Fort Walton Beach Ordinance — 1382 Cable Communication Franchises — reading text

and expense, protect or relocate its cable communications system, or part thereof, as reasonably directed by the City officials or any governmental authority. (i) EMERGENCY REMOVAL OF PLANT. If at any time, in case of fire or disaster in the City, it shall become necessary in the reasonable judgment of the City to cut or move any of the wires, cables, amplifiers, appliances or appurtenances of the cable communications system, the City shall have the right to do so at the sole cost and expense of Grantee. The Grantee shall bear all costs of reinstallation, repair, and other costs resulting from or arising out of the emergency cutting -17- or removal of the cable communications system. The Grantor will make reasonable efforts to contact Grantee prior to cutting or moving any of the Grantee's facilities. (j) REMOVAL AND RELOCATION. The City shall have the power at any time to order and require Grantee to remove or relocate any pole, wire, cable, or other structure that is dangerous to life or property. Restoration shall be made to original condition. In the event that Grantee after notice, fails or refuses to act within a reasonable time, the City shall have power to remove or relocate the same at the sole cost and expense of Grantee. (k) REMOVAL OR ABANDONMENT. Upon termination of the franchise by passage of time or otherwise, the Grantee shall retain ownership of the cable communication system, except as otherwise provided herein or in Grantee's franchise, but shall have no right to the use of public rights of way. In such event and unless Grantee transfers the cable communications system to a subsequent Grantee approved by the City, Grantee shall remove its supporting structures, poles, transmission and distribution systems, and all other appurtenances from the streets and public rights of way and shall restore any property, public or private, to their original condition prior to the installation, erection, er construction of the cable communications system. Restoration of City property, including, but not limited to, the Public rights-of-way, shall be in -18- accordance with the directions and specifications of all affected departments and agencies of the City, and all applicable law. The Grantee, at the option and direction of the City, shall accomplish such restoration at its expense. Such removal shall be made with the supervision of the City. If such removal and restoration is not completed with twelve (12) months after the notice by the City delivered in writing to Grantee all of the Grantee's property remaining in the affected public rights-of-way shall, at the option of the City, be deemed abandoned and shall, at the option of the City, become the property of the City. In the event the Grantee fails or refuses to remove its system or satisfactorily restore all areas to the condition in which they existed prior to the original construction of the system, the City, at its option, may perform such work and collect the cost thereof from the Grantee. No surety on any bond shall be discharged until the City has certified to the Grantee in writing that the system has been dismantled, removed, and all other property restored to the satisfaction of the City. (1) LIMITATION ON USE OF FINANCIAL COMMITMENTS. Any financial commitments obtained by the Grantee which have been confirmed to the City pursuant to a franchise for use in connection with the construction, operation or maintenance of the cable communications system or the Grantee's performance of the terms, obligations, and conditions of this Ordinance and the franchise shall be used only for such purposes. (m) TRANSFER OF OWNERSHIP OR CONTROL. ~19- (1) Transfer of Franchise. No franchise granted hereunder, nor any interest therein, shall be transferred without the prior Consent of the City, and then only under such conditions as the City may reasonably establish, however, consent may not be unreasonably withheld. (2) Notice. The Grantee shall promptly notify the City of any actual or proposed change in, or transfer of, or acquisition by any other party of, ownership or control of the Grantee. The word "control" as used herein is not limited to major stockholders but includes actual working control in whatever manner exercised. A rebuttable presumption that a transfer of ownership or control has occurred shall arise upon the disposal by the Grantee, or any owner(s) thereof, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of twenty-five percent (25%) or more at one time of the ownership or controlling interest in the system, or fifty percent (50%) cumulatively over the term of the franchise of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert. (3) Conditions. Every change, transfer, or acquisition of control of the Grantee shall make the franchise subject to cancellation unless and until the City shall have consented thereto. For the purpose of determining whether it shall consent to such change, transfer, or acquisition of control, the City may inquire into the legal, financial, character, technical -20- qualifications of the prospective transferee or controlling party, and the Grantee shall provide the City with all required information. Failure to provide all information reasonably requested by the City as part of said inquiry shall be grounds for denial of the proposed change, transfer or acquisition of control. (4) Assumption of Control. The City agrees that any financial institution or private entities having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the franchise shall have the right to notify the City that it will take control and operate the cable television system. If the financial institution takes possession of the cable communications system the City shall take no action to effect a termination of the franchise without first giving to the Lender written notice thereof and a period of six (6) months thereafter (unless otherwise provided hereinbelow) (i) to allow the financial institution or its agent(s) to continue operating as the franchisee under the franchise and; (ii) to request the City, and for the City to determine whether, to consent to the assignment of the Grantee's rights, title, interest and obligations under the franchise to a qualified operator. The City acknowledges that in order for the financial institution to realize upon the collateral accorded to it by the loan documents, the financial institution must be entitled to a reasonable period of time after taking possession of the franchise under the loan document to obtain the City's consent to an assignment of the franchise to a qualified -21- eperator. The City agrees that such reasonable period of time is six (6) months after the financial institution takes possession of the cable communication system and, further, agrees that the City shall use its best efforts to decide upon the assignment of the franchise to the new operator proposed by the financial institution within such period of time. The financial institution shall be entitled to such possession and other rights granted under this paragraph until such time that the City determines whether to consent to such assignment (the "extended time"). If the City finds that such transfer, after considering the legal, financial, character, technical and other public interest qualifications of the applicant are satisfactory, the City will consent to the transfer and assign the rights and obligations of such franchise as in the public interest. During the six (6) month period or extended time, the financial institution shall enjoy alli the rights, benefits and privileges of the Grantee under the franchise, and the City shall not disturb such possession by the financial institution, provided the financial institution complies in all respects with the terms and provisions of the franchise and the Ordinance. The various rights granted to the financial institution under this paragraph are contingent upon the lender's continuous compliance with the terms and provisions of this Ordinance and the franchise during the entire aforementioned six (6) month period or extended time, if applicable. For example, should an agent of the financial institution take possession of the cable communication -22- system pursuant to rights granted to the financial institution under this paragraph, and such agent fails to comply with the level of service requirements set forth in this Ordinance or the franchise, the rights granted to the financial institution under this Ordinance and the franchise may be terminated in accordance with the procedures set forth in this Ordinance. (5) Consent. The consent or approval of the City or any other public entity to any transfer of the Grantee shall not constitute a waiver or release of the rights of the City in and to the public property or public rights of way, and any transfer shall, by its terms, be expressly subject to the terms and conditions of this Ordinance and the franchise. (6) New Construction. In the absence of extraordinary circumstances, the City will not approve any transfer or assignment of the franchise prior to completion of any new construction or substantial completion of a rebuild required by a franchise. This provision shall not apply to routine minor line extensions. (7) Purchase Price. The City reserves the right to review the purchase price of any transfer or assignment of the cable system. Should the City decide in the future to regulate the rates of the Grantee, any negotiated sale value which the City deems unreasonable will not be considered in the rate base for any subsequent request for rate increases, if permitted by applicable law. (8) Approval. Any approval by the City of transfer of -23- ownership or control shall be contingent upon the prospective controlling party becoming a signatory to the franchise agreement. (9) Right of First Purchase. The City reserves the right of first purchase in any transfer of the system. If the City decides to exercise this option, it shall give the Grantee notice of such intent within forty-five (45) days of receipt of notice from the Grantee and thereafter the City and the Grantee shall effect such transfer under the same terms and conditions as the proposed transferee or on such other terms and conditions as the parties may agree. (n) RIGHTS RESERVED TO THE GRANTOR. (1) Right to Purchase of the System by the City. (a) Right to Purchase. In the event the City revokes a franchise, pursuant to provisions of this Ordinance, or fails to renew a franchise under the provisions of §626(c) (1) (1996), the City shall have the right to purchase the franchised cable communications system. The City shall provide the Grantee with notification of the City's intent to purchase within one hundred twenty (120) days of termination. (b) Date of Valuation. The date of valuation shall be no earlier than the day following the date of expiration or termination of the franchise agreement and no later than the date the City makes a fair and reasonable offer for the system or the date of transfer of ownership, whichever occurs first. (c) Intent of the City to Purchase. Upon receipt of -24- notice of the City's intent to purchase the system, the Grantee and the City shall have ninety (90) days within which to negotiate the purchase price of the system. (d) Transfer to City. Upon exercise of this option, and the payment of the agreed upon sum by the City and its service of official notice of such action upon the Grantee, the Grantee shall immediately transfer to the City possession and title to all facilities and tangible property, real and personal, of the cable communications system, free from any and all liens and encumbrances not agreed to be assumed by the City in lieu of some portion