08-26-02 CCITEM 5. 1,
CLAIMS LIST
CITY COUNCIL MEETING
AUGUST 26, 2002
TO: Judy Hudson
Attached is the Claims List for the City Council. For more details, please refer to the
Check Detail Registers.
If you have any questions regarding this service, please let me know.
Claims Register 8-14-2002 $ 762.54
8-15-2002 $1,257,576.43
GRAND TOTAL $1,258,338.97
If you have any questions or if you would like to review this list further, please let me
know.
Kathy Grover
Bookkeeper
CITY OF OTSEGO 08/15/02 1:47 PM
Page 1
*Check Summary Reqister@
AUGUST 2002
FILTER: None
Name
Check Date Check Amt
10100
BANKOFELICRIVER
UnPaid
AIRGAS, INC.
$19.75
UnPaid
AMERICAN ENGINEERING TESTING
$680.60
UnPaid
ARCON CONSTRUCTION CO
$590,858.64
UnPaid
COLSERG-YOUNG CONSTRUCTION INC
$1,000.00
UnPaid
CONSTRUCTION BULLETIN
$347.73
UnPaid
CROW RIVER FARM EQUIPMENT
$336.44
UnPaid
DRAKE CONSTRUCTION, INC.
$1,000.00
UnPaid
ECM PUBLISHERS INC
$202.29
UnPaid
FENNA HOMES
$1,000.00
UnPaid
G & K TE)(TILE LEASING SYSTEM
$563.84
UnPaid
GOPHER STATE ONE -CALL INC
$3.80
UnPaid
GRIDOR CONSTR., INC.
$447,315.00
UnPaid
HARDRIVES INC
$199,571.47
UnPaid
ICMA RETIREMENT TRUST
$422.31
UnPaid
JACQUIE ROGNLI
$875.00
UnPaid
NBL FINANCIAL CORPORATION
$1,000.00
UnPaid
NORTHERN TOOL & EQUIPMENT CO
$9.57
UnPaid
NORTHWEST ASSOC CONSULTANTS
$7,531.13
UnPaid
PUBLIC EMPLOYEES RE71REMENT FD
$1,271.38
UnPaid
RODNEY OR DIANA WUORNOS
$1,000.00
UnPaid
SCHUETT GENERAL CONTRACTORS IN
$1,000.00
UnPaid
SCOTT OR VICKIE RAMSIER
$1,000.00
QnPajd
WOODLINE SAWMILLS INC
$497.88
iPaid
WRIGHT COUNTY AUDITOR -TREASURE
$12.00
.nPajd
WRIGHT COUNTY RECORDER
$20.00
UnPaid
XCELENERGY
$37.67
Total Checks 1.257,576.43
FILTER: None
CITY OF OTSEGO 08/15/02 1:47 PkA.
Page 1
*Check Detail ReqisterC
AUGUST 2002
10100 BANKOFELKRIVER
Unpaid AIRGAS, INC.
E101-43100-210 Operating Supplies (GENERAL) $19.75105628327 ACET/HA2MAT/OXY
Total AIRGAS, INC. $19.75
RING TESTING
'Cn
E 420-43100-302
Engineering Fees
$680.60
19438
PAGE CONSTRUCTION
Total AMERICAN ENGINEERING TESTING
$680.60
__ -1111-111-- -11
Unpaid
ARCON CONSTRUCTION CO
E 423-43100-530
Improvements Other Than BIdgs
$590,858.64 —PAY
1
QUADAY & 91 ST ST
Total ARCON CONSTRUCTION CO
$590,858.64
Unpaid
COLBERG-YOUNG CONSTRUCTION INC
..............
E 702-41400-310
Miscellaneous
$1,000.00
8198 PALMGREN LNDSCP REFUND
Total COLBERG-YOUNG
CONSTRUCTION INC
$1,000.00
Unpaid
CONSTRUCTION BULLETIN
E 434-43100-350
Print/Binding (GENERAL)
$115.91
2106949
85TH ST EXTENTION
E434-43100-350
Print/Bincling (GENERAL)
$115.91
2112276
85TH ST EXTENTION
E434-43100-350
Print/Bincling (GENERAL)
$115.91
2118122
85TH ST EXTENTION
Total
CONSTRUCTION BULLETIN
$347.73
Unpaid
CROW RIVER FARM EQUIPMENT
E101-43100-220
Repair/Maint Supply (GENERAL)
$336.44
91348
REPAIR/MAINT SUPPUES
Total CROW RIVER FARM EQUIPMENT
$336.44
Unpaid
DRAKE CONSTRUCTION, INC.
E 702-41400-310
Miscellaneous
$1,000.00
8265 PARELL AVE LNDSCP REFUND
Total DRAKE CONSTRUCTION, INC.
$1,000.00
Unpaid
ECM PUBLISHERS INC
. .................................
E101-41400-350
Print/Binding (GENERAL)
$202.22132830
AD FOR BID
Total ECM PUBLISHERS INC
$202.22
Unpaid
FENNA HOMES
E 702-41400-310
Miscellaneous
$1,000.00
8336 PADRE CIR LNDSCP REFUND
Total FENNA HOMES
$1,000.00
Unpaid
G & K TEXTILE LEASING SYSTEM
E 101-43100-225
Uniforms
$66.62
817635
UNIFORMS
E 101-41940-390
Contracted Services
$80.09
822483
MATS
E 101-43100-225
Uniforms
$99.15
822484
UNIFORMS
E 101-43100-225
Uniforms
$76.77
827278
UNIFORMS
E 101-41940-390
Contracted Services
$81.78
832072
MATS
E 101-43100-225
Uniforms
$73.26
832073
UNIFORMS
E 101-43100-225
Uniforms
$86.17
836866
UNIFORMS
Total G & K TEXTILE LEASING SYSTEM
$563.84
Unpaid
GOPHER STATE ONE -CALL INC
E 101-41400-310
Miscellaneous
$3.80
2070616
LOCATE TICKETS
Total
GOPHER STATE ONE -CALL INC
$3.80
J�pZ
GRIDOR CONSTR., INC.
. ..... ............
E 429-43256-500
Capital Outlay (GENERAL)
$447,315.00
5
EAST WWT PHASE 2
Total GRIDOR CONSTR., INC.
$447�315.00
U n paid
HARDRIVES INC
E 420-43100-530
Improvements Other Than Bldgs
$199,571.47
PAY I
PAGE AVE
CITY OF OTSEGO 08115/02 1:47 PM
Page 2
Theck Detail Reqister@
AUGUST 2002
Check Amt
Invoi ce
Comment
Total HARDRIVES INC
$199,571.47
Unpaid
ICMA RETIREMENT TRUST
G 101-21705 Other Retirement
$230.00
PPE 8/3
E 101-41400-121 PERA
$192.31
PPE 8/3 CK DTO 817
Total ICMA RETIREMENT TRUST
$422.31
JACQUIE ROGNLI
................................
E 101-41400-347 Newsletter
$875-00
2002-05
JULY/AUG VIEW
Total JACQUIE ROGNLI
$875.00
Unpaid
NBL FINANCIAL CORPORATION
E 702-41400-310 Miscellaneous
$1,000.00
7904 PALMGREN LNDSCP REFUND
Total NIBL FINANCIAL CORPORATION
$1,000.00
Unpaid
NORTHERN TOOL & EQUIPMENT CO
.............. .. ......
E101-43100-203 Supplies -General
$9.57
06771291
BLUE TARP
Total NORTHERN TOOL& EQUIPMENT CO
$9.57
Unpaid
NORTHWEST ASSOC CONSULTANTS
G 701-22322 REGER CUP
$86.48
12008
REGER
G701-21978 KreusarCUP
$260.69
12008
HOOFBEATS/HEARTBEATS
G 701-22328 WATERFRONT EAST
$84.50
12008
WATERFRONT EAST
G 701-22306 DeMars Plat
$532-59
12008
DEMARS
G701-22320 RETAIL OFFICE SPACE
$874.31
12008
RETAIL WATERFRONT
G 701-22313 BLACKWOODS SITE
$117.00
12008
BLACKWOODS
G701-22315 OTSEGO MEADOWS GOLF
$136.50
12008
OTSEGO MEADOWS GOLF
G 701-22324 RIVERPOINTE 3
$237.72
12008
RIVERPOINTE 3
G 701-22325 101 MARKET
$588-66
12008
NATHE 101 MARKET
G 701-22326 VALERIUS
$58-50
12008
VALERIUS REZONE
G 701-22318 RIVERVIEW BANK
$65.00
12008
WATBANK/OFFICE
E 101-41570-303 Planning Fees
$55-00
12009
ZONING MAP UPDATE
E 203-45210-303 Planning Fees
$88.00
12009
SCHOOL KNOLL
E 101-41570-303 Planning Fees
$249.48
12009
SUBDIV ORD
E 101-4157G-303 Planning Fees
$700.21
12009
GENERAL
E 101-41570-303 Planning Fees
$0.85
12009
03 BUDGET
E 101-41570-303 Planning Fees
$1.89
12009
PHEASANT DREAMS
E 101-42420-310 Miscellaneous
$205.75
12010
CODE ENFORCEMENT
E 101-41570-303 Planning Fees
$1,600.00
12011
MEETINGS
E 101-41570-303 Planning Fees
$1,120.00
12012
CITY CODE
E 101-41570-303 Planning Fees
$468-00
12013
ZONING ORDINANCE
Total NORTHWEST ASSOC CONSULTANTS
$7,631.13
Unpaid
PUBLIC EMPLOYEES RETIREMENT FD
G 101-21704 PERA
$609.98
PPE 8/3 CK 8a
E 101-41400-121 PERA
$314.65
PPE 8/3 CK 8/7
E 101-41550-121 PERA
$110.60
PPE 8/3 CK 8/7
E 101-43100-121 PERA
$236.15
PPE 8/3 CK 8/7
Total PUBLIC EMPLOYEES RETIREMENT FD
$1,271.38
Unpaid
RODNEY OR DIANA WUORNOS
E 702-41400-310 Miscellaneous
$1,000.00
7842 PARELL LNDSCP REFUND
Total RODNEY OR DIANA WUORNOS
$1,000.00
Unpaid
SCHUETT GENERAL CONTRACTORS IN
E 702-41400-310 Miscellaneous
$1,000.00
7926 PALMGREN LNDSCP REFUND
Total SCHUETT GENERAL CONTRACTORS IN
$1.000.00
CITY OF OTSEGO 08/15/02 1:47 PM
Page 3
*Check Detail Re_qister@
AUGUST 2002
k Amt Invoice Comment----
------------- -------------------- .............. .................. ......... -_1 .......
Uwii `_,,,,,,_�� ------ ��_, _SCOTT OR VICKIE RAMSIER
E 101-43160-322 Utilities $37.67 054157132';v" RIVERPOINTE
Total XCEL ENERGY $37.67
10100 BANKOFELKRIVER 1,257,576.43
'-TER: None
E 702-41400-310 Miscellaneous $1,000.00
10134 JANDEL LNDSCP REFUND
Total SCOTT OR VICKIE RAMSIER $1.000.00
Un
WOODLINE SAWMILLS INC
E 203-45210-310 Miscellaneous $497.884718
NATURE WALK
Total WOODLINE SAWMILLS INC $497.88
Unpaid
WRIGHT COUNTY AUDITOR -TREASURE
E101-41400-203 Supplies -General $12.00 02-083
TOTAL MARKET VALUE
Total WRIGHT COUNTY AUDITOR -TREASURE $12.00
Unpaid
WRIGHT COUNTY RECORDER
E 101-41400-340 Recording Few $20.00
DAVID LEFEBVRE RECORDING FEES
Total WRIGHT COUNTY RECORDER $20.00
Unpaid
XCELENERGY
...........................
E 101-43160-322 Utilities $37.67 054157132';v" RIVERPOINTE
Total XCEL ENERGY $37.67
10100 BANKOFELKRIVER 1,257,576.43
'-TER: None
CITY OF OTSEGO
*Check Summary Register@
AUGUST 2002
UnPaid MARSHALL CONCRETE PRODUCTS INC $762.54
Total Checks $762.54
FILTER: None
08/14/02 10:47 AM
Page 1
CITY OF OTSEGO 08/14/02 10:47 AM
Page I
*Check Detail Reqister@
AUGUST 2002
10100 BANKOFELKRIVER
Unpaid MARSHALL CONCRETE PRODUCTS INC
E 203-45210-501 Equipment $762.54 088414 CEMENT FOR PARK
Total MARSHALL CONCRETE PRODUCTS INC $762.54
10100 BANK OF ELK RIVER $762.54
FILTER: None
ITEM 6. 1.
114011tTOWRIST ASSOCIATab 111114c,
5775 Wayzata Boulevard, Suite 555, St. Louis Park, MN 55416
Telephone: 952-595.9636 Facsimile: 952.595.9837 planners@nacplanning.com
MEMORANDUM
TO: Otsego Mayor and City Council
FROM: Mike Darrow / Daniel Licht
R E.- Otsego- Riverview Community Bank; Site Plan/Final Plat
DATE: August 20, 2002 APPLICATION DATE: August 7, 2002
NAC FILE: 176.02-02.29 CITY FILE: 2002 -
Please be advised that the Planning Commission considered the application of
the Welsh Development, LLC for site plan and final plat to construct a 10,840
square foot bank on the southeast corner of 88 th Street and CSAH 42. This
meeting was not a public hearing as this site was preliminary platted in 1994 as
part of the MRD Commercial Park.
The applicants were in attendance at the meeting. The applicants stated that
they had discussed the issue of keeping two parking stalls at the east end of the
two parking rows on the north end of the building. Staff had discussed this issue
with the applicants and recommended allowing these two stalls.
The applicants also asked about building a freestanding sign on the northwest
corner of the site. They would like to begin construction on the sign immediately.
The City Administrator stated that an amendment to the sign ordinance to allow
such a sign in the permitted setback could be amended as early as November.
The applicants were instructed to construct only those signs that are allowed
under City Code.
The Planning Commission voted 6-0 to recommend approval of the applications,
subject to the conditions as outlined below. The applicantions will be considered
at the City Council meeting on August 26, 2002 at 6:30 PIVI.
A. Motion to approve site and building plans and a final plat for MRD 2nd
Addition, subject to the following conditions:
The site plan is revised to illustrate the 20 foot setback requirement
from the rear (east) lot line.
2. The landscape plan is revised to add trees along 88th Street in
order to provide one tree every 40 feet, to provide trees or a shrub
line along the south lot line of the property, and specify foundation
planting details, subject to review and approval of City Staff.
3. The applicant is to submit a photometric light plan showing fixture
types, locations, and illumination patterns, subject to approval of
City Staff.
4. The site plan is modified to eliminate four stalls at the north end of
the row of parking along the east lot line. All off-street parking and
drive aisles are to be surfaced with asphalt or concrete and with
painted stalls.
5. All signs shall conform with Section 37 of the Zoning Ordinance.
6. The trash enclosure must be constructed of materials consistent
with those of the principal building with additional shrubs planted on
the east and south sides of the trash enclosure, subject to review
and approval of City Staff.
7. Park and trail dedication requirements are subject to review of the
Parks and Recreation Commission and approval of the City
Council.
8. All grading, stormwater drainage, utilities, easements, and access
issues are subject to review and approval of the City Engineer.
9. The applicant is to submit a final plat in the form required by
Sections 21-6-3 and 21-6-4 of the Subdivision Ordinance together
with a sketch plan for Block 2 of the MRD Commercial Park
preliminary plat.
