HomeMy WebLinkAboutAugust 03, 2016
RESOLUTION NO. 7667
A Resolution Stating the City WillMaintain aTrail/Sidewalk on MN DOT
Conveyance No. 2015-0104, Excess Parcel No. 66along Eagle Creek Boulevard
WHEREAS,
on October 7, 2015, the City Staff was made aware that MnDOT Parcel No. 66
was still in MnDOT ownership;and,
WHEREAS,
MnDOT is requesting at the time of purchase, an approved resolution stating
the City will maintain a trail/sidewalk on thisproperty currently and in the future; and,
WHEREAS,
under M. S. 161.44 Subd. 1a of the Bicycle and Pedestrian Facilities-Suitability
Checklist, MnDOT is able to satisfy their requirements of selling these to the City; and,
WHEREAS,
the City is the road authority for Eagle Creek Boulevard from CSAH 17 to
CSAH 83 and this is a State Aid Collector Street.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY
OF SHAKOPEE, MINNESOTA:
1.
The City will construct and maintain a trail/sidewalk on Vierling Drive in MnDOT
Parcel No. 66 along Eagle Creek Boulevard, now and in the future.
Adopted in _________ session of the City Council of the City of Shakopee, Minnesota,
held this _________ day of _____________, 2016.
__________________________________________
Mayor of the City of Shakopee
ATTEST:
__________________________
City Clerk
ENGR/2015-PROJECT/2015-COUNCIL/RESNO7667TRAIL_SIDEWALK_ON_ECB
Legend
CSAH Designation
MSAS Designation
MSAS Addition
MSAS Turnback
0.897 miles
(4,738.5 ft.)
1.393 miles
(7,358.4 ft.)
1.128 miles
(5,957.9 ft.)
0.142 miles
(753.5 ft.)
CSAH System Addition: CSAH 69
Miles
00.150.3
(Old Brick Yard Rd) &
New Alignment CSAH 16 (17th Ave W)
CSAH Revocation: CSAH 15 (Adams St S)
Scott County City of Shakopee
Date: July 7, 2016
MSAS System Addition: Turnback & New Mileage
CP 15-12
Turnback Agreement
County of Scott
City of Shakopee
CITY OF SHAKOPEE
SCOTT COUNTY
TURNBACK AGREEMENT
COUNTY HIGHWAYNO. 15
THIS AGREEMENT,
made and entered into this ___day of _______,
2016,by and between the City of Shakopee, a body politic and corporate under the
laws of the State of Minnesota, hereinafter referred to as the “City” and the County
of Scott, a body politic and corporate existing under the laws of the State of
Minnesota, hereinafter referred to as the “County,”both hereinafter collectively
referred to as the “Parties.”
WITNESSETH:
WHEREAS,
the County seeks to reconvey tothe City,County Highway
(CH) 15, from 760 feet north of the north right-of-way line of CH 16to6th Avenue
West in the City of Shakopee,including all County owned right-of-way,as shown on
Attachment1.
WHEREAS,
the County Board of Commissionershas the authority under
Minnesota Statute 163.11 to turnback County roads to Cities; and
WHEREAS,
CH15 no longer serves a County highway functionnorth of
CH 16 as discussed at the joint workshop of the City Council and County Board.
The roadway primarily provides local collectorand B minor arterial access within
the City of Shakopee to the north of CH 16 and serves less of a mobility function
and, thereby, being better suited to be on the City roadway system; and
WHEREAS,
the County needs to maintain control of the influence area of
the CH 16 and CH15 intersection to ensure proper function of the operations of this
intersection in the future; and
WHEREAS,
the Parties desire to transfer jurisdiction ofaportionof CH15
in an orderly fashion and have therefore set forth their respective obligations to
accomplish this objective; and
WHEREAS
, the City has prepared a West End Study and has developers
considering subdivision of propertywhich includesextendingCH16 from its current
termini at CH 15 to the west concluding at CH 69.
Page 1
CP 15-12
Turnback Agreement
County of Scott
City of Shakopee
WHEREAS
, as also discussed at the joint meetingof City/County/Township
on March 22, 2016, the City agrees to follow the County’s access management
strategiesand policies on CH 69andCH15to the south of CH 16 within the City
limits to ensure safe and continuous movement of traffic; and
WHEREAS,
this includes no access on CH 69 between the north ramp and
Vierling Drive and no access on CH 15 between the south ramp and CH 16 asthese
highways both provide A minor arterial functions on the highway system.
NOW, THEREFORE, IT IS HEREBY AND HEREIN MUTUALLY
AGREED,
in consideration of each Party's promises and considerations herein set
forth, as follows:
1.Transfer of jurisdiction of theportion of CH15located within the Cityas
describedin Attachment 1and depicted in Attachment 2,shall be in
accordance with Minnesota Statute §163.11. Full execution and approval
of this Agreement by both parties shall be deemed to satisfy the
requirements of that statute.Transfer of jurisdiction is contingent upon full
execution and approval of this Agreement,and adoption of a revoking
resolution bytheScottCounty Board of Commissioners. The effective date
of this transfer shall be August 30, 2015 if completion of the fully executed
agreement occurs sooner.
2.The County shall provide the Citywithall available diagrams, as-built
surveys, right of way information, traffic engineering documentation,and
with copies of all active highway and utility permits, where applicable. The
County shall provide documentary evidence of transfer of ownership to the
Scott County Recorder at its sole expense.
3.The County represents and warrants to theCitythat:
a.theCountyholdstheroadwayfree and clear of all liens, charges and
encumbrances;and
b.theCounty has received no notice of any action, litigation,
investigation or proceeding of any kind pending against the County
or the roadway, or any part thereof, nor to the best of theCounty’s
knowledge, is any such action, litigation, investigation or proceeding
pending or threatened;and
Page 2
CP 15-12
Turnback Agreement
County of Scott
City of Shakopee
c.theCounty has not entered into any contract or agreement with any
third party which affects the roadway, the term of which extends
beyond the date of this Agreement.
4.Scott County shall execute the quit claim deed necessary for conveying this
segment to the City of Shakopee.
5.The County shall do a mill andoverlay, restriping and sign replacement
prior to the release of the roadway.
6.The City agrees that it will not permit any new entrances other than those that
exist as of May 1, 2016 on CH 15between CH16 and the Trunk Highway
(TH)169 south ramp terminal. The City also agrees that the existing field
access on the west side and residential accesson the east side of this segment
will be removed when those properties are developed/redeveloped.See
Attachment 3.
7.The City commits to compliance with the Minor Arterial access guidelines
on CH69 north of TH169 and will not allow access between the ramp
terminaland Vierling Drive.
8.The City and County will work together with development to ensure that
CH16 is extendedbetween CH15and CH69as shown in Attachment 4.
The roadway design will most likely be a two lane highway and must be
built to County State Aid design standards. The County will allow a
median and landscaping in the boulevard, if the City agrees to maintenance
of these elementsand conducts the appropriate permit review for sight
distance and clear zone.The final design will be agreedtoat the actual
time of construction, givenland uses developed may impact traffic
projectionsfor the roadway.
9.City shall assume all responsibility for the road upon the completion of the
transfer.
10.The County shall indemnify theCityagainst, and shall holdtheCity
harmless from, any loss, cost, expense or damage, including reasonable
attorneys’ fees, directly arising out of or resulting from the County’s breach
of any of the representations and warranties herein contained, whether such
loss, cost, expense or damage arises prior to or after the date of this
Agreement, provided that theCitydid not have knowledge of said breach
on or before the date of this Agreement.
Page 3
CP 15-12
Turnback Agreement
County of Scott
City of Shakopee
8.ThisAgreement is between the Cityand the County as the only parties and
no provision of this Agreement shall in anyway inure to the benefit of any
third person (including the public at large) so as to constitute any such
person as a third party beneficiary of the Agreement or of anyone or more
of the terms hereof, or otherwise give rise to any cause of action in any
person not a party hereto.
9.ThisAgreement represents the full and complete understanding of the
Parties and both Parties represent that neither Party is relying on any prior
agreements or understandings, whether oral orwritten. This Agreement
shall be modified, if at all, with the signed, written consent of both Parties.
Page 4
CP 15-12
Turnback Agreement
County of Scott
City of Shakopee
IN WITNESS WHEREOF
, the Cityandthe County have caused this
Agreement to be duly executed on the day and year first above written.
CITY OF SHAKOPEE
(SEAL)
ByAnd
Bill Mars, MayorWilliam H. Reynolds,
City Administrator
DateDate
COUNTY OF SCOTT
ATTEST:
ByBy
Gary L. Shelton, Barbara Marschall,
County AdministratorChair of ItsCounty Board
DateDate
RECOMMEND FOR APPROVAL:
By
Anthony J. Winiecki,
County Engineer
Date
APPROVED AS TO FORM:
By
Jeanne Andersen,
Assistant County Attorney
Date
Page 5
CP 15-12
Turnback Agreement
County of Scott
City of Shakopee
Attachments: Title Transfer Documents
Attachment 1:Description
Attachment 2: Turnback Map
Attachment 3: Access Management Plan Between CH 16 & South Ramp
Attachment 4: CH16 Future Extension
Page 6
CP 15-12
Turnback Agreement
County of Scott
City of Shakopee
Attachment 1
Description of Turn Back
Commencing at Right of Way Boundary Corner B16 as shown on MINNESOTA
DEPARTMENT OF TRANSPORTATION RIGHT OF WAY PLAT NO. 70-15, according to the
record plat thereof, on file in the Office of the County Recorder in and for Scott County,
Minnesota; thence North 03 degrees 12 minutes 18 seconds West, along the boundary
of said plat, a distance of 30.00 feet; thence North 88 degrees 29 minutes 48 seconds
East, perpendicular to the east line of the Northeast Quarter of Section 14, Township
115 North, Range 23 West, Scott County, Minnesota, to the intersection with the
centerline of Scott County State Aid Highway No. 15, said point being approximately
1480 feet north of the southeast corner of said Northeast Quarter, the same being the
point of beginning; thence northerly along the centerline of said Scott County State Aid
Highway No. 15 to its intersection with the centerline of 6th Avenue in the City of
Shakopee and there terminating.
Page 7
Legend
Jurisdiction
Scott County
City of Shakopee
1.251 miles
(6,604.9 ft.)
0.142 miles
(753.5 ft.)
Miles
00.150.3
CSAH 15
Turnback
Attachment 2
Scott County City of Shakopee
Legend
D
Access Removal when Developed
Future Public Street
Proposed County Right-of-Way Endpoint
Existing Right-of-Way
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State Access Control
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County Access Control
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No Access
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Existing Roads
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0125250500Feet
Access Management Plan
Scott County
Community Services Division
Between CH16 and South 169 Ramp
600 Country Trail East
Jordan, MN 55352
Date: May 27, 2016
Attachment
Alternative 1
Alternative 2
Alternative 3
Legend
Shakopee West End Study Area
Principal Arterial
A Minor Arterial
B Minor Arterial
General Planned Alignment
Planned A Minor Arterial
Planned
Collector Alternatives
Elevation (10 ft.)
Existing Roads
Jurisdiction
GXWn
Jackson Township
Louisville Township
City of Shakopee
Miles
00.1250.250.5
Future Minor Arterial and Collector
Scott County
Community Services Division
Roadway System Plan
600 Country Trail East
Jackson Township Area
Jordan, MN 55352
Attachment
Date: May 13, 2016
RESOLUTION NO. 7751
A ResolutionDeclaring the Costs To Be Assessed
And Ordering the Preparation of Proposed Assessments
For The Hilldale Drive Improvements
Project No. 2014-3
WHEREAS
, a contract has been let for the construction of the HilldaleDrive
ImprovementsProject as described in the preliminary engineeringreport, and the contract
price for such improvements was$396,708.50, and the final contract price for such
improvement is $449,812.45, and the expenses incurred or to be incurred in the making
of such improvementsamounts to $116,803.12.Of this cost the City of Shakopee will
pay $216,472.96andShakopee Public Utilitieswill pay $108,399.38.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SHAKOPEE, MINNESOTA:
1.
The cost of such improvement to be specially assessed is hereby declared to
be $241,743.23.
2.
The City Clerk, with the assistance of the City Engineer, shall forthwith
calculate the proper amount to be specially assessed for such improvement againstevery
assessable lot, piece, or parcel of land within the district affected, without regard to cash
valuation, as provided by law, and keep a copy of such proposed assessment in her office
for public inspection.
3.
That the City Clerk shall, upon the completion of such proposed assessment,
notify the City Council thereof.
BE IT FURTHER RESOLVED:
1.
That a hearing shall be held on the 6thday of September, 2016, in the Council
Chambers of City Hall at 7:00 P.M. or thereafter, to pass upon such proposed
assessments and at such time and place all persons owning property affected by such
improvements and proposed assessments will be given an opportunity to be heard with
reference to such assessment.
2.
That the City Clerk is hereby directed to cause a notice of the hearing on the
proposed assessment to be published once in the official newspaper of the City of
Shakopee at least two weeks prior to the hearing and she shall state in the notice the total
cost of the improvements. She also shall cause mailed notice of such hearing to be given
to the owner of each parcel described in the assessment roll not less than two weeks prior
to the hearing.
Adopted in _________________ session of the City Council of the City of
Shakopee, Minnesota, held this ______ day of _______________, 2016.
__________________________
Mayor of the City of Shakopee
ATTEST:
_________________________
City Clerk
ENGR/2014PROJECT/HILLDALE/WORD/RES7751-DECLARE-COSTS-ASSESSED
RESOLUTION NO.7752
A RESOLUTION OF THE CITY OF SHAKOPEE, MINNESOTA
ACCEPTING A MEMORIAL BENCH DONATION IN HONOR OF TIFFANY
LOUISE SMITH.
WHEREAS, on April 7, 2009, the City Council adopted Resolution No.
6896, which adopts the Donations from the Heart Program;
WHEREAS, Resolution No.6896 specifies that citizens can donate trees
and/or benches to the city in honor of their loved ones; and
WHEREAS, the family of Tiffany Louise Smith have requested to donate a
memorial bench in her honor; and
WHEREAS, such bench will be placed along the Minnesota River near
Levy Drive for all community members to utilize.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF SHAKOPEE, MINNESOTA, that thedonation isgratefully
accepted; and
FURTHER, the City staff is directed to send a letter to the donor,
acknowledging receipt of the gift and expressing the appreciation of the City
Council.
Adopted in regular session of the City Council of the City of Shakopee,
rd
Minnesotaheld this3day of August, 2016.
______________________________
William Mars
Mayor of the City of Shakopee
ATTEST:
___________________________________
City Clerk
The City of Shakopee is offering a
donation program for citizens to honor
their loved ones. The donation of a tree
or bench is a lasting gift.
The City of Shakopee will purchase the
bench or tree for you and place it in the
desired area of the City.
If you would like to participate in the
placing of the bench or planting of the
tree please contact the City and we will
provide assistance.
Shakopee Parks, Recreation
Trees will be planted in the Spring and
& Natural Resources
Fall unless specific requests are made.
1255 Fuller St
Shakopee, Mn 55379
City of Shakopee
1255 Fuller St, Shakopee, MN
Phone: 952-233-9500
55379.
Fax: 952-233-3831
E-mail: parks@shakopeemn.gov
952-233-9500
Donations From the Heart
Donation Quantity Price
A donation of a bench or tree is a TREES:
The donation of a 1.5 to 2 inch diameter tree
wonderful way to honor and
includes the tree, planting of the tree and mulch.
remember those that we love. The
(Plaques are sold separately).
City of Shakopee is offering this
TOTAL ORDER
Donations From the Heart Program
Recommended trees include:
Location
that will allow you to purchase a
bench or a tree and place it in one of
Tree Type
entire community to recognize and
. A tree planting
enjoy.
permit is required and can be obtained from
City Hall or downloaded at
Name
www.ShakopeeMN.gov.
BENCHES:
Address
The donation of a bench includes the concrete
Tree (Any Species) $250
pad in which the bench will be secured and the
(planted during City Spring/Fall plantings)
engraved plaque which will be attached to the
bench.
Trees (Any Species) $350
(specially planted outside of set planting times)
Phone
Plastisol Coated Bench:
Method of Payment:
6-Foot Bench $1,075
Check CC
Cash
BRONZE PLAQUE:
Signature
$175
Plaque Information (Please Print)
www.ShakopeeMN.gov
RESOLUTION NO.7753
A RESOLUTION OF THE CITY OF SHAKOPEE, MINNESOTA
ACCEPTING A FENCEDONATION IN ROYALTY PARK.
WHEREAS, on November 6, 2002, the City Council adopted Resolution
No. 5794, which established procedure relating to the receipt of gifts and
donations by the City;and
WHEREAS, Resolution No.5794specifies that donations or gifts shall be
accepted by resolution of the City Council, and shall require a two-thirds majority
of the Council for acceptance;and
WHEREAS, a home owners associationsupports its neighborhood park;
and
WHEREAS, the home owners association will pay for and install a fence
along the north edge of the basketball hoop; and
WHEREAS, such donationswillserve all users of Royalty Park.
NOW, THEREFORE, BE IT RESOLVED BYTHE CITY COUNCIL OF
THE CITY OF SHAKOPEE, MINNESOTA, that thedonation isgratefully
accepted; and
FURTHER, the City staff is directed to send a letter to the donor,
acknowledging receipt of the gift and expressing the appreciation of the City
Council.
Adopted in regular session of the City Council of the City of Shakopee,
rd
Minnesotaheld this3day of August, 2016.
