HomeMy WebLinkAbout2309-06 - ADMIN Ordinance - City Council - 2006/01/03•
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ORDINANCE NO. 2309-06
CITY OF ST. LOUIS PARK
HENNEPIN COUNTY, MINNESOTA
AN ORDINANCE AMENDING CHAPTER 28 OF THE
ST. LOUIS PARK CODE OF ORDINANCES RELATING TO
TELECOMMUNICATIONS, ENACTING A CABLE TELEVISION FRANCHISE
ORDINANCE
THE CITY COUNCIL OF THE CITY OF ST. LOUIS PARK ORDAINS:
Section 1. Chapter 28 of the St. Louis Park Code of Ordinances is amended by
adding ARTICLE I., Sections 28-1-1 to 28-1-30 to read as follows:
ARTICLE I. TIME WARNER/COMCAST CABLE FRANCHISE
Sec. 28-1-1. Granting Ordinance; Purposes.
The City has determined that it is desirable and advantageous to the citizens of St. Louis
Park to renew the existing cable television franchise with Time Warner Cable, Inc., the
current franchisee, which the City anticipates will be subsequently transferring the renewed
franchise to Cable Holdco II Inc , a wholly-owned subsidiary, through other subsidiaries, of '
Comcast Corporation ("Comcast"). In accordance with state and federal law requirements,
the City has reviewed and found sufficient both entities technical ability, financial condition,
and legal qualifications to operate in St. Louis Park and hereby determines that it is in the
public interest to initially grant to Time Warner Cable a full and complete, nonexclusive
franchise for a period of fifteen years for the operation and maintenance of a cable television
in St. Louis Park; provided, however, the franchise is subject to the terms and conditions set
forth in this Franchise Ordinance. By separate resolution the City also has approved the
transfer of this Franchise to Comcast.
Sec. 28-1-2. Short Title.
This Franchise Ordinance shall be known and may be cited as the "Cable
Communications Franchise Ordinance," hereinafter "Franchise Ordinance", and it shall
become a part of the ordinances and Legislative Code of the City of St. Louis Park.
Sec. 28-1-3. Definitions.
In this Franchise Ordinance the following terms, phrases, words and their derivations
have the meanings given When not inconsistent with the context, words used in the present
tense include the future, words in the plural number include the singular number, and words in
the singular number include the plural number. The words "shall" and "will" are always
mandatory and "may" is permissive. Words not defined shall be given their common and
ordinary meaning.
Ordinance No. 2309-06 -2-
Basic Service means the lowest priced tier of Cable Service that includes the
retransmission local broadcast television signals; any public, educational, and governmental
access programming required by this franchise to be provided to subscribers; any regional
channel required by state law; and additional video programming signals or services added by
cable operator.
CATV System is synonymous with "cable system" or "system" and means the Company's
facility, consisting of a set of closed transmission paths and associated signal generation,
reception, and control equipment that is designed to provide Cable Service which includes video
programming and which is provided to multiple Subscnbers within the Franchise Area.
Cable Service means (1) the one-way transmission to Subscribers of (a) video
programming, or (b) other programming service, and (2) subscriber interaction, if any, which is
required for the selection or use of such video programming or other programming service.
City means the City of St. Louis Park, Minnesota as it exists now and as its borders may
from time to time be changed; including, without limitation, its officers, boards, commissions,
elected officials, agents, attorneys, representatives, servants and employees.
Company means Time Warner Cable, Inc., the grantee of rights and obligations under this
Franchise Ordinance, including, but not limited to, all subsidianes, parents, or affiliate
compames, associations or organizations having any nghts, powers, privileges, duties, liabilities
or obligations, under this Franchise Ordinance; and all owners, affiliates, successors, transferees,
assignees, subcontractors, agents, employees and representatives.
FCC means the Federal Communications Commission and any legally appointed,
designated or elected agent or successor.
Franchise Ordinance means the incorporated terms of this Cable Communications
Franchise Ordinance, governing the operation of a CATV System within and throughout the City
of St. Louis Park.
Gross revenues means all revenues earned directly or indirectly by the Company, arising
from or in connection with the provision of cable service in the City and consistent with local,
state and federal law, including subscnber revenues (including pay TV), amounts collected as
franchise fees, advertising income, home shopping programs and rentals of subscriber
equipment, recorded as earned, in accordance with generally accepted accounting principles, in
the area under jurisdiction of the City. The Company is not required to include revenues
recorded as earned but which are deemed uncollectable, but it must include recoveries previously
deemed uncollectable. This definition of gross revenues also does not include sales, excise or
other taxes (other than franchise fees) collected by the Company on behalf of federal, state,
county, city or other governmental unit, including FCC user fees. Funds collected by the
Company to recover amounts paid to support public, educational and governmental access
programming are also excluded from the definition of gross revenues.
Person means any person, firm, partnership, association, corporation, company,
organization or entity.
Public Property means any real property owned by the City other than a highway,
sidewalk, easement or dedication.
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Ordinance No. 2309-06 -3-
PEG means the public, educational and governmental access channels, equipment,
programs or facilities, as the context dictates.
Park.
ISD 283 means Independent School Distnct 283, located within the City of St. Louis
State of the Art means equipment or facilities that:
(1) Are readily available with reasonable delivery schedules from two or more
sources of supply;
(2) Have the capability to perform the intended functions demonstrated within
communities with similar characteristic (including, but not necessarily
limited to, population, density, Subscnber penetration, etc.) under actual
operating conditions for purposes other than tests or experimentation; and
Are technically and economically feasible to implement. The term "State
of the Art" shall not include equipment or facilities associated with or
dedicated to the general public, educational or governmental access or
telecommunication services.
(3)
Franchise Area means the present boundaries of the city of St. Louis Park, Minnesota,
.and shall include any additions thereto by annexation or other legal means.
Multichannel Video Programming Distributor means a person such as, but not limited to,
a cable operator, a multichannel multipoint distnbution service, a direct broadcast satellite
service, open video system operators, telephone companies, utility companies or a television
receive -only satellite program distributor, who makes available for purchase, by subscribers or
customers, multiple channels Cable Service or substantially equivalent video programming.
Public Way, Right of Way or ROW means the space on, over, above and below any
public street, highway, freeway, bridge, land path, alley, court, boulevard, sidewalk, parkway,
way, lane, public way, drive, circle, or other public right-of-way, including, but not limited to,
public utility easements, dedicated utility strips, or rights-of-way dedicated for compatible uses
now or hereafter held by the City in the Franchise Area which shall entitle the Company to the
use thereof for the purpose of installing, operating, repairing, and maintaining the CATV
System.
Subscriber means any person who lawfully receives cable service from the Company and
does not further distribute it.
Company's place of business means Company offices with financial records and maps,
which shall be located in the Minneapolis/St. Paul metropolitan area.
Ordinance No. 2309-06 -4-
Sec. 28-1-4. Application for a franchise.
Applications for a franchise, other than a franchise renewal pursuant to 47 U.S.C. §546,
shall be filed with the City clerk in accordance with instructions promulgated by the City and
shall contain the following information and provisions:
(1) The name and business address of the applicant(s), date of application and signature of
applicant(s) or appropriate corporate officer(s).
(2) A description of the legal, technical and financial qualifications of the applicant(s).
(3) Payment of the required filing fee.
(4) Any applicant (including, specifically, the Company) shall reimburse City at the time
the applicant accepts a franchise for all reasonable costs of the City in connection with
the granting or renewal of a franchise, including costs for legal services and
publication.
(5) A general description of the applicant's proposed operation.
(6) A statement of the applicant's proposed schedule of charges.
(7) A statement detailing the corporate organization of the applicant, if any, including the
names and addresses of its officers and directors and the division of shares between
shareholders.
(8) A statement describing all intra -company relationships of the applicant including
parent, subsidiary or affiliated companies.
Sec. 28-1-5. Grant of franchise.
(1) Grant. The Grantee shall have the nonexclusive right and pnvilege, subject to the
provisions of this Franchise Ordinance to construct, erect, and maintain, in, upon, along,
across, above, over and under the Rights of Way in the Franchise Area a CATV System
and shall have the right and privilege to provide Cable Service. The System constructed
and maintained by Grantee or its agents shall not interfere with other uses of the Rights
of Way. Grantee shall make use of existing poles and other above and below facilities
available to Grantee to the extent it is technically and economically feasible to do so.
Nothing contained in this Franchise, shall be construed to give Grantee the authonty to
enter upon or work on pnvate property in areas not encumbered with public easements
without the permission of the property owner.
(2) Other Ordinances. The Company agrees to comply with the terms of any generally
applicable local ordinance. In the event of a conflict between any generally applicable
ordinance and this Franchise Ordinance, the terms of this Franchise Ordinance shall
control
(3)
State and Federal Law. Notwithstanding anything in this Franchise Ordinance to the
contrary, the City and Company shall conform to state laws and rules regarding cable
communications and shall conform to federal laws and regulations regarding cable as
they become effective.
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Ordinance No 2309-06 -5-
Sec. 28-1-6. Franchise required.
