APPENDIX B
FRANCHISE AGREEMENTS
NOTE: The franchise agreements included herein are for information only. Each contains the substance as adopted by the Governing Body but publication clauses, repealers and signatures have been omitted. Complete copies of franchise agreements as adopted are on file in the office of the City Clerk.
CABLE TELEVISION - WORLD COMPANY, INC.
The franchise for cable television is contained in ordinance number 7055 adopted 12/8/98. (Prior cable franchise agreements can be found at: Ord. 3938 adopted 2/25/69, Ord. 4399 adopted 3/27/73 and Ord. 5453 adopted 4/26/83.)
WHEREAS, on the 25th day of February, 1969, the City of Lawrence, Kansas, passed and approved Ordinance No. 3938, whereby there was granted to the World Company, Inc., for a period of ten (10) years from the effective date thereof, the nonexclusive right, authority, power and franchise to establish, construct, acquire, maintain and operate a Closed-Circuit Electronic System within the City of Lawrence, Kansas; to render, furnish and sell closed-circuit electronic service from such System to the inhabitants of the City of Lawrence, Kansas; and to use and occupy the streets, as defined by said ordinance, and other public places within the corporate limits of said City for its Closed-Circuit Electronic System, as by said ordinance provided; and
WHEREAS, on March 27, 1973, the Governing Body of the City of Lawrence, Kansas, passed and approved Ordinance No. 4399, whereby Section II of said Ordinance No. 3938 was amended to extend the term of said nonexclusive franchise granted the World Company, Inc., by a period of five (5) years; and
WHEREAS, under date of February 28, 1983, the World Company, Inc., made written application to the Governing Body of the City of Lawrence, Kansas, for an extension of its said nonexclusive franchise for an additional period of fifteen (15) years, as well as modification and amendment of said Ordinance No. 3938; and
WHEREAS, on March 15, 1983, the Governing Body of the City of Lawrence, Kansas, acknowledged receipt of the written application by the World Company, Inc., for said extension, modification and amendment of said Ordinance No. 3938, and
WHEREAS, pursuant to K.S.A. 12-2007 there was published in the official city newspaper on the 9th day of April, 1983, a Notice of Public Hearing, whereby notice was given that a public hearing on said application by the World Company, Inc., for the extension and amendment of the franchise granted by Ordinance No. 3938 of the City of Lawrence, Kansas, as amended by Ordinance No. 4399 of said City; and
WHEREAS, said public hearing was held and conducted in accordance with the laws of the State of Kansas and said published Notice of Public Hearing, and it has been determined that an extension of the terms and other provided amendments of the subject franchise will provide the franchise holder the assurances necessary to permit it to make the additional investment required to upgrade and expand upon its current operations and service, all for the benefit of its subscribers and viewers.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LAWRENCE, KANSAS:
Section 1. Definitions. For purposes of this Ordinance, the following words and phrases shall have the following meanings:
(a) “Cable Information Service” shall mean a digital two-way interactive packet switched service provided over the Cable System using a cable modem and Internet protocols, which may include separately or in combination, broadband connectivity between the customer, access to the Internet, interactive content and programming, menus, navigational aids, electronic mail, access to newsgroups, a web browser, Website hosting and other enhancements. For purposes of interpretation of this Ordinance, Cable Information Service shall include the Datavision service, and such similar successor service if any, provided by the Grantee on and after the date of adoption of this Ordinance.
(b) “Cable Service” shall mean:
(I) the one-way transmission to subscribers of video programming, or other programming service, and
(ii) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
(c) “Cable System” shall mean 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.
(d) “City” shall mean the City of Lawrence, Kansas.
(e) “Downstream Transmission” shall mean the transmission of signals from the Headend to remote points on the Cable System or to interconnection points on the Cable System.
(f) “Facilities” or “Facility” shall mean any distribution or transmission component of a cable system.
(g) “FCC” shall mean the Federal Communications Commission of the United States government, or such successor agency or department.
(h) “Franchise Area” shall mean the area within the City which the Grantee is authorized to provide services under this Franchise, and any amendments thereto.
(I) “Grantee” shall mean the World Company, its cable division doing business as Sunflower Cablevision and any other divisions or affiliates providing services over the Cable System.
