2001-850City of Hopkins, Minnesota
and
WideOpenWest Minnesota, LLC
Cable Television
Franchise Agreement Ordinance
No. 2001-850
Prepared by:
Brian T. Grogan, Esq.
MOSS & BARNETT
A Professional Association
4800 Wells Fargo Center
90 South Seventh Street
Minneapolis, MN 55402-4129
Telephone: (612) 347-0340
Facsimile: (612) 339-6686
With the assistance of:
The Southwest Suburban
Cable Commission
384747/t
SECTION 1.
SECTION 2.
SECTION 3.
SECTION 4.
SECTION 5.
SECTION 6.
6.1
6.2
6.3
6.4
6.5
6.6.
6.7
6.8
6.9
SECTION 7.
7.1
7.2
7.3
7.4
7.5
SECTION 8.
8.1.
8.2
8.3
8.4
8.5
8.6
SECTION 9.
SECTION 10.
SECTION 11.
11.1
11.2
11.3
TABLE OF CONTENTS
GRANT OF FRANCHISE ........................................................................ 1
SHORT TITLE .......................................................................................... 1
DEFINITIONS ........................................................................................... 1
EFFECTIVE DATE AND TERM OF RENEWAL ................................ 2
WRITTEN NOTICE ................................................................................. 2
DESIGN PROVISIONS ............................................................................ 2
System Design ......................................................................................................... 2
Cable Nodes System Connect ................................................................................ 2
Service to the Schools and Government Buildings ............................................. 3
Parental Control Lock ........................................................................................... 3
Standby Power .......................................................................... .~ ............................ 3
Periodic Review Provisions ................................................................................... 3
Shared Use of Facilities ............ ; ............................................................................ 4
Verification of System Construction ................................................... · ................ 5
Franchising Cost Reimbursement ........................................................................ 5
PUBLIC, EDUCATIONAL AND GOVERNMENTAL. ACCESS
PROGRAMMING ..................................................................................... 5
Access Channels ..................................................................................................... 5
Studio/Facilities ...................................................................................................... 6
Funding for PEG Access .................................................. ~ .................................... 7
Regional Channel Six ........................... ~ ................................................................. 7
Override of the Government Access Channel ..................................................... 7
INSTITUTIONAL NETWORK ............................................................... 8
General .......................................................... ' .......................................................... 8
Design ...................................................................................................................... 8
Usage Fee ................................................................................................................ 8
Use of I-Net Capacity ............................................................................................. 9
Equipment Responsibility ..................................................................................... 9
I-Net Agreement ..................................................................................................... 9
PERIODIC CUSTOMER SURVEYS .................................................... 10
LI2NE EXTENSION POLICY ................................................................. 10
GENERAL FINANCIAL AND INSURANCE PROVISIONS ............ 11
Payment to City .................................................................................................... 11
Bonds ...... ~ .............................................................................................................. 11
Security Fund ....................................................................................................... 12
384747/1
SECTION 12.
SECTION 13.
SECTION 14.
14.1
14.2
PUBLIC COMMITMENT ...................................................................... 15
COMPETITION ADJUSTMENT .......................................................... 15
ACCEPTANCE ........................................................................................ 19
Other Franchises .................................................................................................. 19
Time of Acceptance; Incorporation of Offering; Exhibits ............................... 19
EXHIBITS
Exhibit A - Franchise Fee Payment Worksheet ......................................................................... A-1
Exhibit B - List of Public Schools and Buildings ....................................................................... B-1
Exhibit C - WideOpenWest Minnesota, LLC Initial Programming ............................................ C-1
384747/1 ii
FRANCHISE AGREEMENT ORDINANCE
This Agreement, made and entered into this day of
by and between the City of Hopkins, Minnesota, a municipal corporation of the State of
Minnesota, and WideOpenWest Minnesota, LLC.
.,2001,
WITNESSETH
WHEREAS, WideOpenWest Minnesota, LLC has requested that the City of Hopkins,
Minnesota, grant it a cable television Franchise; and
WHEREAS, the City is authorized to grant one or more nonexclusive revocable
Franchises to operate, construct, maintain and reconstruct a Cable Television System within the
City; and
WHEREAS, the City reviewed the legal, technical and fmancial qualifications of
WideOpenWest Minnesota, LLC and, after a properly noticed public hem-lng, has determined
that it is in the best interest of the City and its residents to grant a Franchise to WideOpenWest
Minnesota, LLC.
NOW, THEREFORE, the City of Hopkins, Minnesota (hereinafter also known as the
"City" or "Grantor") hereby gu'ants to WideOpenWest Minnesota, LLC (hereinafter the
"Grantee") a cable television Franchise in accordance with the provisions of Ordinance No. 96-
792 and this Agreement.
SECTION 1.
GRANT OF FRANCHISE
WideOpenWest Minnesota, LLC is hereby granted a cable television Franchise. This
Franchise shall be subject to the terms and conditions of this Franchise Agreement Ordinance
and shall be subject and subordinate to the Cable Television Regulatory Ordinance, any
ordinances adopted by the City for the purposes of regulating the use of public streets or right of
way and all applicable federal, state and local law, whether now in effect or hereafter adopted.
SECTION 2.
SHORT TITLE
This Agreement shall be known and cited as the "City of Hopkins, Minnesota Cable
Television Franchise Agreement Ordinance." Within this document it shall also be referred to as
"this Franchise" or "the Franchise."
SECTION 3.