After the effective date of this Franchise Ordinance, no person shall establish, operate
or carry on the business of distributing to any person in the City any television signals, or
radio signals or other intelligences, either analog or digital, by means of the Public Ways
unless a franchise has first been obtained pursuant to the provisions of this Franchise
Ordinance, and unless such franchise is in full force and effect. No person shall construct,
install or maintain within any public street in the City, or within any other public property of
the City, or within any privately owned area within the City which has not yet become a
public street on any tentative subdivision map approved by the City; any equipment or
facilities for distributing any television signals or radio signals or other intelligences either
analog or digital unless a franchise authorizing the use of the streets or properties or areas has
first been obtained pursuant to the provisions of this Franchise Ordinance, and unless such
franchise is in full force and effect.
Sec. 28-1-7. Privileges and obligations under the franchise.
(1) Pnvileges Subordinate. Any privilege claimed under a franchise in any street or other
public property shall be subordinate to any lawful occupancy of the street or other public
property by the City for City purposes=or to any present or future improvements to the
streets by the City,_including without limitation sidewalks and roadway widening.
(2) Consent to Transfer. The sale or transfer of the CATV System franchised under this
Franchise Ordinance requires the prior wntten approval of the City. The parties to the
sale or transfer shall make a written request to the City for its approval of the sale or
transfer, and the request shall be processed by the City as required by Federal and state
law
(3)
Additional Franchises.
A. The Company acknowledges and agrees that the City reserves the right to grant
one (1) or more additional franchises or other similar lawful authonzation to
provide Cable Services or video programming services within the City; provided,
however, that no such franchise or similar authorization shall contain material
terms or conditions which are substantially more favorable or less burdensome to
the competitive entity than the material terms and conditions herein.
B. Notwithstanding any provision to the contrary, if a non -wireless Multichannel
Video Programming Distributor legally authorized by state or federal law, makes
available for purchase by Subscribers or customers, Cable Services or other video
programming services within the Franchise Area without a franchise or other
similar lawful authorization granted by the City, then Company or City shall have
the nght, upon one hundred eighty (180) days advance written notice to the other
party, to terminate this Franchise; provided, however, that the City shall have no
nght to terminate the franchise pursuant to this section prior to 2016 in the event
that Company had made or guarantees payment of the $200,000.00 capital
support payment due on December 31, 2011 pursuant to Section 28-1-14(6) of the
Franchise Ordinance; provided, further, that the City shall have no right to
terminate the franchise pursuant to this section at any time during the term in the
event that Company had made or guarantees payment of the $200,000.00 capital
support payment due on December 31, 2011 and the $100,000.00 payment due on
December 31, 2016 pursuant to Section 28-1-14(6) of the Franchise Ordinance.
Ordinance No. 2309-06 -6-
Nothing herein shall in any way limit or reduce Company's right to provide Cable
Service in the City under applicable state or federal law nor the City's right to
regulate Company's provision of Cable Services in the City.
(4) Notices. All notices from Company to the City pursuant to this Franchise Ordinance
shall be filed with the City Clerk and with the City Manager. Company shall maintain
with the City, throughout the term of this Franchise Ordinance, an address for service of
notices by mail. Company shall also maintain with the City, a local office and telephone
number for the conduct of matters related to this Franchise Ordinance during normal
business hours.
Sec. 28-1-8. Duration of franchise.
The term of the cable franchise granted by the City to the Company pursuant to this
Franchise Ordinance shall be for a period of fifteen (15) years from and after the effective
date. Nothing in this Section limits the City's or Company's rights to revoke or terminate the
franchise granted by subsequent sections of this Franchise Ordinance.
Sec. 28-1-9. Franchise payment.
(1) Payment to the City. The Company shall pay to the City an annual franchise fee in an
amount equal to five percent (5%) of the annual gross revenues received by the
Company for Cable Services within the City. Payment will be made to the City with
an itemization of the gross revenues.
(2) Method of Computation; Interest. Local sales taxes or other local taxes levied directly
on a per -subscriber basis and collected by the Company shall be deducted from the
local gross revenues before computation of sums due the City is made. Payments due
the City under the terms of this Franchise Ordinance shall be computed and paid within
45 days of the end of each calendar quarter. The City shall be furnished a statement
with each payment, certified as correct by the Company, reflecting the total amounts of
gross revenues, and the above charges, deductions and computations, for the three (3)
months' payment period covered by the payment.
(3)
In the event that any franchise fee payment is not made on or before the applicable
date(s) specified, interest on the amount due (as determined from the gross operating
receipts computed by an independent certified public accountant), shall accrue from
the required payment date at the annual rate of twelve percent (12%).
Rights of Recomputation. No acceptance of any payment shall be construed as a
release or as an accord and satisfaction of any claim the City may have for further or
additional sums payable as a franchise fee under this Franchise Ordinance or for the
performance of any other obligation. The period of limitation for recovery by the City
of any franchise fee payable hereunder shall be three (3) years from the date on which
payment by the Company is due to the City or for any period covered by an audit
conducted pursuant to and in accordance with Section 28-1-19(4).
(4) Late Payments. The City's acceptance of a late payment by the Company shall not be
deemed a waiver of their right to enforce timely payments in the future.
Ordinance No. 2309-06 -7-
(5)
In addition to Cable Service, the Grantee (either by itself or through one or more
affiliates) may provide information and/or telecommunications services. For purposes
of calculating the Franchise Fee when the Grantee packages or "bundles" Cable
Services with other services not subject to franchise fees, the Grantee shall allocate
revenues and compute the Franchise Fee due pursuant to this Franchise in accordance
with EITF 00-21 or such subsequently issued generally accepted accounting pnnciples
("GAAP") which amend or supersede EITF 00-21, or as otherwise required by
applicable law. In the event EITF is amended or superseded, the Grantee will notify
the City of such change in its required Franchise Fee report.
Sec. 28-1-10. Security for performance.
(1) Performance Bond.
(a) Terms of Bond. As of the effective date of this Franchise Ordinance, the
Company shall file with the City Clerk at its own expense, and at all times
thereafter maintain in full force and effect for the term of this Franchise
Ordinance or any renewal, running to the City, a faithful performance bond in
the amount of $50,000.00. The bond shall be issued by a responsible company
licensed to do business in the State of Minnesota, renewable annually and
conditioned upon the faithful performance by the Company of all the terms and
conditions of this Franchise Ordinance. This performance bond shall contain
the further condition that in the event Company shall fail to comply with any
• law, ordinance or regulation governing the Franchise Ordinance, any such
failure be deemed material, then the pnncipal and surety of the bond shall be
jointly and severally liable for 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 Company up to the full
amount of the bond.
This condition shall be a continuing obligation for the duration of the
Franchise Ordinance and any renewal or extension and until the Company has
liquidated all of its obligations with the City that may arise from the Company's
acceptance of this Franchise Ordinance or from Company's exercise of any
privilege or right granted by this Franchise Ordinance.
Notwithstanding the above provisions of this subsection, the Council
may in its sole discretion waive the bond or reduce the required amount after
five (5) years of operation of a CATV System under the Franchise Ordinance
by the Company if the operation, in the sole opinion of the City, has been
satisfactory.
The bond(s) should be subject to the approval of the City and shall
contain the following endorsement:
It is hereby understood and agreed that this bond may not be cancelled
until sixty (60) days after receipt by the City (by filing with the City Clerk), by
registered mail return receipt requested, of a written notice of intent to cancel,
intent not to renew, or material change in the bond.
(b) Delays in Performance. The bond(s) required in this subsection shall provide
® that with fifteen (15) days' prior written notice to the Company, the City may
recover against . the surety the sums provided for failure to complete
construction in accordance with any provisions of this Franchise Ordinance.
Ordinance No. 2309-06 -8-
(2) Letter of Credit.
(a) Within ten (10) days after the adoption of this Franchise Ordinance, Company
shall deposit with the City an effective irrevocable Letter of Credit from a local
financial institution (and maintain at all times through the term of this Franchise
Ordinance), in the amount of Twenty Thousand Dollars ($20,000.00). The
form, manner and content of the Letter of Credit shall be subject to the approval
by the City Manager, which approval shall not be unreasonably withheld. The
Letter of Credit shall be used to insure the faithful performance by Company of
all the provisions of this Franchise Ordinance and compliance with all orders,
permits and directions of City lawfully imposed on Company and the payment
by Company of any claims, liens and taxes due City which arise by reason of the
construction, rebuild, upgrade, operation or maintenance of the CATV System.
City reserves the right, in its sole discretion, to reduce the required amount of
the Letter of Credit.
(b) If Company fails to pay to City any taxes due and unpaid or fails to repay to
City, any penalties, damages, costs or expenses for which the Company is
required to indemnify the City under this Franchise Ordinance or is deemed,
pursuant to the procedures required under Section 28-1-21 hereof, to comply
with any provision of the Franchise Ordinance which City reasonably
determines can be remedied by an expenditure of the security, City may
immediately request and receive payment of the amount due and owing (with
interest and any penalties) from the financial institution holding the Letter of
Credit. Upon request for such payment, City shall notify the Company of the
amount and date of the payment.
