HomeMy WebLinkAbout1985-1121 CATV Relief Ordinance, Relating to Cable Television Service, Changing the Requirements of the City's Cable Communications Ordinance (Ord. No. 1980-1120) ORDINANCE NO. 1121
AN ORDINANCE RELATING TO. CABLE
TELEVISION SERVICE, PROVIDING FOR
MODIFICATION OF THE REQUIREMENTS
OF THE CITY' S CABLE COMMUNICATIONS
ORDINANCE
THE CITY OF EDINA, MINNESOTA DOES ORDAIN:
SECTION 1. SHORT TITLE.
This ordinance shall be known as the "CATV Relief Ordinance. "
SECTION 2 . BACKGROUND AND PURPOSE .
The City has granted a cable television franchise through the
adoption of city ordinance No. 1120 , the Cable Communications
Ordinance (hereinafter called the "Franchise") . The cities of
Eden Prairie, Minnetonka, Hopkins and Richfield (the "Other
Cities") have adopted similar ordinances , all with the same
franchise Grantee. Through the Southwest Suburban Cable
Commission ("SWSCC") , a joint powers organization, the City
and the Other Cities have undertaken to supervise Grantee ' s
compliance with these ordinances.
Since the adoption of the Franchise Grantee has constructed and
is operating a cable communications system in City and the Other
Cities. Grantee has approached the City indicating that it is
experiencing serious financial difficulties and would be unable
to pay the franchise fee due and payable on November 1, 1984 .
Grantee requested a temporary reduction of its Franchise
obligations to allow for its financial recovery.
City authorized the SWSCC to review Grantee ' s request and make
recommendations for an appropriate response. SWSCC retained
a financial consultant to assist in analyzing Grantee 's financial
condition, held several public meetings, and conducted a thorough
review of Grantee ' s request. SWSCC determined that Grantee is
experiencing serious financial difficulties caused by such
adverse factors as higher than anticipated construction and
operating costs, lower than projected market penetration, in-
ability to obtain long-term financing at projected rates and
other industry, economic and technological changes. SWSCC also
concluded that Grantee cannot secure needed refinancing of its
long-term debt, cannot continue to provide the present level
of service and cannot become an economically viabl-e enterprise
unless the City grants a period of relief from some of the
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requirements of the Franchise.
SWSCC recommends that the City grant temporary amendments
to the Franchise, reducing the franchise fee payable now
and in the future, eliminating the required performance bond,
and modifying the provisions for local programming. In
return, Grantee would execute a Performance Agreement pro-
viding a means for monitoring Grantee's financial condition,
assuring an adequate level of local programming, and providing
for certain other matters related to Grantee's requested
relief.
The City has reviewed SWSCC's recommendations and has considered
the option of requiring full payment of the past due franchise
fee through use of Grantee's letter of credit, performance bond,
and parent company performance guarantees. Grantee represents,
however, that if the City and the Other Cities seek payment of
past due franchise fees through resort to such securities, this
would only make it more difficult for Grantee to solve its
financial problems and would be counterproductive to any effort
to provide relief to Grantee.
In adopting this ordinance the City relies upon the represen-
tations of Grantee and seeks to provide a means by which the
public can continue to receive approximately the same level
of service while affording Grantee a reasonable opportunity for
financial recovery. The ultimate purpose of this ordinance is
to secure, at a later time during the Franchise term, the full
public benefits provided for in the Franchise.
SECTION 3 . RELATIONSHIP TO CABLE COMMUNICATIONS ORDINANCE.
This ordinance does not permanently amend any provision of the
Cable Communications Ordinance (the "Franchise") but provides
that certain provisions of that ordinance are modified for a
period of time as provided in this Relief Ordinance. Except
as expressly modified in this ordinance, the provisions of the
Franchise remain in full force and effect.
SECTION 4 . DEFINITIONS .
Subdivision 1. The definitions in the Franchise also apply
to this ordinance.
Subd. 2 . In addition, the following words and phrases shall
have the meanings given them:
(1) "Existing indebtedness" means an $18, 000, 000 loan made
to Grantee to Toronto Dominion Bank of Toronto, Canada under
loan documents dated April 1, 1982.
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(2) "Franchise" means the Cable Communications Ordinance
as now or hereafter amended.
(3) "Local Programming Obligations" means, for the purpose
of this ordinance, Grantee ' s obligations under the Franchise
and the Offering for cablecast access, community access and
local origination programming.
(4) "Performance Agreement" means a contractual agreement
between Grantee, City and SWSCC providing a means for monitoring
Grantee ' s financial condition, assuring an adequate level of
local programming, and providing for certain other matters
related to Grantee 's requested relief.
SECTION 5 . RELIEF GRANTED.
While this ordinance is in effect the obligations of Grantee
are modified to the extent provided in this section.
Subdivision 1 . Franchise Fees - Percentage.
Commencing with Grantee 's fiscal year 1985 the annual franchise
fee is reduced from 5% of Gross Revenues to 3% . Such annual
fees shall be paid to City in equal quarterly payments on or
before the first day of each of the months of November, February,
May and August next following the end of Grantee 's fiscal year .
If this ordinance terminates during any of Grantee 's fiscal years,
the franchise fee shall be restored to the rate of 5% of Gross
Revenues at the end of the calendar month in which termination
occurs. The restored rate of 5% and the reduced rate of 3% shall
be applied respectively to the Gross Revenues collected only in
the months during which each rate was in effect. The flies
accruing at the restored rate shall be paid in accordance with
the terms of the Franchise. The fees accruing at the reduced
rate shall be paid in equal quarterly installments in accordance
with the terms of this ordinance.
Subd. 2 . Past Due Franchise Fees. The 1984 franchise
fee in the amount of $103 ,055 payable on or before November 1,
1984 shall be deemed fully discharged and paid if , but only
if, Grantee pays the sum of $61 ,833 to the City, in four
equal payments on or before June 1 , June 15 , August 15 and October
15 , 1985 .
Subd. 3 . Letters of Credit. The City Council may by
resolution reduce the required amount of the Letter of Credit
below $50 ,000 if in its sole discretion it determine: that a
lesser amount is reasonable and adequate to protect the public.
It may thereafter, by resolution, require the amount of the
Letter of Credit to be increased or fully restored to the amount
of $50 ,000 . Grantee shall comply with this requirement within
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sixty days after written notice has been given by the City.
Subd. 4 . Performance Bond. The Grantee may dispense
with the $300 ,000 performance bond required by the Franchise.
The City Council may thereafter by resolution require that
such bond, or a similar bond in a lesser amount, be provided
by Grantee. Grantee shall comply with this requirement
within sixty days after written notice has been given by the
City.
Subd. 5. Local Programming Obligations . Grantee shall
expend at least 1% of its annual Gross Revenues each fiscal
year in fulfilling its Local Programming Obligations under
the Franchise for public, governmental, and educational access,
and under the Contract For Local Programming Facilities between
Grantee and SWSCC. That amount shall not include any costs of
operation or administration not directly related to the pro-
vision of local programming. That amount shall be and is a
minimum expenditure by Grantee to fulfill its Local Programming
Obligations.
SECTION 6. AUTOMATIC TERMINATION OF RELIEF ORDINANCE
PROVISIONS.
The provisions of this ordinance, and the relief herein granted,
shall cease to be effective, automatically, upon the occurrence
of the earliest of any of the following events:
Subdivision 1 . Failure of the Grantee to complete
refinancing its Existing Indebtedness by December 31, 1987
in accordance with Article II, Section 4 of the Franchise .
