ORD 19-02CITY OF OTSEGO, MINNESOTA
ORDINANCE NO. 2019-02
AN ORDINANCE GRANTING A FRANCHISE TO CC VIII OPERATING LLC D/B/A
CHARTER COMMUNICATIONS TO CONSTRUCT, OPERATE, AND MAINTAIN A
CABLE SYSTEM AND PROVIDE CABLE SERVICE IN THE CITY OF OTSEGO,
MINNESOTA.
RECITALS
1. This Cable Franchise Ordinance ("Franchise") is made and entered into by and
between the City of Otsego, a municipal corporation of the State of Minnesota ("City")
and CC VIII Operating LLC d/b/a Charter Communications, a limited liability company
("Grantee").
2. Pursuant to Ordinance No. ("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 timely submitted a request for a Franchise.
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 grant and issue a Franchise to Grantee.
5. This Franchise is nonexclusive and complies with applicable laws and regulations.
THE CITY COUNCIL OF THE CITY OF OTSEGO HEREBY ORDAINS:
SECTION 1. GENERAL PROVISIONS
Section 1.1 Definitions.
Unless otherwise defined herein, the terms, phrases, and words contained in this
Franchise have the meaning provided in the Cable Ordinance. Terms, phrases and words
contained in this Franchise that are not defined here or in the Cable Ordinance will have
their normal and customary meaning.
Section 1.2 Written Notice.
All notices, reports, or demands required to be given in writing 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
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or certified mail postage prepaid thereon, addressed to the party to whom notice is being
given, as follows:
If to City: City of Otsego
Attn: City Administrator
City of Otsego
13400 90t` Street NE
Otsego, MN 55330-7314
If to Grantee: Charter Communications
Attn: Senior Manager Government Affairs
16900 Cedar Avenue S.
Rosemount, MN 55069
Email: Amanda.Duerr@charter.com
With copies to: Charter Communications
Attn. Vice President of
Government Affair
12405 Powerscourt Drive
St. Louis, MO 63131
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 deliver Cable Service and construct, operate and
maintain a Cable System in the Rights -of -Way in the City.
b. This Franchise is granted pursuant to the Cable Ordinance. By accepting this
Franchise, Grantee agrees to be bound by the terms of the Cable Ordinance. In the event
of any conflict between the provisions of this Franchise and the Cable Ordinance, the
provisions of this Franchise shall govern. The City shall, at all times, have the right to
amend the Cable Ordinance in the exercise of its police powers and as otherwise
permitted by applicable law. To the extent required by law, the City will not grant a
Franchise for an area included in this Franchise on terms and conditions more favorable
or less burdensome than those in this Franchise pertaining to: (1) area served; (2) public,
educational, or governmental access requirements; or (3) franchise fees. The City may
impose additional terms and conditions in any other Franchises.
c. Grantee acknowledges the right of City to issue this Franchise.
Section 2.2 Franchise Term.
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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 revolted.
Section 2.3 Service Area.
a. Where density requirements of Section 2.3(b) below are met, Grantee shall
engage in joint trenching in accordance with the Right -of -Way Ordinance unless the
Grantee does not receive a timely request for the extension of the Cable System and
Service from the developer or City, or otherwise demonstrates to the City good cause for
failing to complete such Cable System extension.
b. The Grantee will extend its System and offer Cable Service within the City
within a reasonable time, not exceeding 120 days, after receipt of a request for Service
provided, however, that Grantee will only be required to extend its System without cost to
the Person who will receive Service where such extension will make Service available to
at least eight (8) residential units per one-quarter (1/4) cable mile of System, as measured
from the nearest accessible tie-in point on the Cable System. The Grantee will meet at
the City's request, within a reasonable time not exceeding thirty (30) days, to explain its
determination of the "nearest accessible time -in point" and its calculation of the foregoing
residential density standard.
C. Where the density is less than that specified above, Grantee shall inform
the developer or other Persons requesting Service that such Service will be provided upon
payment of a portion of the cost of Installation or line extension and Grantee shall provide
a free written estimate of such cost within fifteen (15) days of the Service request. 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.
SECTION 3. SYSTEM
Section 3.1 System Capacity.
Grantee will construct and operate a Hybrid Fiber Coaxial System. The System will
provide a minimum of 750 MHz of capacity. Grantee's System will be capable of
offering at least 75 video programmed Channels throughout the term of this Franchise. A
portion of the capacity may be reserved for additional services such as digital
programming, Internet Service or other Telecommunications Services. Grantee's System
will have return capability.
Section 3.3 Pedestals.
