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07/26/2002 - City Council Special1 ~. ~~... d;.. AGENDA SPECIAL CITY COUNCIL MEETING FRIDAY JULY 26, 2002 8:00 A.M. CITY COUNCIL CHAMBERS I. ROLL CALL & AGENDA ADOPTION II. VISITORS TO BE HEARD III. CONSIDER ORDINANCE AMENDMENT TO CITY CODE CHAPTER 4, SEC. 4.20 RE: PLACEMENT, ERECTION, MAINTENANCE OF SIGNS IV. OTHER BUSINESS V. ADJOURNMENT •, ~_~ MEMO - city of eagan TO: HONORABLE MAYOR AND CITY COUNCILMEMBERS FROM: CITY ADMINISTRATOR HEDGES DATE: JULY 25, 2002 SUBJECT: SPECIAL CITY COUNCIL MEETING /FRIDAY, JULY 26, 2002 AT 8:00 A.M. A Special City Council meeting is scheduled for Friday, July 26 at 8:00 a.m. in the City Hall Council Chambers for the purpose of providing clarification by considering an ordinance amendment to City Code Chapter 4, Sec. 4.20 regarding placement, erection, maintenance of signs. Also the City Administrator will ask the City Council to include as an item of Other Business and to ratify the recommendation of the Telecommunications Commission to approve the AT&T Broadband and Comcast merger of cable television systems. Reasons for considering this ratification is due to the statutory deadline of July 31 which, according to the City Attorney, preserves the full force and effect of any and all conditions that were approved by the Telecommunications Commission at their meeting on Wednesday, July 24. 1n keeping with the City Council's practice of Special City Council meetings, the meeting will be on cable television. CONSIDER ORDINANCE AMENDMENT TO CITY CODE CHAPTER 4, SEC. 4.20 As a result of candidates orientation held on Monday, July 22, whereby questions were asked of City staff about the intent and purpose of the City's Sign Ordinance as it relates to setback of signs from the City's public right-of--away, it was determined that ahousekeeping/clarification to the ordinance was necessary as soon as possible to allow candidates and City staff to properly address the location of political signs throughout the community. The issues raised by the candidates at the orientation have been addressed by City staff including Engineering, Planning/Code Enforcement, Administrative Services/City Clerk and the City Administrator. Input shared by staff and City Councihnember Carlson, who were in attendance at the meeting on Monday, have been sent to the City Attorney's office. For a copy of a memo prepared by the City Attorney, a copy of the proposed ordinance and a map (without page number) provid~g the color-coding for the differentiation in street classifications, refer to the attachments on page through ~. ACTION TO BE CONSIDERED: To consider approval with or without modification to the revised Chapter 4 of the City Code which deals with the placement of signs. ACCEPTANCE OF BURNSVILLE/EAGAN TELECOMMUNICATIONS COMMISSION RECOMMENDATION TO APPROVE TRANSFER OF CABLE TELEVISION FRANCHISE FROM ATT&T CORPORATION TO AT&T COMCAST CORPORATION The joint powers Burnsville/Eagan Telecommunications Commission met August 24, 2002 to hold a hearing and make recommendation upon a transfer of cable franchise request (made necessary by the proposed merger of AT&T and Comcast's cable television systems.) The Commission's recommendation to the municipalities to approve the transfer with certain conditions passed on a 5- 3vote and is now before both city councils. Consent action is needed before July 31 to ensure those conditions have full force and effect. A memo outlining the background of the matter is on page of the Council's packet along with a copy of Telecommunications Commission resolution. ACTION TO BE CONSIDERED: To ratify the Burnsville/Eagan Telecommunications Commission recommendations to approve the transfer of cable television franchise from AT&T Corporation to AT&T Comcast merger of cable television systems subject to certain conditions. For additional information and a copy of the conditions, refer to a memo from Communications Direction Garrison. /s/ Thomas L. Hedges City Administrator a -=~~~ TO: FROM: DATE: SUBJECT: DRAFT City of Eagan CITY ADMINISTRATOR HEDGES COMMUNICATIONS DIRECTOR GARRISON July 25, 2002 Acceptance of Telecommunications Commission Recommendation Beginning in April of this year the Burnsville/Eagan Telecommunications Commission and its administrator, Tom Creighton, began to study the proposed AT&T Broadband and Comcast merger of cable television systems. The resulting company would serve about 22 million customers nationwide serving 38 million homes and would comprise the largest cable company in the United States. According to Federal Communication Commission law, action is required by local franchise authorities (CFA's) within a specified period of time to accept or reject the merger application/ transfer of franchise request. Failure to act within the statutory guidelines is a presumptive approval. Telecommunications commissioners reviewed hundreds of pages of documentation