DEFINITIONS
The definitions contained in Ordinance Number 96-792 of the City of Hopkins,
Minnesota m'e incorporated herein by reference and adopted as fully as if set out verbatim.
384747/I
SECTION 4.
EFFECTIVE DATE AND TERM OF RENEWAL
This Franchise shall commence on the effective date described in Section 13 and shall
expire on January 1, 2012.
SECTION 5.
WRITTEN NOTICE
All notices, reports or demands requh'ed to be given in writing under this Franchise shall
be deemed to be given when delivered personally to any officer of Grantee or City's Manager of
this Franchise or 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 which notice
is being given, as follows:
If to City:
City of Hopkins, Minnesota
1010 First Street South
Hopkins, MN 55343
If to Grantee:
WideOpenWest Minnesota, LLC
Two Carlson Parkway, Suite 350
Plymouth, MN 55447
Such addresses may be changed by either party upon notice to the other party given as
provided in this section.
SECTION 6.~
DESIGN PROVISIONS
6.1 System Design
Grantee shall construct a Hybrid Fiber Coax (HFC) system to a capacity of 860
MHz. Grantee's system will be designed to support a forward bandwidth of
50MHz - 860 MHz and a return bandwidth of 5MHz - 40 MHZ. As designed, the
system will have a capacity of at least 300 channels. The system shall serve an
average of 150 homes per node. System construction shall be completed and in
use within forty-eight (48) months from the Effective Date of this Franchise.
6.2 Cable Nodes System Connect
Grantee will locate its "nodes" near schools where possible, without (in Grantee's
opinion) compro~rfising the engineering design- of the System. The City will
provide maps showing the location of the schools.
384747/1 2
6.3
6.4
6.5
6.6
Service to the Schools and Government Buildings
A. Service to Public Schools and Public Buildings
The Grantee shall provide one outlet of Basic Service, the Cable
Prograrmuing Service Tier and one Converter, if needed, to those
facilities provided in Exh/bit B. Service to public schools and
municipally owned buildings constructed or occupied after the
effective date of this Franchise shall be similarly provided subject
to the building being located within 200 feet of the Grantee's then
existing System.
If facility is over 200 feet fi:om Grantee's then existing System, the
school or municipality shall be responsible for all equipment,
construction costs and additional wiring beyond the first 200 feet
that are the Grantee's responsibility.
o
All internal wiring cost beyond the one outlet that Grantee agrees
to provide shall be the responsibility of the school or municipality.
The financial responsibility for any additional Converters desired
by the 'school or municipality shall be their responsibility.
B. Service to Private Schools
Grantee shall provide Installation to private schools within 200 feet of
plant. A private school is defined as any private secondary school that
receives funding pursuant to Title 1 of the Elementary and Secondary
Education Act of 1965. Installation and Cable Service (Basic Service and
Cable Prograrmuing Service Tier) shall be provided for free to such
private schools ttu'ough the year 2011.
Parental Control Lock
Grantee shall provide, for sale or lease, to Subscribers, upon request, a parental
control locking device.
Standby Power
Grantee shall provide standby power throughout the System capable of providing
at least th-ee hours of emergency supply.
Periodic Review Provisions
The City naay request a State-of-the-Art review at any time between the sixth year
anniversary and the twelfth year anniversary of the granting of this Franchise. In
384747/1 3
6.7
conducting a State-of-the-Art review, the City shall undertake the following
process:
Ao
The City and the Grantee shall undertake a review of the then existing
Cable System. This review shall, at a minimum, take into account the
following:
1. Characteristics of the existing System;
2. The State-of-the-Art;
3. Additional benefits provided to customers by the State-of-the-Art;
4. The market place demand for the State-of-the-Art; and
5. The financial feasibility of the State-of-the-Art taking into account
associated rate increases, and the premature retirement of assets.
The City shall hold at least two public hearings to enable the general
public and Grantee to comment and to present evidence.
For the purposes of this Section the tenu "State-of-the-Art" shall mean
equipment or facilities that:
1. Are readily available with reasonable delivery schedules from two
or more sources of supply;
2. Have the capability to perform the intended functions
demonstrated within communities with shnilar characteristic
(including, but not necessarily limited to, population, density,
Subscriber penetration,, etc.) under actual operating conditions for
purposes other than tests or experimentation; and
3. Are technically and economically feasible to implement. The term
"State-of-the-Art" shall not include equipment or facilities
associated with or dedicated to the general public, educational or
governmental access or teleco~muunication services.
Notwithstanding anything to the contrary, the City may not undertake a
State-of-the-Art review at any time the Grantee is deemed subject to
effective competition pursuant to then applicable state or federal law.
As a result of any review based on this Section, City and Grantee may
enter into good faith negotiations to muend this Franchise as agreed upon.
Shared Use of Facilities
The Grantee must make space available on its poles and towers, or upon timely
request by the City, underground lines and conduit, for City wires, fixtures, or
City utilities, whenever such use will not interfere with the use of those facilities
by the Grantee or any other CO, ll'n:nunication company. The City must pay for any
added expense incurred by the Grantee because of such City use.
384747/1 4
6.8
Verification of System Construction
The City may, in its sole discretion, retain a technical consultant to conduct an on-
site review of Grantee's System to verify that construction has been completed in
compliance with all requirements of this Franchise and Applicable Laws. All
costs associated with a technical consultant for purposes described within this
Section 6.8, up to a cap not to exceed $15,000, shall be borne by Grantee and
shall not be deducted nor offset from any franchise fee payments which Grantee is
required to re~rfit to City under this Franchise.
