(a) Grant.
(1) Communication firms are eligible to provide either Cable Service or Competitive Video Service. By electing to provide Cable Service, a communications firm is precluded from providing competitive video service in the City. By electing to provide Competitive Video Service, a communications firm is precluded from providing Cable Service in the City. Existing Cable Franchises shall remain in full force and effect until the end of their term, at which time the Provider can elect to continue to be a Cable Service or opt to become a Competitive Video Service.
In the event that Grantor shall grant to the Provider a nonexclusive, revocable Permit to construct, operate, and maintain a Cable System or Competitive Video System within the City, said Permit shall constitute both a right and an obligation to provide Cable Service or Competitive Video Service as regulated by the provisions of City Ordinances including, but not limited to, Chapters 705 and 905 of the Codified Ordinances and the Permit.
(2) The Permit shall be granted under the terms and conditions contained herein, consistent with the City's Charter and/or other applicable statutory requirements. In the event of conflict between the terms and conditions of this chapter, the Permit, or the terms and conditions on which Grantor can grant a Permit, the Charter and/or statutory requirements shall control.
(3) Any Permit granted by Grantor is hereby made subject to the general ordinance provisions now in effect and hereafter made effective. Nothing in the Permit shall be deemed to waive the requirements of the various codes and ordinances of the City regarding permit, fees to be paid, or manner of construction.
(b) Permit Area. The Permit Area shall be the entire City, or designated portions thereof, for which a Permit is granted.
(c) Use of Public Rights of Way. For the purpose of operating and maintaining a Cable System or Competitive Video System in the City, the Provider may erect, install, construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the Public Ways within the City such wires, cable, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary to the operation of the Cable Communications System, provided, however, that Provider complies with all design, construction, safety, and performance provisions contained in this chapter, the Permit, and other applicable local ordinances.
(d) Use of Provider Facilities. No poles shall be erected by the Provider without prior approval of the City with regard to location, height, type and any other pertinent aspect. However, no location of any pole of the Provider shall be a vested right and such poles shall be removed or modified within a reasonable period of time by the Provider at its own expense whenever the City determines that the public convenience would be enhanced thereby. The Provider shall utilize existing poles and conduits, where possible. The City shall have the right, during the life of the Permit, to install and maintain upon the poles owned by the Provider, any wire and pole fixtures that do not unreasonably interfere with the operations of the Provider. City shall fully defend, indemnify and hold Provider harmless from any cause of action that might arise from or be due to actions or omissions by the City when it is involved in the private use of the Provider's poles.
(e) Permit Required. No Cable System or Competitive Video System shall be allowed to occupy or use the streets of the City or be allowed to operate without a Permit pursuant to this Chapter.
(f) Term of Permit. The term of any Permit granted pursuant to this chapter shall be stated in the Permit.
(g) Permit Nonexclusive. Any Permit granted pursuant to this chapter shall be nonexclusive. Grantor specifically reserves the right to (1) grant at any time such additional Permits for Cable Systems or Competitive Video Systems as it deems appropriate, and/or (2) build, operate, and own such Cable Communication System or Competitive Video System as it deems appropriate. Notwithstanding anything to the contrary, however, no such Permit shall be granted on terms or conditions other than in accordance with federal and state law and which, when taken as a whole, are materially more favorable or less burdensome than those imposed upon any other Provider hereunder.
(h) Time is of the Essence to this Agreement. Whenever an Ordinance shall set forth any time for an act to be performed by or on behalf of the Provider, such time shall be deemed of the essence and any failure of the Provider to perform within the time allotted shall always be sufficient ground for the City to invoke an appropriate penalty including possible revocation of the Permit.
(i) Law Governs. In any controversy or dispute under this Ordinance, the law of the State of Ohio shall apply.
(j) Severability.
(1) If any section, subsection, sentence, clause, phrase or portion of this chapter or the Permit is for any reason held invalid or unconstitutional by any court of competent jurisdiction, or preempted or superseded by any Federal or State statute or regulation, such portion shall be deemed a separate, distinct and independent provision and such holding or preemption shall not affect the validity of the remaining portions thereof;
(2) Notwithstanding any other provisions of this chapter to the contrary, the Provider shall at all times comply with all laws and regulations of the state and federal government. In the event that any actions of the State or Federal government or any agency thereof, or any court of competent jurisdiction upon final adjudication, substantially reduce in any way the power or authority of the City under this chapter or the Permit, or if in compliance with any State or Federal law or regulation, the Provider finds conflict with the terms of this chapter, the Permit, or any law or regulation of the City, then as soon as possible following knowledge thereof, the Provider shall notify the City of the point of conflict believed to exist between such law or regulation and the laws or regulations of the City, this chapter and the Permit.
(k) Transfer of Ownership or Control.
(1) Transfer of Permit. Any Permit granted hereunder shall not be sold,transferred, leased, assigned or disposed of, including but not limited to, transfer by force or voluntary sale, merger, consolidation, receivership or other means, nor shall the control of the Provider be changed, without the prior consent of the City, and then only under such conditions related to the qualifications of the transferee, as the City may establish.
(2) The Provider shall promptly notify the City of any actual or proposed change in, or transfer of, or acquisition by any other party of, control of the Provider. The word "control" as used herein shall apply to the sale or transfer of all or a majority of the Operator's assets, merger (including any parent and its subsidiary corporation), consolidation, creation of a subsidiary corporation or sale or transfer of stock in the Operator so as to create a new controlling interest. The term "controlling interest" as used herein is not limited to majority stock ownership, but includes actual working control in whatever manner exercised.
(3) Every transfer, or acquisition of control of the Provider shall make thePermit subject to cancellation unless and until the City, for those transactions requiring City approval, shall have consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to a transfer or acquisition of control, the City may inquire into the legal, financial, character, technical qualifications and the experience of the prospective controlling party, and the Provider shall assist the City in any such inquiry. Failure to provide all material information reasonably requested by the City as part of said inquiry may be grounds for denial of the proposed change, transfer or acquisition of control.
(4) Assumption of Control. The City agrees that any financial institution having a pledge of the Permit or its assets for the advancement of money for the construction and/or operation of the Permit shall have the right to notify the City that it or its designees satisfactory to the City will take control and operate the Cable System or Competitive Video System. Further, said financial institution shall also submit a plan for such operation that will insure continued service and compliance with all Permit obligations during the term the financial institution exercises control over the Cable System or Competitive Video System. The financial institution shall not exercise control over the System for a period exceeding one year, unless extended by the City at its discretion and during said period of time it shall have the right to petition for transfer of the Permit to another Provider. If the City finds that such transfer, after considering the legal, financial, character, technical qualifications and the experience of the applicant are satisfactory, the City will approve the transfer and assignment of the rights and obligations of such Permit as in the public interest. The consent of the City to such transfer shall not be unreasonably withheld.
(5) The consent or approval of the City to any transfer of the Permit shall not constitute a waiver or release of the rights of the City in and to the streets, and any transfer shall, by its terms, be expressly subject to the terms and conditions of this chapter and the Permit.
(6) Any approval by the City of transfer of ownership or control shall be contingent upon the prospective controlling party becoming a signatory to the Permit.
(7) The City shall act upon any transfer or acquisition of control requiring City approval in compliance with federal law governing municipal approval of such transfers. Notwithstanding anything to the contrary, no such prior consent shall be required for a transfer or assignment to any person controlling, controlled by or under the same common control as the Provider.
(l) Permit Renewal. Upon completion of the term of any Permit granted under this chapter, Grantor may grant or deny renewal of the Permit of the Provider in accordance with the provisions of the Cable Act and this Chapter. The Provider shall own the Cable System or Competitive Video System, but shall have no property right in the public rights of way upon the completion of the Permit term.
(m) Police Powers.
(1) In accepting the Permit, the Provider acknowledges that its rights hereunder are subject to the police power of the City to adopt and enforce general ordinances necessary to the safety and welfare of the public; and it agrees to comply with all applicable general laws and ordinances enacted by the City pursuant to such power.
(2) Any conflict between the provisions of this chapter or the Permit and any other present or future lawful exercise of the City's police powers shall be resolved in favor of the latter, except that any such exercise that is not of general application in the City or applies exclusively to Provider which contains provisions inconsistent with this Ordinance shall prevail only if, upon such exercise, the City finds an emergency exists constituting a danger to health, safety, property or general welfare and such exercise is mandated by law.
(n) Permit Fees.
(1) Fee. The Provider of any Permit hereunder shall pay to the City a Permit fee in an amount as designated by the City up to five percent (5%) of the Gross Annual Revenues. The Permit payment shall be in addition to any other fee and shall commence as of the effective date of the Permit. The City shall be furnished a statement of said payment by an officer of the Provider, reflecting the total amounts of Gross Annual Revenues and the above charges and computations for the period covered by the payment.
(2) Permit fee in addition to other tax or payment. This payment shall be in addition to any other tax or payment owed to the City by the Provider. Payment of the Permit Fee made by Provider to the City shall not be considered in the nature of a tax, but shall be in addition to any and all taxes which are now or may be required hereafter to be paid by any Federal, State, or Local law.
(3) Acceptance by the City. No acceptance of any payment by the City shall be construed as a release or as an accord and satisfaction of any claim the City may have for further or additional sums payable as a Permit Fee under this Ordinance or for the performance of any other obligation of the Provider.
(4) Failure to make required payment. In the event that any Permit Fee payment or recomputed amount is not made on or before the dates specified herein Provider shall pay as additional compensation an interest charge, computed from such due date, at the annual rate equal to the commercial prime interest rate of the City primary depository bank during the period that such unpaid amount is owed.
(5) Payments to be made quarterly. The Permit Fee and any other cost or damage assessed against the Provider shall be payable quarterly to the City. The Provider shall file a complete and accurate verified statement of all Gross Annual Revenues within the Permit area during the period for which said quarterly payment is made, and said payment shall be made to the City no later than forty-five (45) days following the end of each calendar quarter. Quarterly computation dates are the last day in the months of March, June, September and December.
(6) The City's right of inspection. The City shall have the right to inspect the Provider's income records and the right to audit and to recompute any amounts determined to be payable under this chapter. Any additional amount due the City as a result of the audit shall be paid within thirty (30) days following written notice to the Provider by the City which notice shall include a copy of the audit report.
(o) Forfeiture or Revocation.
(1) Grounds for revocation. The City reserves the right to revoke any Permit granted hereunder and rescind all rights and privileges associated with the Permit in the following circumstances, each of which shall represent a default and breach under the Ordinance and the Permit grant:
A. If the Provider shall default in the performance of any of the material obligations under this chapter or under such documents, contracts and other terms and provisions entered into by and between the City and the Provider pursuant to this chapter.
B. If the Provider shall fail to provide or maintain in full force and effect the liability and indemnification coverage or the performance bond as required herein.
C. If the Provider shall violate any orders or rulings of any regulatory body having jurisdiction over the Provider relative to this chapter or the Permit.
D. If the Provider attempts to evade any of the provisions of this chapter or the Permit or practices any fraud or deceit upon the City or subscribers.
E. The Provider becomes insolvent or, unable to pay its debts or is adjudged bankrupt.
F. The Provider fails to restore Service after seventy-two (72) consecutive hours of interrupted Service, except when approval of such interruption is obtained from the City.
G. Material misrepresentation of fact in the application for or negotiation of the Permit or any extension or renewal thereof.
H. If the Provider ceases to provide Service for any reason within the control of the Provider over the Cable Communications System.
(2) Effect of circumstances beyond control of Provider. The Provider shall not be declared at fault or be subject to any sanction under any provision of this Ordinance in any case, in which performance of any such provision is prevented or delayed due to a Force Majeure.
(3) Litigation. Pending litigation or any appeal to any regulatory body or court having jurisdiction over the Provider shall not excuse the Provider from the performance of its obligations under this chapter or the Permit unless a stay is granted. Failure of the Provider to perform such obligations because of pending litigation or petition may result in forfeiture or revocation pursuant to the provisions of this section.
(4) Procedure prior to revocation.
A. The City shall make written demand that the Provider does so comply with any such requirement, limitation, term condition, rule or regulation or correct any action deemed cause for revocation. If the failure, refusal or neglect of the Provider continues for a period of thirty days following such written demand, the City shall place its request for termination of the Permit upon a regular Council meeting agenda. The City shall cause to be served upon such Provider at least seven days prior to the date of such Council meeting, a written notice of this intent to request such termination, and the time and place of the meeting, notice of which shall be published by the Clerk of Council at least once, seven days before such meeting in a newspaper of general circulation within the City. The time for the Provider to correct any alleged violation shall be extended by the City, if the necessary action to correct the alleged violation is of such a nature or character to require more then thirty days within which to perform, provided the Provider provides a plan reasonably acceptable to the City and the Provider commences the corrective action within the thirty day period and thereafter uses its best efforts to correct the violation.
B. The Council shall hear any persons interested therein, and shall determine whether or not any failure, refusal or neglect by the Provider was with just cause.
C. If such failure, refusal or neglect by the Provider was with just cause, as defined by the City, the Council shall direct the Provider to comply within such time and manner and upon such terms and conditions as are reasonable.
D. If the Council shall determine such failure, refusal, or neglect by the Provider was without just cause, then the Council shall, by resolution, declare that the Permit of the Provider shall be terminated and the performance bond forfeited unless there is compliance by the Provider within a specified period of time not to exceed ninety days.
(5) Disposition of facilities. In the event a Permit expires and a renewal denied, is revoked or otherwise terminated, the City may in its sole discretion, do any of the following:
A. Effect a transfer of ownership of the Cable System or Competitive Video System to another party; and
B. Order the removal of the Cable System or Competitive Video System required by public necessity from the City within a reasonable period of time as determined by the City or require the original Provider to maintain and operate its Cable System or Competitive Video System for period of six (6) months or until such further time as is mutually agreed upon.
(6) Restoration of property. In removing its Cable System or Competitive Video System, the Provider shall refill, at its own expense, any excavation that shall be made by it and shall leave all Public Ways and places in as good a condition or better as that prevailing prior to the Provider's removal of its Cable System or Competitive Video System without affecting the electrical or telephone cable wires or attachments. The City shall inspect and approve the condition of the Public Ways and public places and cables, wires, attachments, and poles after removal. The liability, indemnity, insurance and performance bond as provided herein shall continue in full force and effect during the period of removal and until full compliance by the Provider with the terms and conditions of this paragraph, this chapter and the Permit.
(7) Restoration by City; reimbursement of costs. In the event of a failure by the Provider to complete any work required by City law or ordinance within the time as may be established and to a condition as good as that before said work, the City may after affording Provider notice and a reasonable opportunity to cure, cause such work to be done and the Provider shall reimburse the City the cost thereof within thirty days after receipt of an itemized list of such costs or the City may recover such cost through the performance bond or letter of credit provided by Provider. The City shall be permitted to seek legal and equitable relief to enforce the provisions of this Section.
(p) Receivership and Foreclosure.
(1) Termination by insolvency. Any Permit granted pursuant to an Ordinance shall, at the option of the City, cease and terminate 120 days after the appointment of a receiver or receivers or trustee or trustees to take over and conduct the business of the Provider whether in a receivership, reorganization, bankruptcy or other action or proceeding unless such receivership or trusteeship shall have been vacated prior to the expiration of said 120 days, or unless:
A. Such receivers or trustees shall have, within 120 days after their election or appointment, fully complied with all the terms and provisions of this chapter and the Permit granted pursuant hereto, and the receivers or trustees within said 120 days shall have remedied all defaults under the Permit; and
B. Such receivers, or trustees shall, within said 120 days, execute an agreement duly approved by the Court having jurisdiction in the premises, whereby such receivers or trustees assume and agree to be bound by each and every term, provision and limitation of the Permit herein granted.
(2) Termination by judicial action. In the case of a foreclosure or other judicial sale of the Cable System or Competitive Video System or any part thereof, including or excluding the Permit, the City may serve notice of termination upon the Provider and the successful bidder at such sale, in which event the Permit and all rights and privileges of the Provider granted hereunder shall cease and terminate thirty (30) days after Service of such notice unless:
A. The City shall have approved the transfer of the Permit, in the manner this chapter provides, and
B. Such successful bidder shall have covenanted and agreed with the City to assume and be bound by all the terms and conditions of the Permit.
(q) Equal Opportunity Policy. Equal opportunity employment shall be afforded by a Provider to all qualified persons, and no person shall be discriminated against in employment because of race, color, religion, age, national origin, sex, or physical handicap. Provider shall comply with all equal opportunity provisions enacted by Federal, State and local authorities, as well as all such provisions contained in this chapter and the Permit.
(r) Notices. All notices from Provider to the City pursuant to this chapter and the Permit shall be to the Mayor or his/her designee. Provider shall maintain with the City, throughout the term of the Permit, an address for service of notices by mail. Provider shall also maintain with the City, a local facility in Franklin County and telephone number for the conduct of matters related to the Permit during normal business hours. The Provider shall advise the City of such address (es) and telephone numbers and any changes thereof.
(s) Failure of City to Enforce this Permit, No Waiver of the Terms Thereof. The Provider shall not be excused from complying with any of the terms and conditions of this chapter or the Permit by any failure of the City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions.
(t) Rights Reserved to the City.
(1) Renewal. If a renewal of the Permit held by the Provider is denied and the City acquires ownership of the Cable System or Competitive Video System or effects a transfer of ownership of the Cable System or Competitive Video System to another person, any such acquisition or transfer shall be at fair market value determined on the basis of the Cable System or Competitive Video System valued as a going concern but with no value allocated to the Permit itself.
(2) Revocation.If the Permit held by the Provider is revoked for cause and the City acquired ownership of the Cable System or Competitive Video System or effects a transfer of ownership of the System to another person, any such acquisition or transfer shall be at an equitable price.
(3) Right of inspection of records. The City shall have the right to inspect all books, records, reports, maps, plans, relevant financial statements, and other like materials of the Provider, where reasonably related to the administration of the Permit and the exercise of the rights and responsibilities of both parties, at any time during normal business hours.
(4) Right of inspection of construction. The City shall have the right to inspect all construction or installation work performed subject to the provisions of the Permit and to make such tests as it shall find necessary to ensure compliance with the terms of this chapter and other pertinent provisions of the law.
(5) Right of inspection of property. At all reasonable times, Provider shall permit examination by any duly authorized representative of the City, of Cable System or Competitive Video System together with any appurtenant property of Provider situated within or without the City.
(6) Right of intervention. The City shall have the right of intervention in any suit or proceeding to which the Provider is party, and the Provider shall not oppose such intervention by the City.
(7) Right to require removal of property. Upon denial of renewal of this chapter or the Permit, or upon its revocation or expiration, as provided for herein, the City shall have the right to require the Provider to remove, at Provider’s own expense, all portions of the Cable System or Competitive Video System required by public necessity to be removed from all streets and Public Ways within the City; provided, however, the City shall not unreasonably withhold its permission if the Provider seeks to abandon portions of the Cable System or Competitive Video System.
(u) No Recourse Against the Grantor. Except for actions seeking equitable relief, the Provider shall have no recourse whatsoever against the City or its officials, boards, commissions, agents, or employees for any loss, cost, expense or damage arising out of any provision or requirements of the Permit or because of the enforcement of this chapter or the Permit except for unlawful acts of the City.
(Ord. 2007-13. Passed 6-18-07.)
(Ord. 2007-13. Passed 6-18-07.)