(c) Whenever the City shall receive payment of any amount against the Letter of
Credit, the Company shall pay to or deposit with the financial institution
holding the Letter of Credit an amount sufficient to replenish the Letter of
Credit to its full value of Twenty Thousand Dollars ($20,000.00) within ten
(10) days after the Company has been notified of the City's request for
payment. The City Manager shall be furnished with wntten proof of
replenishment not later than twenty-four (24) hours after it is accomplished.
(d) The Letter of Credit shall contain the following endorsement:
It is hereby understood and agreed that this Letter of Credit may
not be cancelled by the financial institution nor the intention not to renew
be stated until thirty (30) days after receipt by the City, by registered
mail, of a written notice of such intention to cancel or not to renew.
(3) Rights Reserved to City. The rights reserved by the City with respect to the bond(s) and
Letter of Credit are in addition to all other rights and remedies the City may have under
this Franchise Ordinance or any other law.
Sec. 28-1-11. Liability insurance and indemnification.
(1) Liability Insurance.
(a) At all times during the term of the Franchise Ordinance, Company shall
maintain and (by its acceptance of a franchise under this Franchise Ordinance)
specifically agrees that it will maintain in full force and effect, and at its own
cost and expense comprehensive general liability insurance insuring the City
Ordinance No 2309-06 -9-
and the Company from claims which may arise from Company's operations
under this Franchise. The insurance must provide for at least $4 million in
coverage for personal injury or death from any occurrence. The policy or
policies shall afford the same limits of liability as set out above for liability
assumed under contract. The policy or policies shall name the City as an
additional insured and provide that no other insurance maintained by the City
will be called upon to contribute to a loss covered under that policy.
All insurance policies maintained pursuant to this Franchise Ordinance
shall contain the following endorsement:
It is understood and agreed that this insurance policy may not be
cancelled nor the intention not to renew be stated until sixty (60) days after
receipt by the City, by registered mail, of written notice of such intention to
cancel or not to renew.
(2) Indemnification.
(a) The Company shall indemnify and hold harmless the City from any suit, claim
or demand whatsoever which may be asserted or recovered against it based upon
or arising out of Company's construction, maintenance, or operation of the
system or any part thereof; provided, that such suit, claim, or demand is not
based upon the City's own intentional or negligent conduct. The City agrees to
immediately notify Company, in writing and within forty-eight hours (unless
notification within forty-eight hours would be unreasonable due to extraordinary
circumstances) of any claim or suit against the City for which Company may be
required to indemnify the City. In the event Company is required to defend the
City in connection with this section, the City agrees to tender control of its
defense to Company and Company shall have the right to select defense counsel.
The City agrees to cooperate in its own defense..This section does not apply to
claims brought against the City pertaining to the granting of this Franchise
Ordinance.
(b) Reserved.
(c) City reserves the right, at its own expense, to participate in the defense of any
claim identified above either through intervention or otherwise.
(d) The City is in no manner or means waiving any governmental immunity or
limitation of liability it may enjoy or any immunity or limitation of liability for
its agents, officials, servants, attorneys, representatives and/or employees.
(e) The Company shall make no settlement in any matter identified above without
the City's written consent, which shall not be unreasonably withheld. Failure to
inform the City of settlement shall constitute a breach of this Franchise
Ordinance and the City may seek any redress available to it against the
Company whether set forth in this Franchise Ordinance or under any other
municipal, state or federal laws.
(f) Reserved.
(g) The City's exercise of or failure to exercise any rights pursuant to any Section of
this Franchise Ordinance shall not affect in any way the nght of City
subsequently to exercise any such rights or any other right of City under this
Franchise Ordinance or any other ordinance, rule, regulation or law.
Ordinance No 2309-06 -10-
Sec. 28-1-12. System facilities; capabilities.
(1) Business Office. The Company shall maintain a full service office at a location
convenient to the public, it being understood and agreed that any location within 10
miles of the City shall be deemed convement to the public. At such time as Company
ceases to maintain such an office in the City, the Company shall provide for the
convenience of its customers drop boxes for payments and equipment at up to two
locations to be determined by mutual agreement of the parties; provided, however, that
the City agrees to provide locations on City -owned property at which such drop boxes
may be located. Equipment exchanges and other customer service needs may also be
addressed through Company's direct service offerings.
(2) Studio Facilities; Personnel. For the lesser of one year or such time as the City has
established replacement studio facilities, the Company shall continue to make available
its existing studio facilities within the City. During this period, the studio shall continue
to be equipped with sufficient equipment and personnel to ensure its present level of
functionality. Company's studio shall be accessible to the public and operate at
reasonable hours to accommodate the public.
(3)
Emergency Capability and Use. The City and the Company shall conform to federal
laws and regulations as they become effective, including 47 CFR Parts 11, 21, 63 and
76 regarding emergency alert system requirements.
Sec. 28-1-13. Construction and technical standards.
(1) Compliance with Construction and Technical Standards. Company shall construct,
install, operate and maintain its system in a manner consistent with all laws,
ordinances, construction standards, governmental requirements and FCC technical
standards.
(2) Performance Tests and Certification.
(a) The Company shall be responsible for insuring that the CATV System is
designed, installed and operated in a manner which fully complies with the
technical standards of this Franchise Ordinance.
(b) The Company shall conduct complete performance tests of the CATV System as
required by FCC regulations. The Company shall provide the City 30 days
advance notice of any test and, upon request, with a written report of the results
of such FCC technical tests.
(c) Company shall bear all of the costs of technical standards testing required under
FCC rules.
Sec. 28-1-14. PEG programming and Leased Access channels.
(1) Specially Designated Public, Educational, Governmental (PEG) and Leased Access
Channels. Company shall make available for access programming at least five (5)
downstream video channels on the Subscriber Network for public, educational and
governmental access. Two of the channels shall be specially designated for
noncommercial public access; one channel shall be dedicated to local non-commercial
municipally -produced community programming; one channel shall be specially
designated for noncommercial access by local educational authorities; and one channel
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Ordinance No. 2309-06 -11-
shall be specially designated for noncommercial access for local government use. In
addition, Company shall make available leased access channels pursuant to the Cable
Communications Policy Act of 1984.
The VHF spectrum shall be used for a least one (1) of the specially designated
noncommercial public access channels required in this Section. Company shall provide
reception on these channels to each of the subscribers who receive Basic Service.
Company shall ensure that its delivery and transmission of PEG channels and
programming shall be without material alteration or degradation of picture or sound
content and will be of a quality consistent with FCC technical standards. In the event the
Company changes the access channel designations (numbers), the Company shall, to the
extent possible, provide sixty (60) days prior written notice of such change(s) to the City.
In addition, the Grantee shall provide reasonable notice of such change(s) to Subscribers
via, for example, bill stuffers or a channel crawl.
(2) Charges for Use of Public Access Channels. No charges shall be made for channel time
or playback of prerecorded programming on at least one (1) of the specially designated
noncommercial public access channels required by this Section, provided, however, that
personnel, equipment, and production costs may be assessed for live studio
presentations exceeding five (5) minutes in length. Charges for such production costs
and any fees or use of other public access channels shall be consistent with the goal of
affording the public a low cost means of television access.
(3)
Access Channel Rules. The governmental access channel, municipally operated
channel, and public access channels, shall be administered solely by the City. The local
educational channels shall be administered solely by ISD 283. The leased access
channel(s) shall be administered solely by the Company.
(4) Reduction of Channel Capacity. If available channel capacity is reduced in the future or
where demand for use does not warrant activation of all of the specially designated
access channels required in this Section; public, educational, governmental and leased
access channel programming may be combined on one or more cable channels. To the
extent consistent with the City's rules and where time is available, access channels may
also be used for other broadcast and nonbroadcast services, provided that such services
are subject to immediate displacement and may be replaced by access channels if City
determines, in its sole discretion, that there is demand to use the channel for its specially
designated access purpose. Company shall, in any case, provide at least one (1) full
channel on the VHF spectrum for shared access programming. Available channel
capacity shall be reduced or a determination that demand for use does not warrant
activation of all the specially designated access channels required by this Section shall
be made only pursuant to the following procedure:
(a) Company will notify City of the proposed change;
(b) City shall make a determination following a process of review which
takes into account such rules as may be established by City for this
purpose and which affords notice and opportunity to be heard to all
interested parties.
Ordinance No. 2309-06 -12-
(5)
Video on Demand. The Company shall provide Video on Demand service (VOD) for
government and community programming. The VOD service to be provided herein shall
be limited to up to twenty (20) hours per month and, in addition to City -provided content,
may include ISD 283 programming. The City will be solely responsible for determimng
programming pnority and will be responsible for providing Company with good quality
masters in a format determined through mutual agreement A presentation form (stating
program information, the City's acceptance of responsibility for content, "kill" dates, if
applicable, and other matters) and content delivery method will be determined through
mutual agreement of the parties.
(6) Support Grant. Company shall pay to the City the amount of $1.1 million dollars,
which shall be used solely for PEG access purposes. This amount shall be in addition to
any other required fee or payment, and shall be paid as follows:
(7)
$800,000 on or before June 30, 2006
$200,000 on or before December 31, 2011
$100,000 on or before December 31, 2016
Transfer of Equipment. Company shall continue to meet the Local Ongination
requirement in its previous franchise with the City until December 30, 2006. On or
before that date, Company shall transfer to City its current production van as presently
equipped, subject to normal wear and tear.
