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HomeMy WebLinkAbout1989-1121-A1 Amending Ord. No. 1985-1121 By Providing Modifications in Contemplation of a Transfer of Ownership of the City's Cable Communications Franchise and Other Changes ORDINANCE NO. 1121-A1 AN ORDINANCE AMENDING CATV RELIEF ORDINANCE, ORDINANCE NO. 1121, PROVIDING MODIFICATIONS IN CONTEMPLATION OF A TRANSFER OF OWNERSHIP OF THE CITY'S CABLE COMMUNICATIONS FRANCHISE AND PERMITTING CONTINUANCE OF RELIEF TO THE TRANSFEREE OF THE FRANCHISE IN ACCORDANCE WITH THIS ORDINANCE THE CITY COUNCIL OF THE CITY OF EDINA, MINNESOTA, ORDAINS AS FOLLOWS: Section 1. Short Title. This Ordinance shall be known as the "CATV Relief Ordinance Amendment. " Section 2. Background and Purpose. Rogers Communications, Inc. ("Rogers") has agreed to sell all interests and holding in its U.S, cable systems to KBL Cable, Inc. , a Texas corporation ("Proposed Transferee") . The transfer from Rogers to the Proposed Transferee shall be effectuated through the transfer of the controlling stock interest in RCA Cablesystems Holding Co. , the parent corporation of the Grantee. The City previously granted relief to the Grantee under the Franchise by Ordinance known as the CATV Relief Ordinance. Rogers has requested relief from the Franchise to be extended after the Closing, irrespective of the requirement in the CATV Relief Ordinance that the CATV Relief Ordinance terminates upon transfer of ownership and control of Grantee of the Franchise to a new owner. The Southwest Suburban Cable Commission ("SWSCC") has reviewed the request of Rogers and recommended extending certain portions of the CATV Relief Ordinance to a proposed new owner. This recommendation is based upon compliance with certain conditions by the Grantee and the acceptance of requirements including this Ordinance, by the Proposed Transferee of the Franchise. A Stipulation of Settlement with Rogers and Grantee, Exhibit A ("Stipulation") and a Resolution of Approval of Settlement, Exhibit B ("Resolution") , are attached. The Stipulation and Resolution provide a description of requirements and conditions and are made part of this Ordinance by reference. This Ordinance will be effective only if the Stipulation and Resolution are satisfied and Proposed Transferee agrees to be bound by the terms of this Ordinance as part of its acceptance of the transfer of the ownership of Grantee. Section 3. That Section 4 of the Relief Ordinance is hereby amended to read as follows: SECTION 4. DEFINITIONS. Subdivision 1. The definitions in the Franchise also apply to this Ordinance. Subdivision 2. In addition, the following words and phrases shall have the meanings given them: (1) "Franchise" means the Cable Communications Ordinance as now or hereafter amended. (2) "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. 212-1D Ordinance No. 1121-A1 Page 2 (3) "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, as amended. Section 4. That Section 5 of the CATV Relief Ordinance is amended to read as follows: 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. Until the effective date of this Ordinance No. 1121-A1, the annual franchise fee shall be 3% of gross revenues. Commencing with the effective date of this Ordinance No. 1121-A1 the annual franchise fee is 5% of Gross Revenues. Such annual fee 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. Subdivision 2. 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 determines 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 sixty days after written notice has been given by the City. Subdivision 3. 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. Subdivision 4. 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 Local Programming Obligations under the Franchise for public, governmental, and educational access, but it shall not be obligated to expend more than that amount for such access. That amount shall not include any costs of operation, capital for access equipment replacement previously agreed to by the parties in Exhibit 2 to the Contract for Local Programming Facilities, which is Exhibit A to the Performance Agreement, which shows the equipment to be maintained and replaced, or administration not directly related to the -provision of local programming. This expenditure shall be in complete satisfaction of Grantee's total Local Programming Obligations during the period of this ordinance. Section 5. That Section 6 of the Relief Ordinance is hereby amended to read as follows: 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: Ordinance No. 1121-A1 Page 3 Subdivision 1. March 1, 1991. Subdivision 2. 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. Subdivision 3. 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 2 and 3 of this ordinance. Subdivision 4. 