Subd. 2. The end of the next month after Grantee has
collected cumulative Gross Revenues in the amount of one
hundred million dollars as measured from September 1, 1984 .
The determination of cumulative Gross Revenues shall be based
upon audited financial statements for periods for which they
are available and upon Grantee' s operating reports for periods
for which audited statements are not then available. Grantee
shall provide City with its financial statements and financial
operating reports promptly after they are prepared.
Subd. 3. March 1, 1992.
Subd. 4 . Payment, discharge, or satisfaction of the
Existing Indebtedness, except through refinancing as provided
in Article II, Section 4 of the Franchise .
Subd. 5. Payment, discharge, or satisfaction of the
indebtedness arising from the refinancing provided in Article
II, Section 4 of the Franchise.
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Subd. 6 . Failure of the Grantee to restore or replace
the full required amount of the Letter of Credit as provided
in Article VIII, Section 4, paragraph H of the Franchise.
Subd. 7 . Failure of the Grantee to pay the fees as
required in Section 5, Subd. 2 of this ordinance.
Subd. 8. Failure of the Grantee to restore, replace or
increase either a Letter of Credit or bond within sixty days
of written notice by the City, as provided in Section 5,
Subdivisions 3 and 4 of this ordinance.
Subd. 9 . A holding or determination by any court or
agency that any term, condition or provision of this Relief
Ordinance is invalid or unenforceable, as a result of any action
taken by Grantee or anyone acting on Grantee's behalf seeking
such determination.
Subd. 10 . Sale or transfer of all or substantially all
of the System to a person or entity other than a parent,
subsidiary, related corporation, affiliated corporation, partner
or joint venturer of Grantee or any parent of Grantee.
Subd. 11 . Termination of the Franchise.
SECTION 7 . OTHER TERMINATIONS.
This ordinance may also be terminated for cause, under the
same procedures for termination as are contained in the
Franchise, for the following reasons:
Subdivision 1. All grounds for termination provided in
the Franchise, except to the extent that Grantee 's performance
obligations are modified in this ordinance.
Subd. 2 . The purchase by Grantee, its general partner,
or any parent, subsidiary, affiliate or other related
corporation of Grantee or its general partner, of a cable
communications system or any part thereof or interest therein,
located within the seven-county metropolitan area as defined
in Minnesota Statutes, Section 473.121, Subd. 2 . For this
purpose the definition of a cable communications system shall
be as that term is currently defined by the Board.
Such a purchase shall not be grounds for termination of this
ordinance, however, if the Grantee demonstrates to the
reasonable satisfaction of the City that the purchase (1)
will not impair the operating cash flow or financial position
of Grantee and (2) will involve independent financing of the
purchase without resort to the assets of the System.
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Subd. 3 . Failure of the Grantee to comply with any
of the provisions of the Performance Agreement.
SECTION 8 . REQUESTS FOR FURTHER RELIEF.
No request by the Grantee for any further relief from the
requirements of the Franchise , including a request for an
extention of the term of this ordinance, shall be considered
by the City unless that request is made in writing prior to
September 1, 1990 . The City shall have no obligation what-
soever to consider or grant any such request, and any response
to such request shall be at the sole discretion of the City.
SECTION 9 . ACCEPTANCE OF THIS RELIEF ORDINANCE : PROVIDING
OF GUARANTEES .
This ordinance shall be effective in accordance with the
provisions of Article XIV of the Franchise including delivery
to the City of the acceptance, opinion of legal counsel,
guarantees and other documents as required by said Article
XIV; provided further, however, that it shall become effective
only if all of the Other Cities adopt an ordinance similar to
this ordinance within 90 days after adoption of this ordinance.
Also, this ordinance shall not become effective until Grantee ,
City, SWSCC and the Other Cities have executed and delivered
the Performance Agreement and contractual documents attached
thereto as exhibits .
First Reading: April 15 , 1985
Second Reading: May 20 , 1985
Published March 19 , 1986
City of Edina, Minnesota
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ATTEST: By
M o
i
By ,per
City Clerk Manager
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HERBST & THUE, LTD.
ATTORNEYS AT LAW
2030 NORTHWESTERN FINANCIAL CENTER
7900 XERXES AVENUE SOUTH
ADRIAN E. HERBST TELEPHONE
DANIEL D. THuE BLOOMINGTON, MINNESOTA 55431-1178 (612) 835-2434
GARY R. MATZ
JOHN F. GIBBS
TOM TOGAS
DIANE M. SCHMIDT May 14, 1986
JOHN M. STANOOH
RICK E. MATTOX
REESE E. GHEZICK
Marsala Daehn
City Clerk
City of Edina
4801 West 50 Street
Edina, Minnesota 55424
RE: Southwest Suburban Cable Commission
Our File Number 84-210OG
Dear Marsala:
Pursuant to your telephone conversation today with my
office, I am sending you a photocopy of the following
documents from the closing with Rogers last August.
1. Opinion Letter of David Jones of the Popham, Haik
Law Firm;
2 . Acceptance Agreement signed by Rogers.
Very truly yours,
05L
Adrian E. Herbst
AEH:pms
Enc.
POPHAM, HAIK, SCHNOBRICH, KAUFMAN & DOTY, LTD.
4344 IDS CENTER
MINNEAPOLIS, MINNESOTA 55402
TELEPHONE AND TELECOPIER
612-333-4800
WAYNE G. POPHAM CLIFFORD M.GREENE JOHN C.CHILDS 1240 AMHOIST TOWER
ROGER W. SCHNOBRICH D.WILLIAM KAUFMAN DOUGLAS P. SEATON 345 ST. PETER STREET
DENVER KAUFMAN MICHAEL 0. FREEMAN THOMAS E. SANNER SAINT PAUL,MINNESOTA 55102
DAVID S. DOTY THOMAS C. D�AOUILA BRUCE B. McPHEETERS TELEPHONE
ROBERT A. MINISH LARRY D. ESPEL GARY D.BLACKFORD 612-333-4878
ROLFE A.WORDEN JANIE S. MAYERON SCOTT E.RICHTER
G. MARC WHITEHEAD THOMAS J. BARRETT GREGORY L.WILMES
BRUCE D.WILLIS JAMES A. PAYNE ELIZABETH A.THOMPSON 2060 PETRO-LEWIS TOWER
FREDERICK S. RICHARDS DAVID A.JONES KEITH J. HALLELAND 717 SEVENTEENTH STREET
G. ROBERT JOHNSON LEE E.SHEEHY MARK B. PETERSON DENVER,COLORADO 60202
GARY R. MACOMBER LESLIE GILLETTE TIMOTHY W. KUCK TELEPHONE AND TELECOPIER
ROBERT S. BURK MICHAEL T. NILAN JULIE A.SWEITZER 303-292-2660
HUGH V. PLUNKETT,IIL ROBERT H. LYNN THOMAS C. MIELENHAUSEN
FREDERICK C. BROWN ROBERT C. MOILANEN KATHLEEN A.BLATZ SUITE 300 SOUTH
THOMAS K. BERG STEVEN G. HEIKENS MICHAEL D.CHRISTENSON
BRUCE D. MALKERSON THOMAS F. NELSON J.MICHAEL SCHWARTZ 1800 M STREET, N.W.