(j) “Gross Revenues” shall mean for purposes of franchise fee calculations all revenues received by Grantee from the operation of the Cable System to provide Cable Services and Cable Information Services within the City. Gross Revenues shall include, without limitation, subscriber revenues, basic monthly service fees, premium service fees, installation and reconnection fees, leased channel fees, additional outlet fees, converter rentals, remote control rentals, and fees for subscription audio services, all adjusted for non-payment. Gross Revenues shall not include amounts collected for taxes, franchise fees, late fees, local origination programming or access programming fees, or revenues from Non-Cable Services.
(k) “Headend” shall mean a facility for signal reception and distribution on a Cable System including cables, antennas, wires, satellite dishes, monitors, switches, modulators, processors, and all other related equipment and facilities.
(l) “Non-Cable Services” shall mean those services not explicitly defined as Cable Services or Cable Information Services, including without limitation, telephone services.
(m) “Public improvement” shall mean any existing or contemplated public facility, building or capital improvement project, including, without limitation, streets, alleys, sidewalks, sewer, water, drainage, Right-of-way improvement and public projects.
(n) “Public project” shall mean any project planned or undertaken by the City or any governmental entity for construction, reconstruction, maintenance, or repair of public facilities or Public improvements, or any other purpose of a public nature.
(o) “Right-of-way” shall mean present and future streets, alleys, Right-of-way and public utility easements, including public utility easements and Right-of-way dedicated in plats to the City.
(p) “Upstream Transmission” shall mean the carrying of a transmission to the Headend from remote points on the Cable System or from interconnection points on the Cable System.
Section 2. Grant of Franchise.
(a) Pursuant to K.S.A. 12-2001 ET SEQ., and K.S.A. 12-2006 ET SEQ the City grants to the Grantee the non-exclusive right, privilege and franchise to construct, maintain, extend and operate its Facilities, in, through and along the Right-of-way for the purpose of providing Cable Services and Cable Information Services to the City and its inhabitants for the full term of this Franchise; subject to the terms and conditions of this Ordinance and applicable law.
(b) Nothing in this Agreement shall be interpreted as providing the Grantee the right, privilege or franchise to construct, maintain, extend or operate facilities, equipment, wiring, or attendant materials, in, through and along the Right-of-Way for the purpose of providing Non-Cable Services to the City and its inhabitants, except as otherwise permitted by this Ordinance and applicable laws.
Section 3. Use of Right-of-way. In the use of the Right-of-way under this Ordinance, the Grantee shall be subject to all applicable local, state and federal law and regulations. In addition, Grantee shall comply with the following:
(a) The Grantee’s use of Right-of-way shall in all matters be subordinate to the City’s use of Right-of-way for any public purposes. The Grantee shall coordinate the placement of its Facilities in a manner which minimizes adverse impact on Public improvements, as reasonably determined by the City. Where placement is not otherwise regulated, the Facilities shall be placed with adequate clearance from such Public improvements so as not to impact or be impacted by such public improvement.
(b) All earth, materials, sidewalks, paving, crossings, utilities, public improvements or improvements of any kind injured, damaged, or removed by the Grantee in its activities under this Ordinance shall be fully repaired or replaced within a reasonable time by the Grantee at its sole expense and to the reasonable satisfaction of the City and the Grantee.
(c) The Grantee shall keep and maintain accurate records and as-built drawings depicting accurate horizontal and vertical location of all facilities constructed, reconstructed, or relocated in the Right-of-way after the date hereof and provide location information regarding specific future project locations to the City upon request. Where such information is available electronically, upon request from the City, Grantee agrees to provide such information in an electronic format. City agrees to use information obtained pursuant to this section only to locate utility facilities in connection with municipal projects and further agrees not to disclose such information to anyone other than City employees requiring such information to locate utility facilities in connection with municipal projects, except as required by law. Grantee and the City agree that such information is confidential and proprietary and agree that such information shall remain the sole property of the Grantee and agree that pursuant to K.S.A. 45-221 (12), (18), as amended, such information does not constitute public records subject to K.S.A. 45-218, as amended. In the event that City is required by law to disclose such information, City shall provide the Grantee seven days advance notice of its intended disclosure of such information and shall take such action as may be reasonably required to cooperate with the Grantee to safeguard such information.
