A. The City's Right To Revoke:
1. In addition to all other rights which the city has pursuant to law or equity, the city reserves the right to commence proceedings to revoke, terminate or cancel this franchise, and all rights and privileges pertaining thereto, if it is determined by the city that:
a. Grantee has violated material provisions of this franchise; or
b. Grantee has attempted to evade any of the provisions of the franchise; or
c. Grantee has practiced fraud or deceit upon the city.
2. The city may revoke this franchise without the hearing otherwise required herein if grantee is adjudged a bankrupt.
B. Procedures For Revocation:
1. The city and/or commission shall provide grantee with written notice of a cause for revocation and the intent to revoke and shall allow grantee thirty (30) days subsequent to receipt of the notice in which to correct the violation or to provide adequate assurance of performance in compliance with the franchise. In the notice required therein, the city and/or commission shall provide grantee with the basis of the revocation.
2. Grantee shall be provided the right to a public hearing affording due process before the city council and/or commission prior to the effective date of revocation, which public hearing shall follow the thirty (30) day notice provided in subsection B1 of this section. The city and/or commission shall provide grantee with written notice of its decision together with written findings of fact supplementing said decision.
3. Only after the public hearing and upon written notice of the determination by the city to revoke the franchise may grantee appeal said decision with an appropriate state or federal court or agency.
4. During the appeal period, the franchise shall remain in full force and effect unless the term thereof sooner expires or unless continuation of the franchise would endanger the health, safety and welfare of any person or the public.
C. Abandonment Of Service: Grantee may not abandon the system or any portion thereof without having first given three (3) months' written notice to the city and/or commission. Grantee may not abandon the system or any portion thereof without compensating the city for damages resulting from the abandonment, including all costs incident to removal of the system.
D. Removal After Abandonment, Termination Or Forfeiture:
1. In the event of termination or forfeiture of the franchise or abandonment of the system, the city shall have the right to require grantee to remove all or any portion of the system from all rights of way and public property within the city.
2. If grantee has failed to commence removal of system, or such part thereof as was designated by the city, within thirty (30) days after written notice of the city's demand for removal is given, or if grantee has failed to complete such removal within twelve (12) months after written notice of the city's demand for removal is given, the city shall have the right to apply funds secured by the security fund and performance bond toward removal and/or declare all right, title, and interest to the system to be in the city with all rights of ownership including, but not limited to, the right to operate the system or transfer the system to another for operation by it.
E. Sale Or Transfer Of Franchise:
1. No sale or transfer of the franchise, or sale, transfer, or fundamental corporate change of or in grantee, including, but not limited to, a fundamental corporate change in grantee's parent corporation or any entity having a controlling interest in grantee, the sale of a controlling interest in the grantee's assets, a merger, including the merger of a subsidiary and parent entity, consolidation, or the creation of a subsidiary or affiliate entity, shall take place until a written request has been filed with the city requesting approval, and such approval has been granted or deemed granted; provided, however, that said approval shall not be required where grantee grants a security interest in its franchise and/or assets to secure an indebtedness. Upon notice to the commission, grantee may undertake legal changes necessary to consolidate the corporate or partnership structures of its Minnesota/Wisconsin systems, provided there is no change in the controlling interests which could materially alter the financial responsibilities for the grantee, and such changes do not otherwise trigger review under Minnesota statutes section 238.083.
2. Any sale, transfer, exchange or assignment of stock in grantee, or grantee's parent corporation or any other entity having a controlling interest in grantee, so as to create a new controlling interest therein, shall be subject to the requirements of this subsection. The term "controlling interest" as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised.
3. The grantee shall file, in addition to all documents, forms and information required to be filed by applicable law, the following:
a. All contracts, agreements or other documents that constitute the proposed transaction and all exhibits, attachments, or other documents referred to therein which are necessary in order to understand the terms thereof (confidential, trade, business, pricing or marketing information, or information not otherwise publicly available may be redacted) pursuant to the procedures for handling trade secret and privileged data to be adopted by the commission.
b. A list detailing all documents filed with any state or federal agency related to the transaction including, but not limited to, the MPUC, the FCC, the FTC, the FEC, the SEC or MNDOT. Upon request, grantee shall provide the city with a complete copy of any such document.
4. The city shall have such time as is permitted by federal law in which to review a transfer request.
5. As agreed to by grantee in its previous franchise with the city, grantee shall reimburse the city for all the legal, administrative, and consulting costs and fees associated with the city's review of any request to transfer. Nothing herein shall prevent grantee from negotiating partial or complete payment of such costs and fees by the transferee. Grantee may not itemize any such reimbursement on subscriber bills, but may recover such expenses in its subscriber rates if permitted by applicable laws.
6. In no event shall a sale, transfer, corporate change, or assignment of ownership or control pursuant to subsection E1 or E2 of this section, be approved without the transferee becoming a signatory to this franchise and assuming all rights and obligations thereunder, and assuming all other rights and obligations of the transferor to the city including, but not limited to, any adequate guarantees or other security instruments provided by the transferor.
7. In the event of any proposed sale, transfer, corporate change, or assignment pursuant to subsection E1 or E2 of this section, the city shall have the right to purchase the system for the value of the consideration proposed in such transaction. The city's right to purchase shall arise upon the city's receipt of notice of the material terms of an offer or proposal for sale, transfer, corporate change, or assignment which grantee has accepted. Notice of such offer or proposal must be conveyed to the city in writing and be separate from any general announcement of the transaction.
8. The city shall be deemed to have waived its right to purchase the system pursuant to this section only in the following circumstances:
a. If the city does not indicate to grantee in writing, within sixty (60) days of receipt of written notice of a proposed sale, transfer, corporate change, or assignment as contemplated in subsection E7 of this section, its intention to exercise its right of purchase; or
b. It approves the assignment or sale of the franchise as provided within this section.
9. No franchise may be transferred if the city determines grantee is in noncompliance with the franchise unless an acceptable compliance program has been approved by the city. The approval of any transfer of ownership pursuant to this section shall not be deemed to waive any rights of the city to subsequently enforce noncompliance issues relating to this franchise even if such issues predated the approval, whether known or unknown to the city. (Ord. 353, 2-15-2000)