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. Subdivision 5. Termination of the Franchise. Section 6. That Section 7 of the Relief Ordinance is amended to read as follows: 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, including the Relief Ordinance as amended, except to the extent that Grantee's performance obligations are modified in this Ordinance. Subdivision *2. Failure of the Grantee to comply with any of the provisions of the Performance Agreement. Section 7. Effective Date. This ordinance shall be effective upon passage and adoption by City and upon satisfaction of all of the following conditions: (1) Publication of this Ordinance; (2) Passage and adoption by each of the Member Cities of the SWSCC of an Ordinance similar to this Ordinance within 45 days of the adoption of this Ordinance; (3) Conformance by Grantee with all the terms and conditions of the Resolution, Exhibit B, and of the Stipulation, Exhibit A, and of the Amendment to the Performance Agreement, Exhibit DD to the Stipulation, Exhibit A. (4) Acceptance by Grantee in conformance with Section 8 of this Ordinance; (5) Closing of the transfer of ownership from Rogers to Proposed Transferee within one (1) year from the date hereof and notice thereof to the Member Cities of SWSCC. (6) Execution and delivery by Proposed Transferee of a guarantee agreement as required by Paragraph 5 of the Stipulation. Ordinance No. 1121-A1 Page 4 Section 8. Acceptance of the Relief Ordinance as amended; Providing of Guarantees. Except as otherwise provided herein, 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. Passed by the City Council of the City of Edina, Minnesota, this 21st day of November, 1988. Exhibits referred to in this Ordinance, but not published herewith, are available for inspection in the office of the Edina City Clerk. First Reading: November 21, 1988 Second Reading: Waived Published in the Edina Sun-Current on February 15, 1989 Q � ATTEST: Mayor City Clerk Minnesota Suburban Newspapers AFFIDAVIT OF PUBLICATION �nY � STATE OF MINNESOTA) ss. COUNTY OF HENNEPIN) L.J. Canning being duly sworn on an oath says that he/she is the publisher or authorized agent and employee of the publisher of the newspaper known as Edina Sun-Current and has full knowledge of the facts which are stated below. (A)The newspaper has complied with all of the requirements constituting qualification as a qualified newspaper, as provided by Minnesota Statute 331A.02, 331A.07, and other applicable laws, as amended. (B)The printed Ordinance No . 11-22-A1 which is attached was cut from the columns of said newspaper,and was printed and published once each week, for one successive weeks; it was first published on Wednesday the 15 day of February_, 19--§-9, and was thereafter printed and published on every to and including the day of 19 ; and printed below is t a copy of the lower case alphabet from A to Z, both inclusive, which is hereby acknowledged as being the size and kind of type used in the composition and publication of the notice: abcdefgtdjkimnopgrstuvwxy J BY: wt TITLE: P b i 5 h r Acknowledged before me on this 6 day o �'F bruary, , 1989 / lic Pub J\ /t .: . 1 r RATE INFORMATION f (1)Lowest classified rate paid by commercial users $ 1.10 per line for comparable space (2)Maximum rate allowed by law for the above matter $ 59.80 per line (3)Rate actually charged for the above matter $ 53.70 per line City of Edina (Official.Publicatim). ORDINANCE NQ-U21-M AN ORDINANCE AMENDING CATV.RELIEF ORDINANCE, ORDINANCE NO.D21,PROVIDING MODIFICATIONS JN . 11CON'1WdPLATI0N OF A TRANSFER OF.OWNERSHIP OF THE,CITYS NICATIONS FRANCHISE AND PERMITTING CONTINUANCE OF. .. SFRRFF:OF THIN FRANCHISE IN ACCORDANCE WITH THIS ORDINANCE THE, ' OF THE CITY OF EDINA,MINNESOTA,ORDAINS AS FOLLOWS: � Section 1.Slairt Title. This shall be known as the"CATV Relief Ordinance Amendment:, Section d and-Purpose - `cations,Inc('Rogers")pas agreed to sell all interests and holding in its U1 able L Cable,Inc..,a'lExas cmpuahon(`Proposed Transferee').The transfer fror Rog Proposed iramteree shall be effecdlaled l��u�ghh the transfer of the controlling-sloe interest in RCA Cablesystems Holding Co.,thepe�t corporation of the Grantee.The City prevwu =led relief to the Grantee under the Franchise-by Ordinance known as the CATV Relief 0 dinance.Rogers has(requested relief from the melds^to be extended after the Closing irrespe. live of the requirement m the CATV Relief(ht- ce that the CATV Relief Ordinance terminate upon trantfer of owhetship_and control of tee of the Franchise to a new owner. The Southwest Suburban Cable Commissi in('SWSCC")has reviewed the request of Trager and recommended briending certain portions of the CATV Relief Ordinance to a proposed ne owner.ibis recommendation is based upon"pliance with certain conditions by the Grante and the acceptance of requirements including this Ordinance,by the ProRosed Transferee of tF Franchise.A Stipulation of Settiment with Hollers and Grantee,Exhihit A('Stipulation")an a Resolution of Approval of Settkmlent,Exhibit B("Resolution"},are attached. Stipulatic and Resolution provide a description of reydfremonts aon cotionsand are made part of ih Ordinanceby reference.This Ordinance will be effective oily if the Sh'oulation and Resolutic are satisfied and Proposed Transferee agrees-to be bound by the terms oi'tttis Ordinance as pat of ifs C.of the transfer of the owrie ship of Grantee. . Section 3.That Section 4 of the Relief Ordinance is hereby amended to mad as follows: SECTION 4.DEFINITIONS Subdivision The definitions in the Franchise also apply to this Ordinance - Subdivision In addition,the following words and phrases shall havethemeanings given them: (1)eieranchide"means the Cable Communications Ordinance as now or]rereafter a m(22)) al Ptogramming Obligations"means, for the purpose of this ottlinance,. Grantee's obligktions under the Franchise and the Offering for cablecast access,mm-- munity]iccess local origination programming. (3)"Eerfor ce Agreement"means a contractual agreement between.Grantee,Ci- ty andiSVVSCC 'ding aprmaeeaanss foor�mfin oonitoring Grantee's ancial condftiou,assunog tan ad'o GIste I ofd reLef,as aamended providing for certain other matters related Section 4.That Se n 5 of the CATV Relief Ordinance is amended to read as follows: SECTION 5.