06-13-2023 City Council AgendaR EG U LAR C IT Y C O U N C IL MEET IN G
R IC H F IE L D MU N IC IPAL C E N TE R, C O U N C IL C H AMB E R S
J U N E 13, 2023
7:00 P M
IN TR O D U C TO RY P R O C E E D IN G S
C all to order
P ledge of A llegiance
A pproval of Minutes
A pproval of the Minutes of the (1) C ity C ouncil Work S ession of May 23, 2023; and (2) C ity C ouncil Meeting of May 23,
2023.
P R E S E N TATIO N S
1.Minnesota P arks and Recreation A ssociation (MRPA ) presentation to Richfield Recreation
2.P roclamation celebrating L GB TQ+ P ride Month
3.P roclamation celebrating Juneteenth
4.P roclamation celebrating E lsen B rothers Garage
AG E N D A APPR O VAL
5.A pproval of the A genda
Open forum
C all into the open forum by dialing 1-415-655-0001 U se webinar access code: 2632 301 8006 and password:
1234.
P lease refer to the C ouncil A genda & M inutes web page for additional ways to submit comments.
6.Consent Calendar contains several separate items, which are acted upon by the City Council in one
motion. Once the Consent Calendar has been approved, the individual items and recommended
actions have also been approved. No further Council action on these items is necessary. However, any
Council Member may request that an item be removed from the Consent Calendar and placed on the
regular agenda for Council discussion and action. All items listed on the Consent Calendar are
recommended for approval.
A .C onsider approval of an extension to the temporary easement granted to Hennepin C ounty for the C ounty
S tate A id Highway No. 52/Nicollet Avenue S afety Improvement P roject at 70th S treet.
S taff Report No. 67
B .C onsider the approval of setting a public hearing to be held on J une 27, 2023, to consider the issuance of
new On-Sale Wine and 3.2 Percent Malt Liquor licenses for Toma Richfield, LL C dba Toma
Mojo Grill, located at 1700 66th Street East.
S taff Report No. 68
C .C onsider the approval of an agreement for P rosecution S ervices with the C ity of Richfield and H/J L aw.
S taff Report No. 69
D .C onsider a two-part request: site plan review and a two-stall parking variance for A fghan Halal
S upermarket at 6626 P enn Avenue S outh.
S taff Report No. 70
E .C onsider adoption of a resolution authorizing the C ity of Richfield to accept grant funds in the amount of
$2,962.40 and enter into a S ource Water P rotection Grant A greement with the Minnesota D epartment of
Health (MD H) to develop, distribute, and make available a packet of information specific to the C ity's
Wellhead P rotection P lan.
S taff Report No. 71
F.C onsider approval of a resolution updating the P ublic P urpose E xpenditure P olicy.
S taff Report No. 72
G.C onsider a resolution authorizing submittal of a grant application by B eacon Interfaith Housing
C ollaborative to Minnesota B rownfields for environmental investigation at 6613-25 P ortland Avenue.
S taff Report No. 73
H.A pprove the first reading of an ordinance approving renewal of a cable television franchise with C omcast of
Minnesota, Inc., and schedule a public hearing and second reading for June 27, 2023.
S taff Report No. 74
I.C onsider adoption of a resolution authorizing the C ity to affirm the monetary limits on statutory municipal tort
liability.
S taff Report No. 75
J.F irst reading of a transitory ordinance providing funding for certain capital improvements from the L iquor
C ontribution S pecial Revenue F und.
S taff Report No. 76
7.C onsideration of items, if any, removed from C onsent C alendar
R E S O L U T IO N S
8.C onsider a request to modify (2024) and then terminate (2025) B est B uy's Minimum A ssessment A greement.
O T H E R B U S IN E S S
9.C onsider the approval of recommended C limate A ction P lan (C A P ), prioritized actions for implementation from
2023-2026 and the related amendment in the C ity's S trategic P lan.
S taff Report No. 77
C IT Y MAN AG E R’S R E P O R T
10.C ity Manager's Report
C LAIMS AN D PAYR O L LS
11.C laims and P ayroll
C O U N C IL D ISC U SSIO N
12.Hats Off to Hometown Hits
C LO SED EXEC U T IVE S E S S IO N
13.C losed E xecutive S ession regarding the C ity Manager's annual performance evaluation. C ouncil will move to the
B abcock Room for the closed session portion of the meeting
S taff Report No. 78
14.A djournment
Auxiliary aids for individuals with disabilities are available upon request. Requests must be made at least 96
hours in advance to the City Clerk at 612-861-9739.
CITY COUNCIL MEETING MINUTES
Richfield, Minnesota
City Council Work Session
May 23, 2023
CALL TO ORDER
Mayor Supple called the work session to order at 5:45 p.m. in the Bartholomew Room.
Council Members
Present:
Council Members
Absent:
Mary Supple, Mayor; Sharon Christensen; Simon Trautmann; and Ben
Whalen
Sean Hayford Oleary
Staff Present:
Guests:
Katie Rodriguez, City Manager; Dustin Leslie, City Clerk; Chris Swanson,
Management Analyst; Rachel Lindholm, Sustainability Specialist; Amy
Markle, Recreation Services Director; Kristin Asher, Public Works Director;
and Melissa Poehlman, Community Development Director
Ted Redmond, Consultant
ITEM #1
CONSIDER RECOMMENDED CLIMATE ACTION PLAN (CAP) PRIORITIZED
ACTIONS FOR IMPLEMENTATION IN 2023-2025
Director Markle introduced the topic and gave a brief overview of the recommended actions as
well as the proposed next steps.
Ted Redmond spoke about his company, Pale Blue Dot, and the work they perform. He then
explained the Greenhouse Gas Inventory (GHG) and Climate Action Plan (CAP). This explanation
included processes, goals, metrics, and where Richfield compares to other similar communities.
Council Member Whalen asked if the climate bill passed by the legislature would make a big
impact on greenhouse gas emissions. Redmond replied that it will help but would not make a
significant difference without help from local governments.
Mayor Supple stated that it looked as if natural gas was the biggest culprit for greenhouse gas
emissions. Redmond stated that was correct along with transportation emissions.
Redmond continued the presentation and spoke about goal suggestions within the CAP.
Council Member Whalen asked if the goals would get the city where they need to be or if they were
just chosen because they were achievable. Redmond stated that the goals would do both.
Redmond further spoke about goals and how to prioritize their importance. Mayor Supple
stated that Electric Vehicles (EVs) are heavier vehicles and that they may do more damage to roads.
City Council Work Session Minutes
-2- May 23, 2023
She asked if this was something that could be studied. Redmond stated that issue could be included
in the assessments but that there were not many EV choices for the heaviest city vehicles.
Council Member Trautmann asked if electric sources were studied and if some sources of
electricity were better than others. Redmond stated new studies have shown that while there are
better sources of electricity, all sources are better than using fossil fuels.
Council Member Whalen asked about costs associated with the goals. Sustainability Specialist
Lindholm stated goal costs would be within the budget and would line up with the strategic plan.
Council Member Whalen also asked if, and how many, trees could be planted to help with greenhouse
gas emissions. Redmond stated that it would not make a difference with emissions, but planting trees
would help with other sustainability goals.
Council Member Trautmann spoke about his knowledge gap regarding how much of a crisis
climate change is and that more education would be helpful to him and the community. Sustainability
Specialist Lindholm spoke about the planned education campaign for the public and that outreach
would be one of the main focus areas.
Council Member Christensen spoke about how residents should learn that changes need to be
made by everyone and not just big businesses.
Redmond spoke about the top four focus areas within the CAP for 2023-2025.
Mayor Supple asked what was needed from Council. Director Markle stated this plan would be
up for approval at the first meeting in June. Staff stated this would be an opportunity for Council to
send feedback about the plan before then.
Council Member Whalen spoke about the focus areas and agreed that they were important
and supported the staff recommendations. He and Specialist Lindholm also discussed federal funding
opportunities and what the city could use to help with implementation.
Mayor Supple stated there seemed to be consensus that Council was supportive of these
actions and asked Redmond to discuss what climate change would look like in Richfield. Redmond
spoke about what Richfield would look like with a 2-degree increase as well as a 1.5-degree increase.
He further stated that if nothing was done, there would likely be a 3.8 degree increase and that
Richfield would feel like North Texas by the year 2100.
ADJOURNMENT
Mayor Supple adjourned the work session at 6:50 pm
Date Approved: May 23, 2023
Mary B. Supple
Mayor
Dustin Leslie Katie Rodriguez
City Clerk City Manager
CALL TO ORDER
The meeting was called to order by Mayor Supple at 7:00 p.m. in the Council Chambers.
Council Members Present:
Mary Supple, Mayor; Sharon Christensen; Simon Trautmann;
and Ben Whalen
Council Members
Absent:
Sean Hayford Oleary
Staff Present:
Katie Rodriguez, City Manager; Mary Tietjen, City Attorney;
Melissa Poehlman, Community Development Director; Chris
Swanson, Management Analyst; Dustin Leslie, City Clerk; Julie
Eddington; HRA Attorney; and Jennifer Anderson; Health
Administrator
PLEDGE OF ALLEGIANCE
Mayor Supple led the Pledge of Allegiance.
OPEN FORUM
Mayor Supple reviewed the options to participate:
• Participate live by calling 1-415-655-0001 during the open forum portion
• Call prior to meeting 612-861-9711
• Email prior to meeting kwynn@richfieldmn.gov
Randy Olson, 1210 Urbandale Lane in Plymouth, spoke about the upcoming June concert.
Kathleen Balaban, 6526 Stevens Avenue South, spoke about the level of detail in Commission
minutes and training for Commissioners. The resident also spoke about legal notices in the Sun Current
and the need for more community feedback. The resident finally spoke about HR policies and how
terminations occur at the city.
Ruane Onesirosan 2421 West 65th Street, spoke about Council salary and remarked about the
relationship between staff and Council regarding voting practices.
APPROVAL OF MINUTES
CITY COUNCIL MEETING MINUTES
Richfield, Minnesota
Regular Council Meeting
May 23, 2023
City Council Meeting Minutes -2- May 23, 2023
M/Whalen, S/Christensen to approve the minutes of the: (1) City Council Work Session of May
9, 2023; (2) City Council Meeting of May 9, 2023.
Motion carried: 4-0
ITEM #1
FOOD SAFETY AWARDS
Jennifer Anderson stated the Richfield Advisory of Health had acknowledged excellence in food
safety by giving out awards in two different categories since 2006. The categories were for the full-
service restaurant, and the fast food, pizza, and carry-out. She noted due to the pandemic the awards
have not been given out since 2019.
Ms. Anderson stated the nominees in the full-service restaurant category were: Davanni’s and
Giordano's with Giordano’s winning the award. She presented Mr. Holland with the award.
Eric Holland, Giordano’s, 3000 West 66th Street, stated the Richfield food service industry was
one of the best in the cities.
Ms. Anderson stated the nominees in the fast food, pizza, and carry-out category were Five
Guys and Panda Express with Panda Express winning the award.
ITEM #2
APPROVAL OF THE AGENDA
M/Whalen, S/Trautmann to approve the agenda.
Motion carried: 4-0
ITEM #3
CONSENT CALENDAR
City Manager Rodriguez presented the consent calendar.
A. Consider approval of a Temporary On Sale Intoxicating Liquor license for an event
scheduled to take place June 10, 2023, at Fred Babcock VFW #5555, located at 6715
Lakeshore Drive (Staff Report No.61)
B. Consider the approval of a Temporary On Sale Intoxicating Liquor license for events
scheduled to take place July 3rd and 4th, 2023 at Fred Babcock VFW #5555, located at 6715
Lakeshore Drive (Staff Report No. 62)
C. Consider the approval of a Temporary On Sale intoxicating Liquor license for the Academy
of Holy Angels, located at 6600 Nicollet Avenue S., for their annual Rock The Lawn event
scheduled to take place June 24, 2023 (Staff Report No. 63)
M/Christensen, S/Whalen to approve the consent calendar.
Motion carried: 4-0
City Council Meeting Minutes -3- May 23, 2023
ITEM #4
CONSIDERATION OF ITEMS, IF ANY, REMOVED FROM CONSENT
CALENDAR
None.
ITEM #5
CONSIDER CONFIRMATION OF THE APPOINTMENT OF KUMUD VERMA TO
BE FINANCIAL DIRECTOR FOR THE CITY OF RICHFIELD (STAFF REPORT
NO. 65)
Council Member Whalen presented Staff Report 65.
City Manager Rodriguez stated she was impressed with Ms. Verma’s first year and she was
excited to see what Ms. Verma could do once she had a full staff.
M/Whalen, S/Trautmann to approve the appointment of Kumud Verma to be the Financial
Director for the City of Richfield.
Council Member Trautmann congratulated Ms. Verma on her new position.
Mayor Supple also congratulated Ms. Verma.
Motion carried: 4-0
ITEM #6
CONSIDER A REQUEST TO MODIFY (2024) AND THEN TERMINATE (2025)
BEST BUY’S MINIMUM ASSESSMENT AGREEMENT (STAFF REPORT NO. 66)
Council Member Trautmann presented Staff Report 66.
Director Poehlman reiterated that HRA staff and City staff felt that Best Buy had been an
important member of the community for the past 23 years. She noted due to the pandemic the
landscape of office developments had changed and everyone would like to find a beneficial solution for
Best Buy, without harming the HRA. She indicated there were representatives from Best Buy as well
as the HRA attorney and Jean Vogt from Ehlers were in attendance to answer any questions.
M/Trautmann, S/Whalen to deny a request to modify (2024) and/or terminate (2025) Best Buy’s
Minimum Assessment Agreement for Best Buy at 7601 Penn Avenue South.
Council Member Whalen stated he was open to some level of negotiating in good faith, but this
did not feel like a meeting halfway offer. He indicated for the City to put in the extra effort to do a big
audit and find out they are owed $851,000, but to be offered in return a 20% of an unknown figure felt
as if this wasn’t a mutually beneficial offer. He hoped they could continue the conversation though. He
did not doubt Best Buy’s analysis that their property was not worth the minimum value that it was legally
kept at due to the pandemic, but to find a path forward would have to be something that came closer to
addressing what the original agreement would say the City was receiving. He indicated his views had
not changed since the Council Work Session and he was open to removing the minimum assessment
agreement, but any deal would need to address the overpayment as well.
Council Member Trautmann stated what he meant by global settlement during the Work Session
was that he was persuaded by the City’s analysis that they are owned $851,000. However, he was
also delighted to learn there was the opportunity for the City to recoup that money, particularly since
City Council Meeting Minutes -4- May 23, 2023
Best Buy had the opportunity to receive some tax savings. He stated anything less than that was not a
proposal that he received in good faith. He believed they had an opportunity to get this done, but this
was not it and it was not hard to deny this proposal.
Mayor Supple stated she appreciated that Best Buy had done many things for the community in
which she was grateful for, but her first priority was to her fiduciary duty to the residents. She indicated
the Council had made it clear at the March Work Session that there should be no financial loss to the
HRA through any agreement. She noted the current proposal did not meet that criterion to do no harm,
so she could not support this request at this point as she believed it would be doing harm and this was
something she had to do as a fiduciary to the HRA and to the City. She stated she would be in favor of
denying the request at this point. She noted if the Council was voting yes to this motion, they would be
voting to deny the request.
Tracy Smith, BestBuy, reminded the Council that from the start of the development and
construction of the Best Buy campus, Best Buy and the City have partnered for their mutual benefit.
She noted Best Buy had built a vibrant corporate campus which served Best Buy, its vendors, and the
Richfield community well for over two decades. She noted Best Buy wanted to highlight the public
benefit from the Best Buy portion of the TIF district, which included almost 12 million in the payment of
bonds issued to finance public improvements, and almost 11 million to the HRA to fund its housing
initiatives. She indicated Best Buy had made significant charitable contributions to the City, nonprofits,
schools, and community activities.
Ms. Smith indicated today the unprecedented reordering of the Twin Cities office market
demanded swift action to keep the City’s largest commercial office building competitive. She believed
the City and the Best Buy office building needed to attract new business tenants. She stated they
needed to make changes now to the agreement to reflect market competitive property taxes, instead of
the arbitrary value that was set over two decades ago, which far exceeded today’s market value. She
noted that by waiting 2.5 years from now until the end of the TIF district to pay property taxes on a fair
market value base, they would have missed their opportunity to attract tenants looking for space right
now.
Ms. Smith noted she was in attendance at the Council Work Meeting in which it appeared the
Council agreed the benefits of Best Buy’s request to modify and ultimately terminate the Agreement
was a benefit as long as the HRA was made whole. She indicated Best Buy agreed to make the HRA
whole with respect to the consequences of the agreement and she believed Director Poehlman also
acknowledged that, so there was no dispute about making the City whole. She stated since the Council
Work Meeting, Best Buy had made two offers to resolve all issues globally. She noted in each of those
offers Best Buy had compromised its position by offering to accept significantly less than it believed it
was entitled to. However, she indicated the HRA had made no offers and stands firm that it was entitled
to 100 percent of its assertions. She stated the parties had been unable to reach a global resolution of
all legal issues.
Ms. Smith addressed the concept of overpayment in which the HRA had asserted there was an
$851,000 overpayment arising from errors and calculations from 10 years ago, but Best Buy did not
agree the overpayment was made. She stated the HRA currently had withheld 29 percent of the tax
increment (which was not disputed). She indicated at the end of the 2.5 years, the HRA was allowed
to use/spend $25 percent of the tax increment. She noted withholding additional funds now ($851,000)
would only increase the 29 percent currently withheld. She indicated the solution was not for the HRA
to withhold additional money increasing the withholdings that were already in excess of what they were
able to spend in the next 2.5 years. She stated the solution was to make additional payments pursuant
to the note to reduce the HRA’s withholding to the 25 percent by the end of the district. She asked the
Council to question if they end up with a 29 percent, and they can only spend 25 percent, 75 percent
was required to be paid on the bonds and to the Best Buy note. She noted they would have a problem
in 2.5 years and they were worsening that problem by claiming there is an overpayment right now.
City Council Meeting Minutes -5- May 23, 2023
Ms. Smith indicated they had invested over 10 months in discussions on how to make the orderly
wind down of this TIF district. She was not sure they appeared closer to a global resolution and they
might ultimately agree to disagree on some of those things, but the question was whether or not they
can get a done within the time necessitated to meet the deadlines so they could all benefit from the
reduction in property taxes.
Ms. Smith stated right now they had a corporate campus with an assessed value that might be
as much as twice its fair market value, which was a significant impediment to attracting new businesses
to the Best Buy’s corporate campus and to Richfield.
Ms. Smith explained they had one proposal for the City which was that 20 percent was set
because they were talking about mutual benefits, and the fact that they should share in some of this
benefit. She noted the 20 percent was somewhere in between and that was where they were saying
there was a compromise.
Ms. Smith also stated litigation hazards are always set at 20 percent also and that was another
generic boundary and in this case it worked for both. She indicated even though they do not agree
there was an overpayment, it gave them more than that and that there was a middle ground. She
indicated that was where they were trying in good faith to negotiate. She indicated if both parties stand
their ground at 100 percent, they will never find the middle.
Ms. Smith requested the Council approve their request to modify the agreement, either on a 20
percent basis or on a standalone basis. She noted on the standalone basis, Best Buy would reconfirm
that they would make the HRA whole by ensuring no loss of revenue to the HRA, or affordable housing
as a result of any assessed valuation changes. She indicated there was no downside to the HRA to
approving the standalone request. She stated there was also a substantial upside to the City by helping
to make the cost structure competitive for businesses they hope to attract to Richfield and the Best Buy
campus.
Council Member Whalen asked staff if Council were to approve the eventual removal of the
minimum assessment agreement and this overpayment, it was his understanding that if they were to
approve the eventual removal of the minimum assessment agreement and the make it whole provision,
that they are offering that they would lose their ability to recoup the overpayment amount if they were
to resolve just the MIAA portion.
Director Poehlman stated as discussed in the memo, the HRA believed they had the ability to
recoup the money regardless they are actually obligated by law to do so because it is an improper use
of TIF funds. She noted the Council and HRA could consider discussing the minimum assessment on
their own and then go ahead and move to recoup through the outstanding TIF payments over the next
couple of years. She indicated the idea behind a global solution was that they would like everyone to
acknowledge that this had happened, so they can take care of everything and not try to recoup that
money and have the parties end up in possible litigation.
Council Member Trautmann expressed appreciation for the comments. He appreciated Best
Buy’s participation in the community and if they were to mention all of them, they would be in the meeting
for a while. He believed the Best Buy building stood as a strategic error by isolating itself from the
Richfield community in very concrete structural ways. He noted it had been a vision to hermetically seal
the corporate campus away from the community and now that had revealed itself to be an strategic
move, both financially and communally. He believed they had an opportunity to turn the page, which
he recognized, but noted it was not as significant as how they show up as neighbors in the next
generation or two. He indicated they had asked for a forensic audit and there was nothing in the audit
where he believed they should move and he did not feel he would be voting in a good corporate
consciousness if they did move. He acknowledged Best Buy was offering the 20 percent to the City to
mitigate their litigation risk and he hoped in the next several weeks, they could come to an agreement.
However, it did nothing at this time to change his analysis.
City Council Meeting Minutes -6- May 23, 2023
Mayor Supple asked HRA attorney Eddington about why it was not fair to say the City had paid
29 percent to Best Buy. Attorney Eddington stated she had reviewed all of the contract changes and
amendments and indicated the contract changed the way TIF was paid to Best Buy and the HRA, which
was four times over the life of the contract. She noted in the early years the HRA received a lot of TIF
that they saved and kept as they were guessing what the TIF would be like. She indicated there were
numerous changes in the way TIF was paid overtime in the contract, and that was how the HRA had
funds in their possession. TIF funds that were legally theirs under the contract for many years. She
stated it would be helpful to know if Best Buy looked closely at the original contract and amendments,
which clearly showed how TIF was parsed out between the two parties over the last 23 years. She
noted the contract they had followed exactly what the contract provided each time the division of TIF
was changed and that was rock solid.
Mayor Supple stated the Best Buy representative had stated the City had taken in over 29
percent, but it was her understanding that the 29 percent referred to all three parts of the TIF district
and not just to the Best Buy portion and that has a bearing on the matters. Attorney Eddington
responded in development contracts, they could split out the TIF anyway they wanted. She noted the
contract provided the path as to who gets TIF, when, and in what amount. She indicated the 25 percent
was a rule where the HRA could only expand 25 percent, but it did not mean they cannot collect more
than that. She stated the HRA could collect as much as they wanted. She indicated some of the money
they received in the early days was used to put into the Affordable Housing Trust Fund through some
legislation. She indicated that was completely legal and it was their money pursuant to the contract and
that money went to the Affordable Housing Trust Fund. She stated the 25 percent currently for the
entire district had been met and the HRA had not expended more than 25 percent of their TIF, unless
it was pursuant to the legislation that they received.
Council Member Trautmann stated he was hesitant to have too many legal conversations, even
though nothing they were saying was privileged. He stated he was comfortable with Attorney
Eddington’s analysis and he appreciated it and he hoped they still had an opportunity to keep the
conversation going and reach a resolution with Best Buy.
Mayor Supple stated her point in asking the question was that both sides of the argument were
in the staff packet, but only one side was presented to Council and she wanted to make sure both sides
were presented. Director Poehlman stated the 29 percent that was being referenced in terms of statute
was actually irrelevant. She noted the 29 percent being referred to was strictly related to the Best Buy
portion of this district. She noted this was a scattered site district with three projects and that 25 percent
applies to the entirety of the District and the 29 percent related to Best Buy was irrelevant.
Council Member Whalen asked if the projected potential tax savings if the minimum assessment
agreement removed and they were successful by the June deadline, would Best Buy stand to save up
to $2 million in tax savings. Director Poehlman responded there was a range of values provided, but at
the maximum where the anticipated value would drop by nearly 50%, the two-year tax savings to Best
Buy was estimated to be about 2.4 million.
Council Member Whalen stated he did not disagree with Best Buy’s claim that they were
currently valued at higher than market value because of this agreement and that everything they said
about bringing people to the office space made sense. He believed this came down to the dispute over
an overpayment, but Best Buy would still have potentially up to $1.4 million in 2 years. He indicated to
him this felt like a negotiation.
Motion carried: 4-0
ITEM #7
CITY MANAGER’S REPORT
City Council Meeting Minutes -7- May 23, 2023
City Manager Rodriguez shared information regarding the new AV equipment in the Council
Chambers starting tomorrow.
City Manager Rodriguez responded to an Open Forum comment by Ms. Balaban who wanted
Commissioner contract information and pictures to be put on the City’s website. She noted they were
putting on the website a fillable form, which should be out later this week for the Chairs of the
Commissions. She indicated the names of the Commissions were already out there and they would
provide further contract information if asked. She stated this was similar to other cities. She indicated
they would also add pictures, group photos of the Commissions as staff had time to upgrade the
website.
City Manager Rodriguez thanked staff and Council for their advocacy on their legislative
platform items for the top three legislative asks. She indicated they had received full funding for Wood
Lake Nature Center’s new building at $12 million. She stated they also had the ability to bring a local
sales tax ask to the voters, and they made progress on local flexibility or EMS. He thanked
Representative Howard and Senator Wicklund.
Council Member Whalen asked for staff to make a summary of the legislative bills that had
been passed. City Manager Rodriguez responded they were collecting reports from various entities
and staff would start summarizing those and also putting together some estimates for some of the
other bills that would impact the City.
ITEM #8
CLAIMS AND PAYROLL
M/Trautmann, S/Whalen that the following claims and payrolls be approved:
U.S. BANK 05/23/2023
A/P Checks: 314285 - 314568 $1,672,123.72
Payroll: 178425 – 178725 43644 $760,871.28
TOTAL $2,432,995.00
Motion carried: 4-0
ITEM #9
HATS OFF TO HOMETOWN HITS
Council Member Whalen lifted up the strong legislative work and the Work Session that focused
on prioritizing actions within the climate action plan. He highlighted some wins on the sustainability front
including after years of the transit system operating at very low funding and there was a new plan to
raise revenue. He also indicated there was a billion dollars of climate investment across a variety of
things.
Council Member Christensen gave hats off to the Richfield Leadership Network. She indicated
there was an event this past week at the Community Center that brought together a wide variety of
community members, leaders, and business owners who all got together.
Council Member Trautmann gave hats off to Team Richfield and all of the City volunteers and
community members that showed up. He lifted up Senator Wicklund and Representative Howard as
well as City staff and the Mayor who had spent a lot of time advocating and getting the Richfield story
City Council Meeting Minutes -8- May 23, 2023
out to the Legislature. He stated he appreciated Congress member Omar, who visited on multiple
occasions to Wood Lake.
Mayor Supple echoed Council Member Trautmann’s comments and gave kudos to Chief
Henthorn for representing the City at the Legislative session. She also thanked the staff. She thanked
the legislators, Representative Howard, and Senator Wicklund. She highlighted some of the things
coming up including the City participating in the flags for Fort Snelling; the honoring of all veterans on
Memorial Day at the Veterans’ Memorial.
ITEM #10
ADJOURNMENT
M/Trautmann, S/Whalen to adjourn the meeting at 8:17 p.m.
Motion carried: 4-0
Date Approved: June 13, 2023
Mary Supple
Mayor
Dustin Leslie Katie Rodriguez
City Clerk City Manager
Proclamation of the City of Richfield
WHEREAS, Pride month is a positive stance against discrimination and violence toward
individuals who identify as lesbian, gay, bisexual, transgender, queer, intersex and asexual
(LGBTQIA) and celebrates sexual and gender identities; and
WHEREAS, the Richfield City Council and staff identified celebrating diversity and being
equitable as core values, recognizing that our diverse culture is one of our greatest strengths and
assets; and
WHEREAS, the month of June was chosen for Pride Month to commemorate the Stonewall
riots, which occurred in June 1969 and became a catalyst for the LGBTQIA movement; and
WHEREAS, LGBTQIA people have made, and continue to make, great and lasting
contributions to the City of Richfield and to the greater community; and
WHEREAS, while the LGBTQIA civil rights movement has achieved great progress, there
remains a great deal more progress to be had; and
WHEREAS, the Richfield Human Rights Commission supported this proclamation at its May
2rd, 2023 meeting and recommended The Richfield City Council do the same; and
Now, THEREFORE, I Mary Supple, mayor of Richfield, on behalf of the Richfield City
Council, do hereby proclaim the month of June 2023 as Pride Month in the City of
Richfield and call on the people of Richfield to observe this month with appropriate
programs, activities, and ceremonies, and continue to honor the contributions of
LGBTQIA residents throughout the year.
Proclaimed on this 13th day of June 2023
___________________________
Mary Supple, Mayor
Proclamation of the City of Richfield
WHEREAS, President Abraham Lincoln signed the Emancipation Proclamation on January 1, 1863,
declaring “that all persons held as slaves” within the rebellious states “are, and henceforward shall
be free”; and
WHEREAS, this freedom was deferred for many Black Americans as slaveholders seeking to
maintain their wealth and power kept word of this proclamation from their newly freed slaves, even
going so far as to forcefully relocate over 150,000 enslaved Black persons into Texas; and
WHEREAS, on June 19th, 1865, Union troops marched to Galveston, Texas to enforce the
Emancipation Proclamation and free the last enslaved Black Americans in Texas – over two years
after they were declared legally free; and
WHEREAS, on that day, June 19th, 1865, over 250,000 Black Americans embraced freedom by
executive decree in what became known as Juneteenth, or Freedom Day; and
WHEREAS, Juneteenth marks our country’s second Independence Day, celebrating freedom and
justice, and emphasizing the achievements of Black Americans after gaining their freedom; and
WHEREAS, the generations to follow saw continued oppression of these now free people, barring
countless Black Americans from enjoying the same privileges and successes as their white
counterparts; and
WHEREAS, the City of Richfield is committed to doing the work required to deconstruct systemic
racism and secure an equitable future for all citizens, and
WHEREAS, our community unites on this Juneteenth for the first time in celebration of these
shared goals, with the first annual Richfield Juneteenth Celebration.