10. The applicant shall enter into a development contract with the City
and pay all fees and securities required by it, subject to review and
approval of the City Attorney.
11. Comments of other City Staff.
B. Motion to deny the application based upon a finding that the request is
inconsistent with the Comprehensive Plan, Zoning Ordinance, and
Subdivision Ordinance.
2
C. Motion to table the request.
PC. Mike Robertson
Judy Hudson
Andy MacArthur
Ron Wagner
Dan Russ
Lynn Sloat
CITY OF
0 T S E G 0
WRIGHT COUNTY, NUNNESOTA
APPLICANT: Welsh Development, LLC.
08-21-02
FINDINGS & DECISION
SITE AND BUILDING PLANS/FINAL PLAT
APPLICATION: Request for site and building plan review and final plat approval for construction of a
10,840 square foot bank and office use at the southeast corner of CSAH 42 and 88 1h Street.
CITY COUNCIL MEETING: 26 August 2002
FINDINGS: Based upon review of the application, the recommendation of the Planning Commission, and
evidence received, the City Council of the City of Otsego now makes the following findings of fact:
A. The legal description of the property is attached as Exhibit A.
B. The property lies within the Sanitary Sewer Service District and is guided for commercial land uses
by the Otsego Comprehensive Plan, as amended.
C. The property is zoned B-3, General Business District; Bank and office uses are a permitted uses
within the B-3 District.
D. The planning report dated 14 August 2002 prepared by the City Planner, Northwest Associated
Consultants, Inc., is incorporated herein.
E. The engineering review dated 15 August 2002 prepared by the City Engineer, Hakanson Anderson
Associates, Inc., is incorporated herein.
F. The Otsego Planning Commission considered the application at their regular meeting on 19 August
2002. Upon review of the application and evidence received, the Otsego Planning Commission
recommended by a 6-0 vote that the City Council approve the request based on the aforementioned
findings.
DECISION: Based on the foregoing information and applicable ordinances, the request for site and
building plan review and final plat for Riverview Community Bank is hereby approved based on the most
current plan and information received to date, subject to the following conditions:
The site plan is revised to illustrate the 20 foot setback requirement from the rear (east) lot
line.
2. The landscape plan is revised to add trees along 88th Street in order to provide one tree
every 40 feet, to provide trees or a shrub line along the south lot line of the property, and
specify foundation planting details, subject to review and approval of City Staff.
3. The applicant is to submit a photometric light plan showing fixture types, locations, and
illumination patterns, subject to approval of City Staff.
4. The site plan is modified to eliminate four stalls at the north end of the row of parking along
the east lot line. All off-street parking and drive aisles are to be surfaced with asphalt or
concrete and with painted stalls.
5. All signs shall conform with Section 37 of the Zoning Ordinance.
6. The trash enclosure must be constructed of materials consistent with those of the principal
building with additional shrubs planted on the east and south sides of the trash enclosure,
subject to review and approval of City Staff.
7. Park and trail dedication requirements are subject to review of the Parks and Recreation
Commission and approval of the City Council.
8. All grading, stormwater drainage, utilities, easements, and access issues are subject to
review and approval of the City Engineer.
9. The applicant is to submit a final plat in the form required by Sections 21-6-3 and 21-6-4 of
the Subdivision Ordinance together with a sketch plan for Block 2 of the MRD Commercial
Park preliminary plat.
10. The applicant shall enter into a development contract with the City and pay all fees and
securities required by it, subject to review and approval of the City Attorney.
PASSED by the Otsego City Council this 26th day of August, 2002.
Attest:
CITY OF OTSEGO
By:
Larry Fournier, Mayor
Judy Hudson, Zoning Administrator/City Clerk
2
CITY OF OTSEGO
CITY COUNCIL
CITY ENGINEER'S AGENDA
August 26, 2002
Item 7. 1: Consider Pay Estimate No. 2 for City of Otsego Project #02-03
(Waterfront)
Item 7.2: Consider Pay Estimate No. 2 for City of Otsego Project #02-01 (Page
Avenue — 79' Street to 85t' Street)
Item 7.3-. Consider Awarding City of Otsego Project #02-09 (85t' Street Bike Path —
Page Avenue to School Knoll Park Trail)
Item 7.4: Any Other Engineering Business
G:\Municipal�AOTSEGO\Agendas\councilagenda2O.doc
August 20, 2002
Honorable Mayor & City Council
City of Otsego
8899 Nashua Avenue NE
Otsego, MN 55330
Pay Estimate No. 2
City of Otsego
Improvement Project 02-03
Quaday Avenue NE and 91st Street NE
RE: Improvement Project No. 02-03, Quaday Avenue NE and 91st Street NE
Contractor: Arcon Construction
Contract Amount: $1,054,085.50
Award Date:
Completion Date:
Dear Council Members:
The following work has been completed on the above referenced project:
Bid Schedule "A" - Streets
ITEM 7A
Item
Description
Contract
Quantity
Unit
Unit Price
Used To
Date
Extension
1
Mobilization
1
LS
$20,000.00
1
$20,000.00
2
Remove Culvert
94
LF
$6-00
94
$564.00
3
Remove Bituminous Pavement
50
SY
$3.001
0
$0.00
4
Sawinq Bit Pavement (Full Depth)
200
LF
$4.001
0
$0.00
5 _
Salvage & Reinstall Sign
1
EACH
$120.00
0
$0.00
6
Common Excavation (P)
7,070
CY
$3.33
7070
$23,543.10
7
Topsoil Stripping (P)
15,260
CY
$1.15
15260
$17,549.00
8
Class 5 Aggregate Base (7)
3,300
TON
$10.87
4022.5
$43,724.58
9
Mill Bituminous Surface
25
SY
$5.73
0
$0.00
10
Type LV 4 Wearing Course Mixture (C)
1,190
TON
$32.73
0
$0.00
11
Type LV 3 Non -Wearing Course Mixture (B)
1,480
TON
$28.30
0
$0.00
12
Bituminous Material For Tack Coat
550
GAL
$1.00
0
$0.00
13
Adjust Valve Box
34
EACH
$150.00
0
$0.00
14
Adjust Frame & Ring Casting
16
EACH
$300.00
0
$0.00
15
Raise Ex. Manhole (w/ Barrel Sections)
6
VF
$160.00
6
$960.00
16
Raise Ex. Valve Box
1
VF
$150.00
6
$900.00
17
Raise Ex. Hydrant (V Hydrant Extension)
1
EACH
$285.00
3
$855.00
18
Stamped Concrete Sidewalk (4")
1,700
SY
$57.00
0
$0.00
19
Stamped Concrete Sidewalk (6")
150
SY
$62.00
0
$0.00
20
Construct Pedestrian Curb Ramp
6
EACH
$200.00
0
$0.00
21
Concrete Median (6")
470
SY
$28.50
0
$0.00
22
Concrete Curb & Gutter Design B61 8
5,600
LF
$7.00.
4267
$29,869.00
23
6" Concrete Apron / Valley Gutter
250
SY
$29.001
205
$5,945.00
24
Traffic Control
1
LS
$2,500.00
1
$2,500.00
25
Sign Panels, Type C
420
$21.50
0
$0.00
26
Pavement Message (Right Arrow) - Epoxy
24
EACH
$76.001
0 1
$0.00
27
Pavement Message (Left Arrow) - Epoxy
20 1
EACH
$76.001
0 1
$0.00
FILE Share\Municipai/aotsegolot347pe.xls
SHEET. PAY ESTIMATE 2
Pay Estimate No. 2 ITEM 7.1
City of Otsego
Improvement Project 02-03
Quaday Avenue NE and 91st Street NE
Bid Schedule "A" - Streets (Continued)
Item
Contract
Description Quantity
Unit
Unit Price
Used To
Date Extension
28
Pavement Message (Thru Arrow) - Epoxy 20
EACH
$76.001
0 $0.00
29
4" Solid Line White - Epoxy 3,000
LF
$0.36
0 $0.00
30
12" Solid Line White - Epoxy 450
LF
$1.25
0 $0.00
31
24" Stop Line White - Epoxy 185
LF
$2.50
0 $0.00
32
Bale Check - 30
EACH
$5.00
0 $0.00
33_
Silt Fence, Type Machine Sliced 4,500
LF
$1.75
0 $0.00
34
Seeding - Type Lawn Restoration 3
ACRE
$1,500.00
0 $0.00
35
Soddinq - Type Lawn Restoration 2,250
SY
$2.50
0 $0.00
36
Seeding Mixture - 60B - 300
LBS
$2.20,
0 $0.00
37
Commercial Fertilizer, 10-10-10 1,500
LBS
so -25
T
o $0.00
38
Hydraulic Soil Stabilizer Type 5 1
TON
$630.00
0 $0.00
L 39�Hydraulic
Soil Stabilizer Type 6 3
TON
$630.00
0 $0.00
Total Bid Schedule "A"
Bid Schedule "B"- Watermain
$146,409.68
'�em
Description
Contract
Quantity
Unit
Unit Price
Used To
Date
Extension
40
Connect to Existing Watermain
1
LS -
$300.00
2
$600.00
41
16" Ductile Iron Pipe Cl 52
1440
LF
$28.95
1440
$41,688.00
42
12" Ductile Iron Pipe Cl 52
790
LF
$19.55
790
$15,444.50
43
8" Ductile Iron Pipe Cl 52
3425
LF
$17.15
3435
$58,910.25
44
6" Ductile Iron Pipe Cl 52
365
LF
$22.80
365
$8,322.00
45
Ductile Iron Fittings
11,000
LB
$1.65
6901
$11,386.65
46 _
16" Butterfly Valve and Box
4
EACH
$1,425.00
4
$5,700.00
47
12" Butterfly Valve and Box
2
EACH
$800.00
2
$1,600.00
48
8" Gate Valve and Box
18
EACH
$675.00
13
$8,775.00
49
6" Gate Valve and Box
17
EACH
$495.00
6
$2,970.00
50 _
Hydrant
8
EACH
$1,670.00
6
$10,020.00
51
Hydrant Extension
24
LF
5
$1,425.00
52
Salvage and Reinstall 16" P1
1
EACH
$100.00
1
$100.00
2" Insulation
500
SF
$1.40
448
$627.20
t53
54
12" DIP CL 52, Fastite Jt, Installed by Jacking
and Boring of 20" Steel Casing
230
LF
$165.00
245
$40,425.00
Total Bid Schedule "B"
FILE: Share\MunicipaVaotsego/o(347pe.xls
SHEET: PAY ESTIMATE 2
$207,993.60
Pay Estimate No. 2 ITEM 7.1
City of Otsego
Improvement Project 02-03
Quaday Avenue NE and 91st Street NE
Bid Schedule "C" - Storm Sewer
Item
Description
Contract
Quantity
Unit
Unit Price
Used To
Date
Extension
55
15" PVC SDR 26 16-18' Deep
203
LF
$61.2-5
2-03
$12,433.75
56
15" PVC SDR 26 18-20'Deep
690
LF
$61.25
690
$42,262.50
57
12" PVC SDR 26 18-20'Deep
427
LF
$60.50
413
$24,986.50
58
12" PVC SDR 26 20-22'Deep
110
LF
$60.501
110
$6,655.00
59
10" PVC SDR 26 16-18'Deep
20
LF
$55.95
20
$1,119.00
60
10" PVC SDR 26 18-20'Deep
10
LF
$55.95-
50
$2,797.50
61
10" PVC SDR 26 20-22' Deep
416
LF
$62.05
346
$21,469.30
62
10" DIP CL 52, Fastite Jt., 10-12' Deep -
10
LF
$69.10
0
$0.00
63
10" DIP CL 52, Fastite Jt., 12-14'Deep
9
LF
$69.10
-9
$621.90
64
10" DIP CL 52, Fastite Jt., 14-16'Deep
10
LF
$69-10
-10
- $691.00
65
10" DIP CL 52, Fastite Jt., 16-18' Deep
36
LF
$69.10
3-6
- $2,487.60
66
10" DIP CL 52, Fastite Jt., 18-20' Deep -
10
LF
$69.10
10
$691.00
67
10" DIP CL 52, Fastite Jt., 20-22' Deep
60
LF
$69.10
60
$4,146M
68
8" PVC SDR 35 0-8' Deep
10
LF
$15.15
0
$0.00
69
8" PVC SDR 35 8-10' Deep
252
LF
$15.151
232
-T3-,51480
70
8" PVC SDR 35 10-12'Deep
10
LF
$15.15
0
$0.00
71
6" PVC SDR 35 Service Lateral
360
LF
$17.40
360
$6,264.00
72
Standard Sanitary Sewer Manhole 0-8' Deep
11
EA
$1,910-00
11
$21,010.00
73
74
Manhole Overdepth
Outside Drop Connection 0-2'
126
1
VF
EA
$135.00
$960.00
---� -17
1
$15,795.00
$960.00
Extra Depth Outside Drop Connectioin >2'
8
VF
$65.001
8
$520.00
r75
76
-77
Connect to Existing Sanitary Sewer at Manhole
1
EA
$1,180.00
1
$1,180.00
6" PVC Riser Pipe
67
VF
$17.40
57
$991.80
78
15"x 6" PVC Wye
2
EA
$185.00
2
$370.00
79
12"x 6" PVC Wye
3
EA
$125.00
3
$375.00
80
1 0"x 6" PVC Wye
2
EA
$105.00
2
$210.00
81
8"x 6" PVC Wye
1
EA
$65.001
1
$65.00
82
12" Pluq
1
EA
$60.00
1
$60.00
83 _
10" Plug
2
EA
$55.00
-2-
$110.00
84
6" Plug
1 9
EA
$30.00
9
$270.00
85 _
10" DIP CL 52, Fastite Jt., Installed by Jacking
and Boring of 18" Steel Casing
260
LF
$180.00
260
$46,800.00
86
Televise Sanitary Sewer
2533
LF
$0.601
--T--
$0.00
Total Bid Schedule "C"
Bid Schedule "D" - Storm Sewer
$218,856.65
Item
Description
Contract
Quantity
Unit
Unit Price
Used To
Date
Extension
87
_ 42" RC Pipe Apron
1
EACH
$1,085.00
1
$1,085.00
88
_ 36" RC Pipe Apron
1
EACH
$900.00
1
$900.00
89
45" x 73" RC Arch Pipe Apron w/ Dropwall
1
EACH
$1,545.00,
1
$1,545.00
90
_ 15" RC Pipe Sewer Design
3006 CIL V (all depths)
80
LF
$29.80
79
$2,354.20
91
18" RC Pipe Sewer Design
3006 CL III (all depths)
48
LF
$31.50
$1,512.00
92
21 " RC Pipe Sewer Design
3006 CL III (all depths)
61
LF
$32.50
---48
61
$1,982.50
93
_ 27" RC Pipe Sewer Design
3006 CIL III (all depths)
160
LF
$37.45
160
$5,992.00
94
_ 30" RC Pipe Sewer Design
3006 CL III (all depths)
64
LF
$44.50
65
$2,892.50
95
_ 33" RC Pipe Sewer Design
3006 CL III (all depths)
275
LF
$46.751
275
$12,856.25
96
36" RC Pipe Sewer Design
3006 CL III (all depths)
59
LF
$55.60
59
$3,280.40
97
142" RC Pipe Sewer Design
3006 CIL III (all depths)
864
LIF
$31.051
820
$25,461.00
FILE: Share\Municipai/aotsego/ot347pe.xis
SHEET: PAY ESTIMATE 2
Pay Estimate No. 2
City of Otsego
Improvement Project 02-03
Quaday Avenue NE and 91st Street NE
Iid Schedule "D" - Storm Spwpr ff-nntini is-ril
ITEM 7.1
Total Bid Schedule "D" $199,364.50
Summary Of Work Completed To Date:
ld Schedule "A" - STREETS
$146,409.68
Contract
Bid Schedule "C" - SANITARY SEWER
Used To
Item
Description
Quantity
Unit
Unit Price
Date
Extension
98_
48" RC Pipe Sewer Design 3006 CL III (all depths)
105
LF
2-5
1-05
$7,796.25
99
45" x 73" RC Arch Pipe Sewer CL III (all depths)
651
LF
_$T4
$129.15
651
$84,076.65
100
15" Pipe Plug
4
EACH
$60.00
4
$240.00
101_
18" Pipe Plug
2
EACH
$65.00
2
$130.00
102
42" Pipe Plug
2
EACH
$140.00
2
$280.00
103
45" x 73" RCPA 45" Bend
2
EACH
$2,180.00
2
$4,360.00
104
45" x 73" RCPA 350 Bend
1
EACH
$2,180.00,
1
$2,180.00
105
Connect to Existing Storm Sewer
i
EACH
$480.00
1
$480.00
106
Construct Draingage Structure Design 48" 4020
3
EACH
$1,225.00
3
$3,675.00
107
Construct Draingage Structure Design 66" 4020
__2
EAC H
$1,985.00
2
_�_3_,97000
108
do'nstruct Draingage Structure Design 72" 4020
1
EACH
$2,315.00
_1
$23-15.00
109
Construct Draingage Structure Design 78" 4020
2
EACH
$3,130.00
_2
$6,260.00
110
Construct Draingage Structure Design 84" 4-020
1
EACH
$3,965.001
—1—
$3,965.00
111
Construct Draingage Structure Design 90" 4020
0
EACH
$0.00
000
0
$0.00
112
Construct Draingage Structure Design 96" 4020
1
EACH 1!$4,040.00
t
_1
$4,040.00
1
Construct Draingage Structure Design 120" 4020
1
EACH
7 065 00
$ 'g
—1
$7,065.00 —
114
Random RipRap Class 111
100
CY
$55.00
106.65
$5,865.75 —
11 5
Random RipRap Class IV
40
CY
$55.00
___1 ---T--$2,805.00
5__
Total Bid Schedule "D" $199,364.50
Summary Of Work Completed To Date:
ld Schedule "A" - STREETS
$146,409.68
-id Schedule "B" - WATERMAIN
Bid Schedule "C" - SANITARY SEWER
$207,993.60
$218,856.65
Bid Schedule"D" STORM SEWER
$199,364.50
WORK COMPLETED TO DATE: $772,624.43
LESS 10% RETAINAGE: — $77,262.44
LESS PAY ESTIMATE NO. I — $590,858.64
WE RECOMMEND PARTIAL PAYMENT OF: $104,503.34
APPROVALS:
CONTRACTOR: Arcon Construction
Certification by Contractor: I certify that all items and amounts are correct for the work completed to date.
Signed:
Title:
Date:
ENGINEER: Certification by Engineer: We recommend payment for work and quantities as shown.
HAKANSON ANDERSON ASSOCIATES, INC.
Signed:
Title:
OWNECITY OF OTSEGO
Signed:
Date:
Title: Date:
FILE: Share\Municipal/aotsegoiot347pe.xis
SHEET: PAY ESTIMATE 2 4
Pay Estimate No. 2
City of Otsego
August 21, 2002 MSAP 217-103-02 Page Avenue
Honorable Mayor & City Council
City of Otsego
3899 Nashua Avenue NE
Otsego, MN 55330
RE: MSAP 217-103-02, Page Avenue NE
Contractor: Hardrives, Inc.
Contract Amount:
Award Date:
Completion Date:
Dear Council Members:
The following work has been completed on the above referenced project:
Bid Schedule "A" - Streets
ITEM 7.2
Item
Description
Contract
Quantity
Unit
Unit Price
Used To
Date
Extension
1
Mobilization
1
LS
$5,500.00
1
$5,500.00
2
Clearing and Grubbing
1
LS
$5,400.00
1.12
$6,048.00
3
Pavement Marking Removal (4" Solid)
1360
LF
$0.38
$0.00
4
Remove Sewer Pipe (Storm - 18" RCP)
90
LF
$5.40
105
$567.00
5
Remove Pipe Drain (8" PVC)
40
LF
$5.40
40
$216.00
6
Remove Concrete Curb & Gutter
170
LF
$3.45
200
$690.00
7
Remove Bituminous Pavement
1665
SY
$1.30
1652
$2,147.60
8
Remove Catch Basin
1
EACH
$105.00
1
$105.00
9
Sawing Bit Pavement (Full Depth)
246
LF
$215
351
$965.25
10
Salvage Metal Culverts (15" CMP)
48
LF
$5.40
122
$658.80
11
Salvage Retaining Wall
50
SF
$8.00
1
$8.00
12
Salvage & Reinstall Sign
2
EACH
$130.00
1
$130.00
13
Common Excavation (P)
5175
CY
$3.70
6502
$24,057.40
14
Common Borrow - LV
1620
CY
$8.10
1998
$16,183.80
15
Class 5 Aggregate Base (6")
7911
TON
$7.50
7052
$52,890.00
16
Mill Bituminous Surface
25
SY
$11.50
$0.00
17
Type LV 4 Wearing Course Mixture (B)
2685
TON
$29.35
457.25
$13,420.29
18
Type LV 3 Non -Wearing Course Mixture (B)
2655
TON
$26.90
2572.17
$69,191.37
19
Bituminous Material For Tack Coat
995
GAL
$1.00
80
$80.00
20
Reconstruct Retaining Wall
50
SF
$15.00
50
$750.00
21_
Adjust Gate Valve
6
EACH
$160.00
$0.00
22
AdJust Frame & Ring Casting --3
EACH
$180.00
$0.00
23
Concrete Curb & Gutter Design B618
- 7070
LF
$7.65
6894
$52,739.10
24
6" Concrete Valley Gutter
86.3
SY
$31.35
86.3
$2,705.51
25
6" Concrete Apron
81
SF
$3.75
69
$258.75
26
Relocat Mailbox Support
1
EACH
$70.00
2
$140.00
27
Traffic Control
1
LS
$4,300.00
1
$4,300.00
FILE: Share\Municipal/aramsey/ot344PE.xls
SHEET. PAY ESTIMATE 2
Pay Estimate No. 2
City of Otsego
IVISAP 217-103-02 Page Avenue
Bid Schedule "A" - Streets (Continued)
ITEM 7.2
Item
Description
Contract
Quantity
Unit
Unit Price
Used To
Date
Extension
28
Sign Panels, Type C
110.25
SF
$21.00
95.25
$2,000.25
29
Pavement Message (Left Arrow) - Epoxy
1
EACH
$162.00
2
$0.00
30
Pavement Message (Right Arrow) - Epoxy
2
EACH
$162.00
1
$0.00
31
Pavement Message (Left-Thru Arrow) - Epoxy
1
EACH
$324.00
314
$0.00
32
Pavement Message (Right-Thru Arrow) - Epoxy
1
EACH
$324.00
734
$0.00
33
4" Double Solid Line Yellow - Paint
4715
LF
$0.06
3305.5
$198.33
34
12" Solid Line White - Paint -
150
LF
$0.06
52
$3.12
35
4" Double S lid Line Yellow - Epoxy
4715
LF
$0.32
1
$0.00
36
4" Solid Line White - Epoxy
7300
LF
$0.27
0
$0.00
37
12" Solid Line White - Epoxy
170
LF
$4.30
1
$0.00
38
8" Solid Line Yellow - Epoxy
375
LF
$1.08
3
$0.00
39
24" Stop Line White - Epoxy
76
LF
$6.45
11
$0.00
40
Bale Check
24
EACH
$6.65
17
$113.05
41
Silt Fence, Type Machine Sliced
1100
LF --
$1.95
1137
$2,217.15
42
Seeding - Type Lawn Restoration (Hydroseeding)
3.1
ACRE
$1,075.00
$0.00
43
Sodding - Type Lawn Restoration
150
SY
$4.30
$0.00
44
Seeding Mixture - 60B
310
LBS
$3.25
$0.00
45
Commercial Fertilizer, 20-10-10
1550
LBS
$0.38
$0.00
46,
Hydraulic Soil Stabilizer Type 6
3.9
TON .
$1,240.00
$0.00
Total Bid Schedule "A"
Bid Schedule "B" - Storm Sewer
$258,283.77
Item
Description
--C-ontract
Quantity
Unit
Unit Price
Used -To
Date
Extension
1
15" RC Pipe Apron
1
EACH
$430.00
1
$430.00
2
21 " RIC Pipe Apron
2
EACH
$605.00
2
$1,210.00
3
24" RC -Pipe Apron
1
EACH
$685.00
1
$685.00
4
15" RC Pipe Sewer Design 3006 CL V (all depths)
310
LF
$22.701
314
$7,127.80
5.18"
RIC Pipe Sewer Design 3006 CL III (all depths)
760
LF
$24.35
734
$17,872.90
6.
21" RC Pipe Sewer Design 3006 CL III (all depths)
501
LF
$27.05
461
$12,470.05
7
24" RC Pipe Sewer Design 3006 CIL III (all depths)
33
LF
$29.20
30
$876.00
8
21" Pipe Plug
1
EACH
$95.00
1
$95.00
9
Connect to Existing Storm Sewer
1
EACH
$324.00
0
$0.00
10
Install Salvage 15" CMP
48
LF
$8.65
1
$8.65
11
Construct Drainage Structure 2' x 3'
3
EACH
$1,155.00
3
$3,465.00
12
Construct Draingage Structure Design 48" 4020
10
EACH
$1,535.00
11
$16,885.00
13
Construct Draingage Structure Design 54" 4020
1
EACH
$1,865.00
1
$1,865.00
14
Random RipRap Class 111
30
CY
$75.00
30
$2,250.00
-ital Bid Schedule "B"
FILE: Share\Municipallaramsey/ot344PE.xis
SHEET: PAY ESTIMATE 2
$65,240.40
Pay Estimate No. 2 ITEM 7.2
City of Otsego
MSAP 217-103-02 Page Avenue
Summary Of Work Completed To Date:
Bid Schedule "A" - STREETS $258,283.77
Bid Schedule "B" - STORM SEWER $65,240.40
WORK COMPLETED TO DATE: $323,524.17
LESS 10% RETAINAGE: $32,3 52.42.
LESS PAY ESTIMATE NO. 1 $199,571.47
WE RECOMMEND PARTIAL PAYMENT OF: $91,600.28
APPROVALS:
CONTRACTOR: Hardrives, Inc.
Certification by Contractor: I certify that all items and amounts are correct for the work completed to date.
Signed:
Title:
Date:
ENGINEER: Certification by Engineer: We recommend payment for work and quantities as shown.
HAKANSON ANDERSON ASSOCIATES, INC.
Signed:
Title:
OWNECITY OF OTSEGO
Signed:
Title:
Date:
Date:
FILE: Share\Municipal/aramsey/ot344PE.xls
SHEET: PAY ESTIMATE 2 3
Aug -21-02 02:28P
QUOTE PROPOSAL
C�ty of Otsego
Improvement Project No. 02-08
85th Street NE Bike Path
Bid Schedule "A" - Streets
Item
.No.
S2ec. Ref,
Description
1
2104,501
Remove Concrete Curb & Gutter
2
42105.501
Common Excavation (P)
3
2211.501
Class 5_t2REe
_ ISZL2 Aaar gate Base
4
2350,501
TZDe LV 4 Wearin2 Course Mixture (B)
14 160, 00
2531.501
Concrete Curb & Gutter Desi-- 861s
7
2564.531
2564.603
"J�
S�n Panels, Type C
12" Solid Line White - Epox
4 2575.501
F2�
e
Seedi�n2 - Type Lawn Restoration (Hydroseedin
50 2
�_2575.502
'-'J""'u4
5
; 7 5.5; 3 2
SLeedin M'
�d ixturd - 606
Co
Commercial Fertilizer, 20-10-10
1 �-57-5 —6c)—q-LH--Y—drauiicso,,
Stabilizer Type 6
P-02
417?e
Estimated
Number of
Units
Unit
Unit Cost
Ext nsion
64
LF
-5qo-
-A 2. 0, Co
75�
CY
-76
7--6-
17 4 60, 2c-
380
TON
qo
14 160, 00
215
TON
-50,00
10, '750, 00
64
L F
2-2,001
Hoo'co
18.75
S F
2,60
140
LF
10-00
0.5
75
ACRE
LBS
5 Z27.20
250
LBS
0.63
TON
QUOTE PROPOSAL
City of Otsego
Improvement Project No. 02-08
85th Street NE Bike Path
Bid Schedule "A" - Streets
Item
No.
Spec. Ref.
Description
Estimated
Number of
Units
Unit
Unit Cost
Extension
1
1 2104.501
Remove Concrete Curb & Gutter
64
LF
0, SO
G -7
2
2105.501
Common Excavation (P)
759
Cy
. '.
W�
3
2211.501
Class 5 Aggregate Base
380
TON
-3V
S-.4 C3
4
2350.501
Type LV 4 Wearing Course Mixture (B)
215
TON
z
5
2531.501
Concrete Curb & Gutter Design B618
64
LF
1 -7, K51
+ .4 0
6
2564.531
Sign Panels, Type C
18.75
SF
-24,oal
G3 7 -To
7
2564.603
12" Solid Line White - Epoxy
140
LF
I, C-5- 1
4 Ca 1, Q-�.
8
2575.501
Seeding - Type Lawn Restoration (Hydroseeding)
0.5
ACRE
J-4-Wa-zN1
j 4- -7�S,oq;
9 1
2575.502 iSeeding
Mixture - 60B
75
LBS
'76
a -7 7,,,m
10
2575.532
ornmercial Fertilizer, 20-10-10
250
LB
qz,-�
ls;z:l
11 1
2575.609
Hydraulic Soil Stabilizer Type 6
0.63
TON
W9o,-,"
e 7..3
Total - Schedule "A';2.) 0 -Z F-1, �0 -V
SUMMARY OF QUOTE:
Schedule "A" - Bike Path
TOTAL QUOTE
shared docs/municipaUaotsegol
:?a-) OLE-�L, lz<T
-2 -2� , X W.X ,Q� �S-
CITY OF OTSEGO
REQUEST FOR COUNCEL ACTION
August 22, 2002
ITEM NUMBER: ITEM DESCRIPTION: PREPARED BY:
8.1. Aslagson Septic System Public Hearing City Administrator
8.1. Aslagson Septic System. Andy MacArthur will have an order drawn up for the Council
meeting if Council wishes to take action. Jerry Olson or myself will make the presentation. Mr.
Aslagson has told me he will be at the hearing and that his only request is that this work should be
assessed across four years rather than one year.
STAFF RECOMMENDATION
Order the work done immediately. The length of assessment will not have any effect on City
finances.
CITY OF OTSEGO
COUNTY OF WRIGHT
STATE OF MINNESOTA
RESOLUTIONNO. 2002-35
RESOLUTION ADOPTING NOTICE OF ABATEMENT
WHEREAS, the City Building Inspector has identified the following City
ordinance violations, Nuisance Ordinance Section 6-2-2 subd. C&F; Individual
Sewage and Wastewater Treatment Ordinance Section 8.40 on that property
located at 15972 62 d St. NE, Elk River, Minnesota and owned and/or occupied by
Gary and Venessa Aslagson; and
WHEREAS, notice of said violations were served upon the property owner and/or
occupant on or about August 29, 2001, said notice setting forth the violations and
providing a reasonable time period in which to come into compliance; and
WHEREAS, the owners and/or occupants have failed to remedy the violations;
and
WHEREAS, the Office of the City Attorney on August 16, 2002 notified the
owners and/or occupants of the City of Otsego's intent to consider abatement of
the violations on the property, as set forth above, and of their right to appear in
front of the City Council and present any testimony or evidence relative to this
matter; and
WHEREAS, the City did hold a hearing on August 26, 2002 at the Otsego City
Hall at which time the owners and/or occupants had an opportunity to appear and
be heard; and
WHEREAS, the City Council has reviewed the evidence and materials presented
and finds that the ordinance violations constitute public health and safety hazards,
as defined by the City's nuisance ordinance and Individual Sewage and
Wastewater Treatment Ordinance.
THEREFORE, the City Council of the City of Otsego makes the following
Findings and Order:
1. That the owners and/or occupants of the property identified above have
created and are maintaining a public nuisance upon their property creating a
hazard to public health and safety and as defined by the City's nuisance ordinance
and Individual Sewage and Wastewater Treatment Ordinance.
2. That the owners and/or occupants are hereby given _ days from the date
of service of this Notice of Abatement to abate those nuisances upon their property
of which they were notified and provided opportunity to be heard.
3. That in the event that they fail to fully comply with this order the City
Council directs the Building Inspector, City Administrator, Code Enforcement
Attorney and City Attorney to proceed to cause abatement of the nuisances by the
City, including procurement of contractors, storage, and any necessary Court
orders to effectuate this Order.
4. That in the event that City action to abate the nuisances is necessary all City
incurred costs, including legal and administrative fees, shall be billed to the owner
and/or occupant of the property, and if not timely paid after billing said costs shall
be certified to the County Auditor as an assessment against the described property.
5. The documents, reports, letters, pictures and other data supplied to the City
Council are herein incorporated by reference.
ADOPTEDthis 26t dayof Augu,;i-
IN FAVOR: Mayor Larry Fournier; Councilmembers: Vern Heidner,
Jerry Struthers, Suzanne Ackerman and Jerry Struthers
OPPOSED: None
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TO:OTSEGO NU. 024 P. 1/5—
NUMORANDUM
To: Mike Robertson, Administrator
From: Ronald 1. Wagner, P.E.
Date: August 26, 2002
I�e: SOUthbound Quaday Avenue Access to 6AH 39
Cc: Jim Johnson, PE
130b Fields, Landcor
Wayne Fingalson, PE
A meeting was held today to discuss th�, type Of access from southbound Quaday Avenue
Onto CSAH 39. 1!
Currently, the design meets the Co PU ;I ve Agreement between the CitY and the County,
The developer, Landcor, has 0 41'0�
stated seveW real estate deals have fallen through
specifically because of the restricted ac��.ss and has requested the Cooperative
Agreement be amended. Landcor �requ that the SOUthbOUnd access from Quaday
Avenue be open to full right out 0 y I
ght out 0 )u I the "trigger" for M closure being the stacking
Of northbound QuadaY Avenue cars sou of the north Right Of WaYlinL' Of CSAH 39.
Added to the proposed amendment W _ I ,
astfipulations which require the title of properties
south Of 9 1 "t St to have acknowledg I.
Of the potential of AM clostre Of southbound
Quaday Avenue access to CSAH 39 wh "
7 as the fmt stipulation is met and that no partW
closure or driveway into the proposed station/convinence store,, lot is allowed, only
full closure,
I have attached my 8/15/2002 memo to E
�Ow MY position On the south bound suggested
Opening. I do have concern on the futur economics of the closure (who pays for the
closure — probably the city) and political pnd/or legal battles when closure does occur
have tried tO address this with the stip 'on regarding disclosure
during sale of lots south of 91st St). I of closure on the title
a;Issee the possibility of more U-turns from CSAH
39 west to CSAH 39 eastwith flffl so th,, "Ound Quaday Avenue access.
My co eaga . James Johnson, iz ! , ed a letter to myself which I am attaching.
The le , tte ints Out the possible probic "s c f the full access southbound Quaday Avenue
right out and the positive points of�' 0
a . I th,e restricted right out as is designed and allowed
by the ooper 've Agreement.
��401\Sjllr*d DoclULM'G'PA'\AD'SrsGO�901\2002\ct9Olmr6ot347.d
CITY OF OTSEGO
REQUEST FOR COUNCIEL ACTION
August 22, 2002
ITEM NUMBER: ITEM DESCRIPTION: PREPARED BY:
8.2. Cable Ordinance City Administrator
8.2. The Council packet includes an ordinance (8.2) giving the Council the ability to grant a cable
franchise, an analysis of the issues by attorney Bob Vose (8.3), and an ordinance awarding a cable
franchise (8.4). As Bob Vose notes in his memo, the City can award a franchise to both
applicants. If franchises are awarded to both applicants, the City would adopt an ordinance for
each franchise awarded.
The public hearing has already been held and closed for both Charter and WH Link. Andy
recommends that they be given a chance to speak but we should ask them to direct their remarks
to the proposed ordinance, which they have both received and had a chance to review. The
Council should also feel free to ask questions of both applicants. The Council can make a
decision to award franchises at the Council meeting, or it can consider the information received
and the comments heard at the meeting and make a decision in the future.
ITEM 8.2.
CITY OF OTSEGO, MINNESOTA
ORDINANCE NO.
SECTION 1. INTENT
Section 1.1 Findings.
The City finds that multiple providers may be interested in providing Cable Service in
the City. The City is authorized to grant one or more nonexclusive Franchises to
provide Cable Service in
the City.
Section 1.2 Intent.
The City's intent in adopting this Cable Ordinance is to further the public interest in the
delivery of Cable Service and ensure that all providers of Cable Service are subject to
comparable burdens consistent with applicable law. This Cable Ordinance may
encourage further development of, and competitive choices for, Cable Service and
related communications services in the City. Such a development could contribute
significantly to the communication needs and desires of residents of the City, benefit
local economic development, and improve public and municipal services.
SECTION 2. SHORT TITLE
This Ordinance will be known and cited as the "Cable Ordinance."
SECTION 3. DEFINITIONS
For the purposes of this Cable Ordinance, the following terms, phrases, words, and their
derivations must have the meaning given herein. Terms, phrases and words contained in
this Cable Ordinance that are not defined herein or in a Franchise will have their normal
and customary meaning. When not inconsistent with the context, words in the singular
number include the plural number. The words "must" and "will" are always mandatory
and not merely directory. The word "may" is directory and discretionary and not
mandatory.
a "Basic Cablg—Service" means any service tier which includes the lawful
retransmission of local television broadcast signals and any public, educational, and
governmental access programming required by a Franchise.
b "Cable System" means a 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 Subscribers within a community, but such term does not include (1) a facility
that serves only to retransmit the television signals of I or more television broadcast
stations; (2) a facility that serves Subscribers without using any Right -of -Way; (3) a
facility of a common carrier which is subject, in whole or in part, to the provisions of
subchapter II of 47 U. S.C. § 52 1, except that such facility shall be considered a Cable
System to the extent such facility is used in the transmission of video programming
directly to Subscribers, unless the extent of such use is solely to provide interactive on -
demand ser -vices; (4) an Open Video System that complies with 47 U.S.C. § 573; or (5)
any facilities of any electric utility used solely for operating its electric utility system.
d "Cable Service"means (1) the one-way transmission to Subscribers of (i)
video programming, or (ii) 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.
e "Channel" means a portion of the electromagnetic frequency spectrum which
is used in a System and which is capable of delivering a television channel (as television
channel is defined by the FCC by regulation).
f "LW' means the City of Otsego, Minnesota, a municipal corporation, in the
State of Minnesota.
g "Competition 'means the offering of Cable Service to substantially the same
potential customers in the City by two (2) or more providers pursuant to Franchises.
h "DLoR" means the cable that connects the ground block on the Subscriber's
Terminal Device to the nearest feeder cable of the System.
i means the Federal Communications Commission, or its lawful
successor.
j "Franchise', "Cable Franchise'or "Franchise Aareemen " means an
agreement between the City and any provider of Cable Service pursuant to this Cable
Ordinance granting an initial authorization, or renewal thereof, to provide Cable Service
or operate a System in the City.
k "Fe
,e" means a franchise fee, a fee on Gross Revenues in -lieu of a franchise
fee or an assessment imposed by the City on a Grantee solely because of its status as a
recipient of a Franchise. The term "Franchise Fee" does not include: (i) any tax, fee or
assessment of general applicability; (ii) capital costs which are required by the Franchise
related to the provision of public, educational, or governmental access facilities; (iii)
requirements or charges incidental to awarding or enforcing the Franchise, including
payments for bonds, security funds or letters of credit, insurance, inderrinification,
penalties or liquidated damages; (iv) any fee imposed under Title 17 of the United States
Code.
I "Grantee' is any recipient of a Franchise, and its agents and employees,
lawful successors, transferees or assignees.
rn "Gross Revenues' means all revenues received by a Grantee or its affiliates
from the sale or provision of Cable Service in the City. By way of example and not
limitation, Gross Revenues shall include all carriage revenues received by a Grantee or
its affiliates from unaffiliated video programming providers, and any advertising
revenues received by a Grantee or its affiliates in connection with the provision of Cable
Service. Gross Revenues shall not include bad debt, any taxes or fees on services
furnished by Grantee imposed by any municipality, state, or other governmental unit
and collected by Grantee for such governmental unit, revenues received by the Grantee
or its affiliates from the provision of Telecommunications Services in the City, Fees
collected by a Grantee or its affiliates from Subscribers, and any other fees collected by
a Grantee or its affiliates from Subscribers to support PEG Access Facilities.
n "Installation 'means the connection of the System with the Subscriber
Terminal Device.
o "Lockout Devicei'means an optional mechanical or electrical accessory to a
Terminal Device which inhibits the viewing of a certain program, certain Channel or
Channels provided over a System.
P "Normal Bus . ss Hours ' " means those hours during which most businesses
in the City are open to serve customers. Normal Business Hours generally means
between 8:00 a.m. and 5:00 p.m. but must include some evening hours at least one night
per week and/or some weekend hours.
q "Normal Qperating Conditions" means those service conditions which are
within the control of a -Grantee. Those conditions which are not within the control of a
Grantee include, but are not limited to, natural disasters, civil disturbances, power
outages, telephone network outages, and severe or unusual weather conditions. Those
conditions which are ordinarily within the control of a Grantee include, but are not
limited to, special promotions, pay-per-view events, rate increases, regular peak or
seasonal demand periods, and maintenance or upgrade/construction of a Grantee's
facilities.
r "Qpen Video -System" means a facility consisting of a set of 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 subscribers within a community, provided that the FCC has certified such Open
Video System complies with 47 C.F.R. Subpart S.
S "Pay Television" means the delivery of pay -per -channel or pay-per-prograrn
audio-visual signals to Subscribers for a fee or charge, in addition to the charge for
Cable Service.
t "PEG Access Facilities" means public, educational, and governmental
programming channels, or any equipment or facilities for use of such Channels.
u "Leumod' means any natural person, firm, partnership, association,
corporation, company, or other legal entity.
v "Right -of -W 'or "Rights-of-Wa means the area on, below, or above a
public roadway, highway, street, cartway, bicycle lane, and public sidewalk in which the
local government unit has an interest, including other dedicated rights-of-way for travel
purposes and utility easements of local government units. Right -of -Way does not
include the airwaves above a Right -of -Way with regard to wireless or other nonwire
telecommunications or broadcast service.
w "Riaht-of-W Y Ordinance" means an ordinance adopted by the City creating
requirements regarding regulation, management and use of Rights -of -Way, including
registration and permitting requirements.
x "Standard Installation" means any residential installation that can be
completed using a Drop of 150 Teet or less.
y "Subscribe 'means any Person who lawfully receives Cable Service via a
System.
z "System" means a Cable System, an Open Video System or any other
network of antennas, cables, wires, lines, towers, waveguides, or other conductors,
terminal devices, equipment, or facilities located in whole, or in part, in the City and
designed and constructed for the purpose of producing, receiving, transmitting,
amplifying, or distributing Cable Service in the City.
aa "Telecommunications Services" shall have the meaning ascribed in 47
U.S.C. § 153(46), as may be explained or interpreted by final action of the FCC.
ab "Terminal Device" means an electronic device that converts signals to a form
accessible by the Subscriber.
SECTION 4. FRANCHISES
Section 4.1 Generally
a No Person may provide Cable Service in the City, nor operate a System in
the City, unless and until such Person is granted a Franchise. All Franchises must be
granted pursuant to the provisions of this Cable Ordinance.
b Any Franchise granted hereunder will authorize the Grantee to deliver Cable
Service and construct, operate and maintain a System in the Rights -of -Way in the City.
c All Franchises shall be nonexclusive, and City may grant additional
Franchises at any time. To the extent consistent with applicable law, the City will not
grant a Franchise for an area included in an existing Franchise on terms and conditions
more favorable or less burdensome than those in the existing Franchise pertaining to: (1)
the area served; (2) public, educational, or governmental access requirements; or (3)
franchise fees, unless the area in which the additional Franchise is being sought is not
actually being served by any existing Grantee. The City may impose additional, terms
and conditions on any additional Franchises.
d This Cable Ordinance and Franchises granted pursuant hereto are intended to
comply with Minnesota Statutes Chapter 238 and applicable law. Any applicable
requirement established by Minn. Stat. § 238.084 not expressly incorporated in this
Cable Ordinance or a Franchise shall be deemed incorporated by reference in the
Franchise as though fully set forth therein.
e The performance of any Grantee is subject to periodic evaluation by the City
upon reasonable notice to the Grantee.
Section 4.2 Use of Rights -of -Way
a Use of the Rights -of -Way to provide Cable Service and operate a System
must not be inconsistent with the terms and conditions by which such Rights -of -Way
were created or dedicated and is subject to all legal requirements related to the use of
such Rights -of -Way.
b The City may adopt and enforce a Right -of -Way Ordinance and all Grantees
shall be subject to such Right -of -Way Ordinance. To the extent that rights, duties and
obligations regarding the use of Rights -of -Way are specifically addressed in a
Franchise, such Franchise terms shall prevail over any conflicting provisions of a Right -
of -Way Ordinance. The terms of the Cable Ordinance shall be subordinate to any
conflicting provisions of a Right -of -Way Ordinance. A Grantee shall not, through
adoption or amendment of a Right -of -Way Ordinance be subject to additional burdens
or obligations with respect to usage of the Right -of -Way which exceed the burdens on
other users of the Right -of -Way under a Right -of -Way Ordinance.
c The City may construct, maintain, repair or relocate sewers; grade, pave,
maintain, repair, relocate and/or alter any Right -of -Way; construct, repair, maintain or
relocate water mains; or construct, maintain, relocate, or repair any sidewalk or other
public work.
d All System facilities, lines and equipment in the City must be located so as
not to obstruct or interfere with the proper use of Rights -of -Way, alleys and other public
ways and places, and cause minimum interference with the rights of property owners
who abut any of the said Rights -of -Way, alleys and other public ways and places, and
not interfere with existing public utility installations.
e A Grantee must file with the City maps, plats, or other record of the location
and character of all facilities constructed in the City, including underground facilities. A
Grantee must update such maps, plats and permanent records annually if changes have
been made in the System. Consistent with applicable state law, Grantee may identify
such maps, plats or other records as "confidential trade secret," and City shall comply
with all state laws regarding the protection and dissemination of such materials.
f If the City alters, or changes the grade or location of any Right -of -Way, alley
or other public way, a Grantee shall, at its own expense, upon reasonable notice by City,
remove and relocate poles, wires, cables, conduits, manholes and other System fixtures,
and in each instance comply with the standards and specifications of City. If City
reimburses other occupants of the Right -of -Way, the affected Grantee will be likewise
reimbursed.
g A Grantee shall not place poles, conduits, or other System fixtures where the
same will interfere with any gas, electric, telephone, water or other utility fixtures and
all such poles, conduits, or other fixtures placed in any Right -of -Way shall be so placed
as to comply with all lawful requirements of City.
h A Grantee will, on request of any Person holding a moving permit issued by
the City, temporarily raise or lower its wires or fixtures to permit the moving of
buildings with the expense of such temporary removal to be paid by the Person
requesting the same, and the Grantee will be given no less than ten (10) business days
advance notice to arrange for such temporary changes. A Grantee may require payment
in advance.
i A Grantee will be liable for the failure to exercise reasonable care during
construction, operation or maintenance of a System.
Section 4.3 Tree Trimming
A Grantee is authorized to trim any trees upon and overhanging the Rights -of -Way,
alleys, sidewalks, or public easements of City so as to prevent the branches of such trees
from coming in contact with wires and cables of a System. The City may supervise tree
trimming activities and condition the authority to trim trees as it reasonably deems
appropriate.
Section 4.4 Franchise Term.
Franchises will be granted for a term established in the Franchise ApIreement. No
Franchise may be granted for a period exceeding fifteen (15) years Er-orn the date of
acceptance by Grantee.
Section 4.5 Regulation of Cable Service.
a The requirements of this Cable Ordinance define the City's regulatory
authority over Systems and Cable Services subject to applicable laws. All Grantees are
subject to all lawful exercise of the City's police power, ordinance -making authority,
and power of eminent domain.
b The terms of a Franchise Agreement define the contractual rights and
obligations of the City and the Grantee thereunder.
Section 4.6 Initial Franchise Applications.
a Upon request or its own initiative, the City may initiate a cable franchise
application process consistent with Minnesota Statutes Section 238.081 and other
applicable laws. Any Person desiring an initial Franchise must file an application with
the City.
b The City will establish an application fee in an amount to offset the costs of
processing applications and awarding a Franchise. Such application fees will not
constitute a Franchise Fee.
c Upon receipt of an application for a Franchise, City staff will prepare a report
and recommendations to the City Council regarding the application(s).
d A public hearing concerning applications will be held prior to rejection or
acceptance of applications, and award of any Franchises.
Section 4.7 Franchise Renewal.
Franchise renewals will be conducted in accordance with applicable laws. To the extent
consistent with applicable laws, the City will require reimbursement of the City's
expenses incurred in processing the renewal.
SECTION 5. CONSTRUCTION STANDARDS
Section 5.1 Registration, Permits and Construction Codes.
a Within ninety (90) days of acceptance of a Franchise, the Grantee must apply
for the necessary governmental permits, licenses, certificates, and authorizations to
construct, repair, replace, relocate, operate, maintain or reconstruct a System. Grantees
must strictly adhere to all state and local laws and building and zoning codes currently
or hereafter applicable to location, construction, installation, operation or maintenance
of the facilities used to provide Cable Service in the City.
b The City may inspect any construction or installation work performed
pursuant to the provisions of a Franchise. The City may make such tests as it must find
reasonably necessary to ensure compliance with the terms of this Cable Ordinance, the
Franchise, and applicable provisions of local, state and federal law.
Section 5.2 Repair of Rights -of -Way and Property.
a Any Rights -of -Way or other property disturbed or damaged during the
construction, repair, replacement, relocation, operation, maintenance or reconstruction
of a System shall be fully and promptly restored, subject to weather conditions (i.e.,
winter conditions/frozen ground), by the Grantee performing such work, at its expense,
to a condition as good as that prevailing prior to such work.
b If a Grantee fails to promptly perform the restoration required herein, the
City shall have the right, following fifteen (15) business days written notice to Grantee,
to restore Rights -of -Way and other public property to a condition as good as that
prevailing prior to the Grantee's work. The City shall be fully reimbursed by the
Grantee for its actual costs relating to such restoration.
Section 5.3 Undergrounding of Facilities.
a In all areas of the City where utility facilities are required to be placed
underground, or where all other utility lines are underground, all Grantees must
construct and install System facilities underground.
b Amplifier boxes and pedestal mounted terminal boxes may be placed above
ground, but such facilities shall be of such size, design, and location as not to be
unsightly or unsafe, as reasonably approved by the City.
c A Grantee must bury new Drops within a reasonable time period, which must
not exceed fifteen (15) business days, subject to weather conditions. In the event the
ground is frozen, a Grantee will be permitted to delay burial until the ground is suitable
for burial which in no event must be later than June 30th.
Section 5.4 Erection, Removal and Joint Use of Poles.
. a In any area of the City where facilities may be located above ground, a
Grantee must make use of existing poles and other facilities to the extent technically and
economically feasible.
b No poles, above -ground conduits, amplifier boxes, similar structures, or other
wire -holding structures may be erected or installed by the Grantee on public property
without prior approval of the City with regard to location, height, type and other
pertinent aspects.
c All facilities are subject to applicable zoning and other land use regulations.
Section 5.5 Safety Requirements.
a A Grantee must at all times employ ordinary and reasonable care in the
construction, installation and maintenance of System facilities and must use commonly
accepted methods and devices for preventing failures and accidents which are likely to
cause damage, injuries, or nuisances to the public. All System facilities must at all times
be kept and maintained in good condition, order, and repair so that the same must not
menace or endanger the life or property of the City or any Person.
b A Grantee must install and maintain equipment and facilities in accordance
with all applicable federal, state and local laws and regulations, and the requirements of
the National Electric Safety Code and in such manner that they will not interfere with
private radio, police and fire communications or any installations of City or of any
public utility serving City.
SECTION 6. SYSTEM DESIGN AND EXTENSION PROVISIONS
Section 6.1 System Capacity and Channels.
At a minimum, any Franchise granted hereunder shall describe the Grantee's network in
terms of the total System capacity such as the total number of analog and digital video
channels which can be provided, and the minimum number of video channels which will
be offered.
Section 6.2 Cable Service Availability.
a Any Franchise granted hereunder may authorize Cable Service throughout
the City, or a portion thereof.
b Each Franchise will identify a required service area. A Grantee will be
required to offer Cable Service to all dwellings, homes and businesses within its
required service area. Franchises may authorize and require Cable Service throughout
the corporate boundaries of the City, as it exists from time to time, or such smaller area
as the City reasonably and lawfully deems appropriate and is agreeable to the Grantee.
c Any Franchise granted hereunder may establish requirements for the
extension of the System and provision of Cable Service beyond the initially required
service area.
d Cable Service shall not be denied to any group of potential residential cable
Subscribers because of the income of the residents of the area in which such group
resides.
Section 6.3 Non -Standard Installations. Grantees must provide Cable
Service to any Person requesting other than a Standard Installation provided the Cable
Service can meet FCC technical specifications and all payment obligations are met,
except that a Grantee may charge for the incremental increase in material and labor costs
incurred above the cost of making a Standard Installation.
Section 6.4 Technical Standards. Any System offering Cable Service in the
City must comply, at minimum, with the technical standards promulgated by the FCC
relating to Cable Systems pursuant to Title 47, Section 76.601 to 76.617, as may be
amended or modified from time to time.
Section 6.5 System Testing.
a In the event City finds that there are signal or System performance
difficulties which may constitute violations of applicable FCC technical standards, the
Grantee will be notified and afforded fifteen (15) business days to investigate and, if
necessary, correct problems or complaints: If the performance difficulty is not resolved
within fifteen (15) days the City may require the Grantee to demonstrate compliance via
testing or other means selected by the Grantee.
b If a performance difficulty continues after the provision of Section 6.5(a), the
City may test any System or facilities used to provide Cable Service in the City. The
City will seek to arrange its testing so as to minimize hardship or inconvenience to
Grantee and Subscribers. In the event that testing reveals that the source of the technical
difficulty is within the Grantee's reasonable control, the cost of the testing must be
borne by the Grantee. If the testing reveals the difficulties to be caused by factors that
are beyond Grantee's reasonable control, the cost of the testing must be borne by the
city.
Section 6.6 FCC Reports.
Grantees must, upon written request from City, file all required FCC technical reports
with the City.
Section 6.7 Nonvoice Return Capability.
Grantees are required to provide a System with capacity and technical capability to
provide nonvoice return con-ununications.
Section 6.8 Lockout Device.
Grantees shall provide by sale or lease a Lockout Device to any requesting Subscriber.
Section 6.9 Emergency Alert System.
All Grantees must provide an emergency alert system (EAS) that complies with FCC
requirements. Grantees must further ensure that City can insert, or direct the insertion
of, brief audio and video emergency messages simultaneously on all channels. The City
shall indemnify Grantee for City's use of a System for emergency messages unless such
use is consistent with the FCC's EAS requirements.
SECTION 7. CONSUMER PROTECTION AND CUSTOMER SERVICE
STANDARDS
Section 7.1 Enforcement of Customer Service Standards. The City will stay
and not enforce this Section 7 during periods when Competition exists in the City,
except that the City may initiate enforcement of this Section while Competition exists in
the event the City receives, in any thirty (30) day period, at least five (5) written
complaints with respect to each competitor concerning similar customer service issues.
In such case, the City Council may initiate enforcement of this Section by adopting a
Resolution indicating the basis for initiating enforcement.
Section 7.2 Regulation of Cable Service Rates.
a The City may regulate rates for the provision of Cable Service to the extent
allowed under federal or state law(s).
b Grantees must file a list of current Subscriber rates and charges with the City,
which lists will be maintained on file with City and will be available for public
inspection. Grantees must give the City and Subscribers written notice of any change in
a Cable Service rate or charge no less than thirty (30) days prior to the effective date of
the change.
Section 7.3 Sales Procedures.
A Grantee may not exercise deceptive sales procedures when marketing any of its Cable
Services within City. Grantees may conduct marketing consistent with local ordinances
and other applicable laws and regulations.
Section 7.4 Telephone Inquiries and Complaints.
a A Grantee must maintain local, toll-free or collect call telephone access lines
which will be available to its Subscribers 24 hours a day, seven days a week.
b During Normal Business Hours, trained representatives of Grantee must be
available to respond to Subscriber inquiries. Grantees must ensure that: (1) an adequate
number of trained company representatives will be available to respond to customer
telephone inquiries during Normal Business Hours, and; (2) after Normal Business
Hours, the access line will be answered by a trained company representative or a service
or an automated response system such as an answering machine.
c Inquiries received after Normal Business Hours must be responded to by a
trained company representative on the next business day.
Section 7.5 Telephone Answer Time and Busy Signals.
a Under Normal Operating Conditions, telephone answer time by a customer
representative, including wait time, must not exceed thirty (30) seconds when the
connection is made. If the call needs to be transferred, transfer time must not exceed
thirty (30) seconds.
b These standards must be met no less than ninety (90) percent of the time
under Normal Operating Conditions, measured on a quarterly basis. Under Normal
Operating Conditions, the customer must receive a busy signal less than three (3)
percent of the time.
Section 7.6 Installation, Outage and Service Calls.
Under Normal Operating Conditions each of the following standards will be met no less
than ninety five (95) percent of the time measured on a quarterly basis:
a Excluding conditions beyond the reasonable control of a Grantee which
prevent performance, Grantees will begin working on service interruptions promptly,
and in no event later than twenty-four (24) hours after the interruption becomes known,
and Grantees must begin actions to correct other service problems the next business day
after notification of the service problem and resolve such problems as soon as is
reasonably possible;
b The "appointment window" alternatives for Installations, service calls, and
other Installation activities will be either a specific time or, at maximum, a four-hour
time block during Normal Business Hours. Grantees may schedule service calls and
other installation activities outside of Normal Business Hours for the convenience of the
customer;
c A Grantee may not cancel an appointment with a customer after the close of
business on the business day prior to the scheduled appointment;
d If a representative of a Grantee is running late for an appointment with a
customer and will not be able to keep the appointment as scheduled, the customer will
be contacted. The appointment will be rescheduled, as necessary, at a time during
Normal Business Hours which is convenient for the customer.
Section 7.7 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 written
records of all complaints received and the resolution of such complaints, including the
date of such resolution.
b Written complaint records must be on file at the office of a Grantee. Upon
written request by the City, 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 7.8 Subscriber Contracts.
Grantees must provide to the City upon request any standard form Subscriber contract
utilized. If no such written contract exists, Grantee must provide a document completely
and concisely stating the length and terms of the Subscriber contract offered to
customers.
Section 7.9 Video Programming.
All Franchises will identify the initial video channels to be provided by a Grantee. To
the extent required by 47 U. S.C. § 544(b), prior City approval is required for any change
in the broad categories of video programming provided. Individual programming
decisions may be made in the discretion of a Grantee. '
Section 7.10 Billing and Subscriber Communications.
a A Grantee must give the City and Subscribers thirty (30) days advance
written notice of any changes in rates, programming services, or channel alignments.
b Bills must be clear, concise, and understandable. Bills must clearly delineate
all activity during the billing period, including optional charges, rebates, and credits. In
case of a billing dispute, the Grantee must respond to a written complaint from a
Subscriber within 30 days.
Section 7.11 Refunds and Credits.
a If a Grantee's Cable Service is interrupted or discontinued for 24 or more
consecutive hours, its Subscribers must be credited pro rata for such interruption.
Credits must be issued no later than the Subscriber's next billing cycle following the
determination that a credit is warranted.
b In the event a Subscriber establishes or terminates Cable Service and receives
less than a full month's Cable Service, the Grantee must prorate the monthly rate on the
basis of the number of days in the period for which Cable Service was rendered to the
number of days in the billing. Refund checks will be issued promptly, but no later than
the return of the equipment supplied by the Grantee if Cable Service is terminated.
Section 7.12 Local Office/Drop Box.
.4
Grantees must maintain a local office or a local drop box for receiving Subscriber
payments.
Section 7.13 Additional Customer Service Requirements.
The City may adopt additional or modified customer service requirements to address
subscriber concerns or complaints. Such requirements must be consistent with
applicable laws.
SECTION 8. COINMUNITY SERVICES
Section 8.1 PEG Access Facilities.
Franchises will establish obligations to provide PEG Access Facilities to meet the
co=unity's needs and interests.
Section 8.2 Service to Public or Educational Institutions.
Franchises will establish obligations for the provision of free or reduced cost services to
identified public or educational institutions.
SECTION 9. ADMINISTRATION PROVISIONS
Section 9.1 Administration of Franchise.
a The City Administrator will have continuing regulatory supervision over
Systems, Cable Services, and Franchise compliance; provided, however, the City
Council shall have the sole authority to hold hearings and take final enforcement action
as provided in Section 14. 1 c -d or revoke a Franchise as provided in Section 14.2.
b The City Administrator may delegate this regulatory supervision by giving
written notice of such delegation to affected Grantees. Grantees must cooperate with
any such delegatee of the City Administrator.
Section 9.2 Fee.
a A Grantee must pay to the City a Fee in the amount established in the
Franchise Agreement.
b Fee payments are payable quarterly. Fee payments must be made within
sixty (60) days of the end of each calendar quarter.
c Each Fee payment must be accompanied by a report certified by an officer of
the Grantee, in form reasonably acceptable to City, detailing the computation of the
payment. All amounts paid must be subject to audit and recomputation by the City and
acceptance of any payment must not be construed as an accord that the amount paid is in
fact the correct amount.
d A Grantee may designate that portion of a Subscriber's bill attributable to the
Fee as a separate line item on the bill.
Section 9.3 Access to Records.
a The City may, upon reasonable notice and during Normal Business Hours,
and subject to the privacy provisions of 47 U.S.C. § 521 et seq., inspect any records
maintained by a Grantee which relate to its Franchise or System operations, including
specifically Grantee's records relating to Gross Revenues. Grantees must make copies
of documents upon City's reasonable request but may identify and label any such
documents as "confidential trade secret" in accordance with Section 4.2 above.
b Grantees must prepare and furnish to the City such reports with respect to the
operations, affairs, transactions or property, as they relate to this Franchise or Cable
Services as City may reasonably request.
SECTION 10.11NDEMNIFICATION AND INSURANCE
Section 10.1 Indernnification of the City.
a A Grantee must indemnify, defend and hold harmless the City, its officers,
boards, committees, commissions, elected officials, employees and agents (an
"Indemnified Party") from and against any loss or damage to any real or personal
property of any Person, or for any injury to or death of any Person, arising out of or in
connection with the construction, operation, maintenance, repair or removal of, or other
action or event with respect to a System or other facilities used by a Grantee to deliver
Cable Service.
b A Grantee must indemnify, defend, and hold harmless an Indemnified Party
from and against all lawsuits, claims, actions, liability, damages, costs, expenses or
penalties incurred as a result of the award or enforcement of a Franchise.
c A Grantee shall not be required to provide indemnification or defense for any
intentional misconduct, willful neglect or negligence by an Indemnified Party, for any
enforcement action taken by an Indemnified Party against a Grantee, or for any'claim
based solely on the City's operation of PEG Access Facilities, delivery of PEG Access
programming, or EAS messages originated by the City.
d With respect to each claim for indemnification:
I the Indemnified Party must promptly notify the Grantee in writing of
any suit, claim or proceeding which gives rise to such right;
2 the Grantee must afford the Indemnified Party an opportunity to
participate in any compromise, settlement or other resolution or
disposition of any suit, claim or proceeding; and
3 the Indemnified Party must cooperate with reasonable requests of the
Grantee, at Grantee's expense, in its participation in a suit, claim or
proceeding.
e Subject to the limitations in Minnesota Statutes Chapter 466, the City shall
indemnify, defend and hold a Grantee harmless for any damage resulting from any
intentional misconduct, willful neglect or negligence by an Indemnified Party in
utilizing any PEG Access Facilities or PEG Channels, or in connection with work
performed on or adjacent to the System.
Section 10.2 Insurance.
a A Grantee must obtain and maintain in full force and effect, at its sole
expense, a comprehensive general liability insurance policy, in protection of the
Grantee, and the City, its officers, elected officials, boards, commissions, agents and
employees for damages which may arise as a result of operation of the System or
delivery of Cable Service.
b The policies of insurance must be in the sum of not less than One Million
Dollars ($ 1,000,000.00) for personal injury or death of any one Person, and Two Million
Dollars ($2,000,000.00) for personal injury or death of two or more Persons in any one
occurrence, Five Hundred Thousand Dollars (S500,000.00) for property damage to any
one person and Two Million Dollars ($2,000,000-00) for property damage resulting
from any one act or occurrence.
c The insurance policy must be maintained by Grantee in full force and effect
during the entire term of the Franchise. Each certificate of insurance must contain a
statement on its face that the insurer will not cancel the policy or fail to renew the
policy, whether for nonpayment of premium, or otherwise, and whether at the request of
Grantee or for other reasons, except after thirty (30) days advance written notice have
been provided to the City.
SECTION 1l.FRANCHISE TRANSFER OR ABANDONMENT
Section 11.1 Abandonment of Service. A Grantee may not discontinue the
provision of Cable Service without having first given three (3) months written notice to
the City.
Section 11.2 System Removal After Abandonment, Termination or
Forfeiture.
a In the event of termination or forfeiture of the Franchise or abandonment of
the System, the City may require the Grantee to remove all or any portion of its System
from all Rights -of -Way and public property within the City; provided, however, that the
Grantee will not be required to remove its System to the extent it is authorized to
provide Telecommunications Services or non -Cable Services over the System.
b If the Grantee has failed to commence removal of its System, or such part
thereof as was designated by the City, within one hundred twenty (120) days after
written demand for removal is given, or if the Grantee has failed to complete such
removal within twelve (12) months after written demand for removal is given, the City
may apply funds secured by the Franchise toward removal and/or declare all right, title,
and interest in the System to be in the City with all rights of ownership including, but
not limited to, the right to operate the System or transfer the System to another for
operation by it pursuant to the provisions of 47 U.S.C. § 547.
Section 11.3 Sale or Transfer of Franchise.
a No sale or transfer of ownership of a Grantee or "fundamental corporate
change" in a Grantee as defined in Minn. Stat. 238.083, nor sale of transfer of a
Franchise, is permitted without City approval. Any sale or transfer of stock in a Grantee
creating a new controlling interest constitutes a sale or transfer of ownership. A
44controlling interest" includes majority stock ownership or a lesser -amount sufficient to
confer actual workino, control in whatever manner exercised. City approval is not be
0
required where a Grantee grants a security interest in its Franchise or System to secure
an indebtedness.
b A Grantee must file a written request with the City prior to any transaction
described above. The City will approve or deny a transfer request within one hundred
and twenty (120) days of receipt of a written request. The City will not unreasonably
withhold, delay or condition its approval.
c In no event will a transaction be approved under Section 11.3 (a) unless the
transferee becomes a signatory to, and assumes all rights and obligations under, the
Franchise.
d In the event of any proposed transaction described above, the City will have
the right to purchase the System. In the event a Grantee has received a bona fide offer
for purchase of its System, the City shall have the right to purchase for the price which
the proposed assignee or transferee agreed to pay. The City will be deemed to have
waived its right to purchase the System in the following circumstances:
I The City does not notify the Grantee in writing, within 90 days of
notice, that it accepts all material terms and conditions of the purchase
of the System; or
2 The City approves the transaction.
SECTION 12.PROTECTION OF INDIVIDUAL RIGHTS
Section 12.1 Discriminatory Practices Prohibited.
No Grantee may deny Cable Service or otherwise discriminate against citizens or
businesses on the basis of race, color, religion, national origin, sex, age, status as to
public assistance, affectional preference, or disability.
Section 12.2 Subscriber Privacy.
a Grantees must comply with the subscriber privacy -related requirements of 47
U.S.C. § 551.
b No signals of a Class IV Channel may be transmitted from a Subscriber
terminal for purposes of monitoring individual viewing patterns or practices without the
express written authorization of the Subscriber.
c No lists of the names and addresses of Subscribers or any lists that identify
the viewing habits of Subscribers may be sold or otherwise made available to any party
other than to Grantee and its employees for internal business use, and also to the
Subscriber subject of that information, without the express written authorization of the
Subscriber.
d Written Subscriber authorization is limited to a period not to exceed one (1)
year. Subscriber authorization may be renewed at the option of the Subscriber. No
penalty may be invoked for a Subscriber's failure to provide or renew such
authorization. The authorization must be revocable at any time by the Subscriber
without penalty of any kind whatsoever.
e Written authorization from a Subscriber is not be required for conducting
System -wide or individually addressed electronic sweeps to verify System integrity or
monitor for billing purposes. This information must be kept confidential subject to the
provision set forth in Subparagraph (b) of this Section.
SECTION 13.UNAUTHORIZED CONNECTIONS AND MODIFICATIONS
Section 13.1 Unauthorized Connections or Modifications Prohibited.
a It is unlawful for any Person, without the express consent of the Grantee, to
make or possess, or assist anybody in making or possessing, any connection, extension,
or division, whether physically, acoustically, inductively, electronically or otherwise,
with or to any segment of a Grantee's System or receive Cable Service from a Grantee's
System without a Grantee's authorization.
b It is unlawful for any Person to willfully interfere, tamper, remove, obstruct,
or damage, or assist thereof, any part or segment of a System for any purpose
whatsoever.
c Any Person found guilty of violating this section may be fined not less than
One Hundred Dollars ($100.00) and the costs of the action nor more than Five Hundred
Dollars ($500.00) and the costs of the action for each and every subsequent offense.
SECTION 14.ENFORCEMENT OF THE CABLE ORDINANCE OR FRANCHISE
Section 14.1 Violations or Other Occurrences Giving Rise to Enforcement
Action.
a In order to take enforcement action pursuant to this Cable Ordinance or a
Franchise, the City must provide the Grantee with written notice of the violation or other
occurrence giving rise to the City's action.
b The Grantee shall have thirty (30) days subsequent to receipt of the notice to
cure the violation or occurrence giving rise to the City's action. Alternatively, the
Grantee may, within fourteen (14) days of receipt of notice from the City, notify City in
writing that there is a dispute as to whether a violation or failure has in fact occurred.
Such written notice by the Grantee to the City shall specify with particularity the matters
disputed by Grantee.
c In the event a Grantee does not timely cure to the City's reasonable
satisfaction the violation or other occurrence giving rise to the City's action, or timely
disputes whether a violation has occurred, the City will schedule a public hearing
affording Grantee due process. The City will endeavor to schedule the hearing for a
date within ninety (90) days of the initial violation notice. Notice of the hearing must be
provided to the Grantee.
d At the completion of the hearing, the City will issue written findings of fact
and its final determination. A Grantee may not initiate legal proceedings until the City's
final determination is issued.
e In the event City determines that no violation has taken place, the City will
rescind the notice of violation in writing.
Section 14.2 Franchise Revocation.
a In addition to all other rights and remedies that the City possesses pursuant to
applicable law, equity and the terms of the Franchise Agreement, the City may revoke or
terminate the Franchise, and all rights and privileges pertaining thereto, in accordance
with the procedures set forth in Section 14.1, if the City determines that:
I The Grantee has violated any material requirement or provision of the
Cable Ordinance or a Franchise and has failed to timely cure; or
2 The Grantee has attempted to evade any of the material provisions of
the Cable Ordinance or a Franchise; or
3 The Grantee has practiced fraud or deceit upon the City; or
4 The Grantee has filed for bankruptcy.
a During any revocation proceeding, including any appeal period, the
Franchise will remain in full force and effect unless the term thereof sooner expires.
Section 14.3 Compliance with Federal, State and Local Laws.
The City and Grantee will conform to state laws and rules regarding Cable Service or
the System not later than one year after they become effective, unless otherwise stated,
and conform to federal laws and regulations regarding Cable Service or the System as
they become effective.
ITEM 8.3.
Robert J.V. Vose 470 Pillsbury Cente,1200 South Sixth Street Minneapolis
X"%'X"3'JPORT TO THE CITY OF OTSEGO
CONCERNING CABLE FRANCHISE
APPLICATIONS
BY:
)8W LINK
AND
CHARTER COMMUNICATIONS
AUGUST 21, 2002
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tto: enne. v-arnus-n
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(612) 337-9275 telephone (612) 337-93
X"%'X"3'JPORT TO THE CITY OF OTSEGO
CONCERNING CABLE FRANCHISE
APPLICATIONS
BY:
)8W LINK
AND
CHARTER COMMUNICATIONS
AUGUST 21, 2002
1. BACKGROUND
This Report is submitted to the City of Otsego ("City") by the City's special legal
counsel, Kennedy & Graven. The City retained Kennedy & Graven to assist in
addressing several cable television related matters. The information in this Report is
based on information contained in City files, the franchise applications, written
comments, correspondence or other information submitted by the applicants,
information provided during discussions with representatives for both applicants, and
certain publicly available information.
Cable service was initially authorized in the community when Otsego Township issued a
"line extension permit" dated May 6, 1985 to Rite Cable Company of Minnesota, Ltd.
Ownership of the local cable system has changed several times since 1985. Charter
Communications Holding Co, LLC ("Charter") currently provides cable service in the
City. Charter serves approximately 1000 customers.
The line extension permit incorporates the terms of the franchise ordinances issued by
the member municipalities in the Sherbume/Wright Counties Cable Commission
(Buffalo, Rockford, Cokato, etc.). The Cable Commission's franchises expire on
December 31, 2002. Charter's predecessor concluded that the City's permit expires at
the same time and requested that the City renew the permit.
WH LINK, LLC ("WH LINK") currently provides facilities -based and resold
telecommunications services in the City. WH LINK has authorization from the
Minnesota Public Utilities Commission ("MPUC") to operate as a competitive local
exchange carrier ("CLEC") in the City and several neighboring communities. Last year,
WH LINK also obtained certification as an open video system ("OVS") operator. At
that time, WH LINK advised the City that it intended to provide cable service over its
CLEC facilities in portions of the City.
In response to these events, the City established a cable franchise application form and
published notice of its intent to consider issuance of cable franchise(s). Both Charter
and WH LINK timely applied for cable franchises and paid $7500 application fees to
offset the City's expenses. The Council held a public hearing on May 13, 2002 to
consider the applications. Although the public hearing was closed on May 13, 2002, the
City left the record open to allow both companies to file written comments concerning
several issues. The Council allowed 45 additional days, through the end of June, for
such comments.
The City's process for considering comments was confirmed in letters dated May 17,
2002, from the City's legal counsel to both companies. The letters requested
information concerning specific issues raised by each company's application. The
letters also invited the companies to comment on each others' franchise application.
WH Link responded by letter dated June 21, 2002. Charter did not respond.
The City's legal counsel also e-mailed a draft regulatory ordinance and franchise to both
companies on May 13, 2002. WH LINK provided several rounds of comments
concerning the documents. Representatives for the City and WH LINK met on two
occasions to discuss these comments. Charter also provided comments concerning the
documents. Ultimately, the City's legal counsel incorporated a number of changes to
address concerns raised by the companies.
EXECUTIVE SUMMARY
For convenience, we have prepared a single report concerning both franchise
applications. This is not a competitive bidding process. The City is prohibited from
granting an exclusive franchise and may grant both franchise applications.
As discussed below, the City recently concluded that Charter is qualified to provide
cable service in the City. There is no reason to reconsider this conclusion in evaluating
Charter's franchise application. The City may also conclude that WH LINK is qualified.
However, the City may consider WH LINK's "character" in evaluating VVH LINK's
franchise application.
In addition, City may require that any successful applicant accept reasonable franchise
terms and conditions, and the City may enact an appropriate regulatory ordinance.
Therefore, the City Council must evaluate each applicants' service proposal. The Ci1y
Council must determine whether the proposals are reasonable and adequate to meet the
communi1y's interests. The applicants have applied for franchises containing different
service requirements and propose delivering cable service to very different segments of
the City.
Charter seeks to continue to serve the entire City to the extent there is a sufficient
density of potential customers in a given area. This is typical in the cable industry.
Conversely, WH LINK will only commit to provide service in five (5) identified
subdivisions and any areas it subsequently provides competitive telephone services over
its own facilities. This type of service obligation is not typical. WH LINK indicates that
the City should accept this service proposal because WH LINK is an OVS operator.
Although we reject WH LINK's legal arguments concerning its OVS status, we
conclude that the City could accept WE LINK's application and grant a franchise.
We have prepared a regulatory ordinance that contains general requirements applicable
to all cable service providers. This approach will accommodate future cable
competition in the City. Notably, the regulatory ordinance provides that the City will
refrain from regulating customer service issues during any period in which there is
competition between two (2) or more cable providers. The market will regulate these
issues.
