4.5. SR 02-04-2019Request for Action
To
Item Number
Mayor and City Council
4.5
Agenda Section
Meeting Date
Prepared by
Consent
February 4, 2019
Tina Allard, City
Clerk
Item Description
Reviewed by
Cable Franchise Renewal
Cal Portner, City
Administrator
Reviewed by
Action Requested
1. Adopt, by motion, a regulatory ordinance which establishes certain regulations governing the
delivery of cable television to ensure all cable providers are subject to comparable obligations and
burdens.
2. Adopt, by motion, an ordinance granting a franchise to Charter Communications to construct,
operate, and maintain a cable system and provide cable service.
3. Adopt, by motion, a resolution for summary publication of the regulatory and franchise ordinances.
Background/Discussion
The current franchise agreement with Charter/ Spectrum is set to expire in February 2020. Attorney Bob
Vose has been working with Charter on renewal of the franchise agreement.
No modifications of substance have been made from the current agreement to the new agreement. The
main disagreement was over free cable service to city facilities. This has been clarified and specific city
sites are now listed in the agreement.
Financial Impact
The Franchise Fee remains at 5% of video -related gross revenues and are used to pay for such items as
attorney fees, equipment and channel needs, and certain communications related items. The PEG Fee
remains at $0.85 per subscription/per month. and is required to be utilized toward channel programming.
Attachments
■ Basic Cable Information
■ Attorney Memo
■ Regulatory Ordinance
■ Franchise Ordinance
■ Summary Publication Resolution
The Elk River Vision
A PehoMing community Pitb revolutionary and spirited resourcefulness, exceptional P,` 01 W E H E 8 6 T
service, and community engagement that encourages and inspires prosperity INAWRE1
Basic Cable Information
Cable television is regulated through federal and state law, along with a local franchise agreement through
the City of Elk River. A franchise agreement allows a cable company to operate cable television in the city
and run on fiber line in city owned right-of-way. The city collects fees as compensation for the cable
company's use of operating their systems in our right-of-way.
Elk River has a 15 year franchise agreement with Charter Communications (Spectrum) set to expire in
February 2020. Elk River is part of the Sherburne Wright Cable Commission, a joint powers organization
that oversees the operation of the cities' cable franchise. Ten cities are part of the commission. The
commission meets as needed, typically 4 or fewer times per year and acts on behalf of the member cities
to enforce and administer their franchises and monitor the overall performance of the cable franchisee
with their customers. The administration of the franchise can include handling customer service issues,
the company's use of the public right-of-way, and equipment and channel issues.
The commission's attorney, Bob Vose, has been working with Charter on renewal of the franchise
agreement. Via the franchise agreement, the city receives certain benefits in order to transparently
communicate with the community, and includes:
■ Channels to use for programming.
■ Dedicated fiber to help connect government facilities to video and data services.
■ PEG and franchise fees.
■ Complimentary basic cable service to certain public safety facilities.
■ Allowing residents to receive cable TV and other technology services from Charter.
The franchise agreement is non-exclusive meaning other cable television providers wanting to offer
services in the city are more than welcome to do so.
The franchise pertains only to the cable television services. Per federal law, the city doesn't have any role
in the regulation of the cable company's internet or telephone services. Internet concerns are addressed
by the Federal Communications Commission (FCC) and phone services to the Minnesota Public Utilities
Commission (PUC).
The federal government has substantially deregulated the cable industry with the intent of encouraging
competition in the cable, telephone, and internet arenas and is continuing to change as technology
changes. As a result the city's franchising authority is limited in what it can review. The city can't regulate
cable pricing, programming, or equipment to be used by the cable operator.
Complaints received by the city consist of fiber lines run over property, typically during winter/spring as
the snow melts. The local cable office is contacted to remedy the issues. Common complaints seen online
are typically about internet speeds, which the city has no authority to regulate.
MEMORANDUM
DATE: December 14, 2018
TO: Sherburne -Wright Counties Cable Commission
FROM: Bob Vose
RE: Franchise Renewal
By letters to the member cities in May, 2017, Charter requested renewal of its franchises. The
franchises were last renewed in 2004 and expire in early 2020.
The Commission discussed Charter's renewal request in June, 2017. At that time, I reported that
cable operators were beginning to seek to reduce the availability of PEG channels, limit the
availability of high definition (HD) for PEG (because it uses valuable capacity), and reduce PEG
funding in franchise renewals. Based on this feedback, the Commission directed me to seek to
preserve the current arrangement to the extent possible. The Commission emphasized a desire to
protect the current community programming arrangement and its two PEG channels, provide for
the future delivery of PEG in HD, and preserve franchise fee and PEG fee funding.
Our negotiations with Charter have been productive. However, as I recently advised, many cable
operators have changed their bargaining positions in renewals due to a recent proposed FCC
rulemaking. The FCC has proposed rules that would allow cable operators to offset the "value"
of a variety of in-kind commitments from franchise fees. By proposing to allow cable operators
to reduce their franchise fee payments by the "value" of certain other franchise commitments, the
FCC has given cable operators added leverage in pending negotiations.
Notwithstanding, we have achieved the Commission's primary goals. In turn, we have
compromised regarding the provision of "free" cable services and converters to city and
institutional sites, and regarding the addition of language to address the future potential for
competition.
I am comfortable having the Commission recommend approval and adoption of the negotiated
renewal to its member cities. A summary of the most significant changes to the franchise and
regulatory ordinance follows.
• The Franchise(s) will be renewed again for 15 years even though the cable industry
generally is seeking shorter (often 10 year) renewals. We view this as beneficial.