NOW, THEREFORE, I, MARY SUPPLE, Mayor of the City of Richfield, do acknowledge the
relevance of June 19, 1865 and celebrate every June 19 as Juneteenth Freedom Day in the City
of Richfield and call on the people of Richfield to observe this day with appropriate programs,
activities, and ceremonies, and continue to honor the contributions of African Americans
throughout the year.
PROCLAIMED this 13th day of June 2023.
Mary Supple, Mayor
Proclamation of the City of Richfield
WHEREAS, John Elsen, born in Luxembourg in 1860, and his wife Barbara, moved to
Richfield and started a blacksmith shop in the same location as Elsen' Brother's Garage today, 7730
Portland Avenue. The exact date the shop opened is unknown, but the best guess is 1893; and
WHEREAS, Eugene John Elsen, born in 1892, joined his father in the blacksmith trade,
working alongside him in the shop and ultimately taking over ownership of the company. Eugene
also constructed a home at the property; and
WHEREAS, the main focus of the shop was blacksmith work. They provided shoes and
farrier services for the surrounding farmers horses, did plow mending, disc sharpening, and general
welding and repair. They also did general maintenance and repair of a new mechanical contraption
called the automobile; and
WHEREAS, due to the increase popularity of personal vehicles, they built truck bodies for
farmers and malt haulers in the shop. The trucks brought malt to the Schmidt Brewery on West 7th
Street in St. Paul and hauled the spent grain to the area to be used as animal feed; and
WHEREAS, Eugene’s had 4 sons Richard, Donald, Gerald, and Eugene Jr. In 1956, Donald
and Richard took over the business, renaming their company Elsen Service Garage. The business
focused on automotive repair and welding, as well as providing gasoline to the young community,
they had a pump for regular and tractor gas for the farmers who still lived in the area; and
WHEREAS, in 1993, Richard’s sons, Bob and Joe, took over, renamed the business Elsen
Brother’s Garage. They have continued to provide exceptional service to the community; and
WHEREAS, not only has their business been in the community for over 130 years and five
generations. The Elsens have been an important family in Richfield during that time; and
WHEREAS, they have proudly supported youth sports leagues including hockey and
baseball, as well as being involved with schools, churches, and the Richfield business community.
NOW, THEREFORE, I, MARY SUPPLE, Mayor of the City of Richfield, and its
citizens celebrate Elsen Brother’s Garage and the Elsen family as they have watched the
community change, from farmland and horses, to homes and highways, from hand forged
horseshoes, to electronic sensors and detectors.
PROCLAIMED this 13th day of June 2023.
Mary Supple, Mayor
AGENDA SECTION:CONSENT CALENDAR
AGENDA ITEM #6.A.
STAFF RE P ORT NO. 67
CIT Y COUNCIL ME E T ING
6/13/2023
RE P O RT P RE PA RE D B Y: Jake Whipple, C ivil E ngineer
D E PA RTME NT D IRE C TO R RE V IE W: K ristin A sher, P ublic Works D irector
6/6/2023
O THE R D E PA RTM E NT RE V IE W: N/A
C ITY MA NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/7/2023
I T E M F O R C O UNC IL C O NS ID E RAT I O N:
Consider approval of an extension to the temporary easement granted to Hennepin County for the
County State Aid Highway No. 52/Nicollet Avenue Safety Improvement Project at 70th Street.
E X E C UT IV E S UM M ARY:
A temporary easement was originally approved by the City Council on March 22, 2022. The temporary
easement went into effect April 1, 2022 and is set to expire J une 30, 2023. Due to high bid prices in 2022,
Hennepin County elected to rebid and construct the project in 2023. An extension of the temporary easement
until November 30, 2023 is required to complete construction of the project.
The portions of the project in Richfield include transportation infrastructure upgrades at the intersections of
70th St/Nicollet Ave and 76th St/Nicollet Ave. The upgrades include rehabilitation and/or replacement of traffic
signals (including pedestrian signal upgrades), reconstruction of pedestrian sidewalk ramps and crosswalks,
miscellaneous curb and gutter replacements, and minor utility adjustments.
RE C O M M E ND E D AC T I O N:
By Motion: Approve the extension to the temporary easement granted to Hennepin County for
the County State Aid Highway No. 52/Nicollet Avenue Safety Improvement Project at 70th Street.
B AS IS O F RE C O M M E ND AT I O N:
A.H IS TOR IC AL C ON T E X T
The County is leading a safety improvement project along County State Aid Highway No. 52/Nicollet
Avenue at 70th and 76th streets within the City, which includes upgrading pedestrian ramps to current
Americans with Disabilities Act (A D A) standards, including installation of Accessible Pedestrian Signals
(A P S) and traffic signal systems at the intersections.
B.P OL IC IE S (resolutions, ordinances, regulations, statutes, etc):
The County State Aid Highway No. 52/Nicollet Ave Safety I mprovement Project is consistent with the
following approved plans:
Comprehensive Plan (Chapter 7 - Transportation)
Pedestrian Master Plan
Bicycle Master Plan
Complete Streets Policy
C.C R IT IC AL T IMIN G IS S U E S:
The temporary easement extension needs to be approved in order for Hennepin County to continue
construction beyond J une 30, 2023.
D.F IN AN C IAL IMPAC T:
None
E.L E GAL C ON S ID E R AT ION:
The City Attorney has reviewed the temporary easement extension and will be available to answer
questions.
ALTE R N AT IV E R E C O MME N D ATIO N(S):
None
P R IN C IPAL PAR TIE S E X P E C TE D AT ME E TIN G:
None
AT TAC H ME N T S:
D escription Type
Temporary E asement E xtension C ontract/A greement
1
DOCSOPEN\RC160\4\877717.v1-5/22/23
DOCSOPEN\RC160\4\877717.v1-5/22/23
EXTENSION OF TEMPORARY EASEMENTS
THIS INSTRUMENT is made this ______ day of , 2023,
by the City of Richfield, a municipal corporation under the laws of the State of Minnesota, Grantor,
in favor of the County of Hennepin, a body politic and corporate under the laws of the State of
Minnesota, Grantee.
RECITALS
A. Grantor is the fee owner of certain real property located in Hennepin County, Minnesota
(PID No. 34-028-24-21-0001) and legally described on Exhibit A attached hereto (the “Property”).
B. By an instrument dated March 22, 2022, Grantor conveyed to Grantee temporary
construction easements (the “Temporary Easement”) over portions of the Property as legally
described on the Temporary Easement instrument.
C. Grantor and Grantee agree to modify the Temporary Easement as follows.
TERMS
1. Extension of Term. For good and valuable consideration, receipt of which is acknowledged
by Grantor, Grantor grants and conveys the following extension of the Temporary Easement:
The term of the Temporary Easement as described in Paragraph 7 of the Temporary
Easement shall be extended and the easement granted therein will now expire on November
30, 2023.
2. No Other Modifications. This Instrument does not modify the Temporary Easement except
for those express terms herein.
2
DOCSOPEN\RC160\4\877717.v1-5/22/23
GRANTOR
CITY OF RICHFIELD
By:
Mary Supple, Mayor
By:
Katie Rodriguez, City Manager
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.
The foregoing instrument was acknowledged before me this ____ day of ,
2023, by Mary Supple and Katie Rodriguez, the Mayor and City Manager, respectively, of the City
of Richfield, a municipal corporation, on behalf of the City as Grantor.
Notary Public
NOTARY STAMP OR SEAL
THIS INSTRUMENT DRAFTED BY:
Kennedy & Graven, Chartered (SCZ)
150 South Fifth Street, Suite 700
Minneapolis, MN 55402
(612) 337-9300
A-1
DOCSOPEN\RC160\4\877717.v1-5/22/23
EXHIBIT A
Legal Description of the Property
That part of Government Lot 4, Section 34, Township 28, Range 24 which lies East of a line drawn
parallel with the East line of the Minneapolis, Northfield & Southern Railroad right of way from a
point in the South line of said Lot 4 distant 415 feet East of the East line of said right of way as
measured along the South lines of Government Lots 4 and 5, said Section 34, except that part thereof
described as follows:
Beginning at the Southeast corner of said Government Lot 4; thence North along the
East line of said Government Lot 4 a distance of 599.74 feet; thence West, at a right
angle, a distance of 120.00 feet; thence Southwesterly, deflecting to the left 45 degrees
00 minutes 00 seconds, a distance of 185.00 feet; thence South, deflecting to the left
45 degrees 00 minutes 00 seconds a distance of 135.00 feet; thence Southwesterly,
deflecting to the right 45 degrees 00 minutes 00 seconds, a distance of 111.97 feet,
more or less, to the intersection with a line drawn parallel with the East line of said
Government Lot from a point on the South line of said Government Lot distant 330.00
feet West from the Southeast corner of said Government Lot; thence South, along said
parallel line, a distance of 257.36 feet, more or less, to said South line; thence East,
along said South line a distance of 330.00 feet to the point of beginning.
AGENDA SECTION:CONSENT CALENDAR
AGENDA ITEM #6.B.
STAFF RE P ORT NO. 68
CIT Y COUNCIL ME E T ING
6/13/2023
RE P O RT P RE PA RE D B Y: Jennifer A nderson, S upport S ervices Manager
D E PA RTME NT D IRE C TO R RE V IE W: Jay Henthorne, D irector of P ublic S afety/C hief of P olice
6/5/2023
O THE R D E PA RTM E NT RE V IE W:
C ITY MA NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/8/2023
I T E M F O R C O UNC IL C O NS ID E RAT I O N:
Consider the approval of setting a public hearing to be held on June 27, 2023, to consider the
issuance of ne w On-Sale Wine and 3.2 Pe rce nt Malt Liquor licenses for Toma Richfie ld, L L C
dba Toma Mojo Grill, locate d at 1700 66th Stree t East.
E X E C UT IV E S UM M ARY:
On April 13, 2023, the City received the application materials for new On-Sale W ine and 3.2 Percent Malt
Liquor licenses for Toma Richfield, LLC, dba Toma Mojo Grill, located at 1700 66th Street East.
All required information and documents have been received. All licensing fees have been paid.
RE C O M M E ND E D AC T I O N:
By motion: Approve the setting of a public hearing to be held on June 27, 2023, to consider the
issuance of new On-Sale Wine and 3.2 Percent Malt Liquor licenses for Toma Richfield, L LC, dba Toma
Mojo Grill, located at 1700 66th Street East.
B AS IS O F RE C O M M E ND AT I O N:
A.H IS TOR IC AL C ON T E X T
This is a notice to set the public hearing. Staff will provide a more detailed historical context in the report
submitted for the public hearing on J une 27, 2023.
B.P OL IC IE S (resolutions, ordinances, regulations, statutes, etc):
City ordinance requires the City Council to conduct a public hearing to consider all On-Sale
W ine and 3.2 Percent Malt Liquor license applications and set a date for the public hearing.
The hearing must be scheduled and held before a new license may be considered.
The new process has been initiated.
C.C R IT IC AL T IMIN G IS S U E S:
Holding the public hearing on J une 27, 2023 will provide ample time to complete the licensing process.
D.F IN AN C IAL IMPAC T:
All licensing fees have been received.
E.L E GAL C ON S ID E R AT ION:
There are no legal considerations.
ALTE R N AT IV E R E C O MME N D ATIO N(S):
Reject the applications for new On-Sale W ine and 3.2 Percent Malt Liquor licenses for Toma Richfield,
LLC, dba Toma Mojo Grill.
Schedule the public hearing for another date; however, this will delay the licensing process.
P R IN C IPAL PAR TIE S E X P E C TE D AT ME E TIN G:
There are no parties expected at this meeting.
AGENDA SECTION:CONSENT CALENDAR
AGENDA ITEM #6.C.
STAFF RE P ORT NO. 69
CIT Y COUNCIL ME E T ING
6/13/2023
RE P O RT P RE PA RE D B Y: Jay Henthorne, D irector of P ublic S afety/C hief of P olice
D E PA RTME NT D IRE C TO R RE V IE W: Jay Henthorne, D irector of P ublic S afety/C hief of P olice
6/5/2023
O THE R D E PA RTM E NT RE V IE W:
C ITY MA NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/7/2023
I T E M F O R C O UNC IL C O NS ID E RAT I O N:
Consider the approval of an agreement for Prosecution Services with the City of Richfield and H/J
Law.
E X E C UT IV E S UM M ARY:
The City of Richfield Department of Public Safety is required to have a attorney licensed to practice law in
Minnesota, to advise and represent the City in municipal prosecutions relating to criminal and civil statutes
and ordinances.
RE C O M M E ND E D AC T I O N:
By motion: Approve the contract agreement for Prosecution Services with H/J Law for the City of
Richfield Department of Public Safety.
B AS IS O F RE C O M M E ND AT I O N:
A.H IS TOR IC AL C ON T E X T
For the last 33 years City Prosecutor Martin Costello had been the prosecuting attorney for the
City of Richfield Department of Public Safety.
H/J Law has represented the City of Richfield Department of Public Safety for municipal
prosecution since J uly 1, 2022.
B.P OL IC IE S (resolutions, ordinances, regulations, statutes, etc):
The City of Richfield Department of Public Safety is required by law to have a municipal prosecutor to
handle state statute, and local ordinance violations; along with expungements, and diversions.
C.C R IT IC AL T IMIN G IS S U E S:
The City of Richfield Department of Public Safety is required to have a prosecuting attorney. The
current contract with H/J Law expires on J une 30, 2023.
D.F IN AN C IAL IMPAC T:
For all prosecution services, the City of Richfield shall pay a monthly retainer fee of $15,000.00, with an
annual limit of $180,000.00, plus out of pocket expenses.
E.L E GAL C ON S ID E R AT ION:
The contract agreement for a municipal prosecutor is to process those violations that are within the
scope of city ordinance and non felony level under state statute. The prosecutor also guides and
educates city staff on appropriate action and helps the city manage risk in those situations which are
legal in nature.
ALTE R N AT IV E R E C O MME N D ATIO N(S):
The City Council could decide to not approve the agreement, however the Department of Public Safety would
then need to find another law firm to handle the department's municipal prosecutions.
P R IN C IPAL PAR TIE S E X P E C TE D AT ME E TIN G:
AT TAC H ME N T S:
D escription Type
C ontract C ontract/A greement
AGREEMENT FOR PROSECUTION SERVICES
BETWEEN
CITY OF RICHFIELD
AND
H|J LAW
This Agreement for Prosecution Services (Agreement) is effective as of July 1, 2023, by and
between the City of Richfield, 6700 Portland Avenue South, Richfield, Minnesota 55423 (City),
and H|J Law, 900 American Boulevard East, Suite 24, Bloomington, MN. 55420 (Prosecutor).
WHEREAS, the City desires (or requires) attorneys licensed to practice law in Minnesota
to advise and represent the City in municipal prosecutions; and
WHEREAS, the attorneys working with the Prosecutor are licensed to practice law in
Minnesota and are experienced in and familiar with all phases of mun icipal prosecution and
desire to provide the prosecution services required by the City; and
WHEREAS, the parties hereto want to enter into a written agreement to set forth the
terms, conditions, compensation, duties, responsibilities an d other matters relating to the
Prosecutor providing said services to the City.
NOW, THEREFORE, it is agreed by and between the City and the Prosecutor that the
City does hereby retain and designate the Prosecutor as the Richfield City Prosecutor, effective
July 1, 2023, and the Prosecutor does hereby accept the position of Richfield City Prosecutor and
agrees to perform the requirements of that position, all on the terms and conditions hereinafter
set forth.
A. Services.
1. The Prosecutor hereby agrees to perform and furnish these legal services to the
City:
a. Appearing at all required court hearings, including arraignments, pretrial and
omnibus hearings, court trials, jury trials, sentencing hearings, probation
violation hearings, and other appearances for non-felony cases;
b. Assembling all required case files and providing timely discovery to criminal
defense attorneys and/or defendants;
c. Charging non-felony cases;
d. Prosecuting forfeitures related to non-felony cases;
e. Prosecuting all City ordinance violations;
f. Working collaboratively with the City’s domestic abuse victim advocates;
- 2 -
g. Advising the City Council and staff on ordinance drafting, code enforcement,
and related matters;
h. Providing police training on a mutually-agreed upon basis with the
Department of Public Safety, but at least annually;
i. Consulting with and advising the Department of Public Safety command staff,
investigators, patrol officers, and administrative staff on all matters relating to
non-felony prosecutions. This includes being available by telephone to
consult with officers after business hours and on the weekends, as needed;
j. Attending all necessary meetings with City and Department of Public Safety
staff;
k. Making reports, as requested, to the City Council regarding non -felony
prosecutions;
l. Speaking at City-related functions on criminal law-related topics;
m. Maintaining an office presence at the Police Department, to include at least 3
half-days per week at the Department of Public Safety; and
n. Completing any other duties and responsibilities necessary to effectively
prosecute the City’s criminal, traffic, and ordinance violations.
B. Fees and Costs.
1. For all prosecution services, the City shall pay the Prosecutor a monthly retainer
fee of $15,000.00, with an annual limit of $180,000.00, plus out-of-pocket
expenses.
2. Monthly bills will be for the above monthly retainer fee, plus identify and itemize
any and all out-of-pocket expenses, e.g., certified documents or witness subpoena
fees.
3. Additional costs of $250 per hour when representing the City in appeals arising
from non-felony prosecutions;
C. Conflicts of Interest.
1. The Prosecutor will not represent any clients in legal actions involving Richfield
or with interests adverse to those of Richfield, including any units of government
having jurisdiction within or contiguous to Richfield. The Prosecutor shall use
best efforts to meet all professional obligations to avoid conflicts of interest and
appearances of impropriety.
2. In the event that a conflict of interest arises in any cases, the Prosecutor, with the
consent of the City, agrees to refer those matters to outside counsel for
prosecution at the City’s expense.
- 3 -
D. Insurance.
1. The Prosecutor will maintain malpractice insurance coverage for all attorneys
providing prosecution services to the City.
E. Term of Contract - Termination.
1. The term of this Agreement shall be one year unless amended in writing by the
mutual agreement of the parties hereto or terminated in accordance with the
conditions hereinafter contained. The last day of the one-year term is June 30,
2024.
2. This Agreement may be terminated by the City at any time or by the Prosecutor
upon sixty (60) days’ written notice to the City. In either event, on the termination
of this Agreement, all finished and unfinished documents and work papers
prepared by the Prosecutor pursuant to this Agreement shall become the property
of the City and the Prosecutor will be paid for services satisfactorily performed up
to the date of termination.
F. Miscellaneous.
1. All services provided by the Prosecutor pursuant to this Agreement are provided
by the Prosecutor as an independent contractor and not as an employee of the City
for any purpose, including but not limited to: income tax withholding, workers’
compensation, unemployment compensation, FICA taxes, liability for torts and
eligibility for employee benefits.
2. Except as provided in Section C(2) of this Agreement relating to conflicts of
interest, the rights and obligations created by this Agreement may not be assigned
by either party.
3. Data provided to the Prosecutor under this Agreement shall be administered in
accordance with the Minnesota Government Data Practices Act, Minnesota
Statutes, Chapter 13.
4. Nothing in this Agreement shall preclude the City from retaining legal counsel
other than the Prosecutor in any legal matters including, but not limited to,
litigation and other specialized areas of law.
5. The Prosecutor agrees not to discriminate in providing services under this
Agreement on the basis of race, color, sex, creed, national origin, disability, age,
sexual orientation, status with regard to public assistance, or religion.
6. This Agreement shall be governed by and construed in accordance with the laws
of the State of Minnesota. Any disputes, controversies, or claims arising out of
this Agreement shall be heard in the state or federal courts of Minnesota, and all
- 4 -
parties to this Agreement waive any objection to the jurisdiction of these courts,
whether based on convenience or otherwise.
7. In the event that any provision of this Agreement shall be illegal or otherwise
unenforceable, such provision shall be severed, and the balance of the Agreement
shall continue in full force and effect.
8. This Agreement, including any addenda or amendments subsequently signed by
both parties, shall constitute the entire agreement between the City and the
Prosecutor, and supersedes any other written or oral agreements between the City
and the Prosecutor. This Agreement can only be modified in writing signed by
both the City and the Prosecutor.
Executed this _____ day of June, 2023.
H|J LAW CITY OF RICHFIELD
Gregory P. Holly Mary Supple
Attorney at Law Mayor
Katrina E. Joseph Katie Rodriguez
Attorney at Law City Manager
AGENDA SECTION:CONSENT CALENDAR
AGENDA ITEM #6.D.
STAFF RE P ORT NO. 70
CIT Y COUNCIL ME E T ING
6/13/2023
RE P O RT P RE PA RE D B Y: S am C rosby, P lanner II
D E PA RTME NT D IRE C TO R RE V IE W: Melissa P oehlman, C ommunity D evelopment D irector
6/1/2023
O THE R D E PA RTM E NT RE V IE W:
C ITY MA NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/7/2023
I T E M F O R C O UNC IL C O NS ID E RAT I O N:
Consider a two-part request: site plan review and a two-stall parking variance for Afghan Halal
Supermarket at 6626 Penn Avenue South.
E X E C UT IV E S UM M ARY:
Afghan Halal Supermarket (Applicant) is proposing to locate at 6626 Penn Avenue South. The property is
zoned Mixed Use – Community (MU-C) within the Penn Avenue Corridor (PA C) overlay. The proposed use is
permitted in this zoning district; site plan approval is required because the use of the property is changing.
The on-street parking on Penn Avenue begins in front of the subject site and continues southward. Two on-
street stalls are located directly in front of the property. The request includes a Council determination to allow
the use of on-street parking towards off-street parking requirements, as further outlined in the Policies
section, below.
The parking variance is somewhat of a technicality, as the City’s Zoning Code does not permit tandem
spaces. The drive aisle along the north side of the building is not required for vehicular circulation or
emergency vehicle access. The drive aisle can accommodate four cars, but three of them do not “count”
because they are tandem. The Applicant anticipates four employees. Staff finds that allowing the drive aisle to
be designated as “employee parking only” is appropriate justification for the two-stall variance. Staff
recommends that it be signed as such and be striped with arrows indicating one-way east bound traffic flow.
The requested use includes a takeout area toward the back of the store; most grocery stores have a deli
counter with pre-made foods. No seating is proposed and will be included as a condition of approval.
RE C O M M E ND E D AC T I O N:
By motion: Approve the proposed site plan and parking variance for 6626 Penn Avenue South.
B AS IS O F RE C O M M E ND AT I O N:
A.H IS TOR IC AL C ON T E X T
The 5,905 square foot parcel is almost entirely impervious; it has been so since developed in 1947
according to Hennepin County aerial records. The building currently contains two tenant spaces:
the south half of the building is Northland Staffing Solutions (office), the north half of the building
is vacant, but was previously Beta World (retail). Retail requires only slightly more parking per
square foot than office. Health clubs, coffee shops, veterinary and medical clinics, and
restaurants all require more parking than retail. So the proposed use is one of the less intensive
change of uses possible. I t stifles business if there isn’t a little flexibility in the potential use of
available space. The Applicant has the property under contract for purchase contingent upon
zoning approval.
At the Planning Commission's public hearing, only the Applicant and their representatives were in
attendance. The Commission voted 6-0 to recommend approval of the request.
B.P OL IC IE S (resolutions, ordinances, regulations, statutes, etc):
Zoning Code Section 547.13 establishes requirements for site plan review. The Applic ant is
improving the property by restriping the parking stalls, adding bicycle parking and repairing the
failing retaining wall. The attac hed findings of fac t provide further support for staff’s
recommendation for approval.
Zoning Code Section 544.13, “Vehicle parking and loading requirements" Subd.6,
establishes requirements for parking minimums based on the use of the property. A total of
eleven parking stalls are required for the proposed use (2,700 sq. ft. of retail at four stalls
per 1,000 sq. ft.). With the 10% (one stall) reduction for proximity to transit (any parcel
which is located within 1/4 mile of a frequently operating transit line) and the 5% (one
stall) reduction in exchange for excess bike parking (four bicycle spaces is equivalent to
one car parking space), the minimum number of required off-street parking spaces is
reduced to nine.
Subd.9.d of the same Code Section, “Parking for retail and service uses may be reduced
if on-street parking is adjacent to the parcel and where all of the following conditions exist:
i. The principal building is located within 20 feet of the front property line [complies];
ii. No parking exists between the front face of the principal building and the street [complies];
iii. A sidewalk exists along all sides of the lot that abut a public street [complies];
iv. A primary building entrance must face the street with parking [complies]; and
v. I f the Council finds that such parking will not be detrimental to the surrounding neighborhood.”
W ith this provision applied, the on-site parking requirement decreases from nine to seven.
Per Code, only five of the on-site stalls may be counted, hence the two stall variance.
Zoning Code Section 547.11 establishes the requirements for Variances. As mentioned in
the executive summary, staff supports the requested variance based on the presence of
three tandem stalls. T he attached findings of fact provide further support staff’s
recommendation for approval.
Zoning Code Section 544.27 Subd.1 - All new uses that contain cooking apparatus which
necessitates the installation of a Type 1 Ventilation Hood and which abut (or are located within 150
feet even if not abutting) existing residential property shall install professionally-designed odor
control remedies. I f triggered, details must be included on the building plans prior to the issuance
of a building permit.
Zoning Code Section 544.05. – Refuse collection, recycling and utilitarian elements shall
be designed into the interior space of buildings or adequately screened from view. How
the Applicant plans to comply must be detailed on the building plans prior to the issuance
of a building permit.
C.C R IT IC AL T IMIN G IS S U E S:
The statutory 60 day review period started when a complete application was received on May 5,
2023. Therefore, the 60-day clock ends on J uly 3, 2023.
D.F IN AN C IAL IMPAC T:
None; required application fees have been paid.
E.L E GAL C ON S ID E R AT ION:
Notice of the public hearing was published in the Sun Current newspaper on May 11, 2023, and
was mailed to properties within 350 feet of the subject site.
T he Planning Commission held a public hearing on May 22, 2023 and unanimously
recommended approval of the request as presented.
ALTE R N AT IV E R E C O MME N D ATIO N(S):
Approve the request with additional and/or modified stipulations.
Denial the request with a finding that the proposal does not meet City requirements.
P R IN C IPAL PAR TIE S E X P E C TE D AT ME E TIN G:
None.
AT TAC H ME N T S:
D escription Type
Resolution of A pproval - S ite P lan & Variances Resolution L etter
Required F indings S tatement B ackup Material
Zoning/L ocation Map E xhibit
A pplicant's Request L etter B ackup Material
A rchitect's Written Narrative B ackup Material
S ite P lan B ackup Material
F loor P lans B ackup Material
Grocery S tore Half Mile Walkshed Map B ackup Material
RESOLUTION NO. ______
RESOLUTION APPROVING A SITE PLAN AND
A TWO STALL PARKING VARIANCE
AT 6626 PENN AVENUE SOUTH
WHEREAS, an application has been filed by Afghan Halal Supermarket with the City of
Richfield which requests approval of a two stall off-street parking variance, and a
proposed site plan for a partial change of use from office to retail at 6626 Penn Avenue
South, property legally described as:
LOT 8, BLOCK 1, TINGDALE BROS., LINCOLN HILLS, HENNEPIN COUNTY,
MINNESOTA
WHEREAS, the Planning Commission of the City of Richfield held a public hearing
at its May 22, 2023 meeting and recommended approval of the requested site plan and
variance; and
WHEREAS, the property is currently half retail, half office; and
WHEREAS, Zoning Code Section 544.13, Subdivision 6, establishes the minimum
number of required off-street parking spaces, which totals eleven spaces for the property
to be entirely retail; and
WHEREAS, Zoning Code Section 544.13, Subdivision 8, allows a reduction of five
percent of the number of required off-street parking spaces for excess bike parking (four
bicycle spaces is equivalent to one parking space) and ten percent for proximity to transit
(any parcel which is located within a quarter mile of a frequently operating transit line),
bringing the total required off-street parking spaces down to nine; and
WHEREAS, Zoning Code Section 544.13, Subdivision 9 .d, allows the City Council
to approve adjacent on-street parking to count towards off-street requirements for retail
and service uses, and there are two on-street spaces directly in front of the subject site,
bringing the total requirement for off -street parking spaces down to seven; and
WHEREAS, there are five parking stalls available on site, and the applicant has
agreed to reserve the drive aisle along the north side of the building for tandem parking
by employees only, creating space for three additional cars; and
WHEREAS, notice of the public hearing was mailed to properties within 350 feet of
the subject property and published in the Sun Current newspaper on May 11, 2023; and,
WHEREAS, the City has fully considered the request;
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of
Richfield, Minnesota, as follows:
1. The City Council adopts as its Findings of Fact the WHEREAS clauses set forth
above.
