RESOLUTION NO. 7182
A RESOLUTION OF THE CITY OF LAWRENCE, KANSAS, APPROVING THE TRANSFER AND ASSIGNMENT BY KNOLOGY OF KANSAS, INC., d/b/a WOW! INTERNET, CABLE AND PHONE, A WHOLLY OWNED SUBSIDIARY OF KNOLOGY, INC., A WHOLLY OWNED SUBSIDIARY OF WIDEOPENWEST FINANCE, LLC, A DELAWARE LIMITED LIABILITY COMPANY, OF ITS RIGHTS AND OBLIGATIONS UNDER THE NONEXCLUSIVE TELECOMMUNICATIONS FRANCHISE GRANTED TO IT IN ORDINANCE NO. 8576 TO MIDCONTINENT COMMUNICATIONS, A SOUTH DAKOTA GENERAL PARTNERSHIP.
WHEREAS, on June 12, 2001, the City of Lawrence, Kansas (“City”), passed Ordinance No. 7359, whereby it granted to WorldNET, L.L.C. (“WorldNET”), a nonexclusive contract franchise (“Franchise”) to construct, operate, and maintain telecommunications facilities in the City’s rights of way;
WHEREAS, on December 19, 2006, through Ordinance No. 8058, the City and WorldNET amended, in writing, the Franchise to adjust thereunder the amount of the franchise fee;
WHEREAS, on October 5, 2010, through Ordinance No. 8575, the City approved the transfer and assignment from WorldNET to The World Company, Inc., (“The World Company”), all rights and obligations under the Franchise, as amended;
WHEREAS, on October 5, 2010, through Ordinance No. 8576, the City approved the transfer and assignment from The World Company to Knology of Kansas, Inc., a wholly owned subsidiary of Knology, Inc. (“Knology”), all rights and obligations under the Franchise, as amended, subject to Knology being bound by the terms and conditions thereof;
WHEREAS, in 2012, WideOpenWest Finance, LLC, a Delaware limited liability company, purchased the stock of Knology and, thereafter, Knology, d/b/a WOW! Internet, cable and Phone (“WOW!”), continued to be subject to all rights and obligations under the Franchise, as amended;
WHEREAS, on December 2, 2016, pursuant to Section 11 of the Franchise, as amended, WOW! filed with the City Clerk a written request to assign to Midcontinent Communications, a South Dakota general partnership (“Midco”), all rights and obligations under the Franchise, as amended;
WHEREAS, WOW! and Midco have entered into an Asset Purchase Agreement, whereby WOW! has agreed to sell and Midco has agreed to purchase certain assets, including WOW!’s rights and obligations under the Franchise, as amended, and the parties wish to obtain the City’s consent prior to January 15, 2017;
WHEREAS, Section 11 of the Franchise, as amended, requires WOW! to obtain the City’s consent prior to any transfer or assignment of its rights and obligations under the Franchise, as amended;
WHEREAS, Midco has the financial, technical, and legal wherewithal to fulfill the obligations of the Franchise, as amended;
WHEREAS, the Governing Body hereby finds that transfer and assignment of the Franchise, as amended, from WOW! to Midco will serve the public interest; and
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WHEREAS, the City hereby consents to the transfer and assignment from WOW! to Midco of all rights and obligations under the Franchise, as amended, subject to WOW!’s and Midco’s compliance with the terms and conditions of this Resolution.
NOW, THEREFORE, BE IT RESOLVED BY THE GOVERNING BODY OF CITY OF LAWRENCE, KANSAS:
SECTION 1. The City hereby confirms that the Franchise, as amended, is valid, binding, and in full force and effect, that WOW! is the present holder of that franchise, and that, to the best of the City’s knowledge, WOW! is in compliance -- in all material respects -- with the terms and conditions of the Franchise, as amended.
SECTION 2. The City hereby consents to the transfer and assignment from WOW! to Midco of all rights and obligations under the Franchise, as amended, subject to the following conditions:
(a) WOW! shall acknowledge its responsibility to the City for any and all defaults, noncompliance, or liabilities, if any, under the existing Franchise, as amended, which may exist at the time of the closing of the transaction, which responsibility shall be continuing and ongoing after the time of the closing of the transaction, by executing a written Acceptance of Responsibility under Telecommunications Franchise, a copy of which is affixed hereto as Exhibit A and is incorporated herein by reference;
(b) Midco shall acknowledge its obligations, responsibilities, and liabilities under the existing Franchise, as amended, by executing a written Transfer Acceptance and Assumption of Telecommunications Franchise, a copy of which is affixed hereto as Exhibit B and is incorporated herein by reference;
(c) Midco agrees to negotiate in good faith with the City and to enter, within a reasonable time hereafter, into a new nonexclusive telecommunications contract franchise with the City, the terms of which shall be substantially similar to the existing Franchise, as amended and will replace the existing Franchise, as amended; and
(d) Midco agrees to negotiate in good faith with the City and, within a reasonable time hereafter, to enter into a Video Service Provider’s Agreement with the City, the terms of which shall be substantially similar to the Franchise, as amended, which agreement shall run concurrently with any Video Service Authorization issued by the State of Kansas to Midco under the Video Competition Act of 2006, codified as amended at K.S.A. 2015 Supp. 12-2021 et seq. If Midco is unable to procure from the State a Vide Service Authorization, then it agrees to enter into a separate cable service provider franchise agreement with the City.
SECTION 3. Effective upon the closing of the sale of WOW!’s assets, including all rights and obligations under the Franchise, as amended, to Midco, Midco shall become bound by the terms of the Franchise, as amended, and shall be responsible for any and all obligations, duties, and liabilities accruing thereunder after the time of closing and for any and all obligations, duties, and liabilities otherwise accruing by operation of federal, state, or local law. By consenting to the transfer and assignment from WOW! to Midco of the Franchise, as amended, the City expressly reserves all rights it has regarding the Franchise, as amended, including any existing or future rights relating to default or compliance. As of the time of closing, WOW! shall be liable for any default or noncompliance under the Franchise, as amended, preceding that time and Midco shall be responsible for any default or noncompliance under the Franchise, as amended, following that time.
SECTION 4. This Resolution shall be binding upon the City, WOW!, Midco, and their respective successors and assigns.
ADOPTED by the Governing Body of the City of Lawrence, Kansas, this _____ day of January, 2017.
APPROVED:
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Mike Amyx
Mayor
ATTEST:
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Sherri Riedemann
City Clerk
APPROVED AS TO FORM:
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Toni R. Wheeler
City Attorney