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TO APPROVE AN APPLICATION FOR FRANCHISE AUTHORITY CONSENT TO THE TRANSFER OF CONTROL OF THE CABLE TELEVISION FRANCHISE FROM WIDEOPEN WEST OHIO, LLC AS AN INDIRECT AND WHOLLY OWNED SUBSIDIARY OF WIDEOPEN WEST HOLDINGS, LLC, TO RACECAR ACQUISITION, LLC, A WHOLLY OWNED SUBSIDIARY OF AVISTA CAPITAL PARTNERS.
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WHEREAS, The City of Gahanna (the City) has been certified as a franchising authority by the Federal Communications Commission (FCC) and has the authority to grant cable television franchises in the City in accordance with the laws of the United States, the rules and regulations of the FCC, the laws of the State of Ohio and the Codified Ordinances of the City of Gahanna; and
WHEREAS, pursuant to Ordinance No. 980343, the City on September 8, 1998 granted a non-exclusive franchise to Ameritech New Media, Inc. dba Americast for the construction, operation, and maintenance of a cable television system in the City for a period of fifteen (15) years pursuant to Chapter 751 and the Code; and
WHEREAS, pursuant to ORD-0204-2001, the City authorized the Assignment of the Franchise from AMERICAST to WOW; and
WHEREAS, on or about December 22, 2005, WOW and RACECAR jointly submitted to the City their application for FCC Form 394, Application for Franchise Authority Consent to Transfer of Control of the Cable Television, dated December 22, 2005, requesting the City acknowledge receipt of, and approve, the Application; and
WHEREAS, WOW HOLDINGS and AVISTA have executed a Plan of Merger dated December 13, 2006, whereby RACECAR will own and control all of the assets of WOW; and
WHEREAS, following the Transaction, RACECAR will be the holder of the Franchise and WOW's officers, managers, service offerings, business plan, and pricing will not change as a result of such Transaction; and
WHEREAS, the Application provides for, among other things, representations from WOW and RACECAR regarding their legal, technical and financial qualifications to operate the System; and
WHEREAS, Pursuant to Section XXV of the Franchise, the City's approval is required prior to the assignment or transfer or control of a cable television franchise providing cable television service in the City; and
WHEREAS, based on a review and examination of the Application, the City is willing to grant its approval of the proposed Transfer of Control of the Franchise, subject to certain conditions which are necessary to protect the public interest, and without which the City would not approve the Transfer of Control of the Franchise;
NOW, THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF GAHANNA, STATE OF OHIO:
Section 1. That the proposed Application is approved subject to the following conditions:
a. RACECAR must execute and deliver to the City by May 1, 2006, a Transfer of Control Agreement mutually agreed upon by the parties and made a part of this Ordinance by this reference; and
b. RACECAR will notify the City of the final consummation of the closing at the Transaction between WOW HOLDINGS and AVISTA within thirty (30) business days of such consummation; and
c. RACECAR acknowledges and agrees that RACECAR continues to be obligated to fulfill all past, present, continuing and future commitments, duties, and obligations of the cable operator as set forth in the Franchise; and
d. RACECAR agrees to comply with all obligations under the Franchise and applicable law; and
e. RACECAR represents and warrants that it will be fully capable to meet the legal, financial and technical obligations under the Franchise and continue to operate the cable television system in the City.
Section 2. That failure to meet the conditions specified in Section 1 by RACECAR prior to any subsequent transfer or assignment of the Franchise shall be cause for the City to exercise any and all appropriate remedies under the Franchise.
Section 3. That even if all the conditions set forth in Section 1 are satisfied, this approval shall be void and of no force or effect if:
a. the transfer of Control is consummated on terms substantially different from those described in the Application and its exhibits; or
b. any representations provided in the Application to the City regarding the Transfer of Control of the Franchise are substantially incomplete or materially misleading.
Section 4. That this Ordinance shall not be construed to:
a. prejudice or limit any past, present or future rights the City may have to review the technical, legal, financial and character qualifications of the cable operator during any Franchise renewal proceedings; or
b. waive any of the City's rights with respect to WOW's and/or RACECAR's compliance with the terms, conditions, requirements, and obligations set forth in the Franchise, including the City's right to compel WOW and/or RACECAR to comply with the lawful provisions of the Franchise.
Section 5. That the Mayor, or her designee, is authorized to submit notice of such approval to the FCC.
Section 6. That the Mayor, or her designee, is authorized to propose, at the appropriate time, such ordinances as may be necessary to amend the Code to reflect the Transfer of Control of the Franchise, and to negotiate and execute an appropriate Transfer of Control Agreement as described in Section 1 (a) herein.
Section 7. That this ordinance shall be in full force and effect 30 days after passage by this Council and on date of signature approval by the Mayor.