The Grantee agrees to indemnify and hold the City harmless from any and all penalties or costs, including attorney’s fees, arising from the actions of the Grantee, or of the City at the written request of the Grantee, in seeking to safeguard the confidentiality of information provided by the Grantee to the City under this section.
In the event such information is required by force of law to be publicly disclosed, the Grantee shall have no further obligation under this section to provide the City with such information.
(d) Except in cases of an emergency, a minimum of fourteen (14) days prior to construction, reconstruction or relocation of any facilities in the Right-of-way, the Grantee shall submit to the City Engineer, or her or his designee, for approval, plans and specifications of the proposed installation. Such approval shall not be unreasonably withheld, delayed or conditioned. City review shall only concern matters related to the interests of the City as set forth in this Ordinance.
(e) The Grantee shall cooperate promptly and fully with the City and take all measures necessary to provide accurate and complete information regarding the nature and locations, both horizontal and vertical, of its Facilities located within Right-of-way when requested by the City or its authorized agents for a Public project. Such location and identification shall be at the sole expense of the Grantee, without expense to the City, its employees, agents, or authorized contractors.
(f) As reasonably necessary, the Grantee shall relocate or adjust any Facilities located in the Right-of-way for a Public project within a reasonable time. Such relocation or adjustment shall be performed by the Grantee at its sole expense, without expense to the City, its employees, agents, or authorized contractors and shall be specifically subject to the rules and regulations of the City not inconsistent with this Ordinance pertaining to such. The Grantee shall cooperate with all private citizens and businesses requiring the Grantee to move Facilities. For projects which are not Public improvements, Grantee may charge reasonable fees for the temporary removal of Facilities according to a written schedule established by the Grantee.
(g) It shall be the primary responsibility of the Grantee to take adequate measures to protect and defend its Facilities in the Right-of-way from harm and damage. If the Grantee fails to accurately or timely locate Facilities when requested, the Grantee has no claim for costs or damages against the City and its authorized contractors or any other party authorized to be in the Right-of-way, except to the extent such harm or damage is caused by such party’s negligent or intentional conduct. The City and its authorized contractors agree to take reasonable precautionary measures, including, but not limited to, calling for utility locations and observing marker posts, when working near Grantee’s Facilities.
(h) Except in the event of an emergency, the Grantee shall notify the City not less than ten (10) days in advance of any construction, reconstruction, repair or relocation of Facilities which would require any street closure which reduces traffic flow to less than two lanes of moving traffic. The City shall follow its policies in the grant or denial of such authority, which shall not be unreasonably delayed. Except in the event of an emergency, no such closure shall take place without such notice and prior authorization from the City.
In addition, all work performed in the traveled way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected. For all work within the Right-of-way, the Grantee shall erect and maintain signs and other devices as required by City Ordinances, regulations and rules.
(I) All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance and dismantling of the Facilities in the Right-of-way shall be in accordance with applicable present and future federal, state and City law and regulations.
Section 4. Street Tree Ordinance. The Grantee shall comply with the provisions of the Street Tree Ordinance (Chapter 18, Article 1, of the Code of the City of Lawrence, Kansas) and amendments thereto, in the care, pruning, trimming and removing of trees located in or on the City Right-of-way.
Section 5. Location of Underground Equipment and Facilities. The Grantee’s equipment shall be placed underground as required by City Ordinances, including Chapter 5 Article 4A of the Code of the City of Lawrence, and amendments thereto. Where underground construction is made, the equipment and necessary trenching shall be installed and maintained or provided by the Grantee in accordance with the Ordinances of the City without expense to the City.
Section 6. Franchise Fee.
(a) In partial consideration for the grant of this Franchise and the premises, the Grantee agrees to pay and the City agrees to accept as adequate compensation and consideration for the Franchise granted in lieu of any occupation, license, or privilege tax or any lease or easement charge, a franchise fee as defined herein. The Grantee shall pay to the City as a Cable Service franchise fee a sum equal to three and one-quarter percent (3.25%) of Gross Revenues derived from the operation Grantee’s Cable System to provide Cable Services within the corporate limits of the City.
(b) Beginning in January 2000, Grantee shall also pay as a Cable Information Service franchise fee to the City a sum equal to two percent (2%) of Gross Revenue derived from the operation of Grantee’s Cable System to provide Cable Information Services within the corporate limits of the City, unless the City’s authority to require such payments is expressly preempted by state or federal law.