6.9 Franchising Cost Reimbursement.
Upon acceptance of this Franchise, Grantee shall provide City full reimbursement
for all reasonable and necessary franchising costs not already covered by
Grantee's application fee. Grantee's reimbursement of franchising costs shall not
be deducted or offset from any franchise fees which Grantee is required to remit
pursuant to this Franchise.
SECTION 7. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
PROGRAMMING
7.1 Access Channels
Ao
Grantee shall provide four public, educational and government (PEG)
Access Channels (the "Access Channels"). One channel shall be
dedicated to public access, one channel shall be dedicated to governmental
access, and two channels shall be dedicated to educational access.
Grantee shall provide to each of its Subscribers who receive all or any part
of the total services offered on the System, reception of each public,
educational and governmental Access Channel.
Grantee shall provide at least one specially designated access channel
available for lease on a first come, nondiscrhninatory basis by commercial
and noncormuercial users. This Section is not applicable to Subscribers
receiving only alanu system services or only data transmission services for
computer operated functions. The VHF spectrum shall be used for at least
one of the specially designated noncmxnnercial public Access Channels
required.
Do
Whenever any of the Access Channels are in use dm-ing 80 percent of the
weekdays (Monday-Friday), for 80 percent of the thx~e during any
consecutive three hour period for six weeks running, and there is demand
for use of an additional channel for the smrte purpose, Grantee shall then
384747/Y 5
7.2
have six months in which to provide a new specially designated access
channel for the same purpose at no additional cost to Subscribers.
Grantee must establish roles and regulations for the public, educational
and leased Access Channels. The rules and regulations established by the
Grantee are subject to approval by the City.
Subscribers receiving programs on one or more special service channels
without also receiving the regular Subscriber services may receive only
one specially designated composite Access Channel composed of the
progrmmuing on Access Channels. Subscribers'receiving only alarm
system services or only data transmission services for computer operated
functions shall not be included in this requirement.
Studio/Facilities
Prior to the provision of Cable Service within the City, Grantee will
provide one large facility containing one studio with square footage of not
less than 1440 square feet for use by the cities of Eden Prairie, Edina,
Hopkins, Minnetonka and Richfield ("Member Cities") at a location
within the Member Cities mutually agreeable to Grantee and the Member
Cities for public, educational and governmental access production. The
studio will have the capacity for audience participation. The facility will
include two separate editing suites, storage space and the entire studio
facility will be wheelchair accessible. The facility shall be open dm-ing
the hours of Monday through Friday 10:00 a.m. to 6:00 p.m. and regular
weekend hours and some regular week night hours.
Grantee shall make readily available for public use at least minimal
equipment necessary for the production of prograrmuing and playback of
prerecorded programs for the specially designated noncommercial public
Access Channel. The Grantee shall also make readily available upon need
being shown, the ~rfinimum equipment necessary to make it possible to
record programs at remote locations with battery operated portable
equipment.
No charges shall be made for channel thue or playback of prerecorded
progrmuming on the specially designated noncormuercial public Access
Channel. Grantee can include any costs associated with production and
playback for the noncommercial public Access Channel in the total sum
allocated for public, educational and govermuental access progrmuming as
stated in Section 7.3. Additionally, at the City's request, Grantee will
work with the City to institute a nominal membership fee for users of the
PEG access facility.
384747/1 6
7.3
7.4
7.5
Need within the meaning of this section shall be determined in the sole
discretion of City or by Subscriber petition. Said petition must contain the
signatures of at least 10 percent of the Subscribers of System, but in no
case more than 500 nor fewer than 100 signatures.
Funding for PEG Access
Prior to the provision of Cable Service within the City, Grantee shall provide no
less than $200,128 annually for PEG access operating expenses collectively for
the cities of Edina, Eden Prairie, Hopkins, Minnetonka, and Richfield. After the
first year of the Franchise, Grantee shall provide sufficient financial and in-kind
support to maintain a substantially equivalent level of services, facilities and
equipment in the remaining years of the Franchise Agreement Ordinance
comparable to the services, facilities and equipment provided in the first yem' of
the Franchise. These expenses will be itemized on customers' bills. This mount
will provide the following services: (a) labor costs; Co) educational consultant;
(c) facilities and utilities; (d) access expenses; (e) educational expenses;
(f) equipment maintenance; (g) technical support; and (h) replay expenses. This
funding shall not be deducted from the Franchise Fee within the meaning of this
Agreement. Grantee shall not calculate a Franchise Fee upon funds itemized on
the customers' bills for public, educational or governmental access production
and progrmmuing.
Regional Channel Six
Under Minnesota Cable Cormuunications Act, standard VHF Channel six has
been designated for usage as the regional channel. Also known as Metro Cable
Network, this independent, noncommercial, nonprofit channel shall be made
available without charge. This provision shall remain in effect as long as a
regional channel is required by the State of Minnesota.
Override of the Government Access Channel
Grantee agrees to provide the capability such that the City, from its City Hall, can
switch its govermuent Access Channel in the following ways:
A. Insert hve Council meetings from City Hall;
B. Replay government access progrmuming from City Hall;
C. Transmit character generated progrmmuing;
Schedule for Grantee to replay City-provided tapes in pre-arranged time
slot on the government Access Channel; and
E. Switch to C-SPAN 2 or other comparable programming provided by
384747/1 7
SECTION 8.
8.1.