JAMES R.STEILEN THOMAS J. RADIO LARAYE M.OSBORNE WASHINGTON, D. C. 20036
JAMES B. LOCKHART DAVID L.HASHMALL OF COUNSEL TELEPHONE (202) 828-5300
ALLEN W. HINDERAKER KATHLEEN M. MARTIN FRED L.MORRISON TELECOPIER (202) 828-5318
August 2 , 1985
City of Edina
Edina City Hall
4801 W. 50th Street
Edina MN 55424
Re: Rogers Cablesystems of Minnesota Limited Partnership,
a Minnesota Limited Partnership
Our File No , 6904-001
The Honorable C. Wayne Courtney and Members of the City Council:
We have acted as counsel to Rogers Cablesystems of
Minnesota Limited Partnership, a Minnesota limited partnership
(the "Partnership" ) in connection with the preparation, execution
and delivery of: (i ) the Acceptance dated August 2 , 1985 (of
Franchise for a Cable Communications System in the City of Edina
and Amendments thereto and including the Relief Ordinance) , ( the
"Acceptance" ) ; ( ii ) the Agreement of Joint and Several Liability
of Rogers Cablesystems , Inc. ( "Rogers" ) and Rogers U. S.
Cablesystems , Inc. ( "RUSCI" ) dated August 2 , 1985 , (the
"Agreement" ) ; and ( iii ) all other documents including the
Performance Agreement ( "Performance Agreement" ) together with
Exhibit A ( "Facilities Agreement" ) and Exhibit B ( "Services
Agreement" ) dated August 2 , 1985 and executed and/or delivered by
the Partnership in connection with the Agreement or the Acceptance
(the "Other Documents" ) .
In that connection , we have examined (a ) the Limited
Partnership Agreement and the Certificate of Limited Partnership
of the Partnership dated June 11 , 1980 , and all amendments
thereto, as filed of record in both Hennepin county, Minnesota and
with the Secretary of State of the State of Minnesota; (b )
Certificate of Incorporation of RUSCI, dated March 28, 1979 ,
City of Edina
August 2 , 1985
Page Two
and all amendments thereto, as filed with the Secretary of State
of the State of Delaware; (c) the Articles of Incorporation of
Rogers Cablesystems of Minnesota, Inc. , ( "RCMI " ) the general
partner of the Partnership, dated October 24 , 1979 , and all
amendments thereto, as filed with the Secretary of State of the
State of Minnesota; (d) the Bylaws , as amended, of RUSCI and RCMI ;
(e) the minutes of the meeting of shareholders and directors of
RUSCI and RCMI; (f ) the Acceptance, Agreement, and Other
Documents, and other instruments and such laws and regulations as
we have deemed necessary to render this opinion . As to matters
related to Rogers , except as to enforceability under Minnesota
law, we have relied upon the opinion of Mssrs . Lang, Michener ,
Cranston, Farquharson & Wright, Toronto, Ontario , Canada, General
Counsel to Rogers, a copy of which is hereto attached.
Based upon such examination and such other considerations
of law and facts as we believe to be relevant, including factual
representations made to us by RUSCI and RCMI , we are of the
opinion that:
1 . The Partnership is a limited partnership duly formed
and validly existing under and pursuant to the Minnesota Uniform
Limited Partnership Act ( "Act" ) and has the power and authority to
transact business in the State of Minnesota;
2 . The execution and delivery of the Acceptance and the
Other Documents by the Partnership are within the Partnership's
power , have been duly executed and delivered, and have been duly
authorized by all necessary corporate and partnership action and
the persons executing the Acceptance and the Other Documents on
behalf of the Partnership and otherwise performing the obligations
of the Partnership thereunder have the power and authority to act
for and on behalf of the Partnership. The Partnership has all
requisite power and authority to conduct its business , to own its
properties, and to execute and deliver , and to perform all of its
obligations under the Agreement, the Acceptance and the Other
Documents;
3 . The Acceptance and the Other Documents are legal , valid
and binding obligations of the Partnership enforceable against the
Partnership in accordance with their respective terms , the making
and performance of which have been duly authorized by all
necessary corporate, partnership and other action , and the
carrying out of the transactions contemplated thereby does not and
will not violate , conflict with or constitute a default under the
terms of the Limited Partnership Agreement of the Partnership.
City of Edina
August 2 , 1985
Page Three
4 . RUSCI is a corporation duly existing and in good
standing under the laws of the State of Delaware, Rogers is a
corporation duly existing and in good standing under the laws of
Canada and RCMI is a corporation duly existing and in good
standing under the laws of the State of Minnesota . The execution
and delivery of the Agreement by RUSCI and Rogers ( the "Obligors" )
of their obligations under the Agreement are within Obligors '
corporate powers, and have been duly authorized by all necessary
corporate action and the persons executing the Agreement and
otherwise performing the obligations of Obligors thereunder have
the power and authority to act for and on their behalf. Obligors
have all requisite power and authority, corporate or otherwise, to
conduct their business and to execute and deliver , and to perform
all of their obligations under the Agreement . The Agreement has
been duly executed and delivered by the Obligors and is the legal,
valid and binding obligation of Obligors enforceable against
Obligors in accordance with its terms , the making and performance
of which have been duly authorized by all necessary corporate and
other action , and the carrying out of the transactions
comtemplated thereby does not and will not violate, conflict with
or constitute a default under the terms of their respective
articles of incorporation or bylaws .
5 . The Performance Agreement is a legal , valid and binding
obligation of RUSCI enforceable against RUSCI in accordance with
its terms , the making and performance of which has been duly
authorized by all necessary corporate action. The persons
executing the Performance Agreement and otherwise performing
RUSCI 's obligations under the Performance Agreement have the power
and authority to act for and on behalf of RUSCI . The carrying out
of the transactions contemplated by the Performance Agreement does
not and will not violate, conflict with or constitute a default
under the terms of RUSCI 's articles of incorporation or bylaws .
6 . There is no action , suit or proceeding pending,
threatened or affecting the Partnership or the properties of the
Partnership before any court or governmental department,
commission, board, bureau, agency or instrumentality which , if
determined adversely to the Partnership would have a material
adverse effect on the execution or validity of the Acceptance, or
Other Documents , or on the ability of the Partnership to perform
its obligations under the Franchise, Acceptance of Other Documents;
r
City of Edina
July 2 , 1985
Page Four
we express no opinion concerning the applicable laws of
bankruptcy, insolvency or similar laws affecting the rights of
creditors generally.
POPHAM, HAIK, SCHNOBRICH, KAUFMAN
& DOTY, LTD.
1652B By David A. Jones
ACCEPTANCE
(OF FRANCHISE FOR A CABLE COMMUNICATIONS SYSTEM
IN THE CITY OF _ Edina, Minnesota I
AND AMENDMENTS THERETO, AND OF THE RELIEF ORDINANCE)
WHEREAS , the City of ____ Edina, Minnesota
a Minnesota municipal corporation (the "City") , by action of
its governing body on December 29- _----__-� 1980, adopted
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a Cable Communications Franchise Ordinance (the
"Franchise") , which is now recorded in the ordinance books
of the City as Ordinance No. 1120 , granting to Minnesota
Cablesystems - Southwest , a Minnesota Limited Partnership,
with Minnesota Cablesystems , Inc. , a Minnesota corporation,-
as General Partner, a nonexclusive franchise to contract,
operate and maintain a cable communications system (the
"System") within the City; and
WHEREAS, the City has now amended the Franchise by
Ordinance Nos .1120_Al 1120-A2and1120_Aj adopted on _June 6,_1983 ,
September 19, 1983 and May 20, 1985 -_-_, respectively
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(together called the "Amendments") ; and
WHEREAS, by the most recent of said Amendments, the
name of the Grantee was changed to Rogers Cablesystems of
Minnesota Limited Partnership, a Minnesota limited
partnership, with Rogers Cablesystems of Minnesota, Inc. , a
Minnesota corporation, as the General Partner (hereinafter
called the "Grantee") ; and
WHEREAS , the City by action of its governing body on
----- May 20 ------ : 1985 , adopted Ordinance No. 1121
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(the "Relief Ordinance") , which grants certain temporary
relief to Grantee from some of the financial and programming
obligations imposed on Grantee by the Franchise, as amended
by the Amendments ; and
WHEREAS, the City has required that Grantee accept, in
writing, and in form and substance acceptable to City, the
Franchise, as amended by the Amendments, and the Relief
Ordinance, before the most recent of the Amendments or the
Relief Ordinance become effective.
