4.5. SR 01-03-2005
Item # 4.5.
MEMORANDUM
TO:
Mayor and City Council
FROM:
Joan Schmidt, City Clerk
DATE:
January 3, 2005
SUBJECT:
Cable Franchise Documents
The City of Elk River is part of the Sherburne/Wright County Cable Communication
Commission. Robert V ose, Attorney for the Commission, and Merton Auger, Chair of
the Commission, have been negotiating with Charter Communications for a franchise
agreement. The current cable franchise agreement has had several extensions over the
past few years. Before you is an agreement that each Cable Commission member city
(consisting of Buffalo, Dassel, Watertown, Delano, Maple Lake, Monticello, Big Lake,
Cokato, Rockford, and Elk River) is asked to approve. This franchise agreement will be
in effect for a period of 15 years.
The Commission will receive franchise fees in an amount equal to 5% of its gross
revenues, which is used to buy cable equipment. Each city will also have two channels
dedicated for public, education, and government access (PEG) programming. Each city
will also receive $.85 per subscriber, per month to support community programming.
Both the franchise and PEG fees will be remitted on a quarterly basis within 60 days of
the close of the preceding calendar quarter.
ACTION REOUESTED:
1. Motion to approve Ordinance #05-01 establishing certain regulations governing
the delivery of cable service in the City to ensure that all cable providers are
subject to comparable obligations and burdens.
2. Motion to approve Ordinance #05-02 granting a franchise to CC VIII Operating
LLC dba Charter Communications authorizing operation of a cable system and
delivery of cable services in the City pursuant to the Cable Ordinance.
3. Motion to approve Resolution #05-02 approving summary publication of
Ordinance #05-01 and Ordinance #05-02.
S:\Council\Joan\Council Issues\Cable Franchise Agreements.doc
CITY OF ELK RIVER
ORDINANCE #05-01
SECTION 1. FINDINGS AND INTENT
The City finds that the delivery of Cable Service and related communications services
may contribute significantly to the communication needs and desires of residents of the
City, benefit local economic development, and improve public and municipal services.
The City's intent in adopting this Cable Ordinance is to encourage further development
of Cable Service and related communications services in the City, and to ensure that all
Cable Service providers are subject to comparable obligations and burdens.
SECTION 2. SHORT TITLE
This Ordinance will be known and cited as the "Cable Ordinance."
SECTION 3. DEFINITIONS
For the purposes of this Cable Ordinance, the following terms, phrases, words, and
their derivations have the meaning given herein. Unless otherwise provided herein,
terms, phrases and words contained in this Cable Ordinance shall have the meaning
ascribed in the Cable Act, 47 U.S.C. Sec. 521, et seq., or if not defined herein or in the
Cable Act will have their normal and customary meaning. When not inconsistent with
the context, words in the singular number include the plural number. The words "must"
and "will" are always mandatory and not merely directory. The word "may" is directory
and discretionary and not mandatory.
a. "Basic Cable Service" has the meaning ascribed in Cable Act Section 522(3)
and 543(b )(7).
b. "Cable Communications System," "Cable System" or "System" has the
meaning ascribed in Cable Act Section 522(7) and Minnesota Statutes, Section 238.02,
Subd.3.
c. "Cable Programming Service" has the meaning ascribed in Cable Act Section
543(1)(2).
d. "Cable Service" has the meaning ascribed in Cable Act Section 522(6).
e. "Channel" has the meaning ascribed in Cable Act Section 522(4).
f. "City" means the City of Elk River, Minnesota, a municipal corporation, in the
State of Minnesota.
g. "Commission" means the Sherburne/Wright Counties Cable Communications
Commission, a municipal joint powers entity consisting of the following municipalities:
Big Lake, Buffalo, Cokato, Dassel, Delano, Elk River, Maple Lake, Monticello, Rockford
and Watertown.
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h. "Drop" means the cable that connects the ground block on the Subscriber's
Terminal Device to the nearest feeder cable of the System.
i. "FCC" means the Federal Communications Commission, or its lawful
successor.
j. "Franchise", "Cable Franchise" or "Franchise Aqreement" means an
agreement between the City and any provider of Cable Service pursuant to this Cable
Ordinance granting authorization to construct, operate and maintain a System and
provide Cable Service in the City.
k. "Franchise Fee" has the meaning ascribed in Cable Act Section 542(g).
1. "Grantee" is any recipient of a Franchise, and its agents and employees,
lawful successors, transferees or assignees.
m. "Gross Revenues" means all revenues, as determined in accordance with
Generally Accepted Accounting Principles ("GAAP"), received by a Grantee or its
affiliates from the operation of a Cable System to provide Cable Service in the City. By
way of example and not limitation, Gross Revenues shall include any advertising
revenues received by a Grantee or its affiliates in connection with the provision of Cable
Service. Gross Revenues shall not include revenues received by a Grantee or its
affiliates from the provision of Telecommunications Services or other non-Cable
Services in the City, bad debt, credits, refunds and deposits paid to Subscribers, or any
taxes, fees or assessments of general applicability collected by a Grantee which are
imposed directly on a Subscriber and which are collected by a Grantee for such
governmental unit including any PEG Capital Fees. A Franchise Fee is not such a tax,
fee or assessment.
n. "Installation" means the connection of a System with the Subscriber Terminal
Device.
o. "MPUC" means the Minnesota Public Utilities Commission, or its lawful
successor.
p. "Normal Business Hours" has the meaning ascribed in the FCC's rules, 47
C.F.R. 76.309(c)(4).
q. "Normal Operating Conditions" has the meaning ascribed in the FCC's rules,
47 C.F.R. 76.309(c)(4).
r. "PEG Access Facilities" means public, educational, and governmental
programming channels, or any equipment or facilities for use of such Channels.
s. "Person" has the meaning ascribed in Cable Act Section 522(15).
1. "Right-of-Way" or "Rights-of-Way" means the area on, below, or above a
public roadway, highway, street, cartway, bicycle lane, and public sidewalk in which the
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local government unit has an interest, including other dedicated rights-ot-way tor travel
purposes and utility easements ot local government units. Right-ot-Way does not
include the airwaves above a Right-ot-Way with regard to wireless or other nonwire
telecommunications or broadcast service.
u. "Right-of-Way Ordinance" means an ordinance of general applicability
adopted by the City establishing requirements regarding regulation, management and
use of Rights-of-Way, including registration and permitting requirements.
v. "Standard Installation" means any residential installation that can be
completed using a Drop ot 150 teet or less.
w. "Subscriber" means any Person who lawfully receives Cable Service via a
System.
x. "Telecommunications Services" shall have the meaning ascribed in 47 U.S.C.
9 153(46).
y. "Terminal Device" means an electronic device that converts signals to a form
accessible by the Subscriber.
SECTION 4. FRANCHISES
Section 4.1 Generally
a. No Person may construct, operate, or maintain a Cable System or provide
Cable Service in the City unless and until such Person is granted a Franchise. All
Franchises must be granted pursuant to the provisions of this Cable Ordinance.
b. Any Franchise granted hereunder will authorize a Grantee to deliver Cable
Service and construct, operate and maintain a Cable System in the Rights-of-Way in
the City.
c. All Franchises shall be nonexclusive and City may grant additional
Franchises at any time. The City will not grant an additional Franchise on terms and
conditions more favorable or less burdensome than those in an existing Franchise. The
City may impose additional terms and conditions in any additional Franchise.
d. In the event the City grants an additional Franchise that a Grantee believes is
more favorable or less burdensome than its existing Franchise, the Grantee shall have
a right to petition tor Franchise amendments to relieve the Grantee of provisions making
its Franchise less favorable or more burdensome. The Grantee shall file a petition that:
1.