RJV-254155v1 1
SH255-1
Offices in
470 U.S. Bank Plaza
�nnedY
200 South Sixth Street
Minneapolis
Minneapolis MN 55402
Saint Paul
(612) 337-9300 telephone
p
rave
(612) 337-9310 fax
St. Cloud
www.kennedy-graven.com
C H A R T E R E D
rvo se kkennedy- graven. corn
AtImnative Action Equal Opportunity Employer
MEMORANDUM
DATE: December 14, 2018
TO: Sherburne -Wright Counties Cable Commission
FROM: Bob Vose
RE: Franchise Renewal
By letters to the member cities in May, 2017, Charter requested renewal of its franchises. The
franchises were last renewed in 2004 and expire in early 2020.
The Commission discussed Charter's renewal request in June, 2017. At that time, I reported that
cable operators were beginning to seek to reduce the availability of PEG channels, limit the
availability of high definition (HD) for PEG (because it uses valuable capacity), and reduce PEG
funding in franchise renewals. Based on this feedback, the Commission directed me to seek to
preserve the current arrangement to the extent possible. The Commission emphasized a desire to
protect the current community programming arrangement and its two PEG channels, provide for
the future delivery of PEG in HD, and preserve franchise fee and PEG fee funding.
Our negotiations with Charter have been productive. However, as I recently advised, many cable
operators have changed their bargaining positions in renewals due to a recent proposed FCC
rulemaking. The FCC has proposed rules that would allow cable operators to offset the "value"
of a variety of in-kind commitments from franchise fees. By proposing to allow cable operators
to reduce their franchise fee payments by the "value" of certain other franchise commitments, the
FCC has given cable operators added leverage in pending negotiations.
Notwithstanding, we have achieved the Commission's primary goals. In turn, we have
compromised regarding the provision of "free" cable services and converters to city and
institutional sites, and regarding the addition of language to address the future potential for
competition.
I am comfortable having the Commission recommend approval and adoption of the negotiated
renewal to its member cities. A summary of the most significant changes to the franchise and
regulatory ordinance follows.
• The Franchise(s) will be renewed again for 15 years even though the cable industry
generally is seeking shorter (often 10 year) renewals. We view this as beneficial.
RJV-254155v1 1
SH255-1
• Two PEG channels continue to be required—one programmed areawide by the
Commission, and one narrowcast for individualized programming within each member
city. Existing live origination sites are retained.
• Within 120 days, the areawide channel must be made available in HD. Thereafter, when
substantially all other channels are in HD, the city channels must be available in HD.
• The Franchise Fee remains at 5% of gross revenues. The PEG Fee remains at $.85 per
sub/per mos. Even before the FCC proposed rulemaking, Charter has resisted PEG Fees
of this amount in renewals. Language has been added more clearly restricting PEG Fees
to capital costs consistent with GAAP, and requiring that the Commission and members
also support PEG access programming at an equivalent level (presumably from Franchise
Fees).
• The existing service area/system extension requirements are retained. The system must
be extended wherever there are at least 9 homes per 1/4 mile of new cable required to
provide service.
• The existing system capacity and technical requirements are retained.
• There are a number of revisions in both the Franchise and Regulatory Ordinance
reflecting the fact that the member cities have enacted comprehensive ROW regulatory
ordinances as required by state law. These changes reflect that such ROW ordinances
will control ROW management issues and that municipal authority over the ROW has not
been waived or limited. We believe all or nearly all member cities have enacted such
ROW ordinances.
• The right to free cable service (and we have argued, free converters) has been limited to
specified sites listed in Ex. A-2 to the Franchise, and generally only one converter per site
will be provided. This is a compromise.
• The existing $50,000 performance bond, insurance requirements, indemnification
obligations, and Franchise enforcement mechanisms remain essentially unchanged.
• The existing customer service obligations have been streamlined, however we believe all
rights to address current, relevant customer concerns remain.
• The renewal includes new "Equal Protection" language (Reg. Ord., Sec. 14.4). To
summarize, this language will require that any competitive cable provider be subjected to
essentially the same obligations and commitments and will give Charter more extensive
rights to enforce this requirement.
RJV-254155v1 2
SH255-1
Ordinance No. 19 -
An Ordinance Establishing Certain Regulations Governing the Delivery of Cable
Service in the City of Elk River, Minnesota
The City Council of the City of Elk River, Minnesota ordains:
REPEAL AND REPLACE Ordinance 05-01, Cable Ordinance, is hereby repealed in its entirety
and replaced with the following:
SECTION I. 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 seg., 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).
b. "Cable Communications System," "Cable System" or "System" has the meaning
ascribed in Cable Act Section 522(7).
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" shall mean a portion of the electromagnetic frequency spectrum which is
used in a Cable System and which is capable of delivering a television channel.
RJV-247390v5
SH255-1
f "C4" 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.
h. "Converter" means a customer premises device required to receive Cable Service.
i. "DYop" means the cable that connects the ground block at the Subscriber's location to
the nearest distribution point of the System.
j. "FCC" means the Federal Communications Commission, or its lawful successor.
k. "Franchise", "Cable Franchise" or "Franchise Agreement" 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.
1. "Franchise Fee" has the meaning ascribed in Cable Act Section 542(g).
M. "Grantee" is any recipient of a Franchise, and its agents and employees, lawful
successors, transferees or assignees.
n. "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.
o. "Installation" means the connection of a System from a distribution cable to the point
of connection, including Standard Installations and custom Installations.
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 as required by a Franchise.
s. "Person" has the meaning ascribed in Cable Act Section 522(15).
RJV-247390v5 2
SH255-1
t. "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 local government
unit has an interest, including other dedicated rights-of-way for travel purposes and utility
easements of local government units.
u. "Right -of -Way Ordinance" means an ordinance of general applicability adopted and
uniformly applied as to similarly situated ROW occupants 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 of 125 feet 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. § 153(46).