2. The City Council further adopts as its Findings of Fact the findings listed in the
Required Findings Statement.
3. The request to count two on-street parking stalls towards off-street parking
requirements, site plan approval, and a two-stall parking variance are all hereby
approved subject to the following conditions:
a. No seating is proposed or approved.
b. All required parking spaces shall remain available year-round and shall not be
used for snow storage.
c. The north side drive aisle shall be used as employee parking only and shall be
signed as such.
d. Odor control, and if necessary associated screening, shall be provided per
code.
e. Trash and recycling shall be fully enclosed or stored inside the building per
code.
f. Separate sign permits are required for any new or relocated sign greater than
six square feet in size.
g. The applicant is responsible for obtaining all required permits, and compliance
with all other City, County and State regulations.
h. No lighting changes are proposed or approved.
Prior to the issuance of a building permit, the applicant shall:
i. Provide a SAC determination from the Met Council.
j. Provide proof of having recorded a copy of this resolution of approval.
k. Provide bike rack specs and a close-up dimensioned diagram of the installation
area for staff review and approval.
l. Indicate how trash and recycling will be handled.
Prior to the issuance of a Certificate of Occupancy, the applicant shall:
m. Either provide a surety equal to 125% of the value of any improvements not yet
complete, or:
n. All parking areas must restriped,
o. The retaining wall shall be repaired,
p. Bike racks shall be installed according to manufacturer’s specifications,
q. Odor control shall be installed,
r. All required screening shall be installed, and
s. All directional signage shall be installed.
4. This approval shall expire one year from issuance unless the use for which the
permit was granted has commenced, substantial work has been completed or
upon written request by the applicant, the Council extends the expiration date for
an additional period, as required by the Zoning Ordinance, Section 547.13, Subd.
9.
Adopted by the City Council of the City of Richfield, Minnesota this 13th day of
June, 2023.
Mary B. Supple, Mayor
ATTEST:
Dustin Leslie, City Clerk
Required Findings
Afghan Halal Supermarket / 6626 Penn Avenue South
Part 1 - Site Plan Approval (Subsection 547.13) In evaluating a site plan, the Planning
Commission and Council shall consider its compliance with the following:
a) Consistency with the various elements and objectives of the City’s long range plans
including, but not limited to, the Comprehensive Plan.
While the Penn Avenue Corridor is intended for redevelopment, redevelopment is not
eminent. The proposed changes improve the property as much as possible given existing
conditions and will help span the gap between current day and future redevelopment.
Objective 2.4 of Goal 6 of the Climate Action Plan is: “Measure proximity of grocery stores to
residential areas, specifically pedestrian access within a half-mile radius of grocery stores.
Use this information in program development to focus on increasing equity.” Staff created
the attached Grocery Store Half Mile Walkshed Map and found that the proposed
supermarket would help to fill a gap near the “equator” of the City. The City’s 2040
Comprehensive Plan has both social equity and health equity as foundational principles.
Ethnic grocery stores increase equity because people are able to recognize healthy food
choices through their own food traditions. Consequently, the proposed use is consistent with
long range plans and objectives.
b) Consistency with the purposes of the Zoning Code.
The proposed grocery store is allowed in the MU-C zoning district and is otherwise
consistent with purpose and intent of the Zoning Code. Mixed use is desired but not required
for sites less than 2 acres in size.
c) Preservation of the site in its natural state, insofar as practicable, by minimizing tree and soil
removal, and designing any grade changes so as to be in keeping with the general
appearance of neighboring developed or developing areas.
N/A - The site is not being developed or redeveloped; the building is simply being
remodeled.
d) Creation of a harmonious relationship of buildings and open spaces with the terrain and with
existing and future buildings having a visual relationship to the proposed development.
N/A – No exterior changes are proposed beyond maintenance.
e) Creation of a functional and harmonious design for structures and site features including:
i. Creation of an internal sense of order for the various functions and buildings on the site
and provision of a desirable environment for occupants, visitors, and the general
community;
N/A - No external changes proposed.
ii. Appropriateness of the amount and arrangement of open space and landscaping to the
design and function of the development;
N/A – The property does not contain open space and no changes are proposed.
iii. Appropriateness of the materials, textures, colors and details of construction as an
expression of the design concept of the project and the compatibility of the same with
the adjacent and neighboring structures and functions;
N/A – no exterior changes are proposed, any rooftop mechanical equipment will be
located away from view or screened.
iv. Adequacy of vehicular, cycling and pedestrian circulation, including walkways, interior
drives and parking, in terms of location and number of access points to the public
streets, width of interior drives and access points, general interior circulation, separation
of pedestrian, cycling and vehicular traffic and arrangement and amount of parking so as
to be safe, convenient and, insofar as practicable, compatible with the design of
proposed buildings, structures and neighboring properties.
The proposal improves bike parking - both required and extra exterior bicycle parking will
be installed.
f) Creation of an energy-conserving design through design location, orientation and elevation
of structures, the use and location of glass in structures, and the use of landscape materials
and site grading.
N/A – No changes are proposed.
g) Protection of adjacent and neighboring properties through reasonable provisions for such
matters as surface water drainage, sound and sight buffers, preservation of views, light and
air, and those aspects of design, not adequately covered by other regulations, which may
have substantial effects on neighboring land uses.
There are no exterior changes and no negative aspects of the design are expected to affect
neighboring properties.
Part 2 – Parking Variance: (Subsection 547.11) In evaluating a variance, the Planning
Commission and Council shall consider the following:
a) There are “practical difficulties” that prevent the property owner from using the property
in a reasonable manner.
In the continuum of parking demand, an office use is the mid to low end of the spectrum.
The size of the building relative to the lot is an existing condition which creates a
difficulty if the owner desires to convert the building use to anything more parking-
intensive than office. The Applicant proposes to use the property in a reasonable
manner and the considerations are not economic in nature.
b) There are unusual or unique circumstances that apply to the property which were not
created by the applicant and do not apply generally to other properties in the same zone
or vicinity.
The existing conditions may be similar to other properties in the immediately surrounding
area, however, they were not created by the Applicant.
c)
c) The variance would not alter the character of the neighborhood or the locality.
Being that the drive aisle along the north side of the building will be used for employee
parking in an amount equivalent to, or in excess of, the size of the variance being
requested, the variance is not anticipated to alter the character of the neighborhood.
d) The variance is the minimum necessary to alleviate the practical difficulty.
To the extent possible, the Applicant has tried to maximize the amount of parking on site
to ensure that the requested variance is the minimum variance necessary to alleviate the
difficulty.
e) The variance is in harmony with the general purpose and intent of the ordinance and
consistent with the Comprehensive Plan.
In relation to the zoning ordinance, the purpose and intent of the Penn Avenue Corridor
District is to “provide for a balanced mix of commercial, office and residential uses that
together create a cohesive and pedestrian-friendly area.” The creation of a grocery store
further south on Penn Avenue helps to serve an area not currently within a half mile walk
of another grocery store, improving the “pedestrian friendliness” of the area. In relation to
the Comprehensive Plan, while the Penn Avenue Corridor is intended for
redevelopment, redevelopment is not eminent. The subject use will help span the gap
between current day and future redevelopment.
[
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Location and Zoning Map
0 210 420105ft
I:\GIS\Community Development\Case Maps\2023\Afghan Halal.mxd
6626 Penn Avenue South
Afghan Halal Supermarket
Legend
Penn Ave Corridor Overlay
R Single-Family
PMR Planned Multi-Family
MR-2 Multi-Family
MR-3 High-Density Multi-Family
C-1 Community Commercial
C-2 General Commercial
PMU Planned Mixed Use
MU-C Mixed Use-CommunitylSUBJECTSITE
To the Distinguished Members of Planning Commission and Richfield City Council:
I am writing to express the importance of establishing an Afghan ethnic grocery store for the
Afghan community in the city of Richfield. As a member of the Afghan community living in
Minnesota, I understand the challenges that our community is facing, especially with the recent
collapse of the republic government of Afghanistan.
The state of Minnesota has announced that it will welcome 2000 immigrants and refugees from
Afghanistan, and so far, around 1700 individuals have resided in Minnesota, with the majority of
these families living around the twin cities. As per our estimate, around 200 families are living
from south Minneapolis to Burnsville, Minnesota.
One of the major challenges that this newly established community is facing is accessing
culturally oriented groceries. While some stores that have similar groceries are located on
Central Ave in North Minneapolis, the majority of these families don’t have reliable
transportation and have to spend hours on public transportation to obtain their cultural food. This
affects their ability to work full-time jobs and support their families.
To address this issue, we plan to help the community and open a store in Richfield. The store
will not only serve the Afghan community in Richfield but also serve community members from
Bloomington, Edina, Burnsville, and south of Minneapolis. This opportunity will enable the
Afghan community to have access to all kinds of cultural food and products, save them time, and
mitigate transportation issues.
An Afghan ethnic grocery store would not only provide access to unique and delicious foods, but
it would also be a place where people can come together and share their love of food and culture.
Therefore, I urge you to consider the benefits of establishing an Afghan ethnic grocery store in
our community and to support our efforts to make it a reality.
Thank you for your attention to this matter.
Best regards,
Masehullah Sahil
767 N. Eustis St., Ste 190
St. Paul, Minnesota 55114
651.642.9200
popedesign.com
Land Use Application Narrative
Date: 05/04/2023 (REVISED)
Re: Proposed Grocery Store
6626 Penn Ave S,
Richfield, MN 55423
The project applicant wishes to purchase the property located at 6626 Penn Ave S, Richfield, MN 55423.
In the existing building, the approximate retail / office area is 2,700 SF. The retail half is currently vacant and the
southern half of the space is currently occupied by an office tenant. The Applicant’s plan is to combine both
halves and open a small grocery store (retail use) with a takeout Halal meat area. The grocery store is new to
the area and will not only serve the Afghan community in Richfield but also serve community members from
Bloomington, Edina, Burnsville, and south of Minneapolis.
At approximately 2,700 SF it appears 11 parking spaces would be required (4/1000 for retail) per zoning. There
are 4 spaces available at the back and 2 on-street spaces available at the front. There is a drive aisle on the
north that could serve as another 1-3 parking space bringing the total up to a minimum of 7 available spaces.
The Richfield zoning code section, 544.13. sub 9 a) – d). Modification of number of required parking spaces,
provides provisions for reducing the number of required parking spaces including reductions based on adding
bicycle spaces, availability of nearby transit lines and use of on-street parking. Looking at the Penn / W 66th St
intersection to the north it appears that there is bus service available. The Applicant is proposing to add the
required bike spaces along the front of the building. Using these permitted modifications, 2 parking spaces will
be able to be substituted resulting in the need for a Variance for 2 parking space.
From our perspective the Applicant’s proposed grocery store will be a great asset to the community, is
consistent with the City of Richfield’s Zoning Map’s Mixed Use of the property, and will not negatively impact
the surrounding area.
Sincerely,
Raphael Lister, AIA, LEED AP
Pope Design Group
Project Manager
Enclosure: Letter from Masehullah Sahil
ACCDUMPSTERS
EXIST. WD
RETAINING
WALLS
(4) 9X19
PARKING
SPACES
SLOPED
DRIVE
(3) 9X19 TANDEM
PARKING SPACES
STAFF ONLY
(2)
PARALLEL
PARKING
SPACES
(8) BIKE
RACKS
EXISTING
2700 GSF
BUILDING
ADJACENT
BUILDING
SIDEWALK
ACCESS
DRIVE 10'-6"39'-6"ADD FALL PROTECTION
TO EXIST. RETAINING
WALLS
NORTH50'-0"126'-1 13/64"
1. SIGNS SHALL BE ADDED TO IDENTIFY DRIVE
AISLE AS "EMPLOYEE PARKING ONLY".
2. STRIPING SHALL BE ADDED TO INDICATE ONE-
WAY TRAFFICE EAST BOUND.
D E S I G N
G R O U P
Lakes Area Realty - Penn Ave. Market | SITE PLAN
RICHFIELD, MN | 05/04/23 | 51723-23070
1" = 10'-0"A0
1 PROPOSED SITE PLAN
RETAIL SHOWROOM
CLOSETHALL
TOILET
TOILET
OFFICE
RETAIL STORAGE
CLOSET JAN
MECH.
RECEPTIONOFFICE
OFFICEOFFICE
OPEN
OFFICE
NOTE: ALL WALLS AND ELEMENTS
SHOWN DASHED TO BE DEMOLISHED
NORTH
D E S I G N
G R O U P
Lakes Area Realty - Penn Ave. Market | EXISTING CONDITIONS PLAN
RICHFIELD, MN | 04/03/23 | 51723-23070
1/8" = 1'-0"A1
1 FIRST LEVEL DEMO PLAN
04/07/2023
ACCPOINT OF SALES
MECH.
NEW WALK
IN COOLER
ADDITION
MEAT
SHELVES
MOP SINK
NEW
TOILET
ROOM
COOLERSFREEZERS
EXISTING DOOR
FOR DELIVERIES
RETAIL
GONDOLA
SHELVING
GLASS
SHELVING
GLASS
SHELVING
BASE CABINETS
STORAGE
SHELVES
OVEN
TRIPLE
BOWL SINK
PREP TABLES
NORTH
COLUMN
D E S I G N
G R O U P
Lakes Area Realty - Penn Ave. Market | PROPOSED FLOOR PLAN
RICHFIELD, MN | 04/04/23 | 51723-23070
1/8" = 1'-0"A2
1 FIRST LEVEL NEW WORK PLAN
04/07/2023
²·
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71st 1/2
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LOGAN75th
VINCENTUPTONTHOMASWASHBURNXERXESI - 494
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OLIVERNEWTONMORGANSHERIDANRUSSELLQUEENPENN74th
72nd
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DUPONTKNOXJAMESIRVINGHUMBOLDTGIRARDFREMONTEMERSONCOLFAXBRYANTALDRICHGARFIELDGRANDHARRIETLYNDALE62nd
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63rd SHERIDAN1700240031002300WASHBURNXERXESVINCENTUPTONTHOMASRUSSELLQUEENPENNOLIVERNEWTONMORGANLOGANDUPONTHUMBOLDTKNOXJAMESIRVINGGIRARDEMERSONFREMONTLYNDALECOLFAXBRYANTALDRICHGARFIELDHARRIETGRAND69th
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COLUMBUS2nd1stSTEVENSPLEASANTPILLSBURYBLAISDELLWENTWORTHNICOLLET3rdCLINTON4th5thPORTLANDOAKLANDPARK10th11th12th13th14thELLIOTCHICAGO15th16th17th18thCEDARBLOOMINGTON62nd
63rd
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66thCOLUMBUSPLEASANTPILLSBURYWENTWORTHBLAISDELLSTEVENSNICOLLET1st2nd5thCLINTON3rd4thOAKLANDPARKPORTLAND15th11thCHICAGOELLIOT10th13th12th14thBLOOMINGTON16th17thCEDAR18th
1900800900100011001200130018006005004003002005010012420030032440050062070072080090010001100130014001500160017001800100152419006001200000700140029002800270026002500220021002000300015001600Gro ce r y Sto re H a lf Mil e Walks hed Ma p
0 0.55 1.10.275 Miles ¯Community Development DepartmentCreated April 2023
Legend
²·ExistingGrocery Store
²·ProposedGrocery Store
Regional StoreHalf MileWalkshed
Local Store HalfMile Walkshed
City Limits
Parks
AGENDA SECTION:CONSENT CALENDAR
AGENDA ITEM #6.E.
STAFF RE P ORT NO. 71
CIT Y COUNCIL ME E T ING
6/13/2023
RE P O RT P RE PA RE D B Y: Mattias Oddsson, Water Resources E ngineer
D E PA RTME NT D IRE C TO R RE V IE W: K ristin A sher, P ublic Works D irector
6/6/2023
O THE R D E PA RTM E NT RE V IE W: N/A
C ITY MA NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/7/2023
I T E M F O R C O UNC IL C O NS ID E RAT I O N:
Consider adoption of a resolution authorizing the City of Richfield to accept grant funds in the amount
of $2,962.40 and enter into a Source W ater Protection Grant Agreement with the Minnesota
Department of Health (MD H) to develop, distribute, and make available a packet of information specific
to the City's W ellhead Protection Plan.
E X E C UT IV E S UM M ARY:
I n April 2023, the city of Richfield applied for and was awarded a Source W ater Protection Grant from MD H
in the amount of $2,962.40 to assist the City with the development and distribution of source water protection
information associated with the City's W ellhead Protection Plan. The development and distribution of these
materials are an obligation that the City has taken on as the owner of a municipal well-field and administrator
of an MD H approved Wellhead Protection Plan.
RE C O M M E ND E D AC T I O N:
By motion: Approve the resolution authorizing the city of Richfield to accept grant funds in the amount
of $2,962.40 and enter into a Source W ater Protection Grant Agreement with MD H.
B AS IS O F RE C O M M E ND AT I O N:
A.H IS TOR IC AL C ON T E X T
See executive summary.
B.P OL IC IE S (resolutions, ordinances, regulations, statutes, etc):
Minnesota Statute 465.03 requires every acceptance of a grant or devise of real or personal property on
terms prescribed by donor be made by resolution and adopted by two-thirds majority of the City Council.
C.C R IT IC AL T IMIN G IS S U E S:
The effective date of the grant agreement is the date all signatures are authorized and obtained by
MD H.
The expiration date of the grant agreement is August 31, 2024, or once all obligations have been
fulfilled to the satisfaction of MD H, whichever occurs first.
D.F IN AN C IAL IMPAC T:
The grant covers the full anticipated cost of the project, and no cost-share is required.
E.L E GAL C ON S ID E R AT ION:
The City attorney has reviewed the grant agreement and will be available to answer questions.
ALTE R N AT IV E R E C O MME N D ATIO N(S):
None
P R IN C IPAL PAR TIE S E X P E C TE D AT ME E TIN G:
None
AT TAC H ME N T S:
D escription Type
Resolution Resolution L etter
S W P P P Grant A greement 229726 C ontract/A greement
RESOLUTION NO.
RESOLUTION AUTHORIZING THE CITY OF RICHFIELD TO ACCEPT GRANT FUNDS IN
THE AMOUNT OF $2,962.40 AND ENTER INTO A SOURCE WATER PROTECTION
GRANT AGREEMENT (SWIFT CONTRACT NUMBER 229726) WITH MINNESOTA
DEPARTMENT OF HEALTH TO DEVELOP, DISTRIBUTE, AND MAKE AVAILABLE A
PACKET OF INFORMATION SPECIFIC TO THE CITY'S WELLHEAD PROTECTION
PLAN
WHEREAS, the Richfield Public Works Department has applied for and been
awarded a Source Water Protection Grant in the amount of $2,962.40; and
WHEREAS, the City intends to use these funds to develop, distribute, and make
available a packet of information specific to the City's Wellhead Protection Plan ; and
WHEREAS, Minnesota Statutes section 465.03 requires every acceptance of a
grant or devise of real or personal property on terms prescribed by the donor be made by
resolution adopted by a two-thirds majority of the City Council.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of
Richfield, Minnesota, as follows:
1. That the City Council of the City of Richfield hereby authorizes the Mayor
and City Manager to enter into the Source Water Protection Grant
Agreement (SWIFT Contract Number 229726) with Minnesota
Department of Health in the amount of $2,962.40.
2. Appropriate City personnel are authorized to administer the funds in
accordance with the grant agreement and terms described by the
Minnesota Department of Health.
Adopted by the City Council of the City of Richfield, Minnesota this 13th day of
June, 2023.
Mary Supple, Mayor
ATTEST:
Dustin Leslie, City Clerk
Standard Grant Template - Version Sept 2022
SWIFT Contract Number 229726
Between MDH and City of Richfield
REQ: 8454 Page 1 of 13
Minnesota Department of Health
Grant Agreement Cover Sheet
You have received a grant agreement from the Minnesota Department of Health (MDH). Information
about the grant agreement, including funding details, are included below. Contact your MDH Grant
Manager if you have questions about this cover sheet.
ATTACHMENT: Grant Agreement
CONTACT FOR MDH: Eddie Wojski, 651-201-4576, eddie.wojski@state.mn.us
Grantee SWIFT Information Grant Agreement Information Program & Funding Information
Name of MDH Grantee (as it appears in
SWIFT):
City of Richfield
SWIFT Contract Number:
229726
MDH Program Name:
Drinking Water Protection
Grantee SWIFT Vendor Number:
0000197711
SWIFT Vendor Location Code:
001
Effective Date:
6/15/2023, OR the date all signatures are
collected and the agreement is fully
executed, whichever is later.
Expiration Date:
8/30/2024
Total State Grant Funds: $2,962.40
Total Federal Grant Funds: $0.00
Total Grant Funds (all funds): $2,962.40
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
Standard Grant Template - Version Sept 2022
SWIFT Contract Number 229726
Between MDH and City of Richfield
REQ: 8454 Page 2 of 13
Minnesota Department of Health
Grant Agreement
This grant agreement is between the State of Minnesota, acting through its Commissioner of the
Department of Health (“MDH”) and City of Richfield (“Grantee”). Grantee’s address is 6700 Portland
Avenue S., Richfield, Minnesota 55423.
Recitals
1. MDH is empowered to enter into this grant agreement under Minn. Stat. §§ 144.05 and
144.0742 along with §114D.50 Clean Water Fund.
2. MDH is in need of assisting public water suppliers to protect the source of drinking water.
3. The vision of MDH is for health equity in Minnesota, where all communities are thriving and all
people have what they need to be healthy. Health equity is achieved when every person has
the opportunity to attain their health potential. Grantee agrees, where applicable, to perform
its work with advancing health equity as a goal.
4. Grantee represents that it is duly qualified and will perform all the activities according to the
terms of this grant agreement. Grantee agrees to minimize administrative costs as a condition
of this grant agreement pursuant to Minn. Stat. § 16B.98, subd 1.
Grant Agreement
1. Term of Agreement
1.1. Effective Date
June 15, 2023, or the date MDH obtains all required signatures under Minn. Stat. § 16B.98,
subd. 5, whichever is later. Per Minn. Stat. § 16B.98, subd 7, no payments will be made to
the Grantee until this grant agreement is fully executed. Grantee must not begin work until
this grant agreement is fully executed and MDH’s Authorized Representative has notified
Grantee that work may commence.
1.2. Expiration Date
August 30, 2024, or until all obligations have been fulfilled to the satisfaction of MDH,
whichever occurs first.
1.3. Survival of Terms
The following clauses survive the expiration or cancellation of this grant agreement:
Liability; Financial Examinations; Government Data Practices and Data Disclosure;
Ownership of Equipment and Supplies; Intellectual Property; Publicity and Endorsement;
and Governing Law, Jurisdiction, and Venue.
2. Activities
2.1. MDH’s Activities
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
Standard Grant Template - Version Sept 2022
SWIFT Contract Number 229726
Between MDH and City of Richfield
REQ: 8454 Page 3 of 13
MDH activities, in accordance with the Minnesota Department of Administration's Office of
Grants Management's policies and federal regulations, may include but are not limited to
financial reconciliations, site visits, programmatic monitoring of activities performed, and
grant activity evaluation.
2.2. Grantee’s Activities
Grantee, who is not a state employee, shall conduct the activities specified in Exhibit A,
which is attached and incorporated into this grant agreement.
3. Time
Grantee is required to perform all of the activities stated in this grant agreement, and any
incorporated exhibits, within the grant agreement period. MDH is not obligated to extend the grant
agreement period. Failure to meet a deadline may be a basis for a determination by MDH’s
Authorized Representative that Grantee has not complied with the terms of the grant agreement.
4. Award and Payment
MDH will award funds to Grantee for all activities performed in accordance with this grant
agreement.
4.1. Grant Award
Reimbursement will be in accordance with the agreed upon budget contained in Exhibit B,
which is attached and incorporated into this grant agreement
4.2. Travel Expenses
Grantee will be reimbursed for mileage at the current IRS rate in effect at the time the
travel occurred; meals and lodging expenses will be reimbursed in the same manner and in
no greater amount than provided in the current “Commissioner’s Plan” promulgated by the
Commissioner of Minnesota Management and Budget (“MMB”); or, at the Grantee’s
established rate (for all travel related costs), whichever is lower, at the time travel occurred.
Grantee will not be reimbursed for travel and subsistence expenses incurred outside
Minnesota unless Grantee has received MDH’s prior written approval for out-of-state
travel. Minnesota will be considered the home state for determining whether travel is out-
of-state.
4.3. Budget Modifications
Grantee may modify any line item in the most recently agreed-upon budget by up to 10
percent without prior written approval from MDH. Grantee must notify MDH of any
modifications up to 10 percent in writing no later than the next invoice. Grantee must
obtain prior written approval from MDH for line-item modifications greater than 10
percent. Grantee’s failure to obtain MDH’s prior approval may result in denial of
modification request, loss of funds, or both. The total obligation of MDH for all
compensation and reimbursements to Grantee shall not exceed the total obligation listed
under “Total Obligation.”
4.4. Total Obligation
The total obligation of MDH for all compensation and reimbursements to Grantee under
this grant agreement will not exceed $2,962.40.
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
Standard Grant Template - Version Sept 2022
SWIFT Contract Number 229726
Between MDH and City of Richfield
REQ: 8454 Page 4 of 13
4.5. Terms of Payment
4.5.1. Invoices
MDH will promptly pay Grantee after Grantee presents an itemized invoice for
the activities actually performed and MDH’s Authorized Representative accepts
the invoiced activities. Invoices must be submitted at least quarterly or according
to a schedule agreed upon by the Parties. The final invoice is due 30 calendar
days after the expiration date of the grant agreement.
Grantee shall email invoice to: health.swpgrants@state.mn.us
Or mail to:
Eddie Wojski
SWP Grant Coordinator
Minnesota Department of Health
PO Box 64975
St. Paul, MN 55164-0975
4.6. Contracting and Bidding Requirements
4.6.1. Municipalities
A grantee that is a municipality, as defined in Minn. Stat. § 471.345, subd. 1, is subject to
the contracting requirements set forth under Minn. Stat. § 471.345. Projects that
involve construction work are subject to the applicable prevailing wage laws, including
those under Minn. Stat. § 177.41, et. seq.
4.6.2. Non-municipalities
Grantees that are not municipalities must adhere to the following standards in the
event that activities assigned to Grantee are to be subcontracted out to a third party:
i. Any services or materials that are expected to cost $100,000 or more must
undergo a formal notice and bidding process consistent with the standards set
forth under Minn. Stat. ch. 16B.
ii. Services or materials that are expected to cost between $25,000 and $99,999
must be competitively awarded based on a minimum of three verbal quotes or
bids.
iii. Services or materials that are expected to cost between $10,000 and $24,999
must be competitively awarded based on a minimum of two verbal quotes or
bids or awarded to a targeted vendor.
iv. Grantee must take all necessary affirmative steps to assure that targeted
vendors from businesses with active certifications through the following entities
are used when possible:
1) Minnesota Department of Administration’s Certified Targeted Group,
Economically Disadvantaged and Veteran-Owned Vendor List
(http://www.mmd.admin.state.mn.us/process/search/);
2) Metropolitan Council’s Targeted Vendor list: Minnesota Unified
Certification Program (https://mnucp.metc.state.mn.us/); or
3) Small Business Certification Program through Hennepin County, Ramsey
County, and City of St. Paul: Central Certification Program
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
Standard Grant Template - Version Sept 2022
SWIFT Contract Number 229726
Between MDH and City of Richfield
REQ: 8454 Page 5 of 13
(https://www.stpaul.gov/departments/human-rights-equal-economic-
opportunity/contract-compliance-business-development/central.
v. Grantee must maintain written standards of conduct covering conflicts of
interest and governing the actions of its employees engaged in the selection,
awarding and administration of contracts.
vi. Grantee must maintain support documentation of the purchasing or bidding
process utilized to contract services in their financial records, including support
documentation justifying a single/sole source bid, if applicable.
vii. Notwithstanding parts (i) through (iv) above, MDH may waive the formal bidding
process requirements when:
• Vendors included in response to a competitive grant request for proposal
process were approved and incorporated as an approved work plan for the
grant agreement or
• There is only one legitimate or practical source for such materials or
services and Grantee has established that the vendor is charging a fair and
reasonable price.
viii. Projects that involve construction work of $25,000 or more, are subject to
applicable prevailing wage laws, including those under Minn. Stat. §§ 177.41
through 177.44.
ix. Grantee must not contract with vendors who are suspended or debarred in
Minnesota. The list of debarred vendors is available at:
http://www.mmd.admin.state.mn.us/debarredreport.asp.
5. Conditions of Payment
All activities performed by Grantee pursuant to this grant agreement must be performed in
accordance with the terms of this grant agreement, as determined in the sole discretion of MDH’s
Authorized Representative. Furthermore, all activities performed by Grantee must be in
accordance with all applicable federal, state, and local laws, ordinances, rules, and regulations.
MDH will not pay Grantee for work that MDH determines is noncompliant with the terms and
conditions of this grant agreement or performed in violation of federal, state, or local law,
ordinance, rule, or regulation.
6. Authorized Representatives
6.1. MDH’s Authorized Representative
MDH’s Authorized Representative for purposes of administering this grant
agreement is Eddie Wojski, SWP Grant Coordinator, 625 Robert Street N., PO Box
64975, St. Paul, MN 55164-0975, 651-201-4576, and eddie.wojski@state.mn.us , or
their successor, and has the responsibility to monitor Grantee’s performance and
the final authority to accept the activities performed under this grant agreement. If
the activities performed are satisfactory, MDH’s Authorized Representative will
certify acceptance on each invoice submitted for payment.
