Ordinance No. 2005-13 | An Ordinance Granting to CC VIII Operating, LLC Permission to Construct, Operate and Maintain a Cable System
ORDINANCE NO. 2005-13
AN ORDINANCE GRANTING TO CC VIII OPERATING, LLC PERMISSION TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE SYSTEM UPON, ALONG, ACROSS, OVER AND UNDER THE STREETS AND PUBLIC RIGHTS OF WAY OF
THE TOWNSHIP OF BREITUNG
WHEREAS, the Township of Breitung (“Grantor”) desires to make available to its residents a cable system subject to certain terms and conditions the Grantor believes to be necessary and appropriate; and
WHEREAS, CC VIII Operating, LLC l/l/a/ Charter Communications (“Grantee”) desires to continue to construct, install and maintain a cable system within the jurisdictional limits of the Grantor; now, therefore
BE IT ORDAINED by the Chairman and the Council of the Township of Breitung, Minnesota that the following Ordinance is adopted and approved:
- “Basic Service” means those audio and visual signals carried on the service tier of the Cable System which includes local off-air television signals. Basic Service shall not include any other tier or service or any premium or pay-per-view channels or services.
- “Cable Act” means the Cable Communications Policy Act of 1984, P.L. 98-549, 47 U.S. C. 521 Supp., as it may be amended or superseded.
- “Cable Service” shall mean (1) the one-way transmission to Subscribers of (a) video programming, or (b) other programming service, and (2) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
- “Cable System” or “System” means a system of antennas, cables, wires, lines, towers, microwaves, waveguides, laser beams or any other conductors, converts, equipment or facilities designed, constructed, or operated for the purpose of producing, receiving, amplifying, modifying and distributing audio, video, and other forms of communication or electronic signals for the purpose of providing Cable Services to and from residential and business subscribers and locations within the jurisdictional limits of the Grantor.
- “Council” means the governing body of the Grantor.
- “Franchise” means the authorization granted hereunder of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a Cable System within the jurisdictional limits of the Grantor.
- “Grantee” means CC VIII Operating, LLC l/k/a/ Charter Communications, and its permitted successors and assigns.
- “Grantor” means the Township of Breitung.
- “Gross Revenues” means any revenue received by the Grantee from the operation of the Cable System to provide Cable Services within the jurisdictional boundaries of the Grantor, provided, however, that such phrase shall not include any taxes, fee or assessment of general applicability collected by the Grantee from Subscribers for pass-through to a government agency, including the FCC User Fee or unrecovered bad debt.
- “Streets and dedicated easements” means the public streets, avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways, waterways, alleys, all other rights-of –way and easements, and the public ground, places or water within the jurisdictional boundaries of the Grantor.
- “Subscriber” means a purchaser of any Cable Service delivered over the Cable System.
- Granting of Franchise. The Grantor hereby grants to the Grantee a non-exclusive Franchise for the use of the streets and dedicated easements with the Grantor for the construction, operation and maintenance of the Cable System, upon the terms and conditions set forth herein.
- Term. The Franchise shall be for a term of fifteen (15) years, commending on the effective date of this Ordinance, Subsequent renewals shall be pursuant to the renewal provisions of the Cable Act as it shall provide.
- Use of the Streets and Dedicated Easements.
- Grantee shall have the right to use the streets and dedicated easements of the Grantor for the construction, operation and maintenance of the Cable System.
- Grantee, as its own cost, shall have the right pursuant to the provisions of this Ordinance to construct, erect, suspend, install, renew, maintain and otherwise own and operate throughout the streets and dedicated easements of the Grantor, as now laid out or dedicated and all extensions thereof and additions thereto in the Grantor, the Cable System, either separately or in conjunction with any public utility operating within the Grantor. The Franchise shall further include the right, privilege, easement and authority to construct, erect, suspend, install, lay, renew, repair, maintain and operate such poles, wires, cable, underground conduits, manholes, ducts, trenches, fixtures, appliances and appurtenances for the purpose of distribution to inhabitants within the jurisdictional limits of the Grantor. Without limiting the generality of the foregoing, the Franchise shall and does hereby include the right to repair, replace and enlarge and extend the Cable system, provided that the Grantee shall utilize the facilities of the utilities whenever practicable.
- Grantee shall have the right to remove, trim, cut and keep clear of the Cable System, the trees in and along the streets and dedicated easements of the Grantor, provided that in the exercise of such right, the Grantee shall not, cut remove, trim or otherwise injure such trees to any extent than is necessary for the installation, maintenance and use of the Cable System.
- Grantee in the exercise of any right granted to it by the Franchise shall, at no cost to the Grantor, promptly repair or replace any facility or service of the Grantor which Grantee damages, including but not limited to any street or dedicated easement or sewer, electric facility, water main, fire alarm, police communication or traffic control.
- Maintenance of the System.
- Grantee shall at all time, employ ordinary care in the maintenance and operation of the Cable System so as not to endanger the life, health or property of any citizen of the Grantor or the property of the Grantor. The Cable System shall at all times be kept in good repair and in a safe and acceptable condition.
- Grantee shall install and maintain the Cable System so as not to interfere with the equipment of any utility of the Grantor or any other entity lawfully and rightfully using the streets and dedicated easements of the Grantor.
- All Conductors, cables, towers, poles and other components of the Cable System shall be located and constructed by Grantee so as to reasonably minimize interference with access by adjoining property owners to the streets and dedicated easements. No pole or other fixtures of Grantee placed in the streets and dedicated easements shall interfere with the usual travel on such public way.
- Grantee shall provide to its Subscribers broad categories of video programing services.