______________________________
William Mars
Mayor of the City of Shakopee
ATTEST:
___________________________________
City Clerk
AGREEMENT FOR USE OF CITY ICE ARENA BY
INDEPENDENT SCHOOL DISTRICT NO.720
THIS AGREEMENT is made and entered into by and between the CITY OF
SHAKOPEE, a municipal corporation and political subdivision of the State of Minnesota,
("City") and INDEPENDENT SCHOOL DISTRICT NO. 720, Shakopee, Minnesota(the
"District”)and independent school district and political subdivision of the State of Minnesota.
Recitals
A.The City is in the process of constructing a new Ice Arenaat 1255 Fuller Streetin the
City of Shakopee, Minnesota
B.The Ice Arena and the Team Locker Rooms (as defined below) areexpected to be ready
for use by December 1, 2016.
C.The District desires to use the ice rinks, spectator areas, common areas, parking lotsand
other appurtenant facilities(collectively the “Ice Arena”)for its boys’and girls’junior
varsity and varsity hockey programs, as well as its physical education programs.
D.The Cityand the District desire to enter into this Agreement setting forththe terms by
which the District will usethe Ice Arena.
NOW THEREFORE, in consideration of the promises and agreements hereinafter set
forth, and other good and valuableconsideration, the receipt and sufficiency ofwhich is hereby
acknowledged, the City and the District agree as follows:
1.Term. This Agreement shall commence on December 1, 2016(the “Effective Date”)and
March 31, 2027
terminateon(the “Term”), During the Term, the District shall have the
stst
right to use the Ice Arena from October 1through March 31(“Hockey Season”)of
each school year,provided,however,that during the 2016-17 Hockey Season, the District
shall have such right only from the date that the Ice Arena is available for use until March
31, 2017.
2.Payment. During the Term(except the first year of the Term), the District shall pay
$125,000.00annually to theCity for the District’s use of the Ice Arena during each
Hockey Season(the “Use Fee”). Payment shall be made in two equal installmentsof
st
$62,500. The first installment is due no later thanDecember1and the second
st
installment is due no later than April 1of each school year.During the first year of the
Term, the District shall pay the City a pro rata portion of the Use Fee in the amount of
$83,333 (the “First Year Use Fee”). In event the Ice Arena is not ready for the District’s
use by the Effective Date, the First Year Use Fee shall be further pro-rated to the date that
Ice Arena is ready for the District’s use as contemplated by this Agreement. The First
Year Use Fee shall be paid in two installments in accordance with this Section 2.
3.IceTime. The District is granted ice time during the times and under the terms and
Exhibit
conditions set forth inthe attached
A
.
1
471692v4 SH155-396
4.Team Locker Rooms.The District is hereby granted an exclusive right to use two
Varsity/Junior Varsity Team locker rooms(“Team Locker Rooms”) depicted and
Exhibit B
described in the attached during the Term, including before and after the
Hockey Season. The District may, in its sole discretion, and at the City’s request,allow
other groups to use the Team Locker Roomsoutside of the Hockey Season.The District
and the City mutually agree that the District’s right to exclusive use of the Team Locker
Rooms shall be deemed a lease of that space forgovernmentalpurposes in accordance
with Minn. Stat. § 126C.10, subd. 14(3),
5.DistrictImprovements. The Districtshall constructor may request that the City construct,
at the District’s sole expense, the initial build-outof the Team Locker Rooms (the
“DistrictImprovements”). The Districtshall deliver to the City a complete set of plans
and specifications in the form of working drawings or construction drawings identifying
the interior layout of theTeam Locker Rooms, including complete sets of detailed
architectural, structural, mechanical, electrical, and plumbing working drawings for any
and all DistrictImprovements. The District may also make such additional alterations,
additions or improvements to the Team Locker Rooms as it deems necessary(the
“Additional District Improvements”)upon responsible notice andapproval of the city.
Any alteration, addition or improvement made to the Team Locker Rooms (other than
movable equipment, furniture and other trade fixtures owned by the District) will at once
become the property of the City upon expiration or earlier termination of thisAgreement,
except that if the City terminates this Agreement, the City shall not acquire ownership of
the alterations, additions or improvements to the Team Locker Rooms until the City
reimburses the District a pro rata portion of the costs of the District Improvements and
the Additional District Improvements. The pro rata payment shall be determined by
multiplying the total costs of the District Improvements and Additional District
Improvementsby the percentage amount of the full calendar months remaining of the
Term. The District shall maintain verifiable records of such costs.
6.District’s UseofIce Arena. The Districtshall use the Ice Arena for the District’s hockey
programand physical education classes,pursuant to the terms of this Agreement and the
ExhibitA
attached.The Districtshall not create a nuisance or use the Ice Arena for any
illegal or immoral purposes.
7.Compliance With Laws. The Citywarrants thatthe physical conditionand indoor air
quality of the Ice Arenawill comply with all applicable laws, ordinances, rules and
governmental regulations (“Applicable Laws”). The Cityshall comply with all
Applicable Laws regarding the physical condition and indoor air quality of Ice Arena.
The Districtshall comply with all Applicable Laws regarding the physical condition of
the Ice Arenato the extent the Applicable Laws pertain to the particular manner in which
Districtuses the Ice Arenaor to the lawful use of the Ice Arena, such as laws governing
maximum occupancy and illegal business operations
8.District Policies Applicable. During the Term, the District’spolicies and procedures
shall apply to use of the Ice Arena and Team Locker Rooms.
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471692v4 SH155-396
9.Services and Utilities. The Cityshall,at its expense:
a.Provide heating, ventilation and air conditioning (HVAC) for the Ice Arenato
maintain comfortable temperaturesand air qualityduring the times that the
DistrictusestheIce Arena;
b.Provide electricity to the Ice Arenain reasonable amounts necessary for the
District’s use of the Ice Arena, as well as access to the Ice Arena’s wireless
internet network;
c.Provide expendables such as light bulbs, paper towels, toilet paper and the like;
d.Cooperate with the District regarding the District’s use of the Ice Arena and Team
Locker Rooms;
e.Provide trash disposal receptacles; and
f.Maintain common areas in the Ice Arenaas well as the parking lots and walk
waysappurtenant to the Ice Arena, including snow removal and ice remediation;
10.District’s Use and Care of the Ice Arena and Team Locker Rooms. The Districtshall, at
its expense:
a.Keep the Team Locker Roomsin good order;
b.Make repairs and replacements to the Team Locker Roomsneeded because of
District’s misuse or negligence;
c.Maintain and clean the Team Locker Roomson a regular basisusing City-
provided cleaning supplies and equipment. This includes cleaning, mopping,
disinfecting, and depositing trash into proper receptacles;
d.Cooperate with the City staff thatis assigned to oversee the Ice Arena;
e.Pay for and provide any security measures necessary to secure its equipmentin
the Team Locker Roomsand provide access to the City’s Ice Arena Manager;
f.Be responsible for any losses due to theft, District employee errors, vandalism
occurring in the Team Locker Rooms, unless such loss is the result of negligence
or intentional acts by the City, its employees, volunteers, subcontractors or agents;
g.Ensure that those District employees follow the City’s no smoking, tobacco and
alcohol policy and premises policies, which regulate permissible activities and do
not allow any smoking or drinking within theTeam Locker Rooms.
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471692v4 SH155-396
h.At the end of each Hockey Season, the Districtwillremove from the Team
Locker Roomsits personal propertyand equipment in order to facilitate an end-of
the-season deep cleaning and sanitizing of the Team Locker Roomsby City staff
at City expense.
11.Interruption of Services. The Cityexplicitly does not warrant that any services the City
supplies to the Ice Arenaunder Section 8 hereofwill be uninterrupted.Services may be
interrupted because of accidents, repairs, alterations, improvements, or any reason
beyond the reasonable control of the City. In the event an interruption of one or more
Services prevents the District from making full use of the Ice Arena during any day of the
Hockey Season, a pro rata credit shall be applied to the District’s next semi-annual Use
Fee payment under Section 2 hereof for each day the District cannot make full use of the
Ice Arena. The City may enter the Team Locker Roomsat reasonable timesupon
reasonable prior notice to the School District, and at any time in the case of an
emergency, to make necessary and appropriate repairsoralterations, at the City’s
expense,to preserve the safety and physical condition of the Ice Arenaor the Team
Hockey Rooms.
12.Alterations. Except with respect to the DistrictImprovements, the Districtshall not make
alterations to the Ice Arena without the City’s advance written consent, which consent
shall not be unreasonably withheld. “Alterations” means additions, substitutions,
installations, improvements, and similar changes to the physical condition of the Ice
Arena.
Exhibit Aand Exhibit B
13.Entire Agreement. This Agreement, including the attached ,
constitutesthe complete and exclusive statement of the terms agreed upon and shall
supersede all prior negotiations, understandings or agreements. Any alterations,
variations, modifications or waivers of the Agreementshall only be valid when they are
agreed to in writing and signed by authorized representatives of the District and the City.
14.Applicable Law. Minnesota law shall be usedto construe and interpret this Agreement,
without giving effect to the principles of conflict of laws. All proceedings related to this
Agreementshall be venued in the State of Minnesota.
15.Data Practices Act. All of the data created, collected, received, stored, used, maintained,
or disseminated by the Cityor the District in the performance of thisAgreementis
subject to the requirements of the Minnesota Government Data Practices Act, Minnesota
Statutes, Chapter 13.
16.Indemnity. To the extent permitted by law, the District shall defend, indemnify and hold
harmless the City, its officers, agents and employees, against all suits, demands, causes of
action, liabilities, or claims for injury or damages of whatever nature, including death or
damage to property, arising out of or related to the District’s use of the Ice Arena.;
provided, however, that such indemnification shall not extend to injury or damage caused
by the negligence or intentional acts of the City, it agents, administrators, employees,
volunteers and assigns.
4
471692v4 SH155-396
17.Assignment. Neither party shall assign this Agreementor any of the rights, duties or
payments arising under this Agreementto any third party without the written consent of
the other.
18.Termination Due to Non-Appropriation. During the Term, the District shall have the
right to terminate this Agreement at the end of any fiscal year of the District in the event
that the District fails to appropriate money sufficient for the continued performance of
this Agreement by Districtafter the end of that fiscal year. The District may affectsuch
termination by giving the City a written notice of termination and by paying to the City
any fees and other amounts which are due and which have not been paid at or before the
end of its thencurrent fiscal year.Upon termination of this Agreement as provided in this
section, the District shall not be responsible for the payment of any fees coming due with
respect to succeeding fiscal years.Within ten (10) business days following the end of the
fiscal year in which the non-appropriation occurs, the District shall remove all District
property and equipment from the Team Locker Rooms and Ice Arena. All remaining
property left in the Team Locker Rooms or Ice Arena after 10 days of termination will
becomes the property of the City.
19.Termination for Convenience. Following the completion of five (5) consecutive years of
the Term, either party may terminate this Agreement without penalty for any reason upon
written notice to the other party by not later than the close of business on April 1 of any
remaining year of the Term (the “Notice Date”). In the event the City provides notice of
termination by the Notice Date, the District shall, by the close of business on May 1 of
that same year, vacate theTeam Locker Rooms and remove any District property and
equipment therefrom. In the event the City does not provide written notice of termination
by the Notice Date, the District shall continue to have access to and use the Ice Arena and
Team Locker Roomsthrough March 31 of the following yearin accordance with this
Agreement.
20.Default. If either party fails to observe or perform any other material term of this
Agreement and such failure continues for thirty (30) days after written notice from the
other party identifying the alleged breach and stating the desired remedy(ies), then that
party shall be in default of its obligations under this Agreement. Thereafter, the non-
defaulting party may: (i) terminate this Agreement without further liability, cost or
obligation to the non-defaulting party, arising out of this Agreement, and/or (ii) pursue
any remedies it may have at law or in equity,
21.Notices. All notices required under this Agreementmust be in writing and provided to
the designated contact person for the other party. The parties shall keep each other
informed in writing of any change in the designated contact person. At the time of the
execution of this Agreement, the following persons are the designated contacts:
District ContactCityContact
Mike BurlagerJamie Polley
Director of Finance Parks and RecreationDirector
Shakopee Public SchoolsCity of Shakopee
5
471692v4 SH155-396
1200 Town Square1255 Fuller St S
Shakopee, MN 55379Shakopee, MN 55379
(952) 233-9514
22.Miscellaneous.
a.The City has the exclusive right to operate or manage concession sales at the Ice
Arena for the sale of food and beverages, including food and beverages dispensed
from vending machines. The District may not bring food or beverages for sale or
distributionin the Ice Arena withoutprior written approval from the Cityand
such approval shall not be unreasonably withheld.
b.The District may not post advertisements in any portion of the Ice Arena without
prior written approval from the City.
c.The District willhave shared use of the Ice Arena parking lot on a first-come,
first-served basis. The District may not prohibit, regulate, or obstruct use of the
Ice Arena parking lot by others.
23.Severability. If any portion of this Agreementis declared by a court to be illegal or in
conflict with any law, the validity of the remaining terms and conditions shall not be
affected and the rights and obligations of the parties under this Agreementshall be
construed and enforced as if the Agreementdid not contain the particular provision held
to be invalid.
IN WITNESS WHEREOF
, the undersigned parties acknowledge that they have read
and understand this Agreement and have executed it on the dates recorded below.
6
471692v4 SH155-396
INDEPENDENT SCHOOL DISTRICTNO.720
Date:___________________By _______________________________________
Its Chair
By_______________________________________
Its Clerk
CITY OF SHAKOPEE
Date: ___________________By:____________________________________
ItsMayor
By:___________________________________
Its City Administrator
7
471692v4 SH155-396
EXHIBIT A
1.Lump sum payment of $125,000 per year
2.Schedule of reserved dates and times:
a.All game times/dates as set and determined by School District Activities Director
inconsultation with the City’s Ice Arena Manager. Each game shall have a
reserved time of 4.5 hours.
b.Practice times for girls’ and boys’junior varsity and varsity hockey teams from
5:30-7:30 a.m. on Mondays, Tuesdays, and Thursdaysand from 3:15-6:30 p.m.
on Mondays through Fridays. At designated dates and timesmutually agreed-to
by the parties, the District may use the Ice Arena for games and practices on
Saturdays.
c.All post-season home games
st
d.Ice time selection must be made by August 1each yearof the Term.
e.Use of the Ice Arena for practices is for a maximum of 30 hours per week.Any
ice time above 30 hours per week for practices willbe billed at the City’s normal
hourly rate.
f.The total number of hours the Ice Arena can be used for practices and games shall
not exceed 520 hours for each Hockey Season. The parties agree that the District
shall be responsible for maintaining an accounting of the hours the Ice Arena is
used for practices and games and shall, upon request, provide the City with the
total number of hours used as of the date of the City’s request.
3.The Team Locker Roomsmust be cleaned out no later than two weeks after the Hockey
Season concludesin order to facilitate the deep cleaning and sanitizing referenced in Section
10h, above.Personal property of the high school hockey players should only be stored in the
Team Locker Rooms during the Hockey Season.
4.The District is responsible for cleaning up the Team Locker Roomsthat are used by the
District to their pre-event condition after eachuse. TheDistrict is responsible for taking
down and storing any items that the District sets up for District games and events,including
moving and storing tables, chairs, booths, stages or any other equipmentused during the
game or event.
5.The City,at its own expense,will provide an on-duty manager and ice maintenance
personnel.
6.The District,at its own expense,will provide ticket personnel, operate the ticket table and
receive all ticket sales revenuefor District games and events.
7.The District,at its own expense,will providecrowd control stafffor District games and
events.
8
471692v4 SH155-396
8.The District,at its own expense,will provide an event announcer, referees and any
necessary off-ice officialsfor District games and events.
9.The District may use the Ice Arena for physical education classes during the school day
at no charge pursuant to this Agreement and theJoint Use Agreement forUse of City of
Shakopee & School District Facilities dated November 18, 2008 (the “Joint Use
Agreement”).In the event of a conflict between this Agreement and the Joint Use
Agreement, the terms of this Agreement shall control. The District will provide the City
st
with a schedule of physical education classes by October 1of each school year.
9
471692v4 SH155-396
EXHIBIT B
Description and Depiction of the Team Locker Rooms
10
471692v4 SH155-396
FundstransferredelectronicallyJuly20,2016toAugust3,2016
PAYROLL
$ 338,550.14
FIT/FICA99,979.40$
STATEINCOMETAX20,501.94$
PERA82,590.09$
HEALTHCARESAVINGS6,734.51$
HEALTHSAVINGSACC
T
$
NATIONWIDEDEFCOMP13,866.26$
ICMADEFERREDCOMP1,904.02$
MSRS3,038.15$
FSA5,443.53$
MNWAGELEVY144.23$
Total572,752.27$
Page 1 of 1
7/29/2016 8:09:23 AM
RESOLUTION NO. 7754
A RESOLUTION APPOINTING ELECTION JUDGES FOR THE
AUGUST 9 2016 PRIMARY AND NOVEMBER 8 2016 GENERAL ELECTION
_____________________________________________________________________________________
WHEREAS, the City Council is required by law to provide election judges to conduct the Primary
and General Elections; and
WHEREAS, staff has provided the names of persons who are willing and qualified to serve in said
capacity;
NOW THEREFORE, BE IT RESOLVED by the Mayor and Council of the City of Shakopee, Scott
County, Minnesota:
1.The recitals set forth above are incorporated herein.
