ORDINANCE NO. 8576

 

AN ORDINANCE OF THE CITY OF LAWRENCE, KANSAS approving the transfer By the world company OF ITS RIGHTS UNDER THE NONexclusive TELECOMMuNiCATIONS FRANCHISE ORDINANCE GRANTED BY ordinance no. 7359, AS amended in ordinance NO. 8058,  AND PREVIOUSLY Granted TO the world company BY THE CITY OF Lawrence, kansas in ordinance no. 8575, TO KNology of kansas inc., AND PURSUANT TO K.S.A. 12-2001 ET SEQ. 

 

WHEREAS, the City of Lawrence, Kansas (“City”), passed Ordinance No. 7359 on June 12, 2001, which granted a nonexclusive contract franchise to WorldNet, L.L.C. (“WorldNet”) to construct, use and maintain telecommunications cables and lines in the public right-of-way in the City.  On December 19, 2006, the City passed Ordinance 8058 amending Ordinance No. 7359 to amend the franchise fee WorldNet pays to provide for local exchange telecommunications service to the City and its residents; and

 

WHEREAS, on August 31, 2010, the City received a written request from WorldNet, a subsidiary of The World Company, to assign to Knology of Kansas, Inc. a wholly-owned subsidiary of Knology Inc. (“Knology”), the nonexclusive telecommunications franchise granted WorldNet under City Ordinance No. 7359, as amended (“Franchise”); and

 

WHEREAS, WorldNet, The World Company and Knology have entered into an Asset Purchase Agreement by which The World Company has agreed to sell and Knology has agreed to purchase certain telecommunications assets, including the Franchise; and

 

WHEREAS, the proposed transfer will involve two steps.  First, the transfer of the Franchise from WorldNet to The World Company; then, the transfer of the Franchise from the World Company to Knology; and

 

WHEREAS, On September 28, 2010, the City passed Ordinance 8575 consenting to the transfer of the Franchise granted to WorldNet in Ordinance No. 7359, as amended, from WorldNet to The World Company as the first step to transfer the Franchise to Knology; and

 

WHEREAS, Section  11 of the Franchise requires that The World Company obtain the City’s prior consent for the assignment of the Franchise by the World Company to Knology; and

 

WHEREAS, WorldNet, The World Company and Knology have properly requested the City’s consent to the assignment and transfer of the Franchise and related assets to Knology; and

 

WHEREAS, Knology has the financial, technical, and legal ability to fulfill the obligations of the Franchise, and the assignment of the Franchise to Knology will serve the public interest.

 

NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LAWRENCE, KANSAS: 

 

SECTION ONE:  The City hereby confirms that the Franchise is valid and binding and in full force and effect, that The World Company is the present franchisee thereunder, and, to the best knowledge of the City, The World Company is in compliance in all material respects with the terms of the Franchise.

 

SECTION TWO:  The City consents to the transfer of the Franchise to Knology and all of The World Company’s rights, title, powers, and privileges in and under the Franchise and related assets issued to The World Company through franchise Ordinance 7359 as amended in Ordinance 8058 and previously granted pursuant to Ordinance 8575, provided that Knology has first acknowledged its obligations, responsibilities and liabilities under the respective nonexclusive telecommunications franchise by executing the Transfer Acceptance and Assumption of Telecommunications Franchise document, attached hereto as Exhibit A, and all other requirements of this ordinance are fulfilled.

 

SECTION THREE:  Effective upon the closing date of the sale of The World Company to Knology, Knology shall become bound by the franchise and responsible for any and all obligations, duties and liabilities under the respective telecommunications contract franchise ordinance, and federal, state or local law.  By transfer of the Franchise to Knology, the City does not waive any of its rights concerning past or future non-compliance concerning franchisee obligations.  Knology shall be responsible for any past or future non-compliance of such obligations. 

 

SECTION FOUR:  This Ordinance shall be binding upon Knology and the City, and their respective successors and assigns.

 

SECTION FIVE:  Upon Closing, the City releases The World Company from all obligations and liabilities under the Franchise that relate to periods from and after the Closing.

 

SECTION SIX:  Section 1 (Definitions) of Ordinance No. 7359 is hereby amended to read as follows:

 

          Section 1.  Definitions.  For purposes of this Ordinance, the following words and phrases shall have the meanings given herein:

 

a)       “The Telephone Company” shall mean WorldNet, L.L.C. Knology of Kansas, Inc. its successors and assigns.

 

b)       “City” shall mean the City of Lawrence, Kansas.

 

c)       “Facilities” shall mean telephone and telecommunication lines, conduits, wires, cables, pipes, poles, towers, vaults and appliances, and appurtenances and improvements thereto, either under or above ground.

 

d)       “Public improvement” shall mean any existing or contemplated public facility, building or capital improvement project, including, without limitations, streets, alleys, sidewalks, sewer, water, drainage, right-of-way improvement and public projects.

 

e)       “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.

 

f)       “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.

 

g)       “Telecommunications” shall mean the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.

 

h)       “Telecommunications Service” shall mean the offering of telecommunications for a fee directly to the public or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.

 

SECTION SEVEN:  Section 13 (Notice to Parties) of Ordinance No. 7359 is hereby amended to read as follows:

 

          Section 13.  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 Telephone Company will be to:  General Manager, WorldNet L.L.C., One Riverfront Plaza, Suite 301, Lawrence, Kansas, 66044 with additional notice sent to Dolph C. Simmons Jr., President, The World Company, 609 New Hampshire Street, Lawrence, Kansas, 66044 Knology of Kansas, Inc., Bruce Schoonover, Jr., Director-Regulatory Affairs, 1241 O.G. Skinner Dr., West Point, GA 31833.  Notice will be effective upon delivery by hand delivery or by first class mail to the above address until the City or the Telephone Company notifies the other, in writing, of a change in address.

 

SECTION EIGHT:  Section 19 (Company Acceptance) of Ordinance No. 7359 is hereby amended to read as follows:

 

Section 19.  Company Acceptance.  The Telephone Company shall, within sixty (60) fifteen (15) 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 of its failure so to do, 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; and when so accepted the ordinance and acceptance shall constitute a contract between the City and the Telephone Company subject to the provisions of the laws of the State of Kansas.

 

Further, the City and the Telephone Company hereby acknowledge and agree that should there exist any period of time between the transfer of the Franchise and the date Knology files the written acceptance required herein, all the provisions of Ordinance No. 7359 relating to the granting of a Contract Franchise shall be deemed to have remained in effect during said period.

         

SECTION NINE:  The above stated recitals are by reference incorporated herein, and shall be as effective as repeated verbatim. 

 

SECTION TEN:  Section 1 (Definitions), Section 13 (Notice to Parties) and Section 19 (Company Acceptance) of Ordinance No. 7359, are hereby repealed it being the intent to supersede the repealed provisions.  It is not the intention of this ordinance to repeal or amend any other portion of the existing Ordinance No. 7359, as amended and all remaining provisions shall remain in full force and effect.

 

SECTION ELEVEN:  Effective Date.  This contract franchise ordinance shall take effect and be in force from and after October 5, 2010, and after its publication as provided by law and after Knology files it written acceptance as required by Section Two and Section 19, as amended above. 

 

 

Passed by the Governing Body of the City of Lawrence, Kansas this ___ day of________, 2010.

 

 

APPROVED:

 

 

 

_________________________________

Mike Amyx, Mayor 

 

 

ATTEST:

 

 

 _________________________________

Jonathan M. Douglass, City Clerk

 

 

 

Publish one time and return one Proof of Publication to the City Clerk and one to the Director of Legal Services.