Sec. 28-1-15. Interconnection/Service to government and school buildings.
(1)
Programming Origination Sites. Company agrees to operate and maintain existing direct
connections and necessary equipment for the purposes of cablecasting programming on
the subscriber network, as follows:
a) from ISD 283 High School headend to Company headend.
b) from ISD 283 football field grandstand to High School headend.
c) from City Hall control room racks to Company headend.
d) from Wolfe Park Veteran's Memorial Amphitheatre to City Hall control room racks.
e) from designated equipment area in nearby Rec Center to City Hall control room racks.
Company shall not be liable or responsible for any costs or expenses resulting from any
City or High School loss of or damage to connections or equipment or any changes to
the City or High School's wiring implemented by a party other than Company.
(2) Service Provided. Company agrees to make available one free drop of the Subscriber
Network, providing, at no charge, Basic Service to institutions listed on Exhibit A.
Company shall provide, at no charge and upon City's request, two converters or other
equipment required for converting the signal for analog display, if necessary at each
location (or institution).
Sec. 28-1-16. System Construction requirements.
(1) Permit Application. Company shall be responsible for application costs and approval of
all necessary permits required under the City's generally applicable ordinances
pertaining to work in Public Ways.
Ordinance No 2309-06 -13-
(2) Line Extension Policy
(a) Upon the effective date of this Franchise Ordinance, the Company shall offer
Cable Service within the Franchise Area. The Company shall extend the Cable
System to any residences within the City requesting Cable Service provided
there are at least thirty (30) homes per mile, or the equivalent thereof, of
required new Cable System construction and the requesting residence is within
125 feet of the Cable System as extended.
(b) In those instances in which the cable that connects the ground block to the nearest
feeder cable of the Cable System is in excess of 125 feet, the Company shall bear
that portion of the cost of constructing the first 125 feet and the requesting
Subscriber shall bear the remainder.
(c) The City recognizes that in some instances the Company may need the permission
of private property owners to extend Service. If the Company is unable to obtain
such permission on reasonable terms, the Company shall be under no obligation
to extend Service.
(d) The Company agrees to extend Cable Service to any business in the Franchise
Area provided costs are within a cost recovery model. The current threshold cost
for extension borne by the Company is available by contacting the Company's
Business Services Department.
(3)
City's Reservation of Rights. Neither the review of plans by the City nor the granting
by City of any licenses, permits, certificates, authorizations, approvals, etc., shall be
construed as a guarantee `or warranty by the City of Company's CATV System. The
Company shall not assert the fact that the City has performed any pnor review of its
plans or exercised any ministenal function in granting licenses, permits, certificates,
authorizations, approvals, etc , as a defense against its obligations to indemnify and hold
the City harmless pursuant to Section 9-711(3).
Sec. 28-1-17. Fees, rates and charges.
(1) To the extent authorized by law, the City reserves its rights to regulate rates and charges
imposed by the Company (City received FCC Certification of Franchising Authority to
Regulate Basic Cable Service Rates on 10-26-93).
(2) Notice of Rate Change. Company shall notify the City and subscribers of changes m
rates as and to the extent required by 47 C.F.R. §76.1603.
Sec. 28-1-18. Conditions of public property occupancy.
(1) Approval of Proposed Construction. The Company shall first obtain the approval of the
Director of Public Works before any construction is commenced on streets, alleys,
sidewalks, driveways, public property or places of the City. Application for approval of
construction shall be in' a form specified by the Director of Public Works. The
Company shall give the City reasonable written notice of proposed construction to
allow coordination of all work between the City and the Company.
Ordinance No. 2309-06 -14-
(2) Excavation Permits. Company shall not open or disturb the surface of a street, alley,
sidewalk, driveway or public property for any purpose without first having obtained a
permit to do so in the manner provided by ordinance. Company may apply for a single
permit for all excavation. The amount charged by City to Company for such permit
shall be fair and reasonable.
(3)
Changes Required by Public Improvements. Whenever the City undertakes any public
improvement which affects CATV system facilities, it shall direct the Company to
remove or relocate such equipment from the area of public improvement, at Company's
expense. Specifically, Company shall, at its expense, protect, support, temporarily
disconnect, relocate in or remove from a street, alley, sidewalk, driveway, or public
property or place any property of the Company when required by the Director of Public
Works by reason of traffic conditions, public safety, street vacation, street construction,
change or establishment of street grade, installation or improvement of sewers, drains,
water pipes, power lines, signal lines, tracks or any other type of structure, improvement
or alteration of public property. If this public improvement also requires public utilities
to remove or relocate their equipment and the City reimburses the utilities for their
expenses incurred in the removal or relocation, the City shall reimburse the Company
on the same terms and conditions it reimburses the utilities. If the utilities are
reimbursed by some source other than the City, then City shall not be required to
reimburse the Company for its expenses but will provide the Company with reasonable
assistance in obtaining such reimbursement.
(4) Interference With or Hazard to Persons and Improvements. The Company's CATV
System, including all wires, conduits, cables and other property and facilities, shall be
located, constructed, installed and maintained so as not to endanger or unnecessarily
interfere with the lives of persons or with the usual and customary trade, traffic and
travel upon the streets, alleys, sidewalks, driveways or public property and places of the
City. The Company shall keep and maintain all of its property in good condition, order
and repair and make it available for inspection at any reasonable time and upon
reasonable notice. The City shall have the right to inspect and examine property located
in the Public Way that is owned or used, in part or in whole, by the Company.
Company shall not place poles or other equipment where they will interfere with the
rights or reasonable convenience of adjoining property owners, or with any gas, electric,
or telephone fixtures or with any water hydrants or mains. All poles or other fixtures
placed in a street shall be placed in the right-of-way between the roadway and private
property as specified by the Director of Public Works.
Method of Installation. All wires, cables, amplifiers and other property shall be
constructed and installed in an orderly and workmanlike manner. All cables and wires
shall be installed parallel with existing telephone and electric wires whenever possible.
Multiple cable configurations shall be arranged in parallel and bundled, in compliance
with engineering and safety considerations and standards. Any portion of a CATV
System that is installed in a park or publicly owned open space area shall be installed
underground in a manner approved by the City. All installations shall be underground
in those areas of the City where public utilities providing both telephone or electric
utility facilities are underground at the time of installation. In areas where either
telephone and electric utility facilities are above ground at the time of installation, the
Company may install its service above ground provided that at such time as all those
facilities are required to be placed underground, the Company shall likewise place its
(5)
Ordinance No. 2309-06 -15-
facilities underground without additional cost to the residents of the City except as
provided under City ordinance.
(6) Protection of Facilities. Nothing contained in this Franchise Ordinance shall relieve any
person, company or corporation from liability ansing out of the failure to exercise
reasonable care to avoid injuring Company's facilities while performing any work
connected with grading, regrading, or changing the line of any street or public place or
with the construction or reconstruction of any utility facility, sewer or water system.
Notice of City Improvements. The City shall give the Company reasonable notice of
plans for street improvements where paving or resurfacing of a permanent nature is
involved. The notice shall contain the nature and character of the improvements, the
streets upon which the improvements are to be made, the extent of the improvements
and the date of commencement of work. Notice shall be given a sufficient length of
time in advance to permit Company to make any additions, alterations, or repairs to its
facilities deemed necessary, considering seasonal working conditions in advance of the
actual commencement of work.
(7)
(8) Compliance with Codes. All construction, installation, maintenance and operation of
CATV Systems or facilities shall comply with the provisions of the National Electncal
Safety Code as prepared by the National Bureau of Standards, the National Electrical
Code of the National Board of Fire Underwnters, the Bell Telephone System Code of
Pole Line construction, standards issued by the FCC or other federal or state regulatory
agencies, and local zoning regulations. Every CATV System installed, constructed,
maintained or operated in the City shall be designed, constructed, installed, maintained
and operated as not to endanger or interfere with the safety of persons or property in the
City.
(9)
Moving Wires. Upon request made at least five (5) days in advance by a holder of a
building moving permit for the purpose of moving buildings, the Company shall
temporanly raise, lower, or remove its wires. The holder of the building moving permit
shall pay the reasonable cost of the requested service and may be required to pay that
amount in advance.
(10) Trimming Trees. All trimming shall be done under the supervision and direction of the
City and at the expense of the Company. The Company shall not remove any tree
within any public place without the prior consent of the City. The Company shall be
allowed to trim trees upon and overhanging streets, alleys, sidewalks, driveways and
public grounds and places of the City to prevent the branches of the trees from coming
in contact with the wires and cables of Company. Regardless of who performs the
work, the Company shall be responsible and shall defend and hold City harmless for
any and all damages to any tree or surrounding land as a result of the trimming or
removal.
(11) Restoration to Prior Condition. In case of any disturbance of pavement, sidewalk,
driveway, foundation or other surfacing, the Company shall, at its own cost and expense
and in a manner approved by the City, replace and restore all paving, sidewalk,
driveway, foundation or surface of any street or alley disturbed, in as good condition as
before the work was commenced and in accordance with standards for such work set by
the City. If, upon reasonable written notice, the Company fails promptly to restore any
Ordinance No. 2309-06 -16-
street or public place in accordance with this provision, the City shall have the right to
put such street or public place back into good condition at the expense of the Company
and the Company shall, upon demand, pay to the City and the cost of such work done or
performed by the City.