NOW, THEREFORE, pursuant to the terms and requirements
of the Franchise and Amendments, and in consideration of the
grant of the Franchise by City to Grantee, the adoption of
said Amendments and the adoption of the Relief Ordinance,
Grantee does hereby accept the Franchise, each and all of
the Amendments and the Relief Ordinance, and does hereby
make the following representations and warranties to, and
agreements with, City:
1 . Grantee agrees to be bound by the Franchise, as
amended by the Amendments, the Offering (as defined in the
Franchise) , and the Relief Ordinance, and to timely and
fully perform and fulfill the terms , provisions and
conditions of the Franchise, as so amended, the Offering,
and the Relief Ordinance, to be performed and fulfilled by
it.
2. Grantee agrees to provide, and warrants and
represents that it is able to provide, all services and
offerings set forth in the Franchise, as so amended, and in
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the Offering, and in the Relief Ordinance, agrees to be
bound by and to timely and fully perform and fulfill all of
the agreements, provisions, promises, offers,
representations and inducements contained in the Franchise,
as so amended, the Offering, and the Relief Ordinance. The
Offering is hereby incorporated herein in full as if fully
set forth herein.
3. Grantee agrees that it is and shall be subject to
the regulatory authority of City as set out in the
Franchise, as now amended, and as the Franchise may, from
time to time, hereafter be supplemented or amended.
4. Grantee understands and agrees that the Offering
is specifically set out in the Franchise only in part, and
that the whole of the Offering is incorporated in the
Franchise by reference. Therefore, Grantee agrees that City
may, at any time and from time to time, amend the Franchise
by the sole act of City, and without acceptance or agreement
by Grantee, to include in the Franchise, effective as of the
date of commencement of the Franchise term, any one or more
specific provisions of the Offering not then specifically in
the Franchise.
5 . No legislation or regulation passed by any
legislative body or administrative agency subsequent to the
grant of the Franchise, as so amended, or of the Relief
Ordinance, shall relieve Grantee of any obligations under
the Franchise, as so amended, or the Offering, or the Relief
Ordinance, or the duty of complying, in all respects , with
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the terms and conditions of the Franchise, as so amended,
the Offering, and of the Relief Ordinance. Also, Grantee
agrees that it will not seek to have any legislative or
administrative body, other than City, preempt or otherwise
modify the terms of the Franchise, as so amended, or of the
Relief Ordinance. However, this provision shall not be
construed to deny Grantee the right to participate in
federal or state legislative or administrative rule making
procedures considering the adoption of legislation or rules
of general application.
6. Grantee agrees to cooperate fully with City in
obtaining from any governmental agency all licenses,
permits, and other authority, necessary for the
construction, operation and maintenance of the System
pursuant to the Franchise, as now or hereafter amended.
7 . Grantee represents , warrants and guarantees that
neither it, nor its representatives or agents, have
committed any illegal acts or engaged in any wrongful
conduct contrary to, or in violation of, any federal, state
or local law or regulation in connection with operation of
the System, or the obtaining of any of the Amendments or of
the Relief Ordinance.
8. Grantee further warrants and represents as
follows:
A. That it is a limited partnership under the
laws of Minnesota, and has full right and authority to
enter into and fully perform the Franchise, as so
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amended, the Offering, the Relief Ordinance, and this
Acceptance; that all partnership and corporate action
required to authorize the execution and delivery of the
Franchise, as amended, the Relief Ordinance, and this
Acceptance, and all other documents to be executed
and/or delivered by Grantee pursuant to the Franchise,
as so amended, the Relief Ordinance, and this
Acceptance, and to authorize the performance by Grantee
of all of its obligations under the Franchise, as so
amended, the Offering, the Relief Ordinance, and this
Acceptance, and all such other documents to be executed
and/or delivered by Grantee, have been validly and duly
taken and are in force and effect; and that the
Franchise, as so amended, the Relief Ordinance, this
Acceptance, and all such other documents executed
and/or delivered by Grantee, have been duly executed
and delivered by Grantee and the terms of each thereof
are fully binding upon and enforceable against Grantee;
B . That Grantee has the fiscal and construction
capability to commence, complete, operate and maintain
the System pursuant to the terms of the Franchise, as
so amended, and the Relief Ordinance;
C. That Rogers Cablesystems of Minnesota, Inc.
("Minnesota") is a Minnesota corporation and is the
only general partner of Grantee, and was formerly known
as Minnesota Cablesystems, Inc. ;
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D. That Minnesota is a wholly-owned subsidiary
of Rogers U. S . Cablesystems , Inc. ( "U. S . ") , a Delaware
corporation, that U. S . was formerly known as U. S.
Cablesystems , Inc. , and that U.S . is a wholly-owned
subsidiary of Rogers Cablesystems, Inc. , a Canadian
corporation, which was formerly known as Canadian
Cablesystems, Limited; and
B. That Grantee and Minnesota are authorized to
do business in Minnesota, and are in good standing in
Minnesota.
9. Grantee has agreed, by this acceptance, to the
fees , rates , rate change procedures and standards for review
of rates and rate changes, in the Franchise, as so amended,
and in the Relief Ordinance, to the extent not inconsistent
with the Cable Communications Policy Act of 1984. Also,
Grantee agrees that City can use and consider in evaluating
any rate change, among other things, the tax benefits
received by Grantee, its partners, shareholders, and others ,
as a result of investments in the System, and the cash flow
derived from the System.
10. Grantee further agrees to hold City and Southwest
Suburban Cable Commission ( "SWSCC") and their respective
officers , agents , employees and representatives , harmless
from and indemnified against any and all loss, cost , damage
and expense, including, without limitation, attorneys' fees ,
now or hereafter incurred by them, or either of them, and
arising out of or due to, or claimed to arise out of or be
-6-
due to, the grant of the Franchise, as so amended, or the
Relief Ordinance, to Grantee or the process followed by City
and SWSCC in granting the Franchise, the Amendments, or the
Relief Ordinance.
11. Grantee agrees that all agreements,
representations and warranties set forth herein, in the
Franchise, as so amended, in the Offering, or in the Relief
Ordinance, shall be binding upon it and its successors and
assigns , and shall inure to the benefit of City and its
successors and assigns .
IN WITNESS WHEREOF, Grantee has caused this Acceptance
to be duly executed and delivered this -c:,2 -7 day of
- -----------� 1985.
ROGERS CABLESYSTEMS OF MINNESOTA
LIMITED PARTNERSHIP,
a Minnesota Limited Partnership
By: ROGERS CABLESYSTEMS OF
MINNESOTA, INC. ,
the Ge7l Partner
By----- --- -- --------------
Its-------6_ ----------
And
--------------------------
Its
------------------------
STATE OF MINNESOTA)
) ss.
