG origination/return capacity in the City. Such fiber returns paths
are listed in Exhibit B attached hereto and will be provided by Grantee without additional charge,
with no recurring, monthly costs or offsets, except that Grantee may invoice the Commission for
any maintenance costs consistent with Applicable Law and the Section 621 Order. Grantee shall
not be responsible for fiber “replacement” but will handle any damage and all maintenance on
the existing fiber. Grantee anticipates, but cannot guarantee, that that this will result in minimal
fiber expenditures by the City over the Franchise term.
7.11 Interconnection. To the extent technically feasible, Grantee will allow necessary
interconnection with any newly constructed City and school fiber for noncommercial
programming to be promoted and administered by the City as allowed under Applicable Laws
and at no additional cost to the City or schools. This may be accomplished through a patch panel
or other similar facility and each party will be responsible for the fiber on their respective sides
of the demarcation point. Grantee reserves its right to review on a case-by-case basis the
technical feasibility of the proposed interconnection. Based on this review, Grantee may
condition the interconnection on the reasonable reimbursement of Grantee’s incremental costs,
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with no markup for profit, to recoup Grantee’s construction costs only. In no event will Grantee
impose any type of recurring fee for said interconnection.
7.12 Ancillary Equipment. Any ancillary equipment operated by Grantee for the
benefit of PEG Access Channels on Grantee’s fiber paths or Cable System, whether referred to
switchers, routers, or other equipment, will be maintained by Grantee, free of charge and at no
cost to the City, Commission or schools for the life of the Franchise. Grantee is responsible for
any ancillary equipment on its side of the demarcation point and the City, Commission or school
is responsible for all other production/playback equipment.
7.13 Future PEG Transport. At such time that the City determines:
(a) that the City desires the capacity to allow Subscribers in the City to
receive PEG programming (video or character generated) which may originate from
schools, City facilities, other government facilities or other designated facilities (other
than those indicated in Exhibit B); or
(b) that the City desires to establish or change a location from which PEG
programming is originated; or
(c) that the City desires to upgrade the Connection to Grantee from an
existing signal point of origination,
the City will give Grantee written notice detailing the point of origination and the capability
sought by the City. Grantee agrees to submit a cost estimate to implement the City’s plan within
a reasonable period of time but not later than September 1st in the year proceeding the request for
any costs exceeding Twenty-five Thousand and No/100 Dollars ($25,000). The cost estimate
will be on a time and materials basis with no additional markup. After an agreement to
reimburse Grantee for Grantee’s out of pocket time and material costs, Grantee will implement
any necessary Cable System changes within a reasonable period of time. Nothing herein
prevents the City, or a private contractor retained by the City, from constructing said return fiber.
7.14 PEG Access Channel Carriage.
(a) Any and all costs associated with any modification of the PEG Access
Channels or signals after the PEG Access Channels/signals leave the City’s designated
playback facilities, or any designated playback center authorized by the City shall be
borne entirely by Grantee. Grantee shall not cause any programming to override PEG
programming on any PEG Access Channel, except by oral or written permission from the
City, with the exception of emergency alert signals.
(b) The City may request and Grantee shall provide an additional PEG Access
Channel when the cumulative time on all the existing PEG Access Channels combined
meets the following standard: whenever one of the PEG Access Channels in use during
eighty percent (80%) of the weekdays, Monday through Friday, for eighty percent (80%)
of the time during a consecutive three (3) hour period for six (6) weeks running, and there
is a demand for use of an additional Channel for the same purpose, the Grantee has six
(6) months in which to provide a new, PEG Access Channel for the same purpose;
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provided that, the provision of the additional Channel or Channels does not require the
Cable System to install Converters.
(c) Only to the extent mandated by Applicable Law, the VHF spectrum shall
be used for one (1) of the public, educational, or governmental specially designated PEG
Access Channels.
(d) The City or its designee shall be responsible for developing,
implementing, interpreting, and enforcing rules for PEG Access Channel use.
(e) The Grantee shall monitor the PEG Access Channels for technical quality
to ensure that they meet FCC technical standards including those applicable to the
carriage of PEG Access Channels, provided however, that the Grantee is not responsible
for the production quality of PEG programming productions. The City, or its designee,
shall be responsible for the production and quality of all PEG access programming.
Grantee shall carry all components of the standard definition of PEG Access Channel
including, but not limited to, closed captioning, stereo audio and other elements
associated with the programming.
7.15 Access Channel Support.
(a) No later than September 1, 2023, Grantee shall collect and remit to the
City a minimum of two percent (2%) of Grantee’s Gross Revenues in support of PEG
(“PEG Fee”) to be used by the City as permitted under Applicable Law.
(b) The PEG Fee is not part of the Franchise Fee and instead falls within one
(1) or more of the exceptions in 47 U.S.C. § 542, unless the PEG Fee may be categorized,
itemized, and passed through to Subscribers as permissible, in accordance with 47 U.S.C.
§542 or other Applicable Laws.
(c) Grantee shall pay the PEG Fee to the City quarterly, on the same schedule
as the payment of Franchise Fees as set forth in Section 16.1 of this Franchise. Grantee
agrees that it will not offset or reduce its payment of past, present, or future Franchise
Fees required as a result of its obligation to remit the PEG Fee.
(d) Any PEG Fee amounts owing pursuant to this Franchise which remain
unpaid more than twenty-five (25) Days after the date the payment is due shall be
delinquent and shall thereafter accrue interest at twelve percent (12%) per annum or the
prime lending rate published by the Wall Street Journal on the Day the payment was due
plus two percent (2%), whichever is greater.
7.16 PEG Technical Quality and Support.
(a) Grantee shall not be required to carry a PEG Access Channel in a higher
quality format than that of the Channel signal delivered to Grantee, but Grantee shall not
implement a change in the method of delivery of PEG Access Channels that results in a
material degradation of signal quality or impairment of viewer reception of PEG Access
Channels, provided that this requirement shall not prohibit Grantee from implementing
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new technologies also utilized for commercial Channels carried on its Cable System.
Grantee shall meet FCC signal quality standards when offering PEG Access Channels on
its Cable System and shall continue to comply with closed captioning pass-through
requirements. There shall be no significant deterioration in a PEG Access Channel signal
from the point of origination upstream to the point of reception (hub or headend) or
downstream to the Subscriber on the Cable System.
(b) Within twenty-four (24) hours of a written request from City to the
Grantee identifying a technical problem with a PEG Access Channel and requesting
assistance, Grantee will provide technical assistance or diagnostic services to determine
whether or not a problem with a PEG signal is the result of matters for which Grantee is
responsible and if so, Grantee will take prompt corrective action. If the problem persists
and there is a dispute about the cause, then the parties shall meet with engineering
representation from Grantee and the City in order to determine the course of action to
remedy the problem.
7.17 Access Channel Promotion. If a PEG Access Channel is relocated, Grantee
shall notify the Commission, City and Subscribers of the relocation in a manner consistent with
Grantee’s other normal Channel relocation notices.
7.18 Change in Technology. In the event Grantee makes any change in the Cable
System and related equipment and facilities or in its signal delivery technology, which requires
the City to obtain new equipment in order to be compatible with such change for purposes of
transport and delivery of the PEG Access Channels, Grantee shall, at its own expense and free of
charge to City or its designated entities, purchase such equipment as may be necessary to
facilitate the cablecasting of the PEG Access Channels in accordance with the requirements of
the Franchise.
7.19 Relocation of Grantee’s Headend. In the event Grantee relocates its headend,
Grantee will be responsible for replacing or restoring the existing dedicated fiber connections at
Grantee’s cost so that all the functions and capacity remain available, operate reliably and satisfy
all applicable technical standards and related obligations of the Franchise free of charge to the
City or its designated entities.