(c) The franchise fee shall be paid monthly, by electronic transfer to the City, or other method approved by the City and the Grantee, for the preceding monthly period. The Company shall pay the applicable fee to the city within forty-five (45) days of the last day of the applicable month for which a fee payment is due. Payments received after the due date shall be subject to a one-time charge equal to ten percent (10%) of the payment due. The Grantee shall provide with every payment required pursuant to this Section a completed report in substantially the same form as Exhibit A.
(d) The franchise fee shall be in lieu of all other licenses, charges, fees or impositions (other than the usual general or special ad valorem taxes or special assessments) which might be imposed by the City for the privilege of operating Grantee’s Cable System and Facilities within the City.
(e) The Grantee and the City agree that the City may modify the franchise fee established by this Ordinance as follows: During or after the fifth year of this Franchise, the City may adopt an Ordinance increasing the Cable Service franchise fee to a maximum of four percent (4%). During or after the tenth year of this Franchise, the City may adopt an Ordinance increasing the Cable Service franchise fee to a maximum of five percent (5%). Before any such modification decision, the City shall conduct a duly noticed public hearing allowing for comment on the proposed franchise fee increase by Grantee and all interested parties. The City shall provide the Grantee with ninety (90) days notice prior to the effective date of any Cable Service franchise fee modification.
Section 7. Sharing of Space. The City encourages the conservation of Right-of-way by the sharing of space by all utilities. To the extent required by federal or state law, the Grantee shall permit any other franchised entity by appropriate contract or agreement negotiated by the parties to use any and all Facilities constructed or erected by the Grantee. All agreements and installations shall be subject to all existing and future Ordinances and regulations of the City. Grantee agrees that it will not grant any entity rights to occupy the Right-of-way without providing notice to the City.
Section 8. Technical Requirements for Cable System.
(a) General. The Grantee’s Cable System operated hereunder shall at all times be operated and updated, as needed, so that at a minimum, it is conformance with all applicable and current federal, state and local technical specifications and standards, including but not limited to, technical specifications contained in FCC rules and regulations, or any other applicable law which may supersede such rules. As a supplement to the technical standards, the Grantee shall operate the system in a manner to provide to all subscribers video and audio signals of consistently good quality.
(b) Specifications of Cable System. The Grantee hereby commits to upgrade and improve the technical capabilities and specifications of the Cable System by December 31, 2001. In reviewing the progress of the planned technical upgrade the Grantee and the City shall examine the following technical specification goals:
1. Downstream frequency spectrum of 54-750 MHZ.
2. Upstream frequency spectrum of 5-40 MHZ.
3. Channel capacity of a minimum of 70 channels.
4. Channel capacity of a minimum of 4 N.T.S.C. video channels.
5. Two-way capable between Grantee and subscriber.
Section 9 Public, Educational and Governmental Access.
(a) Access channels. The Grantee shall make available to the City the public, educational and governmental (PEG) access channels as specified in this Section.
(1) The Grantee shall continue to make available to the City (1) access channel for City non-commercial uses and purposes, at no cost to the City.
(2) The Grantee shall continue to make available to the Unified School District No. 497, (USD #497), one (1) access channel for USD #497 non-commercial uses and purposes.
(3) By January 1, 2000, the Grantee shall make available to University of Kansas one (1) access channel for University of Kansas non-commercial uses and purposes.
(4) By January 1, 2000, the Grantee shall make available to the Haskell Indian Nations University (Haskell) one (1) access channel for Haskell non-commercial uses and purposes.
The above four (4) access channels shall be of the same quality as other channels of the cable system. Grantee shall not charge the City, USD #497, the University of Kansas or Haskell for such access. Grantee shall serve as Designated Access Manager for public use of access channels.
(b) Additional access channels. After the upgrade of Grantee’s Cable System as specified in Section 8, the Grantee shall make available to the City up to two additional access channels in accordance with the following procedures:
(1) The City may request an additional access channel when the existing access channels are in use at least 80% of the week on a 8-hour per day/seven day per week schedule, with at least 80% of the programming from unduplicated, locally originated programming. The existing access channels must maintain this level of usage for at least six consecutive weeks. Programming consisting primarily of text messages shall not be including in calculating access use.