6.2. Grantee’s Authorized Representative
Grantee’s Authorized Representative is Chad Donnelly, Utilities Superintendent, 6700
Portland Avenue S., Richfield, MN 55423, 612-861-9797, and moddsson@richfieldmn.gov,
or their successor. Grantee’s Authorized Representative has full authority to represent
Grantee in fulfillment of the terms, conditions, and requirements of this grant agreement. If
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
Standard Grant Template - Version Sept 2022
SWIFT Contract Number 229726
Between MDH and City of Richfield
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Grantee selects a new Authorized Representative at any time during this grant agreement,
Grantee must immediately notify MDH’s Authorized Representative in writing, via e-mail or
letter.
7. Assignment, Amendments, Waiver, and Grant Agreement Complete
7.1. Assignment
Grantee shall neither assign nor transfer any rights or obligations under this grant
agreement.
7.2. Amendments
If there are any amendments to this grant agreement, they must be in writing.
Amendments will not be effective until they have been executed and approved by MDH and
Grantee.
7.3. Waiver
If MDH fails to enforce any provision of this grant agreement, that failure does not waive
the provision or MDH’s right to enforce it.
7.4. Grant Agreement Complete
This grant agreement, and any incorporated exhibits, contains all the negotiations and
agreements between MDH and Grantee. No other understanding regarding this grant
agreement, whether written or oral, may be used to bind either party.
8. Liability
Grantee must indemnify and hold harmless MDH, its agents, and employees from all claims or
causes of action, including attorneys’ fees incurred by MDH, arising from the performance of this
grant agreement by Grantee or Grantee’s agents or employees. This clause will not be construed to
bar any legal remedies Grantee may have for MDH’s failure to fulfill its obligations under this grant
agreement. Nothing in this clause may be construed as a waiver by Grantee of any immunities or
limitations of liability to which Grantee may be entitled pursuant to Minn. Stat. ch. 466, or any
other statute or law.
9. Financial Examinations
The relevant books, records, documents, and accounting procedures and practices of Grantee and
any other party are subject to examination under Minn. Stat. § 16B.98, subd. 8, by MDH and the
Minnesota State Auditor or the Minnesota Legislative Auditor, as appropriate, for a minimum of six
years from the end of this grant agreement, receipt and approval of all final reports, or the
required period of time to satisfy all state and program retention requirements, whichever is later.
10. Government Data Practices and Data Disclosure
10.1. Government Data Practices
Grantee and MDH must comply with the Minnesota Government Data Practices Act, Minn.
Stat. ch. 13, as it applies to all data provided by MDH under this grant agreement, and as it
applies to all data created, collected, received, stored, used, maintained, or disseminated by
Grantee under this grant agreement pursuant to Minn. Stat. § 13.05, subd. 11(a). The civil
remedies of Minn. Stat. § 13.08 apply to the release of the data referred to in this clause by
either Grantee or MDH. If Grantee receives a request to release the data referred to in this
clause, Grantee must immediately notify MDH. MDH will give Grantee instructions
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
Standard Grant Template - Version Sept 2022
SWIFT Contract Number 229726
Between MDH and City of Richfield
REQ: 8454 Page 7 of 13
concerning the release of the data to the requesting party before any data is released.
Grantee’s response to the request must comply with the applicable law.
10.2. Data Disclosure
Grantee consents to disclosure of its social security number, federal employee tax
identification number, or Minnesota tax identification number--which may have already
been provided to MDH--to federal and state tax agencies and state personnel involved in
the payment of state obligations pursuant to Minn. Stat. § 270C.65, subd. 3, and all other
applicable laws. These identification numbers may be used in the enforcement of federal
and state tax laws which could result in action requiring Grantee to file state tax returns and
pay delinquent state tax liabilities, if any.
11. Ownership of Equipment and Supplies
11.1. Equipment. “Equipment” is defined as tangible personal property having a useful life of
more than one year and a per-unit acquisition cost which equals or exceeds $5,000. MDH
shall have the right to require transfer of all Equipment purchased with grant funds
(including title) to MDH or to an eligible non-State party named by MDH. MDH may require
the transfer of Equipment if the grant program is transferred to another grantee. At the end
of this grant agreement, grantee must contact MDH’s Authorized Representative for further
instruction regarding the disposition of Equipment.
11.2. Supplies. “Supplies” is defined as all tangible personal property other than those described
in the definition of Equipment. Grantee must notify MDH’s Authorized Representative
regarding any remaining Supplies with an aggregate market value of $5,000 or more for
further instruction regarding the disposition of those Supplies. For the purpose of this
section, Supplies includes but is not limited to computers and incentives.
12. Ownership of Materials and Intellectual Property Rights
12.1. Ownership of Materials
“Materials” is defined as any inventions, reports, studies, designs, drawings, specifications,
notes, documents, software, computer-based training modules, and other recorded
materials in whatever form. Grantee shall own all rights, title, and interest in all of the
materials conceived, created, or otherwise arising out of the performance of this grant
agreement by it, its employees, or subgrantees, either individually or jointly with others.
Grantee hereby grants to MDH a perpetual, irrevocable, no-fee license and right to
reproduce, modify, distribute, perform, make, have made, and otherwise use the Materials
for any and all purposes, in all forms and manners that MDH, in its sole discretion, deems
appropriate. Grantee shall, upon the request of MDH, execute all papers and perform all
other acts necessary to document and secure this right and license to the Materials by
MDH. At the request of MDH, Grantee shall permit MDH to inspect the original Materials
and provide a copy of any of the Materials to MDH, without cost, for use by MDH in any
manner MDH, in its sole discretion, deems appropriate.
12.2. Intellectual Property Rights
Grantee represents and warrants that Materials produced or used under this grant
agreement do not and will not infringe upon any intellectual property rights of another
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
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Between MDH and City of Richfield
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including but not limited to patents, copyrights, trade secrets, trade names, and service
marks and names. Grantee shall indemnify and defend MDH, at Grantee’s expense, from
any action or claim brought against MDH to the extent that it is based on a claim that all or
parts of the materials infringe upon the intellectual property rights of another. Grantee shall
be responsible for payment of any and all such claims, demands, obligations, liabilities,
costs, and damages including, but not limited to, reasonable attorney fees arising out of this
grant agreement, amendments and supplements thereto, which are attributable to such
claims or actions. If such a claim or action arises or in Grantee’s or MDH’s opinion is likely to
arise, Grantee shall at MDH’s discretion either procure for MDH the right or license to
continue using the materials at issue or replace or modify the allegedly infringing materials.
This remedy shall be in addition to and shall not be exclusive of other remedies provided by
law.
13. Workers’ Compensation
Grantee certifies that it is in compliance with Minn. Stat. § 176.181, subd. 2, which pertains to
workers’ compensation insurance coverage. Grantee’s employees and agents, and any contractor
hired by Grantee to perform the work required by this grant agreement and its employees, will not
be considered State employees. Any claims that may arise under the Minnesota Workers’
Compensation Act on behalf of these employees, and any claims made by any third party as a
consequence of any act or omission on the part of these employees, are in no way MDH’s
obligation or responsibility.
14. Publicity and Endorsement
14.1. Publicity
Any publicity given to the program, publications, or activities performed resulting from this
grant agreement, including but not limited to, notices, informational pamphlets, press
releases, research, reports, signs, and similar public notices prepared by or for Grantee or
its employees individually or jointly with others, or any subgrantees, must identify MDH as
the sponsoring agency. If publicity is not specifically authorized under this grant agreement,
Grantee must obtain prior written approval from MDH’s Authorized Representative. If
federal funding is being used for this grant agreement, the federal program must also be
recognized.
14.2. Endorsement
Grantee must not claim that MDH endorses its products, services, or activities.
15. Termination
15.1. Termination by MDH or Grantee
MDH or Grantee may cancel this grant agreement at any time, with or without cause, upon
30 days written notice (e.g., by mail, email, or both) to the other party.
15.2. Termination for Cause
If Grantee fails to comply with the provisions of this grant agreement, MDH may terminate
this grant agreement without prejudice to the right of MDH to recover any money
previously paid. The termination shall be effective five business days after written notice
(e.g., mail, email, or both) of termination to Grantee.
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
Standard Grant Template - Version Sept 2022
SWIFT Contract Number 229726
Between MDH and City of Richfield
REQ: 8454 Page 9 of 13
15.3. Termination for Insufficient Funding
MDH may immediately terminate this grant agreement if it does not obtain funding from
the Minnesota Legislature or other funding source; or if funding cannot be continued at a
level sufficient to allow for the payment of the work scope covered in this grant agreement.
Termination must be by written notice to Grantee; e.g., mail, email, or both. MDH is not
obligated to pay for any work performed after notice and effective date of the termination.
However, Grantee will be entitled to payment, determined on a pro rata basis, for activities
satisfactorily performed to the extent that funds are available. MDH will not be assessed
any penalty if this grant agreement is terminated because of the decision of the Minnesota
Legislature, or other funding source, not to appropriate funds. MDH must provide Grantee
notice of the lack of funding within a reasonable time of MDH receiving notice of the same.
16. Governing Law, Jurisdiction, and Venue
This grant agreement, amendments and supplements to it, shall be governed by the laws of the
State of Minnesota. Venue for all legal proceedings arising out of this grant agreement, or for
breach thereof, shall be in the state or federal court with competent jurisdiction in Ramsey County,
Minnesota.
17. Clerical Error
Notwithstanding Clause “Assignment, Amendments, Waiver, and Grant Agreement Complete” of
this grant agreement, MDH reserves the right to unilaterally fix clerical errors, defined as
misspellings, minor grammatical or typographical mistakes or omissions, that do not have a
substantive impact on the terms of the Grant Agreement without executing an amendment. MDH
must inform Grantee of clerical errors that have been fixed pursuant to this paragraph within a
reasonable period of time.
18. Lobbying
18.1. Grantee must ensure that grant funds are not used for lobbying, which includes paying or
compensating any person for influencing or attempting to influence legislators or other
public officials on behalf or against proposed legislation, in connection with the awarding of
any federal contract, the making of any federal grant, the making of any federal loan, the
entering into of any cooperative agreement, or the extension, continuation, renewal,
amendment, or modification of any federal contract, grant, loan, or cooperative agreement.
18.2. In accordance with the provisions of 31 USC § 1352, if Grantee uses any funds other than
federal funds from MDH to conduct any of the aforementioned activities, Grantee must
complete and submit to MDH the disclosure form specified by MDH. Further, Grantee must
include the language of this section in all contracts and subcontracts, and all contractors
and subcontractors must comply accordingly.
18.3. Providing education about the importance of policies as a public health strategy, however,
is allowed. Education includes providing facts, assessment of data, reports, program
descriptions, and information about budget issues and population impacts, but stopping
short of making a recommendation on a specific piece of legislation. Education may be
provided to legislators, public policy makers, other decision makers, specific stakeholders,
and the general community.
18.4. By signing this grant agreement, Grantee certifies that it will not use any funds received
from MDH to employ, contract with, or otherwise coordinate the efforts of a lobbyist, as
defined in Minn. Stat. § 10A.01, subd. 21. This requirement also applies to any
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
Standard Grant Template - Version Sept 2022
SWIFT Contract Number 229726
Between MDH and City of Richfield
REQ: 8454 Page 10 of 13
subcontractors or subgrantees that Grantee may engage for any activities pertinent to this
grant agreement.
19. Other Provisions
19.1. Voter Registration Services Requirement
If this grant agreement will disburse any state funds (as indicated on the Award Cover
Sheet); AND Grantee is a local unit of government, city, county, township or non-profit
organization, then Grantee is required to comply with Minn. Stat. § 201.162 by providing
voter registration services for its employees and for the public served by the grantee.
[Signatures on following page]
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
Standard Grant Template - Version Sept 2022
SWIFT Contract Number 229726
Between MDH and City of Richfield
REQ: 8454 Page 11 of 13
APPROVED:
1. State Encumbrance Verification
Individual certifies that funds have been encumbered as required by Minn. Stat. §§ 16A.15 and 16C.05.
Signature:
SWIFT Contract & Initial PO:
2. Grantee
Grantee certifies that the appropriate persons(s) have executed the grant agreement on behalf of Grantee as required by applicable articles, bylaws,
resolutions, or ordinances.
Signature:
Title:
Date:
Signature:
Title:
Date:
Signature:
Title:
Date:
Signature:
Title:
Date:
3. Minnesota Department of Health
Grant agreement approval and certification that State funds have been encumbered as required by Minn. Stat. §§ 16A.15 and 16C.05.
Signature:
(with delegated authority)
Title:
Date:
Distribution:
All parties on the DocuSign envelope will receive a copy of the fully executed grant agreement.
229726/3-103054 REQ 8454
Christina Mish Digitally signed by Christina Mish
Date: 2023.05.25 10:27:09 -05'00'
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
Standard Grant Template - Version Sept 2022
SWIFT Contract Number 229726
Between MDH and City of Richfield
REQ: 8454 Page 12 of 13
Exhibit A
1. Grantee’s Duties
Grantee, who is not a state employee, shall:
1.1. Development, printing, and distribution of an information packet to properties with
potential Class V injection wells.
1.2. Development, printing, and distribution of a notification letter to properties with
registered storage tanks (RST's).
1.3. Grantee agrees that work shall take place only in the MDH approved Drinking Water
Supply Management Area (DWSMA). Grantee will be reimbursed only for work that
takes place in the DWSMA.
1.4. Grantee shall use the Clean Water Land and Legacy Amendment logo provided by MDH
on all materials purchased or produced under this Grant Agreement (equipment,
reports to the public, publications, displays, videos). Failure to display the logo may
render the Grantee ineligible for reimbursement.
1.5. Grantee shall pay in full any licensed contractor or consultant hired for the purpose of
completing any work under this Grant Agreement.
1.6. Upon completion of the project, Grantee shall complete and submit an itemized Grant
Invoice and a Grant Narrative Report to MDH SWP Grant Coordinator. The Grant
Narrative Report and the Grant Invoice shall be due no later than the expiration day of
this Grant Agreement.
1.7. On or before the end date of this Agreement, the Grantee shall provide MDH with one
electronic copy of all final products produced under this Grant Agreement, including
reports, publications, software and videos. If required by the nature of the project, data
collected during the project shall be reported in a format acceptable to MDH.
1.8. In the event the Grantee is unable to satisfactorily complete all the duties specified in
this grant agreement, the Grantee will forfeit payment. A Grantee who has not
satisfactorily fulfilled the grant obligations, including but not limited to paying the
contractor in full for all work performed by the contractor, will be denied participation
in the next grant cycle.
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
Standard Grant Template - Version Sept 2022
SWIFT Contract Number 229726
Between MDH and City of Richfield
REQ: 8454 Page 13 of 13
Exhibit B – Summary Budget
Activity Summary Grant Amount
Development, printing, and distribution of an
information packet to properties with potential Class
V injection wells
$1,473.70
Development, printing, and distribution of a
notification letter to properties with registered
storage tanks (RST's)
$1,488.70
Total $2,962.40
Permitting fees payable to MDH (i.e. well construction fee; well sealing fee) are not
eligible and will be deducted from the final invoice, before reimbursement.
Pressure tanks are grant eligible, as part of a new well construction and pump system
project. The pressure tank must be appropriately sized for the pump being proposed for
the new well and not sized for additional water storage. Pressure tank designed to serve
the purpose of water storage, as well as the replacement or maintenance of pressure
tanks, remains ineligible for grant reimbursement.
Water lines may be reimbursed only from the well to the pressure tank or to the
building, whichever comes first.
DocuSign Envelope ID: 003E6D68-A67F-4F76-B544-6DD1439E5FCD
Certificate Of Completion
Envelope Id: 003E6D68A67F4F76B5446DD1439E5FCD Status: Sent
Subject: Complete with DocuSign: Richfield_GA.pdf
Source Envelope:
Document Pages: 13 Signatures: 0 Envelope Originator:
Certificate Pages: 2 Initials: 0 Eddie Wojski
AutoNav: Enabled
EnvelopeId Stamping: Enabled
Time Zone: (UTC-06:00) Central Time (US & Canada)
625 Robert St. N
PO Box 64975
St. Paul, MN 55164
eddie.wojski@state.mn.us
IP Address: 156.98.136.27
Record Tracking
Status: Original
6/6/2023 2:40:47 PM
Holder: Eddie Wojski
eddie.wojski@state.mn.us
Location: DocuSign
Security Appliance Status: Connected Pool: StateLocal
Storage Appliance Status: Connected Pool: Department of Health Location: DocuSign
Signer Events Signature Timestamp
Mattias Oddson
moddsson@richfieldmn.gov
Security Level: Email, Account Authentication
(None)
Sent: 6/6/2023 2:45:15 PM
Viewed: 6/6/2023 2:56:42 PM
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
MDH FiM with Delegated Authority to Execute
Grants/Contracts
Signing Group: MDH FiM with Delegated Authority to
Execute Grants/Contracts
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Carbon Copy Events Status Timestamp
Seth Rasmussen
Seth.Rasmussen@state.mn.us
Sarah Jane Martin
sarah.martin@state.mn.us
Char Paulson
char.paulson@state.mn.us
Christina Mish
Christina.Mish@state.mn.us
Signing Group: MDH Encumbrance Officers
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Mattias Oddson
moddsson@richfieldmn.gov
Security Level: Email, Account Authentication
(None)
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 6/6/2023 2:45:15 PM
Payment Events Status Timestamps
AGENDA SECTION:CONSENT CALENDAR
AGENDA ITEM #6.F.
STAFF RE P ORT NO. 72
CIT Y COUNCIL ME E T ING
6/13/2023
RE P O RT P RE PA RE D B Y: K atie Rodriguez, C ity Manager
D E PA RTME NT D IRE C TO R RE V IE W:
O THE R D E PA RTM E NT RE V IE W: N/A
C ITY MA NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/6/2023
I T E M F O R C O UNC IL C O NS ID E RAT I O N:
Consider approval of a resolution updating the Public Purpose Expenditure Policy.
E X E C UT IV E S UM M ARY:
The City's Public Purpose Expenditure Policy establishes a clear set of guidelines to assist elected officials,
employees and representatives of the City when approving the expenditure of public funds. A periodic review
and consideration of this policy ensures that the City's expenditures have been carefully considered and
determined by the governing body to be for a public purpose.
The recommended updates include edits to improve clarity and to reference the most recent legal guidance
on appropriate public expenditures. Staff is also recommending edits to allow retirees to be recognized with a
clock or a restaurant gift certificate of equal value ($100) and defines eligibility for retirement recognition. The
recommended policy also provides recognition for employees who have worked for 45 years for the city since
we have some employees who have exceeded 40 years.
RE C O M M E ND E D AC T I O N:
By motion: Adopt a resolution approving the City's Public Purpose Expenditure Policy.
B AS IS O F RE C O M M E ND AT I O N:
A.H IS TOR IC AL C ON T E X T
I n J uly 2003, the Richfield City Council adopted a Public Purpose Expenditure Policy, which
defines when, and for what purposes, public funds may be spent.
I n 2016 and 2018, the City Council adopted updated versions of this policy.
B.P OL IC IE S (resolutions, ordinances, regulations, statutes, etc):
Periodic review and approval of the policy ensures the fullest compliance with all applicable provisions of
law in making public expenditures.
C.C R IT IC AL T IMIN G IS S U E S:
D.F IN AN C IAL IMPAC T:
The recommended policy changes are not expected to have a significant financial impact.
E.L E GAL C ON S ID E R AT ION:
The Public Purpose Expenditure Policy ensures compliance with all applicable laws governing the
expenditure of public funds.
ALTE R N AT IV E R E C O MME N D ATIO N(S):
Adopt a modified policy.
Defer consideration of this matter to a future meeting.
P R IN C IPAL PAR TIE S E X P E C TE D AT ME E TIN G:
None
AT TAC H ME N T S:
D escription Type
Resolution C over Memo
P ublic P urpose E xpenditure P olicy (C lean)C over Memo
P ublic P urpose E xpenditure P olicy (Redline)C over Memo
RESOLUTION NO. _____
RESOLUTION APPROVING THE
PUBLIC PURPOSE EXPENDITURE POLICY
WHEREAS, the City Council finds it necessary to review and approve a policy to
clearly determine the public purpose for expenditures; and
WHEREAS, the City Council has determined that in order to attract, recruit, retain and
motivate employees and community volunteers, the City wishes to recognize hard work and
service through other than monetary payment; and
WHEREAS, the City Council has further determined certain expenditures for typical
business costs are necessary for the effective delivery of public service; and
WHEREAS, the City Council has reviewed the Public Purpose Expenditure Policy.
NOW, THEREFORE, BE IT RESOLVED, that the City Council of the City of
Richfield approves the updated Public Purpose Expenditure Policy.
Adopted by the City Council of the City of Richfield, Minnesota this 13th day of June
2023.
________________________________
Mary Supple, Mayor
ATTEST:
_________________________
Dustin Leslie, City Clerk
PUBLIC PURPOSE EXPENDITURE
CITY OF RICHFIELD
CITY POLICY
DATE: __________ 2023
SUBJECT: Public Purpose Expenditures
Purpose
Pursuant to provisions of the Richfield City Charter and the statutes and laws of the State of Minnesota,
which permit and require the expenditure of public funds for public purposes, the City of Richfield
believes it necessary and appropriate to provide assistance and guidance to the officials, employees and
representatives of Richfield to aid in the determination of when public funds may be spent for a public
purpose.
Definition
A public purpose expenditure is one which benefits the community as a body and is explicitly or impliedly
authorized by law. A public purpose expenditure relates to the purpose for which the City of Richfield
exists and the duties and responsibilities of Richfield, its elected and appointed officials, employees, and
other representatives.
The Minnesota Supreme Court has clarified that activities that promote the following objectives for the
benefit of all the City’s residents further a public purpose:
• Public Health
• Safety
• General Welfare
• Security
• Prosperity
• Contentment
Public Purpose Guidelines
A. Training and professional development programs for Richfield employees serve a public purpose
when those training and development programs are directly related to the performance of the
employees' job-related duties and are directly related to the programs/services for which the City is
responsible.
B. Payment of employee work-related expenses, including travel, lodging and meal expenses, serves a
public purpose when those expenses are necessarily incurred by Richfield employees in connection
with their actual work assignments or official duties and those expenses are directly related to the
performance of the governmental functions for which Richfield has responsibility.
C. Appropriate safety and health programs for Richfield employees serve a public purpose because they
result in healthier and more productive employees and reduce certain costs to the City and the
taxpayers of Richfield, including various costs associated with workers’ compensation and disability
benefit claims, insurance premiums and lost time from employee absences.
D. Public expenditures for appropriate Richfield employee and volunteer recognition programs serve a
public purpose because formally recognizing employees and volunteers who make significant
contributions and demonstrate their commitment during the performance of their duties result in
higher morale and productivity among all Richfield employees and volunteers, and therefore help the
City to fulfill its responsibilities efficiently and more cost effectively.
PUBLIC PURPOSE EXPENDITURE PAGE 2
E. Public expenditures for food and refreshments associated with official Richfield City functions serve a
public purpose when the provision of food or refreshments is an integral part of the function and is
deemed necessary to ensure meaningful participation by the participants.
F. Public expenditures for appropriate community and customer outreach and similar activities serve a
public purpose when those expenditures are necessary for Richfield to ensure the efficient operation
of its programs/services, promote the availability and use of City resources, and promote
coordinated, cooperative planning activities among and between the public and the private sectors.
G. Appropriate employee benefits are a natural incident of the employee/employer relationship and
enable the City to attract, retain, and compensate employees. The employee benefits that are offered
are deemed to be an additional form of employee compensation.
Specific Programs and Expenditures
Every City of Richfield expenditure must be valid based upon the public purpose for which it is
purchased. The following items are deemed to meet the Council definition of public purpose
expenditures.
A. Employee Recognition and Engagement Programs
Pursuant to the authority granted in Minnesota Statutes section 15.46, the City Council
approves the expenditure of funds for designated employee recognition events and awards
programs, as well as a holiday employee engagement event. The Richfield City Council
recognizes the hard work and service performed by the employees of the City through a
formal Employee Recognition Program. The City Council believes the benefits of attracting,
retaining and motivating employees through an Employee Recognition Program support
employee job satisfaction, which in turn impacts cooperation and productivity. The result is to
provide excellent public and customer service to better serve the interests of the citizens of
the community.
The Employee Recognition Program is considered "additional compensation" for work
performed by employees but is entirely dependent on receiving funding from year-to-year. No
provisions of this policy, or its administration, shall be subject to review under the grievance or
arbitration provisions of any collective bargaining agreement.
The Program may include:
1. City employees completing 5, 10, 15, 20, 25, 30, 35, 40, and 45 years of service may
receive a service award not to exceed $185 in value, as determined by the City Manager.
2. Annually, the City may have an annual budget allotted to the City staff’s Employee
Engagement Committee for recognition and engagement events or activities.
3. Annually, the City may sponsor a Holiday Party for City employees. In lieu of a Holiday Party,
the City may sponsor an annual employee event.
4. The City supports other events that are planned and paid for by employees. Examples of
such events include holiday gatherings, and/or tournaments.
5. The City supports recognition clocks or gift certificates to a restaurant up to $100 in
recognition of retirement for employees if greater than five years of service. Departments may
recognize retirements with cake receptions for retirements after at least five years of service
and separations after at least 10 years of service.
6. Annually, at the end of each calendar year, each Department may receive designated funds
related to participating in and promoting safety practices in their respective
PUBLIC PURPOSE EXPENDITURE PAGE 3
Departments. Each Department may use such funds to recognize their employees’ safety
accomplishments.
The cost of the elements of the Employee Recognition Program will be included in the City of
Richfield Annual Budget. This item will be approved annually by the City Council as a part of
the overall budget approval process which includes a public hearing on the proposed budget.
B. Employee Wellness and Safety Programs
Pursuant to the authority granted in Minnesota Statutes section 15.46, the City Council
approves the expenditure of funds for employee wellness purposes. The City Council
recognizes the importance of employee fitness and health as it relates to the overall work and
life satisfaction of the employee and the overall impact on the City's health insurance program.
As such, the City Council supports an Employee Wellness Program, which has been designed
to educate employees on fitness/health issues.
The Employee Wellness Program is considered "additional compensation" for work performed
by employees but is entirely dependent on receiving funding from year-to-year. No provisions
of this policy, or its administration, shall be subject to review under the grievance or arbitration
provisions of any collective bargaining agreement.
The cost of an Employee Wellness Program will be included in the City of Richfield Annual
Budget. This item will be approved annually by the City Council as a part of the overall budget
approval process which includes a public hearing on the proposed budget.
The Employee Safety Program is funded by the Self-Insurance Fund. The City supports
programs created by the Human Resources Division and the Safety Committee to promote and
maintain a safe work environment. Safety incentive programs such as Richfield Safety Pays,
which provide the opportunity for cash prizes for accident/injury-free workdays, is an example of
such programs. Such safety incentives shall be included in the City of Richfield Annual Budget.
C. Meeting Food/Meals
The City Council recognizes that situations in which City business needs to be discussed can
and do occur during meal hours (i.e. luncheon meetings). In addition, there are public and
employee meetings and events in which reasonable refreshments may be necessary to create
a more productive environment and to be responsive to participants’ time schedules. The
following items are deemed to meet the Council definition of public purpose expenditures in
regard to food and meals.
1. Meals and refreshments are allowed at City meetings and events that have a purpose of
discussing City issues. These meetings would normally have a pre-planned agenda.
2. Meals and refreshments are allowed at employee meetings and events that have the
purpose of discussing City issues or are a part of employee training. These meetings would
also normally have a pre-planned agenda. These meetings could include new employee
receptions to introduce new employees to existing employees, provide an orientation to the
City, and promote teamwork and cooperation. This does not include routine staff meetings.
3. Meals and refreshments are allowed when they are part of a breakfast/lunch/dinner meeting
for official City business when it is the only practical time to meet. Usually, these meals
involve meeting with City Council members, Committee/Commission members, business or
civic organizations. Payment for fees relating to a special event, such as a Chamber of
Commerce event, may also be allowed when approved by the City Manager and when
attendance is deemed to meet the public purpose guidelines for community or customer
outreach and marketing of the City.
PUBLIC PURPOSE EXPENDITURE PAGE 4
4. Meals and refreshments may be provided during official meetings of the City Council, City
Council committees, advisory boards/commissions, and taskforces that have the purpose of
discussing City business. These meetings would normally have a pre-planned agenda.
5. Travel expenses for employees as outlined in the Richfield Travel Reimbursement Policy.
6. Meals and refreshments are allowed where employees or volunteers are participating in a
City-sponsored special event, participating in an outside event as an official representative of
the City, or working additional hours and where the Department Director deems appropriate
as recognition of efforts above those normally required. Because emergency personnel are
often called to perform for extended periods of time and duties where refreshments are
important to duty performance, emergency response personnel may be provided
refreshments or food when it is deemed appropriate by the City Manager or Department
Director to assure the delivery of quality emergency response service.
7. No purchase of alcoholic beverages is allowed at any time.
The cost of these meals or fees is included in the department’s travel/conferences line-item in the
City of Richfield Annual Budget. These items are approved annually by the City Council as a part
of the overall budget approval process which includes a public hearing on the proposed budget.