Identities the competitor(s);
2.
Identifies the basis tor Grantee's belief that certain provisions of the
additional Franchise are more favorable or less burdensome than
its existing Franchise;
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3. Identifies the Franchise provisions to be amended.
The City shall not unreasonably deny such a petition.
e. This Cable Ordinance and Franchises granted pursuant hereto are intended
to comply with Minnesota Statutes Chapter 238. Any applicable requirement
established by Minn. Stat. 238.084 not expressly incorporated in this Cable Ordinance
or a Franchise shall be deemed incorporated by reference in the Franchise as though
fully set forth therein.
f. The performance of any Grantee is subject to periodic evaluation by the City
upon reasonable notice to the Grantee.
Section 4.2 Use ot Rights-ot-Way
a. Use of Rights-of-Way to operate a Cable System and provide Cable Service
must not be inconsistent with the terms and conditions by which such Rights-of-Way
were created or dedicated. Use of Rights-of-Way is subject to all applicable legal
requirements including any Right-of-Way Ordinance enacted by the City, provided
however that to the extent that rights, duties and obligations regarding the use of
Rights-of-Way are specifically addressed in a Franchise, such Franchise terms shall
prevail over any conflicting provisions of a Right-ot-Way Ordinance.
b. The City may construct, maintain, repair or relocate sewers; grade, pave,
maintain, repair, relocate and/or alter any Right-ot-Way; construct, repair, maintain or
relocate water mains; or construct, maintain, relocate, or repair any sidewalk or other
public work.
c. All System facilities, lines and equipment in the City must be located so as
not to obstruct or interfere with the proper use of Rights-ot-Way, alleys and other public
ways and places, and cause minimum interference with the rights ot property owners
who abut any of the said Rights-of-Way, alleys and other public ways and places, and
not interfere with existing public utility installations.
d. To the extent required in a Right-of-Way Ordinance, a Grantee must file with
the City strand maps, plats, or other record of the location of all facilities constructed in
the City, including underground facilities. A Grantee must update such maps, plats and
permanent records annually if changes have been made in the System. Consistent
with applicable state law, Grantee may identify such maps, plats or other records as
"confidential trade secret," and City shall comply with all state laws regarding the
protection and dissemination of such materials.
e. If the City alters, or changes the grade or location of any Right-of-Way, alley
or other public way, a Grantee shall, at its own expense, upon reasonable notice by
City, remove and relocate poles, wires, cables, conduits, manholes and other System
fixtures, and in each instance comply with the standards and specifications of City. If
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City reimburses other occupants of the Right-of-Way, the affected Grantee will be
likewise reimbursed.
f. A Grantee shall not place poles, conduits, or other System fixtures where the
same will interfere with any gas, electric, telephone, water or other utility fixtures and all
such poles, conduits, or other fixtures placed in any Right-of-Way shall be so placed as
to comply with all lawful requirements of City.
g. A Grantee will, on request of any Person holding a moving permit issued by
the City, temporarily move wires or fixtures to permit the moving of buildings with the
expense of such temporary removal to be paid by the Person requesting the same, and
the Grantee will be given no less than ten (10) business days advance notice to
arrange for such temporary changes.
h. A Grantee will be liable for the failure to exercise reasonable care during
construction, operation or maintenance of a System.
Section 4.3 Tree Trimming
A Grantee is authorized to trim any trees upon and overhanging the Rights-of-Way,
alleys, sidewalks, or public easements of City so as to prevent the branches of such
trees from coming in. contact with wires and cables of a System. The City may
supervise tree trimming activities and condition the authority to trim trees as it deems
appropriate.
Section 4.4 Franchise Term.
Franchises will be granted for a term established in the Franchise Agreement. No
Franchise may be granted for a period exceeding fifteen (15) years from the date of
acceptance by Grantee.
Section 4.5 Regulation of Cable Service.
Any Franchise Agreement adopted pursuant to this Cable Ordinance will define the
contractual rights and obligations of the City and Grantee, provided however that a
Grantee remains subject to the lawful exercise of the City's police power, ordinance-
making authority, and power of eminent domain.
Section 4.6 Initial Franchise Applications.
a. Upon request or its own initiative, the City may initiate the cable franchise
application process required by Minnesota Statutes Section 238.081. Any Person
desiring an initial Franchise must file an application with the City.
b. The City will establish an application fee in an amount to offset the costs of
processing applications and awarding an initial Franchise. Such application fees will
not constitute a Franchise Fee.
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c. Upon receipt of an application for an initial Franchise, City staffwill prepare a
report and recommendations to the City Council regarding the application(s).
d. A public hearing concerning applications will be held prior to rejection or
acceptance of applications, and award of any initial Franchises.
Section 4.7 Franchise Renewal.
Franchise renewals will be conducted in accordance with applicable I,aws. To the
extent authorized by applicable laws, the City may require reimbursement of its
expenses incurred in processing the renewal.
SECTION 5. CONSTRUCTION STANDARDS
Section 5.1 Registration, Permits and Construction Codes.
a. Within ninety (90) days of acceptance of an initial Franchise, a Grantee shall
apply for any necessary governmental permits, licenses, certificates, and authorizations
to construct, repair, replace, relocate, operate, maintain or reconstruct a System. A
Grantee may submit permit applications as construction progresses, as agreed upon
with the City. A Grantee must strictly adhere to all state and local laws and building and
zoning codes currently or hereafter applicable to location, construction, installation,
operation or maintenance of the facilities used to provide Cable Service in the City.
b. The City may inspect any construction or installation work performed
pursuant to the provisions of a Franchise. The City may make such tests as it must find
reasonably necessary to ensure compliance with the terms of this Cable Ordinance, the
Franchise, and applicable provisions of local, state and federal law.
Section 5.2 Repair ot Rights-ot-Way and Property.
a. Any Rights-of-Way or other property disturbed or damaged during the
construction, repair, replacement, relocation, operation, maintenance or reconstruction
of a Cable System shall be promptly and fully restored by the Grantee performing such
work, at its expense, to a condition as good as that prevailing prior to such work.
b. If a Grantee fails to promptly perform the restoration required herein, the City
shall have the right, following ten (10) business days written notice to Grantee, to
restore Rights-of-Way and other public property to a condition as good as that
prevailing prior to the Grantee's work. The City shall be fully reimbursed by the Grantee
for its actual costs relating to such restoration.
Section 5.3 Undergrounding ot Facilities.
a. In all areas of the City where utility facilities are required to be placed
underground, or where all other utility lines are underground, a Grantee must construct
and install System facilities underground.
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b. A Grantee must bury new Drops within a reasonable time period, subject to
weather conditions. In the event the ground is frozen, a Grantee will be permitted to
delay burial until the ground is suitable for burial which in no event must be later than
June 30th.