(2) When the City determines that access channel use meets the above threshold and the City desires an additional access channel, the City shall deliver to Grantee a written request for an additional access channel accompanied by reports or other documentation showing that access use meets or exceeds the above threshold.
(3) The Grantee has 30 days to respond to the request for an additional access channel. If the Grantee agrees with the request, the Grantee and the City shall establish an implementation schedule, taking into account Grantee’s then existing programming obligations and other factors.
(4) If Grantee disagrees with the request for an additional access channel, then the City shall schedule a public hearing before the City Commission to provide Grantee and others interested an opportunity to present testimony and other evidence concerning the request for an additional access channel. Following the hearing, the City Commission shall issue a decision on the request.
(5) Interested parties may appeal the decision under applicable law.
(c) The Grantee, shall provide a loaner program for community residents for the use of two (2) 8mm studio equipment cameras for use in the production and programming needs of the access channels.
(d) Indemnification by PEG access users. All producers and users of any of the PEG facilities or channels shall agree in writing to hold harmless the Grantee and, where applicable, the City, from any and all liability or other injury (including the reasonable cost of defending claims or litigation) arising from or in connection with claims for failure to comply with applicable federal laws, rules, regulations or other requirements of local, state or federal authorities; for claims of libel, slander, invasion of privacy, or the infringement of common law or statutory copyright; for unauthorized use of any trademark, trade name or service mark; for breach of contractual or other obligations owing to third parties by the producer or user; and for any other injury or damage in law or equity, which claims result from the use of PEG facilities or channels, or the City’s or Grantee’s policies, practices or decisions regarding such use.
Section 10. Institutional Network.
(a) Construction and activation. Grantee shall construct and activate a Public Institutional Network (PIN) in accordance with the specifications in Appendix A. Grantee shall retain ownership and control of the PIN and related Facilities, subject to the City’s rights under this Ordinance to use the PIN.
(b) Review and adjustment of PIN requirements and capabilities. During years five and ten of this Ordinance, the City may conduct a review and adjustment of PIN requirements and capabilities. The City shall conduct any PIN review in accordance with the following procedures:
(1) If the City elects to initiate a PIN review, it shall provide the Grantee with written notice at least 90 days before commencing the review. The notice shall include the PIN requirements and capabilities under review and any proposed adjustments.
(2) Within 60 days of delivery of the notice, representatives of the City and the Grantee shall meet to develop mutually agreeable adjustments to PIN requirements and capabilities. Any mutually agreeable adjustments shall be presented to the City Commission as recommendations for modification to this Section.
(3) If the City and the Grantee cannot develop mutually agreeable adjustments to PIN requirements and capabilities within a reasonable time, then the City and the Grantee shall submit to the City Commission their respective proposals for modification to this Section. Grantee’s proposal shall be considered a request for modification of franchise obligations under 47 USC § 548.
(4) The City Commission shall review the proposals and the comments of interested parties at a public hearing. The City Commission shall then issue a decision concerning any modification to this Section, taking into account the costs, the current and projected PIN usage, changes in technology and other relevant factors.
(5) The Grantee may appeal under applicable law a denial of a modification proposal under this Section.
(c) Indemnification by PIN users. The City and PIN users shall agree in writing to hold harmless the Grantee and the City, where applicable, from any and all liability or other injury (including the reasonable cost of defending claims or litigation) arising from or in connection with claims for failure to comply with applicable federal laws, rules, regulations or other requirements of local, state or federal authorities; for claims of libel, slander, invasion of privacy, or the infringement of common law or statutory copyright; for unauthorized use of any trademark, trade name or service mark; for breach of contractual or other obligations owing to third parties by the producer or user; and for any other injury or damage in law or equity, which claims result from the use of the PIN.
Section 11. Cable System Service Standards. The Grantee shall provide service standards which comply, at a minimum, with Cable System service standards required by the FCC.
Section 12. Access to Information and City Audit regarding Grantee Equipment, Facilities and Revenues. The Grantee shall provide the City, or City audit representatives, with reasonable access to Grantee records, revenue codes and information documenting the total gross revenues from Cable Service as defined in this Ordinance. The Grantee shall comply with all reasonable requests for information in the performance of any audit and shall pay 50% of the actual and reasonable costs of such audit, not to exceed $2,500 per audit.
