HomeMy WebLinkAbout6.i. Second Reading of an Amendment to Rosemount Ordinance No. X1.23 4RJSEN4OLINT SUMMARY
CITY COUNCIL
City Council Regular Meeting: January 2, 2008
AGENDA ITEM: Second Reading of an Amendment to AGENDA SECTION:
Rosemount Ordinance No. X1.23 Consent
PREPARED BY: Jamie Verbrugge, City Administrator AGENDA NO.
ATTACHMENTS: 0,4744‹ e APPROVED BY:
mendments
RECOMMENDED ACTION: Motion to conduct the second reading and ad
to Rosemount Ordinance No. X1.23, amending the FTTH Cable Franchise
BACKGROUND
The Rosemount City Council conducted the first reading of an amendment to the FTTH Cable Franchise
Ordinance at its meeting on December 18, 2007.
ISSUE
The amendments to the FTTH Cable Franchise, Ordinance No. X1.23, consist of several technical
revisions regarding PEG programming, penalties, notice requirements and letters of credit. The most
substantial amendment is modification of the build -out requirement to the PITH fiber network. System
build -out, per the amended language, would be conducted in the urban residential portion of the
community on a three -year phased construction schedule commencing in 2008 and completing in 2010.
SUMMARY
A resolution approving transfer of control over FTTH Communications, LLC, and its cable franchise and
system, to Rudder Capital Corporation appeared earlier on the January 2, 2008 City Council Regular
Meeting Agenda. The ordinance amendment satisfies a requirement in finalizing the transfer of control as
identified in that resolution.
Staff recommends the City Council conduct the second reading of the ordinance amendment and to adopt
the amendments to Rosemount Ordinance No. X1.23, the FTTH Cable Franchise.
CITY OF ROSEMOUNT
COUNTY OF DAKOTA
STATE OF MINNESOTA
ORDINANCE NO.
AN ORDINANCE AMENDING THE FTTH CABLE FRANCHISE,
ORDINANCE NO.
THE CITY COUNCIL OF THE CITY OF ROSEMOUNT, MINNESOTA, ORDAINS as
follows:
Section 1. Rosemount Ordinance No. X1.23, Section 2, paragraph 8 is amended as follows
(deletions shown as strikeouts, additions shown in bold/underline):
Written Notice. All notices, reports, or demands required to be given in writing
under this Franchise shall be deemed to be given when delivered personally to
any officer of Grantee or City's Administrator of this Franchise or forty -eight (48)
hours after it is deposited in the United States mail in a sealed envelope, with
registered or certified mail postage prepaid thereon, addressed to the party to
whom notice is being given, as follows:
If to City: City of Rosemount
c/o City Administrator
2875 145 Street West
Rosemount, MN 55068 -4997
With copies to: Robert J. V. Vose, Esq.
470 U.S. Bank Plaza
300 200 South eh Street
Minneapolis, MN 55402
If to Grantee: FTTH Communications, L.L.C.
Attn: Kevin Kawell
4483 Ever...,.,..- Parkway 14745 South Roberts Trail
Rosemount, MN 55068
With copies to:
Suite-2200
-00 W h gton n v S out
Tvv-- r�z�nar
Clyde C. Ahlauist, Esq.
RJV- 266063v1
VS 105 -3
Ahlquist Law Office
2334 Wilson Street NE
Minneapolis, MN 55418
Such addresses may be changed by either party upon notice to the other party
given as provided in this Section.
Section 2. Rosemount Ordinance No. X1.23, Section 6, paragraph 1 is amended as follows
(deletions shown as strikeouts, additions shown in bold/underline):
Public, Educational and Government Access.
a. The City is hereby designated to operate, administer, promote, and
manage community programming (public, education, and government
programming) (hereinafter "PEG access in the Cable System.
b. Grantee shall dedicate five (5) channel(s), with channel defined as a six
(6) MHz spectrum allocation, for PEG access and community
programming use. All residential Subscribers who receive all or any part
of the total services offered on the System shall be eligible to receive such
channels at no additional charge. The channel(s) shall be activated upon
the effective date of this Franchise and thereafter maintained. The City
may rename, reprogram, or otherwise change the use of these channels in
its sole discretion, provided such use is non commercial and retains the
general purpose of the provision of community programming. Nothing
herein shall diminish the City's rights to secure additional channels
pursuant to Minn. Stat. 238.084, which is expressly incorporated herein
by reference. The City shall provide ninety (90) days prior written notice
to Grantee of City's intent to activate access channels and shall allow
Grantee reasonable time to vacate said channel(s).