COUNTY OF HENNEPIN)
The foregoing instrument was subscribed and sworn to
before me this Q2_7 day of _ _ _ ________1 1985, by
-7-
and -----------------------
and------- ----------------
the --� ---------------- - and the -------------=
-----------, respectively, or Rogers Cablesystems of
Minnesota, Inc. , a Minnesota corporation, the General
Partner of Rogers Cablesystems of Minnesota Limited
Partnership, a Minnesota Limited Partnership, on behalf of
said limited partnership.
■ : '1 PATRICIA M.STEINMAN Notary Public
`�j,, NOTARY PUBLIC-MINNESOTA
., t DAKOTA COUNTY
My Commission Expires Jan. 11. 1991 y
-8-
..
� ma 8 iin sota 55424
RpI_
N ORII A TI,
-'V*OPID1Nb 1CA__ �,. .IAF
,C'�T�? YlONS OR
TL3 Y O FfI lT S $F?
SEC1'L01�1 SlT [TLE4p,
�
T s ardipan a hal�l�Ito a r TZ Re
S A� AO TIAPOS,�t.=
�t as granted a. � franchise t
ci di>M 'e, No 1120 irlumcatfons r
c e ,the�`Franchiae ea;s en,�Iarn
an IlichfieId(the,tOt ad4qpkgdsi � r„.' ,
the same f�anchfse G�anE Th tie 3oiittiwg ,
mtaon ( 6WSCG } aomt power organization r
Ciftd 'ha¢�underCakehyta supervise ra 6e cogii F ti e
ordivarces ;•� � ,,� � �yes; y {
Since the adop ion o "the Franc, se G'ranfee � ft
opgr$ting a cable commudicatmns�� �n.�aty an ` >��-, s�'
Grantee has approached tiCe CityifEd,
'Stit is epe n
fm�aifcial d�fficultis an¢w¢uld[ie tito pyy Fh
payable onNovevi erl"I984-Grapteer esteda emt p�
Franchise pbbgz tions tofall lyv for its c aL gc � m
�y authnrizgd the S�
re mmendaau s fora o a ase a '
consWtant o aasist c��' Ema
public meehggn d enh rated vat int`
SV C`deter - at ee is; egem9
ca by aosis;
op 5tg�oststttihitii-
I o r mauci, r" ec in
to lugi -I cha Chat G tee
nee ed r anchig get ' anuat eon fie ro
present lel:,of servti d;e a Konom"._y V1 cera
untess theCity grants f pgrrr ti F e sone V th&req cots off .rt
Franchise: t>a irt`
S4FSCC recomniens"� i a ary,,amen en s to
Ft�ehise. redue% ffie`. 'and
t
elf aqr g the regq ,pl a d amt Wo
laEprograrnmftr In Ietarn You a ac erfornta
Agreement proy'idiig a meaiiar g kua annus, t
assVngan.ad quatelevelaf c to a
other-mattersrated to Gra�pdt' e e"h'ef
The City has revi ' mend` eonstdere e
option of regmring,fig
m. b� ear gra fee heti u�
Grantees letter:of ci a rinance� n ent coin
forfnaiice guarante64 G epaesrsf at-.! e_C1k
OtIW-Cities seek payment Upartekaae BlrxeSa
securities this Wi&Fr ad�p rnafCe a ar�teg Ea
finanefal probho- and,can d be eounterpfo Rc i effort to;pro de
relieUto Grantee.: ` Esc
Ln a¢optuig is ordinance the t key reyies n[i rlthrepresenraaas
Grantee and seeks to provide a meatrs byywluch C e p ildic can go P141
receive appproximately Che same;te"ge�_o,f.sexTee whr eraEfording Gran e a!
reasenabte opportunity-for-'41�,ehover Txoate puRpos Ins«
ordinance is to secure at a t'a ei tfnee duruig Ette ise7erm
publicbenefits proftded frim Ehe larmrchx3e`
SECTMN S.' AELL[TPEFIYSIIIPiz'F# CAUL C09'6MFJMCATIONS'OR-.�
DMANCE.
This ordinance does not"peem9nentGyainend any psaieistos�of tEta+ i
Communications"Ordinance (the "Franchise") but provides that cerEa�
provisions
of that ordinance are modified for a period of time as Fr ed in
thisftelie[Ordinance. Except as expressly modifird imtfgsrard rfettlie;
provisions of the Franchise remain in full force and efEeet._�
",10N 4.DEFINITIONS.
Subdivision 1-The definitf`ank in the Franchise also apply Co flue arelmance 1.
Subd. 2. to'addition, the following words and phrase V aLl have the
meaning given them: '
(il."'Existing indebtedness aieans`an. 1 000,8001oanxnadetgk nteeto'!
Toronto Dominion Sank-of Toronto ;Ca under loaa doeurreeaPs dafed"
Apri11,1982_ " ..
(2)F"'Franchise' means the table`Garna,�,anid' ti•`ns madman ow or
hereafter amended
Cil;'"LocaPProgramming Obligations means Or pf this;
ordinance. Grantees obifgati¢a`s`un der the=FraLiefwse uflg for j
c fecast access,cam ceranity access and Coca]c rginatu m pr gaIIoistg,'
(4y�, Performance Agreement'-means a eon tactual agree a t'between
Grantee, City and SWSCproviding a means for monrwia pntee's
n
financial condition, assuring aadequate level of local programrat€ng;and
proavidingfo"ertain'other:inatters related to_Grahtee's ie'quesAtedielreE
$EPTtON S:RELIEF GRANTED. - ripi-6?
3ftl.Ie this ordinance is_iei effect the'obhgations of Grantee ai a modlfiedto
the ex€ent provided w his section -,4
Subdivision 1:Franchise Fees-Percentage.Commencing; Gtantees.
fiscal year 1985 the annabl fraiiehise fee is;reduced from "S -bf Gross
Revenges to 39'.Such aad ti4'al-fees shall be paid to Crtj,= u rEerly
payments on-or before the first day of each of the lnoiC bei,
Febivary,Play p�u stnefcL onvingthe°enda�Grah t ' ear
LC this ar¢ih nMe tY"t�ti"mates ditrtng any bf Grantees ars tie}'
franchise fee shall be restote'dto the rate of 5,e orf Groes es lthe end=�
of fbecalendar month in whi6h termination occurs The tnfiedt5ate of 5`.
and the reduced rate of 3% shall be applied respec�ve the Gross
Relcenlies collectedpnly m rthmonths during Yxhich eqqe__� t iu of€egt
The fees accruing at the restored rateshall"be:paid gi eeor a wtthEhA
to of the Franchise The fees accruing at tTie reduced rate shallbepa3d m4
eq`u"—arquasterly installments-m accordance with the terms.;of this oidinaaeer w,
Pastpue Franehu;e a 19 4anats im
SL03',D'S3"fra able aor e Foe ee,>aeully=�
dishasgeda paidsp° bntb�it�t: 1833 tothoeb(�1
infouc'equal a�ytffen 5tlpjrefore3uifie� r t�gu .: SatidOcC
Snb"Ef 3 LeCtfrof Cre a ytnril[e
d�elta�nouatof w s e
enines that;a k e o s r n r
public:Ft nia f e lu" utee Che b
Credit Cob�r�c
cdmply V40C -s w
B1Yek kY-khea t'..?. f
Suh 4 Fg� Gr e
periirrmancet b Fran
Cheieafter byre a euchboi ate'
amount beprdefi a Graictees
wetfiinsixtydays'aIt r-W.rit tic, a3b
Subd 5 Local Program �
of its annual Gross lie is
Programming Obligationstafldertl[e a se d, pu'
educational.access an{l in00",the' e�FTdi Lti alE
itWtjletwein Grantee an3;gWSC Th_ amoufik
oper4tion or admimstrat'".t1 not dleectty);elate to f
preutaLn� That t
G £futfilT4 - ga � m
'$i�AI
to
a �r�
P povisions 4f th ordinance aid tiifceIle f~ ri edtvwT
rra tC a
W`.74
`�—'� '�} w�ik a .::+•� '" ��4�, r �-.
jL
—
y-,
a---•"Pi"�e �, k � � C xnx2�_,,�'d e"S�.n� � �� �` 'S�,.h{-I
� v »
ria a5 kE, -
.