7.20 Regional Channel Six. Grantee shall make available Regional Channel Six as
long as it is required to do so by the State of Minnesota.
7.21 Government Access Channel Functionality. Grantee and City agree that City
will continue to have the following capability on the government Access Channel:
(a) City can insert live Council meetings from City Hall;
(b) City can replay government access programming from City Hall;
(c) City can transmit character generated programming; and
(d) City can schedule to replay City-provided programming in pre-arranged
time slots on the government PEG Access Channel.
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7.22 Compliance with Minnesota Statutes Chapter 238. In addition to the
requirements contained in this Section 7 of this Franchise, Grantee and City shall comply with
the PEG requirements mandated by Minn. Stat. § 238.084.
SECTION 8
REGULATORY PROVISIONS.
8.1 Intent. The City shall have the right to administer and regulate activities under
the Franchise up to the full extent permitted by Applicable Law.
8.2 Delegation of Authority to Regulate. The City reserves the right to delegate its
regulatory authority wholly or in part to agents of the City, including, but not limited to, an
agency which may be formed to regulate several franchises in the region in a manner consistent
with Applicable Laws. This may include but shall not be limited to the Commission or other
entity as City may determine in its sole discretion. Any existing delegation in place at the time
of the grant of this Franchise shall remain intact unless expressly modified by City.
8.3 Areas of Administrative Authority.
(a) In addition to any other regulatory authority granted to the City by law or
franchise, the City shall have administrative authority in the following areas:
(i) Administering and enforcing the provisions of this Franchise,
including the adoption of administrative rules and regulations to carry out this
responsibility; and
(ii) Coordinating the operation of PEG Access Channels; and
(iii) Formulating and recommending long-range cable communications
policy for the Franchise Area; and
(iv) Disbursing and utilizing Franchise revenues paid to the City; and
(v) Administering the regulation of rates, to the extent permitted by
Applicable Law; and
(vi) All other regulatory authority permitted under Applicable Law.
(b) The City or its designee shall have continuing regulatory jurisdiction and
supervision over the System and the Grantee’s operations under the Franchise to the
extent allowed by Applicable Law.
8.4 Regulation of Rates and Charges.
(a) Right to Regulate. The City reserves the right to regulate rates or charges
for any Cable Service within the limits of Applicable Law, to enforce rate regulations
prescribed by the FCC, and to establish procedures for said regulation or enforcement.
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(b) Notice of Change in Rates and Charges. Throughout the term of this
Franchise, Grantee shall give the City and all Subscribers within the City at least thirty
(30) Days’ notice of any intended modifications or additions to Subscriber rates or
charges. Nothing in this subsection shall be construed to prohibit the reduction or
waiving of rates or charges in conjunction with promotional campaigns for the purpose of
attracting Subscribers or users.
(c) Rate Discrimination Prohibited. Within any category of Subscribers,
Grantee shall not discriminate among Subscribers with regard to rates and charges made
for any service based on considerations of race, color, creed, sex, marital or economic
status, national origin, sexual preference, or (except as allowed by Applicable Law)
neighborhood of residence, except as otherwise provided herein; and for purposes of
setting rates and charges, no categorization of Subscribers shall be made by Grantee on
the basis of those considerations. Nevertheless, Grantee shall be permitted to establish
(1) discounted rates and charges for providing Cable Service to low-income, disabled, or
low-income elderly Subscribers, (2) promotional rates, and (3) bulk rate and package
discount pricing.
SECTION 9
BOND.
9.1 Performance Bond. Upon the Effective Date of this Franchise and at all times
thereafter Grantee shall maintain with City a bond in the sum of One Hundred Thousand and
No/100 Dollars ($100,000.00) in such form and with such sureties as shall be acceptable to City,
conditioned upon the faithful performance by Grantee of this Franchise and the acceptance
hereof given by City and upon the further condition that in the event Grantee shall fail to comply
with any law, ordinance or regulation, there shall be recoverable jointly and severally from the
principal and surety of the bond, any damages or losses suffered by City as a result, including the
full amount of any compensation, indemnification or cost of removal of any property of Grantee,
including a reasonable allowance for attorneys’ fees and costs (with interest at two percent (2%)
in excess of the then prime rate), up to the full amount of the bond, and which bond shall further
guarantee payment by Grantee of all claims and liens against City, or any public property, and
taxes due to City, which arise by reason of the construction, operation, maintenance or use of the
Cable System.
9.2 Rights. The rights reserved by City with respect to the bond are in addition to all
other rights the City may have under this Franchise or any other law.
9.3 Reduction of Bond Amount. City may, in its sole discretion, reduce the amount
of the bond.
SECTION 10
SECURITY FUND
10.1 Security Fund. If there is an uncured breach by Grantee of a material provision
of this Franchise or a pattern of repeated violations of any provision(s) of this Franchise, then
Grantee shall, upon written request, establish and provide to the City, as security for the faithful
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performance by Grantee of all of the provisions of this Franchise, a letter of credit from a
financial institution satisfactory to the City in the amount of Twenty-five Thousand and No/100
Dollars ($25,000.00). In no event shall Grantee fail to post a Twenty-five Thousand and No/100
Dollar ($25,000.00) letter of credit within thirty (30) days receipt of a notice of franchise
violation pursuant to this Section 10.1. Failure to post said letter of credit shall constitute a
separate material violation of this Franchise unless the breach is cured within such thirty (30)
Day period or longer period allowed under the Franchise. The letter of credit shall serve as a
common security fund for the faithful performance by Grantee of all the provisions of this
Franchise and compliance with all orders, permits and directions of the City and the payment by
Grantee of any claim, liens, costs, expenses, and taxes due the City which arise by reason of the
construction, operation or maintenance of the Cable System. Interest on this deposit shall be
paid to Grantee by the bank on an annual basis. The security may be terminated by the Grantee
upon the resolution of the alleged noncompliance. The obligation to establish the security fund
required by this paragraph is unconditional. The fund must be established in those circumstances
where Grantee disputes the allegation that it is not in compliance and maintained for the duration
of the dispute. If Grantee fails to establish the security fund as required, the City may take
whatever action is appropriate to require the establishment of that fund and may recover its costs,
reasonable attorneys’ fees, and an additional penalty of Five Thousand and No/100 Dollars
($5,000) in that action.
10.2 Withdrawal of Funds. The security fund shall permit the City to withdraw funds
upon demand (sight draft). Grantee shall not use the security fund for other purposes and shall
not assign, pledge, or otherwise use this security fund as security for any purpose.
10.3 Restoration of Funds. Within ten (10) Days after notice to it that any amount
has been withdrawn by the City from the security fund pursuant to Section 10.4 of this Franchise,
Grantee shall deposit a sum of money sufficient to restore such security fund to the required
amount.
10.4 Liquidated Damages. In addition to recovery of any monies owed by Grantee to
City or damages to City as a result of any acts or omissions by Grantee pursuant to the Franchise,
City in its sole discretion may charge to and collect from the security fund the following
liquidated damages:
(a) For failure to provide data, documents, reports, or information or to
cooperate with City during an application process or System review, the liquidated
damage shall be Two Hundred Fifty and No/100 Dollars ($250.00) per Day for each Day,
or part thereof, such failure occurs or continues.
(b) For failure to comply with any of the provisions of this Franchise for
which a penalty is not otherwise specifically provided pursuant to this Paragraph 10.4,
the liquidated damage shall be Two Hundred Fifty and No/100 Dollars ($250.00) per Day
for each Day, or part thereof, such failure occurs or continues.
(c) Forty-five (45) Days following notice from City of a failure of Grantee to
comply with construction, operation or maintenance standards, the liquidated damage
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shall be Five Hundred and No/100 Dollars ($500.00) per Day for each Day, or part
thereof, such failure occurs or continues.