8.2
8.3
Grantee at any time when not carrying live or taped government access
progrm~ming.
INSTITUTIONAL NETWORK
General.
Ao
Grantee shah provide Grantor an Institutional Network ("I-Net") in
accordance with the terms and conditions of this Section 8 and an
agreement ("I-Net Agreement") entered into between Grantor and
Grantee.
Grantee shall build and maintain an I-Net consisting of one pair (two (2)
dark fibers) of single-mode fiber optic cable. The I-Net will be of a Star
or point-to-point configuration serving the 1-Net user sites listed in Exhibit
B of the Franchise. The I-Net user sites (as designated in Exhibit B), and
any new public facilities constructed during the term of the Franchise
Agreement, will be connected to the Grantee's hub site and an umbilical
fiber cable which will be connected to the central hub site serving the
Franchise Area. The I-Net fibers will be part of the Grantee's subscriber
network maintained at the same level as the Grantee's active subscriber
network.
Co
The I-Net will be connected, in the I-Net user sites, at a pre-determined
demarcation point chosen by the Grantor, with a rack or equivalent device
installed to mount to Grantee's fiber optics connectors and patch panel.
Fiber will be run to each designated building in conduit with locator tape
as part of the standard installation.
Do
Grantee will provide professional engineering and consulting for the
design and use of the I-Net.
Design.
Within no more than t!m'ee (3) months after the effective date of the Franchise
Agreement, Grantee and its network consultants will provide a Design of the I-
Net capacity requested by Grantor. The Design shall include the following: (i) a
walkout of the I-Net user sites to which I-Net capacity will be provided; (ii) a
detailed network design; (iii) a breakdown of all material, equipment, labor and
Facilities required to provide I-Net capacity and (iv) any material~ equ/pment,
labor and Facilities required to provide inter-City Connections as set forth in
Section 8.7 hereof. Upon receipt of the Design, Grantor shall have one (1) month
to enter into an I-Net Agreement.
Usage Fee.
Throughout the term of the Franchise, corm~aencing upon activation of the I-Net
capacity, neither the City nor any I-Net user site shall pay Grantee a Usage Fee.
384747/1 8
8.4
8.5
8.6
Any costs associated with usage of the I-Net capacity, maintenance of outside
plant and maintenance, replacement and diagnosis of electronic equipment
necessary to provide I-Net capacity shall be borne by Grantee.
Use of I-Net Capacity.
Grantor Use. Grantor may use the I-Net capacity set .forth in the I-Net
Agreement for those services which Grantee may legally provide under
federal, State and local law. Grantee's provision of telecommunication
services will be according to prevailing law. Grantor shall only use the I-
Net capacity for noncommercial, governmental cozxnuunication uses in
accordance with this Franchise and the I-Net Agreement.
Grantee Use. Grantee shall own all equipment and Facilities, outside the
demarcation point used to provide the 1-Net capacity to Grantor. Grantee
shall have the right to use any bandwidth or I-Net capacity not specifically
guaranteed to Grantor under the I-Net Agreement. The 1-Net Agreement
shall provide that in the event Grantee shall cease operation of the cable
system during the term of the Franchise Agreement for any reason,
without a transfer of the Franchise Agreement being approved by Grantor,
the ownership of all equipment and Facilities comprising the I-Net
(specifically including any I-Net equipment designated as owned by
Grantee pursuant to this Franchise) shall transfer to the Grantor.
Equipment Responsibility.
Ao
Grantor and Grantee will mutually determine a physical demarcation
point. The fiber, coaxial cable, equipment and electronics outside the
demarcation point will be owned and maintained by Grantee and will not
be the responsibility of Grantor. This demarcation point will nonually be
located inside Grantor's public buildings, similar to the telephone
company. Grantor will guarantee that Grantee will have unrestricted
access to the demarcation point within such municipal buildings to provide
adequate maintenance and technical support.
All equipment related to the provision of I-Net capacity.will be identified
in writing with applicable technical descriptions and ownership
designation. Grantor's equipment inside the demarcation point shall be
purchased by Grantee, but selected in conjunction with Grantor. The
Grantor shall make reimbursement for the purchase of the equipment
inside the demarcation point to the Grantee. Ongoing maintenance of all
equipment inside the physical demarcation point that interfaces with
Grantee's equipment will be the responsibility of the Grantor.
I-Net Agreement.
The 1-Net Agreement between Grantor and Grantee shall be coterminous
with the term of the Franchise Agreement, as set forth in SectiOn 4 hereof.
384747/1 9
If at any time Grantor desh'es additional capacity or services, the I-Net
Agreement will be amended. Payment of costs for any additional
equipment necessary to increase capacity in the future shall be the
responsibility of Grantor.
At the ter~nination of the Franchise Agreement, Grantor shall maintain the
right to continued use of the I-Net under mutually negotiated terms.
8.7
Grantee shall provide at no charge, upon request and at the time necessary for use,
modulators and associated fiber optic signal transmission and reception
equipment for single channel remm purposes for each public and private
accredited educational institution, each city hall, as approved by the City.
SECTION 9.
PERIODIC CUSTOMER SURVEYS
9.1
The Grantee shall, upon request of the City and at thues mutually agreed upon by
the parties, but no more frequently than once every three years, conduct a random
survey of a representative sample of Subscribers. Each questionnaire shall be
prepared and conducted in good faith so as to provide reasonably reliable measure
of customcn' satisfaction with: (1) audio and signal quality; (2) response to
customer complaints; (3) billing practices; (4) programming; and (5) Installation
practices;
9.2
The survey shall be conducted in conformity with standard research procedures,
including the use of telephone survey conducted by an independent person in the
business of regularly conducting such surveys. The survey shall consist of a
sample size of 300 customers or such other sample size as to yield a margin of
error of plus or minus six percent or less of the total customer base.
9.3
The Grantee shall report the results of the survey arid any steps the Grantee may
be taking in response to the survey within 60 days of the completion of the
sm-vey.
9.4
Notwithstanding anything to the contrary, the Grantee shall be under no
obligation to conduct a survey at any time the Grantee is deemed subject to
effective competition under then applicable state or federal law.
SECTION 10.
LINE EXTENSION POLICY
10.1
The Grantee shall, within 12 months of receiving a request, extend the System to
any residences within the City served by City water and sewer facilities.
10.2
The City recognizes that in some instances the Grantee needs the permission of
private property owners to extend service to others who may be interested in
service and agrees that should the Grantee be unable to obtain these needed
permissions under terms reasonable to the Grantee and the property owners fi:om
384747/1 1 0
whom permission is required that the Grantee shall be under no obligation to
extend service.
SECTION 11.
GENERAL FINANCIAL AND INSURANCE PROVISIONS
11.1 Payment to City
Grantee shall pay to the City a Franchise Fee in an amount equal to five
percent (5%) of its annual Gross Revenues.
B. The foregoing payauent shall be compensation for Use of Streets.
Co
Payments due the City under this provision shall be computed at the end
of each calendar quarter. Payments shall be due and payable for each
quarter not later than 60 days from the last day of the quarter. Each
payment shall be accompanied by a brief report showing the basis for the
computation. At the end of each calendar year, Grantee shall complete a
Franchise Fee Payment Worksheet attached hereto as Exhibit A. Grantee
shall file a completed Franchise Fee Payment Worksheet no later than 60
days after the last day of the calendar year.
No acceptance of any payment shall be construed as an accord that the
muount paid is in fact the correct amount, nor shall such acceptance of
payanent be construed as a release of any clahu the City may have for
further or additional stuns payable under the provisions of this Franchise.
All amounts paid shall be subject to audit and recomputation by the City.
In the event any payment is not made on the due date, interest on the
mnount due shall accrue from such date at the armual rate of 12%.
11.2
Bonds
A.
Px5or to the commencement of System construction, and at all times
thereafter until Grantee has completed the construction of the System in
Section 6.1 of this Franchise, Grantee shall maintain with City a bond in
the sum of $300,000.00 in such fonu and with such sureties as shall be
acceptable to City, conditioned upon the faithful perfonr~ance by Grantee
of this Franchise and the acceptance hereof given by City and upon the
farther 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 plincipal and surety of the bond, any damages or losses
suffered by City as a result, including the full muount 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 in excess of the then prime rate), up to the full
amount of the bond, and which bond shall further guarantee payment by
384747/1 11
11.3
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 System. Upon completion of the System as
described in Section 6.1 of this Franchise, the City may reduce the bond to
the sum of $100,000.
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.
City may, in its sole discretion, reduce the mount of the bond.
Security Fund
Ao
In the event the Grantee is given notice of a noncompliance pursuant to
Section 34 of the Ordinance, the Grantee shall within ten (10) days thereof
deposit into a bank account, established by the City, and maintain on
deposit the sum of Twenty Thousand and 00/100 Dollars ($20,000.00) or
deliver to the City a letter of credit in the same amount as a common
SecmSty Fund for the faithful performance by it 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 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 whenever Grantee is given
the notice required, even if Grantee disputes the allegation that it is not in
compliance. 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 $2000 in that action.
Provision shall be made to permit the City to withdraw funds from the
Security Fund. 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 pmTpose.
Within ten (10) days after notice to it that any amount has been withdrawn
by the City from the Security Fund pursuant to (A) of this section, Grantee
shall deposit a sum of money sufficient to restore such Security Fund to
the requh'ed amount.
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
384747/1 12
Franchise, in particular Section 11 (G) herein, City in its Sole discretion
may charge to and collect fi:om the Security Fund the following penalties:
For failure to complete System construction in accordance with
Section 6.1 hereof, unless City approves the delay, the penalty
shall be $200.00 per day for each day, or part thereof, such failure
occurs or continues.
For failure to provide data, documents, repOrts or information or to
cooperate with City during an Application process or System
review, the penalty shall be $50.00 per dayfor each day, or part
thereof, such failure occurs or continues.
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 C, the penalty shall be $50.00 per day for each
day, or part thereof, such failure occurs or continues.
For failure to test, analyze.and report on the perfonuance of the
System following a request by City, the penalty shall be $50.00 per
day for each day, or part thereof, such failure occurs or continues.
For failure by Grantee to provide additional services as negotiated
between City and Grantee at a periodic review session within 45
days after a request by City the penalty shah be $200.00 per day
for each day, or part thereof, such failure occurs or continues.
Forty-five days following notice fi:om City of a failure of Grantee
to comply with construction, operation or maintenance standards,
the penalty shall be $200.00 per day for each day, or part thereof,
such failure occurs or continues.
For failure to provide the services Grantee has proposed, including,
but not limited to, the inaplementation and the utilization of the
Access Channels and the making available for use of the
equipment and other facilities to City, the penalty shall be $100.00
per day for each day, or part thereof, such failure occurs or
continues.