2.Hereby appoint the following persons to serve as elections judges for the August 9 2016 Primary
and the November 8 2016 General Elections (see Exhibit A Attached)
3.The election judges shall be compensated for their work at the rate of $11 per hour and the
head judges of the election judges shall be compensated at the rate of $14 per hour; and
BE IT FURTHER RESOLVED that, based upon the inability of a judge(s)to serve on election day or
upon need for additional assistance, the City Clerk shall be authorized to appoint/hire required number
of persons. Only those persons duly qualified and duly trained to serve as an election judge may be
selected to serve in this capacity.
rd
day of
Adopted in regular session of the City Council of the City of Shakopee, Minnesota, held this 3
August, 2016.
_____________________________________
Mayor
ATTEST:
___________________________
City Clerk
CompetitiveFranchising
City of Shakopee, Minnesota
August 2, 2016
1
FederalCableAct
One of the stated purposes of the Cable Act is to:
promote competitionin cable communications and
minimize unnecessary regulation that would impose
an undue economic burden on cable systems.
See
47 U.S.C. §521 (6) emphasis added
2
FederalCableAct
A franchising authority may award one or more
franchises within its jurisdiction:
except that a franchising authority may not grant an
exclusive franchise and may not unreasonably refuse
to award an additional competitive franchise
.
See
47 U.S.C. §541 (a)(1) -emphasis added
-codified in the Cable Act as Section 621
3
ComcastBackground
2004
•
Comcast of Arkansas/Florida/Louisiana/Minnesota
/Mississippi/Tennessee, Inc. granted
a non-exclusive cable franchise
15 year term
2014
•
Comcast proposes transfer of franchise
4
CenturyLinkBackground
March 2015
•
Qwest Broadband Services, Inc.
d/b/a CenturyLink, Inc. (CenturyLink)
requests cable franchise
April 2015
•
City issues N
otice of Intent to Franchise
May 2015
•
CenturyLink submits application
June 2015
•
City holds hearing
•
City receives qualifications report
5
CenturyLinkBackground
July 2015
•
CenturyLink provides City mark-up of
Comcast franchise
August 2015
•
City finds CenturyLink qualified
Legal, technical and financial
•
Authorizes staff to negotiate franchise
August 2015 –July 2016
•
City staff and CenturyLink negotiations
6
CenturyLinkFranchiseNegotiations
City Goals
•
Substantially similar franchise terms
for CenturyLinkand Comcast
7
QBSIv.QC
Qwest Broadband Services, Inc.
•
D/B/A CenturyLink
•
Content provider
•
Sells and provides Cable Service
Qwest Corporation
•
Owns the facilities in the ROW
•
Owns, maintains the Cable System
QBSI to ensure QC compliance
•
See Section 2.1(b)
8
FranchiseTerm
5 year franchise term
City has unilateral right to
•
5 year extension of term
If triggered 10 year term
Term tied to system build out
•
Allows the City to consider whether Cable
System substantially constructed
During initial 5 year term
If not, franchise may not be renewed
9
LivingUnits
Franchise references “Living Units”
•
Households = Living units
a distinct address in the QC network
•
single family homes
•
multi-dwelling units
apartment buildings and condominiums
•
business locations
•
Qualified Living Units
meets minimum technical qualifications
generally a minimum of 25 Mbps downstream
10
SystemBuildOut
CenturyLink authorized to provide cable service
•
Throughout entire City
•
Within 2 years CenturyLink will serve minimum of
15% of Living Units in City
•
A significant portion of CenturyLink investment
will be targeted to areas below the median income in City
Nondiscrimination mandate
Quarterly meetings
•
Verify compliance with build obligations
•
Confidential maps made available by CenturyLink
Market success requirement
•
27.5% of the households capable of receiving Cable Service
•
Additional 15% requirement
11
SystemBuildOut
Quarterly meetings -CenturyLink shows
•
It is capable of serving 60% of households
•
Actually serving 30% of those households
CenturyLink will agree to serve an additional 15%
of the total households in the City
No later than 2 years after quarterly meetings
A total of 75% of the total households
This additional build-out based on market
success continues until every household
within the City is served
12
PEGChannels
SD and HD for all PEG channels
•
Based on subscriber equipment in home
•
Government channel #s -240 SD/1240 HD
Reserved but not activated
Until completion of New City Hall
•
Education channel #s -8140 SD/8640 HD
•
Public channel #s -8141 SD/8641 HD
Reserved but not used
PEG fee of $.40/subscriber/month
•
Matches Comcast
13
ComplimentaryCityService
CenturyLink to provide complimentary service
•
Service to City:
New
City Hall
Existingew/expended)
and (nShakopee High School
Highest level of SD and HD service
Equipment necessary to receive service at 7 TV sets
•
Service to Designated Public Buildings:
SD and HD Cable service
Equipment necessary to receive service at 3 TV sets
CenturyLink wont duplicate Comcast served buildings
•
City can elect provider to serve
•
Buildings must be QLU
14
Indemnification
CenturyLink to indemnify the City
•
Same indemnification obligations as Comcast
•
Added agreement to indemnify City
If Comcast challenges City franchise award to
CenturyLink
15
CityStaffand
LegalCounselRecommendation
Approval Recommended
Findings of Fact
•
CenturyLink Cable Franchise
•
16
Questions
Brian T. Grogan, Esq.
Moss & Barnett, A Professional Association
150 South Fifth Street, Suite 1200
Minneapolis, MN 55402
(612) 877-5340 phone / (612) 877-5031 facsimile
E-mail: Brian.Grogan@lawmoss.com
Web site: www.lawmoss.com
17
M
EMORANDUM
To:City Council -City of Shakopee, Minnesota
From:Brian Grogan, Esq.
Date:August 2, 2016
Re:Competition in Cable Communications Franchising
Executive Summary
TheCity of Shakopee, Minnesota (“City”)isconsidering the grant of a competitive cable
franchise to Qwest Broadband Services, Inc., d/b/a CenturyLink (“CenturyLink”) in a service
area for which Comcast holds an existing franchise. This memorandum is intended to assist the
City Council toconsider the proposed CenturyLink Cable Television Franchise Ordinance
(“CenturyLink Franchise”) by summarizing the legal issues surrounding its terms that relate to
competition in the cable communications industry.
Details
TheCitypreviouslyadopted a resolution finding CenturyLinkto be legally, technically
and financially qualified to provide cable communication services to residents of the City. In
connection with that finding, the City Council authorized staff to negotiatewith CenturyLink to
seek mutually acceptable terms for the CenturyLink Franchise. Those negotiations are now
complete and have resulted in the proposed CenturyLink Franchise enclosed as Exhibit1. City
staff also prepared for the City Council’s review and consideration, written “findings of fact,”
enclosed as Exhibit2,setting forth the factual and legal basis for the grant of the CenturyLink
Franchise and the impact of relevant state and federal competitive cable franchise laws and
regulations.
150 South Fifth Street | Suite 1200Minneapolis, MN 55402
P:612-877-5000 F:612-877-5999 W:LawMoss.com
3220949v1
City Council -City of Shakopee, Minnesota
August 2, 2016
Page 2
To help promote competition in and minimize unnecessary regulatory burdens on the
cable communications industry, the Cable Communications Policy Act of 1984, as amended by
the Cable Consumer Protection and Competition Act of 1992 and Telecommunications Act of
1996 (the “Cable Act”) prohibits local franchising authorities from granting exclusive cable
communications franchises or unreasonably refusing to award an additional franchise to a
1
qualified applicant. The Federal Communications Commission(“FCC”), which administers the
Cable Act, addressed competitive cable franchising in its 2007
(generally referred to as the “621 Order” after its subject, Section 621 of
the legislation that became the Cable Act). The 621 Order explained that an unreasonable
refusal in contravention of the Cable Act could occur not only by outright denial of a franchise
application, but also by creating conditions that operate as de facto denials.
One variety of de facto denial addressed by the 621 Order is the imposition of
unreasonable build out requirements that act as a barrier for an additional cable provider to
enter a market with an existing franchise:
Build-out requirements deter market entry because a new entrant generally must
take customers from the incumbent cable operator . . . . Because the second
provider realistically cannot count on acquiring a share of the market similar to
the incumbent’s share, the second entrant cannot justify a large initial
deployment. Rather, a new entrant must begin offering service within a smaller
area to determine whether it can reasonably ensure a return on its investment
2
before expanding.
1
47 U.S.C. § 541(a)(1).
2
621 Order at ¶ 35.
3220949v1
City Council -City of Shakopee, Minnesota
August 2, 2016
Page 3
The 621 Order did not prohibit all build out requirements, but instead provided examplesof
unreasonable build out requirements-and of reasonable ones, such as a small initial
3
deployment and required expansion triggered by market success.
Minnesota Statutes Chapter 238, which establishes statewide cable communications
requirements, also addresses build out by requiring “a provision in initial franchises identifying.
... a schedule showing: ... that construction throughout the authorized franchise area must be
4
substantially completed within five years of the granting of the franchise.” CenturyLink takes
the position that Minnesota’s five year build out requirement is unreasonable under the 621
Order and is therefore preempted by the federal law. In other Twin City jurisdictions, Comcast
has disagreedand pointedto the FCC’s recent reaffirmation that the 621 Order’s rulings “were
intended to apply only to the local franchising process and not to franchising laws and decisions
5
at the state level.”
The CenturyLink Franchise addresses this issue by requiring a modest initial deployment
(at least 15% of the service area within two years) and linking build out requirements to
market-success benchmarks that CenturyLink must use its best efforts to meet, but granting the
City’s sole discretion to determine, at the end of five years, whether CenturyLink has fulfilled its
6
build out obligations to qualify for renewal of the franchise.
The Minnesota Cable Communications Statutes also contain a general level-playing-field
(i.e., “competitive equity”) provision that requires that an additional franchise include no terms
or conditions “more favorable or less burdensome than those in the existing franchise pertaining
3
at ¶ 89-90.
4
Minn. Stat. § 238.084, subd. 1(m).
5
621 Order at ¶ 7, cited in letter datedJune 16, 2015
6
CenturyLink Franchise §§ 1.3 and 1.5.
3220949v1
City Council -City of Shakopee, Minnesota
August 2, 2016
Page 4
to: (1) the area served; (2) public, educational, or governmental access requirements; or (3)
7
franchise fees.” Minnesotacourts have interpreted this provision as requiring “substantially
8
Several attempts have been made to ensure that the
similar” -rather than identical-terms.
CenturyLink Franchise is substantially similar to Comcast’s existing franchise: first, the Comcast
franchise served as the base document for negotiation of the CenturyLink Franchise; second,
the franchise fee percentage required by the CenturyLink Franchise is identical to that required
by Comcast’s franchise; third, the geographic area (after complete build-out) of the CenturyLink
Franchise matches the area specified in Comcast’s franchise; and fourth, the CenturyLink
Franchise requires CenturyLink to require substantially similar-if not greater-public,
educational, and governmental access.
As previously indicated, whether the City ultimately grants or denies the proposed
CenturyLink Franchise, it must examine all of the evidence presented to it, weigh the facts, and
apply the correct legal standards. Enclosed as Exhibit 2are draft findings of fact generally
supporting a decision to approve the CenturyLink Franchise. With the caveat that best practices
dictate that the final findings of fact should respond to any evidence or argument against
approval, the attached findingsof fact may serve as a useful starting point if the City Council
elects to grant the CenturyLink Franchise.
3220949v1
7
Minn. Stat. § 238.08, subd. 1(b).
8
, 664 N.W.2d 390, 396 (Minn. Ct. App. 2003).
3220949v1
EXHIBIT 1
CenturyLink Franchise
Exhibit 1
3220949v1
EXHIBIT 2
Findings of Fact
Exhibit 2
3220949v1
1
3220949v1
ORDINANCE NO.939
CITY OF SHAKOPEE CABLE TELEVISION FRANCHISE ORDINANCE
August 3, 2016
2918824v9
TABLE OF CONTENTS
SEC. 1.GRANT OF FRANCHISE.............................................................................................1
SEC. 2.SHORT TITLE...............................................................................................................5
SEC. 3.DEFINITIONS................................................................................................................5
SEC. 4.FRANCHISE TERM......................................................................................................7
SEC. 5.WRITTEN NOTICE.......................................................................................................7
SEC. 6.DESIGN PROVISIONS..................................................................................................8
SEC. 7.PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
PROGRAMMING.........................................................................................................11
SEC. 8.PERIODIC CUSTOMER SURVEYS.........................................................................15
SEC. 9.LINE EXTENSION POLICY......................................................................................16
SEC. 10.GENERAL FINANCIAL AND INSURANCE PROVISIONS...............................16
SEC. 11.RATES.........................................................................................................................19
SEC. 12.COMPETITION ADJUSTMENT.............................................................................19
SEC. 13.REPAIRS AND MAINTENANCE/CONSUMER PROTECTION.......................20
SEC. 14.SUBSCRIBER PRIVACY..........................................................................................21
SEC. 15.INDEMNIFICATION AND LIABILITY INSURANCE........................................21
SEC. 16.ADMINISTRATION..................................................................................................22
SEC. 17.REDRESS....................................................................................................................22
SEC. 18.TRANSFER OR ASSIGNMENT..............................................................................23
SEC. 19.RIGHT TO PURCHASE............................................................................................23
SEC. 20.FORCE MAJEURE....................................................................................................24
SEC. 21.ACCEPTANCE SECTION........................................................................................24
SEC. 22.MISCELLANEOUS....................................................................................................24
SEC. 23.SUMMARY.................................................................................................................25
SEC. 24.POSTING AND FILING............................................................................................25
SEC. 25.TITLE...........................................................................................................................25
SEC. 26.EFFECTIVE DATE....................................................................................................25
EXHIBITA –QUARTERLY MEETING REPORT
EXHIBIT B–CABLE SERVICETO PUBLIC BUILDINGS
EXHIBIT C–FCC CUSTOMER SERVICE STANDARDS
EXHIBIT D–INDEMNITY AGREEMENT
EXHIBIT E–CHANNEL LINE-UP
i
2918824v9
ORDINANCE NO.939
FRANCHISE ORDINANCE
rd
This Franchise made and entered into this3day of August,2016, by and between the
City of Shakopee,(“City”) a municipal corporation of the State of Minnesota, and Qwest
Broadband Services, Inc., d/b/a CenturyLink(“Grantee”).
WITNESSETH
WHEREAS, the City is authorized to renew or grant one or more nonexclusive revocable
Franchises to operate, construct, maintain and reconstruct a Cable Television System within the
City.
WHEREAS, the City, reviewed the legal, technical and financial qualifications of
Grantee and after proper public notice, has determined that it is in the best interest of the City
and its residents to grantaFranchise toGrantee.
NOW, THEREFORE, the City hereby grants to Grantee aFranchise in accordance with
the provisions of the Shakopee City Code and this Ordinance.
SEC. 1. GRANT OF FRANCHISE.
Grant of Franchise.
1.1
A.This Franchise constitutes a nonexclusive grant of authority to Grantee to
construct, maintain, extend, and operate a Cable System to provide Cable Service and other
lawful service in Rights-of-Way in the City.Grantee’s rights are subject tothe police powers of
the City. Grantee shall comply with any City ordinances of general applicability governing use
of Right-of-Way and all generally applicable building, electrical and zoning codes currently or
hereafter in force in the City. Grantee shall further comply with all state and federal laws, rules,
and regulations applicable to the operation of Cable Systems or the provision of Cable Service.
In the event of any conflict between the terms and conditions of this Franchise and any generally
applicable ordinance including the Right-of-Way ordinance, the terms of such generally
applicable ordinance shall control, however the parties agree that no City ordinance or regulation
shall have theeffect of modifying the build out requirements set forthin Sections 1.3 and 1.5
herein.This Franchise complies with the Minnesota franchise standards set forth in Minn. Stat. §
238.084.
B.Grantee promises and guarantees, as a condition of exercising the privileges
granted by this Franchise, that any affiliatedentity of the Grantee involved in the offering of
Cable Service in the City, or directly involved in the ownership, management or operation of the
Cable System in the City, shall also comply with all obligations of this Franchise. However, the
City and Grantee acknowledge that QC will be primarily responsible for the construction and
installation of the facilities in the Rights-of-Way which will be utilized by Grantee to provide
Cable Services. So long as QC does not provide Cable Service to Subscribers in the City, QC
will not be subject to the terms and conditions contained in this Franchise. QC’s installation and
maintenance of facilities in the Rights-of-Way is governed by applicable local, state and federal
law. To the extent Grantee constructs andinstalls facilities in the Rights-of-Way, such
1
2918824v9
installation will be subject to the terms and conditions contained in this Franchise. Grantee is
responsible for all provisions in this Franchise related to: 1) its offering of Cable Services in the
City; and 2) the operation of the Cable System regardless of what entity owns or constructs the
facilities used to provide the Cable Service. The City and Grantee agree that to the extent QC
violates any applicable federal, state, or local laws, rules, and regulations, the City shall first seek
compliance directly from QC. In the event, the City cannot resolve these violations or disputes
with QC then the City may look to Grantee to ensure such compliance. Failure by Grantee to
ensure QC’s or any other affiliate’s compliance with applicable local, state and federal laws,
rules, and regulations shall be deemed a material breach of this Franchise by Grantee.
Franchise Area.
1.2
The Grantee is hereby authorized to provide Cable Services over a Cable System within the
jurisdictional boundaries of the City, including any areas annexed by the City during the term of
this Franchise. The parties acknowledge that Grantee is not the first entrant into the wireline
video market in the City. The Grantee acknowledges that the City desires wireline competition
throughout the entire City so all residents may receive the benefits of competitive Cable
Services. Grantee aspires to provide Cable Service to all Living Unitswithin the City by the end
of the five year (5) term of this Franchise. Grantee agrees that its deployment of Cable Service
in the City will be geographically dispersed throughout the City, and shall be made available to
diverse residential neighborhoods of the City without discrimination. This Franchise governs
any Cable Services provided by Grantee to residential and commercial Subscribers.