Section 5.4 Erection, Removal and Joint Use of Poles.
a. In any area of the City where facilities may be located above ground, a
Grantee must make use of existing poles and other facilities to the extent technically
and economically feasible.
b. No poles, above-ground conduits, amplifier boxes, similar structures, or other
wire-holding structures may be erected or installed by the Grantee on public property
without prior approval of the City with regard to location, height, type and other pertinent
aspects.
c. All facilities are subject to applicable zoning and other land use regulations.
Section 5.5 Safety Requirements.
a. A Grantee must at all times employ ordinary and reasonable care in the
construction, installation and maintenance of System facilities and must use ordinary
and reasonable methods and devices for preventing failures and accidents which are
likely to cause damage, injuries, or nuisances to the public. All System facilities must at
all times be kept and maintained in good condition, order, and repair so that the same
must not menace or endanger the life or property of the City or any Person.
b. A Grantee must install and maintain equipment and facilities in accordance
with all applicable federal and state laws and regulations, any Right-of-Way Ordinance,
and the requirements of the National Electric Safety Code and in such manner that they
will not interfere with private radio, police and fire communications or any installations of
City or of any public utility serving City.
SECTION 6. SYSTEM DESIGN AND EXTENSION PROVISIONS
Section 6.1 System Capacity and Channels.
At a minimum, any Franchise granted hereunder shall describe the Grantee's network
in terms of the total System capacity such as the total number of analog and digital
video channels that can be provided.
Section 6.2 Cable Service Availability.
a. Each Franchise will identify a required service area in which a Grantee will be
required to offer Cable Service to all dwellings, homes and businesses, subject to a
reasonable density threshold. Any additional Franchise will include a service area that
is no more favorable or less burdensome than the service area in an existing Franchise.
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b. Any Franchise granted hereunder may establish requirements for the
extension of the System and provision of Cable Service to areas that may be annexed
by the City beyond the initially required service area.
c. Cable Service shall not be denied to any group of potential residential cable
Subscribers because of the income of the residents of the area in which such group
resides.
Section 6.3 Non-Standard Installations. A Grantee must provide Cable
Service to any Person requesting other than a Standard Installation except that a
Grantee may charge for the incremental increase in material and labor costs incurred
above the cost of making a Standard Installation.
Section 6.4 Technical Standards. Any System offering Cable Service in the
City must comply, at minimum, with the technical standards promulgated by the FCC
relating to Cable Systems pursuant to Title 47, Section 76.601 to 76.617, as may be
amended or modified from time to time.
Section 6.5 System Testing.
a. A Grantee shall perform all System testing required pursuant to the FCC's
technical standards and requirements. In the event the City identifies signal or System
performance difficulties which may constitute violations of applicable FCC technical
standards, the Grantee will be notified and afforded ten (10) days to correct problems or
complaints. If the performance difficulty is not resolved within ten (10) days in City's
sole determination, the City may require the Grantee to demonstrate compliance via
testing or other means selected by the Grantee.
b. The City may test any System or facilities used to provide Cable Service in
the City. The City will seek to arrange its testing so as to minimize hardship or
inconvenience to Grantee and Subscribers. In the event that testing reveals that the
source of the technical difficulty is within the Grantee's reasonable control, the cost of
the testing must be borne by the Grantee. If the testing reveals the difficulties to be
caused by factors that are beyond Grantee's reasonable control, the cost of the testing
must be borne by the City.
Section 6.6 FCC Reports.
A Grantee must, upon written request from City, file all required FCC technical reports
with the City.
Section 6.7 Emergency Alert System.
A Grantee must provide an emergency alert system (EAS) that complies with FCC
requirements. A Grantee must further ensure that City can insert, or direct the insertion
of, brief audio and video emergency messages simultaneously on all Channels or a
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single Channel to which Subscribers are directed. The City shall indemnify Grantee for
City's use of a Cable System for emergency messages.
SECTION 7. CONSUMER PROTECTION AND CUSTOMER SERVICE STANDARDS
Section 7.1 Regulation of Cable Service Rates.
The City may regulate rates for the provision of Cable Service to the extent allowed
under federal or state law(s). A Grantee must file a list of current Subscriber rates and
charges with the City, which lists will be maintained on file with City and will be available
for public inspection. A Grantee must give the City and Subscribers written notice of
any change in a Cable Service rate or charge no less than thirty (30) days prior to the
effective date of the change.
Section 7.2 Sales Procedures.
A Grantee may not exercise deceptive sales procedures that violate state laws when
marketing any of its Cable Services within City. A Grantee may conduct marketing
consistent with local ordinances and other applicable laws and regulations.
Section 7.3 Telephone Inquiries and Complaints.
a. A Grantee must maintain local, toll-free or collect call telephone access lines
which will be available to its Subscribers 24 hours a day, seven days a week. A
Grantee must comply with the FCC's customer service standards, a current copy of
which is attached hereto.
Section 7.4 Complaint and Other Service Records.
a. Upon written request by the City, and subject to a Grantee's obligation to
maintain the privacy of certain information, a Grantee must prepare and maintain
written records of all written complaints received and the resolution of such complaints,
including the date of such resolution.
b. Written complaint records must be on file at the office of a Grantee. Upon
written request by the City, a Grantee must provide the City with a written summary of
such complaints and their resolution and in a form mutually agreeable to the City and
Grantee.
c. Upon written request by the City, a Grantee must provide detai'ed compliance
reports on a quarterly basis with respect to the objectively measurable service
standards required in this Section. A Grantee will not be required to acquire equipment
or perform surveys to measure compliance with the telephone answeiring standards
contained in this Section unless a historical record of complaints indicates a failure to
comply.
Section 7.5 Subscriber Contracts.
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A Grantee must provide to the City upon request any standard form Subscriber contract
utilized.
Section 7.6 Video Programming.
All Franchises will comply with 47 U.S.C. ~ 544(b), regarding the broad categories of
video programming provided. Individual programming decisions may be made in the
Grantee's sole discretion.
Section 7.7 Billing and Subscriber Communications.
a. A Grantee must give the City and Subscribers thirty (30) days advance
written notice of any changes in rates, programming services, or channel alignments.
b. Bills must be clear, concise, and understandable. Bills must clearly delineate
all activity during the billing period, including optional charges, rebates, and credits. In
case of a billing dispute, the Grantee must respond to a written complaint from a
Subscriber within 30 days.
Section 7.8 Refunds and Credits.
a. Credits must be issued no later than the Subscriber's next billing cycle
following the determination that a credit is warranted.
b. In the event a Subscriber establishes or terminates Cable Service and
receives less than a full month's Cable Service, the Grantee must prorate the monthly
rate on the basis of the number of days in the period for which Cabl$ Service was
rendered to the number of days in the billing. Refund checks will be issued promptly,
but no later than the next billing cycle following the return of the equipment supplied by
the Grantee if Cable Service is terminated.
Section 7.9 Additional Customer Service Requirements.
The City may adopt additional or modified customer service requirements to address
subscriber concerns or complaints to the extent permitted by law.
SECTION 8. COMMUNITY SERVICES
Section 8.1 PEG Access Facilities.
Franchises will establish obligations to provide PEG Access Facilities to meet the
community's needs and interests. The City will operate, administer and manage PEG
Access programming and the City may delegate its PEG Access authority and
responsibilities to the Commission. All franchises must contain equivalent PEG Access
obligations on any franchised provider of Cable Services.