.w
AGREEMENT
OF
JOINT AND SEVERAL LIABILITY
THE CITY OF EDINA ("City") , and ROGERS CABLESYSTEMS OF
AMERICA, INC. ("RCA") , a Delaware corporation, and ROGERS
COMMUNICATIONS, INC. ("RCI") , a Canadian corporation, and Rogers
U.S. Cablesystems, Inc. , a Delaware corporation ("RUSCI") in
consideration of the grant of the Franchise (below defined) by
the City to Rogers Cablesystems of Minnesota Limited Partnership,
a Minnesota limited partnership ("Grantee") , and of the adoption
of the Relief Ordinance (below defined) , and the approval of
Grantee refinancing plan and extension of the term of the
Franchise (below defined) , agree as follows:
1. This Agreement supersedes that certain Agreement of
Joint and Several Liability entered into by and between City,
RCA, Rogers Cablesystems, Inc. ("Canadian") , and Rogers American
Cable Corporation ("RACC") and dated August 1, 1985.
2 . It is understood and agreed that the City has awarded a
nonexclusive cable communications franchise to. Grantee, pursuant
to the Cable Communications Franchise Ordinance, Ordinance No.
1120, as amended by Ordinance Nos. 1120-A1, 1120-A2, and 1120-A3
(the initial franchise, as so amended, is herein called the
"Franchise") , has granted certain relief to Grantee from some of
its obligations under the Franchise by a duly adopted Ordinance
No. 1121 (the "Relief Ordinance") , has adopted a Resolution,
dated May 20, 1986, approving the refinancing plan of Grantee and
a transfer in the controlling interest of Grantee and City and
- 1 -
Grantee have done all things required under Minnesota law to
permit the extension of the franchise of the Franchise term to
December 31, 1999, and City has received an Acceptance (Of
Franchise For a Cable Communications System (including the
extension of the Franchise term) in the City and Amendments
thereto, the Performance Agreement and of the Relief Ordinance)
signed and delivered by Grantee (the "Acceptance") , with the
understanding that the City will have the right to hold RCA,
RUSCI and RCI each jointly and severally liable for the full
performance of all of the obligations of Grantee under the
Franchise as extended to December 31, 1999, the Relief Ordinance,
the Performance Agreement and Acceptance and with the further
understanding that RCA and RUSCI have committed its resources and
credit, as available, from time to time to ensure the operating
viability of Grantee. RCA, RUSCI and RCI will each have the
identical obligation of Grantee under the Franchise through
December 31, 1999, the Relief Ordinance, the Performance
Agreement and Acceptance, neither more nor less. (The Franchise,
Relief Ordinance, Performance Agreement and Acceptance are herein
together called the "Franchise Documents. ")
3 . It is understood and agreed that the City has the right
to enforce any obligation, agreement, warranty, representation,
penalty or performance under the Franchise Documents, or any of
them, against either RCA, RUSCI or RCI, or all of them, without
the requirement that the City follow or use any different or
additional procedures as to RCA, RUSCI or RCI than the City would
as to Grantee. Notice to Grantee shall constitute notice to RCA,
- 2 -
RUSCI and RCI. Commencement of any enforcement procedure against
Grantee shall constitute commencement of any enforcement
procedure as to RCA, RUSCI and RCI.
4. It is intended that this is not a guaranty agreement but
rather an agreement of joint and several liability of RCA, RUSCI
and RCI to perform all and each of the obligations, agreements,
representations and warranties of Grantee set forth in the
Franchise Documents, or any of them, to pay all claims,
judgments and debts of Grantee arising in connection with the
Franchise Documents, or any of them, and to perform all offers,
representations, promises and inducements set forth in the
Offering of Grantee (as defined in the Franchise) .
5. This Agreement is an absolute and complete one, shall be
a continuing one, and shall not be revocable, and no notice of
any indebtedness, obligation or undertaking heretofore or
hereafter contracted or acquired by Grantee relating to the
Franchise Documents, or any of them, need be given to RCA, RUSCI
or RCI.
6. RCA, RUSCI and RCI agree that (i) the City need not use
due diligence, or effort of any nature whatsoever, to compel
performance by Grantee of any of its obligations under the
Franchise Documents, or any of them, or to collect any amounts
from or realize on any security held by, or for the benefit of,
the City, but may require performance or payment of such
obligations directly by RCA, RUSCI and RCI, or any of them, (ii)
that misfeasance or nonfeasance on the part of the City in
enforcing or not enforcing the obligations of Grantee under the
- 3 -
Franchise Documents, or any of them, or in seeking or not seeking
to realize on any security held by, or for the benefit of, the
City, shall not be a deference to RCA, RUSCI or RCI of their
respective obligations under this Agreement, or detract from or
negate any of the obligations of RCA, RUSCI and RCI under this
Agreement, and (iii) RCA, RUSCI and RCTs obligations under this
Agreement shall not be affected by the City obtaining additional
security, or guarantees, or other agreements similar to this
Agreement, or releasing, with or without consideration, any such
additional security, guarantees or agreements, relating to
performance by Grantee of its obligations under the Franchise
Documents, or any of them.
7. RCA, RUSCI and RCI hereby consent to the Franchise
Documents, the Offering of Grantee (as defined in the Franchise) ,
and all other documents executed and/or delivered by Grantee in
connection with the Franchise Documents (including, without
limitation, the letter of credit and bond now or hereafter given
pursuant to the Franchise) , being supplemented, amended, renewed,
or extended, with or without notice to RCA, RUSCI or RCI, and
RCA, RUSCI and RCI agree that they will remain unconditionally
bound to perform the obligations and agreements of Grantee under
the Franchise Documents, Offering of Grantee, and all such other
documents, including said letter of credit and bond, as so
supplemented, amended, renewed or extended.
8. RCA, RUSCI and RCI will pay to the City all costs,
including, without limitation, attorneys' fees, suffered or
incurred by the City in enforcing the City's rights under this
- 4 -
Agreement, whether suit be brought or not.
9. This Agreement will be governed, interpreted and
enforced pursuant to the laws of the State of Minnesota. RCA,
RUSCI and RCI hereby submit to the jurisdiction of the State and
Federal Courts in Minnesota in connection with all matters
arising under the Franchise Documents or any of them.
10. Any right or remedy hereby granted the City in this
Agreement which shall be found to be unenforceable for any reason
shall be several, and the other rights and remedies may continue
to be enforced. All rights and remedies of the City shall be
separate and cumulative, and the exercise of one shall not limit
or prejudice the exercise of any other remedy at the same time or
at a later time. Failure of the City to exercise any right or
remedy of the City shall not be deemed a waiver of that or any
other right or remedy.
11. This Agreement shall be binding on RCA, RUSCI and RCI
and the respective successors and assigns of RCA, RUSCI or RCI
and shall inure to the benefit of the City and the successors or
assigns of the City.