Pursuant to Section 5.3b of the Cable Ordinance, Grantee shall be permitted to install
standard pedestals necessary for Standard Installations without receiving prior approval
from the City. A standard pedestal shall be no larger than 2'X 2' and 3' tall.
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SECTION 4. COMMUNITY SERVICES
Section 4.1 PEG Access Facilities.
a. PEG Access Channel. Grantee shall provide to each of its Subscribers who
receive some or all of the services offered on the System, reception on at least one
specially designated access Channel on the Cable System for use by the Grantor for non-
commercial, video programming for public, education and government ("PEG") access
programming. The PEG Channel shall be placed on the lowest tier of service available
to Subscribers. The Grantor shall administer the Channel and shall establish rules for its
use.
b. PEG Access Facilities and Equipment. At any time during the term of this
Franchise, the City may notify the Grantee of the need for capital support for PEG access
equipment and facilities as provided in this Section and consistent with federal law. Such
notice shall include a summary of the City's plans for acquiring PEG access equipment
and facilities, producing programming, and funding operations. PEG funds shall not be
used for purposes other than as prescribed by federal law. The City shall afford the
Grantee and the public an opportunity to comment on the level of PEG capital support
that is reasonable to meet the needs of the community considering the cost to meet those
needs. The City shall notify the Grantee in writing at least thirty (30) days prior to the
deadline for such comments and shall thereafter notify the Grantee of the final amount of
capital support required.
c. Recovery of PEG Access Facility Costs . The Grantee shall be permitted to
recover PEG capital costs from Subscribers via a per -customer pass through on bills if
allowed by law ("Access Fee"). The Access Fee must not exceed one dollar ($1.00) per
Subscriber per month.
d. Access Rules. The City may implement rules for use of the PEG Access
Channels. Prior to the cablecast of any program on any PEG Access Channel established
herein, any Person who requests access to the System to provide video programming must
provide a written certification acceptable to City which releases, indemnifies, and holds
harmless Grantee, City and their employees, offices, agents, and assigns from any
liability, cost, damages and expenses, including reasonable expenses for legal fees,
arising or connected in any way with said program.
e. PgIfty of Obligations. In the event there is Competition in the City during the
term of this Franchise, the City will impose equivalent PEG Access obligations on all.
franchised providers of Cable Service in the City and the Access Fee shall be identical for
all providers.
Section 4.2 Drops and Service to Public Buildings.
The Grantee must install one (1) Drop, one (1) outlet, and one (1) converter (if
necessary) and provide monthly Cable Service (excluding pay -per -channel or pay-per-
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program) without charge to all public and state -accredited parochial primary and
secondary schools and those sites listed in Exhibit A, attached.
SECTION 5. ADMINISTRATION PROVISIONS
Section 5.1 Fee.
The Grantee must pay a Fee to the City in an annual amount equal to five percent (5%) of
its Gross Revenues. The parties acknowledge that the Grantee may offer a bundle or
package of Cable Services and non -Cable Services at a discounted rate. In such case, to
calculate Gross Revenues the Grantee will allocate revenues between Cable Services
(which are subject to the Franchise Fee) and non -Cable Services (which are not subject to
the Franchise Fee but may be subject to other fees and/or taxes) included in the bundle or
package of services. The Grantee shall apportion the revenues generated from bundled or
packaged services on a proportionate pro rata basis among the services offered unless
such allocation methodology is directly in conflict with GAAP, in which case Grantee
shall allocate bundled revenues in accordance with GAAP, and in no event shall the
Grantee allocate the revenues to evade its Franchise Fee obligations under this Franchise
or disproportionately reduce Gross Revenues.
Section 5.3 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 the City a performance bond in the amount of
Thirty Thousand Dollars ($30,000.00) in a form and with such sureties as are reasonably
acceptable to the City. At the time of acceptance of this Franchise, the Grantee will file
with the City a copy of the performance bond. The Grantee must maintain the
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performance bond until this Franchise expires or is terminated, and the Grantee has
liquidated all of its obligations with the City.
b. The performance bond must 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 bond, 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 must be entitled to collect from the performance bond any resultant damages, costs
or liabilities incurred by the City.
C. 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. Accordingly, the City
may, in its reasonable discretion, collect from the performance bond 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. Each
violation may be considered a separate violation for which separate liquidated damages
can be imposed. Any collection of liquidated damages under this provision may not
occur prior to completion of the procedures set forth in Section 14.1 of the Cable
Ordinance applicable to enforcement actions by the City.
d. In the event the City will make any claim against the performance bond,
the City must comply with Section 14 of the Cable Ordinance governing enforcement of
this Franchise.
e. The City's rights pursuant to the performance bond are in addition to all
other rights the City may have. Any action with respect to the performance bond does not
constitute an exclusive remedy nor limit any other right.