Section 8.2 Service to Public or Educational Institutions.
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Franchises will establish obligations for the provision of free or reduced cost Cable
Services to identified public or educational institutions.
SECTION 9. ADMINISTRATION PROVISIONS
Section 9.1 Administration of Franchise.
The City will have continuing regulatory authority over Cable Systems, Cable Services,
and Franchise compliance. The City may delegate any and all regulatory authority to
the Commission. A Grantee must fully cooperate with the Commission in the exercise
of regulatory authority delegated by the City.
Section 9.2 Franchise Fee.
a. A Grantee must pay to the City a Franchise Fee in the amount lestablished in
the Franchise Agreement.
b. Each Franchise Fee payment must be accompanied by a repcprt certified by
an authorized representative of the Grantee, in form reasonably acce~table to City,
detailing the computation of the payment. All amounts paid must be s~bject to audit
and recomputation by the City and acceptance of any payment must not be construed
as an accord that the amount paid is in fact the correct amount.
c. A Grantee may designate that portion of a Subscriber's bill attributable to the
Franchise Fee as a separate line item on the bill.
Section 9.3 Access to Records.
a. The City may, upon reasonable notice and during Normal BLjsiness Hours,
and subject to the privacy provisions of 47 U.S.C. S 521 et seq., inspect at a mutually
convenient location any records of System operations maintained by ~ Grantee that
relate to a Grantee's compliance with its Franchise, including specifiqally Grantee's
Gross Revenue records. A Grantee may identify and label documents as "confidential
trade secret" in accordance with Section 4.2 above.
b. A Grantee must prepare and furnish to the City such reports as City may
reasonably request with respect to operation of the System and provision of Cable
Services in the City, or any other operations, affairs, transactions or property subject to
this Franchise.
SECTION 10.
INDEMNIFICATION AND INSURANCE
Section 10.1 Indemnification of the City.
a. A Grantee must indemnify, defend and hold harmless the City, its officers,
boards, committees, commissions, elected officials, employees and ag~nts from and
against any loss or damage to any real or personal property of any PerSon, or for any
injury to or death of any Person, arising out of or in connection with the construction,
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operation, maintenance, repair or removal of a System or other faciliti~s used by a
Grantee to deliver Cable Service.
b. A Grantee must indemnify, defend, and hold the City, its offlcers, boards,
committees, commissions, elected officials, employees and agents, harmlless from and
against all lawsuits, claims, actions, liability, damages, costs, expense$ or penalties
incurred as a result of the award or enforcementof its Franchise.
c. A Grantee shall not be required to provide indemnification or d$fense for any
intentional misconduct, willful neglect or negligence by an Indemnified party, for any
enforcement action taken by the City against a Grantee, of for any c1airT) based solely
on the City's operation of PEG Access Facilities, delivery of PEG Access Iprogramming,
or EAS messages originated by the City. Subject to the limitations I in Minnesota
Statutes Chapter 466, the City shall indemnify, defend and hold a Grar!ltee harmless
from any damage resulting from any intentional misconduct, willfliJl neglect or
negligence by the City, its officers, boards, committees, commissions, el$cted officials,
employees and agents, in utilizing PEG Access Facilities or Channels, delivering EAS
messages originated by the City, or in connection with work performed onor adjacent to
the System.
d. With respect to each claim for indemnification:
1. the City must promptly notify the Grantee in writing of any suit, claim or
proceeding which gives rise to such right;
2. the Grantee must afford the City an opportunity to participate in any
compromise, settlement or other resolution or disposition of any suit,
claim orproceeding; and
3. the City must cooperate with reasonable requests of the Grantee, at
Grantee's expense, in its participation in a suit, claim or Rroceeding.
Section 10 .2 Insurance .
a. A Grantee must obtain and maintain in full force and effect, at its sole
expense, a comprehensive general liability insurance policy, in pro~ection of the
Grantee, and the City, its officers, elected officials, boards, commissions, agents and
employees for damages which may arise as a result of operation of the System or
delivery of Cable Service.
b. The policies of insurance must be in the sum of not less th~n One Million
Dollars ($1,000,000.00) for personal injury or death of anyone Person, ahd Two Million
Dollars ($2,000,000.00) for personal injury or death of two or more Persons in anyone
occurrence, Five Hundred Thousand Dollars ($500,000.00) for property damage to any
one person and Two Million Dollars ($2,000,000.00) for property damage: resulting from
anyone act or occurrence.
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c. The insurance policy must be maintained by Grantee in full force and effect
during the entire term of the Franchise. Each policy of insurance l11ust contain a
statement on its face that the insurer will not cancel the policy or fail to reriew the policy,
whether for nonpayment of premium, or otherwise,' and whether at the request of
Grantee or for other reasons, except after sixty (60) days advance written notice have
been provided to the City.
SECTION 11.
FRANCHISE TRANSFER OR ABANDONMENT
Section 11.1 Abandonment of Service. A Grantee may not d,scontinue the
provision of Cable Service without having first given three (3) months w~itten notice to
the City.
Section 11.2 System Removal After Abandonment, Termination or
Forfeiture.
a. In the event of termination or forfeiture of the Franchise or abandonment of
the System, the City may require the Grantee to remove all or any portion of its System
from all Rights-of-Way and public property within the City; provided, hoWever, that the
Grantee will not be required to remove its System to the extent it lawfully provides
Telecommunications Services over the System.
b. If the Grantee has failed to commence removal of its System, or such part
thereof as was designated by the City, within one hundred twenty (120) days after
written demand for removal is given, or if the Grantee has failed to complete such
removal within twelve (12) months after written demand for removal is given, the City
may apply funds secured by the Franchise toward removal.
Section 11.3 Sale or Transfer of Franchise.
a. No sale or transfer of ownership of a Grantee or "fundamental corporate
change" in a Grantee as defined in Minn. Stat. 238.083, nor sale of transfer of a
Franchise, is permitted without City approval. Any sale or transfer of stock in a Grantee
creating a new controlling interest constitutes a sale or transfer of ~wnership. A
"controlling interest" includes majority stock ownership or a lesser amount sufficient to
confer actual working control in whatever manner exercised. City approval shall not be
required where a Grantee grants a security interest in its Franchise or System to secure
an indebtedness.
b. A Grantee must file a written request with the City prior to any transaction
described above. The City will approve or deny a transfer request within one hundred
and twenty (120) days of receipt of a written request. The City will not unreasonably
withhold its approval.
c. In no event will a transaction be approved unless any proposeti new Grantee
becomes a signatory to, and assumes all rights and obligations under, th$ Franchise.
d. In the event of any proposed transaction described above, the City will have
the right to purchase the System. In the event a Grantee has received a bona fide offer
for purchase of its System, the City shall have the right to purchase for the price which
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the proposed assignee or transferee agreed to pay. The City will be deemed to have
waived its right to purchase the System in the following circumstances:
1. The City does not notify the Grantee in writing, withih 60 days of
notice, that it intends to exercise its right of purchase; or
2. The City approves the transaction.
SECTION 12.
PROTECTION OF INDIVIDUAL RIGHTS
Section 12.1 Discriminatory Practices Prohibited.
No Grantee may deny Cable Service or otherwise discriminate a~ainst citizens
or businesses on the basis of race, color, religion, national origin, sex, age, status as to
public assistance, affectional preference, or disability.