- Grantee shall extend the Cable System to new developments within the jurisdictional limits of the Grantor, subject to a minimum density requirement of thirty (30) homes per linear mile.
- Grantee shall provide Basic Service and one free outlet to each of the following public facilities located within one hundred twenty-five (125) feet of existing service lines of the Grantee and within the jurisdictional limits of the Grantor; City Hall, Fire Department, Police Department, and public schools. No monthly service fee shall be charged for such outlet. Grantee shall provide Basic Service to new construction thereafter for similar public facilities; provided they are within one hundred twenty five (125) feet of the existing service lines of Grantee.
- From and after the effective date of the Ordinance, Grantee shall maintain in full force and effect at all times for the full term of the Franchise, at the expense of the Grantee, a comprehensive general liability insurance policy, written by a company authorized to do business in the state, protecting against liability for loss or bodily injury and property damage occasioned by the installation, removal, maintenance or operation of the Cable System by Grantee in the following minimum amounts:
One Million Dollars ($1,000,000) for property damage in any on occurrence.
One Million Dollars ($1,000,000) per occurrence and Two Million ($2,000,000) aggregate for general liability insurance.
Worker’s compensation coverage in accordance with the state law.
- The Grantor and its officials and employees shall be named as additional insured’s on said policy. The Grantor shall be notified by the insurance company at least thirty (30) days prior to the expiration or cancellation of such insurance policy or policies.
- Grantee hereby agrees to indemnify and hold the Grantor, including its agents and employees, harmless from any claims or damages resulting from the actions of Grantee in constructing, operating or maintaining the Cable System. Grantor agrees to give the Grantee writing notice of its obligation to indemnify Grantor within ten (10) days of receipt of a claim or action pursuant to this section. Notwithstanding the foregoing, the Grantee shall not be obligated to indemnify Grantor for any damages, liability or claims resulting from the willful misconduct or negligence of Grantor or for the Grantor’s use of the Cable System.
- Pledge, Assignment of Assets. Grantee may not assign the Franchise without first obtaining the expressed written consent of the Grantor Council, which consent shall not be unreasonable withheld, provided, however, that Grantee may mortgage or pledge the Franchise for financing purposes.
- Cancellation and Expiration.
- Unless earlier terminated in accordance with this Ordinance, the Franchise shall expire fifteen (15) years after the effective date of this Ordinance.
- Prior to revocation or termination of the Franchise, the Franchising Authority shall give written notice to the Grantee of its intent to revoke the Franchise on the basis of pattern of noncompliance by the Grantee, including one or more instances of substantial noncompliance with a material provision of the Franchise. The notice shall set forth the exact nature of the noncompliance. The Grantee shall have sixty (60) days from such notice to either object in writing and to state its reasons for such objection and provide any explanation or to cure the alleged noncompliance. If the Franchising Authority has not received a satisfactory response from the Grantee, it may then seek to revoke the Franchise at a public hearing. The Grantee shall be given at least thirty (30) days prior written notice of such public hearing, specifying the time and place of such hearing and stating its intent to revoke the Franchise.
- At the hearing, the Grantor shall give the Grantee an opportunity to state its position on the matter, present evidence and question witness, after which it shall determine whether or not the Franchise shall be revoked. The public hearing shall be on the record and a written transcript shall be made available to the Grantee within ten (10) business days. The Grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the Grantor de novo.
- Upon termination of the Franchise, Grantee agrees to remove the Cable System from the streets and dedicated easements of the Grantor.
- Enforcement of Terms and Conditions. Either the Grantor or Grantee may institutem proceedings in a court of competent jurisdiction to enforce the terms and conditions of this Ordinance.
- Franchise Requirements for Other Franchise Holders. In the event that Grantor grants one (1) or more Franchise(s) or similar authorizations(s), for the construction, operation and maintenance of any communication facility which shall offer services substantially equivalent to services offered by the Franchisee, it shall not make the grant on more favorable or less burdensome terms. If Franchisee finds that the agreement(s) granting said other Franchise(s) contain provisions imposing lesser obligations on the Company(s) thereof than are imposed by the provisions of the Franchise, Grantee may petition Grantor for a modification of the Franchise. The Grantee shall be entitled, with respect to said lesser obligations to such modifications(s) of this Franchise as may be determined to be necessary to insure fair and equal treatment by this Franchise and said other agreements.
In the event that a non-Franchise multichannel video programming distributor provides service to the residents of the Grantor, the Grantee shall have a right to request Franchise amendments that relieve the Grantee of regulatory burdens that create a competitive disadvantage to the Grantee. In requesting amendments, the Grantee shall file a petition seeking to amend the Franchise. Such petitions shall:
- Indicate the presence of non-Franchised competitor(s);
- Identify the basis for Grantee’s belief that certain provisions of the Franchise place Grantee at a competitive disadvantage;
- Identify the regulatory burdens to remanded or repealed in order to eliminate the competitive disadvantage;
- Notices, Miscellaneous.
- Every notice served upon the Grantor shall be delivered or sent by certified mail, return receipt requested, to:
Township of Breitung
PO Box 56
Soudan, MN 55782
And every notice served upon Grantor shall be delivered or sent by certified mail, return receipt requested, to
Government Affairs/Public Relations Manager
Altoona, WI 54720
- All provisions of this Ordinance shall apply to the respective parties, their successors and assigns.
- If any particular section of this Ordinance shall be held invalid, the remaining provisions and their application shall not be affected thereby.
- Effective Date. This ordinance shall take effect on the date adopted by the Grantor Council.
Passed by the Town Board of Township of Breitung, on the 9th day of February 2005.
TOWNSHIP OF BREITUNG
By: _____Timothy Tomsich
CC VIII OPERATING, LLC
1/k/a Charter Communications