(12) Interference With Reception. Company shall not allow its cable or other operations to
interfere with the broadcast reception of persons not served by Company.
(13) Record of Equipment and Facilities to be Maintained The Company shall at all times
make and keep at its business office=complete and accurate plans and records showing
the exact location of all CATV System equipment and facilities installed or in use in the
City and make available such maps and records for the City's inspection promptly upon
the City's reasonable request.
Sec. 28-1-19. Operation of the franchise/consumer service.
(1) Consumer Service Policies. The Company shall comply with applicable customer
service standards set forth at 47 C.F.R. 76.309, or other applicable state or federal
requirements. Nothing in the foregoing shall be construed as a waiver by the City of
any rights it may have to adopt additional or modified consumer protection
requirements to the extent authorized by federal or state law.
(2) Consumer Complaints. The company shall designate a local contact person for City
representatives to contact in case complaints about the company, its practices or
services are received by City staff. The company is expected to normally resolve
customer's complaints without City involvement, but when customer complaints are
received by City staff and forwarded to the company contact, the Company shall resolve
the customer complaint and notify City staff of the outcome.
(3)
The Company shall provide a copy of pertinent company customer service
policies to the City upon request, for verification that company policies have been
followed in complaints received by the City.
Repairs and Maintenance.
(a) Maintenance of the System. The Company shall install and maintain the CATV
System so as to avoid unreasonable or repetitive interruptions in service to
subscribers.
(b) Interruption of Service. Whenever it is necessary to interrupt service to make
tests, repairs, adjustments or installations, the Company shall do so during a
period of minimum subscnber use. Unless an interruption is unforeseen and
immediately necessary, the Company shall give reasonable notice to the
subscribers affected. All costs incurred in effecting such tests, repairs,
adjustments or installations shall be borne by the Company unless otherwise
provided by law, ordinance or regulation.
(4) Reports, Books and Records of Company.
(a) City's Right to Audit. Not more than once every three (3) years, the City shall
have reasonable access at mutually agreed-upon times to audit Company's
accounting and financial records at Company's place of business upon reasonable
notice as reasonably necessary to verify Company's compliance with its
Ordinance No 2309-06 -17-
(5)
monetary obligations to the City under this Franchise Ordinance. Company shall
have the right to observe any such audit proceedings.=Such audit may not review
records extending back further than three (3) years from the commencement of
such audit.
(b) Report on Operations. Upon request, the Company shall prepare and furnish to
the City at the time and in the form prescribed by the City Manager, such reports
with respect to its Cable System operations, affairs, transactions or property in
the City, as may be determined reasonably necessary to the City's regulation of
the Cable System pursuant to this Franchise Ordinance.
Filing Communications with Regulatory Agencies. As required by applicable law and
otherwise upon request, Company shall provide to City a copy of any petition,
application or similar communication that is submitted by the Company to the FCC, or
other federal or state regulatory commission or agency having jurisdiction in respect to
any matter affecting CATV System operations within the City.
(6) Reserved.
(7) Rules of the Company. The Company may promulgate such rules, regulations, terms
and conditions governing the conduct of its business as may be reasonably necessary to
enable it to exercise its rights and perform its obligations under the Franchise Ordinance
and to assure an uninterrupted service to any and all of its customers; except that such
rules, regulations, terms and conditions shall not be in conflict with the provisions of
this Franchise Ordinance, other ordinances of the City, or the laws of the State of
Minnesota or the United States. Upon request, a current copy of any such rules,
regulations, terms and conditions shall be filed with the City.
(8) Service Contract. If a written service contract is used by a Company in its dealings with
subscribers, the Company shall provide a copy of such contract to the City upon
request.
(9) Reserved
(10) Reserved.
(11) Preferential or Discriminatory Practices Prohibited.
(a) The Company shall establish and maintain an Equal Employment and
Affirmative Action Program providing that no individual shall be discriminated
against with respect to compensation, terms, conditions or other privileges or
employment because of race, color, creed, religion, sex, national or ethnic
origin, physical condition, age, affectional preference or marital status. The
Company's Equal Employment and Affirmative Action Program shall be
maintained on file with the City Manager and shall be in compliance with
current and future policies established in the City's Affirmative Action Program,
as well as with Section 635 of the Cable Act of 1984. The Company shall
strictly adhere to the Equal Employment and Affirmative Action Program it
files.
Ordinance No. 2309-06 -18-
(b) The Company shall comply with or exceed all federal, state and local laws and
regulations relating to equal employment opportunity and non-discrimination.
(12) Subscriber Pnvacy. At all times, Company shall abide by the subscriber pnvacy
provisions in applicable federal and state laws including 47 U.S.C. §551.
(13) Surveys. Company shall provide the City with the results any non -confidential, non-
pnvileged survey of Subscnbers in the City regarding Cable Service or the operation of
the CATV System.
(14) Penodic Review. The City may request a State -of -the -Art review at the fifth and tenth
anniversaries of the granting of this Franchise. In conducting a State -of -the -Art review,
the City shall undertake the following process:
(a) The City and the Company shall undertake a review of the then existing Cable
System. This review shall, at a minimum, take into account the following:
(b)
(c)
(d)
(1)
(2)
(3)
(4)
(5)
(6)
Characteristics of the existing System;
The State -of -the -Art;
Additional benefits provided to customers by the State -of -the -Art;
The market place demand for the State -of -the -Art;
The use of a need for additional PEG access channels; and
The financial feasibility of the State -of -the -Art taking into account
associated rate increases, and the premature retirement of assets.
The City shall hold a public hearing to enable the general public and Company
to comment and to' present evidence.
As a result of any review based on this section, the City and Company may enter
into good faith negotiations to amend this Franchise as necessary to provide
system improvements on a schedule that takes into account the impact on rates,
recovery of costs, benefit to subscribers, and other factors agreed upon.
Notwithstanding anything to the contrary, the City may not undertake a State of
the Art review at any time the Company is deemed subject to effective
competition pursuant to then applicable state or federal law.
Sec. 28-1-20. Rights reserved; resolution of disputes.
(1) No Impairment of Eminent Domain. Nothing herein shall be construed to contract
away, modify or abridge, either for a term or in perpetuity, the City's rights to eminent
domain, including any right of the City to acquire the property of the Company through
the exercise of the right of eminent domam.
(2) Administration of Franchise Ordinance. Subject to the control and direction of the
Council, the City Manager of City, or City Manager's designee, shall be the designated
administrator responsible for the continuing administration of the Franchise Ordinance.
(3)
Resolution of Disputes and Appeal Procedures. Prior to taking any enforcement action
authonzed by Section 28-1-21, the City shall contact the Company's designated
representative and attempt to resolve the dispute.
•
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•
Ordinance No. 2309-06 -19-
(4) City's Transfer of Functions. Any nght or power conferred, or duly imposed upon any
elected official, officer, employee, department, or board of the City shall be subject to
transfer by the City to any other elected official, officer, employee, department or board
to the extent permitted by applicable law.
Sec. 28-1-21. Enforcement.
(1) Failure to Enforce Provisions. The Company shall not be excused from complying
with any of the terms and conditions of the Franchise Ordinance by any failure of the
City upon one or more occasions to insist upon or to seek compliance with any such
terms or conditions.
(2) Penalties. In addition to any other remedies provided in this Franchise Ordinance,
penalties for violations of this Franchise Ordinance are set forth below. As a result of
any acts or omissions by Company pursuant to the Franchise Ordinance, City may
charge to and collect from the Company, by drawing on the Letter of Credit set forth in
Section 28-1-10, or otherwise the following penalties:
(a) For failure to provide, after ten (10) days notice, data, documents, reports or
information or to cooperate with the City dunng a renewal process, CATV
System Evaluation and Renegotiation Session, or in the conduct of City's
Franchise Ordinance enforcement and administration functions, the penalty shall
be Fifty Dollars ($50.00) per day.
(b) For failure to comply with any of the provisions of this Franchise Ordinance
after ten (10) days notice, for which a penalty is not otherwise specifically
provided, the penalty shall be Fifty Dollars ($50.00) per day.
(c) For failure to test, analyze and report on the performance of the CATV System
following a request by the City as set forth in this Franchise Ordinance and after
ten (10) days notice, the penalty shall be Fifty Dollars ($50.00) per day.
(d) For failure of Company to comply with the construction, operation or
maintenance standards thirty (30) days following notice from the City, the
penalty shall be Two Hundred Dollars ($200.00) per day.
(e) For failure to comply with all conditions of City permits to disturb streets, fix
streets, or other terms or conditions of City, the penalty shall be Fifty Dollars
($50.00) per day.
(3)
Notice of Violation. In the event that the City believes that the Company has not
complied with any material term of the Franchise Ordinance, the City shall informally
discuss the matter with Company. If these discussions do not lead to resolution of the
problem, the City shall notify the Company in writing of the exact nature of such
alleged noncompliance.