Section 12.2 Subscriber Privacy.
a. A Grantee must comply with the subscriber privacy-related requirements of
47 U.S.C. S 551.
b. No signals of a Class IV Channel may be transmitted from a Subscriber
terminal for purposes of monitoring individual viewing patterns or practices without the
express written authorization of the Subscriber.
SECTION 13.
UNAUTHORIZED CONNECTIONS AND MODIFICATIONS
Section 13.1 Unauthorized Connections or Modifications Prohibited.
a. It is unlawful for any Person, without the express consent of tlile Grantee, to
make or possess, or assist anybody in making or possessing, any connection,
extension, or division, whether physically, acoustically, inductively, electronically or
otherwise, with or to any segment of a Grantee's System.
b. It is unlawful for any Person to willfully interfere, tamper, remove, obstruct, or
damage, or assist thereof, any part or segment of a System for any purpose.
c. Any Person found guilty of violating this section may be fined not less than
Twenty Dollars ($20.00) and the costs of the action nor more than Five Hundred Dollars
($500.00) and the costs of the action for each and every subsequent offemse.
SECTION 14.
ENFORCEMENT OF THE CABLE ORDINANCE OR: FRANCHISE
Section 14.1 Violations or Other Occurrences Giving Rise to Enforcement
Action.
a. In order to take enforcement action pursuant to this Cable Ordinance or a
Franchise, the City must provide the Grantee with written notice of the violation or other
occurrence giving rise to the City's action.
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b. The Grantee shall have thirty (30) days subsequent to receipt oW the notice to
cure the violation or occurrence giving rise to the City's action. Alt~rnatively, the
Grantee may, within fourteen (14) days of receipt of notice from the City; notify City in
writing that there is a dispute as to whether a violation or failure has in fact occurred.
Such written notice by the Grantee to the City shall specify with particularity the matters
disputed by Grantee.
c. In the event a Grantee does not timely cure to the City's satisfaction the
violation or other occurrence giving rise to the City's action, or timely disputes whether a
violation has occurred, the City will schedule a public hearing affordingl Grantee due
process. The City will endeavor to schedule the hearing for a date within ninety (90)
days of the initial violation notice. Notice of the hearing must be provided to the
Grantee.
d. At the completion of the hearing, the City will issue written findings of fact and
its final determination.
e. In the event City determines that no violation has taken place, the City will
rescind the notice of violation in writing.
Section 14.2 Franchise Revocation.
a. In addition to all other rights and remedies that the City possesses pursuant
to law, equity and the terms of the Franchise Agreement, the City may revoke or
terminate the Franchise, and all rights and privileges pertaining thereto, in accordance
with Section 14.1 if the City determines that:
1. The Grantee has violated any material requirement or provision of the
Cable Ordinance or a Franchise and has failed to timely cure; or
2. The Grantee has attempted to evade any of the materiql provisions of
the Cable Ordinance or a Franchise; or
3. The Grantee has practiced fraud or deceit upon the City or a
Subscriber; or
4. The Grantee has filed for bankruptcy.
b. During any revocation proceeding and any appeal period, the Franchise will
remain in full force and effect unless the term thereof sooner expires.
Section 14.3 Compliance with Federal, State and Local Laws.
The City and Grantee will conform to federal and state laws and rules r~garding Cable
ServJce or the System as they become effective.
Section 14.4 Effective Date
This Cable Ordinance is effective the day after its publication.
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Adopted by the City Council of the City of Elk River this 3rd day of January 12005.
Mayor
ATTEST:
City Clerk
To be published in the official newspaper on the 12th day of January 200$.
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CITY OF ELK RIVER, MINNESOTA
ORDINANCE #05-02
AN ORDINANCE GRANTING A FRANCHISE TO CC VIII OPERAirlNG LLC
D/B/A CHARTER COMMUNICATIONS TO CONSTRUCT, OPEAATE, AND
MAINTAIN A CABLE SYSTEM AND PROVIDE CABLE SERVICE IN !THE CITY
OF ELK RIVER, MINNESOTA.
RECITALS
1. This Cable Franchise Ordinance ("Franchise") is made and ente~ed into by
and between the City of Elk River, a municipal corporation of the State of
Minnesota ("City") and CC VIII Operating LLC d/b/a Charter Commur1ications, a
limited liability company ("Grantee").
2. Pursuant to Ordinance #05-01 ("Cable Ordinance"), the City is au~horized to
grant and issue a non-exclusive Franchise authorizing the Grantee !to provide
Cable Service and construct, operate, and maintain a Cable System in the City.
3. The Grantee has requested that its current franchise be renewed (:l>ursuant to
Section 626(h) of the Cable Act.
4. Upon evaluation of Grantee's technical, financial, legal qUf\lifications,
completion of Franchise negotiations, and as a result of a public hearirJlg, the City
finds that it is in the best interests of the City and its residents to grant and issue
the Franchise to Grantee.
5. This Franchise is nonexclusive and is intended to comply with applicable laws
and regulations.
THE CITY COUNCIL OF THE CITY OF ELK RIVER HEREBY ORDAIINS:
SECTION 1. GENERAL PROVISIONS
Section 1.1 Definitions.
Unless otherwise defined herein, the terms, phrases, and words contained in this
Franchise have the meaning provided in the Cable Ordinance. Ter~s, phrases
and words contained in this Franchise that are not defined here or in the Cable
Ordinance will have their normal and customary meaning.
Section 1.2 Written Notice.
All notices, reports, or demands required to be given in writing i under this
Franchise or the Cable Ordinance must be delivered personally to any officer of
Grantee or the City Administrator or deposited in the United States mail in a
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sealed envelope, with registered or certified mail postage prepai~ thereon,
addressed to the party to whom notice is being given, as follows: '
If to City:
City of Elk River
Attn: City Clerk
13065 Orono Pkwy
Elk River, MN 55330-5600
Chair, Sherburne/Wright Counties Cable
Communications Commission
c/o City of Buffalo
212 Central Avenue
Buffalo, MN 55313
With copies to:
If to Grantee:
Charter Communications
Attn: General Manager
1215 N. 15th St.
S1. Cloud, MN 56302
With copies to:
Charter Communications
Attn. VP of Government Affairs
12405 Powerscourt Drive
S1. Louis, MO 63131
Such addresses may be changed by either party upon notice to the <:>ther party
given as provided in this Section.
SECTION 2. GRANT OF FRANCHISE
Section 2.1 Grant.
a. Grantee is authorized to erect, construct, operate and maintain in,
along, across, above, over and under the Rights-of-Way, now in exi~tence and
as may be created or established during the term of this Franchise lany poles,
wires, cable, underground conduits, manholes, and other conductors ~nd fixtures
necessary for the maintenance and operation of a Cable System in the City.
Nothing in this Franchise shall be construed to prohibit the Grantee frcpm offering
any service over its Cable System that is not prohibited by federal, state or local
law.
b. This Franchise is granted pursuant to the Cable Ordinance. By
accepting this Franchise, Grantee agrees to be bound by the terms of the Cable
Ordinance. This Franchise is a contract and except as to those changes which
are the result of the City's lawful exercise of its general police powers, the City
may not take any unilateral action which materially changes the explicit mutual
promises in this contract. In the event of any conflict between the provisions of
this Franchise and the Cable Ordinance, the provisions of this Franchise shall
govern.