(d) For failure to provide the services Grantee has proposed, including but not
limited to the implementation and the utilization of the Access Channels the liquidated
damage shall be Two Hundred Fifty and No/100 Dollars ($250.00) per Day for each Day,
or part thereof, such failure occurs or continues.
10.5 Each Violation a Separate Violation. Each violation of any provision of this
Franchise shall be considered a separate violation for which separate liquidated damages can be
imposed.
10.6 Maximum Draw Per Violation. Any liquidated damages for any given violation
shall be imposed upon Grantee for a maximum of Twenty-five Thousand and No/100 Dollars
($25,000). If after that amount of draw from the security fund Grantee has not cured or
commenced to cure the alleged breach to the satisfaction of the City, the City may pursue all
other remedies.
10.7 Withdrawal of Funds to Pay Taxes. If Grantee fails to pay to the City any taxes
due and unpaid; or fails to repay to the City, any damages, costs or expenses which the City shall
be compelled to pay by reason of any act or default of the Grantee in connection with this
Franchise; or fails, after thirty (30) Days’ notice of such failure by the City to comply with any
provision of the Franchise which the City reasonably determines can be remedied by an
expenditure of the security, the City may then withdraw such funds from the security fund.
Payments are not Franchise Fees as defined in Section 16 of this Franchise.
10.8 Procedure for Draw on Security Fund. Whenever the City finds that Grantee
has allegedly violated one (1) or more terms, conditions or provisions of this Franchise, a written
notice shall be given to Grantee. The written notice shall describe in reasonable detail the
alleged violation so as to afford Grantee an opportunity to remedy the violation. Grantee shall
have thirty (30) Days subsequent to receipt of the notice in which to correct the violation before
the City may require Grantee to make payment of damages, and further to enforce payment of
damages through the security fund. Grantee may, within ten (10) Days of receipt of notice,
notify the City that there is a dispute as to whether a violation or failure has, in fact, occurred.
Such notice by Grantee shall specify with particularity the matters disputed by Grantee and shall
stay the running of the above-described time.
(a) City shall hear Grantee’s dispute at the next regularly scheduled or
specially scheduled Council meeting. Grantee shall have the right to speak and introduce
evidence. The City shall determine if Grantee has committed a violation and shall make
written findings of fact relative to its determination. If a violation is found, Grantee may
petition for reconsideration.
(b) If after hearing the dispute, the claim is upheld by the City, then Grantee
shall have thirty (30) Days within which to remedy the violation before the City may
require payment of all liquidated damages due it.
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10.9 Time for Correction of Violation. The time for Grantee to correct any alleged
violation may be extended by the City if the necessary action to collect the alleged violation is of
such a nature or character as to require more than thirty (30) Days within which to perform
provided Grantee commences corrective action within fifteen (15) Days and thereafter uses
reasonable diligence, as determined by the City, to correct the violation.
10.10 Grantee’s Right to Pay Prior to Security Fund Draw. Grantee shall have the
opportunity to make prompt payment of any assessed liquidated damages and if Grantee fails to
promptly remit payment to the City, the City may resort to a draw from the security fund in
accordance with the terms of this Franchise.
10.11 Failure to so Replenish Security Fund. If any security fund is not so replaced,
City may draw on said security fund for the whole amount thereof and hold the proceeds,
without interest, and use the proceeds to pay costs incurred by City in performing and paying for
any or all of the obligations, duties and responsibilities of Grantee under this Franchise that are
not performed or paid for by Grantee pursuant hereto, including attorneys’ fees incurred by the
City in so performing and paying. The failure to so replace any security fund may also, at the
option of City, be deemed a default by Grantee under this Franchise. The drawing on the
security fund by City and use of the money so obtained for payment or performance of the
obligations, duties and responsibilities of Grantee which are in default, shall not be a waiver or
release of such default.
10.12 Collection of Funds Not Exclusive Remedy. The collection by City of any
damages or monies from the security fund shall not affect any other right or remedy available to
City, nor shall any act, or failure to act, by City pursuant to the security fund, be deemed a
waiver of any right of City pursuant to this Franchise or otherwise. Notwithstanding this section,
however, should the City elect to impose liquidated damages, that remedy shall remain the City’s
exclusive remedy up to Twenty-five Thousand and No/100 Dollars set forth in Section 10.6.
SECTION 11
DEFAULT
11.1 Basis for Default. City shall give written notice of default to Grantee if City, in
its sole discretion, determines that Grantee has:
(a) Violated any material provision of this Franchise or the acceptance hereto
or any rule, order, regulation or determination of the City, state or federal government,
not in conflict with this Franchise; or
(b) Attempted to evade any material provision of this Franchise or the
acceptance hereof; or
(c) Practiced any fraud or deceit upon City or Subscribers resulting in
material harm; or
(d) Made a material misrepresentation of fact in the application for or
negotiation of this Franchise.
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11.2 Default Procedure. If Grantee fails to cure such default within thirty (30) Days
after the giving of such notice (or if such default is of such a character as to require more than
thirty (30) Days within which to cure the same, and Grantee fails to commence to cure the same
within said thirty (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 this 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:
(a) City shall provide Grantee with a written notice of the reason or cause for
proposed termination and shall allow Grantee a minimum of thirty (30) Days subsequent
to receipt of the notice in which to correct the default.
(b) Grantee shall be provided with an opportunity to be heard at a public
hearing prior to any decision to terminate this Franchise.
(c) If, after notice is given and an opportunity to cure, at 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 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 thirty (30) Days provided no opportunity for compliance
need be granted for fraud or misrepresentation.
11.3 Mediation. If the Grantee and City are unable to resolve a dispute through
informal negotiations during the period of thirty (30) Days following the submission of the claim
giving rise to the dispute by one (1) party to the other, then unless that claim has been waived as
provided in the Franchise, such claim may be subject to mediation if jointly agreed upon by both
parties. Unless the Grantee and City mutually agree otherwise, such mediation shall be in
accordance with the rules of the American Arbitration Association currently in effect at the time
of the mediation. A party seeking mediation shall file a request for mediation with the other
party to the Franchise and with the American Arbitration Association. The request may be made
simultaneously with the filing of a complaint, but, in such event, mediation shall proceed in
advance of legal proceedings only if the other party agrees to participate in mediation. Mutually
agreed upon mediation shall stay other enforcement remedies of the parties for a period of ninety
(90) Days from the date of filing, unless stayed for a longer period by agreement of the Grantee
and City. The Grantee and City shall each pay one-half of the mediator’s fee and any filing fees.
The mediation shall be held in the City unless another location is mutually agreed upon.
Agreements reached in mediation shall be enforceable as a settlement agreement in any court
having jurisdiction thereof. Nothing herein shall serve to modify or on any way delay the
franchise enforcement process set forth in Section 10 of this Franchise.
11.4 Failure to Enforce. Grantee shall not be relieved of any of its obligations to
comply promptly with any provision of the Franchise by reason of any failure of the City to
enforce prompt compliance, and City’s failure to enforce shall not constitute a waiver of rights or
acquiescence in Grantee’s conduct.
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11.5 Compliance with the Laws.
(a) If any federal or state law or regulation shall require or permit City or
Grantee to perform any service or act or shall prohibit City or Grantee from performing
any service or act which may be in conflict with the terms of this Franchise, then as soon
as possible following knowledge thereof, either party shall notify the other of the point in
conflict believed to exist between such law or regulation. Grantee and City shall conform
to state laws and rules regarding cable communications not later than one (1) year after
they become effective, unless otherwise stated, and shall conform to federal laws and
regulations regarding cable as they become effective.
(b) If any term, condition or provision of this Franchise or the application
thereof to any Person or circumstance shall, to any extent, be held to be invalid or
unenforceable, the remainder hereof and the application of such term, condition or
provision to Persons or circumstances other than those as to whom it shall be held invalid
or unenforceable shall not be affected thereby, and this Franchise and all the terms,
provisions and conditions hereof shall, in all other respects, continue to be effective and
complied with provided the loss of the invalid or unenforceable clause does not
substantially alter the agreement between the parties. In the event such law, rule or
regulation is subsequently repealed, rescinded, amended, or otherwise changed so that the
provision which had been held invalid or modified is no longer in conflict with the law,
rules, and regulations then in effect, said provision shall thereupon return to full force and
effect and shall thereafter be binding on Grantee and City.
SECTION 12
FORECLOSURE AND RECEIVERSHIP
12.1 Foreclosure. Upon the foreclosure or other judicial sale of the Cable System,
Grantee shall notify the City of such fact and such notification shall be treated as a notification
that a change in control of Grantee has taken place, and the provisions of this Franchise
governing the consent to transfer or change in ownership shall apply without regard to how such
transfer or change in ownership occurred.
12.2 Receivership. The City shall have the right to cancel this Franchise subject to
any applicable provisions of state law, including the Bankruptcy Act, one hundred twenty (120)
Days after the appointment of a receiver or trustee to take over and conduct the business of
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 one
hundred twenty (120) Days, or unless:
(a) Within one hundred twenty (120) Days after his election or appointment,
such receiver or trustee shall have fully complied with all the provisions of this Franchise
and remedied all defaults thereunder; and
(b) Such receiver or trustee, within said one hundred twenty (120) Days, shall
have executed an agreement, duly approved by the Court having jurisdiction in the
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premises, whereby such receiver or trustee assumes and agrees to be bound by each and
every provision of this Franchise.
SECTION 13
REPORTING REQUIREMENTS
13.1 Quarterly Reports. Within forty-five (45) calendar days after the end of each
calendar quarter, Grantee shall submit to the City along with its Franchise Fee payment a report
showing the basis for computation of the Franchise Fee and PEG Fee payments, signed by an
authorized representative of Grantee, in form and substance substantially equivalent to Exhibit C
attached hereto. This report shall separately indicate Grantee’s Gross Revenues within the City
including, but not limited to such items as listed in the definition of “Gross Revenues” at Section
1.23 of this Franchise.
13.2 Monitoring and Compliance Reports. Upon request, but no more than once a
year, Grantee shall provide a written report of any and all FCC technical performance tests for
the residential network required in FCC Rules and Regulations as now or hereinafter constituted.
In addition, Grantee shall provide City with copies of reports of the semi-annual test and
compliance procedures established by this Franchise no later than thirty (30) Days after the
completion of each series of tests.
13.3 Other Reports. Upon request of the City and in no event later than thirty (30)
Days from the date of receipt of such request, Grantee shall, free of charge, prepare and furnish
to the City, at the times and in the form prescribed, such additional reports with respect to its
operation, affairs, transactions, or property, as may be reasonably necessary to ensure
compliance with the terms of this Franchise. Grantee and City may in good faith agree upon
taking into consideration Grantee’s need for the continuing confidentiality as prescribed herein.
Neither City nor Grantee shall unreasonabl y demand or withhold information requested pursuant
with the terms of this Franchise.
13.4 Confidential and Trade Secret Information. Grantee acknowledges that
information submitted by Grantee to the City may be subject to the Minnesota Government
Data Practices Act (“MGDPA”) pursuant to Minn. Stat. Ch. 13. The City shall follow all
Applicable Laws and procedures for protecting any confidential and trade secret information
of Grantee that may be provided to City. Grantee acknowledges that the City shall at all times
comply with the MGDPA related to the release of information and nothing herein shall be
read to modify the City’s obligations under the MGDPA.
13.5 Communications with Regulatory Agencies.
(a) Upon written request, Grantee shall submit to City copies of any pleading,
applications, notifications, communications, and documents of any kind, submitted by
Grantee or its Affiliates to any federal, state, or local courts, regulatory agencies and
other government bodies if such documents directly relate to the operations of Grantee’s
Cable System within the Franchise Area. Grantee shall submit such documents to City
no later than thirty (30) Days after receipt of City’s request. Grantee shall not claim
confidential, privileged, or proprietary rights to such documents unless under federal,
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state, or local law such documents have been determined to be confidential by a court of
competent jurisdiction, or a federal or state agency. With respect to all other reports,
documents and notifications provided to any federal, state, or local regulatory agency as a
routine matter in the due course of operating Grantee’s Cable System within the
Franchise Area, Grantee shall make such documents available to City upon City’s written
request.
(b) In addition, Grantee and its Affiliates shall within ten (10) Days of any
communication to or from any judicial or regulatory agency regarding any alleged or
actual violation of this Franchise, City regulation or other requirement relating to the
System, use its best efforts to provide the City a copy of the communication, whether
specifically requested by the City to do so or not.
SECTION 14
CUSTOMER SERVICE POLICIES
14.1 Response to Customers and Cooperation with City. Grantee shall promptly
respond to all requests for service, repair, installation, and information from Subscribers.
Grantee acknowledges the City’s interest in the prompt resolution of all cable complaints and
shall work in close cooperation with the City to resolve complaints. Grantee will continue to
maintain an “escalated complaint process” to address unresolved complaints from Subscribers.
A team of specifically identified employees of Grantee shall be available to the City and the
Commission via email and telephone for reporting issues. These specifically identified
employees of Grantee will have the ability to take actions to resolve Subscriber complaints
relating to billing, property or service restoration, technical appointments, or any other
Subscriber matters when necessary. Grantee will follow-up with the City or the Commission in
writing by email (and by phone when necessary) with a summary of the results of the
complaint(s).
14.2 Definition of “Complaint.” For the purposes of Section 14.1 and 14.4 only,
the word “complaint” shall mean any communication to the Commission or the City by a
Subscriber, and thereafter reported to the Grantee, expressing dissatisfaction with any service,
performance, or lack thereof, by Grantee under the obligations of this Franchise.
14.3 Customer Service Agreement and Written Information. Grantee shall provide
to Subscribers a comprehensive service agreement and information in writing for use in
establishing Subscriber service. Written information shall, at a minimum, contain the following
information:
(a) Services to be provided and rates for such services.
(b) Billing procedures.
(c) Service termination procedure.
(d) Change in service notifications.
(e) Liability specifications.
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(f) Converter/Subscriber terminal equipment policy.
(g) Breach of Franchise specification.
(h) How complaints are handled including Grantee’s procedure for
investigation and resolution of Subscriber complaints.
(i) The name, address, and phone number of the Person identified by the City
as responsible for handling cable questions and complaints for the City. This information
shall be prominently displayed, and Grantee shall submit the information to the City for
review and approval as to its content and placement on Subscriber billing statements. A
copy of the written information shall be provided to each Subscriber at the time of initial
connection and any subsequent reconnection.
14.4 Reporting Complaints.
(a) The requirements of this Section 14.4 shall be subject to federal law
regarding Subscriber privacy. Grantee shall maintain all Subscriber data available for
City inspection. Subscriber data shall include the date, name, address, telephone number
of Subscriber complaints as well as the subject of the complaint, date and type of action
taken to resolve the complaint, any additional action taken by Grantee or the Subscriber.
The data shall be maintained in a way that allows for simplified access of the data by the
City.
(b) Subject to federal law and upon reasonable request by the City, Grantee
shall, within a reasonable amount of time, provide City with such Subscriber data for its
review.
14.5 Customer Service Standards.
(a) The City hereby adopts the customer service standards set forth in Part 76,
§76.309 of the FCC’s rules and regulations, as amended.
(b) Grantee shall, upon request, which request shall include the reason for the
request (such as complaints received or other reasonable evidence of concern), provide
City with information which shall describe in detail Grantee’s compliance with each and
every term and provision of this Section 14.5.
(c) Grantee shall comply in all respects with the customer service
requirements established by the FCC and those set forth herein. To the extent that this
Franchise imposes requirements greater than those established by the FCC, Grantee
reserves whatever rights it may have to recover the costs associated with compliance in
any manner consistent with Applicable Law.
14.6 Local Office. Grantee shall maintain a convenient local customer service and bill
payment location for matters such as receiving Subscriber payments, handling billing questions,
equipment replacement and customer service information.
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14.7 Cable System office hours and telephone availability. Grantee shall comply
with the standards and requirements for customer service set forth in Section 14.5 – 14.21 during
the term of this Franchise.
(a) Grantee will maintain a local, toll-free or collect call telephone access line
which will be available to its Subscribers twenty-four (24) hours a Day, seven (7) Days a
week.
(i) Trained Grantee representatives will be available to respond to
customer telephone inquiries during Normal Business Hours.
(ii) After Normal Business Hours, the access line may be answered by
a service or an automated response system, including an answering machine.
Inquiries received after Normal Business Hours must be responded to by a trained
Grantee representative on the next business Day.
(b) Under Normal Operating Conditions, telephone answer time by a
customer representative, including wait time, shall not exceed thirty (30) seconds when
the connection is made. If the call needs to be transferred, transfer time shall not exceed
thirty (30) seconds. These standards shall be met no less than ninety percent (90%) of the
time under Normal Operating Conditions, measured on a quarterly basis.
(c) Grantee shall not be required to acquire equipment or perform surveys to
measure compliance with the telephone answering standards above unless an historical
record of complaints indicates a clear failure to comply.
(d) Under Normal Operating Conditions, the customer will receive a busy
signal less than three percent (3%) of the time.
(e) Customer service center and bill payment locations will be open at least
during Normal Business Hours and will be conveniently located.
(f) The Grantee shall utilize such equipment and software and keep such
records as are necessary or required to enable the City and Commission to determine
whether the Grantee is complying with all telephone answering standards required by
applicable customer service regulations and laws, as amended from time to time. The
Grantee shall provide the Commission with a quarterly report documenting Grantee’s
compliance with this Section 14.7 as is the current practice
14.8 Installations, Outages and Service Calls. Under Normal Operating Conditions,
each of the following standards will be met no less than ninety-five percent (95%) of the time
measured on a quarterly basis:
(a) Standard Installations will be performed within seven (7) business days
after an order has been placed. “Standard” Installations are those that are located up to
one hundred twenty-five (125) feet from the existing distribution system as more
specifically set forth in Section 6.6(c).
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(b) Excluding conditions beyond the control of Grantee, Grantee will begin
working on “Service Interruptions” promptly and in no event later than twenty-four (24)
hours after the interruption becomes known. Grantee must begin actions to correct other
Service problems the next business Day after notification of the Service problem.
(c) The “appointment window” alternatives for Installations, Service calls,
and other Installation activities will be either a specific time or, at maximum, a four (4)
hour time block during Normal Business Hours. (Grantee may schedule Service calls and
other Installation activities outside of Normal Business Hours for the express
convenience of the customer.)
(d) Grantee may not cancel an appointment with a customer after the close of
business on the business Day prior to the scheduled appointment.
(e) If Grantee’s representative is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled, the customer will be
contacted. The appointment will be rescheduled, as necessary, at a time which is
convenient for the customer.
14.9 Communications between Grantee and Subscribers.
(a) Refunds. Refund checks will be issued promptly, but no later than either:
(i) The customer’s next billing cycle following resolution of the
request or thirty (30) Days, whichever is earlier, or
(ii) The return of the equipment supplied by Grantee if Cable Service
is terminated.
(b) Credits. Credits for Cable Service will be issued no later than the
customer’s next billing cycle following the determination that a credit is warranted.
14.10 Billing:
(a) Consistent with 47 C.F.R. § 76.1619, bills will be clear, concise and
understandable. Bills must be fully itemized, with itemizations including, but not limited
to, Basic Cable Service and premium Cable Service charges and equipment charges.
Bills will also clearly delineate all activity during the billing period, including optional
charges, rebates and credits.
(b) In case of a billing dispute, Grantee must respond to a written complaint
from a Subscriber within thirty (30) Days.
14.11 Subscriber Information.
(a) Grantee will provide written information on each of the following areas at
the time of Installation of Service, at least annually to all Subscribers, and at any time
upon request:
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(i) Products and Services offered;
(ii) Prices and options for programming services and conditions of
subscription to programming and other services;
(iii) Installation and Service maintenance policies;
(iv) Instructions on how to use the Cable Service;
(v) Channel positions of programming carried on the System; and
(vi) Billing and complaint procedures, including the address and
telephone number of the City’s cable office.
(b) Subscribers shall be advised of the procedures for resolution of complaints
about the quality of the television signal delivered by Grantee, including the address of
the responsible officer of the City. Subscribers will be notified of any changes in rates,
programming services or Channel positions as soon as possible in writing. Notice must
be given to Subscribers a minimum of thirty (30) Days in advance of such changes if the
change is within the control of Grantee. In addition, Grantee shall notify Subscribers
thirty (30) Days in advance of any significant changes in the information required by this
Section 14.11.
14.12 Notice or Rate Programming Change. In addition to the requirement of this
Section 14.12 regarding advance notification to Subscribers of any changes in rates,
programming services or Channel positions, Grantee shall give thirty (30) Days written notice to
both Subscribers and the City before implementing any rate or Service change. Such notice shall
state the precise amount of any rate change and briefly explain in readily understandable fashion
the cause of the rate change (e.g., inflation, change in external costs or the addition/deletion of
Channels). When the change involves the addition or deletion of Channels, each Channel added
or deleted must be separately identified. For purposes of the carriage of digital broadcast signals,
Grantee need only identify for Subscribers, the television signal added and not whether that
signal may be multiplexed during certain dayparts.
14.13 Subscriber Contracts. Grantee shall, upon written request, provide the City with
any standard form residential Subscriber contract utilized by Grantee. If no such written contract
exists, Grantee shall file with the City a document completely and concisely stating the length
and terms of the Subscriber contract offered to customers. The length and terms of any standard
form Subscriber contract(s) shall be available for public inspection during Normal Business
Hours. A list of Grantee’s current Subscriber rates and charges for Cable Service shall be
maintained on file with City and shall be available for public inspection.
14.14 Refund Policy. If a Subscriber’s Cable Service is interrupted or discontinued,
without cause, for twenty-four (24) or more consecutive hours, Grantee shall, upon request by
the Subscriber, credit such Subscriber pro rata for such interruption. For this purpose, every
month will be assumed to have thirty (30) Days.
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14.15 Late Fees. Grantee shall comply with all Applicable Laws with respect to any
assessment, charge, cost, fee or sum, however characterized, that Grantee imposes upon a
Subscriber for late payment of a bill. The City reserves the right to enforce Grantee’s
compliance with all Applicable Laws to the maximum extent legally permissible.
14.16 Disputes. All Subscribers and members of the general public may direct
complaints, regarding Grantee’s Service or performance to the chief administrative officer of the
City or the chief administrative officer’s designee, which may be a board or a commission of the
City.
14.17 Subscriber Bills. Subscriber bills shall be designed in such a way as to present
the information contained therein clearly and comprehensibly to Subscribers, and in a way that
(A) is not misleading and (B) does not omit material information. Grantee may, in its sole
discretion, consolidate costs on Subscriber bills as may otherwise be permitted by Section 622(c)
of the Cable Act (47 U.S.C. §542(c)).