D. Membership, Dues, and Donations
The City Council has determined that the City will fund memberships and dues (individual or
organization) in professional organizations and City social and community organizations when the
purpose is to promote, advertise, improve or develop the City's resources and relationships and
not personal interest or gain.
The cost of memberships/dues is included in the departments' dues and subscriptions line-item
in the City of Richfield Annual Budget. These items are approved annually by the City Council
as a part of the overall budget approval process which includes a public hearing on the
proposed budget.
All donations must be approved by the City Council during the annual budget process and/or by
City resolution. Donations provided by the City must be for programs that serve our citizens and
are deemed to meet the public purpose guidelines.
E. Education Reimbursement
The Personnel Policy contains guidelines for the Richfield Employee Education Program (REEP).
Job related advanced education meets the public purpose guidelines of this policy. The amount
available for this program shall be considered annually. The cost of this program is contained in
the City of Richfield Annual Budget.
F. Clothing and Other Sundry Items
Employees may receive T-shirts, and other sundry items of nominal value ($20.00) when these
items are made available to the general public or if these items are determined by the City
Manager to be important to the successful involvement of employees in special City-sponsored
or City-supported events (i.e. Nite to Unite, etc.). The cost of these items for City-sponsored or
City-supported events shall be contained in the City of Richfield Annual Budget.
Employees may be supplied with uniforms, clothing, boots and other gear necessary for the
performance of their job. For purposes of City branding and easy identification of employees to
customers and members of the public, staff will be provided with one apparel item with the City
logo. This clothing item (fleece zip, cardigan or polo shirt with approximate value of $60) will be
PUBLIC PURPOSE EXPENDITURE PAGE 5
issued to new employees and to current employees at the discretion of their respective
Department Directors.
G. Special Requests
From time to time, there may be an event that is a proper public expenditure, but that is not
contemplated by this policy. Department Directors may submit a written request to the City
Manager, or the Manager’s designee, for such a public expenditure. The request must show how
the expenditure is related to a public purpose as defined by this policy. Only expenditures that
meet the definition of a public purpose may be approved.
Conclusion
The Richfield City Council has determined that the above expenditures are valid and serve a public
purpose.
Approved: /s/ Katie Rodriguez
____________________________________
City Manager
1
PUBLIC PURPOSE EXPENDITURE
CITY OF RICHFIELD
CITY POLICY
DATE: January 1, 2018 __________ 2023
SUBJECT: Public Purpose Expenditures Background
Purpose
Pursuant to provisions of the Richfield City Charter and the statutes and laws of the State of Minnesota,
which permit and require the expenditure of public funds for public purposes, the City of Richfield believes
it necessary and appropriate to provide assistance and guidance to the officials, employees and
representatives of Richfield to aid in the determination of when public funds may be spent for a public
purpose.
Definition
A public purpose expenditure is one which benefits the community as a body and is explicitly or impliedly
authorized by law. A public purpose expenditure relates to the purpose for which the City of Richfield exists
and the duties and responsibilities of Richfield, its elected and appointed officials, employees, and other
representatives.
The Minnesota Supreme Court has clarified that activities that promote the following objectives for the
benefit of all the City’s residents further a public purpose:
• Public Health
• Safety
• General Welfare
• Security
• Prosperity
• Contentment
Public Purpose Guidelines
A. A. Training and professional development programs for Richfield employees serve a public purpose
when those training and development programs are directly related to the performance of the
employees' job- related duties and are directly related to the programs/services for which the City is
responsible.
B. B. Payment of employee work-related expenses, including travel, lodging and meal expenses, serves
a public purpose when those expenses are necessarily incurred by Richfield employees in connection
with their actual work assignments or official duties and those expenses are directly related to the
performance of the governmental functions for which Richfield has responsibility.
C. C. Appropriate safety and health programs for Richfield employees serve a public purpose because
they result in healthier and more productive employees and reduce certain costs to the City and the
taxpayers of Richfield, including various costs associated with workers’ compensation and disability
benefit claims, insurance premiums and lost time from employee absences.
D. D. Public expenditures for appropriate Richfield employee and volunteer recognition programs serve a
public purpose because formally recognizing employees and volunteers who make significant
contributions and demonstrate their commitment during the performance of their duties result in higher
morale and productivity among all Richfield employees and volunteers, and therefore help the City to
fulfill its responsibilities efficiently and more cost effectively.
2
E. E. Public expenditures for food and refreshments associated with official Richfield City functions serve
a public purpose when the provision of food or refreshments is an integral part of the function and is
deemed necessary to ensure meaningful participation by the participants.
F. F. Public expenditures for appropriate community and customer outreach and similar activities serve a
public purpose when those expenditures are necessary for Richfield to ensure the efficient operation of
its programs/services, promote the availability and use of City resources, and promote coordinated,
cooperative planning activities among and between the public and the private sectors.
G. Appropriate employee benefits are a natural incident of the employee/employer relationship and enable
the City to attract, retain, and compensate employees. The employee benefits that are offered are
deemed to be an additional form of employee compensation.
Specific Programs and Expenditures
Every City of Richfield expenditure must be valid based upon the public purpose for which it is
purchased. The following items are deemed to meet the Council definition of public purpose
expenditures.
A. A. Employee Recognition and Engagement Programs
Pursuant to the authority granted in Minnesota Statutes section 15.46, the City Council
approves the expenditure of funds for designated employee recognition events and awards
programs, as well as a holiday employee engagement event. The Richfield City Council
recognizes the hard work and service performed by the employees of the City through a formal
Employee Recognition Program. The City Council believes the benefits of attracting, retaining
and motivating employees through an Employee Recognition Program support employee job
satisfaction, which in turn impacts cooperation and productivity. The result is to provide
excellent public and customer service to better serve the interests of the citizens of the
community.
The Employee Recognition Program is considered "additional compensation" for work performed
by employees but is entirely dependent on receiving funding from year-to-year. No provisions of
this policy, or its administration, shall be subject to review under the grievance or arbitration
provisions of any collective bargaining agreement.
The Program may include:
1. City employees completing 5, 10, 15, 20, 25, 30, 35, 40, and 3545 years of service may
receive a service award not to exceed $150185 in value, as determined by the City Manager.
2. Annually, the City may have an annual budget allotted to the City staff’s Employee
Recognition & Engagement Team.
3.2. Annually, the City may sponsor a Volunteer Recognition event to promote teamwork Committee
for recognition and coordination among the City Council, Department Directors,
Commission/Committees, and employees. This event and/or a token gift for invited participants and
their guests also serve as de minimus compensation for the service provided by the
volunteersengagement events or activities.
4.3. Annually, the City may sponsor a Holiday Party for City employees. In lieu of a Holiday
Party, the City may sponsor an annual employee event, such as Rootbeer Float Day.
5.4. The City supports other events that are planned and paid for by employees. Examples of
such events include holiday gatherings, golf and/or bowling tournaments.
3
6.5. The City supports recognition clocks andor gift certificates to a restaurant up to $65 for a
cake 100 in recognition of long-time service or retirement for employees, volunteers and elected
officials if greater than five years of service. Departments may recognize retirements with cake
receptions for retirements after at least five years of service and separations after at least 10
years of service.
7. Annually, at the end of each calendar year, each Department may receive designated funds
related to participating in and promoting safety practices in their respective
6. Departments. Each Department may use such funds to sponsor an employee event
recognizingrecognize their employees’ safety accomplishments.
The cost of the elements of the Employee Recognition Program will be included in the City of
Richfield Annual Budget. This item will be approved annually by the City Council as a part of the
overall budget approval process which includes a public hearing on the proposed budget.
B. B. Employee Wellness and Safety Programs
Pursuant to the authority granted in Minnesota Statutes section 15.46, the City Council approves
the expenditure of funds for employee wellness purposes. The City Council recognizes the
importance of employee fitness and health as it relates to the overall work and life satisfaction of
the employee and the overall impact on the City's health insurance program. As such, the City
Council supports an Employee Wellness Program, which has been designed to educate
employees on fitness/health issues.
The Employee Wellness Program is considered "additional compensation" for work performed by
employees, but is entirely dependent on receiving funding from year-to-year. No provisions of
this policy, or its administration, shall be subject to review under the grievance or arbitration
provisions of any collective bargaining agreement.
4
The cost of an Employee Wellness Program will be included in the City of Richfield Annual
Budget. This item will be approved annually by the City Council as a part of the overall budget
approval process which includes a public hearing on the proposed budget.
The Employee Safety Program is funded by the Self-Insurance Fund. The City supports programs
created by the Human Resources Division and the Safety Committee to promote and maintain a
safe work environment. Safety incentive programs such as Richfield Safety Pays, which provide the
opportunity for cash prizes for accident/injury-free work daysworkdays, is an example of such
programs. Such safety incentives shall be included in the City of Richfield Annual Budget.
C. C. Meeting Food/Meals
The City Council recognizes that situations in which City business needs to be discussed can and
do occur during meal hours (i.e. luncheon meetings). In addition, there are public and employee
meetings and events in which reasonable refreshments may be necessary to create a more
productive environment and to be responsive to participants’ time schedules. The following items
are deemed to meet the Council definition of public purpose expenditures in regardsregard to food
and meals.
1. 1. Meals and refreshments are allowed at City meetings and events that have a purpose of
discussing City issues. These meetings would normally have a pre-planned agenda.
2. 2. Meals and refreshments are allowed at employee meetings and events that have athe
purpose of discussing City issues or are a part of employee training. These meetings would
also normally have a pre-planned agenda. These meetings could include new employee
receptions to introduce new employees to existing employees, provide an orientation to the
City, and promote teamwork and cooperation. This does not include routine staff meetings.
3. 3. Meals and refreshments are allowed when they are part of a breakfast/lunch/dinner meeting
for official City business when it is the only practical time to meet. Usually, these meals involve
meeting with City Council members, Committee/Commission members, business or civic
organizations. Payment for fees relating to a special event, such as a Chamber of Commerce
event, may also be allowed when approved by the City Manager and when attendance is
deemed to meet the public purpose guidelines for community or customer outreach and
marketing of the City.
4. 4. Meals and refreshments may be provided during official meetings of the City Council, City
Council committees, advisory boards/commissions, and taskforces that have the purpose of
discussing City business. These meetings would normally have a pre-planned agenda.
5. 5. Travel expenses for employees as outlined in the Richfield Travel Reimbursement Policy.
6. 6. Meals and refreshments are allowed where employees or volunteers are participating in a
City-sponsored special event, participating in an outside event as an official representative of
the City, or working additional hours and where the Department Director deems appropriate as
recognition of efforts above those normally required. Because emergency personnel are often
called to perform for extended periods of time and duties where refreshments are important to
duty performance, emergency response personnel may be provided refreshments or food when
it is deemed appropriate by the City Manager or Department Director to assure the delivery of
quality emergency response service.
7. 7. No purchase of alcoholic beverages is allowed at any time.
The cost of these meals or fees is included in the departments'department’s travel/conferences line-
item in the City of Richfield Annual Budget. These items are approved annually by the City Council
5
as a part of the overall budget approval process which includes a public hearing on the proposed
budget.
D. D. Membership, Dues, and Donations
The City Council has determined that the City will fund memberships and dues (individual or
organization) in professional organizations and City social and community organizations when the
purpose is to promote, advertise, improve or develop the City's resources and relationships and
not personal interest or gain.
The cost of memberships/dues is included in the departments' dues and subscriptions line-item
in the City of Richfield Annual Budget. These items are approved annually by the City Council
as a part of the overall budget approval process which includes a public hearing on the
proposed budget.
All donations must be approved by the City Council during the annual budget process and/or by
City resolution. Donations provided by the City must be for programs that serve our citizens and
are deemed to meet the public purpose guidelines.
E. E. Education Reimbursement
The Personnel Policy contains guidelines for athe Richfield Employee Education Program
(REEP). Job related advanced education meets the public purpose guidelines of this policy. The
amount available for this program shall be considered annually. The cost of this program is
contained in the City of Richfield Annual Budget.
F. F. Clothing and Other Sundry Items
Employees may receive T-shirts, and other sundry items of nominal value ($20.00) when these
items are made available to the general public or if these items are determined by the City
Manager to be important to the successful involvement of employees in special City-sponsored
or City-supported events (i.e. Nite to Unite, etc.). The cost of these items for City-sponsored or
City-supported events shall be contained in the City of Richfield Annual Budget.
Employees may be supplied with uniforms, clothing, boots and other gear necessary for the
performance of their job. For purposes of City branding and easy identification of employees to
customers and members of the public, staff will be provided with one apparel item with the City
logo. This clothing item (fleece zip, cardigan or polo shirt with approximate value of $60) will be
issued to new employees and to current employees at the discretion of their respective
Department Directors.
G. Special Requests
From time to time, there may be an event that is a proper public expenditure, but that is not
contemplated by this policy. Department Directors may submit a written request to the City
Manager, or the Manager’s designee, for such a public expenditure. The request must show how
the expenditure is related to a public purpose as defined by this policy. Only expenditures that
meet the definition of a public purpose may be approved.
Conclusion
The Richfield City Council has determined that the above expenditures are valid and serve a public
purpose.
Approved: /s/ Steven L. Devich Katie Rodriguez
PUBLIC PURPOSE EXPENDITURE PAGE 6
____________________________________
City Manager
AGENDA SECTION:CONSENT CALENDAR
AGENDA ITEM #6.G.
STAFF RE P ORT NO. 73
CIT Y COUNCIL ME E T ING
6/13/2023
RE P O RT P RE PA RE D B Y: Julie Urban, A sst. C ommunity D evelopment D irector
D E PA RTME NT D IRE C TO R RE V IE W: Melissa P oehlman, C ommunity D evelopment D irector
6/6/2023
O THE R D E PA RTM E NT RE V IE W:
C ITY MA NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/7/2023
I T E M F O R C O UNC IL C O NS ID E RAT I O N:
Consider a resolution authorizing submittal of a grant application by Beacon Interfaith Housing
Collaborative to Minnesota Brownfields for environmental investigation at 6613-25 Portland Avenue.
E X E C UT IV E S UM M ARY:
The Housing and Redevelopment Authority (HRA) owns the property at 6613-25 Portland Avenue. On April
18, 2022, the HRA approved a Preliminary Redevelopment Agreement (Agreement) with Beacon I nterfaith
Housing Collaborative (Developer) to explore the development of 38 supportive housing units on the property.
As part of the Agreement, the HRA granted the Developer the right to enter the property to conduct due
diligence, including environmental testing. On April 23, 2023, a Phase I environmental assessment was
completed, which identified two Recognized Environmental Conditions (RE Cs) on the property and
recommended that a Phase I I environmental assessment be conducted.
Funds are available to nonprofits and governmental entities to pay for the cost of environmental testing through
Hennepin County's Brownfield Gap Financing Program (B GFP). The Developer is planning to apply for a
grant, and the application requires City Council approval.
The identified RE Cs include the site's proximity to two former petroleum leak sites located to the north and
northwest of the site and the former presence of a printing operation at 6613 Portland Avenue.
RE C O M M E ND E D AC T I O N:
By motion: Approve a resolution authorizing the submittal of a grant application by Beacon Interfaith
Housing Collaborative to Minnesota Brownfields for environmental investigation at 6613-25 Portland
Avenue.
B AS IS O F RE C O M M E ND AT I O N:
A.H IS TOR IC AL C ON T E X T
The properties at 6613-25 Portland Avenue were acquired by the City for the construction of the
Portland Avenue and 66th Street roundabout in 2008. The remnants were turned over to the HRA
to facilitate redevelopment.
Properties to the north and northwest of the HRA site are former petroleum leak sites causing the
potential for residual petroleum impacts in groundwater and soil vapor to have migrated to the HRA
properties.
A former printing operation was located at 6613 Portland Avenue. The activities commonly
associated with printing create a potential for contamination that should be explored further.
On April 18, 2022, the HRA approved the Agreement with Beacon I nterfaith Housing Collaborative
to explore the development of 38 supportive housing units. The Agreement authorized a right of
entry to Beacon to conduct environmental and soils testing.
B.P OL IC IE S (resolutions, ordinances, regulations, statutes, etc):
The City and HRA encourage developers to apply for outside funding when possible.
An assessment of environmental conditions and related clean up is required before new
development can occur.
C.C R IT IC AL T IMIN G IS S U E S:
Upon approval of a resolution, the Developer will apply for B GFP funds to conduct the Phase I I .
D.F IN AN C IAL IMPAC T:
Grant funds from Hennepin County would pay the cost of the Phase I I environmental assessment. There
is no cost to the City or HRA.
E.L E GAL C ON S ID E R AT ION:
The B GF P application requires submittal of a City Council resolution authorizing the application for
funds.
ALTE R N AT IV E R E C O MME N D ATIO N(S):
Decide not to authorize the submittal of the grant application.
P R IN C IPAL PAR TIE S E X P E C TE D AT ME E TIN G:
N/A
AT TAC H ME N T S:
D escription Type
Resolution Resolution L etter
RESOLUTION NO.
RESOLUTION AUTHORIZING SUBMITTAL OF A GRANT APPLICATION TO
MINNESOTA BROWNFIELDS FOR ENVIRONMENTAL INVESTIGATION AT
6513-25 PORTLAND AVENUE
WHEREAS, the Housing and Redevelopment Authority (HRA) approved a
Preliminary Redevelopment Agreement with Beacon Interfaith Housing Collaborative on
April 18, 2022, to explore the redevelopment of 6613-25 Portland Avenue with 38
supportive housing units; and
WHEREAS, as part of its due diligence required by the Preliminary Development
Agreement, Beacon had a Phase I Environmental Site Assessment prepared, dated April
27, 2023; and
WHEREAS, the Phase I identified two Recognized Environmental Conditions
impacting the site and recommends that a Phase II Environmental Site Assessment be
prepared; and
WHEREAS, Hennepin County provides funds to cities and non-profit
organizations for such environmental assessment of property through its Brownfield
Gap Financing Program; and
NOW, THEREFORE, BE IT RESOLVED the City of Richfield approves the
submittal of an application by Beacon to the Minnesota Brownfields Brownfield Gap
Financing program funded with an Environmental Response Fund grant from Hennepin
County Department of Environmental Services.
Adopted by the City Council of the City of Richfield, Minnesota this 13th day of
June, 2023.
__________________________________
Mary B. Supple, Mayor
ATTEST:
____________________________________
Dustin Leslie, City Clerk
AGENDA SECTION:CONSENT CALENDAR
AGENDA ITEM #6.H.
STAFF RE P ORT NO. 74
CIT Y COUNCIL ME E T ING
6/13/2023
RE P O RT P RE PA RE D B Y: C hris S wanson, Management A nalyst
D E PA RTME NT D IRE C TO R RE V IE W:
O THE R D E PA RTM E NT RE V IE W: Mary Tietjen, C ity A ttorney
C ITY MA NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/7/2023
I T E M F O R C O UNC IL C O NS ID E RAT I O N:
Approve the first reading of an ordinance approving renewal of a cable television franchise with
Comcast of Minnesota, Inc., and schedule a public hearing and second reading for June 27, 2023.
E X E C UT IV E S UM M ARY:
The Southwest Suburban Cable Commission ("Commission") consists of the cities of Eden Prairie, Edina,
Hopkins, Minnetonka and Richfield, Minnesota ("Member Cities"). The Commission administers and enforces
the cable franchises on behalf of its Member Cities.
Effective August 1, 2012 each of the Member Cities granted a cable franchise to Comcast. The initial term of
the franchise ran for ten (10) years and was extended by the Member Cities through J anuary 31, 2023.
I n 2019 Comcast requested renewal of the franchise and the Cable Commission has since been engaged in
informal renewal negotiations with Comcast to reach mutually acceptable terms for a renewal cable franchise.
I n response to Comcast’s request for franchise renewal, the Cable Commission retained an outside
consultant to conduct a needs assessment of the future cable-related needs and interests of the member cities
for the next franchise term.
The final Needs Assessment Report and draft renewal franchise were sent to Comcast for review on J uly 5,
2022. The Commission and Comcast have exchanged draft documents and held multiple negotiation sessions
to discuss the terms and conditions of the document in an effort to reac h mutually acc eptable language for the
next cable franchise. On May 24, 2023, the Cable Commission adopted Resolution 2023-1 recommending
that the renewal cable franchise be adopted by each Member City.
Final Results of the Franchise Negotiations:
Existing Franchise Renewal Franchise
“Gross Revenue” definition more clear definition
5% franchise fee Same % as Existing Franchise – federal
law (maximum allowed)
$.65/subscriber/month P E G Fee 1.5% of gross revenues
3 P E G Channels Same as Existing Franchise
Option for 1 HD P E G channel All P E G channels will be provided in HD
Complimentary cable service at
certain public buildings
Maintain status quo; however, F C C 621
Order adopted in 2019 allows Comcast to
deduct “marginal costs” from franchise fees
upon 120 days notice to Member City
P E G Transport Maintain status quo and same comment as
above regarding FC C 621 Order
10-year term 10-year term, effective date of adoption
Performance bond $100,000 per
Member City
Same as Existing Franchise
Security fund $10,000 per Member
City, upon violation notice
$25,000 security fund per Member City
RE C O M M E ND E D AC T I O N:
By Motion: Approve the first reading of an ordinance approving renewal of a cable television franchise
with Comcast of Minnesota, Inc., and schedule a public hearing and second reading for June 27, 2023.
B AS IS O F RE C O M M E ND AT I O N:
A.H IS TOR IC AL C ON T E X T
On or about J anuary 1, 1997, each of the Member Cities granted a Cable Television Franchise to K B L
Cable systems of the Southwest, I nc. At that same time the Member Cities each adopted a Cable
Television Regulatory Ordinance to be incorporated into the city code of each Member City. I n 2000, the
Commission and Member Cities approved a transfer of the existing franchise to Time W arner, I nc. I n
J une of 2005, Time Warner transferred the existing franchise to Comcast Communications. Comcast
currently operates the cable systems in each of the Member Cities under authority granted in the existing
franchise.
The initial term of the existing franchise ran for fifteen years and was extended by the Member Cities to
expire on J uly 31, 2012. Each member city adopted a cable franchise in 2012 which granted Comcast a
10-year franchise with an effective date of August 1, 2012. I n September of 2022, the city extended the
existing franchise agreement with Comcast, set to expire on August 1, 2022, until J anuary 31, 2023, to
finalize negotiations.
I n response to Comcast’s request for franchise renewal, the Cable Commission retained an outside
consultant to conduct a needs assessment of the future cable-related needs and interests of the member
cities for the next franchise term. The Commission identified 8 main goals for the next franchise
agreement.
Cable Commission Goal:
The Cable Commission’s primary goals during renewal negotiations were:
1. Ensure each city’s right-of-way code is incorporated into the renewal franchise.
2. Retain ability to regulate noncable services provided by Comcast – broadband.
3. Ensure all local P E G (public, educational and governmental) access channels are provided in HD
(high-definition).
4. I ncrease the level of capital support for P E G access channels.
5. Maintain the 5% franchise fee as consideration for use of the city’s right-of-way.
6. Maintain strong customer service standards.
7. Renew for a 10-year term.
8. Adopt enforcement procedures and security to ensure compliance.
B.P OL IC IE S (resolutions, ordinances, regulations, statutes, etc):
A public hearing is required for this franchise under City Charter, Section 10.05. A notice of the public
hearing will be posted in the Sun Current on J une 15, 2023.
C.C R IT IC AL T IMIN G IS S U E S:
The cable television franchise renewal should be extended as soon as possible because the existing
franchise extension expired J anuary 31, 2023.
D.F IN AN C IAL IMPAC T:
The 5% franchise fee will stay the same as this is the maximum allowed under federal law. I n 2022,
Richfield collected $286,730.31 from the franchise fee. The number of cable subscribers has been
steadily declining, resulting in declining franchise revenue, as residents have more options to access
content online.
However, staff anticipates the P E G Fee revenues to increase with the new franchise agreement as one
key provision of the new franchise is an increase in the P E G fee to 1.5% of Comcast's gross revenues.
Actual 2022 $.65/sub/mo P E G Fee: $32,435.72 (Current Contract)
Estimated 1.5% annual P EG Fee: $86,018.94 (Proposed Contract)
T he revenues help replace technology for the benefit of broadcast production and support
public access, and eliminate the need to increase the City's costs
E.L E GAL C ON S ID E R AT ION:
T he franchise ordinance was negotiated and drafted by legal counsel for the Southwest Cable
Communications Commission, Brian Grogan.
Under the City Charter, the new ordinance will not be effective until 30 days after publication of the
ordinance.
The Commission has negotiated that the new rates will be applied retroactively to J anuary 1, 2023. The
attached draft ordinance amendment was reviewed and finalized by the City Attorney.
ALTE R N AT IV E R E C O MME N D ATIO N(S):
All five member cities are considering the renewal cable franchise simultaneously. Any proposed
revisions from one of the cities may require the Commission to seek agreement, not only from
Comcast, but also from the other four member cities. T his is not to say further revisions are
impossible, but to highlight the complex negotiation process undertaken to get to this final Franchise
Agreement.
The City Council could choose to not adopt the proposed ordinance amendment; however, its adoption has
been recommended by the Commission.
P R IN C IPAL PAR TIE S E X P E C TE D AT ME E TIN G:
AT TAC H ME N T S:
D escription Type
P roposed Renewal with C omcast - S W S C C (C lean)Ordinance
2012 C omcast franchise compared to 2023 P roposed
renewal - S W S C C (Redline)Ordinance
RE S OL UTIO N NO. 2023-1 recommending approval of
the F ranchise agreement with C omcast B ackup Material
C able F ranchise Renewal P resentation P resentation
8516661v1
City of Richfield, 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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ORDINANCE NO. _______
AN ORDINANCE RENEWING THE GRANT OF A FRANCHISE TO COMCAST
OF MINNESOTA, INC. TO OPERATE AND MAINTAIN A CABLE SYSTEM IN THE
CITY OF RICHFIELD, MINNESOTA; SETTING FORTH CONDITIONS
ACCOMPANYING THE GRANT OF THE FRANCHISE; PROVIDING FOR CITY
REGULATION AND ADMINISTRATION OF THE CABLE SYSTEM; AND
TERMINATING ORDINANCE NO. 2012-10
RECITALS
The City of Richfield, 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. 2012-10.
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 RICHFIELD, 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
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.
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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
(e) any facilities of any electric utility used solely for operating its electric
utility system.
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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 Richfield, a municipal corporation in the State of
Minnesota.
1.10 “City Code” means the Municipal Code of the City of Richfield, 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.
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
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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 one and one-half percent (1.5%) 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 unreasonably 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. 2012-10 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 Richfield
6700 Portland Avenue
Richfield, MN 55423
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 day of 2023.
ATTEST CITY OF RICHFIELD, 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
1. Admin Serv Dept, Richfield 6700 Portland Ave Apt Asd Richfield
2. Richfield Comm Center 7000 Nicollet Ave Richfield
3. Centennial Elem School 7315 Bloomington Ave Richfield
4. Sheridan Elementary 6400 Sheridan Ave S Richfield
5. Fire Station 2, Richfield 6401 Penn Ave S Richfield
6. Fire Station, Richfield 6700 Portland Ave Apt 1 Richfield
7. Richfield High School 7001 Harriet Ave S Richfield
8. Richfield Ice Arena 636 E 66th St Richfield
9. Richfield Middle School 7461 Oliver Ave S Richfield
10. Augsburg Library 7100 Nicollet Ave Richfield
11. Mt Calvary Lutheran School 6541 16th Ave S Richfield
12. Richfield City Hall 6700 Portland Ave Apt Hall Richfield
13. Richfield Pub Safety 6700 Portland Ave Apt Eoc Richfield
14. Richfield School Garage 300 W 72nd St Richfield
15. Holy Angels School 6600 Nicollet Ave Richfield
16. Richfield Dual Language School 7001 Elliot Ave S Richfield
17. Central Education Center 7145 Harriet Ave Richfield
18. Richfield Stem 7020 12th Ave S Richfield
* 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
Richfield City Hall 6700 Portland Avenue
C-1
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EXHIBIT C
FRANCHISE FEE PAYMENT WORKSHEET
PEG Fee 1.5%
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
RICHFIELD, 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 , 2023, the City of Richfield, 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 1.5% 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. . A copy of the entire ordinance shall be
posted at the Richfield City Hall.
It is hereby directed that only the above title and summary of Ordinance No. 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 Richfield
City Hall at 6700 Portland Avenue, Richfield, MN 55423 during the hours of 8:00 a.m. and 4:30
p.m., Monday through Friday.
Yes No
Mayor
Councilmember
Councilmember
Councilmember
Councilmember
Councilmember
Councilmember
Passed by the Richfield City Council this day of , 2023.
ATTEST: , Mayor
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8500140v1
Southwest Suburban Cable Communications Commission
Proposed Renewal Template
May 18, 2023
City of , , Minnesota
Ordinance Granting a Cable Television Franchise
to
Comcast of Arkansas / Florida / Louisiana / Minnesota / Mississippi / Tennessee, Inc.
May 25, 2012
Submitted for informal renewal negotiations only (47 U.S.C. 546 (h)) - pursuant to Federal
Rules of Evidence 408 or its state, local or city equivalent.