(4) The Company's Right to Cure or Respond. The Company shall have thirty (30) days
from receipt of the notice described in subsection (4) to• (a) respond to the City,
contesting the assertion of such noncompliance, or (b) cure such default, or (c) in the
event that, by the nature of such default, it cannot be cured within the thirty (30) day
period, initiate reasonable steps to remedy such default and notify the City of the steps
being taken and the projected date that they will be completed.
Ordinance No. 2309-06 -20-
(5)
Public Hearing. In the event that the Company fails to respond to the notice described
in subsection (3) pursuant to the procedures set forth in subsection (4), or in the event
that the alleged default is not remedied within thirty (30) days or the date projected
pursuant to (3)(c) above, if it intends to continue its investigation into the default, then
the City shall schedule a public heanng. The City shall provide the Company at least ten
(10) days prior written notice of such hearing, which specifies the time, place and
purpose of such hearing, and provide the Company the opportunity to be heard. Within
thirty (30) days of the end of such hearing, the City shall issue a written decision
regarding whether a material default of the Franchise Ordinance has been established by
clear and convincing evidence in the record.
(6) Enforcement. Subject to applicable federal and state law, in the event the City, after the
hearing set forth in subsection (5), determines that the Company is in material default of
any provision of the Franchise Ordinance, the City may:
(a) Impose the penalties specified above and if prompt payment of the penalties is
not made by the company, the City may draw on the Letter of Credit.
(b) Commence an action at law for monetary damages or seek other equitable relief;
or
(c) In the case of repeated or ongoing substantial non-compliance with a material
term or terms of the Franchise Ordinance, seek to revoke the grant of the
franchise pursuant to this Franchise Ordinance in accordance with subsection (7).
(7)
Revocation. Should the City seek to revoke the grant of the franchise after following the
procedures set forth in subsections (3) through (6) above, the City shall give wntten
notice to the Company of its intent. The notice shall set forth the exact nature of the
repeated or ongoing substantial noncompliance with a material term or terms of the
franchise. The Company shall have ninety (90) days from such notice to object in wnting
and to state its reasons for such objection. In the event the City has not received a
satisfactory response from the Company, it may then seek termination of the franchise at
a public hearing before the City Council. The City shall cause to be served upon the
Company, at least thirty (30) days prior to such public hearing, a wntten notice
specifying the time and place of such hearing and stating its intent to revoke the
franchise.
At the designated hearing, Company shall be provided a fair opportunity for full
participation, including the right to be represented by legal counsel, to introduce relevant
evidence, to require the production of evidence, to compel the relevant testimony of the
officials, agents, employees or consultants of the City, to compel the testimony of other
persons as permitted by law, and to question witnesses. A complete verbatim record and
transcript shall be made of such hearing.
Following the hearing, the City Council shall determine whether or not the
franchise shall be revoked. If the City Council determines that the franchise shall be
revoked, the City Council shall promptly provide Company with its decision in writing.
The Company may appeal such determination of the City Council to an appropriate court
which shall have the power to review the decision of the City Council de novo. Company
shall be entitled to such relief as the court finds appropriate.
•
•
•
Ordinance No. 2309-06 -21-
(8) Force Majeure. The Company shall not be held in default under, or in noncompliance
with, the provisions of the Franchise Ordinance, nor suffer any enforcement or penalty
relating to noncompliance or default, where such noncompliance or alleged defaults
occurred or were caused by circumstances reasonably beyond the ability of the Company
to anticipate and control. This provision includes work delays caused by waiting for
utility providers to service or monitor their utility poles to which the Company's CATV
System is attached, as well as unavailability of materials and/or qualified labor to perform
the work necessary.
Furthermore, the parties hereby agree that it is not the City's intention to subject
the Company to penalties, fines, forfeitures or revocation of the Franchise Ordinance for
violations of the Franchise Ordinance where the violation was a good faith error that
resulted in no or minimal negative impact on the Subscnbers within the Franchise Area.
Sec. 28-1-22. Renewal.
The process for renewing this franchise shall be as provided under 47 U.S.C.§ 546 and
other applicable federal and state law..
Sec. 28-1-23. Removal after termination or revocation.
(1) At the expiration of the term for which this Franchise Ordinance is granted, or upon its
revocation or termination, as provided for herein, and final determination of non -renewal,
City shall have the right to require Company to remove, at Company's expense, all or any
portion of the CATV System from all streets and public property within City. In so
removing the CATV System, Company shall refill and compact at its own expense any
excavation that shall be made by it and shall leave all streets and public property in as
good a condition as that prevailing prior to Company's removal of the CATV System, and
without affecting, altering or disturbing in any way electric telephone or other utility
cable, wires or attachments. City shall have the right to inspect and approve the condition
of such streets and public property after removal. The Letter of Credit, Bonds, Insurance,
Indemnity and Penalty provisions of the Franchise Ordinance shall remain in full force
and effect during the entire term of removal.
(2) If Company has failed to commence removal of System, or such part thereof as was
designated by City, within thirty (30) days after written notice of City's demand for
removal is given, or if Company has failed to complete such removal within one year after
written notice of City's demand for removal is given, City shall have the right to exercise
any of the following options:
(a) Declare all right, title and interest to the CATV System to be in City with all
rights of ownership including, but not limited to, the right to operate the CATV
System or to transfer the CATV System to another for operation.
(b) Declare the CATV System abandoned and cause the CATV System or such part
thereof, as City shall designate, to be removed at the expense of the Company.
The cost of said removal shall be recoverable from the Letter of Credit, Bonds,
Insurance, Indemnification and Penalties provided for in this Franchise
Ordinance, or from Company directly as liquidated damages.
Ordinance No. 2309-06 -22-
Sec. 28-1-24. Expiration or revocation of franchise.
(1) Expiration; Extended Operation. Upon the expiration of a Franchise Ordinance, the City
may by resolution direct the Company to operate the Franchise Ordinance for an
extended period of not to exceed six (6) months after the date of expiration. The
Company agrees to comply with such a direction. All provisions of the Franchise
Ordinance shall continue to apply to operations during an extension period. The City
shall serve written notice at the Company's business office of intent to extend under this
Section at least thirty (30) days pnor to expiration. Nothing in the foregoing affects
Company's rights to a franchise renewal under 47 U.S.C. §546.
(2) Injunctive Relief. Pending final disposition of proceedings to revoke a Franchise
Ordinance, or during a period of extension of a Franchise Ordinance after expiration, the
City may obtain injunctive relief to obtain compliance with the provisions of the
Franchise Ordinance and maintain the continuity of service to subscribers. Such relief
shall be in addition to and not in lieu of other remedies available to the City. If the City
prevails, the costs shall be borne by Company including attorneys' fees, costs and
disbursements.
(3)
Right of City to Purchase; Disposition of Facilities. Upon expiration of the terms of the
Franchise Ordinance, or upon a revocation or termination of this Franchise Ordinance, or
if renewal of this Franchise Ordinance is denied, the City shall have the right to acquire
the CATV System. Any such acquisition shall be at fair market value, determined on the
basis of the CATV System as a going concern but with no value allocated to the
Franchise Ordinance itself and shall be made pursuant to the provisions of Sections 9-725
(8) and (9) below. If the Franchise Ordinance held by Company is revoked or terminated
for cause and the City determines to acquire ownership of the CATV System or effects a
transfer of ownership of the CATV System to another person, any such acquisition or
transfer shall be at an equitable price.
(4) Restoration of Property Upon Removal. In removing its plants, structures and
equipment, the Company shall refill at its own expense, any excavation that shall be
made by it and shall leave all public ways and places in as good condition as that
prevailing prior to the Company's removal of its equipment and appliances, without
affecting the electric or telephone cables, wires or attachments. The Director of Public
Works shall inspect and approve the condition of the public ways and public places and
cables, wires, attachments and poles after removal. Liability insurance, indemnification
and the security for performance required by this Franchise Ordinance shall continue in
full force and effect during the period of removal.
The City shall have a right to all available remedies, including drawing on Company's
Letter of Credit required by Section 28-1-10 of this Franchise Ordinance, in order to enforce the
requirements of this Section. '
Sec. 28-1-25. Abandonment.
Company shall not abandon the CATV System or any portion thereof without having first
given three (3) months' written notice to City. Abandonment shall not occur unless first
approved by the City after reasonable opportunity to review. Upon showing by Company of
Ordinance No 2309-06 -23-
need for abandonment and an opportunity for the City to determine other areas for the
continuity of service, the City shall evaluate any damage, claim or loss that may be applicable
as a consequence of such abandonment. In order to accomplish this, the City shall conduct a
public hearing after providing reasonable notice to all affected persons as to the date, time and
place of the hearing Thereafter, before abandonment occurs, the City shall notify the
Company of its determination and any person, including City, entitled to damages and the
amount and basis therefore. Company shall not abandon the CATV System or any portion
thereof without compensating City for damages resulting to it from the abandonment.
Sec. 28-1-26. Unauthorized connections.
It shall be unlawful for any person to make an unauthorized connection, whether
physically, electrically, acoustically, inductively or otherwise, with any part of the franchised
CATV System within the City for the purpose of taking or receiving television signals, radio
signals, pictures, programs, sound, or any other service provided by the Company.
Sec. 28-1-27. Severability.