Initial Build Out.
1.3
No later than the second anniversary of the effective date of this Franchise, Grantee shall be
capable of serving a minimum of fifteen percent (15%) of the City’s Living Unitsin the
Franchise Area with Cable Service; provided, however, Grantee will make its best efforts to
complete such deployment within a shorter period of time. This initial minimum build-out
commitment shall include a significant number of Living Unitsbelow the median income in the
City. Nothing in this Franchise shall restrict Grantee from serving additional Living Unitsin the
City with Cable Service.
Quarterly Meetings.
1.4
In order to permit the City to monitor and enforce the provisions of this section and other
provisions of this Franchise, the Grantee shall, upon demand, promptly make availableto the
City maps and other documentation showing exactly where within the City the Grantee is
currently providing Cable Servicethrough FTTN andFTTH. Grantee shall meet with the City,
not less than once quarterly, unless otherwise directed by the City, to demonstrate Grantee’s
compliance with the provisions of this section concerning the deployment of Cable Services in
the City including, by way of example, the provision of this section in which Grantee commits
that a significant portion of its initial investment will be targeted to areas below the median
income within the City, and the provisions of this section that prohibit discrimination in the
deployment of Cable Services on the basis of the income level of the residents.
2
2918824v9
Additional Build Out Based on Market Success.
1.5
A.If, at any quarterly meeting, including any quarterly meeting prior to the second
anniversary of the effective date of this Franchise (as the term effective date is defined in Section
26herein), Grantee is actually serving twenty seven and one-half percent (27.5%) of the Living
Unitscapable of receiving Cable Service, then Grantee agrees the minimum build-out
commitment shall increase to include all of the Living Unitsthen capable of receiving Cable
Service plus an additional fifteen (15%) of the total Living Unitsin the City, which Grantee
agrees to serve within two (2) years from the quarterly meeting; provided, however, the Grantee
shall make its best efforts to complete such deployment within a shorter period of time.
B.For example, if, at a quarterly meeting with the City, Grantee shows that sixty
percent (60%) of the Living Unitsin the City are Qualified Living Units and Grantee isactually
serving thirty percent (30%) of those Qualified Living Unitswith Cable Service, then Grantee
shall take such action as is required to makean additional fifteen percent (15%) of the Living
Unitsin the City, Qualified Living Unitsno later than two (2) years after that quarterly meeting
(a total of seventy-five percent (75%) of the total Living Unitsin the City under this example).
This additional build-out based on market success shall continue until every Living Unitin the
City is a Qualified Living Unit.
Quarterly Meeting Reporting
1.6.
A.In order to permit the City to monitor and enforce the provisions of this section
and other provisions of this Franchise, the Grantee shall, commencing September, 2016,
and continuing throughout the term of this Franchise, meet quarterly with the City and make
availableto the City the following information:
1.The total number of Living Units throughout the City;
2.The total number of Qualified Living Units;
3.The percentage (%) of Living Units that are Qualified Living Units
(Living Units divided by Qualified Living Units);
4.The total number of Qualified Living Units actually subscribing to
Grantee’s Cable Service;
5.The percentage of Qualified Living Units served;
6.Whether the percentage of Qualified Living Units served exceeds 27.5% -
as specified in Section 1.5 above;
7.Whether an additional build out requirement of fifteen percent (15%) is
triggered -as specified in Section 1.5 above;
8.If subparagraph 7above triggered, the percentage of Living Units required
to be served in the next twenty-four (24) months;
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9.A chart including the above mentioned information and any related
information in form and substance substantially the same as Exhibit A, attached hereto;
10.A copy of the map specified in Section 1.4 herein; and
11.Information demonstrating Grantee’s commitment that a significant
portion of Grantee’s initial investment and Grantee’s deployment of Cable Services in the
City has been targeted to households below the City’s median household income.
B.At the conclusion of each quarterly meeting Grantee and City shall agree on the
required number of Living Units that must be converted to Qualified Living Units, if applicable,
within the next twenty-four (24) months as mandated by the requirements of this Section 1.5.
Nondiscrimination.
1.7
Grantee shall provide Cable Service under non-discriminatory rates and reasonable terms and
conditions to all Subscribers who reside in Living Units in any location where the Grantee is
capable of providing Cable Service. Grantee shall not arbitrarily refuse to provide Cable
Services to any Person or in any location where the Grantee is capable of providing Cable
Service. Any Qualified Living Unit should also include Commercially-Zoned Parcels.
“Commercially-Zoned Parcels” mean any street address or municipally identified lot or parcel of
real estate with a building. Grantee shall not deny Cable Services to any group of Subscribers or
potential residential Subscribers based upon the income level of residents of the local area in
which such group resides, nor shall Grantee base decisions about construction or maintenance of
its Cable System or facilities based upon the income level of residents of the local area in which
such group resides. Grantee shall provide such service at non-discriminatory monthly rates for
residential Subscribers, consistent with applicable federal, state, or local laws. Grantee shall not
discriminate between or among any individuals in the availability of Cable Service based upon
income in accordance and consistent with 47 U.S.C. Section 541(a) (3), or based upon race or
ethnicity.
Standard Installation.
1.8
Pursuant to Exhibit C attached hereto, Grantee shall provide Cable Services at its standard
installation rates within seven (7) days of a request by any Person residing in a Qualified Living
Unit in the City. A request shall be deemed made on the date of signing a service agreement,
receipt of funds by Grantee or receipt by Grantee of a verified verbal or written request. In
addition to the specific obligations set forth in Exhibit C attached hereto,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.
Multiple Dwelling Units.
1.9
The Grantee shall offer the individual units of a multiple dwelling unit all Cable Services offered
to other multiple dwelling units in the City. Grantee shall individually wire units upon request of
the property owner or renter who has been given written authorization by the owner. Such
offering is conditioned upon the Grantee having legal access to said unit,such unit is a Qualified
Living Unit, and payment for Grantee’s reasonableand legally permissiblecosts of internal
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wiring. The City acknowledges that the Grantee cannot control the dissemination of particular
Cable Services beyond the point of demarcation at a multiple dwelling unit.
SEC. 2. SHORT TITLE.
This Franchise shall be known and cited as the “City of Shakopee CenturyLink Cable
Franchise.” Within this document it shall also be referred to as “this Franchise” or “the
Franchise.”
SEC. 3. DEFINITIONS.
For the purpose of this Franchise, the following terms, phrases, words and their derivations shall
have the meaning 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. The words “shall” and “will” are
mandatory and “may” is permissive. Words not defined shall be given their commonand
ordinary meaning.
“Access Channel”means a video channel provided by Grantee to permit cable casting of public,
educational, governmental and other public interest programming.
“Basic Cable Service”means any Cable Service tier that includes the lawful retransmission of
local television broadcast signals and any Public, Educational, and Governmental Access
programming required by this Franchise to be carried on the basic tier. Basic Cable Service as
defined herein shall be consistent with 47 U.S.C. § 543(b)(7).
“Cable Act”means the Cable Communications Policy Act of 1984 (codified at 47 U.S.C. §§
521-611), as amended by the Cable Television Consumer Protection and Competition Act of
1992, and the Telecommunications Act of 1996, as may, from time to time, be amended.
“Cable Service”or “Service”means: the one-way transmission to Subscribers of (i) video
programming and/or (ii) other programming service and Subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming service.
“Cable System”or “System”means a system which operates the service of receiving and
amplifying video programs broadcast by one or more television stations and other programs, and
distributing those programs by wire, cable, microwave or other means, whether the means are
owned or leased, to persons who subscribe to the service. Unless otherwise specified, Cable
System in this document meansthe Cable System utilizedby the Grantee in the City.
“Channel”means a portion ofthe electromagnetic spectrum or fiber optic capacity that is capable
of carrying one video signal, in either analog or digital form.
“City”means the City of Shakopee, Minnesota.
“Drop”means the cable that connects the ground block to the nearest feeder cable of the System.
“FCC”means the Federal Communications Commission or a designated representative.
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“Franchise”means this Cable Franchise Ordinance and the rights and obligations extended
herein by the City to the Grantee to own, lease, construct, maintain, or operate a Cable System in
the Rights-of-Way in the City for the purpose of providing Cable Services.
“Franchise Area” means the present boundaries of the City of Shakopee, Minnesota, and shall
include any additions thereto by annexation or other legal means.
“Franchise Fee”means any tax, fee, or assessment of any kind imposed by the City or other
governmental entity on the Grantee solely because of its status and activities as such. The term
“Franchise Fee” does not include: (i) any tax, fee, or assessment of general applicability
(including any such tax, fee, or assessment imposed on both utilities and cableoperators or their
Services but not including a tax, fee, or assessment that is unduly discriminatory against cable
operators or cable Subscribers); (ii) capital costs that are required by the Franchise to be incurred
by the Grantee for PEG Access equipment and facilities; (iv) requirements or charges incidental
to the award or enforcement of a Franchise, including payments for bonds, security funds, letters
of credit, insurance, indemnification, penalties, or liquidated damages; or (v) any fee imposed
under Title 17 of the United States Code.
“FTTH” (“Fiber to the Home”) means fiber directly to the household.
“FTTN” (“Fiber to the Neighborhood”)means fiber directly to the neighborhood terminating at
remote terminals.
“Grantee”means Qwest Broadband Services, Inc., d/b/a/ CenturyLinkor its lawful successors,
transferees, or assignees.
“Gross Revenues”means all revenues received directly or indirectly by the Grantee, arising from
or in connection with the provision of Cable Service in the City including Subscriber revenues
(including pay TV), Franchise Fees, advertising income, home shopping program revenues and
rentals of Subscriber equipment, accounted for as earned in accordance with generally accepted
accounting principles. Grantee is not required to include revenues recorded as earned but which
are deemed uncollectible, but it must include recoveries previously deemed uncollectible. This
definition of Gross Revenues also does not include sales, excise or other taxes collected by
Grantee on behalf of federal, state, county, city or other governmental unit.Funds collected by
Grantee to support public, educational and governmental access programming are also excluded
from the definition of Gross Revenues.
“Living Unit”means a distinct address as tracked in the Qwest Corporation (“QC”) network
inventory, used by the Grantee to identify existing or potential Subscribers. This includes, but is
not limited to, single family homes, multi-dwelling units (e.g., apartment buildings and
condominiums) and business locations.
“Lockout Device”means a mechanical or electrical accessory to a Subscriber’s terminal that
inhibits the video or audio portions of a certain program or certain Channel(s) provided by way
of a Cable System.
“Person”means any corporation, partnership, proprietorship, individual, organization,
governmental entity or any natural person.
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“QC”means Qwest Corporation d/b/a CenturyLink (“QC”), an affiliate of Grantee.
“Qualified Living Unit”means any Living Unit which meets the minimum qualifications defined
by the Grantee for the provision of Cable Service. A Living Unit receiving a minimum of 25
Mbps downstream generally will be capable of receiving Cable Service subject to Company
performing certain network grooming and conditioning. For purposes of this definition of
Qualified Living Unit, “network grooming and conditioning” means evaluating existing QC
infrastructure and making improvements to allow greater data throughput.
“Right-of-Way”means the area on, below, or above a publicroadway, highway, street, cartway,
bicycle lane, and public sidewalk in which the local government unit has an interest, including
other dedicated rights-of-way for travel purposes and utility easements of local government
units. Right-of-Way does not include the airwaves above a Right-of-Way with regard to wireless
or other nonwire telecommunications or broadcast service.
“Set Top Box”means an electronic device which converts signals to a frequency acceptable to a
television receiver of a Subscriber andby an appropriate selector permits a Subscriber to view all
Subscriber signals included in the Subscriber’s service.
“Subscriber”means any Person who or which elects to subscribe for any purpose to Cable
Service provided by a Grantee by means of, or in connection with, the Cable System, and whose
premises or facilities are physically wired and lawfully activated to receive Cable Service from
Grantee’s Cable System, including Persons who receive Cable Servicewithout charge according
to the terms of the Franchise.
SEC. 4. FRANCHISE TERM.
This Franchise shall be in effect for a term of five (5) years from the effective date as referenced
in Section 26herein, unless terminated sooner as hereinafter provided. Six (6) months prior to
the expiration of the initial five (5) year term, if City determines that Grantee is in compliance
with all other material terms of this Franchise including the build out obligations set forth in this
Franchise as required by applicable federal, state, or local laws, the City shall have the unilateral
right to extend the Franchise for an additional term of no less than five (5) years and no more
than ten (10) years.
SEC. 5. WRITTEN NOTICE.
All notices, reports or demands required to be given inwriting under this Franchise shall be
deemed to be given when delivered personally to any officer of Grantee or City’s Administrator
of this Franchise or via registered or certified mail postage prepaid thereon, addressed to the
party to which notice is being given, as follows:
If to City:City Administrator
City of Shakopee
129 South Holmes Street
Shakopee, MN 55379
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If to Grantee:CenturyLink
th
1801 California Street, 10Floor
Denver, CO 80202
With a copy to:CenturyLink
Attn: Public Policy
thst
200 South 5Street, 21Floor
Minneapolis, MN 55402
Such addresses may be changed by either party upon notice to the other party given as provided
in this section.
SEC. 6. DESIGN PROVISIONS.
System Design.
6.1
A.The Cable System shall have a bandwidth capable of providing the equivalent of a
typical 750 MHz Cable System. Recognizing that the City has limited authority under federal
law to designate the technical method by which Granteeprovides Cable Service, as of the
effective date of this Franchise, Granteeprovides its Cable Service utilizing two (2) different
methods. First, using a PON platform, the Granteeprovides Cable Service to some Qualified
Living Units by connecting fiber directly to the household (“FTTP”). Second, the Grantee
provides Cable Service to some Qualified Living Units by deploying fiber further into the
neighborhoods and using the existing copper infrastructure to increase broadband speeds
(“FTTN”). Generally speaking, when Granteedeploys FTTN, households located within four
thousand (4,000)cable feet of a remote terminal shall receive broadband speeds capable of
providing Cable Service. In both the FTTP and FTTN footprint, a household receiving a
minimum of twenty-five (25) Mbps shall be generally capable of receiving Cable Service after
Granteeperforms certain network grooming and conditioning.
B.City shall have the right to inspect all System construction work performed by
Grantee.
Service to Schools and Government Buildings.
6.2
Serviceto City
A.. Upon ninety (90) days advance written notice from the City,
Grantee shall provide, free of charge and at no cost to the Cityor the school district,
complimentary service with the highest level of standard definition (“SD”) and high definition
(“HD”) Cable Service offered by Grantee, excluding pay-per-view, pay per channel (premium)
programming, high-speed data services or newly created non-video Cable Services
(“Complimentary City Service”)to:1) the newCity Hall located at 485 Gorman Street (“New
th
City Hall”);and 2) the High School at 100 17Avenue West.However, Grantee must provide
the New City Hall and the High Schoolany platform that includes the Access Channels.In
addition, the Grantee will also provide the New City Hall and the High School, free of charge
and at no cost, any equipment necessary to receive these services at up to seven (7)television
sets,as specified by the Cityand school district, which shall include SD, HD, VOD, and new
platforms, boxes, devices, remotes, and if applicable, digital television adaptors (DTAs).If
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changes in the technology used by the Grantee require additional equipment for reception of
Access Channels the Grantee shall make such equipment available at up to seven (7) television
sets free of charge and at no cost to the Cityand school district.
Service to Designated Public Buildings
B.. Upon request of the City, Granteeshall
provide, free of charge and at no cost, SD Cable Service (currently Prism Essentials) which, at a
minimum, shall include a package of Channels including all local broadcast and Access
Channels and at least one hundred (100) additional commercial Channels (but notincluding pay-
per-view or premium Channels, (“Complimentary Public Building Service”) including all
necessary SD and HD reception equipment for toup to three (3) television sets at all other
government buildings, schools and public libraries identified on Exhibit Battachedhereto and
made a part hereof.Exhibit Bmay be modified by the City from time to time to accommodate
changes in city/school/community facilities locations.Grantee shall provide the Complimentary
Public Building Service so long as these addresses in Exhibit B are designated as a Qualified
Living Unit and no other franchised cable communications provider is providing complimentary
service at such location.However, City may determine to disconnect the other franchised cable
communications provider and require Grantee to meet the Complimentary Public Building
Service obligations set forth herein, as determined in City’s sole discretion provided the selected
location is a Qualified Living Unit. For purposes of this subsection 6.2.B, “school” means all
state-accredited K-12 public and private schools. Complimentary Public Building Service
provided in accordance with this subsection may be used to distribute Cable Services throughout
such buildings provided such distribution can be accomplished without causing Cable System
disruption and general technical standards are maintained. Such outlets may only be used for
lawful purposes. Grantee shall provide,at itslowest retail rate offered in the market, HD Cable
Service as may be requested by any buildings receiving service under this Section 6.2.
C.Grantee agrees that if any broadband service is required in order to receive the
Complimentary Public BuildingServiceor Complimentary City Service obligations set forth in
this Section 6.2, Grantee will provide such broadband service free of charge for the sole purpose
of facilitating the provision free Cable Service required by Section 6.2.
