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HomeMy WebLinkAboutD-1465-00 Cable TV FranchiseORDINANCE NO. D-1465-00 AS AMENDED AN ORDINANCE OF THE COMMON COUNCIL OF THE CITY OF CARMEL, INDIANA, ADOPTING AN ORDINANCE CONCERNING CABLE TELEVISION, TO BE CODIFIED AS CARMEL CITY CODE CHAPTER 4, DIVISION IV, ARTICLE 2, SECTION 4-68 WHEREAS, the Carreel Common Cotmcil has the authority to adopt ordinances subject to codification in the Cannel City Code; and WHEREAS, it is in the public interest to adopt procedures concerning cable television and cable programming delivery systems serving the City's residents. NOW, THEREFORE, the following Ordinance is hereby approved, and shall be codi~ed in the Carmel City Code as follows: "Section 4-68 Cable Television Franchising Procedures a. Statutory authority and findings 1. The City hereby finds that the public interest will best be served by franchising cable programming delivery systems to the extent authorized by law. 2. The City hereby finds that it is in the interest of the City that its public ways be used to make cable programming available to the City's residents. It is intended that the provisions of this Ordinance should facilitate and encourage the orderly and responsible development of systems which will provide the City's residents with Cable Services which are versatile, reliable and efficient, which are responsive to the needs and interests of the community, and which provide a wide diversity of information sources and services to the public. The provisions of this Ordinance shall therefore be construed liberally to further these purposes and to promote competition in the provision of Cable Services. b. Definitions As used herein: 1. The term "Act" means the Cable Commtmications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992 and the Telecommtmications Act of 1996 amendments to the Communications Act of 1934 (47 U.S.C. Section 521 et seq.), as the same may be amended from time to time. 2. The term "Affiliate", when used in relation to any Person or Entity, means another Person or Entity who owns or controls, is owned or controlled by, or is under common ownership or control with, such Person or Entity. 3. The term "Committee" means the Carreel Cable Television Advisory Committee as identified in Section 2~21 of the Carmel City Code. 4. The term "Cable Channel" or "Channel" means that portion of the electromagnetic frequency spectrum which is used in a Cable System and which is capable of delivering a television channel (as television channel is defined by the Federal Communications Commission). 5. The term "Cable Service" means (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. 6. The term "Cable System" 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 Service which includes video programming and which is provided to multiple subscribers within the City, but such term does not include (A) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (B) a facility that serves subscribers without using any public right-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Act, except that such facility shall be considered a Cable System (other than for purposes of Section 621 (c) of the Act to the extent such facility is used in the transmission of video programming directly to subscribers; or (D) any facility of any electric utility used solely for operating its electric utility systems. 7. The term "City" means the City of Carreel, Indiana. g. The term "Council" means the Common Council of the City. The term "Education and Governmental Access Facilities" means (A) channel capacity designated for education or governmental use; and (B) facilities and equipment for the use of such channel capacity. 10. The term "Entity" means any corporation, partnership, limited liability company, association, joint stock company, joint venture, trust, or governmental or business entity. 2 11. The term "Franchise" means an initial authorization, or the renewal thereof (including a renewal of an authorization which has been granted subject to Section 626) of the Act, issued by the City whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction and operation of a Cable System. 12. Thc tc,,x, "Franchisc Administrator" mcans thc Mayor ofthc City of Canncl, Indiana, or a Pcrson dcsignated by thc Mayor to pcrfonii thc dutics asaigned to such position by this Ordinancc. 12!~. The term "Franchise Coordinator" or "Franchise Coordinators" means the Person(s) appointed for the purposes described in this Ordinance, with the Committee, the Council and the Mayor of the City of Cannel, Indiana, each appointing one (1) such Franchise Coordinator. 134. The term "Gross Revenues" means any and all revenues derived from the operations of an Operator's Cable System to provide Cable Service. 1__45. The term "Institutional Network" means a system or portion of a system whose use is restricted to governmental and/or educational operations. 156. The term "Operator" or "Cable Operator" means any Person or Entity or group of Persons or Entities (A) who provide Cable Service over a Cable System and directly or through one (1) or more affiliates owns a significant interest in such Cable System, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of a Cable System and who has been granted a Franchise by the City or by any predecessor, governmental officer or organization authorized to grant same. 1=6-7-. The term "Other Programming Service" means information that a Cable Operator makes available to all subscribers generally. 17=8. The term "Person" means an individual. 189. The term "Subscriber" means any Person or Entity who contracts or agrees to purchase regular subscriber service, pay television, or any other service provided by a Cable System, and includes anyone actually authorized to use and/or who is using such service, even if the Person or Entity is not required to pay the charges for such services. 19z30. The term "Video Programming Services" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station. 3 c. Previously awarded franchises This Ordinance shall apply to all franchise contracts in effect on or after the effective date of this Ordinance. d. Franchise required No Person or Entity shall operate a Cable System within the City for which a Franchise is required under Title VI of the Act without having first obtained a Franchise granted subject to this Ordinance. e. Franchises not exclusive The granting of a Cable Franchise shall not grant the Operator any right to exclude any other franchised Operator from providing services within the geographic area included in the Cable Franchise. f. Time extensions The Council may, for good cause shown, extend any of the time limits imposed by this Ordinance. g. Authority to approve Cable Franchises Subject to the provisions of this Ordinance, the Council is hereby authorized to approve one (1) or more non-exclusive ffanchising contracts conveying the right to construct, operate and maintain, within the public ways in the City, poles, cable and any other equipment necessary to the operation of a Cable System within a designated area or areas for the period of time specified in the Franchise. h. Request for franchise 1. Any Person or Entity interested in obtaining a Cable Franchise, except a Cable Operator, may file a letter expressing such interest with the Franchise Coordinators Administrator. The letter must contain: (a) A description of the geographic area proposed to be served with sufficient particularity so as to enable a reasonable determination of the boundaries of such area and the proposed location of the Cable System's facilities; (b) A description of the type of service to be provided by the requester; and 4 (C) An explanation of the reasons why the granting of a Franchise for the area described would be in the best interests of the City and its citizens, and that the proposed facilities will not substantially and unreasonably interfere with current or planned uses of the City's public ways. 2. Upon the receipt of such a letter of interest, the Franchise Coordinators Administrator shall distribute copies of the letter to each member of the Committee and to caclrFranchisc Coordinator. Action on franchise request 1. Upon the receipt of the letter of interest described in sub-section (h) hereinabove, the Franchise Coordinators Adliiinistrator shall review the letter and determine whether: (a) The requester should be required to file an application containing the information listed in sub-section (k) hereinbelow; or (b) That the award of a Franchise as proposed in the letter would not promote effective competition or serve the public interest. 2. In making such a decision, the Franchise Coordinators Administrator may conduct such investigations as the Franchise Coordinators Administrator deems appropriate, in their his or her sole discretion, to identify the future cable-related needs and interests of the community, and shall consult with the Franchise Coordinators. The Franchise Coordinators' Adliiinistrator's decision shall be made within ninety (90) days of the date on which the letter of interest was received by the Franchise Coordinators Adniinistrator. 3. The Franchise Coordinators' Administrator's decision shall be in writing and provided to the requester, to the Franchisc Coordinator(s)' Council, and to all other operators of Cable Systems regulated by this Ordinance. 4. If the Franchise Coordinators' Adniinistrator's decision is to accept an application(s), that determination is final. 5. If the Franchise Coordinators' Ad~iiinistrator's decision is not to accept an application(s), the requester may appeal that determination to the Committee, which may affirm the Franchise Coordinators' Admini3trator's decision or direct the Franchise Coordinators Admhaistratorto accept the application(s). If the Committee affirms the Franchise Coordinators' Administrator' s deterrninafion, the requester may request Council review of that decision in accordance with sub-section (r) hereinbelow. 5 j. Filing of applications If the Franchise Coordinators Administrator or the Committee decides that a requester should be required to file an application containing the information specified in sub-section (k) hereinbelow, such application shall be filed with the Franchise Coordinators A&uinistrator and the Cannel Clerk-Treasurer no later than sixty (60) days after the date the Franchise Coordinators Administrator request such information. Upon receipt of the application, the Franchise Coordinators Administrator shall forward copies of the application to each member of the Committee and to each Franchise Coordinator. k. Contents of applications An application for the grant of a Cable Franchise to a Person or Entity other than a Cable Operator shall contain, at a minimum, the following information: 1. Name and address of the Person or Entity applying for the Franchise (hereafter the "applicant") and identification of the ownership and control of the applicant, including: the names and addresses of the (10) largest holders of an ownership interest in the applicant and any Affiliates of the applicant, and all Persons or Entities with five (5) percent or more ownership interest in the applicant and/or its Affiliates; the Person or Entities who control the applicant and/or any of its Affiliates; all officers and directors of the applicant and any of its Affiliates; and any other business affiliations and/or Cable System ownership interests of each named Person or Entity. 2. A demonstration of the applicant' s technical ability to construct and/or operate the proposed Cable System, including identification of key personnel, their titles and responsibilities. 3. A demonstration of the applicant's legal qualifications to construct and/or operate the proposed Cable System including, but not limited to, a demonstration that the applicant meets the following criteria: (a) The applicant must not have submitted an application for an initial or renewal Franchise to the City which was denied on the ground that the applicant failed to propose a System meeting the cable-related needs and interests of the community, or as to which any challenges to such franchising decision were finally resolved adversely to the applicant within three (3) years preceding the submission of the application. (b) The applicant must not have had any cable television franchise revoked by any franchising authority within three (3) years preceding the submission of the application. 6 (c) The applicant must have the necessary authority under Indiana law to operate a Cable System. (d) The applicant must be authorized and able to hold a Franchise as a matter of federal law. In this regard, an applicant must have, or show that it is qualified to obtain, all necessary federal franchises or waivers required to operate the System proposed. (e) The applicant must not have been, at any time during the ten (10) years immediately preceding the submission of the application, convicted of any act or omission of such a character that the applicant cannot be relied upon to deal truthfully with the City and the subscribers of the proposed Cable System, or to substantially comply with its lawful obligations under applicable law, including obligations under consumer protection laws and laws prohibiting anti-competitive acts, fraud, racketeering or other similar conduct. (f) The applicant has not filed materially misleading information in its application nor intentionally withheld information that the applicant is lawfully required to provide. (g) An elected official of the City does not hold a controlling interest in the applicant or any Affiliate of the applicant. (h) Notwithstanding the foregoing, the City shall provide an opporttmity to an applicant to show that it would be inappropriate to deny it a Franchise here under this ordinance, by virtue of the particular circumstances surrounding the matter and the steps taken by the applicant to cure all harms flowing therefrom and to prevent their recurrence, the lack of involvement of the applicant's principals, and/ur the remoteness of the matter from the operation of the proposed Cable System. 4. A statement regarding the applicant's financial ability to complete the construction and operation of the proposed Cable System. 5. A description of the applicant's prior experience in Cable System ownership, construction, and operation, and the identification of communities in which the applicant or any of its principals have, or have had, a Cable Franchise or franchise or any interest therein within the ten (10) years preceding the submission of the application, provided that an applicant that holds a Franchise from the City and is seeking renewal of that Franchise need only provide this information. for other commtmities where its franchise has expired or is scheduled to expire within the two (2) calendar years immediately prior to and/or after the date on which its application was submitted. 6. A description of the area or areas of the requested Franchise, with sufficient parfict~arity so as to enable a reasonable determination of the boundaries of such area; provided that during the evaluation process the Franchise Coordinators Ad,~firristrator, the Committee, and the Council may consider modifications to the description of the proposed area of Franchise in any Franchise application. 7. A detailed description of the physical facilities proposed, including channel capacity, technical design, performance characteristics, headend, and access facilities. 8. Where applicable, a description of the construction of the proposed System, including an estimate of plant mileage and its location; the proposed construction schedule; a description, where appropriate, of how services will be converted from existing facilities to new facilities; and information on the availability of space in conduits, including, where appropriate, an estimate of the cost of any necessary rearrangement of existing facilities. 9. The proposed rate structure, including projected charges for each service tier, installation, converters, and all other proposed equipment or services. 10. A description of the insurance policies to be acquired in satisfaction of the requirements of this ordinance. 11. A demonstration of how the applicant will reasonably meet the future cable- related needs and interests of the community, including descriptions of how the applicant will meet the needs described in any recent community needs assessments conducted by or for the City, and how the applicant will provide adequate Educational and Governmental Access Facilities, channel capacity, and/or financial support to meet the community's needs and interests. 12. A detailed and complete financial statement of the applicant, prepared by a certified public accountant, for the fiscal year next preceding the date of the application hereunder, or a letter or other acceptable evidence in writing from a recognized lending institution or funding source, addressed to both the applicant and the Franchise Coordinators Administrator, setting forth a clear statement of its intent as a lending institution or funding source to provide whatever capital shall be required by the applicant to construct and operate the proposed System in the City, or a statement from a certified public accountant, certifying that the applicant has available sufficient free net and uncommitted cash resoarces to construct and operate the proposed System in the City, or other acceptable evidence in writing that the applicant is financially capable of constructing and operating the proposed System. 8 13. Pro forma financial projections for the proposed Franchise term, including a statement of projected income, and a schedule of planned capital additions, with all significant assumptions explained in attached notes or supporting schedules. 14. If the applicant proposes to provide Cable Service to an area already served by an existing Cable Franchisee, the identification of the area where the overbuild would occur, the potential subscriber density in the area that would encompass the overbuild, and the ability of the public rights-of-way and other property that would be used by the applicant to accommodate an additional System. 15. A copy of any agreement covering the Franchise area, if existing, between the applicant and any public utility subject to regulation by the Indiana Utility Regulatory Commission, providing for the use of any facilities of the public utility including, but not limited to, poles, lines or conduits. 16. Any other information as may be reasonably necessary to demonstrate compliance with the requirements of this Ordinance. 17. Any information that the City may request of the applicant that is relevant to the City's consideration of the applicant's application. 18. A written agreement by the applicant agreeing to reimburse the City for the City's reasonable out-of-pocket costs and expenses incurred in considering the application, in an amount set or approved by the Council. 19. An affidavit or declaration of the applicant or authorized officer of the applicant certifying to the truth and accuracy of all of the information contained in the application, acknowledging the enforceability of all application commitments, and certifying that the application meets all federal and state law requirements. 1. Report on applications and notification of operators Upon receipt of an application for a Franchise, the Franchise Coordinators Adh~itdstiatot shall coilsuit with tile Ffauchisc Coo~dinatol(~) and prepare an evaluation of the application and a recommendation as to whether the applicant should be granted a Franchise. The Franchise Coordinators'Admi~i~hatol's evaluation and recommendation shall be in writing, shall include the reasons therefor, and shall be based upon the criteria set forth in sub-section (n) hereinbelow. The Franchise Coordinators' Adminishatot's evaluation and recommendation shall be given to the Committee ,rod to each Flanchisc Cooidinator within thirty (3 0) days from the date of the Franchise Coordinators' Admiui~h atot's receipt of the application. The Franchise Coordinators Admitdshator shall also send written notification of the receipt of such application of all Cable System operators which have a Franchise governed by the City. 9 m. Hearing on application 1. Within sixty (60) days of its receipt of an application, the Committee shall hold a public hearing on whether to grant a cable Franchise to the applicant in the form proposed in the application, and if so, the nature and extent thereof. 2. At the time set for such hearing, or of any adjournment thereof, the Committee shall proceed to hear from all interested Persons or Entities, in addition to any applicants or potential applicants. n. Factors governing the evaluation of the application In making a determination hereunder on any Franchise application, the Franchise Coordinators Adn~iniatmtor shall base such determination on the following factors: 1. The quality of the service which the applicant promises and of which the applicant is capable. 2. Whether the applicant has the financial, technical and legal qualifications to provide Cable Service. 3. Whether the applicant satisfies any minimum requirements established by the City and is otherwise reasonably able to meet the future cable-related needs and interests of the community, taking into account the cost of meeting such needs and interests. 4. Whether the applicant will provide adequate Educational and Governmental Access Facilities, and financial support, and channel capacity on Institutional Networks for educational and governmental uses. 5. That applicant provides cable channels for commercial uses in conformity with the requirements of Section 612 of the Act (47 U.S.C. Section 532). 6. That applicant promises to provide cable service to subscribers on a nondiscriminatory basis and to provide such service to any group of residential subscribers regardless of the income of the residents of the local area in which such group resides. 7. That the applicant agrees to provide cable service within all areas having a specified density of living units within the franchise territory. Such density shall be expressed in terms of number of living units per mile of System. 8. The scheduled rates to subscribers. 9. The income and expense to the City. 10 10. Whether the issuance of a Franchise is warranted in the public interest, considering its immediate and future effect on the public ways and private property that would be used by the Cable System, including the extent to which the proposed System installation or maintenance would require the replacement or disruption of property, public services, or the use of the public ways; the effect of granting a Franchise on the availability of sufficient Cable Service to meet the cable-related needs and interests of the community; and the comparative superiority or inferiority of competing applications, if any. 11. The effect on the ability of existing franchisees to perform their obligations under their Franchise contracts. 12. The technical and performance quality of facilities and equipment related to the establishment or operation of the proposed Cable System. 13. Whether the applicant or any Affiliate of the applicant owns or controls any other Cable System in the City, or whether the grant of the application may eliminate or reduce competition in the delivery of Cable Service in and to the City. 14. The demonstrated willingness and ability of the applicant to meet construction and physical requirements and to abide by policies and limitations imposed by law or Franchise agreements. 15. Any other considerations deemed pertinent by the Franchise Coordinators Administrator to the task of safeguarding the public health, safety and welfare, and facilitating and encouraging the orderly and responsible development of Cable Systems which will provide the City's residents with Cable Service which is versatile, reliable, appropriate, convenient, sufficient, economical and efficient. o. Committee action on applications 1. Within thirty (30) days from the date the Committee receives the Franchise Coordinators'Administrator's evaluation and recommendation as to whether the applicant should be granted a Franchise, the Committee shall act on the Franchise Coordinators'Administrator's recommendation. 2. If the Committee recommends the granting of a Cable Franchise to the applicant, the Franchise Coordinators Administrator shall designate an attorney or attorneys to negotiate the terms of the Franchise contract. During such negotiations, the attorney or attorneys shall consult with the Franchise Coordinator(s). 3. If the Committee recommends the rejection of an application, such rejection is subject to Council review in accordance with the provisions of sub- section (r) hereinbelow. ll p. Submission of recommended contracts Within forty-five (45) days from the date of the Committee's action on a Franchise application, the Franchise Coordinators Administrator shall, if the Committee recommends the granting of the Franchise, prepare for Council introduction an Ordinance granting the Franchise and approving the tenns of a Franchise contract. q. Council action on recommended contracts The Council shall act upon an ordinance submitted pursuant to sub-section (p) hereinabove within sixty (60) days of its first reading, except that such time may be extended by the Council for good cause. The Council may: 1. Adopt the ordinance, in which case, absent a mayoral veto of same, the Carmel Board of Public Works and Safety shall be required will bc requested to execute the Franchise contract; or 2. Defeat the ordinance, in which case the application shall be denied. r. Council review of application rejections Any Person or Entity whose letter of interest in or application for a Franchise is rejected by the Franchise Coordinators Administrator and the Franchise Coordinators' Administrator's rejection is affirmed by the Committee in accordance with the provisions of this Ordinance may, within fifteen (15) days from the date of the Committee's written rejection of same, petition the Council for a review of that decision by filing written notice thereof with the Carmel Clerk-Treasurer. If the Council determines that the rejection of a Franchise application is not warranted under this Ordinance, it may, by resolution, direct the Committee to reconsider its determination or direct the Franchise Coordinators Administrator to proceed to take a Franchise application(s) or to negotiate a Franchise contract. In making its determination hereunder, the Council shall give due weight to the Franchise Coordinators' Administmtor's and the Committee's recommendations, and shall consider the criteria contained in sub-section (n) hereinabove. No provision of this Ordinance shall be construed as requiring the City to grant any Franchise contract, and the Council may reject any and all Franchise applications. 12 s. Applications for renewak review of the applications Applications for renewal of a Franchise under the Act shall be filed with the Franchise Coordinators, Administrator, who shall review them in a manner consistent with Section 626 of the Act. Upon receipt of such an application, the Franchise Coordinators Adminiatrator shall establish such roles and procedures for the conduct of renewal proceedings as the Franchise Coordinators Administrator deems appropriate and lawful, consistent with the Act. The Franchise Coordinators Adlllinistrator may hire such counsel and consultants as the Franchise Coordinators Administrator deems advisable, in their__his-or-her sole discretion, to assist in a renewal application review. t. Application for modification of Franchise Contract An application for the modification of a Franchise contract shall be filed with the Franchise Coordinators Administrator and shall include, at minimum, the following information: 1. The specific Franchise contract modification requested; The justification for the requested modification, including the impact of the requested modification on subscribers and others, and the financial impact on the applicant if the modification is approved or disapproved, demonstrated through, inter alia, submission of financial pro formas; A statement as to whether the modification is being sought pursuant to Section 625 of the Act and, if so, demonstration that the requested modification meets the standards set forth in Section 625 of the Act; Any other information that the applicant believes is necessary for the City to make an informed decision on the application for modification; and An affidavit or declaration of the applicant or the applicant's authorized officer certifying the truth and accuracy of all of the information contained in the application, and certifying that the application is consistent with all federal and state law requirements. u. Review of the Modification Application The Franchise Coordinators Adn~inistrator shall review and evaluate an application for the modification of a Franchise contract in accordance with the procedures used for granting a new (not the renewal of an existing) cable Franchise. Any such modification must ahall be approved by the Council before it is effective. 13 v. Transfer of a franchise 1. Unless otherwise provided in the Franchise contract, prior written approval of the City shall be required before a Franchise granted by the City may be assigned or transferred, either in whole or in part, or leased or sublet in any manner, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any other Person or Entity whatsoever, until such prior City approval is obtained. 2. The proposed transferee of a Franchise shall submit to the Franchise Coordinators Administrator a written and verified application requesting therein City approval of the proposed Franchise transfer. The application shall provide complete information regard'rag the proposed transfer, including: (a) documents embodying the transaction; (b) financing documents regarding the transfer, if any; (c) documents describing the proposed transferee; (d) documents identifying any Person or Entity who will be responsible, through any arrangement, for managing or controlling the System if the proposed transfer is approved; (e) documents showing that the proposed transferee has the financial, technical and legal ability to operate the System after the transfer, so as to satisfy all of its obligations under the Franchise contract without adversely affecting subscribers; and (f) such other information as may be required in any City ordinance or other law governing applications for a Franchise. 3. The City shall render a final written decision on a request to transfer a Franchise within one hundred twenty (120) days from the date it receives all of the information specified above and/or such other additional information as is required by law. The City may seek additional information from the Operator and/or the proposed transferee, and both the Operator and the proposed transferee shall cooperate by timely providing such information to the City. The City shall be under no obligation to transfer any Franchise if the Operator's acts or omissions make the Franchise subject to revocation, nor shall the City be required to transfer same until it is fully satisfied that all past Franchise nonperformance will be corrected, that claims that could be considered as part of any Franchise renewal proceeding are fully preserved to the extent permitted by law, and that the proposed transferee has the ability and is likely to comply with the Franchise contract in the future. By way of illustration and not limitation, under no circumstances will a Franchise be transferred unless the proposed transferee agrees in writing to accept all of the terms and conditions of the Franchise contract, except to the extent, if any, the City is willing to modify such terms and conditions as part of the approval of the Franchise transfer; agrees that the Franchise transfer does not constitute a waiver of any right of or by the City; or indicate that the Operator is or has been in compliance with the Franchise contract and/or all applicable law. The City may conduct such public hearings as it 14 deems appropriate to consider any Franchise transfer request. Any transfer of a Franchise mustbe aJ~provedby the Council before it is effective. 4. The Operator, upon transfer of its Franchise, shall, within sixty (60) days thereafter, file with the City a copy of the deed, agreement, mortgage, lease or other written instrument evidencing such transfer of ownership, control, or lease of the System, certified and sworn to as tree and correct by the Operator. 5. Unless otherwise provided in the Franchise contract, the transfer of a Franchise shall include any sale of System assets, any transfer of the Franchise itself, and/or any change of control or ownership of the Operator. The term "control", as used herein, includes actual working control in whatever manner exemised, and there shall be a rebuttable presumption that a Franchise transfer has occurred upon the acquisition or accumulation by any Person or Entity of five (5) percent or more of the shares or interest in the Operator or any Entity which owns or controls the Operator. w. Schedule of filing fees 1. To be acceptable for filing, an application submitted under or pursuant to this Ordinance shall be accompanied by a filing fee in the following amount, which fee will be used to cover the costs incidental to the awarding and/or enforcement of the Franchise, as appropriate: (a) A Franchise application: $10,000.00 (b) An application to modify a Franchise: $5,000.00 (c) An application to transfer a Franchise: $5,000.00 2. Provided that the above fees are used to offset the actual costs and/or expenses incurred by the City as referenced herein, and that any fee balance thereof not so used shall be returned to the Operator upon the conclusion of the application process. x. Reimbursement of City's out-of-pocket expenses In addition to any other provision of this Ordinance, the City may require a Franchise applicant to reimburse the City for the City's reasonable out-of-pocket costs and expenses in excess of the filing fee that are incurred in considering a Franchise application, including consultants' fees. A Franchise contract may provide that any payment made by a franchisee hereunder does not constitute a Franchise fee and fails within one (1) or more of the exceptions set forth in paragraph 622 (g)(2) of the Act, and that such payments may not be passed through to subscribers in any form. 15 y. Repeal of inconsistent ordinances All prior ordinances or parts thereof inconsistent with any provision of this Ordinance are hereby repealed as of the effective date of this Ordinance. z. Severability If any portion of this Ordinance is for any reason declared to be unconstitutional or invalid, such decision shall not affect the validity of the remaining portions of this Ordinance as long as enforcement of same can be given the same effect." 16 This Ordinance shall be in full force and effect from and after the date of its passage, signing by the Mayor and such publication as is required by law. i PASSED by the Common Council of the City of Carmel, Indiana, this- ~~1~ ~ day of ~.~v:;ii~ ,2000, byavoteof '7 ayes and C. nays. arter"~R ATT~~'~A r v /") 4 pp o ed by me, the Mayor of the City of Carreel, Indiana, on this ~; ? day of ,2000. Br~ainard, Mayor"' 17