Section 13. Attachment to Poles. Nothing in this Ordinance shall be construed to require or permit any telephone, electric light or power wire attachments by either the City or the Grantee on the poles of the other. If such attachments are desired by the City or the Grantee, a separate agreement shall be prerequisite to such attachments.
Section 14. Indemnification and Hold-Harmless. The Grantee, its successors and assigns, shall at all times save and hold harmless the City from all liability, costs, damages, and expenses of any kind, for the payment of which the City may become liable to any person, firm, or corporation by reason of any claim or damages to the extent caused by the failure of the Grantee, its employees, agents, or servants to exercise due care and diligence in the construction, installation, maintenance, and operation of Cable Services and the transmission, distribution of such services within the City or outside the City.
Section 15. Assignment of Franchise. Pursuant to the written permission of the City and the submission of FCC form 394 or such successor form, the Grantee shall have the right to assign the Franchise granted under this Ordinance, and the associated rights and privileges to any person, firm or corporation, and any such assignee, by accepting such assignment, shall be bound by the terms and provisions hereof. If the Grantee should seek approval to assign this Franchise, the Grantee shall notify the City in writing. All such assignments shall be in writing and authenticated copies thereof shall be filed with the City Clerk. This Franchise shall be assignable only in accordance with federal law and the laws of the State of Kansas, as the same may exist at the time when any assignment is made. In the event that Grantee assigns this Franchise to a wholly owned subsidiary or affiliate of Grantee, such assignment shall require thirty (30) days prior written notice to the City and shall not require City approval.
Section 16. Conditions of Franchise. This Franchise is granted and accepted under and subject to all applicable laws and under and subject to all of the orders, rules and regulations now or hereafter adopted by governmental bodies now or hereafter having jurisdiction, each and every provision hereof shall be subject to Acts of God, fires, strikes, riots, floods, war and other causes beyond the Grantee’s control. This Franchise shall not be exclusive.
Section 17. Other Franchises. Grantee agrees that the City may grant to other providers one or more franchises to provide Cable Service and other services. To avoid unfair competition due to disparate franchise obligations, if the City grants franchise rights to other providers in competition with Grantee, Grantee may petition the City to modify terms of this Ordinance to adjust or eliminate terms that are more burdensome or costly than the terms of a competing provider’s franchise. The City shall schedule a public hearing on the petition within 60 days of receipt and shall issue a written decision granting or denying such petition within 60 days of such hearing.
Section 18. Changes in laws or regulations. The City or the Grantee may seek modification of this Ordinance due to changes in federal or state laws or regulations in accordance with the following procedures:
(1) The party seeking modification shall serve the other party notice of a request for modification under this Section. The notice shall specify: (I) the changes in laws or regulations on which the modification request is based; and (ii) the desired modifications.
(2) Within 60 days of delivery of the notice, representatives of the City and the Grantee shall meet to develop mutually agreeable modifications to the Ordinance. Any mutually agreeable modifications shall be presented to the City Commission as recommendations for modification to the Ordinance under this Section.
(3) If the City and the Grantee cannot develop a mutually agreeable recommendation for modification within a reasonable time, then the City and the Grantee shall submit to the City Commission their respective proposals for modification under this Section.
(4) The City Commission shall review the proposals and comments of interested parties at a public hearing. The City Commission shall then issue a decision concerning any modification to the Ordinance under this Section.
(5) The Grantee may appeal under applicable law a denial of a modification proposal under this Section.
Section 19. Notice to Parties. For the purpose of this Agreement, notice to the City will be to: City Manager, P.O. Box 708, 6 East 6th Street, Lawrence, Kansas, 66044. For the purpose of this Agreement, notice to the Grantee will be to: President, The World Company, P.O. Box 888, Lawrence, KS 66044. Notice will be effective upon delivery, by hand delivery or by first class mail to the above address until the City or the Grantee notifies the other, in writing, of a change in address.
Section 20. Length of Franchise Agreement. This Agreement shall be effective for fifteen (15) years after its effective date pursuant to Section 24. Upon request by the City, the Grantee and the City may periodically conduct a meeting to review this Ordinance, and related performance and cooperation issues.
Section 21. Rights and Duties of Grantee upon Expiration of Ordinance. Upon expiration of this Ordinance, whether by lapse of time, by agreement between the Grantee and the City, or by forfeiture thereof, the Grantee has the right to remove from public property all of its Facilities used in its business within reasonable time after such expiration or forfeiture, but in such event, it shall be the duty of the Grantee immediately upon such removal, to restore the Right-of-way from which its Facilities are removed to as good condition as before removal and without cost to the City.