SECTION 7. MISCELLANEOUS REQUIREMENTS
Section 7.1 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, Grantees must prepare and maintain for up to
three years, the written records of all complaints received and the resolution of such
complaints, including the date of such resolution.
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b. Written complaint records must be on file at the office of a Grantee. Upon
written request by the City, Grantees must provide the City with a written summary of
such complaints and their resolution on a quarterly basis and in a form mutually agreeable
to the City and Grantee.
C. Upon written request by the City, Grantees must provide detailed
compliance reports on a quarterly basis with respect to the objectively measurable service
standards required in this Section. A Grantee will not be required to acquire equipment or
perform surveys to measure compliance with the telephone answering standards
contained in this Section unless a historical record of complaints indicates a failure to
comply.
Section 7.2 Amendment of Franchise Ordinance.
The Grantee and the City may agree, from time to time, to amend this Franchise. Nothing
herein restricts the City's lawful exercise of its police powers, ordinance -making
authority, and power of eminent domain.
Section 7.3 Force Majeure.
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 provided Grantee has notified the City in writing within ten (10) days
of its discovery of such cause preventing performance.
Section 7.4 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 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 or unenforceable provisions do not substantially
alter the agreement between the Parties. In the event such law, rule or regulation is
subsequently repealed, rescinded, amended or otherwise changed so that the Franchise
provision which had been held invalid or modified is no longer in conflict therewith, such
Franchise provision will return to fall force and effect and thereafter be binding.
Section 7.5 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 7.6 Rights Cumulative.
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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 7.7 Work Performed by Others.
All obligations of this Franchise apply to 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 7.8 Acknowledgment of Validity of Franchise.
The Grantee acknowledges that it believes that the terms and conditions of this Franchise
comply with current laws, are not unreasonable or arbitrary, and the City has the power to
enter into this Franchise on the terms and conditions contained herein.
SECTION 8. ACCEPTANCE OF FRANCHISE
Section 8.1 Publication and Effective Date.
This Franchise will be effective on the date of acceptance by Grantee. As required by
applicable law, this Franchise must be enacted and published as an ordinance.
Section 8.2 Time for Acceptance.
a. The Grantee must accept this Franchise within thirty (30) 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.
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Passed and adopted this of O -- _, 201.
CITY OF OTSEGO
By:
,,
Its:
ACCEPTED: This Franchise is accepted and we agree to be bound by its terms and
conditions.
CC VIII OPERATING LLC D/B/A CHARTER COMMUNICATIONS
Dated:
By: _
Its:
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I C 1
Free Service Locations
City Hall —13400 90th Street NE
Prairie Center — 8899 Nashua Avenue NE
Wastewater West — 7551 Lancaster *
Wastewater East — 5850 Randolph Avenue *
Future Fire Hall--- Address Unknown *
• The Grantee's rights to recover its actual, demonstrated costs of completing these
connections shall be governed by Section 2.3 of the Franchise.
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SUMMARY OF ORDINANCE NO.: 2019-02
CITY OF OTSEGO
COUNTY OF WRIGHT, MINNESOTA
AN ORDINANCE GRANTING FRANCHISE TO CC VIII LLC D/B/A CHARTER
COMMUNICATIONS TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE
SYSTEM AND PROVIDE CABLE SERVICE IN THE CITY OF OTSEGO, MINNESOTA.
THE CITY COUNCIL OF THE CITY OF OTSEGO DOES HEREBY ORDAIN:
Section 1. The City hereby adopts the above referenced Ordinance granting a
Cable Service Franchise upon certain terms and conditions for a fifteen year period.
Section 2. The Ordinance replaces the previous Ordinance granting a Franchise
to the above mentioned entity and its predecessors.
Section 3. The new ordinance strengthens the obligation to provide service
within the City.
Section 4. The new ordinance provides for establishment and funding of
community programming if desired by the City.
Section 5. The new ordinance continues to provide for a Franchise Fee of 5% of
gross revenues.
Section 6. The existing system capacity and technical requirements are
retained.
Section 7. The new ordinance has been modified in certain aspects due to the
fact that the City has a right of way ordinance.
Section 8. The City's right to free cable service at City sites has been clarified.
Section 9. The previous performance bond, insurance requirements
indemnification and enforcement mechanisms have been retained.
force.
Section 10. Customer service obligations have been streamlined but remain in
1
MOTION BY: Darkenwald
SECOND BY: Tanner
ALL IN FAVOR: Stockamp, Darkenwald, Tanner, Goede
THOSE OPPOSED: None
ADOPTED by the City Council of the City of Otsego this 28th day of
January, 2019.