12 . Possession of this Agreement by the City shall be
conclusive evidence of delivery thereof by RCA, RUSCI and RCI to
City.
13 . The Franchise and Relief Ordinance shall not be
effective unless this Agreement is made and delivered to the
City.
14. RCA, RUSCI and RCI warrant and represent that Rogers
Cablesystems of the Southwest, Inc. , a Minnesota corporation, is
- 5 -
the sole general partner of Grantee, was formerly known as Rogers
Cablesystems of Minnesota, Inc. , a Minnesota corporation, and is
a wholly-owned subsidiary of RUSCI and RUSCI is a wholly-owned
subsidiary of RCA, and that RCA is a principally owned company of
Rogers Cablesystems International B.V. a Netherlands corporation,
a wholly-owned subsidiary of RCI, and, therefore, the grant of
the Franchise to Grantee is for the benefit of, and in the best
interests of RCA, RUSCI and RCI.
IN WITNESS WHEREOF, the undersigned have caused these
presents to be duly executed this 19th day of January
]WHaZ• 1988.
CITY OF EDINA
/
By t / arc.__.
Its Mayor r
And
Its City Manager
ROGERS C STEMS OF AMERICA,INC.
By
Its C E. 0.
ROGERS COMMUNICATIONS, INC
By
ape �'�/yL ItS caninr v;ee-J�rRri61 �3
ROGERS U CABLESYSTEMS, INC.
r�
By
Its C. E. 0.
- 6 -
STATE OF MINNESOTA)
) ss
COUNTY OF HENNEPIN)
The foregoing instrument was subscribed and sworn to before
me this fd , 1987, by
tye Ma or of the CITY OF
a Minnesota municipal corporation, on
behalf of said corporation.
Notary Public
STATE OF MINNESOTA) ► DIANE L. JULIEN
1� NOTARY PUBLIC—MINNESOTA
ss. DAKOTA COUNTY
COUNTY OF HENNEPIN) My Commission Expires Msr.9, 190
-------------
The foregoing instrument was subscribed and sworn to before
me thi 45 cry of E� , 1987, by
, the City Manager of the CITY OF
, a Minnesota municipal corporation, on
behalf of said corporation.
Notary Public
STATE OF MINNESOTA) DIANE L. JULIEN
S S.
JE-16 PUBLIC—BLIC—MMNMTA
COUNTY OF HENNEPIN) DAKOTA COUNTY
My Commission Expos Mor.9.100
The foregoing instrument was subscribed and sworn to before
me this 19 day of January , 198; , by
Colin D Watson , the C• E• Of ROGERS
CABLESYSTEMS OF AMERICA, INC. , a DMa ,,,e corporation, on behalf
of said corporation.
r
Nota Public
STATE OF MINNESOTA)
) ss.
COUNTY OF HENNEPIN)
The foregoing instrument was subscribed and sworn to before
me this 19 day of January , 198 . by
Phil B Lind , the Senior Vice President of ROGERS
COMMUNICATIONS, INC. , a Canadian corporation, on behalf of said
corporation.
Notary Public
- 7 -
• : I
J
t2 i
I
FV
::.tf<,w�,si•;•':�'�'a+r�^0�1�►'i�'MM9sa4es+r+rv+V'M+rw�l+n?-
i
I
I
STATE OF MINNESOTA)
) ss.
COUNTY OF HENNEPIN)
The for9going instrument was subscribed and sworn to before
me this day of January , 198x7, by
Colin D Watson , the C_ E_ o_ 8 of
Rogers U.S. Cablesystems, Inc. , a Delaware corporation, on behalf
of said corporation.
Notary
AEH:SWI7E
8 -
ACCEPTANCE OF A FRANCHISE FOR A
CABLE TELEVISION SYSTEM
WHEREAS, the City of Edina, a Minnesota municipal
corporation (the "City") , by action of its governing body on
December 29, 1980, adopted a Cable Communications Franchise
Ordinance (the "Franchise") , which is now recorded in the
ordinance books of the City as Ordinance No. 1120, granting to
Minnesota Cablesystems - Southwest, a Minnesota Limited
Partnership, with Minnesota Cablesystems, Inc. , a Minnesota
corporation, as General Partner, a non-exclusive franchise to
contract, operate and maintain a cable communications system (the
"System") within the City; and
WHEREAS, the City has amended the Franchise by Ordinance
Nos. 1120-A1, 1120-A2 , and 1120-A3 , adopted on June 6, 1983,
September 19, 1983, and May 20, 1985, respectively (together
called the "Amendments") ; and
WHEREAS, by the most recent of said Amendments, the name of
the Grantee was changed to Rogers Cablesystems of Minnesota
Limited Partnership, a Minnesota limited partnership, with Rogers
Cablesystems of Minnesota, Inc. , a Minnesota corporation, as the
General Partner and is now renamed Rogers Cablesystems of the
Southwest, Inc. , (hereinafter called the "Grantee") ; and
WHEREAS, by the most recent amendment, Section 2 provided in
part that the term of the franchise would be extended by four
years to December 31, 1999, upon satisfactory refinancing of
Existing Indebtedness; and
WHEREAS, Grantee has refinanced its Existing Indebtedness,
and City, through the Southwest Suburban Cable Commission,
"SWSCC", has filed with the Minnesota Commerce Department in
compliance with Minnesota law and City and Grantee have in all
respects completed the requirements for extension of the term of
the franchise; and
WHEREAS, the City by action of its governing body on May 20,
1985, adopted Ordinance No. 1121 (the "Relief Ordinance") , which
grants certain temporary relief to Grantee from some of the
financial and programming obligations imposed on Grantee by the
Franchise, as amended by the Amendments; and
WHEREAS, City has additionally entered into an Agreement
with the Grantee, dated August 2 , 1985, which incorporated as
Exhibit A a contract for Local Programming Facilities and Exhibit
B a contract for Public, Educational and Government Access
Services, (all called the "Performance Agreement") ; and
WHEREAS, the City by action of its governing body on August
18, 1986, adopted a Resolution, a copy of which is attached
- 1 -
(hereinafter "Resolution") , approving the transfer of
controlling interest of Grantee in the System; and
WHEREAS, Grantee has completed a reorganization of its
corporate structure which necessitates acceptance of the
franchise and other obligations, including the extension of the
franchise term, by the appropriate parties; and
WHEREAS, the Resolution requires that the Franchise be
accepted in writing by Grantee in form and substance acceptable
to Cities and the Franchise requirement at Article XII, Section
1.I, and further that Grantee in acceptance of Franchise, comply
with the requirements of Article XIV, Section 2.
NOW, THEREFORE, pursuant to the terms and requirements of
the Resolution and Franchise, and in consideration of the
approval of the transfer, Grantee does hereby accept the
Franchise and make the following representations and warranties
to Cities:
1. Grantee agrees to be bound by the Franchise, as amended
by the Amendments, the Offering (as defined in the Franchise) ,
and the Relief Ordinance, and to timely and fully perform and
fulfill the terms, provisions and conditions of the Franchise, as
so amended, the Offering, and the Relief Ordinance, to be
performed and fulfilled by it, and the Performance Agreement, and
to be bound by the franchise for the System through December 31,
1999 .
2 . Grantee agrees to provide, and warrants and represents
that it is able to provide, all services and offerings set forth
in the Franchise, as so amended, and in the Offering, and in the
Relief Ordinance, agrees to be bound by and to timely and fully
perform and fulfill all of the agreements, provisions, promises,
offers, representations and inducements contained in the
Franchise, as so amended, the Offering, Performance Agreement and
the Relief Ordinance. The Offering is hereby incorporated herein
in full as if fully set forth herein.