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. Notwithstanding any provision to the
contrary, any Franchises and this Cable Ordinance shall at all times be subject to, and without
waiving, applicable law.
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. The City shall comply with Section 14.4 of this Cable Ordinance in the event an
additional provider is legally authorized to provide Cable Service.
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.
RJV-247390v5 3
SH255-1
Section 4.2 Use of Rights -of -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 generally applicable legal requirements including any Right -of -
Way Ordinance enacted by the City and Section 5 herein.
b. Upon written request, the City shall have the right to review, subject to the
confidentiality protections provided in Section 9.3 herein, Grantee's System location maps at a
mutually agreed upon location.
Section 4.3 Tree Trimming
Subject to applicable law, 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.
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.
c. Upon receipt of an application for an initial Franchise, City staff will 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.
RJV-247390v5
SH255-1
Section 4.7 Franchise Renewal.
Franchise renewals will be conducted in accordance with applicable laws.
SECTION S. CONSTRUCTION STANDARDS
Section S. I Registration, Permits and Construction Codes.
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 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.
Section 5.2 Repair of Rights -of -Way and Property.
a. Consistent with any generally applicable Rights -of -Way Ordinance adopted by the City
or applicable law if a City has not adopted a Rights -of -Way Ordinance, 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 reasonable 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 of 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.
b. A Grantee must bury new underground 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 [Intentionally Omitted]
Section 5.5 Safety Requirements.
a. A Grantee shall at all times keep and maintain the System in good condition, order, and
repair so as to avoid endangering the life or property of any Person; employ ordinary and
reasonable care and common industry practices to avoid causing damage, injuries, or nuisances to the
public, and; keep and maintain the System in accordance with all federal, state and local laws and
regulations including the National Electric Safety Code.
RJV-247390v5
SH255-1
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.
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.
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.
b. Demand for special tests may be made on the basis of complaints received or other
evidence indicating an unresolved controversy or noncompliance. Such tests shall be limited to the
RJV-247390v5
SH255-1
particular matter in controversy or unresolved complaints. The City shall arrange its request for
such special testing so as to minimize hardship or inconvenience to Grantee or to the Subscribers
caused by such testing. Before ordering such tests, Grantee shall be afforded thirty (30) Days to
correct problems or complaints upon which tests were ordered. The City shall meet with Grantee
prior to requiring special tests to discuss the need for such and, if possible, visually in those
locations which are the focus of concern. If, after such meetings and inspections, City wishes to
commence special tests and the thirty (30) Days have elapsed without correction of the matter in
controversy or unresolved complaints, the tests shall be conducted by a qualified engineer mutually
selected by City and Grantee based on a mutually agreed upon scope of work and cost. The parties
shall bear their respective costs for the testing, with the City bearing the cost of special testing
unless such testing reveal that the source of the technical difficulty is within the Grantee's
reasonable control, in which case the cost of the testing must be borne by the Grantee.
Section 6.6 FCC Reports.
The results of tests required to be filed by Grantee with the FCC shall also be copied to City.
Section 6.7 Emergency Alert System.
A Grantee shall comply with 47 U.S.C. 544(g) and all regulations issued pursuant thereto with
respect to an Emergency Alert System ("EAS"). If a Grantee provides an EAS, then the City shall
permit only appropriately trained and authorized Persons to operate the EAS equipment and shall
take reasonable precautions to prevent any use of the Grantee's Cable System in any manner that
results in inappropriate use thereof, or any loss or damage to the Cable System. The City shall hold
the Grantee, its employees, officers and assigns harmless from any claims or costs arising out of use
of the EAS, including, but not limited to, reasonable attorneys' fees and costs.
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
and 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. For
purposes of this section, the availability of this information on a Grantee's website shall constitute
compliance. A Grantee shall comply with applicable law in providing the City and Subscribers with
notice of any change in a Cable Service rate or charges.
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.
RJV-247390v5
SH255-1
Section 7.3 Telephone Inquiries and Complaints.
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, as amended, 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 for a period of three (3) years, including
the date of such resolution.
b. Written complaint records for a period of three (3) years 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 detailed compliance reports
on a quarterly basis for a period of three (3) years 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 answering standards contained in this Section
unless a historical record of complaints indicates a failure to comply.
Section 7.5 Subscriber Contracts.
A Grantee must provide to the City upon request any standard form residential 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 shall comply with federal law regarding giving the City and Subscribers prior
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.
RJV-247390v5
SH255-1
Section 7.8 Refunds and Credits.
A Grantee shall comply with applicable law regarding the issuance of refunds or credits.
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.
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 established in the
Franchise Agreement, provided that the City must impose identical Franchise Fee obligations
(including the percentage and Gross Revenue definition) on all Cable Service providers in the City.
b. Each Franchise Fee payment must be accompanied by a report certified by an
authorized representative of the Grantee, in form reasonably acceptable to City, detailing the
computation of the payment. All amounts paid must be subject to audit and recomputation by the
City for the statutorily -allowed period applicable to assertion of contract claims, 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.
RJV-247390v5 9
SH255-1
Section 9.3 Access to Records.
a. The City may, upon reasonable notice and during Normal Business Hours, and subject
to the privacy provisions of 47 U.S.C. § 521 et seq., inspect at a mutually convenient location any
records of System operations maintained by a Grantee that relate to a Grantee's compliance with its
Franchise, including specifically 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.