D.Additional Subscriber network Drops and/or outlets in any of the locations
identified on Exhibit B will be installed by Granteeat the lowest actual cost of Grantee’s time
and materialconsistent with applicable law (“Actual Cost”). Grantee shall provide the Citywith
a complete and detailed cost estimate which shall include Grantee’s Actual Costs for any
additional Subscriber network Dropand/or outlets.Within no more than ninety (90) days
thereafter, the Cityshall work with institution requesting the additional Subscriber network Drop
and/or outletsand provide Grantee with written approval, if applicable, to move forward with the
additional Subscriber network Dropand/or outlets.Grantee shall only begin work on
construction of the additional Subscriber network Dropand/or outletsonce final approval is
received from the City, and Grantee shall complete construction within thirty (30) days from the
date of approval.Grantee shall bill the institution requesting the additional Subscriber network
Dropand/or outletsits Actual Costs in accordance with the agreed upon estimate.The terms and
conditions of such payment shall be between the Grantee and the institution. Alternatively, said
institutions may add outlets at their own expense, as long as such installation meets Grantee’s
standards and approval which approval shall not be unreasonably withheld. Grantee shall have
three (3) months from the date of City designation to complete construction of the Dropand/or
outletsunless weather or other conditions beyond the control of Grantee requires more time.
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E.Grantee agrees that it will not offset or reduce its payment of past, present or
future Franchise Fees required pursuant to Section 10.1of this Franchise, as a result of its
obligation to provide the services listed in Section 6.2 and Exhibit Bof this Franchise.
Lockout Device.
6.3
Grantee shall provide, for sale or lease, a Lockout Device to Subscribers, upon request.
Standby Power.
6.4
Grantee shall maintain standby power at the headend and any hubs.
Periodic Review Provisions.
6.5
The City may request a performance review at the secondand seventhanniversaries of the
effective date of this Franchise. In conducting such reviews, the City shall undertake the
following process:
A.The City and the Grantee shall undertakea review of the Cable System and
Franchise. This review shall, at a minimum, take into account the following:
1.Characteristics of the existing System;
2.The state-of-the-art;
3.Additionalbenefits provided to customersby System improvements;
4.The market placedemand for System improvements; and
5.The financial feasibility of System improvements taking into account the
cost.
B.The City mayhold a public hearing to enable the general public and Grantee to
comment and to present evidence.
C.As a result of any review based on this section, the City may request that the
Grantee enter into good faith negotiations to amend this Franchise.
Institutional Services
6.6
Grantee agrees that if any other franchised cable communications provider within the City
provides dark fiber between any public buildings or schools within the Cityfor continuous City
use, as a condition of a Cable Service franchise, and such condition results in additional costs
incurred by such other franchised cable communications provider, the Grantee shall meet with
the City upon request of the City to determine a fair and equitable capital contribution by the
Grantee to proportionately match said dark fiber obligations. If the City and Grantee are not able
to reach mutual agreementto resolve this issue, the Grantee and City agree to enter into binding
mediation to determine a fair and equitable contribution by the Grantee to proportionately match
(on a per month, per Subscriber basis)said additional dark fiber obligations.
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SEC. 7. PUBLIC, EDUCATIONAL AND GOVERNMENTAL ACCESS
PROGRAMMING.
Access Channels.
7.1
A.Grantee shall provide three (3) Access Channels for exclusive use by the City.
These three (3) Access Channels shall be provided in addition to carriage of Metro Cable
NetworkChannel 6. The City shall, in its discretion, program and operate the Access Channels
cablecast on the System.
1.The City and Grantee agree that governmental programming will not be
required to be carried until the construction of theNew City Hall is completeas such
completion date is specified by the City.Upon activation of the connection set forth in
Section 7.4 herein, Grantee shall provide one (1) Access Channel for governmental
programming.Until programming is added to the governmental Access Channel,
Grantee agrees that within one hundred twenty (120) days of the effective date of this
Franchise, Grantee shall notify Subscribers of the Channel location of the Shakopee
government Access Channel and that programming is “coming soon”or another mutually
agreed messagevia a postcard or other mailing to Subscribers. The postcard shall be
designed by the City and shall conform to the Grantee's standards and policies for size
and weight. Any postcard denigrating the Grantee, its service or its programming is not
permitted.
2.Within one hundred twenty (120) days of the commencement of this
Franchise, Grantee shall provide one (1) Access Channelfor educational programming.
3.The City and Grantee agree there is currently no public access
programming. City shall provide one hundred twenty (120) days advance written notice,
or a mutually agreed upon timeframe,before implementing Grantee’s carriage obligation
ofanypublic Access Channel.
B.The designated SD Access Channelnumbers shall be as follows:
1.Channel 240 for governmental programming;
2.Channel 8140 for educational programming; and
3.Channel 8141for public programming.
C.The designated HD Access Channel numbers shall be as follows:
1.Channel 1240 for governmental programming;
2.Channel 8640 for educational programming; and
3.Channel 8641for public programming.
D.Grantee shall not include any other programming on the Access Channelsunless
the City provides advance written consent. The Access Channels shall have video and audio
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signal strength, signal quality, and functionality equivalent to the highest quality broadcast and
commercial cable/satellite Channels carried by the Grantee on its Cable System.
E.The Grantee shall not charge Subscribers or the City for use of the Access
Channels, or any equipment, facilities or services provided by Grantee for the provision of the
Access Channels.
F.While the parties recognize that while the primary signals of local broadcast
stations are simulcast in SD and HD formats, the Grantee’s obligation with respect to carriage of
PEG in HD and SD formats shall be as follows:
1.Grantee agrees to carry any all Access Channels in HD provided the entity
originating the PEG signal provides the Grantee an HD signal. Further, Grantee will
downconvert any such signal to an SD format so that Subscribers who choose not to
subscribe to an HD package may receive said signal in an SD format; and
2.Grantee is not required to convert a signal delivered in a lower quality
format to a higher quality format.
3.All Access Channels must be receivable by Subscribers without special
expense in addition to the expense paid to receive commercial services the Subscriber
receives. City acknowledges that HD programming may require the viewer to have
special viewer equipment (such as an HDtelevisionand an HD-capable digital
device/receiver), but any Subscriber who can view an HD signal delivered via the Cable
System at a receiver shall also be able to view the HD Access Channels at that receiver,
without additional charges or equipment. By agreeing to make Access Channels
available in HD format, Grantee is not agreeing to provide free HD equipment to
Subscribers or to modify its equipment or pricing policies in any manner. City
acknowledges that not every Subscriber may be able toview HD PEG programming (for
example, because they do not have an HDtelevisionin their home or have chosen not to
take an HD-capable receiving device from Grantee or other equipment provider) on every
television in the home.
4.The Grantee shall provide all Access Channels on the Basic Cable Service
tier or the lowest cost tier of service throughout the life of the Franchise. Grantee shall at
all times provide the Access Channels to any Person who subscribes to any level of Cable
Service, and otherwise in accordance with federal and state law. The Grantee shall not
charge for use of the Access Channels, equipment, facilities or services.Grantee agrees
that Subscribers will not be required to obtain or pay for any additional equipment
required solely to receive the AccessChannels.
5.Grantee shall carry all components of the SD and HD PEG access signals
provided by the City,and will also ensure the Access Channels have the following
functionality, including but not limited to, closed captioning, multichannel television
sound, Channel recording or DVR(Digital Video Recorder)capability, last Channel
capability, active format description, andany captioning or text signals which are inserted
by Cityor passed-through by Cityon its Access Channels and other elements associated
with the PEG programming. Grantee shall not be required to carry anAccess Channel in
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a higher quality format than that of the signal delivered to Grantee, but Grantee shall
distribute all Access Channels without degradation.
G.To the extent technically feasible, Grantee shall, upon request from the City,
provide City with quarterly viewership numbers for each of the Access Channels carried on
Grantee’s Cable System.
H.Grantee shall include the Access Channels and programming information in any
electronic/interactive program guide, program listings, search options, record and DVR options,
navigation systems and search functions accessible through Grantee’s SetTop Box and remote
controls, or their successor technologies, provided to its Subscribers, including, but not limited to
on-screen, print and on-line program guides which include Channel and program listings of any
local broadcast Channels. AccessChannels and AccessChannel information shall be available
to Subscribers on the electronic/interactive program guide, program listings, search options, and
record and DVR options. AccessChannels and AccessChannel information shall be made
available to Subscribers the same way broadcast and commercial/cable satelliteChannels are
provided on the Cable System. Grantee shall bear all capital, implementation and operating costs
to include the basic programming information in the programming guides for the Access
Channels. Grantee shall facilitate carriage of AccessChannels program listings on its
electronic/interactive programming guide, free of charge and at no cost to the City, provided that
the City shall hold Grantee harmless should the City fail to provide correct or timely information
to the electronic/interactive guide programmers. The City shall have the right to pay for more
enhanced program information to be made available on the programming guides including the
Channel name(could be one (1), two (2) or all three (3) Access Channels, as the City determines
in its sole discretion)and logo/icon, program titles scheduled in thirty (30) minute time blocks,
program descriptions, information needed for search andrecord features, and any other
information similarly provided for other broadcast Channels and commercial cable/satellite
Channels. Grantee shall, to the maximum extent possible, make available to the City any price
discounts Grantee may have in place with third party vendors that offer such programming guide
services.
I.In the event the Grantee changesthe Access Channel designations (numbers), the
Grantee shall, to the extent possible, provide sixty (60) days prior written notice of such
change(s) to the City. In addition, the Grantee shall provide reasonable notice of such change(s)
to Subscribers via, for example, bill stuffers or a Channel crawl.
J.Grantee shall provide at least one (1) specially designated Access Channel
available for lease on a first come, nondiscriminatory basis by commercial and noncommercial
users.This section is not applicableto Subscribers receiving only alarm system services or only
data transmission services for computer operated functions. To the extent required by state law,
the VHF spectrum shall be used for at least one (1) of the specially designated noncommercial
public Access Channels required.
K.During the life of this Franchise should the incumbent cable provider add an
additional Access Channelbeyond the three (3) Access Channelsrequired by the incumbent
cable provider,Grantee shall then have six (6) months in which to provide an additional Access
Channel for the same purpose and at no additional cost to the Subscribersor to the City. At no
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time during the life of this Franchise shall the Grantee be required to provide a greater number of
Access Channels than the incumbent cable provider.
L.City shall, at times throughout the life of this Franchise, maintain in place rules
governing the use of Access Channels on the System and make the Access Channels and
programming equipment available for public, educational, andgovernmental access (“PEG
Access”) programming,as City deems appropriate.
Funding for PEG Access.
7.2
A.The PEG Fee, payable quarterly to the City, shall be forty cents ($.40)per
Subscriber, per month commencing on the effective date of this Franchise. In noevent shall the
PEG Fee be assessed in an amount different from that imposed upon the incumbent cable
provider. In the event the incumbent cable provider agrees to a higher or lower PEG Fee,
Grantee will increase or decrease its PEG fee upon sixty (60) days written notice from the City.
The PEG Fee may be used for operational or capital support of PEG programming as determined
in the City’s discretion.The PEG Fee may be included as a line item on the Subscribers monthly
billing statement to the extent permitted by applicable law.
B.Grantee agrees that financial support for PEG arising from or relating to the
obligations set forth in this section shall in no way modify or otherwise affect Grantee's
obligations to pay Franchise Fees to the City. Grantee agrees that although the sum of Franchise
Fees plus the payments set forth in this section may total more than five percent (5%) of
Grantee's Gross Revenues in any twelve (12) month period, the additional commitments shall not
be offset or otherwise creditedin any way against any Franchise Fee payments under this
Franchise.
Regional Channel Six.
7.3
Standard VHF Channel six (6) shall be designated for usage as a regional Channel, currently
known as Metro Cable Network, and shall be made available to Subscribers without charge
except for the applicable Basic Cable Service fee. This provision shall remain in effect as long
as a regional Channel is required by state law.
Live Cablecast Origination Points.
7.4
A.Grantee shall ensure that its System is constructed and configured to permit the
City or its designee to insert live programming, replay recorded programming, andtransmit
character generated programming from the followinglocations:
1.the NewCity Hall, 485 Gorman Street,with construction of the
connection by Grantee to be completed when construction of the New City Hall is
complete –the City shall establish the completion date of constructionwhich shall be
completed by Grantee no less than sixty (60 ) days following notice from the City;
th
2.the High School,100 17Avenue West,with construction of the
connection by Grantee to be completed no less than sixty (60 ) days following notice
from the City( such date shall be no sooner than January 1, 2017) and
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3.the Central Family Center, 505 Holmes Street, with construction of the
connection by Grantee to be completed within one hundred twenty (120)days of the
effective date of this Franchise.
The City may designate an alternative site(s) to replace one or more of the existing sites listed
above from which live programming, replay programming or transmit character generated
programming may be inserted; provided, however, that the City shall be solely responsible for,
and shall reimburse the Grantee for, any and all costs (including, but not limited to, time and
materials, reasonable overhead costs, permitting fees, additional pole attachment fees, etc.)
incurred by the Grantee in providing this service to such alternative site(s). The Grantee may
require payment in advance (subject to a true-up upon completion of the work). Following
receipt of the payment the Grantee shall commence any necessary work and the alternative site
shall be made available to the City within a reasonable period of time (taking in accounts such
factors as the amount of or nature of the work to be done, weather conditions, permitting, delays,
utility make-ready, etc.). The Grantee shall have no obligation to provide more than three (3)
live origination sites at any one time. Any written notice from the City designating an alternative
live origination site shall also designate the origination site being replaced. Upon activation of
the newly designated origination point the Grantee shall have no further responsibility for the
origination site being replaced.
B.Upon activation of service to the New City Hallas specified in Section 7.4 A
herein, Grantee shall provide, free of charge and at no cost to the City,a discrete, non-public,
video interconnect network, from an agreed upon demarcation point at the City's master control
facility at the New City Hall, to Grantee's headend. The video interconnect network shall
provide not less than fifty (50)Mbps of allocated bandwidth, allowing participating PEG entities
(including the City) thathave agreed with Grantee to share (send and receive) live and recorded
programming for playback on their respective systems. Where available the Grantee shall
provide the video interconnect network and the network equipment necessary, for the high-
priority transport of live multicast HD/SD video streams as well as lower-priority file-sharing.
Grantee shall provide a minimum of fifty (50)Mbps bandwidth for each participating PEG entity
to send its original programming, receive at least two (2) additionalmulticast HD/SD streams
from any other participating PEG entity, and allow the transfer of files. Each participating PEG
entity is responsible for encoding its own SD/HD content in suitable bit rates to be transported by
the video interconnect network without exceeding the fifty (50)Mbps of allocated bandwidth.
C.Grantee shall provide a 24 x 7 toll-free response phone number for technical
support staff who are trained to effectively respond to and resolve interconnectionrelated issues,
who will respond tourgent tech-support requests within fifteen (15) minutes and non-urgent
technical support requests within three (3) hours, depending upon the response time needed.
City technical staff will determine what requests are urgent or non-urgent. City agrees to use
best efforts to verify that the issue is not on the City’s side of the Demarcation Point before a call
is made to Grantee.
SEC. 8. PERIODIC CUSTOMER SURVEYS.
A.The Grantee shall, upon request of the City and at times mutually agreed upon by
the parties, but no more frequent than once every three (3) years, conduct a random survey of a
representative sample of Subscribers. Each questionnaire shall be prepared and conducted in
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good faith so as to provide a reasonably reliable measure of customer satisfaction with: (1) audio
and signal quality; (2) response to customer complaints; (3) billing practices; (4) programming;
and (5) installation practices.
B.The survey shall be conducted in conformity with standard research procedures
conducted by an independent Personin the business of regularly conducting such surveys. The
survey shall consist of a sample size sufficient to yield a margin of error of plus or minus six
percent (6%) or less of the total customer base.
C.The Grantee shall report the results of the surveyand any steps the Grantee may
be taking in response to the survey within sixty (60)days of the completion of the survey.
D.Notwithstanding anything to the contrary, the Grantee shall be under no
obligation to conduct a survey at any time unless the same obligation is required of all other
franchised cable operators providing Cable Services to the City.
E.Grantee acknowledges that the City shall at all times comply with the Minnesota
Data Practices Act (“MDPA”) related to the release of information and nothing herein shall be
read to modify the City’s obligations under the MDPA.
SEC. 9. LINE EXTENSION POLICY.
A.Grantee shall not have a line extension obligation until the first date by which
Grantee is providing Cable Service to more than fifty percent (50%) of all subscribers receiving
facilities based Cable Service from both the Grantee and any other provider(s) of Cable Service
within the City. At that time, the City, in its reasonable discretion and after meeting with
Grantee, shall determine the timeframe to complete deployment to the remaining households in
the City, including a density requirement that is the same or similar to the requirement of the
incumbent cable provider.
B.The City recognizes that in some instances the Grantee may need the permission
of private property owners to provideService. If the Grantee is unable to obtain such permission
on reasonable terms, the Grantee shall be under no obligation to provideService.
SEC. 10.GENERAL FINANCIAL AND INSURANCE PROVISIONS.
Payment to City.
10.1
A.Grantee shall pay to the City a Franchise Fee in an amount equal to five percent
(5%) of annual Gross Revenues. At no time during the term of this Franchise shall the Grantee
be required to pay a Franchise Fee that is a greater percentage of Gross Revenues than that paid
by any other franchisedcable operator providing Cable Service to the City.
B.The foregoing payment shall be compensation for use of the Rights-of-Way.
C.Payments due the City under this provision shall be computed at the end of each
calendar quarter. Payments shall be due and payable for each quarter not later than sixty (60)
days from the last day of the quarter. Each payment shall be accompanied by a brief report
showing the basis for the computation.
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D.In addition to Cable Service, the Grantee (either by itself or through one or more
affiliates) may provide information and telecommunications services. For purposes of
calculating the Franchise Fee when the Grantee packages or “bundles” Cable Services with other
services not subject to Franchise Fees, the Grantee shall allocate revenues and compute the
Franchise Fee due pursuant to this Franchise in accordance with EITF 00-21 or such
subsequently issued generally accepted accounting principles (“GAAP”) which amend or
supercede EITF 00-21, or as otherwise required by applicable law. In the event EITF 00-21 is
amended or superceded, the Grantee will notify the City of such change in its Franchise Fee
report required by Section 10.1 C.
E.No acceptance of any Franchise Fee payment shall be construed as an accord that
theamount paid is in fact the correct amount,nor shall such acceptance of payment be construed
as a release of any claim the City may have for further or additional sums payable under the
provisions of this Franchise. All amounts paid shall be subject to audit and recomputation by the
City. For purposes of conducting such an audit, the City or its agents may inspect Grantee’s
books or records relating to calculation of Gross Revenues and Franchise Fees upon ten (10)
days written notice.
F.In the event any payment is not made on the due date, interest on the amount due
shall accrue from such date at the annual rate of twelve percent (12%).
Bonds.
10.2
A.Within thirty (30) days ofthe commencement of this Franchise, Grantee shall
maintain with City a performance bond in the sum of Fifty Thousand and 00/100 Dollars
($50,000)in such form conditioned upon the faithful performance by Grantee of this Franchise.
B.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.
C.City may, in its sole discretion, reduce the amount of the bond.
Security Fund.
10.3
A.In the event the Grantee is given notice of a materialnon-compliance with this
Franchise pursuant to Section 10.3F of this Franchise, upon reasonable request from City, the
Grantee shall within ten (10) days thereof deposit into a bank account, established by the City,
and maintain on deposit the sum of Ten Thousand and 00/100 Dollars ($10,000.00) or deliver to
the City a letter of credit in such amount which shall be a security fund for the faithful
performance by it of all the material provisions of this Franchise which are subject of such
notice.Interest on this deposit shall be paid to Grantee by the bank on an annual basis. Grantee
will be provided, at a minimum, due process and opportunity to cure as set forth herein or as
otherwise provided in applicable law. The security may be terminated by the Grantee upon the
resolution of the alleged non-compliance.The obligation to establish the security fund required
by this paragraph is unconditional.The fund must be established whenever Grantee is given the
notice required, even if Grantee disputes the allegation that it is not in compliance.
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B.Provision shall be made to permit the City to withdraw funds from the security
fund. Grantee shall not use the security fund for other purposes and shall not assign, pledge or
otherwise use this security fund as security for any purpose.
C.Within ten (10) days after notice to it that any amount has been withdrawn by the
City from the security fund pursuant to (A) of this section, Grantee shall deposit a sum of money
sufficient to restore such security fund to the required amount.
D.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 which are the subject of
the notice set forth in Section 10.3C, City in its sole discretion may charge to and collect from
the security fund One Hundred and 00/100 Dollars ($100)per day for each day, or part thereof,
for non-compliance with any material provision of this Franchise.
E.If Grantee fails to pay to the City any generally applicable 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 material 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 10.1 of the Franchise.
F.Whenever the City has reason to believe that Grantee has allegedly violated one
or more material terms, conditions or provisions of this Franchise for which an enforcement
action is to be considered, 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 penalties,
and further to enforce payment of penalties through the security fund.
G.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. The City shall hear Grantee’s dispute at the next regularly scheduled or
specially scheduled Council meeting or at another time mutually agreed upon by the parties.
Grantee shall be entitled to the right to require the production of evidence and to question
witnesses. The City shall determine if Grantee has committed a violation and shall make written
findings of fact relative to its determination.
H.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 penalties due it or the Grantee may appeal such decision to a court of competent
jurisdiction.
I.The time for Grantee to correct any alleged violation shall be extended by the City
if the necessary action to correct the alleged violation is of such a nature or character as to
require more than thirty (30)days within which to perform, provided Grantee commences
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corrective action within fifteen (15)days and thereafter uses reasonable diligence, as determined
by the City, to correct the violation.
J.If City draws upon the security funddelivered pursuant hereto, in whole or in
part, Grantee shall replace the same within three (3) days and shall deliver to City a like
replacement security fund for the full amount stated in Paragraph A of this section as a
substitution of the previous security fund.
K.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 theobligations, 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.
L.The collection by City of any damages, monies or penalties from the security fund
shall not affect any other right or remedy available to City, nor shall any act, or failure to act, by
City pursuant to the security fund, be deemed a waiver of any right of City pursuant to this
Franchise or otherwise.
M.No penalty or sanction of any kind, including revocation or termination, may be
imposed when the action or omission is due to acts of God or reasons beyond the control of the
Grantee.
SEC. 11. RATES.
Current Subscriber rates and the standard form of Subscriber contracts shall be available for
inspection at all times.The City reserves the right to regulate ratesto the extent allowedby
applicable law.
SEC. 12. COMPETITION ADJUSTMENT.
Additional Franchises.
12.1
This Franchise is nonexclusive. Unless permitted by applicable law, the City shall not grant a
Franchise to another Grantee to operate a Cable System on terms and conditions which are less
burdensome or more favorable than the terms and conditions of this Franchise.
Competition.
12.2
If another wireline Multichannel Video Programming Distributor operates in the City’s Rights-
of-Way without City authorization, either in the form of a Franchise or other legally required
authorization, and the City has clear and express authority under applicable laws to mandate a
Franchise or other legally required authorization on that wirelineMultichannel Video
Programming Distributor but fails to do so, then Grantee shall not be required to comply with
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those terms of this Franchise which are not also imposed upon the other wirelineMultichannel
Video Programming Distributor.
SEC. 13. REPAIRS AND MAINTENANCE/CONSUMER PROTECTION.
Consumer Complaints.
13.1
Any Person may file complaints regarding quality of service, equipment malfunction, billing
disputes, or other matters pertaining to the Cable System by contacting the Grantee during
normal business hours.
Local Office.
13.2
During the term of the Franchise the Grantee shall comply with either A or B below:
A.Grantee shall maintain a customer payment center in the City, or within twelve
(12) miles of the City’s northern border, which shall permit Subscribers to pay their billsand
receive information on the Grantee and its services.
B.Grantee shall maintain convenient local Subscriber service and bill payment
locations for the purpose of receiving Subscriber payments or equipment returns. Unless
otherwise requested by the Subscriber, Grantee shall deliver replacement equipment directly to
the Subscriber at no cost to the Subscriber. The Grantee shall maintain a business office or
offices for the purpose of receiving and resolving all complaints regarding the quality of service,
equipment malfunctions, billings disputes and similar matters. The office must be reachable by a
local, toll-free telephone call, and Grantee shall provide the City with the name, address and
telephone number of an office that will act as the Grantee’s agent to receive complaints,
regarding quality of service, equipment malfunctions, billings, and similar matters. At a
minimum Grantee shall also provide the following:
1.Subscribers can remit payments at multiple third party commercial
locations within the City (such as grocery stores or the Western Union).
2.Grantee will provide a service technician to any Qualified Living Unit in
the City, free of charge to the Subscriber, where necessary to replace or troubleshoot
equipment issues.
3.Subscribers shall be able to return and receive equipment, free of charge,
via national overnight courier service (such as Fed Ex or UPS) if a service technician is
not required to visit the Subscriber’s Qualified Living Unit.
4.In the event Grantee provides Cable Service to a minimum of thirty
percent (30%) of the total number of Cable Service Subscribers in the City served by
cable operators franchised by the City, the Grantee shall then be required to also comply
with the requirements of Section 13.2Aabove.
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Repairs and Maintenance.
13.3
Grantee shall maintain a publicly listed toll-free or local telephone line. Calls about Service
problems during normal business hours will be handled by the Grantee’s Customer Service
Representatives (CSRs). When possible, problems will be resolved over the phone. Subscribers
may be charged for onsiteservice calls.
Customer Service Standards.
13.4
Grantee shall, at all times, comply with the rules regarding customer serviceset forth herein as
Exhibit C. The City reserves and does not waive its rights, if any, to adopt additional or
modified consumer protection requirements. Grantee reserves the right to challenge any
additional or modified requirements including City’s right to adopt such requirements.
SEC. 14. SUBSCRIBER PRIVACY.
The following provisions regarding Subscriber privacy shall govern unless otherwise governed
under federal law:
A.No signals of a Class IV cable communications channel may be transmitted from
a Subscriber terminal for purposes of monitoring individual viewing patternsor practices without
the express written permission of the Subscriber. The request for such permission mustbe
contained in a separate document with a prominent statement that the Subscriber is authorizing
the permission in full knowledge of its provisions. Thewritten permission mustbe for a limited
period of time not to exceed one (1) year which is renewableat the option of the Subscriber. No
penalty shall be invoked for a Subscriber’s failure to provide or renew such authorization. The
authorization is revocable at any time by the Subscriber without penalty of any kind.
B.No information or data obtained by monitoring transmission of a signal from a
Subscriber terminal, includingbut not limited to all lists of the names and addresses of the
Subscribers or any lists that identify the viewing habits of Subscribers maybe sold or otherwise
made available to any Personother than to Grantee and its employees for internal business use,
or to the Subscriber who is the subject of that information, unless Grantee has received specific
written authorization from the Subscriber to make such data available.
C.Written permission from the Subscriber mustnot be required for the systems
conducting systemwide or individually addressed electronic sweeps for the purpose of verifying
Cable System integrity or monitoring for the purpose of billing. Confidentiality of this
informationis subject to paragraph B above.
D.For the purposes of this provision, a Class IV cable communications channel
means a signaling path provided by the Cable System to transmit signals of any type from a
Subscriber terminal to another point in the Cable System.
SEC. 15. INDEMNIFICATION AND LIABILITYINSURANCE.
A.The Grantee shall indemnify and hold harmless the City, the City Council and all
City employees and commissions, from any suit, claim or demand whatsoever which may be
asserted or recovered against it based upon or arising out of the exercise of this Franchise or
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Grantee’s construction, maintenance, or operation of the System or any part thereof provided that
such suit, claim, or demand is not based upon the City’s own intentional or negligent conduct.
The City agrees to notify Grantee, in writing and within forty-eight (48) hours, (unless
notification within forty-eight (48) hours would be unreasonable due to extraordinary
circumstances), of any claim or suit against the City for which Grantee may be required to
indemnify the City. In the event Grantee is required to defend the City in connection with this
section, the City agrees to tender control of its defense counsel. The City agrees to cooperate in
its own defense. Nothing herein waives or restricts any limitation on City’s liability pursuant to
Minnesota Statutes 466.
B.Grantee shall contemporaneously with this Franchise execute an Indemnity
Agreement in a form acceptable to the Cityattached hereto as Exhibit D, which shall indemnify,
defend and hold the City harmless for any claim for injury, damage, loss, liability, cost or
expense, including court and appeal costs and reasonable attorneys’ fees or reasonable expenses
arising out of the actions of the City in granting this Franchise. This obligation includes any
claims by another franchised cable operator against the City that the terms and conditions of this
Franchise are less burdensome than another franchise granted by the City or that this Franchise
does not satisfy the requirements of applicable federal, state, or local laws.
C.Liability insurance.
1.Grantee shall maintain throughout the term of this Franchise public
liability, property damage and liability insurance policies naming the City, the City
Council and all City employees and commissions, as named additional insureds.
$1,000,000.00 for property damage to any one Person
$1,000,000.00 for property damage in any one occurrence,
$1,000,000.00 for bodily injury to any one Person,
$1,000,000.00 for bodily injury in any one occurrence,
2.The insurance shall be obtained from a company licensed to do business in
Minnesota. The Grantee shall provide a certificate of coverage to the City. The policy
shall either state that the City shall be notified in writing by the insurer thirty (30)days in
advance of any cancellation or termination of any such policyor, in the alternative,
Grantee shall provide immediate written notice to City whenever a cancellation or
terminationnotice is received by Grantee and Grantee shall thereafter undertake
immediate steps to secure a replacement policy which meets the obligations set forth
herein.
SEC. 16. ADMINISTRATION.
The Shakopee City Administrator or theirdesignee is responsible for the continuing
administration of the Franchise.
SEC. 17. REDRESS.
In the event the Grantee fails to perform and carry out any material provision of this Franchise,
attempts to evade the provisions of the Franchise, or practices fraud or deceit upon the City
(collectively, a “Breach”) the City may enforce or terminate the Franchise. The City shall give
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Grantee written notice ofthe specific provision(s) violated or that Grantee has failed to perform.
After written notice has been given to the Grantee, the Grantee shall have thirty (30)days’time
in which to remedy any failure.If the Grantee has not cured any failure upon theexpiration of
the thirty (30) day period, the City may take such steps as it deems necessary to enforce the
Franchise; provided, however, that before the Franchise may be terminated, the Grantee shall be
provided with an opportunity to be heard before theCity Council to contest the City’s
determination.
SEC. 18. TRANSFER OR ASSIGNMENT.
A.“Fundamental corporate change” means the sale or transfer of a majority of a
corporation’s assets; merger, including parent and its subsidiary corporation; consolidation; or
creation of a subsidiary corporation.
B.A sale or transfer of this Franchise, including a sale or transfer by means of a
fundamental corporate change, or a mortgage, lease, or assignment of the Franchise, requires the
prior written consent of the City by resolution of the Council in accordance with all terms and
conditions set forth in said resolution, which consent shall not be unreasonably withheld. This
provision shall not prohibit the use of the System as collateral for loans.
C.Notwithstanding the foregoing, for purposes of permitting internal corporate
restructuring or consolidation, the City hereby consents to any sale or transfer of this Franchise
to any Person controlling, controlled by or under common control with the Grantee. For
purposes of this paragraph, the word “control” means the authority to make or exercise decisions
regarding the day-to-day operation of the business (i.e. decisions regarding programming, rates,
customer service, etc.).
SEC. 19. RIGHT TO PURCHASE.
A.If the System is offered for sale, the City shall have the non-exclusive right to
purchase the System under the following conditions:
1.Grantee shall immediately notify the City in writing in the event it
receives an offer from a third party to purchase the System. Within thirty (30)days after
the City receives such notice, the City shall notify Grantee whether the City intends to
purchase the System.
2.If the City elects to purchase the System, the price, terms and conditions
of the City’s purchase shall be the same as those set forth in the offer. If the City fails to
offer to purchase the System on terms and conditions which match or exceed those of the
offer within thirty (30)days after the City receives notification of the bona fide offer,
then Grantee is free to sell the System.
3.The City’s rights pursuant to this section are not triggered by the sale or
transfer of stock that creates a new controlling interest in the Grantee and are not
triggered by any fundamental corporate change in the Grantee.
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SEC. 20. FORCE MAJEURE.
The Grantee shall not be deemed in default of provisions of this Franchise where performance
was rendered impossible by war or riots, labor strikes or civil disturbances, floods, or other
causes beyond the Grantee’s control, and the Franchise shall not be revoked or the Grantee
penalized for such noncompliance, provided that the Grantee, when possible, takes immediate
and diligentsteps to bring itself back into compliance and to comply as soon as possible, under
the circumstances, with the Franchise without unduly endangering the health, safety and integrity
of the Grantee’s employees or property, or the health, safety and integrity of the public, the
Rights-of-Way, public property or private property. In the event Grantee’s performance of any
of the terms, conditions, obligations or requirements of this Franchise is prevented or impaired
due to any cause set forth in this paragraph, such inability to perform shall be deemed to be
excused for the period of such inability and no penalties or sanctions shall be imposed as a result
thereof, provided Grantee has notified City in writing within ten (10) days of the City’s notice of
an alleged violation.
SEC. 21. ACCEPTANCE SECTION.
A.Grantee shall executethis Franchise within thirty (30)daysof adoption by City.
Such executionby Grantee shall be deemed itsacceptanceof this Franchise for all purposes.
Two (2) copies of the executed Franchiseshall be returned to the City. Grantee shall also
provide City with performance bonds and evidence of insurance, all as provided in this
Franchise. The City’s “Notice of Intent to Consider an Application for a Franchise” (“Notice”)
provided, consistent with Minn. Stat. 238.081 subd. 8, that applicants would be required to
reimburse the City for all necessary costs of processing a cable communications franchise.
Grantee submitted an application fee with its application to the City. The Notice further
provided that any unused portion of the application fee would be returned and any additional fees
required to process the application and franchise, beyond the application fee, would be assessed
to the successful applicant. The Grantee shall therefore submit to the City within thirty (30) days
of receipt of notice from the City, a check made payable to the City of Shakopee, Minnesota for
all additional fees and costs incurred by the City. The City shall provide Grantee with a letter
specifying such additional costs following approval of this Franchise by the City Council. In the
event Grantee fails to accept this Franchise, or fails to provide the required documents and
payments, this Franchise shall be null and void.
B.Upon acceptance of this Franchise, Grantee shall be bound by all the terms and
conditions contained in this Ordinance.
C.At the time of acceptance, Grantee shall provide a copy of its Channel line-up
which shall be attached hereto as Exhibit E.
D.The effective date of this Franchise shall be the date set forth below.
SEC. 22. MISCELLANEOUS
A.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 to enforce prompt compliance.
B.Upon request, the Grantee shall:
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1.allow the City,where necessary for the enforcement of this Franchise or to
evaluate Grantee’s compliance with this Franchise, to inspect its books and records
related to operation of the System including communications or filings with regulatory
authorities;
2.furnish to City such additional reasonable reports and within the Grantee’s
technical capability with respect to Grantee’s compliance with this Franchise.
C.Both the City and Grantee expressly reserve any and all rights that either may
now have or be hereafter granted under applicable state and federal law. Nothing in this
Franchise shall be deemed to be or construed as a waiver, right, release or surrender of any right
by the City or the Grantee.