3 . Grantee agrees that it is and shall be subject to the
regulatory authority of City as set out in the Franchise, as now
amended, and as the Franchise may, from time to time, hereafter
be supplemented or amended.
4 . Grantee understands and agrees that the Offering is
specifically set out in the Franchise only in part, and that the
whole of the Offering is incorporated in the Franchise by
reference. Therefore, Grantee agrees that City may, at any time
and from time to time, amend the Franchise by the sole act of
City, and without acceptance or agreement by Grantee, to include
in the Franchise, effective as of the date of commencement of the
Franchise term, any one or more specific provisions of the
- 2 -
Offering not then specifically in the Franchise.
5. No legislation or regulation passed by any legislative
body or administrative agency subsequent to the grant of the
Franchise, as so amended, or of the Relief Ordinance, shall
relieve Grantee of any obligations under the Franchise, as so
amended, or the Offering, or the Relief Ordinance, or the duty of
complying, in all respects, with the terms and conditions of the
Franchise, as so amended, the Offering, and of the Relief
Ordinance. Also, Grantee agrees that it will not seek to have
any legislative or administrative body, other than City, preempt
or otherwise modify the terms of the Franchise, as so amended, or
of the Relief Ordinance. However, this provision shall not be
construed to deny Grantee the right to participate in federal or
state legislative or administrative rule making procedures
considering the adoption of legislation or rules of general
application.
6. Grantee agrees to cooperate fully with City in
obtaining from any governmental agency all licenses, permits, and
other authority, necessary for the construction, operation and
maintenance of the System pursuant to the Franchise, as now or
hereafter amended.
7. Grantee represents, warrants and guarantees that
neither it, nor its representatives or agents, have committed any
illegal acts or engaged in any wrongful conduct contrary to, or
in violation of, any federal, state or local law or regulation in
connection with operation of the System, or the obtaining of any
of the Amendments or of the Relief Ordinance.
8. Grantee further warrants and represents as follows:
A. That it is a limited partnership under the laws of
Minnesota, and has full right and authority to enter into and
fully perform the Franchise, as so amended, the Offering, the
Relief Ordinance, and this Acceptance; that all partnership and
corporate action required to authorize the execution and delivery
of the Franchise, as amended, the Relief Ordinance, and this
Acceptance, and all other documents to be executed and/or
delivered by Grantee pursuant to the Franchise, as so amended,
the Relief Ordinance, and this Acceptance, and to authorize the
performance by Grantee of all of its obligations under the
Franchise, as so amended, the Offering, the Relief Ordinance, and
this Acceptance, and all such other documents to be executed
and/or delivered by Grantee, have been validly and duly taken and
are in force and effect; and that the Franchise, as so amended,
the Relief Ordinance, this Acceptance, and all such other
documents executed and/or delivered by Grantee, have been duly
executed and delivered by Grantee and the terms of each thereof
are fully binding upon and enforceable against Grantee;
- 3 -
B. That Grantee has the fiscal and construction
capability to commence, complete, operate and maintain the
System pursuant to the terms of the Franchise, as so amended, and
the Relief Ordinance;
C. That Rogers Cablesystems of the Southwest, Inc. ,
("Minnesota") is a Minnesota corporation and was formally named
Rogers Cablesystems of Minnesota, Inc. , is the only general
partner of Grantee;
D. That Minnesota is a wholly-owned subsidiary of Rogers
U.S. Cablesystems, Inc. ("RUSCI") (Rogers American Cable
Corporation, a Delaware corporation "RACC" was merged with RACC
May 13, 1987) , a Delaware corporation, which is a wholly-owned
subsidiary of Rogers Cablesystems of American, Inc. (RCA) , a
Delaware corporation, and that RCA is principally owned by Rogers
Cablesystems International B.V. , a Netherlands corporation, which
is a subsidiary of Rogers Communications, Inc. ("RCI") , a
Canadian corporation, which was formerly known as Rogers
Cablesystems, Inc. and Canadian Cablesystems, Limited; and
E. City understands that it shall have the right to hold
RCA, RUSCI and RCI each jointly and severally liable for the full
performance of all of the obligations of Grantee under the
Franchise as extended to December 31, 1999, the Relief Ordinance,
the Performance Agreement and this Acceptance and with the
further understanding that RCA and RUSCI have committed its
resources and credit, as available, from time to time to ensure
the operating viability of Grantee. RCA, RUSCI and RCI will each
have the identical obligation of Grantee under the Franchise
extended through December 31, 1999, the Relief Ordinance, the
Performance Agreement and this Acceptance, neither more nor
less.
F. That Grantee and Minnesota are authorized to do
business in Minnesota, and are in good standing in Minnesota.
9. Grantee has agreed, by this acceptance, to the fees,
rates, rate change procedures and standards for review of rates
and rate changes, in the Franchise, as so amended, and in the
Relief Ordinance, to the extent not inconsistent with the Cable
Communications Policy Act of 1984. Also, Grantee agrees that
City can use and consider in evaluating any rate change, among
other things, the tax benefits received by Grantee, its partners,
shareholders, and others, as a result of investments in the
System, and the cash flow derived from the System.
10. Grantee further agrees to hold City and SWSCC and their
respective officers, agents, employees and representatives,
harmless from and indemnified against any and all loss, cost,
damage and expense, including, without limitation, attorneys '
fees, now or hereafter incurred by them, or either of them, and
- 4 -
arising out of or due to, or claimed to arise out of or be due
to, the grant of the Franchise, as so amended, or the Relief
Ordinance, to Grantee or the process followed by City and SWSCC
in granting the Franchise, the Amendments, or the Relief
Ordinance.
11. Grantee agrees that all agreements, representations and
warranties set forth herein, in the Franchise, as so amended, in
the Offering, or in the Relief Ordinance, shall be binding upon
it and its successors and assigns, and shall inure to the benefit
of City and its successors and assigns.
IN WITNESS WHEREOF, Grantee has caused this Acceptance to be
duly executed and delivered this 20th day of January ,
1981 .
DATED: January 20 , 1988 ROGERS CABLESYSTEMS OF MINNESOTA
LIMITED PARTNERSHIP, a Minnesota
limited partnership
By: ROGERS CABLESYSTEMS OF THE
SOUTHWEST, . , a Minnesota
corporati / the General Partner
By:
Its:
Kms`✓:moi ✓s: !,moi�;"�L.C:-'�...
And: o k k=-
it
STATE OF MINNESOTA)
) ss.
COUNTY OF HENNEPIN)
Subscribed and sworn to before me this 20 day of
.Tanuary , 1988 , by Colin D . Watson
and TlanhnP Evans , the CEO $ President
and AcG; stant S .cr arL, respectively, of Rogers Cablesystems of
Minnesota Limited Partnership, a Minnesota limited partnership,
on behalf of said limited partnersh' / Rogers Cablesystems of The
Southwest Inc . , General Partner
f of
Notary b is
5 -
STATE OF MINNESOTA)
) ss.
COUNTY OF HENNEPIN)
Subscribed and sworn to before me this 20th day of
January , 1981, by Colin D Watson
and Daphne Evans , the c . E - o . & President
and Assistant Secretary, respectively, of Rogers Cablesystems of
the Southwest, Inc. , a Minnesota corporation, the General Partner
of Rogers Cablesystems of Minnesota Limited Partnership, a
Minnesota limited partnership, on a if of said corporation.
Notary Pu lic
AEH:SWI9E
6 -