(A) Transfer of ownership and control.
(1) Except as provided in this section, permittees shall not sell, transfer, assign, lease, pledge, encumber, alienate, or otherwise dispose of substantially all of its assets, any permit under this chapter, or the system in the village, in any manner, nor shall title thereto, either legal or equitable, or any right, interest, or property therein pass to or vest in any person or entity without the prior written consent of the village.
(2) If the person or entity in control of permittees (transferor) is also in control of the proposed permittees (transferee), then a transfer may occur within the controlling person's or entity's corporate, partnership, or business structure without obtaining village consent. Provided, however, at least 90 days before the transfer is to occur the person or entity who is in control of both the permittees (transferor) and proposed permittees (transferee) files a satisfactory document with the Village Clerk stating that this transfer shall not effect the financial, legal, technical, or management abilities of permittees to perform under the permit and ensures and guarantees the proposed permittee's (transferee) compliance with the permit. In the absence of such a document, there can be no change in, transfer of, or acquisition of control of a permittee or of any entity, at whatever tier or level which directly or indirectly controls a permittee without the prior written consent of the village.
(3) The prior written consent of the village, in any of the foregoing instances (collectively referred to in this chapter as a transfer), will not unreasonably be withheld nor unreasonably delayed.
(4) For the purposes of this chapter, “ . . . change in, transfer of, or acquisition of control of a permittee . . .” shall mean any change in identity of the person or persons who directly or indirectly direct, or has the power to direct, the management and policies of a permittee, whether through the ownership of voting securities or other equity interest, by contract or otherwise. Without limiting the generality of the foregoing, for the purposes hereof, such a change shall be deemed to have occurred at any point in time when there is:
(a) A change in the effective shareholder voting control, in whatever manner effectuated, of a permittee;
(b) An agreement of the holders of voting stock of a permittee which effectively vests or assigns policy decision-making in any person or entity other than a permittee; or
(c) A sale, assignment, or transfer of any shares or interest in a permittee which results in a change in the control of a permittee.
(5) Notwithstanding division (A)(4) above, the permittees may grant a security interest in its rights under a permit in favor of a third party qualified financial institution, as defined herein, without first obtaining the consent of the village. QUALIFIED FINANCIAL INSTITUTION means an entity which does not operate, and is not affiliated with any entity directly or indirectly that operates a telecommunications, telephone, cable service (televisions), or other communications delivery or reception system, receives over 50% of its revenues from the provision of regulated financial services, has assets of over $5,000,000,000, or is a manufacturer of telecommunications equipment who has lent funds to permittees and obtained a reasonable secured interest. For purposes of this division (A)(5), AFFILIATED means a person or entity that directly or indirectly through 1 or more intermediaries controls, is controlled by, or is under common control with a qualified financial institution.
(6) In the event a qualified financial institution must enforce its security interest and execute on the collateral, the qualified financial institution will assume the position of permittees with all of its rights and responsibilities under the permit, and the terms and conditions of the permit shall be binding on the qualified financial institution.
(7) Village's prior written consent shall not be required prior to the qualified financial institution's execution on the collateral. Provided, however, that the qualified financial institution shall give village written notice no less than 15 days prior to taking possession on the collateral.
(8) The qualified financial institution will use its best efforts to expeditiously transfer or assign the collateral within 180 days to a transferee or assignee who is engaged in the business of providing the services defined in the permit, which terms and conditions shall be binding upon the successors or assigns of permittees or of a qualified financial institution.
(B) Applications for change in ownership; control; management or encumbrance of the system.
(1) Application. In the event a permittee seeks to obtain the consent of the village to any transactions described in division (A) above, a permittee shall submit to the Village Clerk an application for the consent in the form required by the village.
(2) Conditions to approval. For purposes of determining whether the village will consent to any matter described in the application, the Village Clerk may require additional reasonable information from a permittee and the parties involved in the proposed transaction. All information requested on behalf of the village shall be submitted to the village within 10 business days of the request. If the
applicant fails to respond to the village's request for information within 10 business days of the request, the 60-day and 90-day periods for acting on the transfer under division (B)(3) below shall be extended by the number of days after the deadline that the requested information is provided to the village.
(3) Village approval. The Village President shall submit to the Village Council within 60 days after the filing of the application his or her recommendation to approve or disapprove the transfer, along with the Village Attorney's concurrence with the recommendation. Approval or disapproval of a transfer shall occur within 90 days after the filing of the application. Both the 60 days and 90 days provided for in this division (B)(3) are subject to any adjustments for delays in responding to the village's request for information as provided in division (B)(2) above.
(4) Assumption of obligation. The village's consent may contain the provisions as may be approved by the Village Attorney under which the party involved in the transaction will assume and agree to perform and comply with all of the provisions, terms, and conditions of the permit and all applicable federal, state, and local laws and laws and regulations applicable to the ownership, operation, or maintenance of the system and, further, that any party assuming a permittee's obligations under this chapter shall be primarily liable and obligated to the village for the performance.
(C) No waiver. The consent or approval of the village to a transfer shall not constitute a waiver or release of the rights of the village in and to the public rights-of-way and any transfer or approval of the transaction shall be deemed to be expressly subject to the terms and conditions of this chapter. In connection with any request for village consent to a transfer, the village shall have the right to require the reimbursement of village's costs and the satisfaction of reasonable conditions as a prerequisite or condition of the approval of the transaction.
(D) Unauthorized transfer. Any transaction described in division (A) above which is entered into by a permittee without the required consent of the village shall be a violation of this section and shall be null and void. In addition, the transaction shall make the subject permit, or permits covering the subject assets or system, null and of no effect.
(Ord. 236, passed 4-17-2000) Penalty, see § 158.99