Each 'violation of any provision of this FranChise shall be
considered a separate violation for which a separate penalty can be
imposed.
Exclusive of the contractual penalties set out above in tiffs section, a
violation of any provision of this Franchise is a misdemeanor,
384747/1
Fo
Go
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 thimy (30) days' notice of
such failure by the City to comply with anY provision of the Franchise
which the City reasonably detenuines 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 29 of the
Ordinance.
Whenever the City finds that Grantee has allegedly violated one or more
ten-ns, 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 30 days subsequent to receipt of the notice'
in which to correct the violation before the City may require Grantee to
make payment of penalties, and further to enforce payment of penalties
through the Security Fund: Grantee may, within 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 thne.
City shall hem' Grantee's dispute at the next regularly scheduled or
specially scheduled Council meeting. Grantee shall have the right
to subpoena and cross-examine witnesses. The City shall
dete~,aine if Grantee has committed a violation and shall make
written findings of fact relative to its detenuination. If a violation
is found, Grantee may petition for reconsideration.
If, after hearing the dispute, the claim is upheld by the City, then
Grantee shall have 30 days within which to remedy the violation
before the City may require payment of all penalties due it.
The thue for Grantee to correct any alleged violation may be
extended by the City if the necessary action to correct the alleged
violation is of such a nature or character as to require more than 30
days within which to perform, provided Grantee commences
corrective action within 15 days and thereafteruses reasonable
diligence, as determined by the City, to correct the violation.
If City draws upon the Security Fund delivered pursuant hereto, in whole
or in part, Grantee shall replace the same within three days and shall
deliver to City a like replacement Security Fund for the full amount stated
in Paragraph A of this section as a substitution of the previous Security
Fund.
384747/1 14
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 incmTed 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 perfonuance of the obligations, duties
and responsibilities of Grantee which are in default, shall not be a waiver
or release of such default.
Jo
The collection by City of any damages, monies or penalties 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 pm'suant to this Franchise or
otherwise.
SECTION 12.
PUBLIC COMMITMENT
Grantee shall provide free service connections, free on-line (i.e. high-speed cable modem
services) services and any required modem to all institutions identified in Exhibit B.
SECTION 13.
COMPETITION ADJUSTMENT
13.1
In consideration of Grantee's substantial investment to build its System for the
Cities of Eden Prairie, Edina, Mirmetonka, Hopkins and Richfield, Minnesota, the
City agrees to include the following provisions.
13.2
Any additional or subsequent cable Franchise granted to cable or non-cable
companies who may compete with Grantee within the Franchise area will be
granted only on substantially shrfilar tenus and conditions as this Franchise and
shall not contain less burdensome nor more favorable tenus than those imposed
on Grantee by this Franchise.
13.3
The City and Grantee agree that all Franchise provisions that Grantee is subject to
are effecti-ve against the Grantee only if such requirements are applied as well to
any and all wired competitors of the Grantee within the Franchise area. For
purposes of this subsection, a wired competitor is any video provider using Streets
and offering at least 12 channels of video programming at least one of which is a
broadcast signal, which uses wires, coaxial cables, optical fiber or other similar
technology and places or attaches such wires, cables or fibers on Streets or public
utility facilities. This definition of wired competitor does not include a Satellite
384747/1 15
13.4
Master Antenna Television system located wholly on private property within a
building.
Any Franchise provision or other regulation enforced by the City upon Grantee
which is not also imposed upon Grantee(s) wired competitors within the
Franchise area of the City, shall be void as to Grantee, subject to the following
requirements:
The existence of a wired competitor in the Franchise area of the City shall
not relieve Grantee of an obligation to provide an annual minimum
Franchise Fee of two percent of Gross Revenues. If the wired competitor
obtains a cable Franchise which requires it to pay a Franchise Fee or
substantially similar fee of an equivalent amount to the City, the State of
Minnesota or any other govermuental entity which is less than five percent
of Gross Revenues, the City shall reduce Grantee's Franchise Fee to the
sm:ne level, but in no event less than two percent of Gross Revenues. If
the wired competitor does not obtain a cable Franchise, but it is required to
pay a Franchise Fee or substantially similar fee to the City, State of
Minnesota or any other governmental entity, then Grantee shall pay the
smxae fee, but in no event less than two percent of Gross Revenues. If the
wired competitor is not required to pay a Franchise Fee or similar fee to
the City or the State of Minnesota, then the two percent minimum
Franchise Fee shall apply to Grantee for all homes and customers who are
passed by the wired competitor's system. If at any thue a wired
competitor with a cable Franchise pays a Franchise Fee of more than two
percent, or if a wired competitor without a Franchise Fee pays a Franchise
Fee or similar fee of more than two percent, Grantee shall pay the same
Franchise Fee. In no event shall Grantee be required to pay more than a
five percent Franchise Fee. If the wired competitor discontinues providing
multichannel video services, the Grantee's Franchise Fee shall
immediately return to its original level.
The existence of a wired competitor shall not relieve Grantee of an
obligation to provide at least one channel for public, educational and
governmental access prograrmning. If the wired competitor obtains a
cable Franchise which requires it to provide less than four public,
educational and govermrtental Access Channels, the City shall, upon the
effective date of the subsequent Franchise, reduce Grantee's requirement
to the same number of channels, but in no event shall Grantee provide less
than one public, educational and governmental access channel. If the
wired competitor does not obtain a cable Franchise, but it is required to
provide less than four public, educational and governmental Access
Channels, or if the wired competitor is not required to provide any public,
educational or governmental Access Channels, then the City shall reduce
the number of Access Channels required of Grantee as follows:
384747/1 16
If the wired competitor passes less than 25% of the homes and
customers in the cities of Edina, Eden Prairie, Hopkins,
Minnetonka and Richfield, Grantee shall provide at least four
public, educational and governmental Access Channels.
