Explanation
BACKGROUND: This Ordinance authorizes the City Attorney, on behalf of the Department of Technology to settle and compromise a claim against Time Warner Cable for the underpayment of service permit fees in 2001, 2002, and 2003 pursuant to audit of the cable service provider under Columbus City Code 595.06 (F), in the amount of Two Hundred Forty Eight Thousand and no cents ($248,000.00), to be paid by Time Warner Cable within forty-five (45) days of passage of this Ordinance. This legislation authorizes the City Attorney to execute those documents necessary to resolution of this claim prior to the commencement of litigation.
FISCAL IMPACT: Funds recovered to be credited to the Department of Technology cable television fund.
EMERGENCY JUSTIFICATION: Emergency action is requested as not to unduly delay the benefit to the City from the proposed settlement.
Title
To authorize the City Attorney, on behalf of the Department of Technology, to settle and compromise a claim against Time Warner Cable for the underpayment of service permit fees in 2001, 2002, and 2003 pursuant to audit of the cable service provider under Columbus City Code 595.06 (F), in the amount of Two Hundred Forty Eight Thousand and no cents ($248,000.00), to be payable by Time Warner Cable within forty-five (45) days of passage of this Ordinance; and to declare an emergency.
Body
WHEREAS, in 1994, Time Warner Cable was granted a permit by the City pursuant to Columbus City Code § 595.05 to operate a cable communication system in the City. The permit expires in November, 2006; and
WHEREAS, Columbus City Code §595.08 states that each cable operator shall pay to the City, credited to the Department of Technology, five percent (5%) of its gross revenues, known as "service permit fees", on a quarterly basis to compensate for the costs of the City's regulation, obligations and duties under Columbus City Code 595 and for use of the streets and other public property; and
WHERAS, payments were received on a quarterly basis from Time Warner Cable since the commencement of the permit, with all amounts paid being subject to audit and recomputation by the City under Columbus City Code § 595.08; and
WHEREAS, in February 2003, the City Attorney's Office, with approval by Council, engaged the professional services of Gregory J. Dunn, attorney with the law firm of Schottenstein, Zox and Dunn, to conduct a permit fee review to determine if Time Warner and other cable providers were in material compliance with the service permit fee requirements. Information was provided by Time Warner and reviewed by Attorney Dunn and retained consultant Edward T. Rutter. Based upon this review, it was determined that Time Warner underpaid service permit fees in 2001, 2002, and 2003 in the total amount of $217, 015.14, plus computed interest in the amount of $30,970.03; and
WHEREAS, in December 2004, the City Attorney's Office, in consultation with the Department of Technology and City Auditor, demanded payment from Time Warner Cable for said amount; and
WHEREAS, the City and Time Warner Cable desire to resolve this matter prior to the filing of litigation between them; and
WHEREAS, Time Warner Cable has agreed to pay $248,000 within forty-five days of the passage of this Ordinance and other terms and conditions as negotiated by the parties and set forth in a written Settlement Agreement; and
WHEREAS, it is in the best interest of the City of Columbus to promptly conclude this matter, thus this ordinance is being submitted as an emergency measure; and
WHEREAS, by reason of the foregoing an emergency exists in the usual daily operations of the City in that it is immediately necessary to authorize the City Attorney to settle the aforementioned action for the preservation of the public health, peace, property, safety and welfare, now, therefore:
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF COLUMBUS:
Section 1. That the City Attorney, on behalf of the Department of Technology, is hereby authorized and directed to settle and compromise the claim against Time Warner Cable for the underpayment of service permit fees in the amount of Two Hundred Forty Eight Thousand Dollars and no cents ($248,000.00) to be credited to the Cable Television Fund, Fund No. 203, and upon the terms and conditions as set forth in a written Settlement Agreement, and to authorize the Department of Technology to execute those documents necessary to resolution of this claim
Section 2. That for the reasons stated in the preamble hereto, which is hereby made a part hereof, this ordinance is hereby declared to be an emergency measure and shall take effect and be in force from and after its passage and approval by the Mayor, or ten days after passage if the Mayor neither approves nor vetoes the same.