If any section, subsection, sentence, paragraph, term, or provision of this Franchise
Ordinance is determined to be illegal, invalid, or unconstitutional, by any court of competent
jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such
determination shall have no effect on the validity of any other section, subsection, sentence,
paragraph, term or provision hereof, all of which will remain in full force and effect for the
term of this Franchise Ordinance.
Sec. 28-1-28. Work performed by others.
(1)
Company shall give notice to City specifying the names and addresses of any other
entity, other than Company, which performs services pursuant to this Franchise
Ordinance, provided, however, that all provisions of this Franchise Ordinance remain the
responsibility of Company.
(2) All provisions of this Franchise Ordinance shall apply to any subcontractor or others
performing any work or services pursuant to the provisions of this Franchise Ordinance.
Sec. 28-1-29. Administration and advisory body.
(1) Administrator. The City Manager or the City Manager's designee shall be responsible for
the continuing administration of this Franchise Ordinance. The administrator may be
changed by City from time to time by written notice given to Company.
(2) Advisory Body. City may appoint an advisory body to monitor the performance of
Company in executing the provisions of this Franchise Ordinance. The advisory body
shall perform all functions required of it by the Council and applicable laws, ordinances,
rules and regulations.
Ordinance No. 2309-06 -24-
(3)
Delegation of Authority by City.
(a) City reserves the nght to delegate and redelegate from time to time any of its
rights or obligations under this Franchise Ordinance to any body or organization.
(b) Any delegation by City shall be effective upon wntten notice by City or Company
of such delegation.
(c) Upon receipt of notice by Company of City's delegation, Company shall be bound
by all terms and conditions of the delegation not in conflict with this Franchise
Ordinance.
(d) Any such delegation, revocation or redelegation, no matter how often made, shall
not be deemed an amendment to this Franchise Ordinance or require any consent
of Company.
Sec. 28-1-30. Time of acceptance; exhibits
(1)
Company shall have thirty (30) days from the last date of adoption of this Franchise
Ordinance to accept this Franchise Ordinance in form and substance acceptable to City,
unless the time for acceptance is extended by City. If this Franchise Ordinance is not
accepted by Company in accordance with the terms of this Section, this franchise shall be
null and void and without effect.
(2) Upon acceptance of this Franchise Ordinance, Company and City shall be bound by all
the terms and conditions contained herein. This Franchise Ordinance constitutes the
entire agreement between the Company and the City and supersedes all other prior
understandings and agreements oral or wntten, including the prior franchise ordinance
between Company and the City, set forth at Sections 9-701 to 9-733 of the St. Louis Park
Code of Ordinances, which is hereby repealed in its entirety. Any amendments to this
Franchise Ordinance shall be mutually agreed to in writing by the parties.
(3)
All of the attached exhibits are a part of this Franchise Ordinance and each is specifically
incorporated herein by reference. The exhibits are as follows:
Exhibit A: List of City and school district buildings at which Company has agreed
to provide free service.
Exhibit B: Listing of equipment for the studio facilities and the mobile van
provided for by Section 28-1-12 and Section 28-1-14.
Exhibit A
City of St. Louis Park:
City Hall
5005 Minnetonka Boulevard
St. Louis Park, MN 55416
St. Louis Park Recreation Center
and Wolfe Park Pavilion
3700 Monterey Drive
St. Louis Park, MN 55416
Ordinance No. 2309-06 -25-
Municipal Service Center
III 7305 Oxford Street
St. Louis Park, MN 55426
Fire Station One
3750 Wooddale Avenue
St. Louis Park, MN 55416
Fire Station Two
2262 Louisiana Avenue
St. Louis Park, MN 55426
Pavek Museum of Broadcasting
3515 Raleigh Avenue
St. Louis Park, MN 55416 [Split estimate of $7,569.00 = $3,784.50]
City Utilities Office
3752 Wooddale Ave S
St. Louis Park, MN 55416
Westwood Hills Nature Center
8300 West Franklin Avenue
St. Louis Park, MN 55426
Police Station
3015 Raleigh Avenue
St. Louis Park, MN 55416
Meadowbrook Community Police Station
4072 Meadowbrook Lane
St. Louis Park, MN 55426
Excelsior/Grand Community Police Station
4717 Park Commons Drive
St. Louis Park, MN 55416
Texatonka Community
Police Station
8038 Minnetonka Blvd
St. Louis Park, MN 55426
ISD 283:
Lenox Community Center
6715 Minnetonka Blvd.
St. Louis Park, MN 55426
Eliot School Building
6800 Cedar Lake Road
St. Louis Park, MN 55426
Ordinance No. 2309-06 -26-
Aquila Primary Center
8500 West 31st Street
St. Louis Park, MN 55426
Peter Hobart Pnmary Center
6500 West 26th Street
St. Louis Park, MN 55416
Susan Lindgren Intermediate Center
4801 West 41st Street
St. Louis Park, MN 55416
Cedar Manor Intermediate Center
9400 Cedar Lake Road
St. Louis Park, MN 55426
St. Louis Park Jr. High School
2025 Texas Avenue South
St. Louis Park, MN 55426
St. Louis Park Sr. High School
6425 West 33rd Street
St. Louis Park, MN 55416
District Maintenance Shop
6400 Walker Street
St. Louis Park, MN 55416
Cable TV connection to Non -Public Schools is by arrangement between the system operator
and each school.
Certain school buildings are currently being provided service through school -owned transmission
facilities. The City agrees that free service to such schools shall be contingent upon continued
availability of such school -owned transmission facilities or some other mutually acceptable
arrangement.
Ordinance No. 2309-06 -27-
Exhibit B
St. Louis Park Inventory STUDIO
QUANTITY ITEM M/N S/N
2 Sony Cameras DXC-1820 10208
13690
2 Sony Viewfinders DXF-40 14354
14353
2 Canon 1820 Lenses VCL1012SY 13336
16115
2 Sony ENG Viewfinders DXF-1820 10192
14156
2 Canon Rear Focus Controls (1820)
2 Canon Focus Cables
2 Remote Control Zooms (1820)
2 Sony 25m Camera Cables
1 JVC 20m Camera Cable
1 Miller Tripod/Head/Dolly 705 51376
2 Gitzo Camera Tripods G515
2 Bogen Tripod Head 3066
2 Bogen Tripod Dolly 3067
2 Berkey Colortron Fresnel Lights LQV-10
3 Smith -Victor Broad Lights 750
2 Sony Lavalier Microphones ECM -44B 215677
200153
1 Sony Lavalier Microphone ECM -30 22305
2 Sony Lavalier Microphones ECM-50PS 40619
1 Panasonic Monitor 1920 UG4327812
2 Easels for Camera Cards
4 Lear/R-Columbia Intercom Headset RC -75/B
3 Lear/R-Columbia Intercom Station RC501
1 Clearcom Intercom Station 501 A076955
1 Lear/R-Columbia Power Station MS/PW5
1 Realistic Speaker
1 Kodak Slide Projector
St. Louis Park Inventory CONTROL ROOM
QUANT. ITEM
M/N S/N
2 Winstead Racks on Caster Frames
2 Emcor 72" Racks
1 Panasonic Production Switcher WJ5500B 33A00330
1 Tektronix Waveform Monitor 528 B227567
1 Alta Timebase Corrector Cygnus HHC976
1 Amiga Computer A-2000 HK0022936
1 Amiga Computer Keyboard KKQ-E944C MT9207
1 Amiga Mouse Pad
Ordinance No. 2309-06 -28-
1 Amiga Mouse B27000271
1 Super Gen -Amiga Genlock SG -10 3JSG0299177
1 Amiga Workbench Program
1 Deluxe Paint II Program
1 TV TEXT Program
1 JMH EASY TITLER Program
1 Video & Audio Patch Bay 2x26
21 Video & Audio Patch Cords
1 Furio Wall Clock
1 Shure Audio Mixer M267
1 Panasonic Audio Mixer WR450
3 Panasonic B&W 5" Monitors WV-5200BU 18Z02384
18Z02385
18Z02386
3 SEC Electronics 5" Monitors CH917 605619
605591
807550
1 Toshiba TV -Monitor CF2044J 83482612
2 Sony Camera Power Supplies CMA -8 12555
12556
1 Sony Trinitron 8" PVM-8200T 011441
1 Panasonic B&W 8" Monitor TR -930B KD9531020
1 JVC Remote Control Unit RMP200 15551091
2 Sony Camera Control Units CCU -1820 10322
10743
1 TEAC Audio Cassette Recorder CX -311 1203103
1 JVC VHS VCR BR -6400N 8915804
1 Panasonic SVHS VCP AG -7150K G2TC00224