and the law firm of Creighton, Bradley & Guzzetta prepared extensive reviews of available merger data. The issues were complex and concerns centered on the long-term financial viability of the merged company. After three hours of debate and testimony the transfer of control resolution was approved, but with the attachment of guarantees or conditions in three significant areas: • Rates • Service • Local resources The resolution with attached conditions agreed to by AT&T/Comcast passed on a 5-3 vote. It is attached for your review and consent. It is the recommendation of legal counsel that the City Council act on or before the statutory deadline of July 31 to preserve the full force and effect of the recently agreed upon conditions. Note: In a separate matter, and in an attempt to wrap-up some ongoing franchise disputes between the Commission and the franchise-holder, ATTB has agreed to forgive the repayment by the Commission of some $35,000 in PEG fees, to deed control over a tower containing Eagan Police communications gear, to install promised I-Net video cards worth about $7,000 each, and to turn over control of a back-up generator to the Burnsville/Eagan Community Television operations. 3 RESOLUTION NO. ~' ~ lr ' U ~ ' U RESOLUTION OF THE BURNSVILLE/EAGAN TELECOMMUNICATIONS COMMISSION REGARDING REQUEST TO CONSENT TO THE TRANSFER OF CONTROL OF THE CABLE TELEVISION FRANCHISE AND CABLE TELEVISION SYSTEM FROM AT&T CORPORATION TO AT&T COMCAST CORPORATION WHEREAS, MediaOne North Central Communications Corp. dba AT&T Broadband ("Franchisee") holds franchises (the "Franchises") to operate a cable television system ("the System") in the municipalities of Burnsville and Eagan, Minnesota (collectively "Municipalities") which collectively constitute the Burnsville/Eagan Telecommunications Commission ("Commission") and is an indirect subsidiary of AT&T Corp. ("AT&T"); WHEREAS, after a series of transfers, Franchisee was approved by the Municipalities as the Franchise holders, pursuant to prior transfer resolutions (the "Prior Transfer Resolutions"). The Prior Transfer Resolutions, the Franchises, and the Franchise Ordinances, together with any applicable resolutions, codes, ordinances, acceptances, acknowledgments, guarantees, amendments, memoranda of understanding, social contracts and agreements, are collectively referred to as the "Franchise Documents"; and WHEREAS, Franchisee is a wholly-owned subsidiary of AT&T Corp. ("AT&T"); and WHEREAS, AT&T, the ultimate parent corporation of Franchisee, and Comcast Corporation have agreed to combine AT&T's and Comcast Corporation's respective cable television systems in a new company incorporated in Pennsylvania as AT&T Comcast Corporation (the "Proposed Transaction"); and WHEREAS, under the Proposed Transaction, the Franchisee will continue to hold the Franchises and to operate the System, but Franchisee's ultimate parent company will be different aud, consequently, the ultimate ownership of the Franchises will change as well; and WHEREAS, AT&T filed a copy of Federal Communications Commission Form 394, together with certain attached materials with the Municipalities on March 5, 2002, which materials more fully describe the proposed merger and which form, with its attachments, contains certain promises, representations and warranties by Franchisee, Comcast Corporation and AT&T Comcast Corporation (the "Transfer Application"); and WHEREAS, the Commission is delegated the responsibility to review the Proposed Transaction and recommend to the Municipalities any proposed action regarding the Proposed Transaction; and WHEREAS, Franchisee, and Comcast Corporation, through its Comcast Cable Communications, Inc. subsidiary, provided written responses to some of the data requests issued by the Commission (the "Data Request Response") and WHEREAS, the Franchise require the Municipalities' prior consent to a fundamental co-porate change, including a merger or a change in Franchisee's parent corporation; and WHEREAS, the Commission has reviewed the Transfer Application and considered all 4 applicable and relevant factors; and WHEREAS, in reliance upon the representations made by and on behalf of Franchisee, Comcast Corporation, AT&T Corp. and AT&T Comcast Corporation, the Commission is willing to recommend to the Municipalities that the Municipalities consent to the Proposed Transaction, so long as those representations are complete and accurate; and WHEREAS, the Commission's recommendation to approve the Proposed Transaction is therefore appropriate if the Franchisee will continue to be responsible for all acts and omissions, known and unknown, under the Franchise Documents and applicable. law for all purposes, including (but not limited to) Franchise renewal. NOW, THEREFORE, BE IT RESOLVED BY THE BURNSVILLE/EAGAN TELECOMMUNICATIONS COMMISSION AS FOLLOWS: Section 1. Tl~e Commission recommends to the Municipalities that the Municipalities