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 agents 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, operation, maintenance, repair or removal of
a System or other facilities used by a Grantee to deliver Cable Service.
b. A Grantee must indemnify, defend, and hold the City, its officers, boards, committees,
commissions, elected officials, employees and agents, harmless from and against all lawsuits, claims,
actions, liability, damages, costs, expenses or penalties incurred as a result of the award or
enforcement of its Franchise.
c. A Grantee shall not be required to provide indemnification or defense for any
intentional misconduct, willful neglect or negligence by an indemnified party, for any enforcement
action taken by the City against a Grantee, for any claim based solely on the City's operation of
PEG Access Facilities, delivery of PEG Access programming, or EAS messages originated by the
City. Subject to the limitations in Minnesota Statutes Chapter 466, the City shall indemnify, defend
and hold a Grantee harmless from any damage resulting from any intentional misconduct, willful
neglect or negligence by the City, its officers, boards, committees, commissions, elected officials,
employees and agents, in utilizing PEG Access Facilities or Channels, delivering EAS messages
originated by the City, or in connection with work performed on or adjacent to the System.
d. With respect to each claim for indemnification:
L the City must notify the Grantee in writing of its duty under this section within
ten (10) days of receipt of any suit, claim or proceeding which'gives rise to such
duty;
2. the Grantee must afford the City an opportunity to participate in any
compromise, settlement or other resolution or disposition of any suit, claim or
proceeding; and
RJV-247390v5 10
SH255-1
3. the City must cooperate with reasonable requests of the Grantee, at Grantee's
expense, in its participation in a suit, claim or proceeding.
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 protection 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 than One MMon Dollars
($1,000,000.00) for bodily injury or death of any one Person, and Two Amon Dollars
($2,000,000.00) for bodily injury or death of two or more Persons in any one 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 any one act or occurrence.
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 must contain a statement on its face that the
insurer will not cancel the policy or fail to renew the policy, whether for nonpayment of premium,
or otherwise, and whether at the request of Grantee or for other reasons, except after thirty (30)
days advance written notice have been provided to the City.
SECTION 11. FRANCHISE TRANSFER OR ABANDONMENT
Section 1 1.1 Abandonment of Service.
A Grantee may not discontinue the provision of Cable Service without having first given
three (3) months written 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 non -Cable 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.
RJV-247390v5 11
SH255-1
Section 1 1.3 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 ownership. 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 proposed new Grantee becomes a
signatory to, and assumes all rights and obligations under, the Franchise.
d. In the event a Grantee has received a bona fide offer for purchase of its System, the
City shall have the right to purchase the System for the same price and under equivalent conditions
which 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, within 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 against 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. §
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.
RJV-247390v5 12
SH255-1
a. It is unlawful for any Person, without the express consent of the 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 offense.
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.
b. The Grantee shall have thirty (30) days subsequent to receipt of the notice to cure the
violation or occurrence giving rise to the City's action. Alternatively, 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 and shall toll the running of the
timeframes and the accrual of penalties hereunder until completion of the process and issuance of a
decision under section 14.1c -e below.
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 affording 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:
RJV-247390v5 13
SH255-1
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 material 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 regarding Cable Service or
the System as they become effective.
Section 14.4 Equal Protection.
The City acknowledges that under Minn. Stat. §238.08, Subd. 1(b) it may only grant additional
Franchises to provide Cable Service within the City on terms and conditions no more favorable or
less burdensome than those in any then -current Franchise which pertain to: (1) the area served; (2)
public, educational, or governmental access requirements; or (3) franchise fees. Additionally, and
beyond the requirements of Minn. Stat. §238.08, any additional Franchises to provide Cable Service
within the City shall not be granted on more favorable or less burdensome conditions than those in
any then -current Franchise issued pursuant to this Cable Ordinance with regard to ROW access and
responsibilities, complimentary service to public buildings, penalties and security, sale or transfer of
ownership.
a. If any other provider of Cable Services is lawfully authorized by the City to provide such
services using facilities located wholly or partly in the Rights -of -Way of the City ("Additional
Provider(s)"), the City shall, within thirty (30) days of a written request from a current
Franchise holder, use best efforts to modify the current Franchise holder's Franchise on a
mutually acceptable basis to ensure that the obligations imposed by this Section 14.4 have
been met.
b. If the City fails to comply with this Section 14.4 or the parties fail to reach agreement under
subsection a. above, a current Franchise holder shall have the right to initiate an action in
the state or federal district court for breach of contract or other appropriate claims and seek
any and all appropriate relief, including specific performance.
C. Nothing in this Ordinance shall impair the right of the City or a current Franchise holder to
seek other remedies available under law.
d. In the event City initiates the franchising process pursuant to Minn. Stat. §238.081, the City
shall notify all current Franchise holders in writing of its intent to initiate the franchising
process prior to doing so.
RJV-247390v5 14
SH255-1
e. A current Franchise holder shall have the right to operate its Cable System in accordance
with applicable state or federal law, as may be amended from time to time.
Section 14.5 Effective Date
This Cable Ordinance is effective the day after its publication.
Adopted by the City Council of the City of Elk River this 4 I day of February, 2019.
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk
RJV-247390v5 15
SH255-1
City of
Elk CITY OF ELK RIVER, MINNESOTA
River ORDINANCE NO. 19 --
An Ordinance Granting a Franchise to CC VIII Operating LLC L/K/A
Charter Communications to Construct, Operate, and Maintain a Cable
System and Provide Cable Service in the City of Elk River, Minnesota.
REPEAL AND REPLACE Ordinance 05-02, granting a cable franchise to CC VIII
Operating LLC L/K/A Charter Communications is hereby repealed in its entirety and
replaced with the following:
RECITALS
1. This Cable Franchise Ordinance ("Franchise") is made and entered into by and between
the City of Elk River, a municipal corporation of the State of Minnesota ("City") and CC
VIII Operating LLC 1/k/a Charter Communications, a limited liability company
("Grantee").
2. Pursuant to Ordinance No. 19- ("Cable Ordinance"), the City is authorized 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 pursuant to Section
626(h) of the Cable Act.
4. Upon evaluation of Grantee's technical, financial, legal qualifications, completion of
Franchise negotiations, and as a result of a public hearing, the City finds that it is in the best
interests of the City and its residents to renew the Franchise with 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, MINNESOTA
HEREBY ORDAINS:
SECTION (.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. Terms, phrases and words contained in
this Franchise that are not defined here or in the Cable Ordinance will be as defined in
applicable law.
526220v5 RJV SH255-14
Section 1.2 Written Notice.
All notices, reports, or demands required to be given in writing 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 sealed envelope, with registered or
certified mail postage prepaid 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 Parkway
Elk River, MN 55330
With copies to: Chair, Sherburne/Wright Counties Cable
Communications Commission
C/o City of City of Buffalo
212 Central Avenue
Buffalo, MN 55313
If to Grantee: Charter Communications
Attn: Government Affairs
16900 Cedar Avenue South.
Rosemount, MN 55068
With copies to: Charter Communications
Attn: VP of Government Affairs
601 Massachusetts Ave. NW, Suite 60OW
Washington, DC 20001
Such addresses may be changed by either party upon notice to the other 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 existence and as may be created or
established during the term of this Franchise any poles, wires, cable, underground conduits,
manholes, and other conductors and 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 from 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, in all cases subject to
and without waiving applicable law. 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
526220v5 RJV SH255-14 2
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.
c. This Franchise 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 this Franchise and Grantee shall have all rights
provided by Section 14.4 of the Regulatory Ordinance in the even an additional Franchise(s)
is granted. The City may impose additional terms and conditions in any additional
Franchise.
d. The City shall comply with Section 14.4 of the Cable Ordinance in the event an
additional provider is legally authorized to provide Cable Service.
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 supersede
and replace any previous ordinance or other authorization granting a Franchise to Grantee,
and all rights, obligations and claims under any previous Franchise are extinguished, except
that the 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 subject to applicable law.
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 of the City, as it
exists from time to time, subject to the density requirement of Section 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 subject to Section 2.3b below.
b. The Grantee will extend its System and offer Cable Service, 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
accessible Cable System tie-in point actively delivering Cable Service as of the date of such
request for Service. Where the density is less 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 the required payment amount within fifteen (15) days of the request
for Service. The charge for Installation or extension for each Person requesting Service
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 installation charges to extend the
Cable System from the tap to the residence.
SECTION 3.SYSTEM
Section 3.1 System Capacity.
526220v5 RJV SH255-14 3
Grantee will continue to operate a System providing a minimum of at least 75 video
programmed Channels throughout the term of this Franchise. The System must have
return capability and permit "narrowcasting" as provided in Section 4.2(c).
Section 3.2 Construction Deadline.
Except for Grantee's System extension obligations pursuant to Section 2.3, System
construction is substantially complete. Subject to Section 2.3b above, Grantee will use
commercially reasonable 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 of all new
developments to Grantee.
SECTION 4.COMMUNITY SERVICES
Section 4.1 Commercial Video Programming.
The Grantee will provide broad categories of video programming, including news, sports
and entertainment.
Section 4.2 PEG Access Facilities.
a. Access Channels. The Grantee shall continue to dedicate two (2) Channels
for public, education, and government access ("PEG Access") programming. The two (2)
PEG Access Channels must be cablecast on the Basic Cable Service tier. All Subscribers
who receive Cable Services offered on the System must receive the PEG Access Channels
at no additional charge. Only to the extent required by Minn. Stat. §238.084, Subd. 1. (z)
and permitted by applicable law, the VHF spectrum must be used for the provision of at
least one (1) of the PEG Access Channels. Nothing herein shall diminish the City's rights
to secure additional channels pursuant to Minn. Stat. § 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. The City may delegate its
PEG Access authority and responsibilities to the Commission. The Grantee acknowledges
that the Commission may coordinate the expenditure of Franchise Fees and PEG Capital
Fees by and among the Commission's member municipalities. Nothing herein shall obligate
the City to make equipment or channels available for public access programming or to any
particular programmer.
C. Narrowcast. The System currently allows one (1) PEG Access Channel to
be "narrowcast;" i.e. permits a program to be cablecast on such Channel for viewing solely
by Subscribers in one City while Subscribers in adjoining cities served by the Grantee and
who are members of the Commission simultaneously view other programming on that
Channel. Grantee shall continue to ensure that such narrowcasting is provided on the
System.
d. Live Origination. The Grantee shall continue to provide two-way capability
permitting transmission of live programming from the public institutional sites listed in
526220v5 RJV SH255-14 4
Exhibit A-1 attached. The Grantee shall not be required to provide end-user equipment.
The City may designate relocated or additional live programming sites provided that the City
shall pay the actual construction cost of connecting such relocated or additional live
programming sites prior to the Grantee's construction of same. 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
originated from City Hall consistent with Section 4.2c.
e. High Definition.
(i) Within one hundred and twenty (120) days after the Effective Date, unless
delayed by events out of Grantee's reasonable control, the Grantee shall convert the
Commission's area -wide PEG Access Channel (i.e. the Channel that is not
"narrowcast" to each member city pursuant to Section 4.2(c)) to high definition
("HD") provided that the programming signals are provided to the Grantee in HD
and meet Grantee's technical specifications for HD channels. Thereafter, at such
time as Grantee makes at least 90% of all non -PEG Channels available in HD, the
Grantee shall also convert the "narrowcast" PEG Access Channel to HD provided
that the programming signals are provided to the Grantee in HD and meet
Grantee's technical specifications for HD channels. The City understands that,
although the Grantee must ensure that the PEG Access Channels are cablecast on
the Basic Cable Service tier and available to all Subscribers at no additional charge,
the HD PEG Access Channel will not be located on the Basic Cable tier, the signal
from the HD PEG Access Channels may not be available in HD on the Basic Cable
tier of service, and Grantee shall have no obligation to carry PEG Access Channels
in more than one format; i.e. dual carriage. Grantee's costs to purchase equipment
to convert and distribute programming on the PEG Access Channels in HD will be
reimbursed by the City or Commission in an aggregate amount not to exceed Seven
Thousand Five Hundred Dollars ($7500.00) within sixty (60) days of receipt of
invoices evidencing Grantee's expenditures. ii) The City acknowledges that in
order to receive Access Channels in HD format Subscribers may be required to buy
or lease special equipment, or pay additional HD charges applicable to all HD
services,
f. PEG Access Capital Support. In addition to the requirements of Section
4.2(a) -(d) above, the Grantee shall collect and remit a PEG capital fee of up to eighty-five
cents ($.85) per Subscriber, per month ("PEG Capital Fee"). The Grantee shall remit such
payments on the same schedule as the Franchise Fee. All amounts paid shall be subject to
audit and recomputation and acceptance thereof does not constitute an accord that
amounts paid are correct. The PEG Capital Fee as of the Effective Date is eighty-five
cents ($.85) per Subscriber, per month. Grantee may itemize any PEG Capital Fee on
Subscriber's bills. Payment by Grantee must be separate from and in addition to any
Franchise Fee.
g. Use of PEG Capital Fee. The City and Grantee agree that the City will
expend the PEG Capital Fees solely for capital costs (consistent with GAAP) associated
with PEG Access. In consideration for Grantee's obligation to remit the PEG Capital Fee,
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. Within sixty (60) days of
written request, the City shall provide Grantee with an annual report of any expenditures of
the PEG Access Capital Fee to insure such fees are used for capital costs related to PEG
526220v5 RJV SH255-14 $
Access. The 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. The City shall have
thirty (30) days after receipt of the written notice to provide additional information
demonstrating compliance with the requirements of this Section. 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.
h. Access Rules. The City may implement rules governing PEG Access
Channels and programming.
i. Parity of Obligations. The City will impose equivalent PEG Access
obligations on any other franchised provider of Cable Service in the City.
Section 4.3 Drops and Service to Public Buildings.
a. The Grantee must provide, without charge, monthly Basic Cable Service and
Cable Programming Service (excluding pay -per -channel or pay -per -program), one (1) Drop,
one (1) outlet, and one (1) Converter of the type and functionality made available to
Subscribers ("Complimentary Service") to the public institutional sites listed in Exhibit A-2
attached. The programming provided by Grantee is not for public display. The City shall
hold the Grantee harmless for any copyright, or other penalties, incurred due to improper
use of free service. If additional Converters or other customer premises equipment
("CPE") are required to receive Complimentary Service, Grantee reserves the right to
charge the institution the published rate for such CPE consistent with applicable law.
b. The Grantee shall connect such additional public administration buildings as
the City may subsequently designate, 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, and further provided that the City or institution shall pay any
additional mutually agreed upon construction cost. The Grantee will have a reasonable time
from the designation of additional sites to complete extension. Institutions may add outlets
at their own expense. The Grantee shall only be required to provide Complimentary
Service to the extent a newly designated building replaces a site previously receiving such
service.
Section 4.4 Receipt of Subscriber Payments
The Grantee must maintain a convenient means for Subscribers to make payments such as
the ability to make payments electronically via a company website.
SECTION S. ADMINISTRATION PROVISIONS
Section S.I Franchise Fee.
526220v5 RJV SH255-14
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 days of the close of the preceding calendar quarter.
Payments shall be based on Gross Revenues generated during the preceding calendar
quarter. In the event Grantee offers a bundle or package of Cable Services and non -Cable
Services at a discounted rate, the Grantee must allocate revenues between Cable Services
subject to the Franchise Fee and non -Cable Services that are not subject to the Fee on a
proportionate pro rata basis in accordance with Generally Accepted Accounting Principles
("GAAP"). In no event shall the Grantee allocate the revenues to evade its Franchise Fee
obligations under this Franchise or to disproportionately reduce Gross Revenues.
b. Each Franchise Fee payment must be accompanied by a report in form
reasonably acceptable to City detailing the computation of the payment. All amounts paid
are subject 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. In
accordance with Minn. Stat. § 541.05, any action to recover Franchise Fees must be
commenced within three (3) years of receipt of the Franchise Fee payment or due date for
such payment.
C. In the event that any Franchise payment or recomputed payment is not
made on or before the dates specified herein, Grantee shall pay an 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 conditions must not be in conflict with the
provisions of this Franchise, the Cable Ordinance, 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 with the City a Certificate
of Insurance in accordance with the Cable Ordinance. The Grantee must maintain such
insurance for the entire term of this Franchise.
Section 6.3 Performance Bond.
a. The Grantee must furnish to the Commission, for the benefit of all member
cities of the Commission, a single performance bond in the amount of Fifty Thousand
526220v5 RJV SH255-14
Dollars ($50,000.00) in a form and substance reasonably acceptable to the Commission.