8500140v1
TABLE OF CONTENTS
SECTION 1 DEFINITIONS ....................................................................................................... 2
SECTION 2 FRANCHISE ........................................................................................................ 99
SECTION 3 OPERATION IN STREETS AND RIGHTS-OF-WAY .................................. 1212
SECTION 4 REMOVAL OR ABANDONMENT OF SYSTEM ......................................... 1616
SECTION 5 SYSTEM DESIGN AND CAPACITY ............................................................ 1717
SECTION 6 PROGRAMMING AND SERVICES .............................................................. 2020
SECTION 7 PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS .................. 2323
SECTION 8 REGULATORY PROVISIONS ....................................................................... 3131
SECTION 9 BOND ............................................................................................................... 3232
SECTION 10 SECURITY FUND ........................................................................................... 3232
SECTION 11 DEFAULT ........................................................................................................ 3535
SECTION 12 FORECLOSURE AND RECEIVERSHIP ....................................................... 3737
SECTION 13 REPORTING REQUIREMENTS .................................................................... 3838
SECTION 14 CUSTOMER SERVICE POLICIES ................................................................ 3939
SECTION 15 SUBSCRIBER PRACTICES ........................................................................... 4545
SECTION 16 COMPENSATION AND FINANCIAL PROVISIONS .................................. 4646
SECTION 17 MISCELLANEOUS PROVISIONS ................................................................ 4949
EXHIBIT A FREE CABLE SERVICE TO PUBLIC BUILDINGS A-Error! Bookmark not
defined.
EXHIBIT B EXISTING FIBER RETURN LINES .............. B-Error! Bookmark not defined.
EXHIBIT C FRANCHISE FEE PAYMENT WORKSHEET ............ C-Error! Bookmark not
defined.
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
i
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ORDINANCE NO.
AN ORDINANCE RENEWING THE GRANT OF A FRANCHISE TO COMCAST OF
ARKANSAS / FLORIDA / LOUISIANA / MINNESOTA / MISSISSIPPI / TENNESSEE,
INC. TO OPERATE AND MAINTAIN A CABLE SYSTEM IN THE CITY OF
; ; SETTING FORTH CONDITIONS ACCOMPANYING
THE GRANT OF THE FRANCHISE; PROVIDING FOR CITY REGULATION AND
ADMINISTRATION OF THE CABLE SYSTEM; AND TERMINATING ORDINANCE
NO. .
RECITALS
The City of , , 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 Arkansas / Florida / Louisiana / Minnesota / Mississippi / Tennessee, Inc., a
Delaware corporation. (“Grantee”) has operated a Cable System in the City, under a cable
television franchise granted pursuant to Ordinance No. . .
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 City reviewed the legal, technical and financial qualifications of Grantee and,
after a properly noticed public hearing, asThe 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
DOES ORDAIN that a franchise is hereby granted to Comcast of Arkansas / Florida / Louisiana
/ Minnesota / Mississippi / Tennessee, Inc., to operate and maintain a Cable System in the City
upon the following terms and conditions:
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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
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” shall meanor “Affiliated Entity” means any Person controlling,who
owns or controls, is owned or controlled by, or is under common ownership or control ofwith,
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” shall meanmeans (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. For the purposes of this definition, “video programming” is programming provided by,
or generally considered comparable to programming provided by a television broadcast station;
and, “Other Programming Service” is information that a cable operator makes available to all
Subscribers generally.
1.7 “Cable System” shall have the meaning specified for “Cable System” in
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;
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(b) a facility that serves Subscribers without using any Streets;
(a) the Cable Act.
(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
(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” shall meanmeans the City of , a municipal corporation in
the State of Minnesota.
1.10 “City Code” means the Municipal Code of the City of , Minnesota,
as may be amended from time to time.
1.11 “Commission” means the Southwest Suburban Cable Communications
Commission consisting of the cities of Edina, 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 all signals included in the Basic Cable Service tier delivered at designated converter dial
locationsCable Service signals.
1.14 “Council” shall meanmeans the governing body of the City.
1.15 “Day” means a calendar day, unless otherwise specified shall mean a calendar
day.
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1.16 “Drop” shall meanmeans 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” shall mean Augustmeans February 1, 20122023.
“Expanded Basic Service” means the next tier of service above the Basic Cable Service
tier excluding premium or pay-per-view services.
1.18 “FCC” means the Federal Communications Commission, or a designated
representative.
1.19 “Franchise” shall meanmeans 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.
1.21 “Franchise Fee” shall meanmeans the fee assessed by the City to Grantee, in
consideration of Grantee’s right to operate the Cable System within the City’s Streets and rights
of way, 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 any, and shall be construed broadly to include, all
compensation in whatever form, from any source, revenues derived directly or indirectly earned
by Grantee and/or any Affiliate of Grantee or any other Person who would constitute a cable an
Affiliated Entity that is the cable operator of the Cable System under the Cable Act, derived,
from the operation of theGrantee’s Cable System to provide Cable ServiceServices within the
City. Gross Revenues include, by way of illustration and not limitation, monthly fees charged
Subscribers for Cable Services including Basic :
(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;
(a) Cable Service, any expanded tiers of Cable Service, optional premium or
digital services; pay-per-view services; Pay Services,
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(c) Converter, digital video recorder, remote control, and other Cable Service
equipment rentals, leases, or sales;
(d) installation, disconnection, reconnection and, change-in -service fees,
Leased Access Channel, “snow-bird” fees, all Cable Service lease payments from the
Cable System to provide Cable Services in the City, ;
(e) Advertising Revenues as defined herein;
(b) late fees and administrative fees, payments or other consideration received
by Grantee from programmers for carriage of programming on the Cable System and
accounted for as revenue under GAAP; revenues from rentals or sales of Converters or
other Cable System equipment; advertising sales revenues booked in accordance with
Applicable Law and GAAP;
(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;
(c) revenues from program guides and electronic guides, additional outlet
fees, Franchise Fees required by this Franchise, revenue from Interactive Services to the
extent they are considered Cable Services under Applicable Law; revenue from the sale
or carriage of other Cable Services, revenues
(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
(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 paid to the,
representative fees, Affiliated Entity fees, or rebates paid to National Cable
Communications and Comcast Spotlight, or their successors associated with sales
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of advertising on the Cable System within the City allocated according to this
paragraph using total Cable Service Subscribers reached by the advertising.
Copyright fees or other license fees paid by Grantee shall not be subtracted from
Gross Revenues for purposes of calculating Franchise Fees. Gross Revenues shall
include revenue received by any entity other than Grantee where necessary to
prevent evasion or avoidance of the obligation under this Franchise to pay the
Franchise Fees.
(ii) “Gross Revenues” shall not include:
1. any taxes on services furnished by Grantee, which taxes
are imposed directly on a Subscriber or user by a city, county, state or
other governmental unit, and collected
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:
(ii) by Grantee for such entity. The Franchise Fee is not such a tax.
Gross Revenues shall not include amounts which cannot be collected by Grantee
and are identified as bad debt; provided that if amounts previously representing
bad debt are collected, then those amounts shall be included in Gross Revenues
for the period in which they are collected. Gross Revenues shall not include
(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.
(iii) payments for PEG Access capital support. The City acknowledges
and accepts that Grantee shall maintain its books and records in accordance with
GAAP.
(ii) Grantee reserves the right to change the allocation methodologies
set forth in this section in order to meet the standards required by governing
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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.
“Interactive Services” are those services provided to Subscribers whereby the Subscriber
either (a) both receives information consisting of either television or other signal and transmits
signals generated by the Subscriber or equipment under his/her control for the purpose of
selecting what information shall be transmitted to the Subscriber or for any other purpose or (b)
transmits signals to any other location for any purpose.
(iv) “Minnesota Cable Communications Act” means the
provisions of Minnesota law governing the requirements for a cable television
franchise as set forth in Minn. 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.Stat. § 238, et. seq., as amended.
1.231.24 “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.
1.241.25 “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.
1.251.26 “Other Programming Service” is information that a cable operator makes
available to all Subscribers generally.
“Pay Service” means programming (such as certain on-demand movie channels or pay-
per-view programs) offered individually to Subscribers on a per-channel, per-program or per-
event basis.
1.261.27 “PEG” means public, educational and governmental.
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1.271.28 “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.
“Street” shall mean the surface of and the space above and below any public Street, road,
highway, freeway, lane, path, public way, alley, court, sidewalk, boulevard, parkway, drive or
any easement or right-of-way now or hereafter held by City which shall, within its proper use
and meaning in the sole opinion of City, entitle Grantee to the use thereof for the purpose of
installing or transmitting over poles, wires, cables, conductors, ducts, conduits, vaults, man-
holes, amplifiers, appliances, attachments and other property as may be ordinarily necessary and
pertinent to a Cable System.
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.
1.281.31 “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.
1.29 “Wireline MVPD” means a multichannel video programming distributor 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.
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.
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SECTION 2
FRANCHISE
2.1 Grant of Franchise. The City hereby authorizes Grantee to occupy or use the
City’s Streets subject to: 1) the provisions of this non-exclusive Franchise to provide Cable
Service within the City; and 2) all applicable provisions of the City Code. SaidUnless 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 thethis 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.
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.
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Any additional cable franchise grants shall comply with Minn. Stat. Section§ 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 have thirty (30) Days from the time of the request to reply in
writing and indicate approval of the request or its determination that a public hearing is
necessary due to potential adverse affecteffect on Grantee’s Subscribers resulting from
the sale or transfer. Such approval or determination shall be expressed in writing within
thirty (30) Days of receipt of said request, or the request shall be deemed approved as a
matter of law.
(c) If a public hearing is deemed necessary pursuant to (b) above, such
hearing shall be commenced within thirty (30) Days of such determination and notice of
any such hearing shall be givenhandled 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) Within thirty (30) Days 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.
(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
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“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 the event of any proposed sale or assignment pursuant to paragraph (a)
of this section, City shall have the right of first refusal of any bona fide offer to purchase
the Cable System. Bona fide offer, as used in this section, means an offer received by the
Grantee which it intends to accept subject to City’s rights under this section. This written
offer must be conveyed to City along with the Grantee’s written acceptance of the offer
contingent upon the rights of City provided for in this section.
(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 thirty (30ninety
(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
thethis 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
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own expense all or any part of the Cable System from all Streets and public ways within the
Franchise 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 all available services insofar as their financialCable Service in accordance with the terms
of this Franchise and other obligations to Grantee are honored.Applicable Law. In the event that
Grantee elects to overbuild, rebuild, modify, or sell the systemtransfer 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, during the lifetime ofwhile 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 communications 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. Grantee shall keep accurate maps and records of all of its wires, conduits, cables
and other property and facilities located, constructed and maintained in the City.
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(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.
(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
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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.
(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 right-of-wayStreets 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 right-of-
wayStreet, 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.
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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
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 to Grantee 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
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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
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 cable
companyGrantee 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, ChapterCh. 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 to be infor the City with all rights of ownership including, but not
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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:
(a) Declare all right, title and interest to the System to be infor 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) Prior to the Effective Date of this Franchise, Grantee upgraded itsThe
Cable System toutilizes a fiber to the fiber node Cable System architecture, with fiber
optic cable deployed from Grantee’s headend to Grantee’s fiber nodes, tying into
Grantee’s coaxial Cable System already serving Subscribers. Active and passive devices
currently are passingThe System shall pass a minimum of 750 MHz (with a minimum
passband of between 50 and 750 MHz) providingand shall be maintained to provide to
Subscribers a minimum of at least two hundred (200) or more activated minimum
downstream videoCable Service Channels and minimum activated upstream digital
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Channel capacity of 35 MHz accessible from any node and any Subscriber in the
Franchise Area. This upstream capacity requires no additional installation of equipment
for use except on users’ premises. .
(b) The entire System shall be technically capable of transmitting NTSC
analog, compressedindustry-standard digital television signals in a manner and HDTV
transmissions. The Grantee shall complyquality consistent with allapplicable FCC
regulations regarding carriage of digital and HDTV transmissions.
(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 the requirements of this Franchise, including the exhibits hereto,
and 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.
5.21.1 Free Cable Service to Public Buildings.
(a) Throughout the term of this Franchise Grantee shall provide, free of
charge, one (1) service Drop, three (3) Converters, if necessary and requested, and
Basic Cable Service and the next highest level of Service generally available to
all Subscribers (as of the Effective Date referred to as Expanded Basic Cable
Service) (“Complimentary Service”), to all of the sites listed on Exhibit A
attached hereto.
(b) If the Drop line to such building exceeds three hundred fifty (350) feet,
Grantee will accommodate the Drop up to three hundred fifty (350) feet if the
City or other agency provides the necessary attachment point for aerial service or
conduit pathway for underground service. If the necessary pathway is not
provided, the City or other agency agrees to pay the incremental cost of such
Drop in excess of two hundred (200) feet for an aerial service Drop, or in excess
of one hundred twenty-five (125) feet for an underground service Drop. For
purposes of this paragraph, “incremental cost” means Grantee’s actual cost to
provide the Drop beyond the applicable distances, with no mark-up for profit.
The recipient of the service will secure any necessary right of entry.
(c) 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 outlets, Grantee will provide up to three devices at no charge, and will
provide additional devices at Grantee’s lowest residential rate charged within the
Twin Cities metropolitan area.
(d)(a) 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
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technically feasible. Outlets and maintenance of said Complimentary Service shall be
provided free of fees and charges.
5.35.2 Equal and Uniform Service. To the extent required by Applicable Law, Grantee
shall provide access to equal and uniform Cable Service throughout the City.
5.45.3 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 federal law and regulationsLaws 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’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.
5.55.4 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) Semi-annual compliance tests;
(c)(b) Tests in response to Subscriber complaints; and
(d)(c) Tests requested by the City to demonstrate franchise compliance.; and
(e)(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.
5.65.5 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
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Children/Family/Seniors
Foreign Language/Ethnic Programming
Public, Educational and Governmental AccessPEG Programming (to the extent required
by the Franchise)
Movies
Leased Access
6.2 Changes in Programming Services. Grantee shall not delete or so limit as to
effectively delete any broad category of programming within its control without the City’s
consent. Further 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
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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.
(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.
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(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
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. Grantee will maintain four (4) PEG Access
Channels for the first twelve (12) months of the Franchise term. Twelve (12) months after the
Effective Date of the Franchise, the City shall be entitled to only three (3) PEG Access Channels.
7.2 Analog, Digital and HD PEG Carriage Requirements. Grantee shall provide
the Access Channels on the most basic tier of service offered by Grantee in accordance with the
Cable Act, Section 611, and as further set forth in this Section 7. At such time as Grantee no
longer offers Basic Cable Service in an analog format, Grantee shall carry all PEG Access
Channels in a standard digital format in Grantee’s Basic Cable Service package, unless the
parties agree to an earlier conversion date. Thereafter, and upon ninety (90) days’ notice from
the City, Grantee shall make one (1) of the three (3) PEG Access Channels available in high
definition (HD) format, provided that Grantee receives a satisfactory HD signal from the
program originator.
(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.
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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.
(a)(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.
(b) All Access Channels may be delivered by City to Grantee in either analog
or standard digital format.
(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
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.
(d) Within twelve (12) months of the Effective Date, and with at least one
hundred twenty (120) Day written notice to Grantee, the City may provide PEG Access
Channels in only HD format to the demarcation point to provide the signal to Grantee,
and as such the City will no longer provide the PEG Access Channels in a standard
definition digital format. Grantee shall provide all necessary transmission equipment
from the demarcation point and throughout Grantee’s distribution system, in order to
deliver the PEG Access Channels. Access Channel Signals delivered in HD format to
Grantee shall not require Grantee to deliver such HD signals to Subscribers except as set
forth herein.
7.3 Existing PEG Studio and Playback. Within thirty (30) Days of the Effective
Date, Grantee shall have no further obligation to maintain Grantee’s public access studio located
in Eden Prairie (“Studio”). Grantee shall maintain all public access and educational access
playback equipment and playback staff at the Studio for twelve (12) months from the Effective
Date (“Transition Period”).
(a)(e) Existing PEG Equipment Transfer. Grantee will transfer all existing
PEG equipment, racks, lights, facilities, etc. currently in use at the Studio to the
Commission. Timing for the equipment transfer will occur within sixty (60) days
following close of the Studio and the equipment transfer for playback will occur shortly
after the Transition Period is completed.
7.47.3 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.
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7.57.4 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.
7.67.5 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 Nine Thousand Dollars ($9,000) of in-kind air time
per event on advertiser supported Channels (e.g. USA, TNT, TBS, Discovery Channel, or
other comparable Channels) for the purpose of airing City’s, or its designees’, pre-
produced thirty (30) second announcement explaining the change in location.
(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.
7.7 Navigation to Access Channels. Grantee agrees that if it utilizes a visual
interface under its control on its Cable System for all Channels, the Access Channels shall be
treated in a non-discriminatory fashion consistent with Applicable Laws so that Subscribers will
have ready access to Access Channels. This shall not be construed to require Grantee to pay any
third party fees that may result from this obligation.
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
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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.
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.
7.87.7 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 Dedicated Fiber Return Lines.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
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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,
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 Fiber Return Lines for 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 paragraph 10Exhibit 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.
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(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;
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) Within thirty (30) days of the Effective Date of this Franchise Grantee
shall remit to the Commission a one-time Two Hundred Thousand and No/100 Dollar
($200,000) grant in support of PEG capital purposes (“PEG Grant”). Comcast retains all
legal authority it may possess to recover the PEG Grant from Subscribers in any manner
permitted by Applicable Law.
(a) No later than September 1, 2023, Grantee shall collect and remit to the
City a minimum of one and one-half percent (1.5%) of Grantee’s Gross Revenues in
support of PEG (“PEG Fee”) to be used by the City as permitted under Applicable Law.
(b) Upon the Effective Date of this Franchise, Grantee shall also collect and
remit to the City Sixty cents (60¢) per Subscriber per month in support of PEG capital
(“PEG Fee”).
(c) During the twelve (12) months following the Effective Date, Grantee shall
retain Thirteen cents (13¢) of the Sixty cent (60¢) PEG Fee to reimburse Grantee for the
costs associated with maintaining staff, equipment and space at the Studio to handle the
public and educational playback obligations for the Transition Period. This will result in
the City receiving a Forty-seven cent (47¢) PEG Fee for the first twelve (12) months of
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the Franchise. Thereafter the PEG Fee will revert to the Sixty cent (60¢) level for the
remainder of the ten (10) year Franchise term subject to the one-time inflation
adjustment set forth in Section 7.16 (d) below.
(d) At the fifth (5th) anniversary of the Effective Date of this Franchise, the
City, at its discretion, may require Grantee to increase the PEG Fee to Sixty-five cents
(65¢) per Subscriber per month for the remaining term of the Franchise. The PEG Fee
shall be used by City in its sole discretion to fund PEG access capital expenditures.
(e)(b) The PEG Fee Neither the PEG Grant nor the PEG Fee are intended to
representis not part of the Franchise Fee and are intended to fallinstead falls within one
(1) or more of the exceptions in 47 U.S.C. § 542. The PEG Grant and, 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. Grantee shall pay the PEG
Fee to the City quarterly at the same time as the payment of Franchise Fees under Section
16.1 of the 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
Funds or the PEG Fee.
(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.
(f)(d) Any PEG Access capital supportFee 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
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 ana PEG Access
ChannelsChannel 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
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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. Grantee shall allow the City to place bill stuffers in
Grantee’s Subscriber statements at a cost to the City not to exceed Grantee’s out of pocket cost,
no less frequently than twice per year, or at such time as a Access Channel is moved or relocated,
upon the written request of the City and at such times that the placement of such materials would
not materially and adversely affect Grantee’s cost for the production and mailing of such
statements. The City agrees to pay Grantee in advance for the actual cost of such bill stuffers.
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 agreesand City agree that
City will continue to providehave the following capability such thaton the City, from its City
Hall, can switch its government Access Channel in the following ways:
(a) City can insert live Council meetings from City Hall;
(b) City can replay government access programming from City Hall; and
(c) City can transmit character generated programming.; and
(d) Schedule for GranteeCity can schedule to replay City-provided
tapesprogramming in pre-arranged time slotslots on the government PEG Access
Channel; and
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(e)(d) Switch to C-SPAN 2 or other comparable programming provided by the
Grantee at any time when not carrying live or taped government access programming.
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.
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(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.
(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,
handicappeddisabled, 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
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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
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 ($2025,000.00). In no event shall Grantee fail to post a Twenty-five Thousand and
No/100 Dollar ($2025,000.00) 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 TwoFive Thousand and No/100
Dollars ($25,000) in that action.
10.2 Withdrawal of Funds. ProvisionThe security fund shall be made to permit the
City to withdraw funds from the security fund.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
sectionFranchise, 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 OneTwo Hundred Fifty and No/100 Dollars ($100250.00) 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 D, the
liquidated damage shall be One Hundred Fifty Dollars ($150.00) per Day for each Day,
or part thereof, such failure occurs or continues.
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(c)(b) For failure to test, analyze and report on the performance of the System
following a request by City10.4, 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.
(d)(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
shall be TwoFive Hundred and No/100 Dollars ($200500.00) per Day for each Day, or
part thereof, such failure occurs or continues.
(e)(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 OneTwo Hundred Fifty ($150and 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 120 Days.Draw Per Violation. Any liquidated damages for any
given violation shall be imposed upon Grantee for a maximum of one hundred twenty (120)
Days.Twenty-five Thousand and No/100 Dollars ($25,000). If after that amount of timedraw
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) DaysDays’ 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
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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.
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 Section 10 of the 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 for the one hundred twenty (120) Day periodup 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
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(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; or
(e)(d) Incurred a twelve (12) month or more delay in the construction schedule.
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.
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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.
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,
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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
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 such fees preparedthe Franchise Fee and PEG Fee
payments, signed by an officerauthorized representative of Grantee showing the basis for the
computation of the Franchise Fees paid during that period in a, in form and substance
substantially equivalent to Exhibit C attached hereto. This report shall separately indicate
revenues received by GranteeGrantee’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 unreasonably 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
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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.
13.413.5 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
‘sGrantee’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, 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 ‘sGrantee’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, with.1 and 14.4
only, the exception of Subsection 14.5, aword “complaint” shall mean any communication to
Granteethe Commission or to the City by a Subscriber or a Person who has requested Cable
Service; a Person, and thereafter reported to the Grantee, expressing dissatisfaction with any
service, performance, or lack thereof, by Grantee under the obligations of this Franchise.
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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.
(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.
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(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. Grantee shall comply with the
standards and requirements for customer service set forth below during the term of this
Franchise.
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.
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(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).
(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.
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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:
(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,
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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.
14.15 Late Fees. Grantee shall comply with all Applicable state and federal 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 CustomerSubscriber Bills. Customer Subscriber bills shall be designed in such a
way as to present the information contained therein clearly and comprehensibly to
CustomersSubscribers, and in a way that (A) is not misleading and (B) does not omit material
information. Notwithstanding anything to the contrary in Section 14.10, above, Grantee may, in
its sole discretion, consolidate costs on CustomerSubscriber 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 thethis Franchise.
14.19 Maintain a Complaint Phone Line. Grantee shall maintain a local or toll-free
telephone Subscriber complaint line, available to its Subscribers twenty-four (24) hours per Day,
seven (7) Days a week.
14.2014.19 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.
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14.2114.20 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
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 (bii) of this section.
14.2214.21 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,
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however, that such disconnection shall not be effectedaffected 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 SubscribersSubscriber’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.
(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.
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(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
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 seven (7six
(6) years, pursuant to Minnesota Statutes SectionMinn. 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
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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,
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:
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(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 GrantorCity 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) DaysDays’ 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
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 this
Franchisethe Summary as such posting and publication is required by law and such is payable
upon Grantee’s filing of acceptance of this Franchise.
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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. 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.
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 franchisesfranchise as
originally granted by Ordinance No. is hereby terminated.
17.6 Franchise Acceptance. No later than forty-five (45) Days following City
Council approval of this Franchise, Grantee shall executeaccept and return to the City three (3)
original franchise agreements. Thean executed agreements shall be returned to the City
accompanied byFranchise 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 AugustFebruary 1, 20122023.
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 federal, state
or localApplicable Laws; provided, however, nothing herein shall restrict City’s exercise of its
police powers.
17.8 Notice. Any notification that requires a response or action from a party to this
Franchise, within a specific time-frame or would trigger a timeline that would affect one or both
parties’ rights under this Franchise, shall be made in writing and shall be sufficiently given and
served upon the other party by hand delivery, first class mail, registered or certified, return
receipt requested, postage prepaid, or by reputable overnight courier service and addressed as
follows:
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:
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To the City: City Manager, City of
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
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.
Abandonment of System. Grantee may not abandon the System or any portion thereof without
having first given three (3) months written notice to City and conforming to the City Code, as
well as the state right-of-way rules, Minn. Rules, Chapter 7819. To the extent required by Minn.
Stat. §238.084 Subd. 1 (w), Grantee shall compensate Grantor for damages resulting from the
abandonment.
17.12 Removal After Abandonment. In the event of Grantee’s abandonment of the
System, City shall have the right to require Grantee to conform to the City Code, as well as the
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state right-of-way rules, Minn. Rules, Chapter 7819. 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 City Code and 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 Performance Bond toward removal and/or declare all right, title, and interest to the System to
be in City 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.
17.1317.11 Governing Law. This Franchise shall be deemed to be executed in the
State of Minnesota, and shall be governed in all respects, including validity, interpretation and
effect, and construed in accordance with, the laws of the State of Minnesota, as applicable to
contracts entered into and performed entirely within the state.
17.1417.12 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.
17.1517.13 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.
17.1617.14 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.
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However, Grantee’s obligations to the City (other than the obligation to provide service to
Subscribers) shall survive according to their terms.
17.18 Competitive Equity If any
(a) other Wireline MVPD enters into any
(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.
(b) agreement with the City to provide multi channel Video programming or
its equivalent to residents in the City, the City, upon written request of the Grantee, shall
permit the Grantee to construct and/or operate its Cable System and provide multi
channel video programming or its equivalent to Subscribers in the City under the same
agreement as applicable to
(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
54
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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.
(c) the new MVPD
(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
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.
(d) . Within one hundred twenty (120) days after the Grantee submits a
written request to the City, the Grantee and the City shall enter into an agreement or other
appropriate authorization (if necessary) containing the same terms and conditions as are
applicable to the new Wireline MVPD.
(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
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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
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 day of 2012 2023.
ATTEST CITY OF , MINNESOTA
By: By:
Its: City Clerk Its: Mayor
By:
Its: City
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ACCEPTED: This Franchise is accepted, and we agree Comcast of Minnesota, Inc. agrees to be
bound by its terms and conditions.
COMCAST OF ARKANSAS / FLORIDA /
LOUISIANA / MINNESOTA /
MISSISSIPPI / TENNESSEE, INC.