-RE F GRANTED. - While a is in effect the obligations of Grantee are modified to the extent .._-section: - S 1 - e Feces Percentage.Until the effective date of this Ordinance No. annual franchise fee shall be 3%of gross revenues.Commencing with the eff 'of this Ordinance Na'.1mAi,the annual franchise fee is 5%of Grass Revenues. annual fee shall be paid to Cityin nal quarterly payments on or before. the fist da- each of the months of November,F7e May and August next follow- mg the end Grantee's fiscal year. y Suhdiof Credit.The City Council may by resolutioureduce the required amount of th of Credit below SSO C if in its sole discretion it determines that a lesser am t - nable and adeq�uale to protect the public.It may thereafter;by resolution amount of the Litter of Credit to be increased or fully restored to the amount of .Grantee shagComply with this requirement within sixty days. after written nob been given by ty. Subdivision 3.- Hood The Grantee may dispense with the StoOoerf)rm gancee bond rreeqq - the Franchise The:Ckty Council may thereafter by resolution re- shall c mtplyha similar' tins requirement thorn,sixty days afaniountter written noti a has b.nn antee given by the City. 2' Subdivisi `Programming Obligations.Grantee shall expend at least 1%of its annual .Revenues each fiscal year in fulfilling its Local Programming Obligations under nehise I ocal Programming:Obligations under the Franchise for public, govermm andZduational access,Cert it shall not be obligated to expend morethan that am for such access.That amount shag not include any costs of operation,capital for ac uipment replacement previouslya8eed to by the parties m Exhibit 2 to the Contract alProgrammmg Facilities;wbiis to A to the-Perfarmance Agree, ment,w shows the equipment to be maintained and replaced,or administration not directly ted to ton ion of local This expenditure be in m- plete sa' tion of( tee's total Local Obligations the of this ardtnanen - Section 5.That ction 6 of the Relief Ordinance is hereby amended to read as follows: SECTION 6.4ETOMATIC TERMINATION OF RELIEF ORDINANCE PROVISIONS The provisiI his ordinance,and the relief hereinngranted,shall cease to be effective, automatiaSubdivisiubdivisiettert as provided in Article VIII,Section 4,paragapti H of the Flancbrse Subdivislo�3.Failure of the Grantee torestore,replace or increase either a letter of Credit car bo�within sixty da m written entice by the City,as provided in Section 5, Subdivision 2 and 3 of this ordinance Subdivision 4.A holding or determination by cavy court or agency that any term,condi- tion 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. vision 5.Termination of the Franchise. Section 66..1'ist$ection 7 of the Relief Ordinance is amended to mad as follows: SECTION 7.OTHER TERMINATIONS ',This ordinalice may jilso be terminated for cause,under the same procedures for ter- mination al.are contained in-the Franchise;for the following reasons: SubdiAll Winds for termination provided in the Franchise including the Relief Ordinances .,amended,except to the extent that Grantee's performance obligations are modified in i¢Ordinance. Subdivision,2.failure of the Grantee to comply with any of the provisions of the Per- formance Agreement. Section 7.Effective Date- 'f This ordinance shall be effective upon passage and adoption by City and upon satisfaction all of the following conditions: t (1)Publication,of ttus Ordinance; (2)Passage and adoption by each of the Umber Cities of the SWSCC of an Ordinance sund to this Ordinance within 45 days of the adoption of this Ordinance; (3)Conformance by Grantee with all the terms and conditions of the Resolution,Exhibit and ofthe Stipulation,Exhibit A,and of the Amendment to the Performance Agreement,Exhil DO to the Stipulation,Exhibit A. - (4)Acceptance by Grantee in conformance-with Section 8 of this Ordinance; (5)Clasmg of the transfer of owneashiP from Rogers to Proposed Transferee within one(1)ye from the date hereof and notice thereof to the Member Cities of SWSCC. (6)Execution and dehvdry by Proposed Transferee of a guarantee agreement as required I Paragraph 5 of the Stipulation. Section 8.Acceptance of the Relief Ordinance as amended;Providing of Guarantees. Except as otherwise provided herein,this Ordinance shall be effective in accordance with t provisions of Article XIV of the Franchise including delivery to the City of the acceptance,opi ion of legal counsel,guarantees and other documents as required by said Article XIV -Passed by the City.Council of the Cityor ipa,Minnesota this 21st day of November,191 Exhibits referred to in this Ordinance,but not published beiewith,are availalAeforin pectic in the office of the Edina City Clerk. - First Reading:November 21,1988 Second Reading:waived /s/C.wAYNE couR'rNF May ATTEST: /s/MARCELLA M.DAEHN (tin,C1.1—k