(ii)
If the wired competitor passes 25% or more but less than 50% of
the homes and customers in the cities of Edina, Eden Prairie,
Hopkins, Minnetonka and Richfield, Grantee shall provide at least
three public, educational and governmental Access Channels.
.(iii) If the wired competitor passes 50% or more of the homes and
customers in the cities of Edina, Eden Prairie, Hopkins,
Minnetonka and Richfield, Grantee shall provide at least one
public, educational and governmental Access Channel.
If at any time, a wired competitor provides channels for public,
educational and governmental access which exceed the channels provided
by Grantee, Grantee shall provide the same number of channels as the
wired competitor. In no event shall Grantee be required to provide more
public, educational or governmental Access Channels than it has agn-eed to
in this Franchise Agreement Ordinance.
If the wired competitor discontinues providing multichannel video
services, the Grantee's requirement for the provision of public,
educational and govermuental Access Channels shall humediately return
to its original level.
If a wired competitor Obtains a cable Franchise which requires it to
provide less funding for equipment or facilities for public, educational and
goYernmental access or less facilities and equipment than Grantee, the
City shall reduce the Grantee's requirement for funding for public,
educational and governmental access and facilities and equipment to the
level of the wired competitor. If the wired competitor does not obtain a
cable Franchise, including open video providers in accordance with the
Telecommunications Act of 1996 and FCC rules, but it is required to
provide less funding for public, educational and governmental access or
less equipment or facilities than Grantee, or if the wired competitor is not
required to provide any funding for public, educational or govermuental
access or equipment or facilities, then the City shall reduce the Grantee's
required funding as follows:
(i)
If the wired competitor passes less than 25% of the homes and
customers in the cities of Edina, Eden Prairie, Hopkins,
Minnetonka and Richfield, Grantee shall continue to provide the
same level of funding for public, educational and governmental
access facilities and equipment as indicated in this Ordinance.
384747/1 17
(ii)
If the wired competitor passes 25% or more but less than 50% of
the homes and customers in the cities of Edina, Eden Prairie,
Hopkins, Minnetonka and Richfield, the City shall reduce the
funding, and equipment and facilities requirements of the Grantee
by 30%.
(iii)
If the wired competitor passes 50% or more of the homes and
customers in the cities of Edina, Eden Prairie, Hopkins,
Mirmetonka and Richfield, the City shall eliminate the funding,
and equipment and facilities requirements for public, educational
and governmental access funding.
It is not the intent of this section to reduce Grantee's funds, equipment and
facilities requirements regarding public, educational and governmental
access programming to an amount less than the muount provided by its
wired competitors. If at any time a wired competitor provides funds,
equipment or facilities for public, educational and governmental access
that exceed the funds, equipment or facilities provided by Grantee under
this paragraph, Grantee shall provide the stone amount of funds,
equipment and facilities. In no event shall Grantee be required to provide
more funds, equipment or facilities than it has agreed to provide in
Section 7 of this Franchise Agreement Ordinance.
If the wired competitor discontinues providing multicharmel video
services, the Grantee's requirement for the provision of funding and,
equipment and facilities for public, educational and governmental access
and, facilities and equipment shall innuediately return to its original level.
For all other Franchise provisions imposed upon Grantee in this
Ordinance, if a wired competitor obtains a cable Franchise which does not
require it to meet the same Franchise provision, the City shall not require
Grantee to meet that Franchise provision. If the wired competitor does not
obtain a cable Franchise and it is not required to meet the same Franchise
provision, then the City shall relieve the Grantee from that Franchise
provision as follows:
(i)
If the wired competitor passes less than 50% of the homes and
customers in the cities of Edina, Eden Prairie, Hopkins,
Minnetonka and Richfield, Grantee shall continue to comply with
the Franchise provision.
(ii)
If the wired competitor passes 50% or more of the homes and
customers in the cities of Edina, Eden Prairie, Hopkins,
Mirmetonka and Richfield, the City shall not require Grantee to
meet the Franchise provision.
384747/1 1 8
If at any time a wired competitor provides a requirement contained
originally in this cable Franchise, Grantee shall comply with that smrte
requirement.
If the w/red competitor discontinues providing multichannel video
services, the Grantee shall be required to meet the Franchise provision.
13.5
If Grantee is aware of a Franchise provision huposed by the City upon Grantee
which is not also imposed by the City or the State of Minnesota upon a wired
competitor, it shall identify the wired competitor, including the basis for stating
that the entity is a "wired competitor" as def'med above; it shall identify the
Franchise provision in question; and it shall provide this information to the City.
Within 90 days, the City shall: (1) pass a resolution declaring that Grantee is
subject to this section for that requirement; (2) declare why the entity in question
is not a wired competitor; or (3) state that the "wired competitor" is subject to a
requirement that substantially duplicates the Franchise provision. During the
above process, the Grantee shall escrow any funds at issue in the above process
that the Franchise requires, be re~rfitted dmSng the time period of the above process
and Grantee shall continue to meet any and all requirements in question. If the
City declares such requirement void as to Grantee, the City is not liable for
Grantee's past compliance with the requirement, including any past fees remitted
to the City.
