HomeMy WebLinkAbout6.n Confidentiality Agreement with Charter CommunicationsAGENDA ITEM: Confidentiality Agreement with Charter
Communications
AGENDA SECTION:
Consent
PREPARED BY: Linda Jentink, City Clerk
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ATTACHMENTS: Agreement, Cost Estimate
APPROVED BY: 4
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RECOMMENDED ACTION: Motion to approve the Confidentiality Agreement with Charter
Communications for the purpose of conducting an audit review of the franchise fees
through HLB Tautges Redpath, Ltd. and to designate the Mayor and City Clerk as signing
agents.
ACTION:
CITY OF ROSEMOUNT
EXECUTIVE SUMMARY FOR ACTION
City Council Meeting Date: January 4, 2005
ISSUE
The City has the right to inspect records that relate to a franchise agreement and
specifically to the accounting and financial records as they pertain to franchise fees.
The City of Rosemount, along with the cities of Apple Valley, Lakeville and Farmington
desire to perform a franchise audit review of Charter Communications
BACKGROUND
Early in 2004, the City of Lakeville Cable Coordinator approached the Apple Valley,
Farmington, and Rosemount Cable Commission (Commission) Coordinator about
conducting a joint audit of franchise fee payments by Charter Communications. The Cities
worked together to prepare a request for proposals for auditing services and received
proposals from seven firms. In November, the Commission accepted the proposal
submitted by HLB Tautges Redpath, Ltd. to conduct an audit review of Charter
Communications for the years 2001, 2002, and 2003. The cost of the audit would be
divided between the joint Commission based on cable subscriber counts.
While the audit is being conducted on behalf of the four cities jointly, each city individually
holds a franchise with the cable company The company has expressed concern about
the audit process, specifically pertaining to confidential documents that if made public,
could give the company's competitors an advantage The company and the Cities' cable
attorney negotiated the attached confidentiality agreement to protect the company's
privacy interests while still allowing the cities access to the necessary documents to
conduct a meaningful audit review Each city would need to approve a similar agreement
prior to the commencement of the audit.
SUMMARY
Staff recommends approval of the Confidentiality Agreement by way of the above motion
to enact a fair and equitable audit of the cable franchise fees.
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this "Agreement is entered into as of
the day of (the "Effective Date by and between
the City of Rosemount, (the "City and HLB Tautges Redpath, Ltd., (the "Consultant on
the one hand, and Marcus Cable Partners, LLC, d /b /a Charter Communications (the
"Company" or "Charter on the other hand.
RECITALS
WHEREAS, Charter currently holds a cable franchise from the City of Rosemount; and
WHEREAS, according the terms and conditions of the franchise, the City has the right to
inspect, upon reasonable notice and dunng normal business hours, any records mamtamed by
grantee which relate to the franchise or system operations mcludmg specifically Charter's
accounting and financial records, subject to the pnvacy provisions of 47 U.S C. 521 et seq In
addition or alternatively, Charter must provide copies of any such records upon request by the
City, and
WHEREAS. the City desires to perform a franchise fee audit of Charter pursuant to the
franchise and applicable law (the "Audit and
WHEREAS, the City has retained the services of the Consultant to perform the Audit on
behalf of the City, and
WHEREAS, Charter will be providing certain information that it believes is confidential
and proprietary to the City and to the Consultant in connection with the Audit and Charter desires
to protect the confidential and proprietary nature of such information.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and conditions set forth
in this Agreement, and other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as follows
1. Definition of Confidential Information. For purposes of this Agreement, the
"Company's Confidential Information" shall mean any documents provided by Charter pursuant
to this Agreement that contain information that Charter claims in good faith to be trade secrets, or
highly pnvileged, proprietary or confidential information, that is not generally available to the
public, and which Charter desires to protect against unrestricted disclosure or competitive use
(hereinafter, "Company's Confidential Information Charter shall mark these documents as
"CONFIDENTLAL Confidential Information shall not include information disclosed to third
parties by Charter without restriction including information previously disclosed by Charter to the
City or its Representatives and information publicly available by other than unauthorized
disclosures.
2. Treatment of Confidential Information. All of the Company's Confidential
Information will be kept confidential by the City and the Consultant to the maximum extent
permitted by law, and shall not be reproduced, disclosed, distributed or communicated, directly or
indirectly, in whole or in part, to any other Person (as defined below), except that each party may
disclose the Confidential Information or portions thereof to those persons or entities who, in its
judgment, are reasonably required to review the Confidential Information m connection with the
Audit, including, but not limited to (i) the City, Consultant and their respective elected officials,
directors, officers, attomeys. employees, representatives, agents, and consultants, who have
acknowledged an obligation of confidentiality and executed an agreement to be bound by the
terms and conditions of this Agreement (the persons to whom such disclosure is permissible
being collectively called "Representatives
3. Person The term "Person" as used in this Agreement will be interpreted broadly
to include, without limitation, any corporation, company, partnership, individual or other entity of
any kind whatsoever.
4. Representatives Bound. The Consultant agrees that it will inform each of its
Representatives who have, or will have, access to any or all of the Confidential Information, of
the existence and content of this Agreement and will require all such Representatives to be bound
by and observe the confidentiality requirements of this Agreement by such Representative's
signature on a document substantially in the form attached as Exhibit A.
5. Legally Required Disclosure If the City and /or the Consultant, as the case may
be, is compelled to disclose any of the Company's Confidential Information pursuant to
applicable federal or state laws, rules, regulations, or court orders or subpoenas (each a
"Requirement the City and/or the Consultant, as the case may be, shall provide the Company
with prompt notice of any such Requirement and shall cooperate with the Company, at the
Company's sole expense, in seeking to obtain any protective order or other arrangement pursuant
to which the confidentiality of the Company's Confidential Information is preserved If such an
order or arrangement is not obtained, the City and /or the Consultant, as the case may be, shall
disclose only that portion of the Company's Confidential Information as is required pursuant to
such Requirement. Any such required disclosure shall not, in and of itself, change the status of
the disclosed information as the Company's Confidential Information under the terms of this
Agreement.