Date: By:
Its:
Notary:
A-1
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EXHIBIT A
Free Cable Service to Public Buildings
To be inserted for each Member City
AB-1
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Exhibit B
Existing Fiber Return Lines
To be inserted for each Member City
A-1
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Exhibit C
Franchise Fee Payment Worksheet
TRADE SECRET – CONFIDENTIALCOMPLIMENTARY SERVICE LOCATIONS
BUILDING Month/YearADDRESS Month/YearCITY
Eden Prairie Senior Center 8950 Eden Prairie Rd Eden Prairie
Eden Prairie City Hall 8080 Mitchell Rd Ofc Eden Prairie
Hennepin Tech College 13100 Collegeview Rd Eden Prairie
Eden Prairie School District 8100 School Rd Ste Metro E Eden Prairie
Oak Point Elementary 13400 Staring Lake Pkwy Eden Prairie
Cedar Ridge Elementary 8905 Braxton Dr Eden Prairie
Eden L Elementary 12000 Anderson Lakes Pkwy Eden Prairie
Prairie View Elementary 17255 Peterborg Rd Eden Prairie
Fire 3, Eden Prairie 7350 Eden Prairie Rd Eden Prairie
Fire Station #1, Eden Prairie 14800 Scenic Heights Rd Eden Prairie
Fire Station #4, Eden Prairie 17920 Linwood Ct Eden Prairie
Fire Station, Eden Prairie 12100 Sunnybrook Rd Eden Prairie
Eden Prairie High School 17185 Valley View Rd Eden Prairie
Forest High School 13708 Holly Rd Eden Prairie
Eden Prairie Library 479 Prairie Center Dr Eden Prairie
Central Middle School 8025 School Rd Eden Prairie
Eden Prairie Police Station 7900 Mitchell Rd Eden Prairie
Eden Prairie Dispatch 8080 Mitchell Rd Apt Cops Eden Prairie
Spanish Immersion School 8100 School Rd Eden Prairie
Edina City Hall 4801 W 50th St Edina
Normandale Elementary 5701 Normandale Rd Edina
Fire Station, Edina 6250 Tracy Ave Edina
Fire Station, Edina 7335 York Ave S Edina
Braemar Golf Course 6364 John Harris Dr Ste 2 Edina
Braemar Golf Dome 7420 Braemar Blvd Edina
Edina High School 6754 Valley View Rd Edina
Bremer Ice Arena 7501 Ikola Way Edina
Centennial Lakes Park 7499 France Ave S Edina
Edina Library 5280 Grandview Sq Edina
Southdale Library 7001 York Ave S Edina
Braemar Maintenance Shed 7401 Braemar Blvd Edina
Valley V Middle School 6750 Valley View Rd Edina
Police Dept, Edina 4801 W 50th St Edina
Public Works, Edina 7450 Metro Blvd Edina
St Peter School 5421 France Ave S Edina
Senior Center, Edina 5280 Grandview Sq Edina
Hopkins Center, 33 14th Ave N Hopkins
Hopkins City Hall 1010 1st St S Apt Hall Hopkins
Eisenhower Elem School
A la Carte Video
Services1001 Highway 7 Apt A
Hopkins
A-2
8500140v1
BUILDING Month/YearADDRESS Month/YearCITY
Audio ServicesAlice Smith
Elementary,
801 Minnetonka Mills Rd
Hopkins
Basic Cable ServiceFire Dept,
Hopkins
101 17th Ave S
Hopkins
Installation ChargeHopkins Center
For the Arts
1111 Mainstreet
Hopkins
Bulk RevenueHopkins Garage 11100 Excelsior Blvd Hopkins
Expanded Basic Cable
ServiceHopkins 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
Community Center 14600 Minnetonka Blvd Minnetonka
Pagel Center 18313 Highway 7 Minnetonka
Technology Center, 5700 County Road 101 Minnetonka
Minnetonka City Hall 14600 Minnetonka Blvd Minnetonka
Scenic Heights Elem School 5650 Scenic Heights Dr Minnetonka
Tanglen Elem School 10901 Hillside Ln W Minnetonka
Glen Lake Elem 4801 Woodridge Rd Minnetonka
Clear Springs Elem 5701 County Road 101 Minnetonka
Gatewood Elementary 14900 Gatewood Dr Minnetonka
Groveland Elementary 17310 Minnetonka Blvd Minnetonka
Fire Station, Minnetonka 1815 Hopkins Xrd Minnetonka
Minnetonka Hs Fitness Cent 18301 Highway 7 Minnetonka
Hopkins Junior High 10700 Cedar Lake Rd Minnetonka
Hopkins West 3830 Baker Rd Minnetonka
Minnetonka Junior High, 17000 Lake Street Ext Minnetonka
Minnetonka Library 17524 Excelsior Blvd Minnetonka
Ridgedale Library 12601 Ridgedale Dr Minnetonka
Police Dept, Minnetonka 14600 Minnetonka Blvd Minnetonka
Public Works, Minnetonka 11522 Minnetonka Blvd Minnetonka
Epsilon School 14300 County Road 62 Minnetonka
Omegon School 2000 Hopkins Xrd Minnetonka
Senior High, Hopkins 2400 Lindbergh Dr Minnetonka
PayDistrict Service Center 5621 County Road 101 Minnetonka
Pay-per-viewAdmin Serv Dept,
Richfield
6700 Portland Ave Apt Asd
Richfield
Guide RevenueRichfield Comm
Center
7000 Nicollet Ave
Richfield
Franchise Fee RevenueCentennial
Elem School
7315 Bloomington Ave
Richfield
Advertising RevenueCentennial
Elem School
7440 Penn Ave S
Richfield
Home Shopping RevenueSheridan
Elementary
6400 Sheridan Ave S
Richfield
Digital ServicesFire Station 2,
Richfield
6401 Penn Ave S
Richfield
A-3
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BUILDING Month/YearADDRESS Month/YearCITY
Inside WiringFire Station, Richfield 6700 Portland Ave Apt 1 Richfield
Other RevenueRichfield High
School
7001 Harriet Ave S
Richfield
Equipment RentalRichfield Ice
Arena
636 E 66th St
Richfield
Processing FeesRichfield Junior
High
7461 Oliver Ave S
Richfield
PEG FeeAugsburg Library 7100 Nicollet Ave Richfield
FCC FeesMt Calvary Lutheran
School
6541 16th Ave S
Richfield
Bad DebtRichfield City Hall 6700 Portland Ave Apt Hall Richfield
Late FeesRichfield Pub Safety 6700 Portland Ave Apt Eoc Richfield
REVENUERichfield School Garage 300 W 72nd St Richfield
Fee CalculatedHoly Angels School 6600 Nicollet Ave Richfield
Richfield Dual Language School 7001 Elliot Ave S Richfield
Central School Special Ed 7145 Harriet Ave Richfield
Richfield Stem 7020 12th Ave S Richfield
* 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.
8500140v1
EXHIBIT B
EXISTING PEG TRANSPORT LOCATIONS
BUILDING STREET ADDRESS
1. Eden Prairie City Hall 8080 Mitchell Road
2. Edina City Hall 4801 West 50th Street
3. Hopkins City Hall 1010 1st Street South
4. Minnetonka City Hall 14600 Minnetonka Boulevard
5. Richfield City Hall 6700 Portland Avenue
B-1
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EXHIBIT C
FRANCHISE FEE PAYMENT WORKSHEET
Fee Factor:
PEG Fee %
PEG FEE $
Nothing in this Franchise Fee Payment Worksheet shall serve to modify the definition of “Gross Revenues”
set forth in this Franchise.
C-1
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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
, 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 , 2023, the City of , 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.
5%
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 % 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. . A copy of the entire ordinance shall be
posted at the City Hall.
It is hereby directed that only the above title and summary of Ordinance No. 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
City Hall at , , MN during
the hours of a.m. and p.m., Monday through Friday.
Yes
No
Mayor
Councilmember
Councilmember
Councilmember
Councilmember
Councilmember
Councilmember
Passed by the City Council this day of , 2023.
B D-1
8500140v1
ATTEST: , Mayor
,
B D-2
1
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RESOLUTION NO. 2023-1
RECOMMENDATION OF THE SOUTHWEST SUBURBAN CABLE COMMISSION REGARDING
THE ADOPTION OF A CABLE FRANCHISE TO COMCAST OF MINNESOTA, INC.
Recitals:
1. The Southwest Suburban Cable Commission (“Commission”) administers and enforces
cable franchises pursuant to a joint powers agreement.
2. The Commission consists of the cities of Eden Prairie, Edina, Hopkins, Minnetonka and
Richfield, Minnesota (“Member Cities”).
3. Comcast of Minnesota, Inc. (“Comcast”) currently operates a cable system in each of the
Member Cities under cable television franchises with an effective date of August 1, 2012 (“Existing
Franchises”).
4. In 2019 Comcast contacted each of the Member Cities seeking renewal of the Existing
Franchises.
5. The Commission’s legal counsel, the law firm of Moss & Barnett, a Professional
Association, assisted the Commission in conducting the franchise renewal process.
6. Extensive informal franchise renewal negotiations between Comcast and the Commission
have been completed and a proposed Renewal Cable Television Franchise Ordinance (“Renewal
Franchise”) has been finalized.
7. The Commission finds that the Renewal Franchise will benefit the Member Cities and will
protect the rights and interests of residents and cable subscribers in each of the Member Cities.
NOW THEREFORE, the Southwest Suburban Cable Commission hereby resolves as
follows:
1. The attached May 18, 2023 Renewal Franchise will protect the Member Cities and its
residents and cable subscribers regarding the provision of cable services by Comcast.
2. The Commission recommends that each Member City take action to adopt the Renewal
Franchise.
PASSED AND ADOPTED this 24
th day of May, 2023.
SOUTHWEST SUBURBAN CABLE COMMISSION
By:
ATTEST:Patty Latham, Chair
By:
Brian T. Grogan, Attorney for the Commission
DocuSign Envelope ID: D5B4F3B8-2AA5-4C7E-BFB2-5701DF4D0608DocuSign Envelope ID: 0D65A566-5276-411C-AEBD-CE549B3AB9E0
Comcast Cable Franchise Renewal
June 2023
Brian Grogan, Esq.
Moss & Barnett
Southwest Suburban Cable Commission’s Legal Counsel
1
2
•Southwest Suburban Cable Commission
•Changing industry
•Background of the renewal process
•Key Provisions of New Franchise
Agenda
3
•Governed by Joint Powers Agreement
•Five member cities:
-Eden Prairie, Edina, Hopkins, Minnetonka and Richfield
•Each Member City has two representatives
-one is a member of the City staff
-and one is an elected official
•Purpose is to regulate the cable operator -Comcast
Southwest Suburban Cable Commission
4
•Gas, electric, water, telephone –all regulated by PUC
•Cable -regulated at local (City) level
•Cities grant nonexclusive cable franchises
•Today, residents want broadband –stream video content
•Franchise grants authority for company to use streets and ROW
•The fees paid by cable operator are rental payment for use of the ROW
•State and federal laws will determine how cities may (or may not) retain
compensation from communications companies to access the ROW
Changing Industry
5
•August 1, 2012 -Effective date of existing Comcast cable franchise
•August 19, 2019 -Comcast requested renewal
•Spring 2020 –Pandemic caused delays in needs assessment
•July 5, 2022 -Commission issued Needs Assessment Report
-increased funding for local programming
•July 2022 -May 2023 -Comcast negotiations -New Franchise
•May 24, 2023 -Commission Resolution 2023-1
Background of the Renewal Process
Key Provisions of New Franchise
6
•10-year term
•5% franchise fee on Comcast’s “gross revenues”
-stronger definition of “gross revenues”
-Federal law allows fee only on cable
o not telephone or broadband
•Strong customer service standards
•ROW Management
-City Code requirements
Key Provisions of New Franchise
7
•3 PEG Channels
-Public, Educational, Governmental
-all will be provided in high definition (HD)
-currently only the government channel is in HD
•PEG Fee
-1.5% of Comcast’s gross revenues
-designated for PEG “capital” purchases
Key Provisions of New Franchise
8
•Strong enforcement provisions
-$100,000 performance bond
-$25,000 security fund
•Maintain existing PEG transport –connections to City hall -etc.
•Maintain complimentary cable service
-Subject to potential change due to FCC order
o Comcast may impose “marginal costs”
9
May 24, 2023 -Commission Resolution 2023-1
Recommends adoption of proposed franchise granting Comcast a
10-year franchise to provide cable television services in the City.
Commission Recommendation
Questions?
10
AGENDA SECTION:CONSENT CALENDAR
AGENDA ITEM #6.I.
STAFF RE P ORT NO. 75
CIT Y COUNCIL ME E T ING
6/13/2023
RE P O RT P RE PA RE D B Y: Jamie Haefner, Human Resources Manager
D E PA RTME NT D IRE C TO R RE V IE W: S ack Thongvanh, A ssistant C ity Manager
6/6/2023
O THE R D E PA RTM E NT RE V IE W:
C ITY MA NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/7/2023
I T E M F O R C O UNC IL C O NS ID E RAT I O N:
Consider adoption of a resolution authorizing the City to affirm the monetary limits on statutory
municipal tort liability.
E X E C UT IV E S UM M ARY:
The City purchases its liability insurance coverage from the League of Minnesota Cities I nsurance Trust
(L MC I T). Each year, the City must decide to either affirm or waive its statutory limits of liability by J uly 1
each year. After reviewing cost considerations measured against potential risk, the City has, historically,
affirmed the liability limits which are $500,000 for an individual claimant and $1,500,000 per occurrence.
Staff is recommending the same course of action for the upcoming insurance renewal as waiving the liability
limits would increase costs due the need to purchase excess liability insurance.
RE C O M M E ND E D AC T I O N:
By motion: Adopt a resolution authorizing the City Council to affirm the monetary limits on municipal
tort liability established by Minnesota Statutes 466.04.
B AS IS O F RE C O M M E ND AT I O N:
A.H IS TOR IC AL C ON T E X T
A requirement of insurance coverage through the L MC I T is an annual affirmation or waiver of statutory
limits of liability.
The current statutory limits of liability for Minnesota cities are $500,000 for an individual claimant and
$1,500,000 per occurrence. Cities can waive these limits to allow an individual claimant to recover more
than $500,000, up to the $1,500,000 per occurrence limit, if excess liability insurance is purchased.
Because waiving the statutory limits increases the exposure, the premium is higher for coverage under
the waiver option. The cost of the excess liability insurance continues to be very expensive.
B.P OL IC IE S (resolutions, ordinances, regulations, statutes, etc):
State Statute establishes liability limits for cities and the current level is $1,500,000, which appears to be
a reasonable limit. Historically, the majority of municipalities in Minnesota do not waive the monetary
limits on municipality tort liability as established by Statutes 466.04.
C.C R IT IC AL T IMIN G IS S U E S:
The City's insurance policy with the League of Minnesota Cities I nsurance Trust will renew on J uly 1,
2023. This action must be completed on, or before, that time.
D.F IN AN C IAL IMPAC T:
The City has historically not purchased excess liability coverage because of the cost of such coverage.
E.L E GAL C ON S ID E R AT ION:
The tort liability limits established by Minnesota Statutes have historically protected cities and no
Minnesota court has ever established a monetary award in excess of the statutory limits against a
municipality. Each city must annually decide whether the city would voluntarily waive the statute
for both the single claims and each occurrence limit.
ALTE R N AT IV E R E C O MME N D ATIO N(S):
I f the Council determines that any single claimant should receive more than the $500,000 limit, the Council
could elect to waive the statutory monetary limits.
I f the Council determines that the $1,500,000 per occurrence limit is not adequate, the City could purchase
excess liability coverage at a significant additional cost.
P R IN C IPAL PAR TIE S E X P E C TE D AT ME E TIN G:
n/a
AT TAC H ME N T S:
D escription Type
RE S OL UTIO N A F F IRMING M UNIC IPA L TO RT
L IA B IL ITY L IMITS Resolution L etter
RESOLUTION NO. ____
RESOLUTION AFFIRMING MUNICIPAL TORT LIABILITY LIMITS ESTABLISHED BY
MINNESOTA STATUTES 466.04
WHEREAS, Minnesota Statute 466.04 provides for Municipal tort liability limits
for Minnesota cities; and
WHEREAS, the League of Minnesota Cities Insurance Trust has asked that each
city review the tort liability limits and determine if the respective city would choose to
waive its limits; and
WHEREAS, such decision to affirm or waive the tort liability limits must be filed
with the League of Minnesota Cities Insurance Trust at the insurance renewal date.
NOW, THEREFORE, BE IT RESOLVED that the City Manager is directed to
report to the League of Minnesota Cities Insurance Trust that the Richfield City Council
does not waive the monetary limits on the municipal tort liability established by
Minnesota statutes 466.04.
Adopted by the City Council of the City of Richfield, Minnesota this 13th day of June,
2023.
Mary Supple, Mayor
ATTEST:
Dustin Leslie, City Clerk
AGENDA SECTION:CONSENT CALENDAR
AGENDA ITEM #6.J.
STAFF REP ORT NO. 76
CIT Y COUNCIL ME ET ING
6/13/2023
RE P ORT P RE PA RE D B Y: C hris S wanson, Management A nalyst
D E PA RTM E NT D IR E C TOR RE V IE W:
O THE R D E PA RTM E NT RE V IE W: K umud Verma, F inance D irector
C ITY M A NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/7/2023
IT E M F O R C O UNC IL C O NS I D E RAT I O N:
First reading of a transitory ordinance providing funding for certain capital improvements from the Liquor
C ontribution Special Revenue Fund.
E X E C UT I V E S UM M ARY:
As part of the Capital I mprovement Budget (C I B) and annual C ity Budget proc ess, certain spec ial revenue
funds are allocated eac h year to fund c apital projec ts identified through the budget proc ess.
The source of the special revenue funds are profits derived from the City’s Liquor Store operation. These profits
are transferred to the Liquor Contribution Spec ial Revenue Fund.
Before the funds c an be used for the identified capital projects, the City Charter requires that a transitory
ordinance be used to authorize the expenditure of the funds.
The proposed funding for 2023, per the approved C I B budget, totals $550,000 and encompasses several park
and rec reation related projects. The projec ts are listed below.
RE C O M M E ND E D AC T I O N:
RE C O M M E ND E D AC T I O N:
B y Motion: Approve the attached transitory ordinance providing for the expenditur e of funds from the
Liquor Contribution S pecial Revenue Fund for certain capital improvements.
B AS IS O F RE C O M M E ND AT IO N:
A.H IS TOR IC AL C ON T E X T
At the Dec ember 13, 2022 C ity Counc il meeting, the City Council authorized $550,000 of Special Revenue
Funds for improvements to several C ity capital improvements in 2023.
I ncluded in the $550,000 are:
The 2023 C I B also provides for expenditures for all types of funds c ontained in the budget including
municipal state aid, user fees, state grants, c ounty funds, and issuanc e of debt.
Authorization by ordinance is not required for expenditures other than Special Revenues.
A second reading of the attached ordinanc e is scheduled on J une 27, 2023
B.P OLIC IE S (resolutions, ordinances, regulations, statutes, etc):
City Charter Sec tion 7.12, Subd. 2 requires that Spec ial Revenue Funds used for c apital improvements
must be authorized by ordinance.
C.C R IT IC AL T IMIN G IS SU E S:
Under Section 3.09 of the City C harter, a transitory ordinance becomes effec tive 30 day s after publication
of the second hearing notic e.
The ordinance requirements must be completed early enough in 2023 so that the capital projects can be
initiated on a timely basis, completed and the funds expended.
I t is recommended the first reading of the transitory ordinance take plac e on J une 13, 2023 and a second
reading be c ompleted at the J une 27, 2023 City Council meeting.
D.F IN AN C IAL IMPAC T:
W hile the total 2023 C I B inc ludes total budgeted expenditures of $22,353,336, the portion of the C I B
conc erning proposed funding from the Special Revenue fund is $550,000.
A transitory ordinance is necessary to finalize the appropriations utilizing spec ial revenue funds pursuant to
City Charter.
The source of Spec ial Revenue funds is municipal liquor profits.
E.L E GAL C ON S ID E R AT ION :
The City C harter requires that a transitory ordinance be used to authorize the expenditure of Spec ial
The City C harter requires that a transitory ordinance be used to authorize the expenditure of Spec ial
Revenue funds.
The City Attorney has reviewed the transitory ordinance and approved of its c ontents and its compliance
with the City Charter.
ALTE R N AT IV E R E C O MMEN D ATIO N(S):
P R IN C IPAL PAR TIES E XP E C T ED AT ME E TIN G:
none
ATTAC H ME N TS:
D escription Type
TRA NS ITORYOR D INA NC E F O R TH E E X P E ND ITURE
OF M O NE YF ROM THE L IQ UOR C ON TRIB UTION
S P E C IA L RE V E NUE F UN D
Ordinance
BILL NO.
TRANSITORY ORDINANCE NO.
AN ORDINANCE PROVIDING FOR THE EXPENDITURE OF MONEY FROM
THE LIQUOR CONTRIBUTION SPECIAL REVENUE FUND FOR CERTAIN
CAPITAL IMPROVEMENTS
CITY OF RICHFIELD DOES ORDAIN:
Section 1: It is found and determined to be necessary and expedient for the City to
expend money from the Liquor Contribution Special Revenue Fund for the making of
capital improvements listed in Section 2 hereof, for which the City would be authorized
to issue general obligation bonds.
Section 2: The capital improvements and amounts of expenditures for such improvements
which are authorized to be paid from the Liquor Contribution Special Revenue Fund under
Section 7.12, Subdivision 2 of the City Charter, are as follows:
Fairwood Park Play Equipment $ 110,000
Ice Arena Sign $ 40,000
Multi-Year Community Center/Wood Lake Building
Repair
$ 20,000
Multi-Year Ice Arena Repair $ 20,000
Multi-Year Park Maintenance $ 50,000
Multi-Year Park Maintenance/Wood Lake Fence
Repair
Outdoor Pool Improvements
Skate Park Expansion
Wood Lake Nature Center Building
$ 15,000
$ 80,000
$ 90,000
$ 125,000
Total $ 550,000
Section 3: The expenditures authorized herein shall be made pursuant to such contracts
as are authorized from time to time by Council action.
Passed by the City Council of the City of Richfield this 27th day of June 2023.
Mary Supple, Mayor
ATTEST:
Dustin Leslie, City Clerk
AGENDA SECTION:RESOLUTIONS
AGENDA ITEM #8.
CIT Y COUNCIL ME E T ING
6/13/2023
RE P O RT P RE PA RE D B Y: Melissa P oehlman, C ommunity D evelopment D irector / HRA E xecutive
D irector
D E PA RTME NT D IRE C TO R
RE V IE W:
Melissa P oehlman, C ommunity D evelopment D irector / HRA E xecutive
D irector
5/18/2023
O THE R D E PA RTM E NT RE V IE W:
C ITY MA NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/9/2023
I T E M F O R C O UNC IL C O NS ID E RAT I O N:
Consider a request to modify (2024) and then terminate (2025) Best Buy's Minimum Assessment
Agreement.
E X E C UT IV E S UM M ARY:
On May 23, 2023 the Council c onsidered a request by Best Buy to modify and terminate the Minimum
Assessment Agreement in plac e for their corporate headquarters at 7601 Penn Avenue South. Based on
feedback at that meeting, staff and Best Buy representatives have c ontinued discussions in hopes of finding a
path forward that addresses the needs and conc erns of both parties. These concerns, left unaddressed,
could lead to significant costs, staff time, and uncertainty in the coming years.
The attac hed agreement addresses the largest conc erns for both the C ity/HRA and Best Buy. Specifically, it
guarantees that the HRA will be able to rec oup $851,000 without the threat of future litigation; and it allows
Best Buy to discuss a fair market value for its property with the County and pay the commensurate taxes.
The agreement requires compromise on both sides. Best Buy believes that the HRA has underpaid them and
that they are owed approximately $600,000, which they will not recoup, and they have agreed not to contest
the HRA recouping $851,000. The HRA will almost c ertainly see a reduc tion in tax increment generated in the
remaining y ears of the TI F D istrict; an estimated loss of $105,000 - $385,000 in pooling revenue. The parties
agree that the costs assoc iated with c ontinued disagreement outweigh the losses posed by the compromise.
Staff and its legal and financial experts recommend approval of the attached resolution and agreements.
RE C O M M E ND E D AC T I O N:
By Motion: Approve a resolution approving agreements with Best Buy Co., Inc.
B AS IS O F RE C O M M E ND AT I O N:
A.H IS TOR IC AL C ON T E X T
T he Interchange West / Lyndale Gateway Tax Increment Financing (T IF) District was
established in 1999. T his District is a “scattered site” redevelopment district with multiple
projects and outstanding obligations, including the Best Buy Corporate Campus,
Mainstreet Village, and the Casteel Place Townhomes.
Best Buy has approached the City and Housing and Redevelopment Authority (H R A) to
request a modification to their individual contract which would remove the Minimum
Assessment Agreement that prevents the tax value of their property from falling below
$118.5 million during the life of the T IF District (ending December 31, 2025).
T he Interchange West / Lyndale Gateway Tax Increment Financing (T IF) District is by-far
the most complex T IF District in the City. T here have been five amendments to the
Contract for Private Redevelopment with Best Buy since its initial adoption.
Previous staff reports, particularly the report of May 23, 2023, provide additional historical
detail.
B.P OL IC IE S (resolutions, ordinances, regulations, statutes, etc):
Additional approvals by the HRA, County, and School Board are required.
As discussed at the March 6, 2023 work session, there would be no financial impact to the County
or School District due to this action.
C.C R IT IC AL T IMIN G IS S U E S:
Best Buy would like the MA A modified/terminated as soon as possible. I n order to reduce pay 2024
taxes, they must obtain the approval of the City, County, and School Board prior to J une 30, 2023.
W hile staff does not believe it will be possible to receive County Board approvals in time, the agreement
stipulates that the City will support and work toward this goal with Best Buy. The proposed agreement is
contingent upon these future approvals by the County and School Board, but not by the J une 30, 2023
deadline. Given that there will be no financial impact to the County or School Board, staff does not
anticipate a denial by either body and will work with Best Buy to communicate and educate the bodies,
as needed.
D.F IN AN C IAL IMPAC T:
Sufficient increment will be available to make the remaining two payments on the General
Obligation Bonds issued for infrastructure improvements related to the Best Buy Corporate
Campus Project.
The MA A is also in place to provide a mechanism for pooling. Pooling allows the HRA to spend a
portion of tax increment outside the geographical boundaries of the TI F District for TI F-eligible
activities such as affordable housing. A modification and termination of the MA A will likely impact
the amount of money contributed to the Housing and Redevelopment Fund by an
estimated $210,000 to $385,000. I f Best Buy is unable to get the required approvals for 2023, the
estimated reduction is $105,000-$192,500.
The HRA has concluded that Best Buy has been overpaid by approximately $851,000. Under the
proposed agreement, the HRA is able to recoup this money without threat of future legal
challenge.
The proposed agreement would not impact taxes paid to either Hennepin County or the School
District because those jurisdictions receive payments based on the baseline property value
established prior to the Best Buy Campus construction.
E.L E GAL C ON S ID E R AT ION:
The HRA has the legal authority and duty to recoup overpayments and will begin to do so with the
August 1, 2023 TI F Payment. The proposed agreement allows the HRA to do this without the
threat of a legal challenge.
HRA Attorney J ulie Eddington will be present to address legal questions.
An amendment to the Contract for Private Development between the HRA and Best Buy is also
required. Consideration by the HRA has been scheduled for J une 20, 2023.
ALTE R N AT IV E R E C O MME N D ATIO N(S):
Deny the request for modification/termination of the Minimum Assessment Agreement with Best Buy for
property at 7601 Penn Avenue South.
P R IN C IPAL PAR TIE S E X P E C TE D AT ME E TIN G:
J ulie Eddington, HRA Attorney, Kennedy & Graven Rebecca Kurtz, Municipal Advisor, Ehlers Tracy Smith,
Senior Director and Tax Counsel, Best Buy Dan Lopez, Director of Government Affairs, Best Buy W illiam
Griffith & Timothy Rye, Attorneys for Best Buy, Larkin Hoffman
AT TAC H ME N T S:
D escription Type
Resolution Resolution L etter
C ontract A mendment C ontract/A greement
A mended A ssessment A greement C ontract/A greement
A mended A ssessment A greement (Redline)C ontract/A greement
CITY OF RICHFIELD, MINNESOTA
RESOLUTION NO. _______
RESOLUTION APPROVING AGREEMENTS WITH BEST BUY CO., INC.
BE IT RESOLVED by the City Council of the City of Richfield, Minnesota (the “City”), as
follows:
Section 1. Recitals.
1.01. The Housing and Redevelopment Authority in and for the City of Richfield,
Minnesota (the “Authority”) and Best Buy Co., Inc., a Minnesota corporation (the
“Redeveloper”), have entered into a Contract for Private Redevelopment, dated March 28, 2000,
as amended by the First Amendment to Contract for Private Redevelopment, dated
November 27, 2000, as amended by the Second Amendment to Contract for Private
Redevelopment, dated February 20, 2001, as amended by the Third Amendment to Contract for
Private Redevelopment, dated March 5, 2003, as amended by the Fourth Amendment to
Contract for Private Redevelopment, dated December 21, 2010, and as amended by the Fifth
Amendment to Contract for Private Redevelopment, dated July 14, 2014 (collectively, the
“Contract”), with respect to the redevelopment of land (the “Property”) located in the City.
1.02. The Authority and the Redeveloper also entered into an Assessment Agreement,
dated March 5, 2003 (the “Assessment Agreement”), which set forth the minimum market value
for the Property as improved by the redevelopment.
1.03. The Authority, the City, and the Redeveloper have proposed to revise the
provisions related to the Assessment Agreement, the overpayment of tax increment by the
Authority, and the release of certain claims.
1.04. There have been presented to the City Council forms of the following documents
(collectively, the “City Documents”): (i) a Sixth Amendment to Contract for Private
Redevelopment between the Authority, the City, and the Redeveloper, which amends the
Contract to govern the overpayment of tax increment; and (ii) an Amended and Restated
Assessment Agreement between the Authority, the City, and the Redeveloper, and including
consents to termination of the Assessment Agreement by Independent School District No. 280
(Richfield Public Schools) and Hennepin County, Minnesota, which amends and restates the
Assessment Agreement to modify the valuation floor of the Property, as improved by the
redevelopment.
Section 2. Approvals.
2.01. The City Documents are hereby in all respects authorized, approved, and
confirmed, and the Mayor and the City Manager are hereby authorized and directed to execute
the City Documents for and on behalf of the City in substantially the forms now on file with the
Community Development Director but with such modifications as shall be deemed necessary,
desirable, or appropriate, the execution thereof to constitute conclusive evidence of their
approval of any and all modifications therein.
2
2.02. The Mayor and the City Manager are authorized and directed to execute any and
all other documents or certificates deemed necessary to carry out the intentions of this
resolution and the City Documents.
Section 3. Effective Date. This resolution shall be in full force and effect from and
after its approval.
Adopted by the City of Richfield, Minnesota this ______ day of June, 2023.
Mary B. Supple, Mayor
ATTEST:
Dustin Leslie, City Clerk
RC125-210 (JAE)
881454v1
Error! Unknown document property name.
SIXTH AMENDMENT
TO
CONTRACT FOR PRIVATE REDEVELOPMENT
THIS SIXTH AMENDMENT TO CONTRACT FOR PRIVATE REDEVELOPMENT (the
“Agreement”), made and entered into as of the _____ day of June, 2023, between the CITY OF
RICHFIELD, MINNESOTA, a Minnesota municipal corporation (the “City”), the HOUSING AND
REDEVELOPMENT AUTHORITY IN AND FOR THE CITY OF RICHFIELD, MINNESOTA, a
Minnesota public body corporate and politic (the “HRA”), and BEST BUY CO., INC., a Minnesota
corporation (the “Redeveloper”). The City, the HRA and the Redeveloper are referred to herein as the
“Parties.”