SEC. 23. SUMMARY
The City Council herein determines that the text of the summary ordinance marked “Official
Summary of Ordinance ,” a copy of which is attached hereto, clearly informs the
public of the intent and effect of the ordinance. The Council further determines that publication
of the title and such summary will clearly inform the public of the intent and effect of the
ordinance.
SEC. 24. POSTING AND FILING
A copy of this ordinance is filed in the office of the City Clerk and a copy is provided to the
Shakopee Public Library for posting and filing, at which locations a copy is available for
inspection by any Person during regular business hours.
SEC. 25. TITLE
The City Clerk shall publish the title of this ordinance and the official summary in the official
newspaper with notice that a printed copy of the ordinance is available for inspection by any
Person during regular office hours at the office of the City Clerk.
SEC. 26. EFFECTIVE DATE
This ordinance becomes effective from and after its passage and publication.
Adopted in adj. reg. session of the City Council of the City of Shakopee, Minnesota held this 3rd
day of August, 2016.
CITY OF SHAKOPEE, MINNESOTA
ATTEST:Mayor
City Clerk
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IN WITNESS WHEREOF, Grantee has executed this Franchise the date and year first above
written.
QWEST BROADBAND SERVICES, INC.,
D/B/A CENTURYLINK
(Corporate Seal)By
STATE OF
COUNTYOF
The foregoing instrument was acknowledged before me on , 2016,by
theofQwest Broadband Services, Inc.d/b/a
CenturyLink, on behalf of the Company.
NOTARY PUBLIC
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EXHIBIT A
QUARTERLY MEETING REPORT
Total% of LUs
QuarterlyTotal Living QualifiedIn Excess AdditionalRequired to be
MeetingUnits (LUs) Living Units % of LUs Total QLUs % of QLUs of 27.5% 15%Served within
YearDatein the City(QLU)QualifiedServedServedY or NRequired24 months
Franchise Effective
Date
1st Quarter
2nd Quarter
3rd Quarter
4th Quarter
A-1
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EXHIBITB
CABLE SERVICE TO PUBLIC BUILDINGS
th
Shakopee Jr. High SchoolWest, 200 10Avenue East
Shakopee Jr. High School East, 1137 Marschall Road
Pearson Elementary School, 917 Dakota Street South
Sweeney, 1001 Adams Street South
th
Sun Path, 2250 17Avenue East
Eagle Creek, 6855 Woodward Avenue
Red Oak, 7700 Old Carriage Court
Shakopee School DistrictOffice, 1200 Shakopee Town Square
Shakopee School District Alternative LearningCenter, 1110 Shakopee Town Square Mall
Shakopee Public Library, 235 Lewis Street South
*
Shakopee Fire Station#1,1001 Vierling Drive West
Shakopee Fire Station #2, 2700 Vierling Drive East
*
Shakopee Police Station, 475 Gorman Street
Shakopee Public Works, 400 Gorman Street
Shakopee Public Utilities Commission Headquarters, 255 Sarazin Street
Shakopee Community Center, 1255 FullerStreet
Central Family Center, 505 Holmes Street
Note:Complimentary Cable Services shall be provided to the New City Hall and the High
School in accordance with the requirements of Section 6.2A of the Franchise.
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EXHIBIT C
FCC CUSTOMER SERVICE STANDARDS
(1) Cable system office hours and telephone availability --
(i) The cable operator 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.
(A) Trained company representatives will be available to respond to customer telephone
inquiries during normal business hours.
(B) 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 company representative on the next business day.
(ii) 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 (90) percent of the time under normal operating conditions, measured
on a quarterly basis.
(iii) The operator will 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.
(iv) Under normal operating conditions, the customer will receive a busy signal less than three
(3) percent of the time.
(v) Customer service center and bill payment locations will be open at least during normal
business hours and will be conveniently located.
(2) Installations, outages and service calls. Under normal operating conditions, each of the
following four standards will be met no less than ninety five (95) percent of the time measured
on a quarterly basis:
(i) Standard installations will be performed within seven (7) business days after an order has
been placed. “Standard” installations are defined in Section 1.8 of the Franchise.
(ii) Excluding conditions beyond the control of the operator, the cable operator will begin
working on “service interruptions” promptly and in no event later than twenty-four (24)hours
after the interruption becomes known. The cable operator must begin actions to correct other
service problems the next business day after notification of the service problem.
(ii) The “appointment window” alternatives for installations, service calls, and other installation
activities will be either a specific time or, at maximum, a four-hour time block during normal
business hours. (The operator may schedule service calls and other installation activities outside
of normal businesshours for the express convenience of the customer.)
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(iv) An operator may not cancel an appointment with a customer after the close of business on
the business day prior to the scheduled appointment.
(v) If a cable operator 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.
(3) Communications between cable operators and cable Subscribers --
(i) Refunds --Refund checks will be issued promptly, but no later than either --
(A) The customer’s next billing cycle following resolution of the request or thirty (30) days,
whichever is earlier, or
(B) The return ofthe equipment supplied by the cable operator if service is terminated.
(ii) Credits --Credits for service will be issued no later than the customer’s next billing cycle
following the determination that a credit is warranted.
(4) Definitions --
(i)Normalbusiness hours --The term “normal business hours” means those hours during which
most similar businesses in the community 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.
(ii)Normal operating conditions --The term “normal operating conditions” means those service
conditions which are within the control of the cable operator. Those conditions which are not
within the control of the cable operator include, but are not limited to, natural disasters, civil
disturbances, power outages, telephone network outages, and severe or unusual weather
conditions. Those conditions which areordinarily within the control of the cable operator
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.
(iii)Service interruption --The term “service interruption” means the loss of picture or sound on
one or more cable channels.
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EXHIBIT D
INDEMNITY AGREEMENT
INDEMNITY AGREEMENT
made this 3rdday ofAugust, 2016, by and between
Qwest Broadband Services, Inc., a Delaware Corporation, party of the first part, hereinafter
called “CenturyLink,” and the City of Shakopee, a Minnesota Municipal Corporation, party of
the second part, hereinafter called “City.”
WITNESSETH
:
WHEREAS
, the City of Shakopeehas awarded to Qwest Broadband Services, Inc. a
franchise for the operation of a cable communications system in the City of Shakopee; and
WHEREAS
, the City has required, as a condition of its award of a cable communications
franchise, that it be indemnified with respect to all claims and actions arising from the award of
said franchise,
NOW THEREFORE
, in consideration of the foregoing promises and the mutual
promises contained in this agreement and in consideration of entering into a cable television
franchise agreement and other good and valuable consideration, receipt of which is hereby
acknowledged, CenturyLink hereby agrees, at its sole cost and expense, to fully indemnify,
defend and hold harmless the City, its officers, boards, commissions, employees and agents
against any and all claims, suits, actions, liabilities and judgments for damages, cost or expense
(including, but not limited to, court and appeal costs and reasonable attorneys’ fees and
disbursements assumed or incurred by the City in connection therewith) arising out of the actions
of the City in granting a franchise to CenturyLink. This includes any claims by another
franchised cable operator against the City that the terms and conditions of the CenturyLink
franchise are less burdensome than another franchise granted by the City or that the CenturyLink
Franchise does not satisfy the requirements of applicable federal, state, or local law(s). The
indemnification provided for herein shall not extend or apply to any acts of the City constituting
a violation or breach by the City of the contractual provisions of the franchise ordinance, unless
such acts are the result of a change in applicable law, the order of a court or administrative
agency, or are caused by the acts of CenturyLink.
The City shall give CenturyLink reasonable notice of the making of any claim or the
commencement of any action, suit or other proceeding covered by this agreement. The City shall
cooperate with CenturyLink in the defense of any such action, suit or other proceeding at the
request of CenturyLink. The City may participate in the defense of a claim, but if CenturyLink
provides a defense at CenturyLink’s expense then CenturyLink shall not be liable for any
attorneys’ fees, expenses or other costs that the City may incur if it chooses to participate in the
defense of a claim, unless and until separate representation is required. If separate representation
to fully protect the interests of both parties is or becomes necessary, such as a conflict of interest,
in accordance with the Minnesota Rules of Professional Conduct, between the City and the
counsel selected by CenturyLink to represent the City, CenturyLink shall pay, from the date such
separate representation is required forward, allreasonable expenses incurred by the City in
defending itself with regard to any action, suit or proceeding indemnified by CenturyLink.
Provided, however, that in the event that such separate representation is or becomes necessary,
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and the City desires tohire counsel or any other outside experts or consultants and desires
CenturyLink to pay those expenses, then the City shall be required to obtain CenturyLink’s
consent to the engagement of such counsel, experts or consultants, such consent not to be
unreasonably withheld. Notwithstanding the foregoing, the parties agree that the City may
utilize at any time, at its own cost and expense, its own City Attorney or outside counsel with
respect to any claim brought by another franchised cable operator as described in this agreement.
The provisions of this agreement shall not be construed to constitute an amendment of the
cable communications franchise ordinance or any portion thereof, but shall be in addition to and
independent of any other similar provisions contained in the cable communications franchise
ordinance or any other agreement of the parties hereto. The provisions of this agreement shall
not be dependent or conditioned upon the validity of the cable communications franchise
ordinance or the validityof any of the procedures or agreements involved in the award or
acceptance of the franchise, but shall be and remain a binding obligation of the parties hereto
even if the cable communications franchise ordinance or the grant of the franchise is declared
null and void in a legal or administrative proceeding.
It is the purpose of this agreement to provide maximum indemnification to the City under
the terms set out herein and, in the event of a dispute as to the meaning of this Indemnity
Agreement, it shallbe construed, to the greatest extent permitted by law, to provide for the
indemnification of the City by CenturyLink. This agreement shall be a binding obligation of and
shall inure to the benefit of, the parties hereto and their successor's and assigns, if any.
QWEST BROADBAND SERVICES, INC.
Dated:, 2016By:
Its:
STATE OF LOUISIANA )
) SS
)
The foregoing instrument was acknowledged before me this day of 2016,
by, the ofQwest
Broadband Services, Inc., a Delaware Corporation, on behalf of the corporation.
Commission Expires Notary Public
CITY OF
By:
Its:
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EXHIBITE
CHANNEL LINE-UP
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Official Summary of Ordinance No. 939
The following is the official summary of Ordinance No.939, City of Shakopee CenturyLink
Cable Franchise, approved by the City Council of the City of Shakopee, Minnesota on August 3,
2016.
Ordinance No. 939Grant of CenturyLink Cable Franchise
1.Franchise Term-CenturyLink has been issued a 5 year franchise.
2.PEG Access Support (Public, Education, and Government)-Under the franchise,
CenturyLink will provide three (3) PEG Access Channels, equipment, and facilities and to
manage PEG access programming and production. One (1) channel is used for government
services like broadcasting City Council meetings, one (1) for public purposes to broadcast
community events or public service announcements and one (1) for education to broadcast
educational activities.
3.Service to Public Institutions-Public schools, and municipal buildings may receive free
cable service from Grantee so long as those locations are Qualified Living Units and not
currently receiving service from another franchised cable provider.
4.Local Office-Grantee will comply with either of the following options: A) maintain a
customer payment centerin the City or within 12 miles of the City’s northern border; or B)
maintain convenient local Subscriber service and bill payment locations and a business office
reachable by local, toll-free telephone call for purposes of receiving and resolving complaints,
billing disputes, etc.
5.Franchise Fee-The City will receive 5% of Gross Revenues from Grantee on cable
services, not information services like cable modems.
6.PEG Fee-The City will also receive $.40/customer/month for public, educational and
government purposes (PEG).
7.Bundling Standard-Grantee will comply with GAAP section EITF 00-21 when offering
bundling and/or discounted information, telecommunication and cable services to Shakopee
residents to ensure a fair and equitable method of calculation.
A printed copy of the ordinance is available for inspection by any person at the office of the City
Clerk and the Shakopee Public Library.
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CITY OF SHAKOPEE, MINNESOTA
RESOLUTION NO. 7755
Regarding an Ordinance Granting a Competitive Cable Franchise
to Qwest Broadband Services, Inc., d/b/a CenturyLink
RECITALS:
WHEREAS, the City of Shakopee, Minnesota makes the following FINDINGS OF FACT:
1.In March 2015, Qwest Broadband Services, Inc., d/b/a CenturyLink, Inc. (“CenturyLink”)
requested that the City of Shakopee, Minnesota (“City”) initiate proceedings to consider
awarding it a franchise to provide cable communications services in the City (“Service
Territory”).
2.ComcastofArkansas/Florida/Louisiana/Minnesota/Mississippi/Tennessee, Inc.
(“Comcast”) holds a non-exclusive cable communications franchise for the Service
Territory (“Comcast Franchise”).
3.The Comcast Franchise, which the City last renewed on or about July 20, 2004, is
currently the only cable communications franchise for the Service Territory.
4.The monopoly held by a sole cable communication provider in a particular market is a
barrier to entry for additional providers, which do not have a captive market but must
1
instead “win” every subscriber.
5.The presence of a second cable operator in a market improves the quality of service
2
offerings and drives down prices by approximately fifteen percent (15%).
6.On April 16, 2015 and April 23, 2015, the City published a Notice of Intent to Franchise
a Cable Communications System (“Notice”) in the Shakopee Valley News, a newspaper
of general circulation in the Service Territory.
7.The Notice indicated that the City was soliciting franchise applicationsand provided
information regarding the application process, including that applications were required
to be submitted on or before May 15, 2015 and that a public hearing to hear proposals
from applicants would be held by the City on June 16, 2015 at 7:00 p.m.
8.The City also mailed copies of the Notice and application materials to CenturyLink and
3
Comcast.
1
, Report and Order and Further Notice of Proposed
Rulemaking, MB Docket No. 05-311, at ¶ 138 (Rel. Mar. 5, 2007) (“621 Order”).
2
at ¶¶ 2, 50.
3
Notice by the City of Shakopee, Minnesota of Its Intent to Consider An Application for a Franchise and Request for
Proposals -Official Application Form.
1
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9.On May 13, 2015, the City received an application from CenturyLink (the “CenturyLink
Application”). The City did not receive any other applications.
10.On June 16, 2015, Comcast submitted a letter to the City setting forth its position
4
regarding the CenturyLink Application (“Comcast Letter”).
11.The Comcast Letter expresses concern about CenturyLink’s proposal and how
5
CenturyLink will be held to particular provisions of the existing Comcast Franchise.
12.The Comcast Letter also summarizes Comcast’s position regarding build-out
6
requirements and other proposed terms related to competition in the cable industry.
13.As provided by the Notice, on June 16, 2015 the City held a public hearing during the
City’s regularly scheduled meeting to consider CenturyLink’s application and
qualifications.
14.During the June 16, 2015 hearing, CenturyLink presented its proposal and all other
interested parties were provided an opportunityto speak and present information to the
City regarding the CenturyLink Application.
15.The law firm of Moss & Barnett, a Professional Association prepared a report, dated
June 29, 2015 (“Franchise Report”), reviewing and analyzing the applicable franchising
procedures, the CenturyLink Application and other information provided by CenturyLink
7
in connection with the June 16, 2015 public hearing.
16.The Franchise Report identifies and discusses federal and state legal requirements
relevant to the City’s consideration of the CenturyLink Application, including laws
8
pertaining to franchising procedures and competition between providers.
17.The Franchise Report also analyzes information provided by CenturyLink to establish its
9
qualifications to operate a cable communications franchise in the Service Territory.
18.At its meeting on August 18, 2015, the City considered the Franchise Report, along with
the information and documentation it had received regarding the CenturyLink
Application, and adopted a resolution finding and concluding that the CenturyLink
Application complied with the requirements of Minn. Stat. § 238.081 and that
CenturyLink is legally, technically, and financially qualified to operate a cable
communications system within the Service Territory.
4
June 16, 2015 letter from Emmett V. Coleman, Vice President Government Affairs for Comcastto Mr. John
Peterson, Telecommunications Coordinator for the City of Shakopee, regarding CenturyLink Video Franchise
Application.
5
at 2.
6
at 1-2.
7
Report to the City of Shakopee, Minnesota Regarding Qwest Broadband Services, Inc. d/b/a/ CenturyLink –
Proposal for a Cable Communication Franchise, June 29, 2015.
8
Franchise Report at 2-9.
9
at 11-12.
2
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19.As a result of its determination that CenturyLink complied with all application
requirements and is a qualified applicant, the City authorized staff to negotiate with
CenturyLink to attempt to reach mutually acceptable terms for such a franchise.
20.In Minnesota, both state and federal law govern the terms and conditions of an
10
additional cable communications franchise in an already-franchised service area.
21.The franchising authority may not grant an exclusive franchise or unreasonably refuse to
11
award an additional competitive franchise.
22.The franchising authority must allow an applicant reasonable time to become capable of
12
providing cable service to all households in the service area.
23.The franchising authority may grant an additional franchise in an already-franchised
service area if the terms and conditions of the additional franchise are not “more
favorable or less burdensome than those in the existing franchise” regarding the area
13
served, the PEG access requirements, and franchise fees.
24.The additional franchise mustalso include, among other things, “a schedule showing . .
. that the construction throughout the authorized franchise area must be substantially
14
completed within five years of the granting of the franchise.”
25.In order to ensure that any additional franchise granted to CenturyLink would contain
substantially similar service area, PEG access requirements, and franchise fees to the
Comcast Franchise, the City used the Comcast Franchise as the base document for its
negotiations.
26.On July28, 2016, the City Council gave notice that it intended to introduce an ordinance
granting a cable communications franchise to CenturyLink.
27.Copies of the CenturyLink Franchise were made available to the public, including
Comcast, on or about July28, 2016.