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c. This Franchise shall be nonexclusive and City may grant additional
Franchises at any time. The City will not grant an additional Franchis~ on terms
and conditions more favorable or less burdensome than those in this Franchise.
The City may impose additional terms and conditions in any additional
Franchise.
d. In the event the City grants an additional Franchise that a Grantee
believes is more favorable or less burdensome than in this Franchise, the
Grantee shall have a right to petition for Franchise amendments to relieve the
Grantee of provisions making its Franchise less favorable or more burdensome.
The Grantee shall file a petition that:
1. Identifies the competitor(s);
2. Identifies the basis for Grantee's belief thFit certain
provisions of the additional Franchise are more favorable or
less burdensome than its existing Franchise;
3. Identifies the Franchise provisions to be amended~
The City shall not unreasonably deny such a petition.
e. Grantee acknowledges the City's right to issue this Franchise. Upon
acceptance of this Franchise by Grantee as required by Section 8 herein, this
Franchise shall supercede and replace any previous ordinance or other
authorization granting a Franchise to Grantee, and all rights, obli9Fitions and
claims under any previous Franchise are extinguished, except that th~ Grantee's
obligation to indemnify the City against claims that arose during the term of the
previous Franchise shall continue in full force and effect.
Section 2.2 Franchise Term.
This Franchise will be in effect for a period of fifteen (15) years from !the date of
acceptance by the Grantee, unless sooner renewed or revoked.
Section 2.3 Service Area.
a. This Franchise is granted for the corporate boundaries Iof the City,
as it exists from time to time, subject to the density requirement of S~ction 2.3.b
below. The City will notify the Grantee in writing in the event the City annexes
any areas that the Grantee will be required to serve.
b. The Grantee will extend its System and offer Cable SeriVice, within
a reasonable time, after a request for Service, to areas with a density of at least
nine (9) residential units per one-quarter (1/4) cable mile of System, as
measured from the nearest Cable System trunk line or distribution cable as of
the date of such request for Service. Where the density is les$ than that
specified above, the Grantee may require that Persons requesting Service pay a
portion of the cost of the capital cost of the line extension in advance. The
Grantee shall provide a free written estimate of the total cost for extension and
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the required payment amount within fifteen (15) days of the request f4>r Service.
The charge for Installation or extension for each Person requesting SeJ!rvice shall
not exceed a pro rata share of the actual cost of extending the Service.
Subscribers shall also be responsible for any standard/non standard ,nstallation
charges to extend the Cable System from the tap to the residence. !
SECTION 3. SYSTEM
Section 3.1 System Capacity.
Grantee will continue to operate a System providing a minimum of ~t least 75
video programmed Channels throughout the term of this Franchise. l1he System
must have return capability and permit "narrowcasting" as provided I in Section
4.2(c).
Section 3.2 Construction Deadline.
Except for Grantee's System extension obligations pursuant to S~ction 2.3,
System construction is substantially complete. Except as otherwise nequired by
a Right-of Way Ordinance, Grantee will use best efforts to complete any System
extension and construction of new facilities for new developments
contemporaneous with installation of other utilities. The City shall provide
reasonable and timely advance written notice of the location M all new
developments to Grantee.
SECTION 4. COMMUNITY SERVICES
Section 4.1 Commercial Video Programming.
The Grantee will provide broad categories of video programminq, including
news, sports and entertainment.
Section 4.2 PEG Access Facilities.
a. Access Channels. The City agrees to return to the Grantee three
(3) of the five (5) Channels previously dedicated for public, edu~ation, and
government access (hereinafter "PEG Access") programming. Tile Grantee
must continue to dedicate two (2) Channels for PEG Access programming. The
two (2) PEG Access Channels must be cablecast on the Basic Caple Service
tier. All Subscribers who receive Cable Services offered on the System must
receive the PEG Access Channels at no additional charge. The VHF spectrum
must be used for the provision of at least one (1) of the PEG Acces& Channels.
Nothing herein shall diminish the City's rights to secure addition~1 channels
pursuant to Minn. Stat. S 238.084, Subd. 1 (z), and applicable FCC regulations.
b. Responsibility for PEG Access. The City will operate, administer,
and manage PEG Access programming pursuant to this Section 4.2. By January
1, 2006 the City will assume responsibility for the channel curren~ly used for
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public access programming. Until such time, the Grantee will continue: to provide
and manage public access programming on the channel. The City ma!y delegate
its PEG Access authority and responsibilities to the Commission. The Grantee
acknowledges that the Commission may coordinate the expenditure o~ Franchise
Fees and PEG Capital Fees by and among the Commission', member
municipalities. Nothing herein shall obligate the City to make eq~ipment or
channels available for public access programming or to any: particular
programmer.
c. Narrowcast. By not later than May 15, 2005, the Grantee must
ensure that at least one (1) PEG Access Channel permits tHe City to
"narrowcast" programming; i.e. permits a program to be cableca~t on such
Channel for viewing solely by City residents while residents in adjoining cities
served by the Grantee simultaneously view other programming on tha~ Channel.
d. Live Origination. The Grantee must ensure that live pr~gramming
may be originated and cablecast from the public institutional sites listed in Exhibit
A attached provided however, that the Grantee shall only be required! to pay the
cost of the first one hundred and fifty (150) feet of any new System cpnstruction
necessary to permit live origination at such site and shall not be required to
provide end-user equipment. The City may designate addi~ional live
programming sites. The City shall pay any additional, actual construction cost
prior to additional construction and shall be responsible for the provislion of end-
user equipment. The Grantee must ensure that the System meets the technical
standards attached as Exhibit B at all live origination sites. The Grantee must
further ensure that the City can "narrowcast" programming originatedi from all of
the sites designated pursuant to this paragraph.
e. PEG Access. Capital Support. In addition to the requijrements of
Section 4.2(a)-(d) above, the City may require Grantee to collect and remit a
PEG Capital Fee of up to eighty-five cents ($.85) per Subscriber, per month to
support community programming. The Grantee shall remit such p~yments on
the same schedule as the Franchise Fee. All amounts paid shall be subject to
audit and recomputation and acceptance thereof does not constitut~ an accord
that amounts paid are correct. For the year 2005, the Grantee must: be notified
by March 1, 2005, and thereafter the Grantee must be notified in writing on or
before October 1 sl of the amount of the PEG Capital Fee to be effective on
January 1 sl of the following year. If the City fails to provide the written notification
required herein by October 1SI, then the PEG Capital Fee for the following
calendar year shall be set at $0.00. Grantee may itemize any PEG Capital Fee
on Subscriber's bills. Payment by Grantee must be separate frbm and in
addition to any Franchise Fee. The City and the Grantee shall jointly fund and
sponsor a Subscriber survey during the fifth and tenth years of this Frtanchise for
the purpose of assessing Subscriber satisfaction with PEG Access programming
and the levels of financial support that Subscribers are willing to provide. Upon
completion of the survey, the City and Grantee shall meet to discuss ithe level of
support for PEG Access programming and enter into good faith discussions
regarding revisions to this Section that may be appropriate in light of the survey.