WITNESSETH:
WHEREAS, the HRA and the Redeveloper entered into a Contract for Private Development
Agreement, dated March 28, 2000 (the “Contract”), for the purposes of redeveloping land within the City
of Richfield (the “Property”); and
WHEREAS, the HRA and the Redeveloper entered into an Assessment Agreement, dated March
5, 2003 (the “Assessment Agreement”); and
WHEREAS, the HRA and the Redeveloper amended the Contract five times by entering into a First
Amendment on November 27, 2000, a Second Amendment on February 20, 2001, a Third Amendment on
March 5, 2003, a Fourth Amendment on December 21, 2010, and a Fifth Amendment on July 14, 2014;
and
WHEREAS, the City, the HRA and the Redeveloper propose to amend the Contract further to
revise the provisions related to the Assessment Agreement, payment to the HRA, and the release of certain
claims; and
NOW, THEREFORE, based upon the mutual covenants and undertakings hereinafter, and in the
Contract provided, the Parties hereto stipulate and agree as follows:
Section 1. Whereas Clauses. The WHEREAS clauses set forth above are incorporated into this
Agreement and are confirmed in all respects.
Section 2. Definitions.
“Available Tax Increment” for the purpose of the TIF Note means seventy-five percent (75%) of
the Tax Increment attributable to the Minimum Improvements and Development Property that is paid to
the HRA by the County in the six months preceding each Payment Date, after deducting any amount necessary
to pay principal and interest on the TIF Bonds or, subject to the provisions of Section 3.5, subd. 3, any TIF
Refunding Bonds.
Error! Unknown document property name.
Section 3. Amendments to Contract. The Contract is hereby amended in the following respects:
A. The Redeveloper agrees that the HRA will receive $851,000 in tax increment, in addition to
the funds the HRA receives based on the provisions of the Contract. The Redeveloper agrees that the
HRA will be provided the $851,000 from the County payments of tax increment on August 1, 2023,
February 1, 2024, and August 1, 2024 until the amount is paid in full.
B. All Parties agree and understand that the Tax Increment District for the Redeveloper ends
as of December 31, 2025 and the final payment for the TIF Note will occur on February 1, 2026.
Section 4. Assessment Agreement.
A. The City and the HRA approve the modification and termination of the Assessment
Agreement. Modification means the valuation floor in the Assessment Agreement will not be less than
$60 million until the Assessment Agreement is terminated. The modification of the Assessment
Agreement is effective for the 2023 tax assessment payable in 2024. The termination of the
Assessment Agreement is effective on December 31, 2023, for the 2024 tax assessment payable in
2025.
B. Section 6.3(b) of the Contract is hereby deleted and is no longer of any force or effect.
C. The City and the HRA will support the Redeveloper in seeking consent of the School District
and Hennepin County for modifying and terminating the Assessment Agreement.
D. If the Redeveloper appeals its property value after the Assessment Agreement is modified
or after the Assessment Agreement is terminated, the Redeveloper will be solely responsible for
repaying the Available Tax Increment from the Development Property paid under the TIF Note if
Hennepin County determines that the Available Tax Increment should be returned to Hennepin County
due to one or more tax appeals initiated by the Redeveloper. The HRA will alert the Redeveloper of
any reduction in tax increment due to tax appeals. The Redeveloper shall have three weeks to pay the
HRA the funds owed to Hennepin County. Upon receipt of the funds from the Redeveloper, the HRA
will send the funds to Hennepin County within five business days and provide timely notice to the
Redeveloper of such transmittal to Hennepin County.
E. If the Redeveloper appeals its property value after the Assessment Agreement is modified or
after the Assessment Agreement is terminated, the HRA will be solely responsible for repaying the
25% of the Tax Increment from the Development Property paid to the HRA if Hennepin County
determines that the Available Tax Increment should be returned to Hennepin County due to one or
more tax appeals initiated by the Redeveloper.
F. If the Redeveloper appeals its property value, it must notify the HRA within two weeks of
filing the tax petition.
G. The Parties understand and agree that this agreement is contingent upon obtaining approval of
this Sixth Amendment and the Amended and Restated Assessment Agreement by the City Council
and HRA Board on or prior to June 20, 2023, and the consent of the School District and Hennepin
County to modification and termination of the Assessment Agreement as provided in the Amended
and Restated Assessment Agreement prior to June 30, 2023 or thereafter. Each party will use best
efforts to obtain the approvals and consents contemplated by this paragraph.
Error! Unknown document property name.
Section 5. Release of Claims.
A. All Parties will release all claims to date regarding any defaults under the Contract. The HRA
will continue to follow the requirements of the Tax Increment Act and will make any corrective
payments determined by the Office of State Auditor.
B. The agreement will constitute a full and final satisfaction between the Parties regarding any
and all matters relating to the Assessment Agreement. The Redeveloper will agree not to request, or
encourage any other person to request, an audit from the Office of the State Auditor with respect to
matters relating to the Contract or the Assessment Agreement.
C. With the exception of Sections 4(D) and 4(E), the City, the HRA, and the Redeveloper will:
(a) mutually release and discharge each other from any and all claims or matters arising out of or
relating to the Contract or the Assessment Agreement to date; and (b) agree not to sue any Party to this
Agreement with respect to any matters arising out of or relating to the Contract or the Assessment
Agreement to date.
D. The Parties agree not to disparage another Party to this Agreement.
(The remainder of this page is intentionally left blank.)
Error! Unknown document property name.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed on
their behalf by their authorized representatives on or as of the date first above written.
HOUSING AND REDEVELOPMENT AUTHORITY
IN AND FOR THE CITY OF RICHFIELD,
MINNESOTA
By
Its Chair
By
Its Executive Director
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by Sean
Hayford Oleary, the Acting Chair of the Housing and Redevelopment Authority in and for the City of
Richfield, Minnesota, a public body corporate and politic under the laws of Minnesota, on behalf of the
HRA.
___________________________________
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by Melissa
Poehlman, the Executive Director of the Housing and Redevelopment Authority in and for the City of
Richfield, Minnesota, a public body corporate and politic under the laws of Minnesota, on behalf of the
HRA.
___________________________________
Notary Public
Error! Unknown document property name.
BEST BUY CO., INC.
By
Its
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this _____ day of June, 2023, by
___________________, the ______________ of Best Buy Co., Inc., a Minnesota corporation, on behalf of
the Redeveloper.
____________________________________
Notary Public
Error! Unknown document property name.
CITY OF RICHFIELD, MINNESOTA
By
Its Mayor
By
Its City Manager
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by Mary B.
Supple, the Mayor of the City of Richfield, a Minnesota municipal corporation, on behalf of the City.
___________________________________
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by Katie
Rodriguez, the City Manager of the City of Richfield, a Minnesota municipal corporation, on behalf of the
City.
___________________________________
Notary Public
Error! Unknown document property name.
AMENDED AND RESTATED
ASSESSMENT AGREEMENT
THIS AMENDED AND RESTATED ASSESSMENT AGREEMENT, made on the ____
day of June, 2023, by and between the Housing and Redevelopment Authority in and for the City
of Richfield, Minnesota, a public body corporate and politic under the laws of Minnesota (the
"Authority") and Best Buy Co., Inc., a Minnesota corporation, (the "Redeveloper"), modifies and
replaces the Assessment Agreement dated March 5, 2003, between the same parties.
WITNESSETH:
WHEREAS, the Authority and Redeveloper entered into a Contract for Private
Development, dated March 28, 2000 (the "Development Agreement") regarding certain real
property located in the city of Richfield, Hennepin County, Minnesota, and legally described in
Exhibit A attached hereto (the "Property"); and
WHEREAS, the Authority and Redeveloper entered into that certain Assessment
Agreement dated March 5, 2003 (the “Assessment Agreement”); and
WHEREAS, the Authority and Redeveloper amended the Development Agreement six
times by entering into a First Amendment on November 27, a Second Amendment on February
20, 2001, a Third Amendment on March 5, 2003, a Fourth Amendment on December 21, 2010, a
Fifth Amendment on July 14, 2014, and a Sixth Amendment on June ____, 2023; and
WHEREAS, pursuant to the Sixth Amendment the parties have agreed to modify and then
terminate the Assessment Agreement by entering into this Amended and Restated Assessment
Agreement; and
WHEREAS, pursuant to the Development Agreement, the Redeveloper has constructed a
1.5 million square foot office facility and related parking structures and other improvements upon
the Property (the "Minimum Improvements"); and
WHEREAS, the Authority and Redeveloper desire to establish a minimum market value
for the Property and the Minimum Improvements constructed thereon (the "Minimum Market
Value"), pursuant to Minnesota Statutes, Section 469.177, Subdivision 8; and
Error! Unknown document property name.
WHEREAS, the Authority and the Assessor for Hennepin County (the "Assessor") have
reviewed or examined the Property and the Minimum Improvements.
NOW, THEREFORE, the parties to this Agreement, in consideration of the promises,
covenants and agreements made by each to the other, do hereby agree as follows:
1. The Minimum Market Value which shall be assessed for the Property described
in Exhibit A, together with the Minimum Improvements thereon, shall be $60,000,000 as of January
2, 2023 payable in 2024.
2. The Minimum Market Value herein established shall be of no further force and
effect and this Agreement shall terminate on December 31, 2023.
3. This Agreement shall be promptly recorded by the Authority. The Redeveloper
shall pay all costs of recording.
4. Neither the preambles nor provisions of this Agreement are intended to, nor
shall they be construed as, modifying the terms of the Development Agreement between the
Authority and the Redeveloper.
5. This Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the parties.
6. Each of the parties has authority to enter into this Agreement and to take all
actions required of it, and has taken all actions necessary to authorize the execution and delivery
of this Agreement.
7. In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
8. The parties hereto agree that they will, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such supplements, amendments
and modifications hereto, and such further instruments as may reasonably be required for correcting
any inadequate, or incorrect, or amended description of the Property, or for carrying out the
expressed intention of this Agreement.
9. Except as provided in Section 8 of this Agreement, this Agreement may not be
amended nor any of its terms modified except by a writing authorized and executed by all parties
hereto.
10. This Agreement may be simultaneously executed in several counterparts, each
of which shall be an original and all of which shall constitute but one and the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of the State of
Minnesota.
Error! Unknown document property name.
IN WITNESS WHEREOF, the HRA has caused this Amended and Restated Assessment
Agreement to be duly executed on its behalf by its authorized representatives on or as of the date
first above written.
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
RICHFIELD, MINNESOTA
By
Its Chair
By
Its Executive Director
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Sean Hayford Oleary, the Acting Chair of the Housing and Redevelopment Authority in and for
the City of Richfield, Minnesota, a public body corporate and politic under the laws of Minnesota,
on behalf of the HRA.
___________________________________
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Melissa Poehlman, the Executive Director of the Housing and Redevelopment Authority in and
for the City of Richfield, Minnesota, a public body corporate and politic under the laws of
Minnesota, on behalf of the HRA.
___________________________________
Notary Public
Error! Unknown document property name.
IN WITNESS WHEREOF, the City of Richfield, Minnesota has caused this Amended and
Restated Assessment Agreement to be duly executed on its behalf by its authorized representatives
on or as of the date first above written.
CITY OF RICHFIELD, MINNESOTA
By
Its Mayor
By
Its City Manager
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Mary B. Supple, the Mayor of the City of Richfield, Minnesota, a public body corporate and politic
under the laws of Minnesota, on behalf of the City.
___________________________________
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Katie Rodriquez, the City Manager of the City of Richfield, Minnesota, a public body corporate
and politic under the laws of Minnesota, on behalf of the City.
___________________________________
Notary Public
Error! Unknown document property name.
IN WITNESS WHEREOF, the Redeveloper has caused this Amended and Restated Assessment
Agreement to be duly executed on their behalf by their authorized representatives on or as of the
date first above written.
BEST BUY CO., INC.
By
Its
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this _____ day of June, 2023, by
___________________, the ______________ of Best Buy Co., Inc., a Minnesota corporation, on
behalf of the Redeveloper.
____________________________________
Notary Public
Drafted By:
William Griffith
Larkin Hoffman
8300 Norman Center Drive
Suite 1000
Minneapolis, MN 55437
Error! Unknown document property name.
IN WITNESS WHEREOF, the School District has caused this Amended and Restated Assessment
Agreement to be duly executed on their behalf by their authorized representatives on or as of the
date first above written.
INDEPENDENT SCHOOL DISTRICT NO. 280
(RICHFIELD PUBLIC SCHOOLS),
HENNEPIN COUNTY, MINNESOTA
By
Its Chair
By
Its Clerk
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Paula Cole, the Chair of Independent School District No. 280 (Richfield Public Schools),
Hennepin County, Minnesota, a public body corporate and politic under the laws of Minnesota, on
behalf of the School District.
___________________________________
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Allegra Smisek, the Clerk of Independent School District No. 280 (Richfield Public Schools),
Hennepin County, Minnesota, a public body corporate and politic under the laws of Minnesota, on
behalf of the School District.
___________________________________
Notary Public
Error! Unknown document property name.
IN WITNESS WHEREOF, Hennepin County, Minnesota has caused this Amended and Restated
Agreement to be duly executed on their behalf by their authorized representatives on or as of the
date first above written.
COUNTY OF HENNEPIN
Reviewed by the County STATE OF MINNESOTA
Attorney’s Office
By: _________________________ By:
Chair
Date: ________________________ Date:
ATTEST:
Deputy/Clerk of County Board
Date:
By:
County Administrator
Date:
Recommended for Approval:
By:
Chief Housing and Economic Development
Officer
Date:
Error! Unknown document property name.
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Irene Fernando, the Chair of Hennepin County, Minnesota, a public body corporate and politic
under the laws of Minnesota, on behalf of the County.
___________________________________
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
David J. Hough, the County Administrator of Hennepin County, Minnesota, a public body
corporate and politic under the laws of Minnesota, on behalf of the County.
___________________________________
Notary Public
Error! Unknown document property name.
CERTIFICATION BY COUNTY ASSESSOR
The undersigned, having reviewed the plans and specifications for the improvements to be
constructed and the market value assigned to the land upon which the improvements are to be
constructed, hereby certifies as follows: the undersigned Assessor, being legally responsible for the
assessment of the above-described property, hereby certifies that the market values assigned to the
land and improvements are reasonable.
ASSESSOR FOR HENNEPIN COUNTY
By
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ___ day of June, 2023, by
___________________________, the County Assessor of Hennepin County, Minnesota.
Notary Public
Error! Unknown document property name.
EXHIBIT A
DESCRIPTION OF PROPERTY
Lot 1, Block 1, Best Buy Campus
RC125-210-881427.v12
AMENDED AND RESTATED
ASSESSMENT AGREEMENT
THIS AMENDED AND RESTATED ASSESSMENT AGREEMENT, made on the ____
day of June, 2023, by and between the Housing and Redevelopment Authority in and for the City
of Richfield, Minnesota, a public body corporate and politic under the laws of Minnesota (the
"Authority") and Best Buy Co., Inc., a Minnesota corporation, (the "Redeveloper"), modifies and
replaces the Assessment Agreement dated March 5, 2003, between the same parties.
WITNESSETH:
WHEREAS, the Authority and Redeveloper entered into a Contract for Private
Development, dated March 28, 2000 (the "Development Agreement") regarding certain real
property located in the city of Richfield, Hennepin County, Minnesota, and legally described in
Exhibit A attached hereto (the "Property"); and
WHEREAS, the Authority and Redeveloper entered into that certain Assessment
Agreement dated March 5, 2003 (the “Assessment Agreement”); and
WHEREAS, the Authority and Redeveloper amended the Development Agreement six
times by entering into a First Amendment on November 27, a Second Amendment on February
20, 2001, a Third Amendment on March 5, 2003, a Fourth Amendment on December 21, 2010, a
Fifth Amendment on July 14, 2014, and a Sixth Amendment on June ____, 2023; and
WHEREAS, pursuant to the Sixth Amendment the parties have agreed to modify and then
terminate the Assessment Agreement by entering into this Amended and Restated Assessment
Agreement; and
WHEREAS, pursuant to the Development Agreement, the Redeveloper has constructed a
1.5 million square foot office facility and related parking structures and other improvements upon
the Property (the "Minimum Improvements"); and
WHEREAS, the Authority and Redeveloper desire to establish a minimum market value
for the Property and the Minimum Improvements constructed thereon (the "Minimum Market
Value"), pursuant to Minnesota Statutes, Section 469.177, Subdivision 8; and
RC125-210-881427.v12
WHEREAS, the Authority and the Assessor for Hennepin County (the "Assessor") have
reviewed or examined the Property and the Minimum Improvements.
NOW, THEREFORE, the parties to this Agreement, in consideration of the promises,
covenants and agreements made by each to the other, do hereby agree as follows:
1. The Minimum Market Value which shall be assessed for the Property described
in Exhibit A, together with the Minimum Improvements thereon, shall be $60,000,000 as of January
2, 2023 payable in 2024.
2. The Minimum Market Value herein established shall be of no further force and
effect and this Agreement shall terminate on December 31, 2023.
3. This Agreement shall be promptly recorded by the Authority. The Redeveloper
shall pay all costs of recording.
4. Neither the preambles nor provisions of this Agreement are intended to, nor
shall they be construed as, modifying the terms of the Development Agreement between the
Authority and the Redeveloper.
5. This Agreement shall inure to the benefit of and be binding upon the successors
and assigns of the parties.
6. Each of the parties has authority to enter into this Agreement and to take all
actions required of it, and has taken all actions necessary to authorize the execution and delivery
of this Agreement.
7. In the event any provision of this Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render
unenforceable any other provision hereof.
8. The parties hereto agree that they will, from time to time, execute, acknowledge
and deliver, or cause to be executed, acknowledged and delivered, such supplements, amendments
and modifications hereto, and such further instruments as may reasonably be required for correcting
any inadequate, or incorrect, or amended description of the Property, or for carrying out the
expressed intention of this Agreement, including, without limitation, any further instruments
required to delete from the description of the Property such part or parts as may be included within
a separate assessment agreement, and any instrument necessary to confirm the occurrence of the
Termination Date (as defined in the Contract) and thereby the termination of this Agreement.
9. Except as provided in Section 8 of this Agreement, this Agreement may not be
amended nor any of its terms modified except by a writing authorized and executed by all parties
hereto.
10. This Agreement may be simultaneously executed in several counterparts, each
of which shall be an original and all of which shall constitute but one and the same instrument.
RC125-210-881427.v12
This Agreement shall be governed by and construed in accordance with the laws of the State of
Minnesota.
(The remainder of this page is intentionally left blank.)
RC125-210-881427.v12
IN WITNESS WHEREOF, the HRA has caused this Amended and Restated Assessment
Agreement to be duly executed on its behalf by its authorized representatives on or as of the date
first above written.
HOUSING AND REDEVELOPMENT
AUTHORITY IN AND FOR THE CITY OF
RICHFIELD, MINNESOTA
By
Its Chair
By
Its Executive Director
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Erin Vrieze Daniels, the Chair of the Housing and Redevelopment Authority in and for the City of
Richfield, Minnesota, a public body corporate and politic under the laws of Minnesota, on behalf
of the HRA.
___________________________________
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Melissa Poehlman, the Executive Director of the Housing and Redevelopment Authority in and
for the City of Richfield, Minnesota, a public body corporate and politic under the laws of
Minnesota, on behalf of the HRA.
___________________________________
Notary Public
RC125-210-881427.v12
IN WITNESS WHEREOF, the City of Richfield, Minnesota has caused this Amended and
Restated Assessment Agreement to be duly executed on its behalf by its authorized representatives
on or as of the date first above written.
CITY OF RICHFIELD, MINNESOTA
By
Its Mayor
By
Its City Manager
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Mary B. Supple, the Mayor of the City of Richfield, Minnesota, a public body corporate and politic
under the laws of Minnesota, on behalf of the City.
___________________________________
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Katie Rodriquez, the City Manager of the City of Richfield, Minnesota, a public body corporate
and politic under the laws of Minnesota, on behalf of the City.
___________________________________
Notary Public
RC125-210-881427.v12
IN WITNESS WHEREOF, the Redeveloper has caused this Amended and Restated Assessment
Agreement to be duly executed on their behalf by their authorized representatives on or as of the
date first above written.
BEST BUY CO., INC.
By
Its
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this _____ day of June, 2023, by
___________________, the ______________ of Best Buy Co., Inc., a Minnesota corporation, on
behalf of the Redeveloper.
____________________________________
Notary Public
Drafted By:
William Griffith
Larkin Hoffman
8300 Norman Center Drive
Suite 1000
Minneapolis, MN 55437
RC125-210-881427.v12
IN WITNESS WHEREOF, the School District has caused this Amended and Restated Assessment
Agreement to be duly executed on their behalf by their authorized representatives on or as of the
date first above written.
INDEPENDENT SCHOOL DISTRICT NO. 280
(RICHFIELD PUBLIC SCHOOLS),
HENNEPIN COUNTY, MINNESOTA
By
Its Chair
By
Its Clerk
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Paula Cole, the Chair of Independent School District No. 280 (Richfield Public Schools),
Hennepin County, Minnesota, a public body corporate and politic under the laws of Minnesota, on
behalf of the School District.
___________________________________
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Allegra Smisek, the Clerk of Independent School District No. 280 (Richfield Public Schools),
Hennepin County, Minnesota, a public body corporate and politic under the laws of Minnesota, on
behalf of the School District.
___________________________________
Notary Public
RC125-210-881427.v12
IN WITNESS WHEREOF, Hennepin County, Minnesota has caused this Amended and Restated
Agreement to be duly executed on their behalf by their authorized representatives on or as of the
date first above written.
COUNTY OF HENNEPIN
Reviewed by the County STATE OF MINNESOTA
Attorney’s Office
By: _________________________ By:
Chair
Date: ________________________ Date:
ATTEST:
Deputy/Clerk of County Board
Date:
By:
County Administrator
Date:
Recommended for Approval:
By:
Chief Housing and Economic Development
Officer
Date:
RC125-210-881427.v12
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
Irene Fernando, the Chair of Hennepin County, Minnesota, a public body corporate and politic
under the laws of Minnesota, on behalf of the County.
___________________________________
Notary Public
STATE OF MINNESOTA
COUNTY OF HENNEPIN
)
)
)
ss.:
The foregoing instrument was acknowledged before me this ____ day of June, 2023, by
David J. Hough, the County Administrator of Hennepin County, Minnesota, a public body
corporate and politic under the laws of Minnesota, on behalf of the County.
___________________________________
Notary Public
RC125-210-881427.v12
CERTIFICATION BY COUNTY ASSESSOR
The undersigned, having reviewed the plans and specifications for the improvements to be
constructed and the market value assigned to the land upon which the improvements are to be
constructed, hereby certifies as follows: the undersigned Assessor, being legally responsible for the
assessment of the above-described property, hereby certifies that the market values assigned to the
land and improvements are reasonable.
ASSESSOR FOR HENNEPIN COUNTY
By
STATE OF MINNESOTA )
) ss.
COUNTY OF HENNEPIN )
The foregoing instrument was acknowledged before me this ___ day of June, 2023, by
___________________________, the County Assessor of Hennepin County, Minnesota.
Notary Public
RC125-210-881427.v12
EXHIBIT A
DESCRIPTION OF PROPERTY
Lot 1, Block 1, Best Buy Campus
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Document 2 ID PowerDocs://DOCSOPEN/881427/2
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AGENDA SECTION:OTHER BUSINESS
AGENDA ITEM #9.
STAFF RE P ORT NO. 77
CIT Y COUNCIL ME E T ING
6/13/2023
RE P O RT P RE PA RE D B Y: Rachel L indholm, S ustainability S pecialist
D E PA RTME NT D IRE C TO R RE V IE W: A my Markle, Recreation S ervices D irector
6/5/2023
O THE R D E PA RTM E NT RE V IE W:
C ITY MA NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/7/2023
I T E M F O R C O UNC IL C O NS ID E RAT I O N:
Consider the approval of recommended Climate Action Plan (C AP), prioritized actions for
implementation from 2023-2026 and the related amendment in the City's Strategic Plan.
E X E C UT IV E S UM M ARY:
Richfield's C A P identified over 70 actions for City staff to undertake in efforts to reduce greenhouse gas
(GHG), emissions, increase community
sustainability education, and develop the City's sustainability efforts. For over 3 years, staff have been
working on various actions according to the
timelines identified in the C A P and as capacity and funding allows. Over time, it became clear that the City
would benefit from both a GHG inventory and working with a consultant to hone in on the most beneficial
actions to undertake.
Pale B L UE dot L L C has worked with staff for over 6 months on conducting the inventory, analyzing results,
and working together to identify high priority actions. These focus on both emission reduction and feasibility
of implementation from a staff/city perspective.
This work connects with the City's strategic plan desired outcome stating "Climate resilience is a priority", with
the related identified target of "2 highest priority C A P projects completed by 2025".
RE C O M M E ND E D AC T I O N:
By motion, approve the below-re comme nded CAP actions and amend the m into the strategic
plan. Staff recommend Council and e xe cutive leadership "e stablish clear guidance and
dire ction for the participation in and support of the C A P imple me ntation actions by all City of
Richfie ld departments".
Under this umbrella, the three recommende d actions (in no spe cific order) are:
1. Continue and fully implement recommendations from the municipal building energy audits (C AP
Action 1.2.2);
2. Conduct an Electric Vehicle Suitability/Fleet Assessment (C AP Action 1.3.2), and continue
evaluating fleet for E V/P H E V replacement opportunities; and
3. Establish a coordinated communication and education campaign for all sections of the C AP
(aligned with Strategic Plan initiative 3.3.1 and multiple C AP actions).
B AS IS O F RE C O M M E ND AT I O N:
A.H IS TOR IC AL C ON T E X T
Richfield's C A P was written by staff and ratified by Council in October 2020.
Richfield's Strategic Plan (ratified in 2022), identified specific sustainability-related actions:
I mplement prioritized C A P initiatives and create C A P education strategy for staff and public.
Staff started working with pale B L UE dot L L C in late 2022 to create a timeline for C A P review,
conduct a greenhouse gas emissions
inventory, and work through a prioritization process based on barriers and available resources.
I n early 2023, city staff and pale B L UE dot L L C worked together to identify the biggest
opportunities for emissions reduction and actions that would have fewer barriers to
implementation.
These recommendations and a recap of Richfield's greenhouse gas emissions inventory were
presented to councilmembers at a work session on May 23rd, 2023.
After the work session, staff have started a communications effort surrounding the prioritization
process and integration into the City's Strategic Plan. This includes a news release in the Sun
Current, social media posts, and a dedicated C A P webpage under the Sustainability category on
the City's website.
B.P OL IC IE S (resolutions, ordinances, regulations, statutes, etc):
These actions come from the City's adopted Climate Action Plan and are related to the identified climate
objectives in the 2023-2026 Strategic Plan. I ndividual actions are related to various city ordinances and
resolutions. This information will be detailed as these actions are worked on by staff and shared with
Council.
C.C R IT IC AL T IMIN G IS S U E S:
The recommended actions will take varying amounts of time to implement. I n order to meet the 2025
deadline in the Strategic Plan, staff would like to start working on the actions as soon as possible.
D.F IN AN C IAL IMPAC T:
None at this time. Financial information will be detailed as these recommended actions are undertaken
by staff and shared with Council via work sessions and other communications. Staff know that
implementing some of these actions will require funding and have already identified potential funding
sources like grants, franchise fees, and existing budgets. Other actions do not have costs associated or
are covered by partner organizations.
E.L E GAL C ON S ID E R AT ION:
None at this time. Any legal information will be detailed as these recommended actions are worked on by
staff and shared with Council.
ALTE R N AT IV E R E C O MME N D ATIO N(S):
Council could choose to not approve these recommendations and recommend alternative actions to prioritize.
P R IN C IPAL PAR TIE S E X P E C TE D AT ME E TIN G:
AGENDA SECTION:CLOSED EXECUTIVE
SESSION
AGENDA ITEM #13.
STAFF RE P ORT NO. 78
CIT Y COUNCIL ME E T ING
6/13/2023
RE P O RT P RE PA RE D B Y: K elly Wynn, A dministrative A ssistant
D E PA RTME NT D IRE C TO R RE V IE W:
O THE R D E PA RTM E NT RE V IE W:
C ITY MA NA G E R RE V IE W: K atie Rodriguez, C ity Manager
6/7/2023
I T E M F O R C O UNC IL C O NS ID E RAT I O N:
Closed Executive Session regarding the City Manager's annual performance evaluation. Council will
move to the Babcock Room for the closed session portion of the meeting
E X E C UT IV E S UM M ARY:
The Closed Executive Session will be convened as permitted to evaluate an employee’s performance pursuant
to Minn. Stat. 13D.05, subd. 3(a).
RE C O M M E ND E D AC T I O N:
Motion to recess the meeting to enter and hold a closed meeting for the purpose of conducting a
performance evaluation of City Manager Katie Rodriguez, pursuant to Minnesota Statutes section
13D.05, subd. 3(a).
B AS IS O F RE C O M M E ND AT I O N:
A.H IS TOR IC AL C ON T E X T
B.P OL IC IE S (resolutions, ordinances, regulations, statutes, etc):
C.C R IT IC AL T IMIN G IS S U E S:
D.F IN AN C IAL IMPAC T:
E.L E GAL C ON S ID E R AT ION:
ALTE R N AT IV E R E C O MME N D ATIO N(S):
P R IN C IPAL PAR TIE S E X P E C TE D AT ME E TIN G: