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(A) (1) None of the following shall directly or indirectly own, operate, control or have a legal or equitable interest in the franchise:
(a) A television broadcasting station whose predicted Grade B contour, computed in accordance with § 73.684 of the Federal Communications Commission's Rules and Regulations, overlaps in whole or in part the service areas of the system (e.g., the area within which the system is serving subscribers); or
(b) A national television network; or
(c) A television translator station licensed to the municipality of such system; or
(d) A telephone company within its local exchange area, unless a proper and timely waiver is obtained from the Federal Communications Commission; or
(e) A publisher and/or owner of a newspaper company and the newspaper company within the primary market area, as defined by the Audit Bureau of Circulation, served by the newspaper; or
(f) A radio or television broadcast station, broadcasting from within the Twin Cities metropolitan area as designated in M.S. § 473.121, subd. 4.
(2) The word “control” as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised.
(3) The word “interest” as used herein includes, in the case of corporation, common officers, or directors and partial, as well as total, ownership interests represented by ownership of voting stock.
(4) In applying the provisions of this rule to the stockholders of a corporation which has more than 50 stockholders:
(a) Only those stockholders need be considered who are officers or directors or who directly or indirectly own 1% or more of the outstanding voting stock.
(b) Stock ownership by an investment company as defined in U.S.C. § 80a-3, commonly called a mutual fund, need be considered only if it directly or indirectly owns 3% or more of the outstanding voting stock or if officers or directors of the corporation are representatives of the investment company. Holdings by investment companies under common management shall be aggregated. If an investment company directly or indirectly owns voting stock in an intermediate company which in turn directly or indirectly owns 50% or more of the voting stock of the corporation, the investment company shall be considered to own the same percentage of outstanding shares of such corporation as it owns of the intermediate company; provided, however, that the holding of the investment company need not be considered where the intermediate company owns less than 50% of the voting stock, but officers or directors of the corporation who are representatives of the intermediate company shall be deemed to be representatives of the investment company.
(c) In cases where record and beneficial ownership of voting stock is not identical — for example, bank nominees holding stock as record owners for the benefit of mutual funds, brokerage houses holding stock in street name for the benefit of customers, trusts holding stock as record owners for the benefit of designated parties — the party having the right to determine how the stock will be voted will be considered to own it for the purposes of this section.
(B) Any sale or transfer of the franchise, including a sale or transfer by means of a fundamental corporate change, requires the written approval of the city. Any sale or transfer of the franchise shall be subject to the provisions of 4 MCAR § 4.100. The parties to the sale or transfer of the franchise shall make a written request to the city for its approval of a sale or transfer of the franchise. The city shall reply in writing within 30 days of the request and shall indicate its approval of the request or its determination that a public hearing is necessary if it determines that a sale or transfer of the franchise may adversely affect the company's subscribers. The city shall conduct a public hearing on the request within 30 days of such determination.
(C) Notice of any such hearing shall be given 14 days prior to the hearing by publishing notice thereof once in a newspaper of general circulation in the area being served by the franchise. The notice shall contain the date, time and place of the hearing and shall briefly state the substance of the action to be considered by the city. Within 30 days after the public hearing, the city shall approve or deny in writing the sale or transfer request.
(D) Any sale or transfer of the franchise, including a sale or transfer by means of a fundamental corporate change, requires notification to the Board by the city. The notification shall be accompanied by the written certification of the transferee that it meets all of the requirements with respect to technical ability and financial stability demanded of the original franchisee. The city shall cause to be sent to the Board a copy of all public documents related to sale or transfer of the franchise.
(E) The parties to the sale or transfer of a franchise, only within the inclusion of a cable communications system in which at least substantial construction has commenced, shall be required to establish that the sale or transfer of a franchise only will be in the public interest.
(F) For purposes of this provision, fundamental corporate change means the sale or transfer of all of a majority of a corporation's assets, merger (including any parent and its subsidiary corporation), consolidation, or creation of a subsidiary corporation.
(G) Sale or transfer of stock in a corporation so as to create a new controlling interest in a cable communication system shall be subject to the requirements of 4 MCAR § 4.100 and 4 MCAR § 4.150. The term “controlling interest” as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised.
('77 Code, § 11.103(6)) (Am. Ord. 982, passed 11-9-81)
The city shall have the right to cancel this franchise for the following reasons:
(A) Failure by the grantee to comply with any provision of this agreement, or any order, direction or permit issued by the city pursuant to any provision; or the failure to comply with the notice requirements of this code;
(B) Failure by the grantee to comply with any rule or regulation promulgated by, or ordinance adopted by the city, which is consistent with any provision of this code;
(C) Failure by the grantee to comply with, or attempt to evade, any provision of this code, or any order, direction, or permit issued by the city concerning any provision of this code;
(D) Failure by the grantee to file and maintain any bond, security fund, or insurance policy in an amount required by this code;
(E) The grantee's sale, lease, assignment, encumbrance or mortgage of the franchise or transfer of control of the system without the consent of the city;
(F) Failure by the grantee to adhere to the construction schedule provided under this code or delay in offering basic subscriber service;
(G) Any attempt to commit, or the commission, by the grantee, any fraudulent or deceitful practice;
(H) Failure by the grantee to pay to the city any sum due under this code;
(I) Failure by the grantee to receive a certificate of confirmation from the Minnesota Cable Communications Board;
(J) Failure by grantee to obtain all necessary pole right agreements within one year following the adoption of a Cable Communications franchise by the city;
(K) If, the system or any part thereof, is inoperative for 30 days out of any consecutive 12-month period;
(L) Failure to renegotiate franchise fees pursuant to § 11.127.
('77 Code, § 11.103(7)) (Am. Ord. 982, passed 11-9-81)
(A) If the city determines that the grantee has violated any of the provisions of § 11.109 the city shall give written notice of such cause for termination to grantee, and of it's intention to terminate the franchise.
(B) The grantee shall have 30 days from the date of receipt of such notice to cure the cause for termination.
(C) If the grantee fails to cure the cause for termination within said 30 day period, the city may elect to terminate the franchise. Grantee shall be provided with an opportunity to be heard at a public hearing before the City Council of Columbia Heights prior to any decision to terminate the franchise.
(D) In the event that the city determines to terminate the franchise, the grantee shall have a period of 30 days, beginning the day following the date of the conclusion of the public hearing at which the termination of the franchise is considered, within which to file an appeal with the Board. During such 30 day period, and until the Board determines the appeal, if an appeal is taken, the franchise shall remain in full force and effect, unless the term thereof sooner expires. If the Board approves of the action of the city, the franchise shall terminate immediately; if the Board disapproves of the action of the city, the franchise shall remain in full force and effect during the terms thereof, unless sooner terminated in accordance with law or rules of the Board or the terms of the franchise agreement. Any such appeal to the Board is a contested case to which the Board is not a party.
('77 Code, § 11.103(8)) (Am. Ord. 982, passed 11-9-81)
(A) Upon cancellation, revocation, forfeiture, termination or normal expiration of the franchise term, the city shall have the right to purchase the system. Such right shall be exercised by giving written notice to grantee within six months after the occurrence of any such event.
(B) If the city elects to exercise its right to purchase the system, the following shall then apply:
(1) The purchase price of the system to be paid by the city shall be as follows:
(a) If the termination is due to the normal expiration of the franchise term, the purchase price shall be the fair market value of the system as a going business concern, with appropriate consideration for depreciation using generally accepted accounting principles. Goodwill shall not be included in the purchase price of the system.
(b) If the franchise is cancelled, revoked, forfeited, or terminated by the city for failure of franchisee to comply with the terms of this code the purchase price shall be the original cost of the system less depreciation. Depreciation shall be calculated using grantee's method of depreciation for income tax purposes.
(2) The city shall receive the entire system as defined in this franchise ordinance together with all records necessary for the operation of the system wherever located.
(3) The grantee shall promptly execute all documents necessary to transfer title to the city, and shall assign all contracts, leases, licenses, permits and other rights necessary to maintain continuity of service to the public.
(4) The grantee shall cooperate with the city to operate the system for a temporary period not to exceed two years, in maintaining continuity of service.
(5) All liabilities and accounts payable as of the date the city acquires title to the system shall remain the exclusive responsibility of the grantee.
(6) All accounts receivable accrued as of the date the city acquires title to the system shall remain the property of the grantee.
(C) If grantee offers the system for sale, all offers received shall promptly be provided to the city. Prior to grantee accepting any offer, the city shall have the right to purchase the system according to the terms of the offer.
('77 Code, § 11.103(10)) (Am. Ord. 982, passed 11-9-81)
(A) Upon cancellation, revocation, termination, forfeiture, or normal expiration of the franchise term the city shall have the right to require the grantee to remove, at grantee's expense, all or any portion of the system within the city. Grantee shall, at its own expense, refill any excavation made by it, and shall leave all streets and other property within the city in as good a condition as prior to grantee's removal of the system. Grantee shall not affect, alter or disturb in any way electric, telephone, or other utility, cables, wires or attachments belonging to city or another franchisee. City shall have the right to inspect and approve the condition of streets and other property within the city after removal. All letters of credit, bonds, insurance, indemnity and liquidated damages provisions of the franchise shall remain in full force and effect during the entire period of removal.
(B) If such removal is not commenced within 30 days following written notice of city's demand for removal, or if such removal is not completed within six months of such notice, the city, at its sole option, may perform such removal and collect the cost thereof from the grantee. The cost of such removal by the city shall be recoverable from the letters of credit, bonds, insurance, indemnity and liquidated damages provisions of the franchise.
('77 Code, § 11.103(11)) (Am. Ord. 982, passed 11-9-81)
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