6. Permitted Disclosure. Notwithstanding any other provisions herem, Charter
understands that the Consultant must report the results of its findings, which may in part be based
on review of Confidential Information, to the City Consequently, the Consultant may make
reports to the City that will summarize its review of Confidential Information and which will be
presented in aggregate fashion, without disclosing the specifics of such information.
7. No Assignment Neither the City nor the Consultant may assign any of its rights
or delegate any of its obligations under this Agreement, except upon the prior written consent of
the Company, which may be withheld in the Company's sole and absolute discretion.
8. Non Waiver. This Agreement in no way waives any nght any person or persons
may have to contend that any documents or information are or are not discoverable, confidential,
propnetary. privileged or in the nature of a trade secret outside of the exchange of information
pursuant to this Agreement. No failure or delay by either party in exercising any right, power, or
privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power, or privilege preclude any other or further exercise thereof.
9. Equitable Relief. The City and the Consultant each acknowledge that the
Company may be irreparably injured by a breach of this Agreement by the City and /or the
Consultant and that the Company, in addition to any other remedies available at law or in equity,
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shall be entitled to seek equitable relief, including injunctive relief and specific performance, in
the event of any breach of the provisions of this Agreement by the City and/or the Consultant.
10. Invalid Provisions. If any provision of this Agreement is held to be Illegal,
invalid or unenforceable, the remaining provisions shall remain in full force and effect Should
any provision be held to be illegal, invalid or unenforceable as being too broad with respect to the
duration, scope or subject matter thereof, such provisions shall be automatically modified to
reflect the maximum duration, scope or subject matter allowable by law
11. Notices. Any notices or other communications contemplated or required under
this Agreement, in order to be valid, shall be in wnting and shall be given via personal delivery,
fax or overnight courier, or via U.S Certified Mail, Retum Receipt Requested, at the following
addresses:
If to the Company: Charter Communications
Attn. Ms. Melissa Newman
3380 Northern Valley Place NE
Rochester, MN 55609
With copies to: Charter Communications
7570 208` Street North
Forest Lake, MN 55025
Attn. Mr. Arne "Tucker" Carlson
If to the City: City of Rosemount
2875 145 Street West
Rosemount, MN 55068 -4941
Attn.: Mr. Jamie Verbrugge, City Administrator
If to the Consultant: HLB Tautges Redpath, Ltd
4810 White Bear Parkway
White Bear Lake, MN 55110
Attn.: Mr. Mark Gibbs
or at such or at such other addresses as a party may designate by notice to the other parties. Such
notices or other communications shall be deemed received when actually delivered (where given
via personal delivery, fax or overnight courier) or three (3) business days after mailing (where
given via U.S. Certified Mail)
14. Governing Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of Minnesota.
parties.
15. Amendment. This Agreement may be amended only In wnting signed by both
16. Counterparts. This Agreement may be executed in one or more counterparts,
each of which, shall for all purposes be deemed an onginal and all of which, taken together, shall
collectively constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have entered into this Agreement effective as of
the date first above written
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Marcus Cable Partners, LLC City of Rosemount, Minnesota
d/b /a Charter Communications
By: By:
Name: John Crowley Name:
Title: VP /GM Southern MN KMA Title:
Date: Date:
HLB Tautges Redpath, Ltd.
By: And:
Name: Name:
Title: Title:
Date: Date:
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Attachment A
CONFIDENTIALITY AGREEMENT
In connection with the work that I am performing in connection with the franchise fee
audit of Charter Communications for the cities of Apple Valley, Farmington, Rosemount and
Lakeville, I am to be given access to certain matenal of Charter provided under a Confidentiality
Agreement An executed copy of the Confidentiality Agreement has been delivered to me. I
have read that Agreement and I agree to comply vi ith and be bound by its terms.
Signed:
Name:
Title:
Date:
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Jentink,Linda
From:
Sent:
To:
Subject:
Linda,
M.M.
Moore, Mark [MMoore @ci apple valley mn.us]
Wednesday, December 29, 2004 4 08 PM
Jentink,Linda
RE Apple VAlley NDA Council Memo
The memo looks good. The Apple Valley
of the audit cost will be approximat
Commission budget. Even though the
will receive an individual franchise fee
d Rosemount Cable Commission share
th the amount to be paid from the
paying for the audit, each member city
audit review report.
Mark Moore, Cable Coordinator
Apple Valley, Farmington, Rosemount
Cable Commission
(952) 953 -2502
"There are 0010 kinds of people in the world those who can count in binary, and those
who can't."
Original Message
From: Jentink,Linda mailto: linda .jentink@ci.rosemount.mn.us]
Sent: Wednesday, December 29, 2004 03:20 PM
To Moore, Mark
Subject: RE: Apple VAlley NDA Council Memo
Mark, here's what I'm sending to Council. It did occur to me they may ask how much is this
audit going to cost? Any idea?
Linda Jentink, City Clerk
Original Message
From: Moore, Mark [mailto :MMoore @ci.apple valley.mn.us]
Sent. Wednesday, December 29, 2004 2:46 PM
To: Jentink,Linda
Subject: Apple VAlley NDA Council Memo
Is attached.
M M.
Mark Moore, Cable Coordinator
Apple Valley, Farmington, Rosemount
Cable Commission
(952) 953 -2502
"There are 0010 kinds of people in the world those who can count in binary, and those
who can't."
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