CITY OF OTSEGO
BY: Gpmy 0�
Jes ica L. Stockamp, Mayor
ATTEST:)
Tami Loff, City Clerk
Pursuant to Minnesota Statutes 412.191, Subd. 4 and 331A.01, Subd.10, this
Ordinance is published in summary form. Complete copies of the ordinance are
available for inspection by contacting the City Clerk, Otsego City Hall, 13400 90TH Street
NE, Otsego, Minnesota 55330 during regular office hours.
AFFIDAVIT OF PUBLICATION
STATE OF MINNESOTA ) ss
COUNTY OF SHERBURNE
Darlene MacPherson being duly sworn on an
oath, states or affirms that he/she is the
Publisher's Designated Agent of the newspa-
per(s) known as:
Star News
with the known office of issue being located
in the county of:
SHERBURNE
with additional circulation in the counties of:
WRIGHT
and has full knowledge of the facts stated
below:
(A) The newspaper has complied with all of
the requirements constituting qualifica-
tion as a qualified newspaper as provided
by Minn. Stat. §331A.02.
(B) This Public Notice was printed and pub-
lished in said newspaper(s) once each
week, for 1 successive week(s); the first
insertion being on 02/02/2019 and the last
insertion being on 02/02/2019.
MORTGAGE FORECLOSURE NOTICES
Pursuant to Minnesota Stat. §580.033
relating to the publication of mortgage
foreclosure notices: The newspaper complies
with the conditions described in §580.033,
subd. 1, clause (1) or (2). If the newspaper's
known office of issue is located in a county
adjoining the county where the mortgaged
premises or some part of the mortgaged
premises described in the notice are located,
a substantial portion of the newspaper's
circulation is in the latter county.
By:_i-=-�
Designated Agent
Subscribed and sworn to or affirmed before
me on 02/02/2019 by Darlene MacPherson.
(' 4�/
Notary Public
Jessica L Crabb
Notary Public
Minnesota
My Commission Expires January 31, 2023
Rate Information:
(1) Lowest classified rate paid by commercial users
for comparable space:
$23.00 per column inch
Ad ID 903045
CITY OF OTSEGO
COUNTY OF WRIGHT,
MINNESOTA
SUMMARY OF
ORDINANCE NO.: 2019-02
AN ORDINANCE GRANTING
FRANCHISE TO CC VIII LLC
D/B/A CHARTER
COMMUNICATIONS TO
CONSTRUCT, OPERATE,
AND MAINTAIN A CABLE
SYSTEM AND PROVIDE
CABLE SERVICE IN
THE CITY OF OTSEGO,
MINNESOTA.
THE CITY COUNCIL OF THE
CITY OF OTSEGO DOES HEREBY
ORDAIN:
Section 1. The City hereby
adopts the above referenced Or-
dinance granting a Cable Service
Franchise upon certain terms and
conditions for a fifteen year period.
Section 2. The Ordinance re-
places the previous Ordinance
granting a Franchise to the above
mentioned entity and its predeces-
sors.
Section 3. The new ordinance
strengthens the obligation to pro-
vide service within the City.
Section 4. The new ordinance
provides for establishment and
funding of community program-
ming if desired by the City.
Section 5. The new ordinance
continues to provide for a Fran-
chise Fee of 5% of gross revenues.
Section 6. The existing system
capacity and technical require-
ments are retained.
Section 7. The new ordinance
has been modified in certain as-
pects due to the fact that the City
has a right of way ordinance.
Section 8. The City's right to
free cable service at City sites has
been clarified.
Section 9. The previous perfor-
mance bond, insurance require-
ments indemnification and en-
forcement mechanisms have been
retained.
Section 10. Customer service
obligations have been streamlined
but remain in force.
MOTION BY: Darkenwald
SECOND BY: Tanner
ALL IN FAVOR: Stockamp, Dark-
enwald, Tanner, Goede
THOSE OPPOSED: None
ADOPTED by the City Council of
the City of Otsego this 28th day of
January, 2019.
Pursuant to Minnesota Statutes
412.191, Subd. 4 and 331A.01,
Subd.10, this Ordinance is pub-
lished in summary form. Complete
copies of the ordinance are avail-
able for inspection by contacting
the City Clerk, Otsego City Hall,
13400 90TH Street NE, Otsego,
Minnesota 55330 during regular
office hours.
CITY OF OTSEGO
BY: Jessica L. Stockamp, Mayor
ATTEST: Tam! Loff, City Clerk
Published in the
Star News
February 2, 2019
903045