consent to, and approve the Transfer Application in accordance with the Franchises, subject to the following conditions: l .1 Neither the Franchise, nor any control thereof, nor the System, nor any part of the System located in a Municipality's public rights-of--way or on Municipality's property, shall be assigned or transferred, in whole or in part, without filing a written application with the Municipalities and obtaining the Municipalities' prior written approval of such transfer or assignment, but only to the extent required by applicable law. 1.2 The Commission's recommendation to approve and any subsequent acceptance by the Municipalities of the recommendation to approve the Transfer Application is made without prejudice to, or waiver of, the Commission's right to fully investigate and consider on behalf of the Municipalities during any future franchise renewal process: (i) Franchisee's financial, technical, and legal qualifications; (ii) Franchisee's compliance with the Franchise Documents; and (iii) any other lawful, relevant considerations. 1.3 The Commission's recommendation to approve and any subsequent acceptance by the Municipalities of the recommendation to approve the Transfer Application is made without prejudice to, or waiver of, any right of the Municipalities or the Commission to consider or raise claims based on Franchisee's defaults, any failure to provide reasonable service in light of the community's needs, or any failure to comply with the terms and conditions of the Franchise Documents, or with applicable law. 1.4 The Commission or the Municipalities waives none of its rights with respect to the Franchisee's compliance with the terms, conditions, requirements and obligations set forth in the Franchise Documents and in applicable law. The Commission's recommendation to approve and any subsequent acceptance of that recommendation to approve the Transfer Application shall in no way to deemed a representation by Commission or the Municipalities that the Franchisee is in compliance with all of its obligations under the Franchise Documents and applicable law. 1.5 After the Proposed Transaction, Franchisee will be bound by all the commitments, duties, and obligations, present and continuing, embodied in the Franchise Documents and applicable law. The Proposed Transaction will have no effect on these obligations. 1.6 After the Proposed Transaction is consummated, the Franchisee will continue to be responsible for all past acts and omissions, known and unknown, under the Franchise Documents and applicable law for all purposes, including (but not limited to) Franchise renewal to the same extent and in the same manner as before the Proposed Transaction. 1.7 Nothing in this Resolution amends or alters the Franchise Documents or any requirements therein in any way, and all provisions of the Franchise Documents remain in full force and effect and are enforceable in accordance with their terms and with applicable law. 1.8 The Proposed Transaction shall not permit Franchisee, or AT&T Comcast Corporation to take any position or exercise any right with respect to the Franchise Documents and the relationship thereby established with the Commission or the Municipalities that could not have been exercised prior to the Proposed Transaction. 1.9 The Franchisee will continue to abide by all terms of the Franchise Documents and applicable law after the Proposed Transaction, and will continue to assume the existing obligations, liabilities and responsibility for all acts and omissions under the Franchise Documents and applicable law, known and unknown, including (but not limited to) all acts and omissions of its predecessors in interest to the same extent as before the Proposed Transaction. 1.10 The Municipalities reserve all of their rights with respect to Franchisee's future compliance with the terms, conditions, requirements and obligations set forth in the Franchise Documents. 1.11 The Municipalities are not waiving any rights it may have to require franchise fee payments on present and future services delivered by Franchisee via the System. 1.12 The Municipalities are not waiving any right it may have related to any open access issue. 1.13 The Commission's recommendation to approve and any subsequent acceptance by the Municipalities of that recommendation to approve the Proposed Transaction and Transfer Application shall not constitute a waiver or release of any of the rights of the Municipalities under the Franchise Documents and applicable law, whether arising before or after the date of consummation of the Proposed Transaction. 1.14 MediaOne Group, Inc., acknowledges that Franchisee will be responsible for performance of the obligations required by the Franchise Ordinances, and MediaOne Group, Inc., further acknowledges its obligations to take no action to prevent Franchisee from fulfilling its aforesaid obligations. c~ 1.15 ~ MediaOne Group, Inc., assures that it will cause to be made available adequate financial resources to allow Franchisee to meet its current obligations under the Franchise Ordinances and enable Franchisee to maintain through 2005 the can ent operational and customer service levels taken as a whole. 