14.18 Failure to Resolve Complaints. Grantee shall resolve a complaint within thirty
(30) Days in a manner deemed reasonable by the City under the terms of this Franchise.
14.19 Notification of Complaint Procedure. Grantee shall have printed clearly and
prominently on each Subscriber bill and in the customer service agreement provided for in
Section 14.3, the twenty-four (24) hour Grantee phone number for Subscriber complaints.
Additionally, Grantee shall provide information to customers concerning the procedures to
follow when they are unsatisfied with measures taken by Grantee to remedy their complaint.
This information will include the phone number of the City office or Person designated to handle
complaints. Additionally, Grantee shall state that complaints should be made to Grantee prior to
contacting the City.
14.20 Subscriber Privacy.
(a) To the extent required by Minn. Stat. §238.084 Subd. 1(s) Grantee shall
comply with the following:
(i) No signals including signals of a Class IV Channel may be
transmitted from a Subscriber terminal for purposes of monitoring individual
viewing patterns or practices without the express written permission of the
Subscriber. The request for permission must be contained in a separate document
with a prominent statement that the Subscriber is authorizing the permission in
full knowledge of its provisions. Such written permission shall be for a limited
period of time not to exceed one (1) year which may be renewed at the option of
the Subscriber. No penalty shall be invoked for a Subscriber’s failure to provide
or renew such permission. The permission shall be revocable at any time by the
Subscriber without penalty of any kind whatsoever.
(ii) No information or data obtained by monitoring transmission of a
signal from a Subscriber terminal, including but not limited to lists of the names
and addresses of Subscribers or any lists that identify the viewing habits of
Subscribers shall be sold or otherwise made available to any party other than to
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Grantee or its agents for Grantee’s business use, and also to the Subscriber subject
of that information, unless Grantee has received specific written permission from
the Subscriber to make such data available. The request for permission must be
contained in a separate document with a prominent statement that the Subscriber
is authorizing the permission in full knowledge of its provisions. Such written
permission shall be for a limited period of time not to exceed one (1) year which
may be renewed at the option of the Subscriber. No penalty shall be invoked for a
Subscriber’s failure to provide or renew such permission. The permission shall be
revocable at any time by the Subscriber without penalty of any kind whatsoever.
(iii) Written permission from the Subscriber shall not be required for
the conducting of system wide or individually addressed electronic sweeps for the
purpose of verifying System integrity or monitoring for the purpose of billing.
Confidentiality of such information shall be subject to the provision set forth in
subparagraph (ii) of this section.
14.21 Grantee Identification. Grantee shall provide all customer service technicians
and all other Grantee employees entering private property with appropriate picture identification
so that Grantee employees may be easily identified by the property owners and Subscribers.
SECTION 15
SUBSCRIBER PRACTICES
15.1 Subscriber Rates. 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, Grantee may disconnect the Subscriber’s service outlet, provided,
however, that such disconnection shall not be affected until after the later of: (i) forty-five (45)
Days after the original due date of said delinquent fee or charge; or (ii) ten (10) 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), Grantee shall not disconnect. After disconnection, upon
payment in full of the delinquent fee or charge and the payment of a reconnection charge,
Grantee shall promptly reinstate the Subscriber’s Cable Service.
15.2 Refunds to Subscribers shall be made or determined in the following
manner:
(a) If Grantee fails, upon request by a Subscriber, to provide any service then
being offered, Grantee shall promptly refund all deposits or advance charges paid for the
service in question by said Subscriber. This provision does not alter Grantee’s
responsibility to Subscribers under any separate contractual agreement or relieve Grantee
of any other liability.
(b) If any Subscriber terminates any monthly service because of failure of
Grantee to render the service in accordance with this Franchise, 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 Grantee of liability established in
other provisions of this Franchise.
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(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 Grantee.
SECTION 16
COMPENSATION AND FINANCIAL PROVISIONS.
16.1 Franchise Fees.
(a) During the term of the Franchise, Grantee shall pay to the City a Franchise
Fee of five percent (5%) of Gross Revenues. If any such law, regulation, or valid rule
alters the five percent (5%) Franchise Fee ceiling enacted by the Cable Act, then the City
shall have the authority to (but shall not be required to) increase the Franchise Fee,
accordingly, provided such increase is for purposes not inconsistent with Applicable
Law.
(b) In the event Grantee bundles or combines Cable Services (which are
subject to the Franchise Fee) with non-Cable Services (which are not subject to the
Franchise Fee) so that Subscribers pay a single fee for more than one (1) class of service
resulting in a discount on Cable Services, Grantee agrees that for the purpose of
calculation of the Franchise Fee, it shall allocate to Cable Service 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.
(c) Franchise Fees shall be paid quarterly not later than forty-five (45) Days
following the end of a given quarter. In accordance with Section 16 of this Franchise,
Grantee shall file with the City a Franchise Fee payment worksheet, attached as Exhibit
C, signed by an authorized representative of Grantee, which identifies Gross Revenues
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 City may have for further or additional sums payable under the provisions of
this section.
(d) Neither current nor previously paid Franchise Fees shall be subtracted
from the Gross Revenue amount upon which Franchise Fees are calculated and due for
any period, unless otherwise required by Applicable Law.
(e) Any Franchise Fees owing pursuant to this Franchise which remain unpaid
more than forty-five (45) Days after the dates specified herein shall be delinquent and
shall thereafter accrue interest at twelve percent (12%) per annum or two percent (2%)
above prime lending rate as quoted by the Wall Street Journal, whichever is greater.
16.2 Auditing and Financial Records. Throughout the term of this Franchise, the
Grantee agrees that the City, upon reasonable prior written notice of twenty (20) Days to the
Grantee, may review such of the Grantee’s books and records regarding the operation of the
Cable System and the provision of Cable Service in the Franchise Area which are reasonably
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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
thirty (30) Days 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 City shall be retained by the Grantee for a minimum period of six (6) years,
pursuant to Minn. Stat. § 541.05. The Grantee shall not deny the City access to any of the
Grantee’s records on the basis that the Grantee’s records are under the control of any parent
corporation, Affiliated Entity or a third party. The City may request in writing copies of any
such records or books that are reasonably necessary, and the Grantee shall provide such copies
within thirty (30) Days of the receipt of such request. One (1) copy of all reports and records
required under this or any other section shall be furnished to the City 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 (10) Days of receipt of
such request, that the City inspect them at the Grantee’s local offices or at one of Grantee’s
offices more convenient to City 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 City upon written
request as set forth above, and if the City 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.
16.3 Review of Record Keeping Methodology. Grantee agrees to meet with
representative of the City upon request to review its methodology of record-keeping, financial
reporting, computing Franchise Fee obligations, and other procedures the understanding of
which the City deems necessary for understanding the meaning of reports and records.
16.4 Audit of Records. The City or its authorized agent may at any time and at the
City’s own expense conduct an independent audit of the revenues of Grantee in order to verify
the accuracy of Franchise Fees or PEG Fees paid to the City under this Franchise. Grantee and
each parent company of Grantee shall cooperate fully in the conduct of such audit. In the event
it is determined through such audit that Grantee has underpaid Franchise Fees in an amount of
five percent (5%) or more than was due the City, then Grantee shall reimburse the City for the
entire cost of the audit within thirty (30) days of the completion and acceptance of the audit by
the City.
16.5 Records to be reviewed. The City 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.
16.6 Indemnification by Grantee. Grantee shall, at its sole expense, fully indemnify,
defend and hold harmless the City, 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 City or its employees;
for actual or alleged injury to persons 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,
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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 Person, 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 Person, 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 City, 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 City, its
officers, or its employees.
