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Record of Ordinances
Ordinance No.: 2001-10
Passed: May 29, 2001
AN ORDINANCE GRANTING A CABLE TELEVISION FRANCHISE
TO TWFANCH-ONE CO., DBA TIME WARNER COMMUNICATIONS, A WHOLLY-OWNED AFFILIATE
OF TIME WARNER ENTERTAINMENT CO., TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE
COMMUNICATIONS SYSTEM IN THE VILLAGE; SETTING FORTH CONDITIONS ACCOMPANYING
THE GRANT OF THE FRANCHISE; PROVIDING FOR REGULATION AND USE OF THE SYSTEM;
AND DECLARING AN EMERGENCY.
BE IT ORDAINED BY THE COUNCIL OF THE VILLAGE OF
WEST LAFAYETTE, STATE OF OHIO, AS FOLLOWS:
SECTION I.
DEFINITIONS
For the purpose of this Franchise, the following
terms, phrases, words and their derivations shall have the meanings given
herein. When not inconsistent with the context, words used in the present
tense include the future tense, words in the plural number include the singular
number and words in the singular number include the plural number. The words
“shall” and “will” are mandatory and “may” is permissive. Words not defined
shall be given their common and ordinary meaning.
A) “Cable Service” means (1) the
one-way transmission to subscribers of video programming (i.e., programming
provided by, or generally comparable to programming provided by, a television
broadcast station) and (2) subscriber interaction, if any, which is required
for the selection of such video programming.
B) “County” means the County of Coshocton,
a County in the State of Ohio.
C) “Force Majeure” means a strike, acts of God, acts of public enemies,
orders of any kind of a government of the United States of America or of the
State of Ohio or any of their departments, agencies, political subdivision;
riots, hurricanes, tornadoes, volcanic activity, storms, floods, washouts,
droughts, civil disturbances, explosions, partial or entire failure of utilities
or any other cause or event not reasonably within the control of the disabled
party.
D) “Grantee” means Time Warner
Communications, its lawful successors, transferees or assignees.
E) “Grantor” means Village of
West Lafayette.
F) “Gross Revenues” means all
service fees, installation charges, and all other fees or charges collected
from the provision of cable services to subscribers of the System. Gross
Revenues shall not include: (1) excise taxes; (2) sales taxes; or (3) any
other taxes or fees, including the franchise fee, which are imposed on the
Grantee or any subscriber by any governmental unit and collected by the Grantee
for such governmental unit.
G) “Person” means any corporation,
partnership, proprietorship or organization authorized to do business in the
State or any natural person.
H) “Public Property” means any
real property other than a street owned by any governmental unit.
I) “Street” means the surface of and the space above and
below any street, road, highway, freeway, lane, path, way, alley, court, sidewalk,
boulevard, parkway, drive, or any public easement or right-of-way now or hereafter
held by the Grantor which shall entitle Grantee to the use thereof for the
purpose of installing or transmitting over poles, wires, cables, conductors,
ducts, confluents, vaults,
manholes, amplifiers, appliances, attachments
and other property as may be ordinarily necessary and pertinent to a System.
J) “Cable Communications or “System”
means a facility, consisting of a set of closed transmission paths and associated
signal generation, reception and control equipment that is designed to provide
cable services and which is provided to multiple subscribers within the territorial
boundaries of Grantor.
SECTION II.
GRANT OF AUTHORITY
For the purposes of constructing, operating and
maintaining a System within the territorial boundaries of the Grantor, Grantee
may erect, install, construct, repair, replace, relocate, reconstruct and
retain in, on, over, under, upon, across and along the streets, including
over public right-of-way and through easements, within the Grantor such lines,
cables, conductors, ducts, confluents, vaults, manholes, amplifiers, appliances,
pedestals, attachments and other operating equipment as are necessary and
pertinent to the operation of the System.
SECTION III.
COMPLIANCE WITH APPLICABLE
LAWS AND ORDINANCES
A) This Franchise is granted pursuant
to the terms and conditions contained herein. Such terms and conditions shall
be subordinate to all applicable provisions of State and federal laws, rules
and regulations.
B) Grantee’s rights are subject to the
police powers of the Grantor to adopt and enforce ordinances necessary to
the health, safety and welfare of the public that are not otherwise inconsistent
with the terms and conditions of this Franchise. Grantee shall comply with
all applicable general laws and ordinances enacted by the Village pursuant
to that power.
SECTION IV.
TERRITORIAL AREA INVOLVED
This Franchise is granted for the territorial
boundary of the Grantor.
SECTION V.
FRANCHISE TERM
This Franchise shall commence upon the effective
date of this Order and shall expire fifteen years (15) thereafter unless renewed,
revoked or terminated sooner as herein provided.
SECTION VI.
FRANCHISE NON-EXCLUSIVE
The Franchise granted herein is non-exclusive.
The Grantor specifically reserves the right to grant, at any time, one or
more additional franchises for a System in accordance with State and federal
law; provided, however, no such future franchise shall be granted on terms
more favorable or less burdensome than those contained herein. In the event
a future franchise is granted on terms more favorable or less burdensome than
those contained herein, then this Franchise shall be deemed amended as of
the effective date of the future franchise to incorporate the more favorable
or less burdensome term(s) or condition(s) herein.
SECTION VII.
WRITTEN NOTICE
All notices or demands required to be given under
this Franchise shall be deemed to be given when delivered personally to the
persons designated below or upon the date actually received as evidenced by
registered or certified mail receipt addressed as follows:
If to the Grantor:
Village of West Lafayette
P.O. Box 175
West Lafayette, Ohio 43845
If to Grantee:
Time Warner Communications
737 Howard St.
Zanesville,
Ohio 43701
And
Time Warner Communications
1266 Dublin Road
Columbus, Ohio 43215
Such addresses may be changed by either party
upon notice to the other party given as provided in this Section.
SECTION VIII.
REPAIR OF STREETS AND PROPERTY
Any and all Streets or Public Property or private
property which are disturbed or damaged during the construction, repair, replacement,
relocation, operation, maintenance or reconstruction of the System shall be
promptly repaired by Grantee, at its expense, and to a condition as good as
that prevailing prior to Grantee’s work.
SECTION IX.
DAMAGES AND DEFENSES
A) Grantee shall indemnify, defend and
hold harmless the Grantor for all damages and penalties, at all times during
the term of this Franchise, as a result of or due to Grantee’s construction
or operation of the System.
B) In order for the Grantor to assert
its rights to be indemnified and held harmless, the Grantor must:
1) Promptly notify Grantee of any claim
or legal proceeding which gives rise to such right;
2) Afford Grantee the opportunity to
participate in and fully control any compromise, settlement, resolution or
disposition of such claim or proceeding; and
3) Fully cooperate in the defense of
such claim and make available to Grantee all such information under its control
relating thereto.
SECTION X.
LIABILITY INSURANCE
A) Grantee shall maintain, throughout
the term of this Franchise, liability insurance insuring the Grantor and the
Grantee with regard to all damages mentioned in Section IX. above in the following
minimum amounts:
1) One Million Dollars ($1,000,000) for
bodily injury or death to any one person.
2) One Million Dollars ($1,000,000) for
bodily injury or death resulting from any one accident.
3) One Million Dollars ($1,000,000) for
all other types of liability.
B) Upon request of the Grantor, Grantee
shall furnish to the Grantor certificates of insurance documenting that an
insurance policy has been obtained and is in full force and effect.
SECTION XI.
TRANSFER
OR ASSIGNMENT OF FRANCHISE
The Franchise granted herein shall not be transferred
or assigned by the Grantee without written notice to the Grantor.
SECTION XII.
FRANCHISE RENEWAL
This Franchise shall be renewed in accordance
with applicable state and federal law.
SECTION XIII.
GRANTOR’S RIGHT TO REVOKE
In addition to all other rights which the Grantor
has pursuant to law or equity, the Grantor reserves the right to revoke, terminate
or cancel this Franchise and all rights and privileges pertaining thereto
in the event that:
A) Grantee violates any material provision
of this Franchise; or
B) Grantee practices any fraud upon the
Grantor; or
C) Grantee becomes insolvent, unable or
unwilling to pay its debts, or is adjudged bankrupt.
SECTION XIV.
REVOCATION PROCEDURES
A) The Grantor shall notify the Grantee
of its intention to revoke, terminate or cancel this Franchise. The written
notice shall describe in reasonable detail the specific violation so as to
afford Grantee an opportunity to remedy the violation.
B) Grantee shall have ninety (90) days
or such additional period of time as may be reasonably necessary subsequent
to receipt of the notice in which to correct the violation before the Grantor
may formally revoke, terminate or cancel this Franchise. Grantee may, within
thirty (30) days of receipt of the notice, notify the Grantor that there is
a dispute as to whether a violation has, in fact, occurred. Such notice by
Grantee to the Grantor shall stay the ninety (90) day period described above.
C) The Grantor shall hear Grantee’s dispute and shall determine whether
a default or violation by Grantee has occurred. In the event that Grantor
shall determine that a default or violation has occurred the Grantor shall
supplement the decision with written findings of fact.
D) If after hearing the dispute Grantee
has been found to be in default, Grantee shall then have ninety (90) days
from such a determination to remedy the violation or failure. At any time
after that ninety (90) day period the Grantor may, by formal action at a public
hearing affording reasonable notice and opportunity for Grantee to be heard,
revoke, terminate or cancel this Franchise.
SECTION XV.
REMOVAL UPON REVOCATION
Upon the revocation of this Franchise as herein
provided, Grantee shall remove all of its attachments and wires from poles
used as authorized herein.
SECTION XVI.
FORCE MAJEURE
If by reason of a Force Majeure any party is unable in whole or in part to carry out
its obligations hereunder, that party shall not be deemed to be in violation
or default during the continuance of such inability.
SECTION XVII.
SERVICE AREA
A) Residents in those areas with an average
density of at least forty (40) homes per aerial mile or eighty (80) homes
per underground mile, as measured from the nearest point of usable trunk,
shall be provided service upon payment of the standard installation charge
and applicable monthly fees; except that installations requiring underground
drops or aerial drops in excess of one hundred-fifty (150) feet shall be considered
a non-standard installation to be charged to the subscriber at Grantee’s actual
cost of installation.
B) Service to subscribers not meeting
those density requirements of paragraph (A) above shall be provided on a time
plus material basis.
SECTION XVIII.
SEVERABILITY
If any term, condition or Section of this Franchise
or the application thereof to any person or circumstance shall, to any extent,
be held to be invalid or unenforceable, the remainder hereof and the application
of such term, condition or Section to persons or circumstances other than
those as to whom it shall be held invalid or unenforceable shall not be affected
thereby, and this Franchise and all the terms, conditions and Sections hereof
shall, in all other respects, continue to be effective and to be complied
with.
SECTION XIX.
FRANCHISE FEE
The Grantee shall pay to the Grantor a franchise
fee in the amount of one percent (1.00%) of the Gross Revenues. Payment shall
be due and payable on March 1 of each year for the previous calendar year.
The Grantor shall have the right to audit, at reasonable times and places,
the books and financial records of the Grantor to verify franchise fee payments.
SECTION XX.
PASSAGE AND EFFECTIVE DATE
This Franchise shall be an emergency ordinance,
the emergency being the need to provide for the continuance and upgrading
of the cable television system and its franchising without delay so as to
provide necessary financial and weather and information and entertainment
services and to provide finances for the Village of West Lafayette, Ohio,
so as to protect the lives and property of the residents of the Village of
West Lafayette, Ohio, and so this Ordinance shall take effect immediately
upon its final passage and approval by the Council of the Village of West
Lafayette, Ohio.
Approved this 29th day of May, 2001.
__________________________________
Jack L. Patterson,
Mayor
ATTEST:
BY:______________________________ BY:_____________________________
Bruce Fouch Jack
L. Patterson
Title: Clerk Treasurer
Title: Mayor
TWFanch-one
Co., d/b/a Time Warner Communications, a wholly-owned affiliate of Time Warner
Entertainment Company, L.P.
Name:____________________________________________________
Title:_____________________________________________________
APPROVED AS TO FORM:
_____________________________________
R. Q. Baker, III, Village Solicitor
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