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ORDINANCE 83-521 .. ~ 4 .. CITY OF HOPKiNS Hennepin County, Minnesota ORDINANCE NO. 83-521 AN ORDINANCE AMENDING ORDINANCE NO. 81-486 SETTING FORTH A DESCRIPTION OF THE FACILITIES TO BE PROVIDED BY GRANTEE; MODIFYING THE INITIAL SERVICE AREA: AMENDING THE LINE EXTENSION POLICY OF GRANTEE; PRESCRIBING INSTALLATIONS CHARGES AS SET FORTH HEREIN; AND AMENDING THE EXHIBITS. THE CITY COUNCIL OF THE CITY OF HOPKINS, MINNESOTA ORDAINS: SECTION 1. That Article I, Section 2, of Ordinance No. 81-486 be amended to read as follows: V. "Public Building" is any building owned or operated by the United States government or any subdivision thereof, or the state of Minnesota or any subdivision thereof, or the City or any other governmental subdivision~ or school district or educational institutions. SECTION 2. That Article III, Section 4, of said Ordinance be amended to read as follows: SECTION 4. FACILITIES. The Grantee shall construct, maintain and continue to provide all facilities and equipment set forth in the Offering or as otherwise provided in Article V, Section 2 and Exhibits A and B hereto, including, but not limited, to, the headend, hubs, distribution system, studios, equipment and other facilities. Grantee's plan, as set forth in the Offering, for implementing the construction, utilization and maintenance of these facili- -1- ~ ties, including its plans for accommodating future growth and changing needs and desires, shall be fully and timely performed. SECTION 3. That Article III, Section 7 of said Ordinance be amended to read as follows: SECTION 7. SERVICE TO PUBLIC BUILDINGS AND EDUCATIONAL INSTITUTIONS Grantee 3hall provide, at n minimum, 3ub3criber Qnd in3titu t.ional n.ctW'orJt aervice to nIl publicly m;ned buildinga, in City (City naIl, police department, fire department, schoola, librarieo, etc.), nIl educational inotitutiono in City, and all buildinga nO'... or hereafter '.;holly or partially mmed or leu.3ed for ~overnmental uae by nny 3tate, federal or local government in City, or o~;ned or leaaed by achool diatricto or educational inatitutiona in City, all aa aet out in the Offering. Need for eit.her or both of auch network aervicea aa referred to in the Offerin~ ahall be determined in the 30le di3cretion of City. Grantee shall initially provide subscriber and institutional network service, upon request, to public buildings which may reasonably utilize such service in the Initial Service Area or within an extended area pursuant to Part II. A. of Exhibit B to said Ordinance, as hereby amended. Service to public buildings outside the Initial Service Area or an extended area shall be provided pursuant to Article V, Section 2, paragraph D of said Ordinance. SECTION 4. That Article V, Section 2, of said Ordinance be -2- . amended to read as follows: Cection 2. Line Extension Policy Grantee's extension of service to tho3e areas not included in the initial 3ervice area shall be done pur3uant to the follo~ing requirements: ~. Residences located otltside the initial 3ervice area will be provided 3er~ice upon acceptance of a quote -from Crantee. The quotc ohall not clccccd thc coot to Crantec, calculated on n timc and matcrial bnoio,~ extending the cable and neceGoary cnblc equipment to ocrvice the rC3idcnce. B. ^ny nonrcGidential uoer requeoting ocrvice ~ill bc provided Gcrvicc upon acceptance of a quote from Grantee. The quote Ghall not excecd the C03t to Grantee, ealculatcd on a timc and material bacia, of extending thc cablc and nece33ary cable equipment to 3crvice Gaia uocr. SECTION 2. MODIFICATION OF INITIAL SERVICE AREA: EXPANSION OF SERVICE AREA: AND LINE EXTENSION POLICY. A. Service will be provided to dwelling and nonresi- dential units of the City in areas with an average density less than forty (40) dwelling units per street mile or cable mile whichever, as determined by City, provides the greater benefit to the subscribers, (the "extended area"), and not within the Initial Service Area, upon payment of a construc- -3- . tion charge base~on the cost contribution formula defined _ below. Dwelling and nonresidential units in areas with an average density of at least forty (40) dwelling units per , street mile or cable mile whichever, as determined by City, provides the greater benefit to the subscribers, and those within the Initial Service Area, will not be required to make a cost contribution pursuant to the cost contribution formula below in order to receive service; but the installa- tion charges set out in Part I. A. of Exhibit B to said . Ordinance, as hereby amended, shall apply to such dwelling and nonresidential units. The monthly charge for cable service in the extended area shall be the same as elsewhere in the system. B. The cost contribution for construction charges to be allocated to each dwelling and nonresidential unit in the extended area whose occupants petition pursuant to Section 2. C.I hereof will be determined as follows: 1. Grantee shall estimate the total cost of constructing and maintaining for three (3) years from the date service is available, the line extension to be constructed in the extended areas. Total construction cost is defined as including plant make ready and all lahor and material costs necessary to construct and activate that part of the system commencing at the -4- nearest point of existing plant and running to and within the extended area. 2. The standard cost per dwelling and nonresi- dential unit in the extended area shall be determined by dividing the total from (1) above by 40, being the standard minimum dwelling unit density. 3. Grantee's contribution to the cost of the line extension shall be determined by dividing the total number of dwelling un~ts in the extended area, as designated by the City Council pursuant to Section 2.C.2 below, by the number of cable miles or street miles in the extended area whichever, as determined by City, produces the greater benefit to the subscribers, and multiplying the resulting number by the standard cost per dwelling unit. 4. The difference between the total costs at (I) above and the Grantee's contribution at (3) above is the total contribution of the dwelling and nonresiden- tial units in the extended area. 5. The construction charge to be paid by each subscriber shall be determined by dividing the total contribution of the dwelling and nonresidential units from (4) above by the number of dwelling and nonresi- dential units whose occupants joined in the petition pursuant to Section 2.C.I hereof. -5- e C. Extended areas shall be established and service under the line extension policy shall be provided in accord- ance with the following procedure. 1. Occupants of dwelling and nonresidential units in an area with an average density of less than fort~ (40) dwelling units per street mile or cable mile as determined above, who desire service shall petition the Council for designation as an extended area. The petition shall include a map showing the dwelling and nonresidential units proposed to be included in the designated extended area. 2. The Council shall by resolution designate the dwelling and nonresidential units to be included in the extended area. 3. Upon designation of an extended area, Grantee shall prepare a map indicating the trunk cable line that will be constructed to serve the extended area and shall estimate the combined total construction cost and three (3) year maintenance cost for service to the extended area (Section 2.B.I), the Grantee's contribu- tion (Section 2.B.3), and the total contribution of the dwelling and nonresidential units (Section 2.B.4). 4. Grantee will estimate the construction charge to each dwelling and nonresidential unit according to the formula in section 2.B.5, above. Grantee will -6- notify Council and occupants in the extended area of the construction charge estimate by U.S. mail. 5. Occupants within the extended area who wish to become subscribers will have thirty (30) days after mailing of such notice to commit to service, by execu- ting and submitting a commitment form to Grantee. The commitment form shall be submitted to and approved in writing by the City prior to its use by Grantee. 6. Occupants within the same thirty (30) day period shall deposit the amount of the construction charge estimate into an escrow account to be main- tained by the City. If the number of occupants who deposit the construction charge estimate within such thirty (30) day period is less than the number who join in the petition (and the aggregate deposit made by such occupants is less than the total contribution of dwelling and nonresidential units required by Section 2.C.7.), Grantee shall, within ten (10) days after the end of the thirty (30) day period, notify in writing by U. S. mail such depositing occupants of the deficiency in the escrow account, and such occupants may make addi- tional deposits within ten (10) days of mailing of such notice. 7. If the total contribution of dwelling and nonresidential units as determined by Section 2.B.4. is -7- deposited within the time periods specified in C.6 above, Grantee shall construct the line extension. Construction shall be completed and service made available to the extended area within twelve (12) months from the end of the subscriber deposit period subject to extension of said twelve (12) month period pursuant to Article V, Section 3, paragraph C of said ordinance as amended. 8. Upon completion of the line extension construction and activation of service to the extended area, Grantee shall submit to the City a detailed state- ment setting forth all actual construction expenses, including labor, and an estimate of maintenance expense, ~ith such supporting documentation and information as the City may request. Said statement shall be cer- tified by an officer of Grantee. Upon receipt, review and approval by the City, the City shall pay to Grantee the actual cost of construction and projected maintenance expense, as approved by City, from the escrow account. Any excess funds in the escrow account shall be divided among and returned to the subscribers in proportion to the amounts contributed by them. In no event shall the money paid to Grantee exceed the escrow amount. 9. Any occupant in an extended area who did not -8- ~ participate by initial subscriber contribution under paragraphs (5) and (6) above and who wishes to hook ue to the line extension within the first three (3) years after service is commenced in the extended area must deposit into an escrow account to be maintained by the City the amount of the construction charge estimate under paragraph 6 above and adjusted in accordance with paragraph 8 above. All such new contributions shall be held in escrow until the end of the third year after service is commenced in the extended area, at which time all funds in escrow shall be divided equally and returned to the then current subscribers. At the end of the three (3) years following the commencement of service to the extended area, all sub- sequent subscribers in the extended area shall be charged the same installation charge as other subscribers who are in areas with an average density of at least forty (40) dwelling units per street mile or cable mile. D. Nonresidential units and public buildings in an area not within the Initial Service Area or an extended area shall be provided service upon acceptance of a quote from Grantee. The quote shall not exceed the cost to Grantee, calculated on a time and material basis, of extend- ing the cable and necessary cable equipment to service said -9- user. - E. Grantee shall indemnify and hold the City and its respective elected officials, officers, agents, employees and representatives, harmless from and indemnified against any and all loss, costs, damage and expense, including, without limitation, attorneys' fees, now or hereafter incurred by it, and arising out of or due to, or claimed to arise out of or be due to, this Ordinance, the adoption thereof or the process followed by City in adopting this Ordinance. SECTION 5. That Paragraph C(l), Article VI, Section 4 of said Ordinance be amended to read as follows: (1) Rates and charges charged by Grantee for monthly service and inatallation and other charges hereunder shall be uniform, fair and reasonable and designed to meet all necessary costs of service, including a fair rate of return on the original cost, less depreciation, of the properties devoted to such service (without regard to any subsequent sale or transfer price or cost of such properties). Construction cost contributions shall be made pursuant to Article V, Section 2 and Exhibits A and B hereto. SECTION 6. That Article XIV, Section 2, paragraph H, of said Ordinance be amended to read as follows: H. Each exhibit is a part of this Franchise and each is specifically incorporated herein by reference. The exhi- bits are as follows: -10- . . t Amended Exhibit A - The heading of Exh~bit A is amend to read as follows: Map of Construction by Area, Including Time Schedule and Initial Service Area. Amended Exhibit B - Rate Schedule (see Section (7) of this amending Ordinance for the amendment to Exhibit B) SECTION 7. That Exhibit B of said Ordinance be amended by deleting Article I, Section A, paragraph 5. SECTION 8. That notwithstanding any other provision of this , Ordinance, if less than all of the other of the Cities of Eden prairie, Edina, Hopkins, Minnetonka and Richfield offer a similar franchise Ordinance amendment to Grantee, which is accepted by Grantee, Grantee or City may cancel this franchise Ordinance amendment and all of their obligations hereunder by written notice given to the other not later than thirty (30) days after all the other of said Cities shall have formally acted upon their respective similar franchise Ordinance amendments; provided, that if Grantee elects to cancel this franchise Ordinance amendment pursuant hereto, it must also cancel all other franchise Ordinance amendments granted to it by the other of said Cities effective simultaneously herewith. SECTION 9. Grantee shall have thirty (30) days from the last date of adoption of a similar franchise Ordinance amendment by all of the Cities listed in Section 8 of this Ordinance, to -ll- . '.' .( , accept this franchise Ordinance amendment ~n form and substance acceptable to City. However, in no e ent will acceptance occur later than ninety (90) days after the adoption of this franchise Ordinance amendment unless the time for acceptance is extended by City. Such acceptance by Grantee shall be deemed the grant of this franchise Ordinance amendment for all purposes. SECTION 10. With its acceptance, Grantee also shall deliver to City an opinion from its legal counsel, acceptable to City, stating that this franchise Ordinance amendment has been duly accepted by Grantee, that this franchise Ordinance amendment is enforceable against Grantee and the guarantors of the franchise granted by the said Ordinance, in accordance with its terms, and which opinion shall otherwise be in form and substance acceptable to City. SECTION 11. That this Ordinance shall be in full force and effect upon adoption and publication and acceptance in writing by Grantee. Passed and adopted this 7th day of June , 1983. CIT HOPKINS, By And ~~!~er~ -12-