1 Panasonic SVHS VCP AG -7150K G2TC00214
1 Sony U-matic VCP VP -7020 15149
1 Sony U-matic VCP VP -7000 17617
1 Microtime TBC T120 TXP8500N
2 Sony Trinitron Color Monitors PVM8200 503478
503594
2 Sony 3/4" VCR 5850 17320
72958
1 Sony Edit Controller RMM-440 17495
2 Multi -pin Cables for above
1 Gralab Darkroom Timer
1 Realistic Speaker 10"
1 9 Outlet Power Strip
1 6 Outlet Power Strip
2 13 Outlet Power Strip
1 16 Outlet Power Strip
1 15 Outlet Power Strip
1 Texscan/MSI Playback System SG4BRM 306
1 Texscan/MSI Charactor Generator SG4
1 Sigma Video Distribution Amp VDA100A 5830018
1 ISS Video Demodulator GL -1000A
1 Logic Relay Board
1 Sony Color Monitor/receiver 12" CVM1250 505835
1 Texscan Keyboard SG -4 103
Ordinance No 2309-06 -29-
1 Gray Metal Rack
St. Louis Park Inventory PRODUCTION VAN
QUANT. ITEM M/N S/N
3 Emcor Racks
1 ECHOIab Special Effects Generator DV -7 7577
1 Canopus Digital Video Converter ADVC-500 709748
1 Videonics Firestore FS -1 3484
5 LaCie External Hard Drives 300699U 0869404300584C
0869404300556C
0869402250014C
0869404300544C
0869404300552C
1 Sigma Color Bars Generator CBG -100A
1 Sigma Black Burst Generator BSG -100A
2 Sigma Video Distribution Amp VDA-100A
1 Panasonic Video Switcher WJ-220R 28200053
4 Panasonic Color Cameras WV-F200CLE 88A09513
9501
9520
9514
4 Panasonic Camera Control Units WV -RC -36 47R00110
88R00293
301
305
4 Panasonic Studio Viewfinder WV-VF65B 89151160
89151210
8X151548
72152957
2 Panasonic ENG Viewfinder WV-VF38 85Z00203
WV-VF38A 9ZZ00406V
2 Panasonic Camera Case
2 Portabrace Softsided camera case
4 Canon Manual Focus Control NA NA
4 Canon Servo Zoom Control WV-LK35 NA
11 Panasonic Camera Cable -100 ft 32A-100
4 Panasonic Camera Cable -50 ft 32A-50
6 Panasonic Camera Cable -20 ft 32A-20
1 Sony U-matic VCR VO -5800 20563
1 Sony VTR Remote Control Unit RM -500 23203
2 Panasonic SVHS VCR AG -7300 B1TH00425
C8TB00047
1 Sony Color Monitor (announcer) PVM-8040 2014440
2 JVC Color Monitors TM-A9UCV/A 17400866
17400859
3 Panasonic 5" B&W Monitors WV-5200BU 96101504
503
502
3 Panasonic 5" B&W Monitors WV-BM5000 61W15954
955
956
Ordinance No 2309-06 -30-
1 JVC 9" Color Monitor TM-R9U 6304796
1 Panasonic 13" Color Monitor CT-1384VY MB42080329
1 Tektronix WaveformNector Monitor 1740 B025642
1 Soundcraft 12 Ch 4 Bus Mixer Sprint SX RW5347006586
1 Telex Mastercontrol Station MS -2002 10386
1 Telex Headset PH1 64438-005
1 David Clark Headset H3390 16985G-04
3 Telex Headsets PH81 64438-004
1 Light Kit
1 Lowell Barn Door Frame
1 Lowell Quartz Spot -Flood
2 Lowell Light Stands
2 Barn Door Frames/Smith-Victor
2 Smith -Victor Flood/Spot Lights 720
1 Smith -Victor Plate Stands SA48 401234
1 Audio Kit Case
1 Gitzo Tripod
1 ITE Tripod Head H-40
1 Miller Dolly
2 ITE Dollies D-40
1 Sennheiser EW 100 Receiver EK100 130814
1 Sennheiser EW 100 Transmitter EK100 103418
3 Miller Tripod Head 157 D70542
D70775
D70777
3 Miller Tripod 1307 TG0196
TG0425
TG0427
3 Shure Desk Top Mic Stands
1 6 Outlet AC Power Strips
2 50' Blue Grounded AC Cords
1 100' Orange Grounded AC Cord
1 100' Yellow AC Cord
1 50' Orange AC Cord
5 100' XLR Audio Cables
3 50' XLR Audio Cables
2 20' XLR Audio Cable
1 Pro Co Roadmaster 200' 6x2 Audio Snake HE -123565
2 Panasonic Monitors TR -930 Kn2141658
1657
1 For A Time Base Corrector FA -310 3245917
2 Beyerdynamics Announcer Headsets DT 290 15061
4807
1 Videophonics Character Generator PS -10005 300159
2 EV Lavalier Microphones C090 Lo -Z 9342
1 EV Handheld Mic 635A
3 Long RF Cables
1 Panasonic AC Adapter/Charger WV-PS31 96151111
1 Panasonic Condenser Shotgun Mic WV-MC35
2 Ultimate Floor Mic Stands
1 Telex Vac Box IC1
1 Portable Table
Ordinance No 2309-06 -31-
1 Case (for announcer equipment)
1 Announcer Module
2 Stools
1 Plastic Box (for zoom and focus arms)
Section 2. Effective Date This Ordinance shall be effective fifteen (15) days after its
passage and publication and after acceptance by the Company pursuant to Section 28-1-30
Re e 1•d for Administration
City � anagcr
Attest.
Thrix (i
City Clerk //
Adopted by the City Council January 3, 2006
Mayor
Ap roved as to Form and Execution:
Ci Attorney
ACCEPTED This Franchise Ordinance is accepted, and we agree to be bound by its terms and
conditions
Date. ,
TIME WARNER CABLE, INC.
2006 By:
Its:
SWORN TO BEFORE ME this
day of , 2006.
NOTARY PUBLIC
JEAN W STRINGER
NOTARY PUBLIC • MINNESOTA
HENNEPIN COUNTY
My Comm ExpiresJan 3t 20104
Ordinance No. 2309-06 -31-
1 Case (for announcer equipment)
1 Announcer Module
2 Stools
1 Plastic Box (for zoom and focus arms)
{
Section 2. Effective Date This Ordinance shall be effective fifteen (15) days after its
passage and publication and after acceptance by the Company pursuant to Section 28-1-30
Re e d for Administration
Iiil1_
City anager
Attest:
Adopted by the City Council January 3, 2006
Mayor ,;/
Aproved as to Form and E . ecution:
City Clerk
C. Attorney
ACCEPTED: This Franchise Ordinance is accepted, and we agree to be bound by its terms and
conditions.
Date , ..1 -kr, • 2006 By:
SWORN TO BEFORE ME this
AO" day of fit�A.u.,�,,,2006.
ARY PUBLIC
f
FEB - 3
2006
•
newspapers
AFFIDAVIT OF PUBLICATION
STATE OF MINNESOTA)
ss
COUNTY OF HENNEPIN)
Richard Hendrickson, being duly sworn on an oath states or affirms, that he is the Chief Fi-
nancial Officer of the newspaper known as Sun -Sailor
and has full knowledge of the facts stated below:
(A) The newspaper has complied with all of the requirements constituting qualification as a
qualified newspaper, as provided by Minn. Stat. §331A.02, §331A 07, and other applic-
able laws, as amended
(B) The printed public notice that is attached was published in the newspaper once each
week, for one successive week(s); it was first published on Thursday, the 12 day
of January , 2006, and was thereafter printed and published on every Thursday
to and including Thursday, the day of , 2006, and printed below is
a copy of the lower case alphabet from A to Z, both inclusive, which is hereby acknowl-
edged as being the size and kind of type used in the composition and publication of the
notice.
abcd efg h q kl mnopq rstuvwxyz
BY:
Subscribed and sworn to or affirmed before me
on this 12 day of January , 2006
MARY ANN CARLSON
NOTARY PUBUC - MINNESOTA
MY COMMISSION EXPIRES 1-31-09
RATE INFORMATION
(1) Lowest classified rate paid by commercial users
for comparable space
02) Maximum rate allowed by law
(3) Rate actually charged
$ 2.85 per line
$ 6 20 per line
$ 1 30 per line
City of St. Louis Park
SUMMARY (Official Publication)
ORDINANCE NO 2309-06
AN ORDINANCE AMENDING CHAPTER 28
OF THE ST. LOUIS PARK CODE OF ORDINANCES
RELATING TO TELECOMMUNICATIONS,
ENACTING A CABLE TELEVISION FRANCHISE
ORDINANCE
This ordinance states that Chapter 28 of the Ordinance
Code relating to Telecommunications shall be amended
relative to enacting a Cable Television Franchise renewal
ordinance by adding Article I Time Warner/Comcast
Cable Franchise, Sections 28-1-1 to 28-1-30
The ordinance grants a franchise to Time Warner for 15
years In a separate proceeding, the Council has ap-
proved the proposed transfer of the franchise from Time
Warner to Comcast The terms and conditions of the pro-
posed franchise include financial payments by the fran-
chisee to the City to help provide public, educational and
government programming Other provisions include
arrangements for a local studio, an office in the area,
equipment drop-off and payment boxes within the City,
and insurance and security requirements A staff report
providing a more detailed description of the business
terms of the franchise is available at City Hall or upon re-
quest to City staff (952-924-2517)
The ordinance shall take effect 15 days after publication
Adopted by the City Council January 3, 2006
Jeffrey W Jacobs /s/
Mayor
A copy of the hill text of this ordinance is available for in-
spection with the City Clerk
Published January 12, 2006
-
(Jan 12, 2006)a3/Ord 2309-06 Time Warner