The single bond provided to the Commission shall comply with the parallel bonding
requirements imposed by the other members of the Commission. The Grantee must
maintain the bond until this Franchise expires or is terminated.
b. The bond shall be conditioned upon Grantee's faithful performance in
accordance with the terms of this Franchise, the Cable Ordinance, and applicable laws and
regulations. The bond must provide that in the event the Grantee fails to comply with any
law, ordinance or regulation, any damages or loss suffered by the City as a result, including
the full amount of any compensation, indemnification or cost of removal or abandonment
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 jointly 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 which arise. In the event this Franchise is revoked or the rights
hereunder relinquished or abandoned by Grantee, the City is entitled to collect any resultant
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 the public's interest. Accordingly, the City may, in its reasonable discretion,
collect liquidated damages in an amount of up to Two Hundred and Fifty Dollars ($250.00)
per violation of any provision of this Franchise, the Cable Ordinance, or applicable laws or
regulations in an amount not to exceed Five Thousand Dollars ($5,000.00) in any calendar
year. 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 bond or otherwise
seeks to assess liquidated damages, the City must comply with Section 14 of the Cable
Ordinance governing enforcement of this Franchise.
e. The City's rights herein are in addition to all other rights the City may have
and the City's exercise of such rights 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 amend this Franchise.
Any changes, modifications or amendments to this Franchise must be made in writing,
signed by the City and the Grantee. Nothing 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.
526220v5 RJV SH255-14 8
In the event Grantee's performance of this Franchise is prevented 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 application 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 agreement between the Parties. In the event a law,
rule or regulation is subsequently repealed, rescinded, amended or otherwise changed so
that the Franchise provision which had been held invalid, preempted or modified is no
longer in conflict therewith, such Franchise provision will return to full force 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 Franchise or the Cable
Ordinance due to any failure or delay of the City to enforce 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 any agent, subcontractor or
other Person performing any work or services on behalf 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, representations, and warranties, express and
implied, oral and written, of the parties with regard to the subject matter hereof are
contained herein. No other agreements, covenants, representations or warranties, express
or implied, oral or written, have been made by any party to another with respect to the
matter of this Franchise. 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 &ACCEPTANCE OF FRANCHISE
526220v5 RJV SH255-14 9
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.
Section 8.2 Time for Acceptance.
a. The Grantee must accept this Franchise within sixty (60) days of enactment
by the City, unless the time for acceptance is extended by the City. Acceptance by the
Grantee will be deemed the grant of this Franchise for all purposes.
b. Upon acceptance of this Franchise, the Grantee and City will be bound by
all the terms, conditions and obligations contained herein.
Section 8.3 Manner for Acceptance.
The Grantee must accept this Franchise in the following manner:
a. The Franchise must be fully executed and acknowledged by Grantee and
delivered to the City.
b. The Grantee must also deliver any construction bond and insurance
certificates required herein that have not previously been delivered, with its acceptance.
Section 8.4 Failure to Accept.
In the event the Grantee does not timely accept this Franchise in accordance with the
requirements herein, this Franchise and all rights granted herein are null and void.
Passed and adopted this 41h of February, 2019.
CITY OF ELK RIVER
M
John J. Dietz, Mayor
Tina Allard, City Clerk
ACCEPTED: This Franchise is accepted and we agree to be bound by its terms and
conditions.
CC VIII OPERATING LLC L/K/A CHARTER COMMUNICATIONS
I
Its:
Date:
2019
526220v5 RJV SH255-14 10
EXHIBIT A-1
(Live Origination Sites)
City of Big Lake, City Hall 160 Lake St N, Big Lake, MN 55309
City of Buffalo, City Hall* 212 Central Ave, Buffalo, MN 55313
City of Cokato, City Hall 255 Broadway Ave S, Cokato, MN 55321
City of Cokato, Fire Hall 7457 1h Street SW, Cokato, MN 55321
City of Dassel, City Hall 460 3rd St, Dassel, MN 55325
City of Delano, City Hall
234 2nd St N, Delano, MN 55328
City of Elk River, City Hall
13065 Orono Pkwy NW, Elk River, MN 55330
City of Maple Lake, City Hall
10 Maple Ave S, Maple Lake, MN 55358
City of Rockford, City Hall
6031 Main St, Rockford, MN 55373
City of Watertown, City Hall
309 Lewis Ave S Ste 1, Watertown, MN 55388
City of Monticello, City Hall 505 Walnut St Ste 1, Monticello, MN 55362
■ In Buffalo City Hall, Grantee shall continue to provide two (2) Converters free of
charge for program monitoring purposes and two-way connectivity for two (2)
programming streams originating from this site.