16.7 Grantee Insurance. Upon the Effective Date, 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, City 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
Three Million and No/100 Dollars ($3,000,000.00). The liability policy shall include:
(a) The policy shall provide coverage on an “occurrence” basis.
(b) The policy shall cover personal injury as well as bodily injury.
(c) 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.
(d) Broad form property damage liability shall be afforded.
(e) City shall be named as an additional insured on the policy.
(f) 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 City will be called upon to
contribute to a loss under this coverage.
(g) Standard form of cross-liability shall be afforded.
(h) An endorsement stating that the policy shall not be canceled without thirty
(30) Days’ notice of such cancellation given to City
(i) City reserves the right to adjust the insurance limit coverage requirements
of this Franchise no more than once every three (3) years. Any such adjustment by City
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will be no greater than the increase in the State of Minnesota Consumer Price Index (all
consumers) for such three (3) year period.
(j) Upon the Effective Date, Grantee shall submit to City 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 City and shall provide satisfactory evidence that Grantee has complied with
all insurance requirements. Renewal certificates shall be provided to City prior to the
expiration date of any of the required policies. City 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, City’s right to enforce the terms of Grantee’s
obligations hereunder. City 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.
SECTION 17
MISCELLANEOUS PROVISIONS.
17.1 Posting and Publication. The Summary of Ordinance for Publication
(“Summary”) attached hereto as Exhibit D shall be published at least once in the official
newspaper of the City. Grantee shall assume the cost of posting and publication of the Summary
as such posting and publication is required by law and such is payable upon Grantee’s filing of
acceptance of this Franchise.
17.2 Guarantee of Performance. Grantee agrees that it enters into this Franchise
voluntarily in order to secure and in consideration of the grant from the City of a ten (10) year
Franchise. Performance pursuant to the terms and conditions of this Franchise is guaranteed by
Grantee.
17.3 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.
17.4 Consent. Wherever the consent or approval of either Grantee or the City is
specifically required in this agreement, such consent or approval shall not be unreasonably
withheld.
17.5 Prior Franchise Terminated. The cable television franchise as originally
granted by Ordinance No. 2012-1051 is hereby terminated.
17.6 Franchise Acceptance. No later than forty-five (45) Days following City
Council approval of this Franchise, Grantee shall accept and return to the City an executed
Franchise along with performance bonds, security funds, and evidence of insurance, all as
provided in this Franchise. In the event Grantee fails to accept this Franchise, or fails to provide
the required documents, this Franchise shall be null and void. The Grantee agrees that despite
the fact that its written acceptance may occur after the Effective Date, the obligations of this
Franchise shall become effective on February 1, 2023.
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17.7 Amendment of Franchise. Grantee and City may agree, from time to time, to
amend this Franchise. Such written amendments may be made subsequent to a review session
pursuant to Section 2.6 or at any other time if City and Grantee agree that such an amendment
will be in the public interest or if such an amendment is required due to changes in Applicable
Laws; provided, however, nothing herein shall restrict City’s exercise of its police powers.
17.8 Notice. All notices, reports, or demands required to be given in writing under this
Franchise shall be deemed to be given when delivered personally to any officer of the Grantee or
the City’s administrator of this Franchise during Normal Business Hours or forty-eight (48)
hours after it is deposited in the United States mail in a sealed envelope, with registered or
certified mail postage prepaid thereon, addressed to the party to whom notice is being given, as
follows:
To the City: City Manager, City of Hopkins
1010 1st Street South
Hopkins, MN 55343
To the Grantee: Comcast Regional Vice President of Operations
10 River Park Place
St. Paul, MN 55107
Such addresses may be changed by either party upon notice to the other party given as
provided in this section.
Recognizing the widespread usage and acceptance of electronic forms of communication,
emails and faxes 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
Person of record as specified above.
17.9 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.
17.10 Work of Contractors and Subcontractors. Work by contractors and
subcontractors is 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 City Code
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 Persons performing work on Grantee’s behalf are familiar with the
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requirements of this Franchise, the City Code and other Applicable Laws governing the work
performed by them.
17.11 Governing Law. This Franchise is made pursuant to Minnesota Statutes Chapter
238 and the City Code and is intended to comply with all requirements set forth therein. 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.
17.12 Nonenforcement by City. 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 City or to
enforce prompt compliance.
17.13 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.
17.14 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.
17.15 No Waiver. All rights and remedies given to the City by this Franchise or
retained by the City herein shall be in addition to and cumulative with any and all other rights
and remedies, existing or implied, now or hereafter available to the City, at law or in equity, and
such rights and remedies shall not be exclusive, but each and every right and remedy specifically
given by this Franchise or otherwise existing or given may be exercised from time to time and as
often and in such order as may be deemed expedient by the City and the exercise of one or more
rights or remedies shall not be deemed a waiver of the right to exercise at the same time or
thereafter any other right or remedy.
17.16 Grantee Acknowledgment of Validity of Franchise. Grantee acknowledges
that it has had an opportunity to review the terms and conditions of this Franchise and that under
current law Grantee believes that said terms and conditions are not unreasonable or arbitrary, and
that Grantee believes the City has the power to make the terms and conditions contained in this
Franchise.
17.17 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 Cable Service.
However, Grantee’s obligations to the City (other than the obligation to provide service to
Subscribers) shall survive according to their terms.
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17.18 Competitive Equity
(a) The City reserves the right to grant additional franchises or similar
authorizations to provide Cable Services or Video Programming services via Cable
Systems or other Wireline MVPDs. The City intends to treat Wireline MVPDs in a
nondiscriminatory manner to the extent permissible under Applicable Law. If, following
the Effective Date of this Franchise, the City grants such an additional franchise or
authorization to a Wireline MVPD and Grantee believes the City has done so on terms
materially more favorable than the obligations under this Franchise, then the provisions
of this Section 17.18 will apply.
(b) As part of this Franchise, the City and Grantee have mutually agreed upon
the following terms as a condition of granting the Franchise, which terms may place the
Grantee at a significant competitive disadvantage if not required of a Wireline MVPD:
the obligation to pay to the City a Franchise Fee, Gross Revenues as provided for and
defined in this Franchise, and the obligation to comply with the requirements in this
Franchise regarding PEG funding, PEG Channels, security instruments, audits, remedies,
and customer service obligations (hereinafter "Material Obligations"). The City and
Grantee further agree that this provision shall not require a word for word identical
franchise or authorization for competitive equity so long as the regulatory and financial
burdens on each entity are materially equivalent.
(c) Within one (1) year of the adoption of a Wireline MVPD franchise or
similar authorization, Grantee must notify the City in writing of the Material Obligations
in this Franchise that Grantee believes exceed the Material Obligations of the wireline
competitor's franchise or similar authorization. The City and Grantee agree that they will
use best efforts in good faith to negotiate Grantee's proposed Franchise modifications,
and that such negotiation will proceed and conclude within a ninety (90) Day time period,
unless that time period is reduced or extended by mutual agreement of the parties. If the
City and Grantee reach agreement on the Franchise modifications pursuant to such
negotiations, then the City shall amend this Franchise to include the modifications. If the
City and Grantee fail to reach agreement in such negotiations, Grantee may, at its option,
elect to replace this Franchise by opting into the franchise or other similar lawful
authorization that the City grants to another Wireline MVPD (with the understanding that
Grantee may use its current system design and technology infrastructure to meet any
requirements of the new franchise), so as to ensure that the regulatory and financial
burdens on each entity are equivalent. If Grantee so elects and following the ninety (90)
Day negotiation time period set forth in this paragraph 17.18 (c), the City shall
immediately commence proceedings to replace this Franchise with the franchise issued to
the other Wireline MVPD. Notwithstanding anything contained in this section to the
contrary, the City shall not be obligated to amend or replace this Franchise unless the new
entrant makes Cable Services or similar downstream Video programming service
available for purchase by Subscribers or customers under its franchise agreement with or
similar authorization from the City.