13.6
If the City and Grantee are unable to agree upon the operation of this section of
the Ordinance within 90 days after one party provides notice to the other party,
the parties may agree to enter mediation.
SECTION 14.
ACCEPTANCE
14.1 Other Franchises
The System intended for City, may be part of a joint systeTM that serves the
cities of Eden Prairie, Edina, Hopkins, Minnetonka and Richfield,
Minnesota.
Bo
Grantee will, in good faith, apply for and accept, if offered to it, a
Franchise (shuilar Franchise) from each of the other cities on all the same
tenus and conditions herein provided, except provisions omitted as
inapplicable.
14.2 Time of Acceptance; Incorporation of Offering; Exhibits
Grantee shall accept this Franchise in form and substance acceptable to
City by , Such acceptance by Grantee shall
be deemed the grant of this Franchise for all pm-poses.
384747/1 19
Bo
Upon acceptance of this Franchise, Grantee shall be bound by all the terms
and conditions contained in Ordinance No. 96-792, also known as the
Cable Television Regulatory Ordinance, and herein. With its acceptance,
Grantee also shall obtain an opinion fi:om its legal counsel, acceptable to
City, stating that this Franchise has been duly accepted by Grantee, that
this Franchise is enforceable against Grantee in accordance with its terms,
and which opinion shall otherwise be in form and substance acceptable to
city.
Co
With its acceptance, Grantee also shall deliver to City true and correct
copies of docmuents creating Grantee and evidencing the power and
authority referred to in the opinion of Grantee's counsel, certified as of a
then current date by public office holders to the extent possible and
otherwise by an officer of Grantee.
Ninety (90) days prior to the commencement of the operation of the
System, Grantee shall provide a copy of its initial services which shall be
attached hereto as Exhibit C.
The effective date of this Franchise Agn-eement Ordinance shall be
I
IN WiTNESS'WHEREOF, Gra~,tor and Grantee have executed this Franchise Agreement the
date and ye~ar/,M, t above~
(SEAL)
WIDEOPENWEST MINNESOTA, LLC
By
Its:
(Corporate Seal)
384747/1 20
STATE OF MINNESOTA )
) SS~
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me on ~g.~ v- rA~ r~t__~, ~c.~/by ~f e'z2e
.%--'. iq/l~.~-X bx./~ ! ! , the D'lo-¥Of-'ofthe City of Hopkins, Minnesota, on
behalf of the City.
~ary Public
STATE OF )
) SS:
COUNTY OF .)
The foregoing instrument was acknowledged before me on
., the
WideOpenWest Minnesota, LLC, on behalf of the company.
~by
Notary Public
384747/1 21
EXHIBIT A
FRANCHISE FEE PAYMENT WORKSHEET
Revenue
Basic
Additional Outlets
Equipment Rent
PayTV
Pay Per Event
Transaction Fee
Advertising
Shopping Service
Other
TOTAL REVENUE
LESS: Local Access
LESS: Bad Debt
CHARGEABLE REVENUE
X FRANCHISE FEE %
)TAL FRANCHISE
FEES TO BE PAID
0
0
0
0
0
0
0
0
0
0
Percentages Based on
Revenue & Bad
Debt Quarter Quarter Quarter
Eden Prairie 0% $0 $0 $0
Edina 0% 0 0 0
Hopkins 0% 0 0 0
Minnetonka 0% 0 0 0
Richfield 0% 0 0 0
Total
Ouarter Payment
$0 $0
0 0
0 0
0 0
0 0
TOTAL 0% $0 $0 $0 $0 $0
384747/1 A-1
EXHIBIT B
LIST OF PUBLIC SCHOOLS AND BUILDINGS
PUBLIC SCHOOLS
Alice Smith Elementary
Eisenhower Elementary
Katherine Curren Elementary
John Ireland School
The Blake School
801 Minnetonka Mills
1001 Highway 7
1600 Mainstreet
1320 Mainstreet
110 Blake Rd S
PUBLIC BUILDINGS
City Hall
Activity Center
Dow Towers
Pavilion
Skateboard Park
Hopkins Center for the Arts
Public Works Garage
Depot Coffee House
Well #1 Filtration Plant
Filtration Plant
Well #5
Well #6
Lift Station #1
Lift Station #2
Lift Station #3
Lift Station #4
Lift Station #5
Lift Station #6
Lift Station #7
Central Park Building
Bm-nes Park Building
Oakes Park Building
Valley Park Building
Harley Hopkins Building
Interlachen Park Building
Library
Hennepin County Government Ctr
1010 1st St S
33 14th Ave. N.
22 5th Ave. S.
11000 Excelsior Blvd.
100 Washington Ave. S.
1111 Mainstreet
11100 Excelsior Blvd
.9451 Excelsior Blvd
10421 Excelsior Blvd
1401 Elmo Park Service Road
1205 Highway 7
801 Highway 7
202 21st Ave N
619 Drillane Rd
901 Cambridge St NE
244 Meadowbr°ok Road
6601 Excelsior Blvd
8546 Excelsior Blvd
801 6th Ave S
101 17th Ave S
201 Park Lane
301 Tyler Ave N
800 7th Ave S
108 Jackson Ave S
220 Homedale Ave
22 1 lth Ave N
300 6th St S
384747/1 B-1
WIDEOPENWEST MINNESOTA, LLC
INITIAL PROGRAMMING
To be provided ninety (90) days prior to System activation
384747/1 C-1