(A) Any franchise granted hereunder shall give to the grantee the right and privilege to construct, erect, operate, modify, and maintain, in, upon, along, above, over, and under streets, as defined in § 111.01, which have been or may hereafter be dedicated and open to public use in the city, towers, antennas, poles, cables, electronic equipment, and other network appurtenances necessary for the operation of a broadband telecommunications network in the city, except that the city shall have the first right of refusal to set any poles required.
(B) The grantee's franchise application dated and filed in the office of the Mayor or his or her appointee shall constitute and form a part of this chapter, except in the event of conflicting provisions, in which case the provisions of this chapter shall prevail.
(C) Any franchise granted hereunder shall give to the grantee the authority to trim trees upon and overhanging the streets in order to prevent damage to the telecommunications network and interruption of service. The tree trimming required will be done under the supervision and direction of the Director of Public Safety and Service and at the sole expense of the grantee.
(D) The franchise and rights therein granted by the city shall take effect in accordance with the provisions of § 111.08 and continue in full force and effect for a term of 15 years after the passage of Ord. 5868-82 or December 31, 1997, whichever is earlier.
(E) The city reserves the right to terminate at anytime any franchise granted hereunder and rescind all rights and privileges associated therewith in the event of:
(1) Noncompliance by the grantee with any provision of this chapter or of any supplemental written agreement entered into by and between the city and the grantee;
(2) The grantee becomes insolvent, enters into receivership or liquidation, files an application for bankruptcy or for composition of creditors, is unable or unwilling to pay his or her debts as they mature or is in financial difficulty of sufficient consequence to jeopardize the continued operation of the network;
(3) Violation by the grantee of any Federal Communications Commission order or ruling or the order or ruling of any other governmental body having jurisdiction over the grantee unless the grantee is lawfully contesting the legality or applicability of the order;
(4) The establishment of a claim by the franchise that any provision of this chapter or any franchise granted hereunder, is unreasonable, arbitrary, invalid, or void.
(F) In the event that the city shall decide to terminate for cause a franchise granted hereunder, it shall give the grantee 90 days written notice of its intention to terminate and stipulate the cause. If during the 90 day period the cause shall be cured to the satisfaction of the city, the city may declare the notice to be null and void. In any event before a franchise may be terminated the grantee must be provided with an opportunity to be heard before Council.
(G) When this franchise expires, or if a franchise granted hereunder is revoked, the grantee shall first offer its broadband telecommunications network for sale or lease to the city at a fair and just market value, which shall not include any amount for the franchise itself or for any of the rights or privileges granted by the city. The price to be paid by the city in the event it should exercise its option to purchase the property, or the rental price to be paid by the city in the event the city desires to lease the property, shall be agreed upon by the city and the franchisee, and in the event of their failure to agree, the purchase price or the rental price shall be determined and fixed by arbitrators to be appointed as follows:
(1) The franchisee acting on his or her behalf and Council acting for the city shall each choose an arbitrator, and the two thus chosen shall choose a referee. Upon failure for 5 days to agree on the referee, the Presiding Judge of Van Wert Municipal Court shall appoint a referee. The Board of Arbitrators shall make a valuation of the property or determine the rental price for the property of the company within 60 days after they are chosen. The parties shall share equally in the expenses of the referee, together with the expense of the hearing and investigation;
(2) In the determination and fixing of the purchase price, the arbitrators shall determine the original cost of the equipment and property, including buildings and real estate of the company, used or useful for the operation of the broadband communications network within the city, as well as the then current highest market value of the property and equipment of the franchise as determined by the arbitrators. The price shall not be less than the then current highest market value or the original cost thereof, less reasonable accrued depreciation, whichever is the higher. Within 3 months after the purchase values are agreed upon or fixed, the city shall pay the amount thereof in cash to the franchisee, whereupon the city shall be entitled to have transferred and conveyed to it, and shall be given possession of, the property. Any franchise conferred by this chapter shall thereupon cease;
(3) In the event the city leases the property and equipment of the franchise, the terms of the lease shall be for the unexpired term of this franchise. The rental price shall be agreed upon by the arbitrators based on a percentage of the value of the equipment and property of the company as determined above, plus an annual allowance for depreciation of equipment of all kinds based on the original cost of the equipment at the rates allowed or allowable under the rules and regulations of the United States Internal Revenue Service. The lease agreement under which the equipment and property of the franchisee are to be leased to the city shall contain a provision that the city shall maintain the property and equipment and all parts of it in as good condition as at the time it was so leased, reasonable wear and tear excepted. The lease, during the term thereof, shall not be assigned or transferred without the written approval of the franchisee;
(4) The city shall have 90 days to exercise this right of first refusal to purchase or lease the network. If the city does not exercise its option to purchase or lease and the network is not sold to another operator who has obtained a franchise from the city, within a reasonable period of time as determined by the city after expiration of the franchise term, the grantee shall, if permitted by the city, abandon the property in place or enter upon the public ways and public places of the city for the purpose of removing therefrom all of its plants, structures, and equipment and shall promptly remove all of its facilities and equipment from the premises of all subscribers at a time convenient to both the grantee and the subscriber.
(H) In so removing plants, structures, and equipment, the grantee shall refill, at its own expense, any excavation that shall be made by it and shall leave public ways and places in as good condition as that prevailing prior to the company's removal of its equipment and appliances without affecting, altering, or disturbing in any way the electric distribution or telephone cables, wire, or attachments on any poles. The Director of Public Safety and Service or his or her appointee shall inspect and approve the condition of public ways and public places and cables, wire attachments, and poles after removal. In the event of dispute of the Director's opinion, the grantee or any other person may request a hearing before Council at a regular Council meeting. Liability insurance and indemnity provided for herein shall continue in full force and effect during the entire period of removal.
(1981 Code, § 111.03) (Ord. 5055-73, passed 5-14-1973; Am. Ord. 5868-82, passed 11-22-1982)