526220v5 RJV SH255-14 11
EXHIBIT A-2
(Complimentary Service Sites)
City Hall Locations
City of Big Lake, City Hall
City of Buffalo, City Hall
City of Cokato, City Hall
City of Dassel, City Hall
City of Delano, City Hall
City of Elk River, City Hall
City of Maple Lake, City Hall
City of Monticello , City Hall
City of Rockford, City Hall
City of Watertown, City Hall
SWTV - Area Wide Channel
Public Safety Locations
Big Lake Police Department
Big Lake Fire Department
Big Lake Public Works
Buffalo Police Department
Buffalo Fire Department
Buffalo Fire Department
Buffalo Streets and Parks
Buffalo Utilities Campus
Cokato Fire Department
526220v5 RJV SH255-14
160 Street North, Big Lake MN 55309
212 Central Avenue Buffalo, MN 55313
255 Broadway Avenue South, Cokato, MN 55321
460 3rd Street Dassel, MN 55325
234 2nd Street North Delano, MN 55328
13065 Orono Parkway NW, Elk River, MN 55330
10 Maple Avenue South, Maple Lake, MN 55358
505 Walnut Street Monticello, MN 55362
6031 Main Street Rockford, MN 55373
309 Lewis Avenue South, Watertown, MN 55388
(Located in Buffalo City Hall) 212 Central Avenue
Buffalo, MN 55313
790 Minnesota Avenue, Big Lake, MN 55309
20243 County Road 43, Big Lake, MN 55309
18041 198th Avenue, Big Lake, MN 55309
215 1st Avenue NE, Buffalo, MN 55313
Station 1 - 212 Central Avenue, Buffalo, MN 55313*
Station 2 - 209 Atlas Avenue, Buffalo, MN 55313
1303 County Road 134, Buffalo, MN 55313
503 Lake Blvd. NW, Buffalo, MN 55313
745 7th Street SE, Cokato, MN 55321
12
Cokato Public Works
695 Cokato Street East, Cokato, MN 55321*
Delano Fire Station
245 2nd Street North, Delano, MN 55328
Delano Public Works
402 County Road 30 SE, Delano, MN 55328*
Dassel Fire Department
426 2nd Street North, Dassel, MN 55325
Elk River Police Department 13077 Orono Parkway, Elk River, MN 55330
Elk River Fire Department Station 1 - 415 Jackson Street, Elk River MN 55330
Elk River Fire Department Station 2 - 13073 Orono Parkway, Elk River, MN
55330
Elk River Emergency Operations Center 13073 Orono Parkway, Elk River, MN 55330
Elk River Public Works
19000 Proctor Road NW, Elk River, MN 55330
Maple Lake Fire Department
106 Division Street West, Maple Lake, MN 55358
Maple Lake Pubic Works
441 Oak Avenue South, Maple Lake, MN 55358
Monticello Fire Department
(Current Address) 6th Street West, Monticello, MN
55362
Monticello Fire Department (Nov 2019) 101 Chelsea Road, Monticello, MN
55362*
Monticello Public Works 909 Golf Course Road, Monticello, MN 55362
Rockford Fire Department 6700 Main Street, Rockford, MN 55373
Rockford Public Works 6551 Utility Drive, Rockford, MN 55373
Watertown Fire Department 401 Carter Street NE, Watertown, MN 55388
Watertown Public Works 700 Lewis Avenue North, Watertown, MN 55388
* Grantee's rights to recover its actual, demonstrated costs of completed such connections
shall be governed by Section 4.3b of the Franchise.
526220v5 RJV SH255-14 13
EXHIBIT B
(Technical Standards- Live Origination Sites)
With respect to all sites listed in Exhibit A, the System shall meet or exceed the following
requirements:
1. The System shall operate in conformance with the 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-hour operation without signal
degradation.
3. The System shall be capable of operation without failure, material
performance changes or signal degradation over an outdoor temperature range of -40
degrees F to +130 degrees F and over a variation in supply voltages from 105 to 130 volts
AC.
4. The System will provide access channel connections up to the demarcation
point, both upstream and downstream, without material signal degradation or deterioration
and with signal quality equal to or better than any other channels. Material signal
degradation or deterioration where any signal problem including ghosting or other audio or
visual distortion or interference is apparent without special testing. The Grantee shall not
be responsible for technical problems deriving from facilities or equipment located beyond
the demarcation point, within the institutional site.
526220v5 RJV SH255-14 14
City of
Elk
River
Councilmember
its adoption:
introduced the following resolution and moved
RESOLUTION NO. 19-
A Resolution of the City of Elk River, Minnesota Approving Summary Publication
of Ordinance No. 19- and Ordinance No. 19 -
WHEREAS, the City Council for the City of Elk River, Minnesota adopted a lengthy
ordinance repealing and replacing an ordinance titled the "Cable Ordinance" which established
regulations governing cable service; and
WHEREAS, the City Council adopted a lengthy ordinance granting a 15 -year renewal of the
cable franchise to CC VIII Operating LLC d/b/a Charter Communications which authorizes
operation of a cable system and delivery of cable services in the City pursuant to the Cable
Ordinance; and
WHEREAS, as authorized by Minnesota Statutes, Section 412.191, subd. 4, the City Council
has determined that publication of the title and summary of the ordinances will clearly inform the public
of the intent and effect of the ordinances; and
WHEREAS, a printed copy of both ordinances is available for inspection during regular office
hours in the office of the city clerk -administrator.
NOW THEREFORE, BE IT RESOLVED that the following summaries of the ordinances, by at
least four-fifths vote, are approved for publication:
City of Elk River, Minnesota
Ordinance No. 19 -
The Cable Ordinance establishes certain regulations governing the delivery of cable
service in the City to ensure that all cable providers are subject to comparable
obligations and burdens. The Cable Ordinance generally sets forth the conditions for
the delivery of cable service and requirements for cable franchises under Minnesota
Statutes, Chapter 238. The ordinance is effective the day after publication.
City of Elk River, Minnesota
Ordinance No. 19 -
The Charter franchise ordinance grants a 15 -year cable television franchise to CC VIII
Operating LLC d/b/a Charter Communications authorizing operation of a cable system and
delivery of cable services in the City pursuant to the Cable Ordinance. The franchise
ordinance authorizes Charter to use rights-of-way in the City to construct, operate and maintain
a system to provide cable services, imposes a franchise fee, and sets -forth certain other
agreements concerning operation of the system and delivery of cable services. The franchise
ordinance is effective upon acceptance by Charter.
The motion for adoption of the foregoing resolution was duly seconded by Councilmember
and upon vote being taken thereon, the following voted in favor thereof-
and
hereofand the
following against: , whereupon said resolution was
declared duly passed and adopted.
The following members were present:
the
following absent:
By Order of the City of Elk River, Minnesota
John J. Dietz, Mayor
ATTEST:
Tina Allard, City Clerk