28.On August 3, 2016, the City Council introduced Ordinance No. , an Ordinance of the
City of Shakopee, Minnesota Granting a Cable Communications Franchise to Qwest
Broadband Services, Inc. d/b/a CenturyLink (“CenturyLink Franchise”).
29.The CenturyLink Franchise encompasses the same Service Territory encompassed by the
15
Comcast Franchise.
30.The franchise fee percentage required by the CenturyLink Franchise is identical to that
16
required by the Comcast Franchise.
10
47 U.S.C. § 541(a)(1); Minn. Stat. §§ 238.08, .084; Franchise Report at 2-8.
11
47 U.S.C. § 541(a)(1).
12
47 U.S.C. § 541(a)(4).
13
Minn. Stat. § 238.08, subd. 1(b).
14
Minn. Stat. § 238.84, subd. 1(m).
15
CenturyLink Franchise §1.2; Comcast Franchise § 9.1.
16
CenturyLink Franchise §10.1; Comcast Franchise § 10.1.
3
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31.The PEG access requirements in the CenturyLink Franchise mandate certain obligations,
such as HD channel capacity for all PEG channels that go beyond the commitments
17
made in the Comcast franchise.
32.The City recognizes that CenturyLink, which currently offers no cable communications
services in the Service Territory, cannot justify a large initial deployment because it
“realistically cannot count on acquiring a share of the market similar to Comcast’s share
. . . \[and\] must begin offering service within a smaller area to determine whether it can
18
reasonably ensure a return on its investment before expanding.”
33.The CenturyLink Franchise therefore requires CenturyLink’s initial deployment to be
capable of serving at least fifteen percent (15%) of the living units in the Service
Territory within two (2) years. CenturyLink is further required to commit a significant
19
portion of its initial investment to areas below the median income within the City.
34.The CenturyLink Franchise permits the City to monitor CenturyLink’s progress and
compliance with build-out requirements via quarterly meeting and accelerates the build-
out schedule if CenturyLink has market success, with the goal and expectation that
build-out will be substantially complete before the CenturyLink Franchise’s five (5) year
20
term expires.
35.During its regularly scheduled meeting on August 2,2016, the City Council held a public
hearing at which all interested parties are provided an opportunity to speak and present
information regarding the proposed CenturyLink Franchise.
WHEREAS,the City has considered these facts and the cable-related needs and interests of
the community:
NOW THEREFORE, the City Council for the City of Shakopee, Minnesota hereby resolves as
follows:
1.The foregoing findings are adopted as the official findings of the City Council and made
a part of the official record.
2.The City has authority to adopt an ordinance granting a cable communications franchise
to CenturyLink for the Service Territory.
3.The City may not unreasonably refuse to award a competitive cable communications
franchise to CenturyLink.
4.The City and its residents will benefit from adoption of the CenturyLink Franchise, which
will introduce facilities-based competition into the cable communications market in the
Service Territory and thereby reduce costs to consumers and increase the quality and
availability of services.
17
CenturyLink Franchise §7; Comcast Franchise § 7.
18
621 Order at ¶ 35.
19
CenturyLink Franchise §1.3.
20
CenturyLink Franchise §§1.4-1.5.
4
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5.CenturyLink is legally, technically, and financially qualified to operate a cable
communications system in the Service Territory and has complied with all application
requirements.
6.The City has complied with all franchise application requirements imposed by state and
federal law, including those identified herein or in the Franchise Report.
7.The terms and conditions of the CenturyLink Franchise pertaining to service area, PEG
access requirements, and franchise fees are not more favorable or less burdensome
than the corollary terms of the Comcast Franchise.
8.The CenturyLink Franchise’s initial deployment requirement of fifteen percent (15%)
within two (2) years and five (5) year timeline for substantially completing build-out
provides a reasonable period of time for CenturyLink to become capable of reaching full
deployment and is therefore consistent with both state and federal law.
9.The Ordinance Granting a Cable Communications Franchise for Qwest Broadband
Services, Inc., d/b/a CenturyLink is formally and finally adopted.
10.The City finds and concludes that its actions are appropriate, reasonable, and consistent
in all respects with the mandates set forth in Chapter 238 of Minnesota Statutes and
applicable provisions of federal law, including 47 U.S.C. § 541(a).
PASSED AND ADOPTED in regular session of the City Council of the City of Shakopee,
rd
day of August,2016.
Minnesota this 3
ATTEST:CITY OF SHAKOPEE, MINNESOTA
By:By:
City Clerk, Mayor
5
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SHAKOPEE FUN FOR ALL PLAYGROUND
PROJECT BASICS
SHAKOPEE FUN FOR ALL PLAYGROUND
“When given a safe place with the right equipment, activity adaptations, and landscape, each
person is empowered to show their strengths in ways that will surprise and empower their families,
peers, community, and themselves.” Lauren Beckman, Fun for All Taskforce
WHY
a park for everyone
We wanted
To provide: captivation
innovation
inclusion
To bring inclusive play to &
Lions ParkShakopee
LIONS PARKLIONS PARK
WHAT
Lions Park playground will be
a destination
in.clu.sive l in-klü-siv l
:open to everyone
:not limited to certain people
:covering or including everything
WHERE
An inclusive playground
in Shakopee, MN
WHO
The City of Shakopee, Shakopee Lions,
The Fun for All Taskforce, and Minnesota-based
playground companies:
Flagship Recreation with Landscape Structures
SHAKOPEE FUN FOR ALL PLAYGROUND
CASWELL PARK PLAYGROUND-OWATONNA
INCLUSIVE PLAY
SHAKOPEE FUN FOR ALL PLAYGROUND
“We are never more fully alive, more completely ourselves, or more deeply engrossed in anything,
than when we are at play.” Charles E. Schaefer, American psychologist
“Play, while it cannot change the external realities of children’s lives,
can be a vehicle for children to explore and enjoy their differences
and similarities and to create, even for a brief time, a more just world
where everyone is an equal and valued participant.”
Patricia G. Ramsey
Contemporary American Educational Psychologist
PLAY
Play is an important part of a childs life. It gives them the
opportunity to interact with their peers, exercise physically,
exercise creatively, work through conflict, relieve stress, and
empowers them as they are given the freedom to explore.
ALL children should be given the opportunity to play in an
environment where they are not limited by physical or
cognitive ability - a place where everyone has the same
opportunities to interact with their peers, explore, have
fun, and be empowered.
The Shakopee Fun for All playground project at Lions Park
will provide these opportunities for children in Shakopee and
outlying areas through its specialized inclusive play design.
PLAN WITH PHOTO REFERENCES
SHAKOPEE FUN FOR ALL PLAYGROUND
SENSORY DEVELOPMENT
SHAKOPEE FUN FOR ALL PLAYGROUND
Playgrounds that have a wide variety of sensory experiences give children the opportunity to
work on developing their sensory systems. Healthy sensory development gives children the
necessary stepping stones to start developing the skills they need to succeed at their goals
and impact their communites.
ACTIVITIES
SLIDINGSPINNINGSWINGINGCLIMBINGTACTILEMOTOR PLANNING
SOCIAL
Climbing provides an
Sliding engages
Spinning activates the Touch is the first
Children inspire and
The simple motion of Motor planning is
exciting challenge and
childrens visual and
use of the vestibular sensory system that
encourage each
swinging activates the developed through
involves the use of the
vestibular systems as
system. It provides the children develop
other when they
vestibular, visual, and exposure to a variety
tactile, proprioceptive,
they receive data about
brain with information and it stays active
play together. Social
proprioceptive systems. of sensory experiences.
vestibular, and visual
the speed of movement
on equilibrium. The the longest as they
imaginitive play gives
Children learn how their The development of
systems. A child takes
and the pull of gravity.
inputs that the brain age. Tactile sensory
children the opportunity
body moves through motor planning is
information about what
The texture of the slide
receives cause the input helps the brain
to use previous sensory
space, what speeds they important because it
they see, what they are
and the relationship
body to react and organize information for
knowledge with new
are comfortable with, helps children learn to
touching, and how much
of pressure to speed
maintain balance.developing visual and
experiences, expanding
and how to resist or correctly respond to
force they need to apply
engage the tactile and
auditory systems.
their understanding
increase movement to different stimuli in their
in order to advance.
proprioceptive systems.
Tactile play experiences
of the world. Unique
control their own speed.environment and carry
Climbing exercises a
The engagement of
are important for
learning experiences
out skills that are non-
childs ability to relate to
these different sensory
framing all other
emerge through playing
habitual.
objects and navigate in
systems help children
sensory information
and imagining with
the world.
develop improved
from the environment.
other children.
motor planning and
balance.
BASIC ACTIVITY TYPES:
SWINGING
SHAKOPEE FUN FOR ALL PLAYGROUND
SLIDING
SPINNING
CLIMBING
SOCIAL
MOTOR PLANNING
TACTILE
SHAKOPEE FUN FOR ALL PLAYGROUND
Perspective View 1
From this aerial perspective you are able to
see the entire playground and surrounding
View Reference
space. Multiple entry points allow for
increased accessibility and inclusion.
The light blue bath, representing a river,
flows through the space and connects to
various components and experiences.
Existing trees provide a large amount of
natural shade for all users of the playground.
SHAKOPEE FUN FOR ALL PLAYGROUND
Perspective View 2
This end of the playground features numerous
View Reference
Inclusive Play components and a specifically
designed 2-5 structure. A shade structure
provides a place to gather and rest.
Play value can be found in more than just
equipment. It can be found in the elevation
changes designed across the playground,
allowing children to run or roll along routes
that go up and down and simulate running
over hills or mounds in a natural setting.
SHAKOPEE FUN FOR ALL PLAYGROUND
Perspective View 3This eye-level view of the playground displays a
close up view of the equipment with potential
View Reference
users accessing and engaging with the space.
The playground provides a variety of
play experiences that not only meet ADA
requirements, but surpass them by addressing
the social, sensory, cognitive, and emotional
needs of children of all ages and abilities.
JOIN US
SHAKOPEE FUN FOR ALL PLAYGROUND
“Inclusive play is not about meeting special needs. It’s about meeting all children’s and young people’s
need to play, wherever they choose and in a variety of different ways.” Phillip Douch, Writer
The success of this project hinges on the support from both
public and private donors and volunteers. If you are interested
in investing in our vision or would like more information regarding
the playground project/donations, please use the resources below
to get informed and involved!
Join our group:
Facebook Shakopee Fun for All Playground
Visit our :
website www.funforallplayground.com
WHATWHAT
CONTACT
Fun for All Taskforce
Contact Person:
Angela Tucker
Email: angelboytucker@gmail.com
Phone: 952-261-6501
The City of Shakopee
Contact Person:
Jamie Polley
Email: JPolley@shakopeemn.gov
Phone: 952-233-9500
Mail Donations To:
Shakopee Fun for All Playground
1255 Fuller Street South
Shakopee, MN 55379
*Make checks out to the City of Shakopee
and indicate Shakopee Fun for All Playground on Memo.*
Quarterly Financial Update Q2 2016
financial position through the second quarter of 2016. As I have mentioned throughout our monthly
and expenditure cycles never recur equally from
month-to-month. Therefore, it is important to view the financial position holistically, taking into
consideration historical data, current happenings and future projections.
Cash Balance Comparisons
Below is a cash balance comparison for both year-over-year and year-end for all city fund types.
Quarterly Cash Balance Comparison
30,000,000.00
25,000,000.00
20,000,000.00
15,000,000.00
10,000,000.00
5,000,000.00
0.00
General FundSpecial RevenueDebt ServiceCapital ProjectEnterprise FundsInternal Service
FundsFundsFundsFunds
Jun YTDJun YTDDec YTD
201520162015
Variance Analysis
The General Fund cash balance at June 30, 2106 has increased approximately $1.1 million compared to
this same time last year. This increase is attributable to the increased revenues associated with Licenses
and Permits, which has increased almost $1 million compared to this same time last year.
Special Revenue and Debt Service Funds remain stable.
The Capital Project Funds are reporting increased cash balance at June 30, 2015 and 2016 compared to
the balance at December 31, 2015. This is a result of an annual scheduled transfer from the General
Fund to the Capital Improvement Fund of $1.0 million and $1.2 million in 2015 and 2016 respectively.
This transfer has traditionally been done during the month of June.
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The Enterprise Funds experienced a decrease in cash compared to this same timeframe last year. The
Surface Water Fund saw a very modest decrease in cash over the past year, whereas the Sewer Fund
saw more of a decrease. This decrease is due in part to capital projects payments over the course of last
summer and the transfer of approximately $400,000 in restricted cash for Sewer Access Credits (SAC)
payments to the EDA fund for business subsidies. Both of these funds instituted a rate increases
beginning with the January 2016
back to January 31, 2015. The Sewer Fund experienced another decrease in cash in June 2016. This
drop is directly related to the Hilldale Drive Improvements. Almost $400,000 was paid to the contract in
June as this project neared completion.
The Internal Service Funds also experienced a cash decrease compared to the second quarter of 2015.
This decrease is related to equipment purchases
loader for the public works that replaces a 1992 loader. Future rent payments will aid in replenishing
the cash balance.
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General Fund Monthly Financial Report
In holding with our monthly General Fund revenue and expenditure budget-to-actual comparisons,
below is a comparison through July. 58 percent of the budget would ideally be accounted for as of July
31.
CITY OF SHAKOPEE
Monthly Financial Report
Di
YTDJuneYTDBudget Cumulative 6
vis
201620162016Balance Percent 2015
io
BudgetActualActualRemainingUsedActual
n
01000 - GENERAL FUND
REVENUES:
* - TAXES(17,150,900)(8,863,045)(8,999,882)(8,151,018)52%(8,426,208)
* - SPECIAL ASSESSMENTS(11,500)(23,140)6,025(17,525)(52)%8,717
* - LICENSES AND PERMITS(1,504,100)(251,009)(1,703,596)199,496113%(707,492)
* - INTERGOVERNMENTAL(1,108,500)(1,500)(521,333)(587,167)47%(312,700)
* - CHARGES FOR SERVICES(4,235,775)(410,392)(2,706,161)(1,529,614)64%(2,048,972)
* - FINES AND FORFEITS(1,500)(100)(2,418)918161%(4,838)
* - MISCELLANEOUS(215,748)(29,746)(106,414)(109,335)49%(94,292)
TOTAL REVENUES(24,228,023)(9,578,933)(14,033,779)(10,194,244)58%(11,585,786)
EXPENDITURES:
11 - MAYOR & COUNCIL185,2607,666105,44079,82057%92,362
12 - ADMINISTRATION1,555,53099,641708,566846,96446%480,539
13 - CITY CLERK399,17024,725158,222240,94840%147,727
15 - FINANCE1,243,700336,923737,528506,17259%619,018
17 - COMMUNITY DEVELOPMENT674,90530,931223,404451,50133%351,986
18 - FACILITIES408,98622,189185,839223,14845%167,028
31 - POLICE DEPARTMENT7,625,014584,3154,150,9713,474,04354%3,542,650
32 - FIRE2,079,785140,3841,018,4831,061,30249%916,066
33 - INSPECTION-BLDG-PLMBG-HTG669,96748,599383,839286,12857%294,776
41 - ENGINEERING739,17860,342354,129385,04948%277,893
42 - STREET MAINTENANCE2,225,116136,514988,5521,236,56444%697,019
44 - FLEET429,59533,369225,157204,43852%170,206
46 - PARK MAINTENANCE1,644,596141,397751,790892,80646%637,117
66 - NATURAL RESOURCES198,09214,882106,13391,95954%62,909
67 - RECREATION2,529,679215,4611,281,3211,248,35851%997,479
91 - UNALLOCATED218,4507722,797215,6531%3,144
TOTAL EXPENDITURES22,827,0231,898,10811,382,17111,444,85250%9,457,919
OTHER FINANCING
#
* - TRANSFERS IN(250,000)(250,000)(250,000)0100%(250,000)
#
* - TRANSFERS OUT2,100,0002,100,0002,100,0000100%1,900,000
#
OTHER FINANCING TOTAL1,850,0001,850,0001,850,0000100%1,650,000
#
FUND TOTAL449,000(5,830,824)(801,608)1,250,608(477,867)
#
Key
Varies more than 10% than budget positively
Varies more than 10% than budget negatively
Within 10% of budget
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Variances worth noting on the revenue side of the budget include Taxes and Licenses & Permits. As
mentioned previously, revenues and expenditures can vary on the frequency of collection and payment.
Large infrequent payments or collections such as tax payments that happen twice a year can skew
budget-to-actual comparisons significantly. Understanding these unique variances is important in
gaining a complete financial picture.
License & Permit collections are continuing to come in at higher than anticipated rates. Below is a
report for the second quarter comparing year-over-year building related permits. The quantity of
permits is down slightly from 1,193 to 1,113, but the valuation of the second quarter 2016 permits is
over double for the same time frame in 2015.
Expenditures are all within or significantly below anticipated budget allotments as of July 31, 2016.
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Investment Analysis
The city contracts with Advantus Capital Management to manage the cityportfolio. Below
is a summary of the cityJune 30, 2016. The chart compares gross return,
net return (after the deduction of investment manager fees) and a benchmark return. The income
return column was just added to the graph over the past year. This column is beneficial in comparing
actual interest income to the gross and net return, which includes book-to-market value adjustments.
Governmental accounting standards require the city to book market value fluctuations from year-to-
year even though the city
exceptions.
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Investment Policy Tidbits
The cityits investment policy and State Statutes. Cities are
limited legally on investment types to minimize the risk of principal loss. In addition, all investments are
held in a safekeeping account with U.S. Banks custody department. Below is additional information on
the city
Investment Summary
Given the citycity is achieving a very
respectable rate of return while first assuring safety and liquidity.
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