(d) In the event the City disputes that the Material Obligations are different,
Grantee may bring an action in federal or state court for a determination as to whether the
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Material Obligations are different and as to what franchise amendments would be
necessary to remedy the disparity. Alternatively, Grantee may notify the City that it
elects to immediately commence the renewal process under 47 U.S.C. § 546 and to have
the remaining term of this Franchise shortened to not more than thirty (30) months.
(e) Nothing in this Section 17.18 is intended to alter the rights or obligations
of either party under Applicable Law, and it shall only apply to the extent permitted
under Applicable Law and FCC orders. In no event will the City be required to refund or
to offset against future amounts due the value of benefits already received.
(f) To the extent the City has legal authority to mandate a Cable Service
franchise or similar authorization to a wireless provider of Cable Service, the competitive
equity rights provided by this section shall apply with respect to Material Obligations
imposed in such franchise or other similar agreement. In the event of a dispute regarding
the City's legal authority, Grantee shall have the burden to demonstrate that such
authority exists or does not exist.
17.19 FCC Preemption.
(a) At any time after this Franchise is approved by the City Council, the
Grantee may, if Grantee is legally permitted by Applicable Law, provide the City with a
written list of “in-kind cable-related contributions” (as that term is defined by the FCC in
the Section 621 Order) that the Franchise requires Grantee to provide (including but not
limited to the Complimentary Service requirements in Section 6.8) and the incremental
cost(s) associated with the provision of the in-kind cable-related contributions. Within
one hundred and twenty (120) days of receiving the aforementioned list, the City will
notify the Grantee whether, with respect to each identified in-kind cable-related
contribution, the Grantee is relieved, or temporarily relieved, of its obligations or is
required to comply, subject either to the Grantee taking an offset to the Franchise Fee
payments payable under Section 16.1 as may be permitted by the Section 621 Order or to
the Grantee and the City agreeing to a separately negotiated charge payable by the City to
the Grantee.
(b) In the event the Section 621 Order is stayed or overturned in whole or in
part by action of the FCC, the City and the Grantee will meet promptly to discuss what
impact such action has on the provision of the in-kind cable-related contributions to
which this section applies. It is the intent of the parties that the City shall be treated by
the Grantee in a reasonably comparable manner as other jurisdictions within the Twin
Cities Region with respect to any offsets or charges imposed by Grantee for the provision
of Complimentary Service. Nothing herein waives the City’s right to enforce Grantee’s
compliance with all lawful obligations contained in this Franchise.
17.20 Treatment of Negotiated Provisions. For the term of this Franchise any costs
incurred by Grantee pursuant to Sections 7.2(c), 7.5(c), 7.8, 7.10, 7.11, 7.12, 7.13, 7.16(b),
7.17, 7.18, 7.19, 13.1, 13.2, and 13.3, shall be treated by Grantee as Grantee’s business
expense and not a Franchise Fee under Sections 1.23 and 16.1 of this Franchise or as a PEG
Fee under Section 7.15 of this Franchise. Grantee reserves any rights it may have to recover
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from Subscribers, as a separate line item from the PEG Fee in Section 7.15 of this Franchise,
any PEG capital costs set forth in Section 7.2(a) and (c), 7.8, 7.10, 7.11, 7.12, 7.14 and 7.16 as
may be permitted by Applicable Law as of the Effective Date.
Passed and adopted this 20th day of June, 2023.
ATTEST CITY OF HOPKINS, MINNESOTA
By: By:
Its: City Clerk Its: Mayor
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ACCEPTED: This Franchise is accepted, and Comcast of Minnesota, Inc. agrees to be bound by
its terms and conditions.
COMCAST OF MINNESOTA, INC.
By:
Its:
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EXHIBIT A
COMPLIMENTARY SERVICE LOCATIONS
BUILDING ADDRESS CITY
Hopkins Center 33 14th Ave N Hopkins
Hopkins City Hall 1010 1st St S Apt Hall Hopkins
Eisenhower Elem School 1001 Highway 7 Apt A Hopkins
Alice Smith Elementary 801 Minnetonka Mills Rd Hopkins
Fire Dept, Hopkins 101 17th Ave S Hopkins
Hopkins Center For the Arts 1111 Mainstreet Hopkins
Hopkins Garage 11100 Excelsior Blvd Hopkins
Hopkins Pavilion 11000 Excelsior Blvd Ste A Hopkins
Police Dept, Hopkins 1010 1st St S Apt Cops Hopkins
Public Housing, Hopkins 22 5th Ave S Ste Cmcl Hopkins
Hopkins Public School 1001 Highway 7 Hopkins
* For as long as the building remains publicly owned and operated. If the building is leased or operated by a
commercial tenant, Grantee’s voluntary courtesy service offer will expire.
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EXHIBIT B
EXISTING PEG TRANSPORT LOCATIONS
BUILDING STREET ADDRESS
Hopkins City Hall 1010 1st Street South
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EXHIBIT C
FRANCHISE FEE PAYMENT WORKSHEET
PEG Fee 2%
Nothing in this Franchise Fee Payment Worksheet shall serve to modify the definition of “Gross Revenues” set
forth in this Franchise.
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EXHIBIT D
SUMMARY OF ORDINANCE FOR PUBLICATION
AN ORDINANCE GRANTING A FRANCHISE TO COMCAST OF MINNESOTA, INC. TO
CONSTRUCT, OPERATE AND MAINTAIN A CABLE SYSTEM IN THE CITY OF HOPKINS,
MINNESOTA SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE
FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM AND THE PUBLIC
RIGHTS-OF-WAY; AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE
PROVISIONS HEREIN.
On June 20, 2023, the City of Hopkins, Minnesota (“City”) adopted an ordinance granting a Cable
Television Franchise to Comcast of Minnesota, Inc. (“Comcast”). The Franchise serves two (2) purposes.
First, it is intended to provide for and specify the means to attain the best possible cable service for the
public by providing requirements for cable with respect to technical standards, customer service obligations,
and related matters. Second, it grants a non-exclusive cable television franchise to Comcast, to operate,
construct and maintain a cable system within the City and contains specific requirements for Comcast to
do so.
The Franchise includes the following: 1) a Franchise Fee of 5% of Comcast’s annual gross revenues; 2) a
Franchise term of ten (10) years; 3) incorporation of the City Code regarding right-of-way protections; 4)
a list of schools and public buildings entitled to receive complimentary cable service; 5) dedicated channel
capacity for public, education and government (“PEG”) access programming; 6) a PEG Fee of 2% of
Comcast’s annual gross revenues to support local access programming as permitted under applicable law;
7) strong customer service standards regarding Comcast’s cable services; and 8) a performance bond and
letter of credit to enforce Comcast’s compliance with the Franchise.
It is hereby determined that publication of this title and summary will clearly inform the public of the intent
and effect of Ordinance No. 2023-1192. A copy of the entire ordinance shall be posted at the Hopkins City
Hall.
It is hereby directed that only the above title and summary of Ordinance No. 2023-1192 be published,
conforming to Minn. Stat. § 331A.01, with the following:
NOTICE
Persons interested in reviewing a complete copy of the Ordinance may do so at the Hopkins City Hall at
1010 1st Street South, Hopkins, MN 55343 during the hours of 8:00 a.m. and 4:30 p.m., Monday through
Friday.
Yes No
Mayor Hanlon x
Councilmember Balan x
Councilmember Beck x
Councilmember Garrido x
Councilmember Hunke x
Passed by the Hopkins City Council this 20th day of June, 2023.
ATTEST:
Patrick Hanlon, Mayor
Amy Domeier, City Clerk