Section 22. Performance Guarantee and Escrow.
(a) Grantee shall, within thirty (30) days of the effective date of this Ordinance, deliver to the City satisfactory evidence of a performance bond in the amount of Twenty Thousand Dollars ($20,000.00), payable to the City. The bond shall be used to ensure the faithful performance by the Grantee of all provisions of the Ordinance and payment by Grantee of any claims, liens, and taxes due to the City which arise by reason of the construction, operation, or maintenance of the Cable System.
(b) The City shall be entitled to claim against the bond for any actual losses suffered by the City as a result of Grantee’s violation of this Ordinance. Before making such a claim, the City must provide Grantee with written notice and a reasonable opportunity to cure any alleged violation. If Grantee fails to cure or otherwise resolve the alleged violation, then the City shall conduct a public hearing, allowing Grantee and other interested parties to comment on the alleged violation and the proposed claim against the bond.
Section 23. Termination or Forfeiture of Franchise.
(a) In case of failure on the part of the Grantee, its successors and assigns, to comply with any of the provisions of this Ordinance, or if the Grantee, its successors and assigns, should do or cause to be done any act or thing prohibited by or in violation of the terms of this Ordinance, the Grantee, its successors and assigns, shall forfeit all rights and privileges granted by this Ordinance and all rights hereunder shall cease, terminate and become null and void, provided that said forfeiture shall not take effect until the City shall carry out the following proceedings and all additional provisions as required by the State and federal law.
(b) Before the City proceeds to forfeit the Franchise, as in this section prescribed, it shall first serve a written notice as provided by the Notice provision of this Ordinance, setting forth in detail the conditions of neglect, default or failure complained of, and the Grantee shall have ninety (90) days after the mailing of such notice in which to comply with the conditions of this Franchise. If, at the end of such ninety (90) day period, the City deems that the conditions of such Franchise have not been complied with by the Grantee and that such Franchise is subject to cancellation by reason thereof, the City, in order to terminate the Franchise shall enact an Ordinance setting out the grounds upon which the Franchise is to be canceled and terminated. If within thirty (30) days after the effective date of the Ordinance, the Grantee has not instituted an action in the District Court of Douglas County, Kansas to determine whether or not the Grantee has violated the terms of this Franchise and that the Franchise is subject to cancellation by reason thereof, such Franchise shall be canceled and terminated at the end of such thirty-day period.
(c) If within such thirty (30) day period the Grantee does institute an action, as above provided, to determine whether or not the Grantee has violated the terms of this Franchise and that the Franchise is subject to cancellation by reason thereof and prosecutes such action to final judgment with due diligence, then, in the event the court finds that the Franchise is subject to cancellation by reason of the violation of its terms, this Franchise shall terminate thirty (30) days after such final judgment is rendered and available appeals exhausted.
Section 24. Effectiveness. This Ordinance shall become effective after the following: 1) the Ordinance has been approved by the Grantee in writing pursuant to Section 27; 2) the Ordinance has been read in full at three regular meetings of the governing body; 3) the Ordinance has been published in the official city paper once a week for two consecutive weeks; and 4) the expiration of 60 days from the date of final passage without the submission of a proper petition asking that the Franchise be submitted for adoption to popular vote; all as provided by K.S.A. 12-2001. The Grantee shall pay for the required publications of this Ordinance.
Section 25. Severability. If any provision, section or subsection of this Ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions, sections, or subsections or applications of this Ordinance which can be given effect without the invalid provision, section or subsection or application, and to this end the provisions, sections, and subsections of this Ordinance are declared to be severable.
Section 26. Repeals. To the extent of their validity on the date of effectiveness of this Ordinance, Ordinance No. 3938, 4399 and Ordinance No. 5453 are hereby repealed.
Section 27. Grantee Acceptance. The Grantee shall, within sixty (60) days, from the final publication of this Ordinance, file with the City Clerk its written acceptance of all the terms, conditions, and provisions of this Ordinance, and in case its failure to do so, this Ordinance shall be null and void. The acceptance of this Ordinance shall be in writing, and shall be duly acknowledged before some officer authorized by law to administer oaths.