c. The VHF spectrum must be used for the PEG access channel(s) required
in this Section. Grantee shall designate the channel locations of any other
access channel(s) but may not move or otherwise change the channel
number or location of any PEG access or community program channel
without the written approval of the City.
d. Grantee will cable cast all
videe ped -PEG access programming provided produced by the City or
City's designee. Within one year of the Effective Date of this Franchise,
the Grantee will provide live video feed from City Hall. In addition, on
or before October 1, 2008, Grantee will begin cable casting ISD 196
Channel 10 and will provide or obtain a live video feed or connection
from Apple Valley City Hall and cable cast PEG access programming
produced by the Apple Valley, Farmington Rosemount Cable
Commission including Rosemount/Dakota County Channel 12 and
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Apple Valley/Farmington Channel 16. On or before January 1, 2009,
Grantee shall present a plan and timetable for obtaining and cable
casting Regional Channel 6 and to the extent commercial feasible and
permitted by the content owner(s), Public Access Channel 12.
Grantee shall be responsible for the cost of obtaining the foregoing
program feeds or connections, and the cost of any equipment
necessary to cable cast such programming.
Any PEG programming originated from FTTH facilities will be provided to all
public buildings
Section 3. Rosemount Ordinance No. X1.23, Section 8, paragraph 1 is deleted in its entirety.
Section 4. Rosemount Ordinance No. X1.23, Section 8, paragraph 2 is amended as follows
(deletions shown as strikeouts, additions shown in bold/underline):
Letter of Credit.
a. At the time of acceptance of this Franchise, Grantee shall deliver to the
City an irrevocable and unconditional Letter of Credit, in form and
substance acceptable to the City, from a National or State bank approved
by the City, in the amount of Ten Sixty Thousand Dollars ($1 60,000.00).
b. The Letter of Credit shall provide that funds will be paid to the City, upon
written demand of the City, and in an amount solely determined by the
City in payment for penalties charged pursuant to this section, in payment
for any monies owed by Grantee pursuant to its obligations under this
Franchise, or in payment for any damage incurred as a result of any acts or
omissions by Grantee pursuant to this Franchise.
c. In addition to recovery of any monies owed by Grantee to the City or
damages to the City as a result of any acts or omissions by Grantee
pursuant to the Franchise, the City, in its sole discretion, may charge to
and collect from the Letter of Credit the following penalties:
i. For failure to complete system upgrade -as construction and
extension in accordance with the schedule provided herein,
unless the City approves the delay, the penalty shall be Two
Hundred Dollars ($200.00) per day for each day, or part thereof,
such failure occurs or continues.
ii. For failure to provide data, documents, reports or information
required herein or for failure to cooperate with the City during an
application process or system review or as otherwise provided
herein, the penalty shall be Fifty Dollars ($50.00) per day for each
day, or part thereof, such failure occurs or continues.
RJV- 218139v1 3
VS105 -4
iii. For failure to comply with construction, operation or customer
service, or maintenance and technical standards, including the
customer service requirements herein, the penalty shall be One
Hundred Dollars ($100.00) per day for each day, or part thereof,
such failure occurs or continues.
iv. For failure to provide the services Grantee has proposed, including,
but not limited to, the implementation and the utilization of the
PEG access channels and the maintenance and/or replacement of
the PEG access equipment and other facilities, the penalty shall be
One Hundred Dollars ($100.00) per day for each day, or part
thereof, such failure occurs or continues.
v. For violation of any other provision of this Franchise or applicable
federal, state, or local law or regulation, the penalty shall be Fifty
Dollars ($50.00) per day for each day, or part thereof, such
violation continues.
d. Each violation of any provision of this Franchise shall be considered a
separate violation for which a separate penalty can be imposed.
e. Whenever the City finds that Grantee has violated one or more terms,
conditions or provisions of this Franchise, a written notice shall be given
to Grantee informing it of such violation. At any time after thirty (30)
days following receipt of notice, provided Grantee remains in violation of
one or more terms, conditions or provisions of this Franchise, in the sole
opinion of the City, the City may draw from the Letter of Credit all
penalties or monies due the City from the date of the local receipt of
notice. The City may grant additional time beyond the initial thirty (30)
days in the event the City determines such additional time is necessary to
cure the alleged violation.
f. Grantee may, within fifteen (15) days of receipt of such notice, notify the
City in writing that there is a dispute as to whether a violation or failure
has in fact occurred. Such written notice by Grantee to the City shall
specify with particularity the matters disputed by Grantee. All penalties
shall continue to accrue and the City may draw from the Letter of Credit at
the end of the thirty (30) day cure period notwithstanding Grantee's
dispute regarding the violation.
i. The City shall hear Grantee's dispute at the next regularly
scheduled meeting or within sixty (60) days, whichever period is
longer.
ii. Upon determination by the City that no violation has taken place,
RJV- 218139v1 4
VS 105-4
the City shall rescind the notice of violation and refund to Grantee,
without interest, all monies drawn from the Letter of Credit by
reason of the alleged violation.
g. If said Letter of Credit or any subsequent Letter of Credit delivered
pursuant thereto expires prior to five (5) months after the expiration of the
term of this Franchise, it shall be renewed or replaced during the term of
this Franchise to provide that it will not expire earlier than five (5) months
after the expiration of this Franchise. The renewed or replaced Letter of
Credit shall be of the same form and amount and with a bank authorized
herein.
h. If the City draws upon the Letter of Credit or any subsequent Letter of
Credit delivered pursuant hereto, in whole or in part, Grantee shall replace
the same within ten (10) days and shall deliver to the City awe proof of
replacement of the Letter of Credit for the full amount required herein as a
substitution of the previous Letter of Credit.
i. If any Letter of Credit is not so replaced, the City may draw on said Letter
of Credit for the whole amount thereof and use the proceeds as the City
determines in its sole discretion. The failure to promptly replace any
Letter of Credit may also, at the option of the City, be deemed a default by
Grantee under this Franchise. The drawing on the Letter of Credit by the
City, and use of the money so obtained for payment or performance of the
obligations, duties and responsibilities of Grantee which are in default,
shall not be a waiver or release of such default.
j. The collection by the City of any damages, monies or penalties from the
Letter of Credit shall not be deemed an exclusive remedy and shall not affect
any other right or remedy available to the City, nor shall any act, or failure to
act, by the City pursuant to the Letter of Credit, be deemed a waiver of any
right of the City pursuant to this Franchise or otherwise.
Section 5. Rosemount Ordinance No. X1.23, Exhibit B is amended as follows (deletions
shown as strikeouts, additions shown in bold/underline):
EXHIBIT B
Attached Exhibit C is a map showing the location of Grantee's system as currently
constructed, along with a schedule for completion of construction of the Grantee's
initial service areas. Grantee shall extend its system and offer service to all homes or
dwelling units in Areas 1 and 3 _2 and 3, and those portions of Area 4 meeting the
density requirement in the Franchise, all as depicted in Exhibit
C.
The City and Grantee acknowledge that the Grantee has applied for necessary
RJV- 218139v1 5
VS 105-4
governmental permits, licenses, certificates, and authorizations in order to construct a
system serving the City and that such system construction is underway as of the date of
the granting of this franchise. Grantee shall continue to apply for permits associated with
work in specific portions of the right -of -way as construction proceeds.
Energized trunk cable must be extended substantially throughout Area 1 depicted on the
E xhibit C, and all
associated system construction must be completed by December 31, 2008; energized
trunk cable must be extended substantially throughout Area 2, and all associated
system construction must be completed by December 31, 2009; energized trunk
cable must be extended substantially throughout Area 3, and all associated system
construction must be completed December 31, 2010; energized trunk cable must be
extended substantially throughout those portions of Area 4 meeting the density
requirements in this Franchise, and all associated system construction must be
completed by December 31, 2011. Construction based on this build -out schedule
will proceed at a reasonable rate of not less than 50 plant miles per year. Persons
along the route of the energized cable will must have individual drops as desired during the same period of time
Upon completion of system construction in Grantee's initial service areas, Grantee will
extend its system and services in accordance with Section 2.7 of the Franchise. The
requirements herein may be waived by the City upon occurrence of unforeseen events or
acts of God. The City may only agree to such modifications by amendment to this
Franchise.
Section 6. Rosemount Ordinance No. X1.23, Exhibit C is deleted and replaced with the
following:
llnsert new service area /phase mapl
RJV- 218139v1 6
V5105-4
Section 7. This Ordinance shall be in effect following its passage and publication.
ADOPTED this day of 2007, by the City Council of the City of
Rosemount.
CITY OF ROSEMOUNT
William H. Droste, Mayor
ATTEST:
City Clerk
RN- 218139v1 7
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4 ROSEMOUNT
IAINNESOTA
SWIRUndia
City Base Map
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Phase
Smith Rosemount
i 3 ray Barium
ph 3
North Rosemount
11 j Public Right AWN
Muse 4
1'71 Private Right crWaY
1111 Cememy
MB Church
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EXHIBIT C
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