1.16 The Franchisee represents and warrants that the Proposed Transaction and the fact that as a result thereof AT&T Broadband and Comcast Corporation are thereby merged will riot result in any increase in subscriber rates; provided, however, that the Franchisee reserves the right to make lawful changes in subscriber rates in the ordinary course of business. Section 2. If any of the conditions specified in Section 1 are not satisfied, then the Commission's recommendation to approve and any subsequent acceptance by the Municipalities of the recommendation to approve the Transfer Application and Proposed Transaction is hereby DENIED and void as of the date hereof. Section 3. Franchisee shall reimburse the Commission in accordance with Section 10.5.e of the Municipalities' Franchise Ordinances. The Commission will present a single invoice to Franchisee, itemizing the costs and expenses incurred. Commission and Franchisee acknowledge that much of the work performed on behalf of Commission by outside contractors was also performed on behalf of other franchising authorities or their delegatees. This common work resulted in a common work product. Therefore, it is the understanding of the Commission and the Franchisee that the fees for the common work product were allocated among various effected franchising authorities who likewise evaluated the Transfer Application. Franchisee will reimburse the Commission for the Commission's portion of the expenses incurred in production of the common work product as they were invoiced to Commission with the understanding that the sum total of the expenses for the common work product, allocated among various franchising authorities likewise evaluating the Transfer Application, shall not exceed the total expense incurred in the production of the common work product. Any expenses incurred solely on behalf of Commission in the evaluation or consideration of the Transfer Application will be also be reimbursed to Commission by Franchisee. Franchisee shall remit payment for such costs and expenses within thirty days of its receipt of the invoice. Such payment shall be made directly to the Commission and not through a payment to any other entity. Franchisee shall not assert its right to claim that the reimbursement made under this Resolution shall be considered a franchisee fee. Section 4. If any of the oral or written representations made to tl~e Commission or the Municipalities by (i) the Franchisee, (ii) Comcast Corporation (iii) AT&T Comcast Corporation or (iv) any subsidiary or representation of the foregoing prove to be materially incomplete, untrue or inaccurate in any respect, it shall be deemed a material breach of the Franchise Documents and applicable law, including, without limitation, revocation or termination of the Franchises. Section 5. This Resolution shall not be construed to grant or imply the Municipalities' consent to any other transfer or assignment of the Franchises or any other transaction that may require the Municipalities' consent under the Franchises, or applicable law. The Municipalities reserve all its rights with regard to any such transactions. Section 6. This Resolution is a final decision of the Transfer Application within the meaning of 47 U.S.C.§ 537, however, as and between the Commission and the Municipalities, and pursuant to the Joint and Cooperative Agreement between the Municipalities, the Resolution of the Commission is a recommendation to the Municipalities which shall be ratified or modified as the Municipalities see fit at the next meeting of the Municipalities. Section 7. The transfer of control of the Franchise from AT&T to AT&T Comcast Corporation shall not take effect until the consummation of the Proposed Transaction. Section 8. This Resolution shall be effective immediately upon its adoption by the Commission, subject to review and modification by the Municipalities. Adopted by the Burnsville/Eagan Telecommunications ommission this 24th day of July, 2002. -~----, Al filler, Chair ATTEST: /~~~~ 8 SEVERSON, SHELDON, DOUGHERTY & MOLENDA, P.A. TO: Tom Hedges, City Administrator FROM: Michael G. Dougherty, City Attorney DATE: July 25, 2002 RE: Revisions to Sign Ordinance Pursuant to our discussion and Council member CarLson's e-mails, including one of today's date, our office has revised Chapter 4 of the City Code, which deals with the placement of signs based upon functional classification of streets and existence of trails. The proposed revision attempts to meet the suggestions raised in the a-mail with one significant exception, that being its application solely to residential properties. The revisions, in certain instances, deviate