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f. Use of PEG Capital Fee. The City and Grantee agree tl1at the City
will expend the PEG Capital Fees solely for capital costs (consistent vfith GAAP)
associated with PEG Access. Historically the City has provided, on jan annual
basis, substantial financial support for PEG Access programming. In
consideration for Grantee's obligation to remit the PEG Capital Fe~, the City
agrees to provide financial support for PEG Access that is equivalent to the
amount of PEG Capital Fees collected and provided to the City. By March 31st of
each year, the City shall provide Grantee with an annual rep~rt of any
expenditures of the PEG Access Capital Fee to insure such fees are used for
capital costs related to PEG Access. The annual report shall also demonstrate
how the City fulfilled its requirement to provide matching support for PEG
Access. Based on the report, the Grantee may send a written notice to the City
alleging that the City failed to demonstrate that the PEG Capital Fee was used
for capital or that matching PEG Access support was provided. Th~ City shall
have thirty (30) days after receipt of the written notice to provide additional
information demonstrating compliance with the requirements of this $ection. If
the Grantee continues to allege that the City has not complied with its obligations
herein, the Grantee may provide written notice of its intent to reduce and/or
discontinue collecting and remitting the PEG Capital Fee. If the City disputes the
Grantee's actions, it may initiate any enforcement action under the Cable
Ordinance it deems appropriate.
g. Access Rules. The City may implement rules governing PEG
Access Channels and programming.
h. Parity of Obligations. The City will impose equivalent PEG Access
obligations on any other franchised provider of Cable Service in the ICity to the
extent provided by law.
Section 4.3 Drops and Service to Public Buildings.
a. The Grantee must provide monthly Basic Cable Service: and Cable
Programming Service (excluding pay-per-channel or pay-per-program) and
install one (1) Drop and one (1) outlet without charge to the public Institutional
sites listed in Exhibit A attached. The programming provided by Grantee is not
for public display. The City shall hold the Grantee harmless for any cppyright, or
other penalties, incurred due to improper use of free service. The Gnantee shall
not be required to provide Converters. .
b. The Grantee must provide a Drop, outlet and Basic Cable Service
and Cable. Programming Service to such other accredited public Ischools or
public administration buildings as the City may subsequently designatb, provided
however, that the Grantee shall only be required to pay the cost of the first one
hundred and fifty (150) feet of any necessary System construction. lfhe City or
institution shall pay any additional actual construction cost. The Grantee will
have a reasonable time from the designation of additional sites t4> complete
extension. Additional Drops and/or outlets at institutional locations must be
provided by Grantee at the cost of Grantee's time and material. Alternatively,
institutions may add outlets at their own expense.
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Section 4.4 Drop Box.
The Grantee must maintain a local drop box for receiving Subscriber, payments
in the City.
SECTION 5. ADMINISTRATION PROVISIONS
Section 5.1 Franchise Fee.
a. The Grantee shall pay a Franchise Fee to the City in an amount
equal to five percent (5%) of its Gross Revenues. The Grantee shall remit
Franchise Fee payments to the City on a quarterly basis within 60 qays of the
close of the preceding calendar quarter. Payments shall be basedi on Gross
Revenues generated during the preceding quarter.
b. Each Franchise Fee payment must be accompanied bya report in
form reasonably acceptable to City detailing the computation of the payment. All
amounts paid are subject to audit and recomputation by the I City, and
acceptance of any payment must not be construed as an accord that ~he amount
paid is in fact the correct amount. In accordance with Minn. Stat. ~ 541.05, any
action to recover Franchise Fees must be commenced within six ($) years of
receipt of the Franchise Fee payment or due date for such payment.
c. In the event that any Franchise payment or ~ecomputed payment is
not made on or before the dates specified herein, Grantee shall pay Ian interest
charge, computed from such due date, at the annual rate of one percent over the
prime interest rate.
Section 5.2 Rules of Grantee.
The Grantee may promulgate such rules, terms and conditions governing the
conduct of its business provided that such rules, terms and conditio~s must not
be in conflict with the provisions of this Franchise, the Cable Onliinance, or
applicable laws or regulations.
SECTION 6. INDEMNIFICATION, INSURANCE, BONDS AND SECURITY
FUND
Section 6.1 Indemnification.
By acceptance of this Franchise, the Grantee agrees to indemnify, defend, and
hold the City harmless in accordance with the Cable Ordinance.
Section 6.2 Insurance.
At the time of acceptance of this Franchise, the Grantee will file wit~ the City a
Certificate of Insurance in accordance with the Cable Ordinance. l1he Grantee
must maintain such insurance for the entire term of this Franchise.
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Section 6.3 Performance Bond.
a. The Grantee must furnish to the Commission, for the banefit of the
City, a performance bond in the amount of Fifty Thousand Dollars ($~O,OOO.OO)
in a form and substance reasonably acceptable to the Commission, which bond
may also be used comply with parallel bonding requirements impo$ed by the
other members of the Sherburne-Wright Counties Cable Comrmunications
Commission. At the time of acceptance of this Franchise, the Grantee will file
with the Commission an evidence of receipt of such bond. The Grantee must
maintain the bond until this Franchise expires or is terminated, and the Grantee
has liquidated all of its obligations with the City.
b. The bond shall be conditioned upon Grantee's faithful p$rformance
in accordance with the terms of this Franchise, the Cable Ordi'1ance, and
applicable laws and regulations. The bond must provide that in th~ event the
Grantee fails to comply with any law, ordinance or regulation, any d~mages or
loss suffered by the City as a result, including the full amount of any
compensation, indemnification or cost of removal or abandonm~nt of any
property of the Grantee, plus a reasonable allowance for attorneys' fees and
costs, up to the full amount of the security, will be recoverable ~ointly and
severally from the principal and surety of the bond, and further guaranteeing
payment by the Grantee of claims, liens and taxes due the City whi~h arise. In
the event this Franchise is revoked or the rights hereunder relinquished or
abandoned by Grantee, the City is entitled to collect any resultan~ damages,
costs or liabilities incurred by the City.
c. The City and Grantee acknowledge that it may be: difficult or
impossible to accurately quantify actual damages or losses suffered by the City
due to a violation or unsatisfied obligation under this Franchise,. the Cable
Ordinance, or applicable laws or regulations. Such violations or !unsatisfied
obligations may, however, be presumed to harm the City and tpe public's
interest. Accordingly, the City may, in its reasonable discretion, colleqt liquidated
damages in an amount of up to Two Hundred and Fifty Dollars ($~50.00) per
violation of any provision of this Franchise, the Cable Ordinance, or applicable
laws or regulations. Each violation may be considered a separate violation for
which separate liquidated damages can be imposed.
d. In the event the City will make any claim against the bo~d, the City
must comply with Section 14 of the Cable Ordinance governing enfdrcement of
this Franchise.
e. The City's rights herein are in addition to all other rigt]lts the City
may have and the City's exercise of such rights does not constitute aln exclusive
remedy nor limit any other right.