We have also negotiated individual franchises with each of the applicants. The
franchises generally reflect the service proposals made by the applicants. WH LINK
representatives have indicated that if the company's franchise application is denied, WH
LINK may initiate litigation to protect certain rights it allegedly possesses as an OVS
operator under federal law. Charter representatives have indicated that if WH LINK's
franchise application is granted, Charter may initiate litigation to protect certain rights it
allegedly possesses as an incumbent cable operator under Minnesota law.
If the Ci1y elects to issue only one franchise. the franchise and regulatory ordinance ma
need to be modified t)rior to adoDtion-
111. ANALYSIS
1. Cable Franchising Under Minnesota Law
Cable service in Minnesota is regulated under federal, state and local law. Federal law
requires a cable operator to obtain a franchise to provide cable service. In addition,
unlike many states, Minnesota has a comprehensive state statutory scheme governing
cable systems and service.
Minnesota municipalities must require a franchise "of any cable communications system
providing service within the municipality." A "cable communications system" is
defined as "a system which operates the service of receiving and amplifying programs...
and distributing those programs by wire, cable, microwave or other means, whether the
means are owned or leased, to persons who subscribe to the service." Moreover, the
Minnesota cable franchising regime applies to:
... every cable communications system and every cable communications
company as defined in section 2 3 8.02, operating within the state, including a
cable communications company which constructs, operates and maintains a cable
tions system in whole or . n part through the facilities of a person
franchised to) offer comm -t carrier services.
The Minnesota legislature also enacted a "declaration of legislative findings and intent"
which clarifies the scope of Minnesota Statutes, Chapter 238. The legislature clearly
stated its intent to broadly provide for local franchising of cable service, cable systems
and cable operators. In sum, a "cable communications system" is very broadly defined
under Minnesota law and both VVH LINK and Charter are subject to cable franchising.
The City has broad, inherent authority to decide matters of local importance and protect
local interests. Cable franchising is such a matter of local importance as reflected by the
statutory requirement that cable operators obtain municipal authorization as a condition
of providing cable service. The City is not obligated to issue a single franchise, let alone
multiple franchises. Accordingly, the City may require applicants to accept reasonable
franchise terms and conditions, and may impose appropriate ordinance requirements.
In addition, Minnesota law outlines the municipal cable franchise application process.
The franchise application process requires applicants to submit information detailing
legal, financial, technical and other qualifications. The City may review and consider
the legal financial, technical, and other relevant qualifications of the applicants.
The City's decision whether to grant or deny the franchise applications is quasi-judicial.
The courts may only reverse the City's decision if it is arbitrary and capricious. A
decision supported by substantial evidence will not be arbitrary and capricious. The
meaning of "substantial evidence" in this context is well defined and generally means
"such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Some cable operators have used the franchising process to attempt to slow
or stop competition. However, the record in this proceeding forms a sufficient basis for
the City's decision(s) because the City properly followed the statutory franchising
process and received completed franchise applications.
Finally, any successful franchise applicant must indemnify the City. Further, the City is
not be liable for monetary damages associated with its decisions on the applications.
2. Open Video System Certification
WH LINK is willing to accept a cable franchise but asserts that it is exempt from
traditional service -area requirements based on its status as an OVS operator. Charter did
not formally comment on WH LINK's application. However, Charter previously
responded to WH LINK's OVS application by indicating that it would "legally object" if
the City did not require WH LINK to receive a franchise. No court has considered the
applicability of Minnesota's cable laws to an OVS operator. The City must consider
whether WH LINK's OVS certification exempts the company from any requirements
under state law.
Congress enacted the Telecommunications Act of 1996 (" 1996 Act") to promote
telecommunications and cable competition. The 1996 Act established the OVS
regulatory regime. OVS is an alternative for providing "cable service" without having
to comply with many of the federal requirements governing cable service found in Title
VI of the Communications Act of 1934 ("Cable Act"). Particularly, an OVS operator is
not required to obtain a franchise under the Cable Act.
The FCC adopted rules to implement the OVS regime. The FCC initially concluded that
OVS certification eliminated an OVS operator's obligation to receive a franchise under
state laws. However, in 1999, the Fifth Circuit Court of Appeals held that Congress did
not preempt state and local franchising requirements. The Dallas decision is entirely
consistent with the FCC's own analysis of the limited preemptory effect of the 1996 Act.
On remand from the Dallas decision, the FCC concluded that its rules did not need to be
amended because, although the issue was extensively discussed in prior implementation
orders, the rules did not prohibit franchising under state or local law.
The City, along with the City of Medina and the Northwest Suburbs Cable
Communications Commission (on behalf of Plymouth and Maple Grove), filed
comments with the FCC in response to WH LINK's request for OVS certification. The
City commented on Minnesota's cable franchising laws. The FCC granted WH LINK's
OVS certification, but stated:
The comments received relate to a franchising issue and the assertion that a
franchise is required to provide open video service. With regard to the process
of obtaining local franchising authority, we note that this issue relates to matters
beyond the adequacy and accuracy of LINK's application. Nevertheless, we
note in the Order on Remand of the Fifth Circuit's decision in City ofDallas,
Texas v. FCC, the FCC stated that the Fifth Circuit determined that localities
retain existing franchising authority, but that localities need not exercise this
authority through the imposition of open video system franchises. In addition,
the FCC stated that the decision of whether to impose a franchise on an open
video system operator is committed to the discretion of the locality.
Accordingly, we conclude that the FCC has acknowledged the City's authority to
require WH LINK to obtain a cable franchise pursuant to state or local law. In turn,
Minnesota law mandates that the City issue a franchise to WH LINK.
Notwithstanding, WH LINK argues that Congress preempted and superceded state and
local franchising laws by creating the OVS regime in the 1996 Act. We are aware of
three arguments made by WH LINK concerning this issue:
The federal OVS obligations address each of the issues raised by the
Minnesota "level playing field" statute (discussed below). The 1996 Act
provides that OVS operators: 1) are authorized to provide cable service in
their "telephone service area"; 2) can be required to provide community
programming support, channels and equipment equivalent to that provided
by the local cable operator, and; 3) can be required to pay a fee "in lieu" of a
franchise fee. Because these issues were addressed in the 1996 Act, WH
LINK argues that they are preempted and superceded in Minnesota law.
2 Minnesota law defines "cable communications system" to include phone
networks used to provide video programming; i.e. OVS. The federal Cable
Act defines "cable system" and, by virtue of an amendment made by the
1996 Act, excludes OVS. Because the Cable Act definition is different than
the Minnesota definition, WH LINK argues that the Minnesota definition is
preempted and superceded. Further, because local franchising under
Minnesota law applies to "cable communications systems" and this definition
has been superceded by the Cable Act definition of "cable system," WH
LINK is not subject to franchising under Minnesota law.
3 WE LINK suggests that because it holds MPUC certification as a CLEC, and
has received a valid permit from the City, it should not be required to obtain
a franchise as a condition of using the right-of-way to provide cable service.
We disagree with VVH LINK. WH LINK will operate a telephone network to provide
"cable service." Accordingly, absent preemption of the state franchising requirement,
WH LINK must receive a cable franchise under Minnesota law.
WH LINK's first argument concerning this issue is unpersuasive because Congress has
specifically indicated when provisions in the Cable Act and 1996 Act preempt and
supercede state and local laws. Congress provided for relatively broad preemption in the
Cable Act but very narrow preemption in the 1996 Act. Section 636(c) of the Cable Act
preempts any "inconsistent" state or local laws. However, Section 601(c) of the 1996
Act provides: "[t]his Act and the amendments made by this Act shall not be construed to
modify, impair, or supersede Federal, State, or local law unless expressly so provided in
such Act or amendments."
Although the Minnesota "level playing field" statute arguably contains different
requirements than those imposed by the federal OVS regime, the 1996 Act does not
preempt "inconsistent" or even conflicting state and local laws, nor allows for
preemption by implication or based on apparent Congressional intent. Rather, the 1996
Act only preempts state and local laws where Congress explicitly said so. In the Dallas
decision, the Fifth Circuit concluded that Congress did not expressly state an intention
to preempt state and local franchising laws in creating the OVS regime. Therefore,
different, inconsistent or even contrary state and local cable franchising requirements
are not preempted with respect to OVS.
WH LINK's second argument is somewhat more complicated. The 1996 Act's "express
statement" preemption requirement applies to "the amendments made by this Act."
Section 302(a) of the 1996 Act established the substantive OVS provisions including
Section 653 of Communications Act of 1934. Section 302(b) of the 1996 Act contains
"conforming and technical amendments" that implement the substantive provisions of
Section 302(a). The Cable Act definition of "cable system" was amended by Section
302(b). Therefore, the Cable Act's definition of "cable system" was amended in the
1996 Act and is subject to the "express statement" preemption requirement analyzed in
the Dallas decision.
However, the Dallas decision specifically addressed Section 302(a) of the 1996 Act, not
Section 302(b). To sustain its argument, WH LINK would need to show that while
Congress did not explicitly preempt state and local laws in Section 302(a), Congress did
explicitly preempt such laws in adopting conforming and technical amendments in
Section 302(b). We are unaware of any support for such claim. We conclude that the
analysis in the Dallas decision applies to the amendment of the definition of "cable
system" in the Cable Act. WH LINK is not exempt from Minnesota's franchising
requirement applicable to "cable communications systems" because this definition was
not preempted and superceded.
Finally, WH LINK recently filed comments in an FCC proceeding to consider how cable
modem service should be regulated. WH LINK requested that the FCC:
specifically affirm its tentative conclusion that if the provider is already a
regulated right-of-way user under state law, that provider does not need an
additional franchise to provide a federally authorized service like cable modem
service or OVS.
WH LINK suggests that it need not obtain a cable franchise because it received a
certificate of authority as a CLEC from the MPUC. WH LINK claims that this position
is supported by the FCC's order on remand from the Dallas decision, which states:
Nothing in the [5th Circuit's] decision requires new franchises for entities that
already have the requisite authorization to use public rights-of-way. Thus, for
example, an open video system operator that already has a franchise as a
telephone company would not necessarily require another franchise.
In both the Dallas remand order and the current cable modem proceeding, the FCC was
referring to a situation where the provider had all requisite authority under state law to
use the right-of-way for any lawful purpose. Under current Minnesota law, a cable
franchise is required to operate a cable system even if the MPUC has authorized
construction of a telephone system. Therefore, while WH LINK may have "the requisite
authorization" under Minnesota law to use rights-of-way to construct and operate a
telephone system, it is not authorized to provide video or cable service in the City
without a franchise.
Essentially, WH LINK's last argument is that the FCC should re -write Minnesota law to
exempt companies like WH LINK from franchising. VVH LINK is subject to franchising
under current Minnesota law. This Report is focused on current laws not potential
changes in the law.
3. Legal, Technical, Financial and Other Qualificatiol2s
The City has not previously evaluated WH LINK's legal, technical and financial
qualifications. Because WH LINK is subject to Minnesota's cable franchising
requirements, we evaluate the company's qualifications below.
For several reasons we have not evaluated Charter's legal, technical and financial
qualifications for purposes of this report. First, Charter is*publicly traded (CHRT) and is
the fourth largest cable operator in the US with operations nationwide. Charter was
founded and is controlled by Microsoft co-founder Paul Allen. This suggests that
Charter is well qualified to operate a cable system in the City.
In addition, Charter acquired Bresnan Communications in 1999. Bresnan had been
providing cable service in the City. After reviewing the proposed transaction and
Charter's legal, technical and financial qualifications, the City approved the transaction
and Charter's qualifications. Charter has operated in the City since mid -1999 and the
City has not identified concerns related to Charter's qualifications. Finally, to the extent
Charter has valid franchise renewal rights under the Cable Act, the City's ability to deny
franchise renewal based on Charter's qualifications is limited.
It is, however, worth noting that on August 16, 2002, Charter announced that a federal
grand jury has subpoenaed documents concerning its accounting for labor costs and
number of customers. Moreover, Charter shares are trading at their lowest level since
the company's initial public offering in late 1999. In a deflated market, Charter's shares
have been particularly hard hit due to concerns about its debt load which totaled $17.6
billion in long-term debt as of June 30, 2002. Mr. Allen recently indicated that he is
considering taking Charter private as one of several options to reduce the company's
debt. The City has not had an opportunity to consider the impact of these developments.
a. Legal Qualifications.
WH LINK is validly incorporated as a limited liability company under Minnesota law.
WH LINK has two members: Lakedale Communications, LLC (a local exchange
telephone provider) and Wright Hennepin Electric Cooperative Association (a power
provider). WH LINK has received authorizations from the Minnesota Public Utilities
Commission ("MPUC") and Federal Communications Commission ("FCC") to provide
certain communications services.
WH LINK is legally authorized to conduct business in Minnesota and is legally
qualified to provide cable service in the City.
b.
Financial Qualifications.
State and federal law provide little guidance concerning evaluation of a cable franchise
applicant's financial qualifications. However, the Minnesota Court of Appeals recently
considered a municipality's appropriate role in reviewing the financial qualifications of
a cable franchise applicant, stating:
Although we agree [the applicant's] prospective financial status does not
necessarily guarantee future success, the Cable Act does not require such a
guarantee. Citations omitted. Because the ci1y properly focused on rthe
applicant'sl abili1y to construct and initially operate its proposed system, we
conclude it sufficiently considered substantial evidence of [the applicant's]
financial condition.
In sustaining the city's review, the Court of Appeals noted that the city examined the
applicant's capital resources and financing plans, and required the company to furnish a
substantial performance bond, and a corporate guarantee the performance of its
subsidiary's obligations.
The Court's analysis is consistent with the criteria used by the MPUC in evaluating the
financial worthiness of new telephone companies. The MPUC is solely responsible for
granting authorization to construct and operate local exchange and competitive local
exchange telephone service. The MPUC may only authorize a new telephone provider
in the event the applicant possesses the technical, managerial, and financial resources to
provide the proposed services. The MPUC's criteria for whether an applicant is
financially qualified is the extent to which the applicant's cash reserves and cash
equivalents are adequate to meet the start-up costs and expenses. The long term
likelihood of profitability is not reviewed.
Accordingly, our consideration is focused on WH LINK3s ability to finance
construction and initial operation of its network. WH LINK obtained MPUC
authorization to construct a telephone network in the City and certain neighboring areas
subject only to the City's permitting requirements. WH LINK has constructed
substantial portions of this telephone network. WH LINK indicates that construction of
these facilities was financed primarily through a secured loan from Rural Telephone
Finance Cooperative. In addition, WH LINK indicates that its two members have
equity in excess of $2.7 million.
Further comprehensive analysis of WH LINK's financial qualifications is not
necessary. First, the MPUC already approved WH LINK's financial qualifications
related to construction of a telephone network. The City had no role in determining
whether WH LINK was financially qualified to build and operate this network. In
addition, the City's interest in WH LINK's finances is primarily focused on assuring
that construction in local rights-of-way can be safely and promptly completed. WH
LINK indicates that its video services will be provided over its telephone network. WH
LINK's video network has, therefore, already been substantially constructed under
MPUC authority. There is little additional construction for the City to be concerned
about.
WH LINK will have certain financial and other obligations to the City and may need to
perform additional work in the right-of-way associated with construction of its
network. Therefore, any franchise granted to WH LINK will require a $50,000
construction bond, a $5,000 security fund, adequate insurance and full indemnification.
These instruments protect the City in the event WH LINK fails to perform under the
Franchise due to financial or other reasons.
WH LINK 's long-term financial viability is outside the City's ability to reasonably
evaluate. Given that the MPUC has approved WH LINK's financial qualifications, the
network is substantially constructed, and WH LINK is required to provide the additional
security described above, the City may conclude that WH LINK is financially qualified.
C. Technical Qualifications.
The technical qualifications standard relates to an applicant's experience in constructing,
operating, and maintaining cable communications systems and/or telecommunications
network, and the ability provide video services as proposed. WH LINK's franchise
application details the company's plans for providing automated services, two-way
services, system status monitoring, channel scrambling, two customer service centers
(maintained in relation to its telephone ser -vices), customer service responsiveness and
complaint resolution, and system maintenance and performance testing in accordance
with FCC requirements.
WH LINK has been certificated by the MPUC to provide competitive telephone services
as a CLEC. WH LINK provides local phone, long distance, Internet, voice
conferencing, and data services in portions of 12 or more cities. WH LINK's
management, operations and technical personal will support its video operation. WH
LINK employees and management have extensive experience in the delivery of
telecommunications services and operation of telephone networks. However, WH LINK
is not providing cable services in any communities. The company has no experience in
providing such service.
WE LINK's affiliate, Lakedale Communications, LLC, is a diversified
teleconu-nunications holding company which operates companies including Lakedale
Telephone Company. Lakedale has provided local telephone service in several
communities since 1946. Lakedale Communications is also affiliated with Lakes Cable
Systems, Inc. which provides franchised cable service in four cities. Another affiliate,
North Star TV Systems ("North Star TV"), sells and installs satellite video
dishes/equipment. In cooperation with Pegasus Satellite Television, North Star TV
provides DIRECTV service in Wright, Steams, Meeker, and Kandiyohi counties.
Accordingly, WH LINK's affiliates have some experience in the delivery of video
services.
WH LINK seeks to provide video service over its existing telephone lines using VDSL
technology (Very high speed Digital Subscriber Line). WH LINK, along with thirteen
other independent Minnesota-based telephone companies jointly own Broadband
Visions, LLC (BBV). BBV owns a digital "headend" located in Hutchinson, Minnesota.
One of the participating phone companies, Hutchinson Telephone through its subsidiary
Hutchinson Telecommunications, Inc., serves as the managing entity for this video
headend. W`H LINK will receive video signal transported from Hutchinson via BBV.
BBV will provide video services to WH LINK using technology provided by Next Level
Communications ("NLC"). NLC supplies equipment which permits the integration of
voice, high-speed data and high-quality digital video services over a copper, twisted pair
telephone wire. Information on the company can be found by accessing NLC's
corporate website at: http://www.nlc.com. Several telephone companies in Minnesota
are offering video services using this technology including Hickory Tech (St. Peter),
Sherburne Cable (Becker), HutchTel (Hutchinson), NU -Telecom (New Ulm). Qwest is
also experimenting with NLC technology. The BBV owner companies will deploy
voice, video and data to their customers using the digital head -end.
Reports from communities in which NLC video technology has been rolled out are
mixed. In some cases, significant difficulties such as outages have been reported shortly
after roll-out. However, it is apparent that the technology can be deployed to provide
good quality video service. In addition, the NLC technology is "telephone technology"
not traditional cable television technology. Accordingly, the extensive experience of
WH LINK's employees and management with telephone networks is directly relevant.
WH LINK also represents that it "has enlisted the services of an experienced consultant,
CHR Solutions, to assist WH LINK during the implementation of its services." CHR
Solutions ("CHR"), is a telecommunications management consulting company
providing services including technology and engineering expertise. The firm is
headquartered in Dallas, Texas but has a regional office in Minneapolis. CHR has over
250 professional employees with extensive telecommunications experience in areas
including video services and competitive environments. CHR provides services to a
wide variety of companies including engineering and technology expertise to cable
television operators.
To summarize, WH LINK has extensive experience in the telephone and
telecommunications business and intends to provide cable service over a telephone
network using a telephone technology. Moreover, WH LINK will receive signal from a
video supplier, BBV, which is providing service to several companies. BBC has a
strong incentive to provide a good quality product. WH LINK has also contracted with
a qualified consultant. Finally, WH LINK would provide cable service in competition
with Charter. If WH LINK is unable to provide good quality video service, the market
will provide other choices. We believe that the City may conclude that WH LINK has
adequate technical qualifications even though WH LINK has no experience delivering
cable television service.
d. Other Qualifications
WH LINK is a relatively new provider with limited operational history in the City. To
date, the City's relationship with WH LINK is primarily based on contacts between City
and company representatives related to WH LINK's OVS certification and cable
franchise application, and right-of-way permitting issues. If the City accepts WH
LINK's application and grants a cable franchise, the City and company will enter into a
comprehensive, long-term contractual and regulatory relationship. Therefore, it is
reasonable and appropriate for the City Council to consider the character of the
company and its employees and management.
WH LINK filed an OVS certification application with the FCC in April, 2001. In
response, Charter notified the City that it would legally object if WH LINK was not
required to obtain a franchise under Minnesota law. The City filed comments with the
FCC indicating that WH LINK would be required to obtain a franchise under Minnesota
law.
WH LINK is one of three companies in Minnesota that have obtained OVS certification
from the FCC. In response to V;H LINK's OVS certification, the City's legal counsel
promptly inquired whether WH LINK intended to comply with state and local cable
franchising requirements. WH LINK indicated that OVS certification exempted it from
cable franchising.
Notwithstanding, WH LINK began participating in a franchising process initiated by the
Northwest Suburbs Cable Communications Commission. By letter dated September 4,
2001, V;H LINK advised the City and other affected communities that the Northwest
Commission's franchising process might produce a workable model "Open Video
Services Franchise." During the same time period, WH LINK representatives began a
series of meetings with the City's legal counsel and attorneys for other affected
communities to discuss OVS and cable franchising issues.
Despite these activities, by letter dated December 26, 2001, WH LINK indicated that
"the City has not taken any steps to establish any requirements governing WH LINK as
an OVS operator." WH LINK further advised the City that it intended to begin offering
cable service in the City in January 2002. Implicitly, WH LINK was planning to
provide cable service without a City -issued franchise. WH LINK also withdrew its
franchise application in the Northwest Commission having concluded that it was
unlikely to receive a franchise on acceptable terms.
Subsequently, WH LINK retracted the position taken in the December letter and
indicated that it would file an application if the City of Otsego initiated a cable
franchising process. Since filing the application, WH LINK's representatives have fully
cooperated with the City in processing the application and negotiating the regulatory
ordinance and proposed franchise.
WH LINK began constructing its network in the City prior to filing its franchise
application. WH LINK or its affiliate, Wright -Hennepin Electric, obtained City permits
to install facilities in portions of the City. In some cases, WH LINK and Wright -
Hennepin Electric applied for and obtained single permits for "joint trenching projects."
City staff has since advised both companies that each must obtain its own permits.
WH LINK's franchise application discloses that the company "has already substantially
completed the installation of the network facilities necessary to activate video service in
Otsego." City staff has advised WH LINK that not all of its facilities were installed
under permits that identify OVS, cable television or video facilities. For example, it
appears that some permit applications submitted on behalf of Wright -Hennepin Electric
and/or W`H LINK refer to "installation of fiber and copper communications cable, duct,
pedestals and cabinets for communications distribution use."
WH LINK indicates that it has received City permits authorizing the installation of
video facilities where appropriate, in addition to telephony facilities and Wright-
Hennepin's electric facilities. City staff has directed both WH LINK and Wright -
Hennepin to clearly identify the facilities they are installing in their permit applications.
City staff can provide updated information concerning the permitting process at the
Council's request.
The foregoing information does not disqualify WH LINK ftom receiving a ftanchise.
Of note, WH LINK has not activated video services despite the fact that company
representatives have concluded that it is exempt from franchising under Minnesota law
and the network is currently capable of providing cable service. WH LINK
representatives have agreed to provide notice to the City in the event such service is
activated. However, WH LINK plainly considers the franchising requirements
established by state and local law to be impediments rather than appropriate local
controls. The City Council may consider this when evaluating the franchise application.
e. Conclusion.
For the reasons discussed above, the City may conclude that WH LINK is adequately
qualified to provide cable services in the City. The City has previously concluded that
Charter is adequately qualified.
4. Other -Considerations- Level Playing Field Requirement
Minnesota law requires a "level playing field" between an incumbent cable operator and
a new competitor. The applicable statute provides:
No municipality shall grant an additional franchise for cable service for an area
included in an existing franchise on terms and conditions more favorable or less
burdensome than those in the existing franchise pertaining to: (1) the area
served; (2) public educational, or governmental access requirements; or (3)
franchise fees.
WH LINK and Charter specifically addressed the "level playing field" issues in their
franchise applications.
a. Area Served.
Charter applied for a franchise authorizing service throughout the City but requiring
service only where there are 9 or more homes per quarter mile. Such a requirement is
typical in cable franchises. Cable operators are commonly required to extend their
systems and services based on a density standard (expressed in terms of dwellings,
homes, potential customers, etc). In accordance with the Sherburne/Wright Counties
Cable Commission franchises, Charter currently provides cable service in all areas of
the City where there are 9 or more homes per quarter mile (36 homes per mile).
WH LINK applied for a franchise authorizing the provision of cable service throughout
the entire City. However, WH LINK applied for a franchise that requires service only in
certain specific subdivisions where VY'H LINK currently has CLEC facilities. The
subdivisions are identified in a map attached to WH LINK's application as Exhibit C.
WH LINK would be required to provide cable service wherever it provides facilities -
based telephone service in the City. Similarly, WH LINK would not be authorized to
provide cable service in areas where it has not extended its telephone network; i.e. WH
LINK would not be authorized to provide only cable service in any area of the City.
This "limited area" service requirement is not typical in cable franchises.
The required service area is the primar�� "level playing field" issue raised by the
applicat ons.
b. Public, Educational, and Governmental (PEG) Access
Requirements.
Charter currently does not provide local PEG programming or PEG channels, equipment
or support to the City. To the extent any PEG programming is provided, it originates in
other communities using PEG equipment and support provided to those communities.
Charter proposed the provision of one (1) channel to the City along with such equipment
and support as is required by law.
WE LINK's application indicates that it will meet any requirement for PEG channel
capacity or support imposed on Charter. VvrH LINK notes that federal law requires the
local cable operator to cooperate with an OVS operator in sharing PEG connections,
feeds and programming. WH LINK also proposes providing free cable services and
connections for live cablecasting to those institutions located in areas it serves.
The proposed franchises reflect significant discussion between the City and the
applicants, primarily WH LINK, concerning these issues. The franchises would allow
the City to request two (2) PEG channels and adequate equipment and support to
provide PEG programming. WH LINK and Charter would be required to negotiate
concerning the provision of PEG but the City would retain final decision-making
authority.
C. Franchise Fees.
V;_H LINK will agree to pay a fee in an amount of up to 5% of its gross revenues derived
from cable service. WH LINK notes that federal law permits municipalities to require
OVS operators to pay a fee "in lieu" of a franchise fee.
Charter currently pays a franchise fee of 5% of its gross revenues from cable service.
Although Charter's application does not address the issue, Charter can be required to
continue this payment. Both companies would be required to pay the same fees.
5. The Ci1y Has Flexibilfty In Establishing Service Req.uirements,
The City Council may have concerns about WH LINK's proposal to only to commit to
serve five (5) subdivisions and those areas where WH LINK subsequently extends its
network. WH LINK is unwilling to modify its proposal and would treat issuance of a
franchise requiring service throughout the City as a denial of its franchise application.
WH LINK indicates that it is exempt from the "level playing field" requirement and its
service proposal is appropriate because it is an OVS operator.
Although we conclude that WH LINK is subject to Minnesota franchising laws, we
further conclude that the City has significant flexibility in considering WH LINK's
service proposal. The City needs to specifically consider whether the "level playing
field" requirement applies to WH LINK's proposal. The City also needs to consider the
public interest implications of the proposal.
First, the "level playing field" statute applies to "an additional franchise for cable
service for an area included in an existing franchise." However, Charter currently
operates in the City under a "extension permit" rather than a franchise ordinance.
Minnesota law allows municipalities to authorize the extension of a cable system from a
franchised area (typically a city) into an adjacent area (typically a township) by permit.
It is not clear that Charter's extension permit constitutes "an existing franchise" for
these purposes.
Moreover, the "level playing field" statute requires that the new and existing franchises
have equivalent "terms and conditions ... pertaining to the area served." An extension
permit must indicate that the parties agree to abide by those terms in the neighboring
municipality's franchise concerning several specific issues. Charter's extension permit
references the terms of the franchises issued by the members of the SherburneAVright
Counties Cable Commission and incorporates those terms "which relate only to" the
issues mandated by statute. Charter's line extension permit specifically incorporates
"standards for system installation, maintenance and operation." This provision does not,
however, clearly incorporate the service area/system extension requirement contained in
the Cable Commission's franchises (expressed in terms of the density of homes per
quarter mile). If Charter is not currently subject to the Cable Commission's service
area/system extension requirement, the City is arguably not required to impose an
equivalent obligation on WH LINK.
Even if the "level playing field" requirement does apply to WH LINK's service
proposal, the law requires that a second franchise be no "more favorable or less
burdensome" than the incumbent's franchise. Other states have similar "level playing
field" statutes. Several courts have concluded that incumbent and competitive
franchises need not be identical under these statutes. Cable TVFund 14-A, Ltd. v. City
ofNaperville, 1997 WL 280692, * 12 (N.D.111. 1997); Cable Systems of Southern
Connecticut, Ltd. v. Connecticut Department ofPublic Utility Control, 1996 WL 661818,
*2 (Conn. Super. 1996); Southeast Florida Cable v. Martin County, 173 F.3d 1332, 1334
(11 th Cir. 1999). By its terms, Minnesota's statute requires roughly equivalent, but not
identical, franchise terms. Therefore, the City has discretion in establishing service
requirements for both Charter and VVH LINK.
Finally, the statute applies to "an additional franchise for cable service for an area
included in an existing franchise." This language implies that a municipality may issue
an additional franchise which requires service in an area "included in," but smaller than,
the incumbent's service area.
For these reasons, we believe that the City could accept WH LINK's franchise
application and service area proposal. In such case, the City could issue a franchise to
WH LINK authorizing service as proposed. However, the City must also consider
whether it ought to accept WH LINK's service area proposal. This is not, strictly
speaking, a legal issue but rather requires consideration of the public interest
implications of the proposal.
IV. CONCLUSION
The City's franchise application process complies with state law. Charter and WH LINK
submitted franchise applications with detailed information. The City requested
additional information concerning the applications. The City's decisions should be
supported by substantial evidence.
The City may accept both franchise applications. If both are accepted, the City need not
make the service area requirements or other franchise obligations identical. However,
the City Council must make a policy decision about what franchise commitments are
acceptable and in the public interest. Stated differently, even though the City is legally
permitted to issue franchises to Charter and WH LINK under different terms, the City
must determine whether it should do so.
The applicants propose the provision of service on different terms. Charter proposes
serving areas that are developed with sufficient density. This approach reduces
Charter's per customer system construction cost and is typical in the cable industry.
WH LINK proposes serving certain areas that have recently been developed. WH LINK
proposes providing cable service over its telephone facilities in these new developments.
VVH LINK and affiliated companies were able to economically install their facilities
underground in these areas. Neither company has proposed a service plan based on the
income of residents.
reasonable and appropriate terms. Neither company intends to provide cable service to
every home in the City. However, the City Council may conclude that these proposals
have different public interest implications and make appropriate determinations.
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