significantly from past City policy. While the revisions stem from campaign or election signs, the code applies to all signs. The revised language would permit the placement of any non-business sign within the local street right-of--way, e.g. garage sale signs. The City Code has always precluded the placement of signs in the right-of--way. Typically, the right-of--way extends thirteen feet beyond the curb. A sign placed ten feet back from the curb will be within the local street right-of--way. The proposed revision expressly allows the signs within the local street right-of--way, which revision also impacts the setback provision of signs on private property. Since a sign may be permitted in aright-of--way adjacent to private property, there is no basis for the City requiring aten-foot setback for the location of non- business signs on private property. Permitting signs within the City's right-of--way also allows signs to be placed on fences. Previously, a sign had to be located ten feet back from the property line. Since a fence is generally located on the property line, a sign was prohibited from being attached to a fence. The proposed revision will allow signs to be located on fences. The proposed revisions to Chapter 4 do not include any reference to the placement of signs wtihin the State or Couirty right-of--ways. While recognizing that neither the State nor the County permits the placement of signs within its right-ofways, neither the present code nor the preexisting code addressed such signs. 9 Hedges July 25, 2002 Page 2 The proposed revision does not distinguish between residential or commercial properties. The reason this item was not included in the revision is that it would be difficult to sustain an ordinance that would allow non-commercial free speech to occur only adjacent to residential properties. We are unawaze of any circumstance that could support discrimination in the regulation of speech within. the public right-of--way based upon the type of use adjacent to the roadway. Finally, a City may place reasonable restrictions on free speech, which includes signage. Any challenge to the City's regulation will be strictly scrutinized by the courts, particularly as it relates to non-commercial speech. To the extent that the proposed revisions create differing standazds for the placement of signage due to the functional classification of streets and whether a trail exists, the Council should discuss, for the record, the relationship of the differing standazds to the health, safety and welfare being promoted by the regulation. MGD/jlt ORDINANCE NO. 2ND SERIES AN ORDINANCE OF THE CITY OF EAGAN, MINNESOTA, AMENDING EAGAN CITY CODE CHAPTER FOUR ENTITLED "CONSTRUCTION LICENSING, PERMITS AND REGULATION" BY AMENDING SECTIONS 4.20, SUBD. 1 AND SUBD. 3 REGARDING GENERAL SIGN STANDARDS; AND BY ADOPTING BY REFERENCE EAGAN CITY CODE CHAPTER 1 AND SECTION 4.99. The City Counc~ of the City of Eagan does ordain: Section 1. Eagan City Code Chapter Four is hereby amended by adding Section 4.20, Subdivisions 1(Cx12) and (13) to read as follows: 12. Local street means a street within the City, which is not fianctionaity classified within the C'rt~s Comprehensive Guide Plan as a pric~cipal arterial. "A" minor arterial, `B" minor arterial, major collector or minor collector. l3. Trail mean any paved surface within the public ri t-of--way, outside of the paved street surface, used by pedestrians and cyclists. Section 2. Eagan City Code Chapter Four is hereby amended by changing Section 4.20, 5ubd. 3(B) to read as follows: B. Location to property line. No business sign shall be located neazer than ten feet from any property or dividing line. Section 3. Eagan City Code Chapter Four is hereby amended by changing Section 4.20, Subd. 3(C) to read as follows: C. Placement within public right-of-way. No sign other than governmental signs, shall be located within a~ City owned public right-of--way, except as follows: ~tlal-tee 1. Residential name and address signs may be located within the public right-of- wa~when such signs are attached to mail boxes, private lampposts or the l~lce. 2. Non-business sins may be placedm the public right-of-way of a local street only if the sign is located more than 10 feet from the back of the street curb where no tr~a0 exists or more than 25 feet from the back of the curb where a trad exists. Sec ion 4. Eagan City Code Chapter 1 entitled "General Provisions and Definitions Applicable to the Entire City Code Including Penahy for Violation'" and Section 4.99, entitled "Violation a Misdemeanor" are hereby adopted in their entirety by reference as though repeated verbatim Section 5. Effective Date. T7vs ordinance shall take effect upon its adoption and publication according to law. ATTEST: CITY OF EAGAN City Coin By: Maria l~arels Its: City Clerk Date Ordinance Adopted: By: Patricia E. Awada Its: Mayor Date Ordinance Published in the Legal Newspaper: