§ 11-3-13. Transfer of ownership or control.

(a)

Transfer of franchise. Any franchise granted hereunder cannot be sold, transferred, leased, assigned or disposed of, including but not limited to, by force or voluntary sale, merger, consolidation, receivership or other means without the prior consent of the city, which shall not be unreasonably withheld.

(b)

Transfer threshold. The grantee shall promptly notify the city of any actual or proposed change in or transfer of, or acquisition by any other party of, 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 control has occurred shall arise upon the disposal by the grantee, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of 50 percent or more, at one time, of the ownership or controlling interest in the system; or 50 percent cumulatively over the term of the franchise of such interest to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert. The city shall exercise its power to approve a transfer of ownership or control in a manner consistent with section 617 of the Communications Act (47 U.S.C. 537).

(c)

Process. Every transfer, sale, lease, assignment or disposition of, including but not limited to, by force or voluntary sale, merger, consolidation, receivership or other means or acquisition of control of the grantee shall make the franchise subject to cancellation unless and until the city shall have consented thereto, which consent will not be unreasonably withheld. For the purpose of determining whether it shall consent to such transfer, sale, lease, assignment or disposition of, including but not limited to, by force or voluntary sale, merger, consolidation, receivership or other means or acquisition of control of the grantee the city may inquire into the legal, financial, character, technical and other public interest qualifications of the prospective controlling party, and the grantee shall assist the city in any such inquiry. Failure to provide all information reasonably requested by the city as part of said inquiry may be grounds for denial of the proposed transfer, sale, lease, assignment or disposition of, including but not limited to, by force or voluntary sale, merger, consolidation, receivership or other means or acquisition of control of the grantee. If the city finds that such transfer, after considering the legal, financial, character, technical, and other public interest qualifications of the applicant, is satisfactory, the city will transfer and assign the rights and obligations of such franchise as may be in the public interest. The consent of the city to such transfer shall not be unreasonably withheld.

(d)

Assumption of control. The city agrees that any financial institution having a pledge of the franchise or its assets for the advancement of money for the construction and/or operation of the system shall have the right to notify the city that it or its designee satisfactory to the city will take control of and operate the system. Further, said financial institution shall also submit a plan for such operation that will insure continued service and compliance with all franchise obligations during the term the financial institution exercises control over the system. The financial institution shall not exercise control over the system for a period exceeding one (1) year, unless extended by the city at its discretion and during said period of time it shall have the right to petition for transfer of the franchise to another grantee.

(e)

Regulation of transfer. The consent or approval of the city to any transfer of the grantee shall not constitute a waiver or release of the rights of the city in and to the streets, rights-of-way, or areas appurtenant thereto, and any transfer shall, by its terms, be expressly subject to the terms and conditions of this chapter and the franchise.

(f)

Construction requirement. In the absence of extraordinary circumstances, the city will not approve any transfer or assignment of the franchise prior to completion of construction of the proposed initial system.

(g)

Signatory requirement. Any approval by the city of transfer shall be contingent upon the prospective controlling party becoming a signatory to the franchise.

(h)

Exceptions. Notwithstanding anything to the contrary no such consent shall be required for any transfer to any person controlling, controlled by or under the same common control of the grantee so long as the grantee continues to guarantee the performance, under the terms of the chapter and the franchise agreement of the transferee.

(Ord. No. 98-66, 7-2-98)