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Section 6.4 Construction Bond.
a. During periods in which System construction, rebuild, 4pgrade or
line extension costs are expected to exceed Fifty Thousank:! Dollars
($50,000.00), Grantee shall provide a construction bond in an amourilt mutually
agreed upon.
b. Upon completion of System construction requiring provision of a
construction bond, the Grantee must provide written notice to City. Within thirty
(30) days of receipt of such notice, the City must notify the Grantee V\{hether the
construction is complete or specify those items that are not complete, The City
may enforce the construction bond if such items of construction are not
thereafter completed within thirty (30) days. Upon completion of construction or
satisfaction of any items determined to be incomplete, the construl:;tion bond
shall be returned to Grantee.
c. I n the event the City will make any claim against the c(:>nstruction
bond, the City must comply with Section 14 of the Cable Ordinance! governing
enforcement of this Franchise.
d. The City's rights pursuant to the construction bond are in addition
to all other rights the City may have. Any action with respect to the construction
bond does not constitute an exclusive remedy nor limit any other right.
SECTION 7. MISCELLANEOUS REQUIREMENTS
Section 7.1 Amendment of Franchise Ordinance.
The Grantee and the City may mutually agree, from time to time, to flmend this
Franchise. Any changes, modifications or amendments to this Franchise must
be made in writing, signed by the City and the Grantee. Nothin~ herein is
intended to expand or diminish the rights given to City under state law. The City
reserves its lawful rights, including its police powers, ordinance-making authority,
and under power of eminent domain law.
Section 7.2 Force Majeure.
In the event Grantee's performance of this Franchise is prevente<rJ due to a
cause beyond its reasonable control, such failure to perform must be excused for
the period of such inability to perform.
Section 7.3 Severability.
If any term, condition or provision of this Franchise or the applicatiol1 thereof to
any Person or circumstance is held, to any extent, invalid, preempted or
unenforceable, the remainder and all the terms, provisions and conditions herein
must, in all other respects, continue to be effective provided the loss of the
invalid, preempted or unenforceable provisions do not substantially alter the
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agreement between the Parties. In the event a law, rule or regulation is
subsequently repealed, rescinded, amended or otherwise changed sb that the
Franchise provision which had been held invalid, preempted or mOd,fied is no
longer in conflict therewith, such Franchise provision will return to fulliforce and
effect and thereafter be binding upon thirty (30) days written notice to the
Grantee.
Section 7.4 Nonenforcement by City.
The Grantee is not relieved of its obligations to comply with this Franc~ise or the
Cable Ordinance due to any failure or delay of the City to enfor~e prompt
compliance. The City and Grantee may only waive its rights by expressly so
stating in writing.
Section 7.5 Rights Cumulative.
All of the City's and Grantee's rights and remedies pursuant to this Franchise are
in addition to and not exclusive of any and all other rights and remedies available
to the City or Grantee.
Section 7.6 Work Performed by Others.
All obligations of this Franchise apply to work performed by qny agent,
subcontractor or other Person performing any work or services on b~half of the
Grantee pursuant to this Franchise to the extent applicable, however, in no event
will any such Person obtain any rights to maintain and operate a System or
provide Cable Service.
Section 7.7 Entire Agreement.
This Franchise sets forth the entire agreement between the parties. respecting
the subject matter hereof. All agreements, covenants, represent~tions, and
warranties, express and implied, oral and written, of the parties with r~gard to the
subject matter hereof are contained herein. No other agreements, icovenants,
representations or warranties, express or implied, oral or written, have been
made by any party to another with respect to the matter of this Frarchise. All
prior and contemporaneous conversations, negotiations, possible and alleged
agreements, representations, covenants and warranties with respect to the
subject matter hereof are waived, merged herein and therein and are
superseded hereby and thereby.
SECTION 8. ACCEPTANCE OF FRANCHISE
Section 8.1 Publication and Effective Date.
This Franchise will be effective on the date of acceptance by Grantee. This
Franchise shall be enacted and published in accordance with applicable local
and Minnesota law.
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Passed and adopted this 3rd of January 2005.
CITY OF ELK RIVER, MINNESOTA
By:
Its: Mayor
By:
Its: City Administrator
ACCEPTED: This Franchise is accepted and we agree to be bound by its terms
and conditions. .
CC VIII OPERATING LLC D/B/A CHARTER COMMUNICATIONS
By:
Its:
Date:
,2005
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EXHIBIT A
(Live Origination and Free Service Sites)
Elk River
City Hall
Emergency Operations Center
Fire Station 1
Fire Station 2
Ice Arena
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13065 Orono Parkway Elk River 55~30
13073 Orono Parkway Elk River 55~' 30
415 Jackson Street Elk River 5533
13073 Orono Parkway Elk River 55 30
1000 School Street Elk River 55330
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Live/Drop
Live/Drop
Drop
Drop
Live/Drop
EXHIBIT B
(Technical Standards- Live Origination Sites)
With respect to all sites listed in Exhibit A, the System shall meet or 4xceed the
following requirements: I
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1. The System shall operate in conformance with thel' technical
standards promulgated by the FCC pursuant to Title 47, Section. 76.601 to
76.617, as may be amended or modified from time to time.
2. The System shall be capable of continuous 24-hourl operation
without signal degradation. '
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3. The System shall be capable of operation without failu$, material
performance changes or signal degradation over an outdoor temper*ure range
of -40 degrees F to +130 degrees F and over a variation in supply vol~ages from
105 to 130 volts AC. '
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4. The System will provide access channel connections I up to the
demarcation point, both upstream and downstream, without matEtrial signal
degradation or deterioration and with signal quality equal to or bett1r than any
other channels. Material signal degradation or deterioration where lany signal
problem including ghosting or other audio or visual distortion or int~rference is
apparent without special testing. The Grantee shall not be responsible for
technical problems deriving from facilities or equipment located tleyond the
demarcation point, within the institutional site. .
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RESOLUTION #05-02
APPROVING SUMMARY PUBLICATION OF
ORDINANCE #05-01 AND ORDINANCE #05-02
WHEREAS, the City Council for the City of Elk River, Minnesota adopted a
lengthy ordinance titled the "Cable Ordinance" establishing regulations go~erning cable
service; and '
WHEREAS, the City Council has adopted a lengthy ordinance granting a 15-year
cable franchise to CC VIII Operating LLC d/b/a Charter Communicatio~s authorizing
operation of a cable system and delivery of cable services in the City pliJrsuant to the
Cable Ordinance; and
NOW THEREFORE, BE IT RESOLVED that the following sum~arieS of the
ordinances are approved for publication: I
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The Cable Ordinance establishes certain regulations governihg the
delivery of cable service in the City to ensure that all cable provid~rs are
subject to comparable obligations and burdens. The Cable Or~inance
generally sets forth the conditions for the delivery of cable servlce and
requirements for cable franchises under Minnesota Statutes, Chap~er 238.
The ordinance is effective the day after publication.
CITY OF ELK RIVER, MINNESOTA
ORDINANCE #05-01
CITY OF ELK RIVER, MINNESOTA
ORDINANCE #05-02
The Charter franchise ordinance grants a 15-year cable television f~anchise to CC
VIII Operating LLC d/b/a Charter Communications authorizing ~peration of a
cable system and delivery of cable services in the City pursuant to the Cable
Ordinance. The franchise ordinance authorizes Charter to use right~-of-way in the
City to construct, operate and maintain a system to provide cable ser}Jices, imposes
a franchise fee, and sets-forth certain other agreements concerning ~peration of the
system and delivery of cable services. The franchise ordinance is i effective upon
acceptance by Charter.
By Order of the City of Elk River, Minnesota
ATTEST:
By
By
Its Mayor
Its City Clerk
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