AN ORDINANCE OF THE CITY OF OSAWATOMIE, KANSAS GRANTING A CABLE FRANCHISE TO W. K. COMMUNICATIONS, INC. d/b/a SUDDENLINK COMMUNICATIONS.
WHEREAS, W. K. Communications, Inc. d/b/a Suddenlink Communications has requested a Cable Franchise from the City of Osawatomie Kansas; and
WHEREAS, Kansas statutes and the Home Rule Amendment to the Kansas Constitution as well as the federal Cable Act of 1984, as amended, authorize the City to grant a Cable Franchise for the use and occupancy of City Right-of-Way for the placement of a Cable System, and to adopt rules and regulations regarding such use and occupancy.
NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF OSAWATOMIE, KANSAS:
SECTION 1. DEFINITIONS.
For the purpose of this ordinance (the “Ordinance”), the following terms, phrases, words and abbreviations shall have the meanings ascribed to them below; provided, however, the meanings of all terms, phrases, words and abbreviations herein, whether listed below or not, shall be consistent with and subject to the meanings and definitions prescribed by the Cable Act. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number:
a. “Basic Cable” means the tier of Cable Service regularly provided to all Subscribers that includes the retransmission of local broadcast television signals. Basic Cable as defined herein shall be consistent with 47 U.S.C. § 543(b)(7) (1997), as it may, from time to time, be amended.
b. “Cable Act” means the Cable Communications Policy Act of 1984, Pub. L. No. 98-549, (codified at 47 U.S.C. §§ 521-611 (1982 & Supp. V. 1987) as amended by the Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385, and the Telecommunications Act of 1996, Pub. L. No. 104-104 (1996), as it may, from time to time, be amended.
c. “Cable Service” means (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, as defined by 47 U.S.C. § 522(6), as it may, from time to time, be amended.
d. “Cable System” means a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment or other equipment that is designed to provide Cable Service or other service to Subscribers.
e. “City” means the City of Osawatomie, Kansas or the lawful successor, transferee, or assignee thereof.
f. “FCC” means Federal Communications Commission, or successor governmental entity thereto.
g. “Franchise” means the rights and obligations extended by the City to Grantee by this Ordinance to construct, operate and maintain a Cable System in the Right-of-Way within the Service Area for the purpose of offering Cable Service to Subscribers.
h. “Grantee” means W. K. Communications, Inc. d/b/a Suddenlink Communications, or the lawful successor, transferee, or assignee thereof.
i. “Gross Revenues” means the revenues received by Grantee from the operation of Grantee’s Cable System to provide Cable Service within the Service Area. “Gross Revenues” shall include any and all revenues allowed under 47 U.S.C. §§ 542 and any other applicable federal statute, as they may, from time to time, be amended.
j. “Person” means an individual, partnership, proprietorship, organization, association, corporation, or governmental entity.
k. “Right-of-Way” means the surface and space on, above and below any street, highway, bridge, alley, parkway, or other public right-of-way dedicated or acquired as City right-of-way. “Right-of-Way” shall not include any county, state or federal rights-of-way, except where controlled or maintained by the City by applicable law or pursuant to an agreement between the City and any such governmental entity. “Right-of-Way” shall also not include any public property or easement owned or leased by the City and not intended for right-of-way use or the placement of cable and cable-like facilities, including, but not limited to, city office property, city utility property, public works facilities, city park, water easement, stormwater easement, or wastewater or sewer easement.
l. “Service Area” means the present municipal boundaries of the City, and shall include any additions thereto by annexation or other legal means.
m. “Subscriber” means a user of the Cable System who lawfully receives Cable Service there from with Grantee’s express permission.
SECTION 2. GRANT OF FRANCHISE.
2.1 Grant. The City hereby grants to Grantee a nonexclusive Franchise which authorizes Grantee to construct, operate and maintain a Cable System in, through and along the Right-of-Way within the Service Area for the purpose of offering Cable Service to Subscribers.
2.2 Conditions of Grant. This Franchise shall be construed in a manner consistent with all applicable federal and state laws. Furthermore, this Franchise is subject to the following:
(A) Grantee shall conform to all generally applicable laws, rules and regulations of the United States and the State of Kansas in the construction, operation and maintenance of its Cable System and all generally applicable rules and regulations of the FCC.
(B) Rights conveyed by this Franchise are for the sole and exclusive use of Grantee. However, the City reserves the right to grant other Persons a similar nonexclusive franchise or other right, subject to applicable federal and state law.
(C) Grantee’s rights are subject to the police powers of the City to adopt and enforce ordinances necessary to the health, safety and welfare of the public. Grantee shall comply with all applicable general laws and ordinances enacted by the City pursuant to that power.
(D) This Franchise shall not convey title, equitable or legal, in the Right-of-Way or other property, and gives only the right to occupy the Right-of-Way and to operate in the City for the purposes and period stated herein. This Franchise does not excuse Grantee from obtaining appropriate access or pole attachment agreements before locating its Cable System on or in another Person’s facilities or property, including the City’s facilities or non-right-of-way property or easement, or excuse Grantee from complying with any applicable right-of-way regulation, zoning regulation or other applicable City ordinance.
(E) In the event of a change in state or federal law which by its terms would require the City to amend this Ordinance or would otherwise materially affects its intent, the parties shall modify this Franchise in a mutually agreed upon manner.
(F) This Franchise is subject to all other terms, conditions and obligations set forth throughout this Ordinance.
2.3 Term. This Franchise shall be for an initial term of five (5) years from the effective date of January 1, 2007, unless otherwise lawfully terminated in accordance with the terms of this Ordinance. Thereafter, this Franchise will automatically renew for up to five (5) renewable two (2) year terms (subject to termination or forfeiture as provided herein), unless either party notifies the other party of its intent to terminate the Franchise by July 1 of the year the then current term is set to expire.
2.4 Acceptance. Grantee shall accept this Franchise by signing this Ordinance or other appropriate writing and filing the same with the City Clerk within sixty (60) days after the passage and final adoption of this Ordinance. Upon such acceptance, this Franchise shall constitute a legally binding contract between the parties. Provided, however, that nothing herein contained shall preclude the City from the proper exercise of its police powers.
SECTION 3. STANDARDS OF USE OF RIGHT-OF-WAY.
3.1 Conditions of Occupancy.
(A) Grantee’s use of the Right-of-Way shall in all matters be subordinate to the City’s use.
(B) Grantee’s Cable System shall be located so as to not cause unreasonable interference with the proper use of Right-of-Way and with the rights and reasonable convenience of property owners who own property that adjoins any of such Right-of-Way. It shall be Grantee’s sole responsibility to take reasonable measures to protect and defend its facilities from harm or damage.
(C) The design, location and nature of facilities to be installed shall be subject to the review and approval of the City’s Directors of Public Works and Utilities. Such review shall be based upon the nondiscriminatory application of city policy and shall not be unreasonably withheld.
(D) Grantee shall not place or cause to be placed any sort of signs, advertisements or other extraneous markings, whether relating to Grantee or any other Person, except such necessary minimal markings as approved by the City as reasonably necessary to identify the facilities for service, repair, maintenance or emergency purposes, or as may be otherwise required to be affixed by application of law or regulation.
(E) If during the course of Grantee’s construction, operation, or maintenance of the Cable System there occurs a disturbance of any Right-of-Way by Grantee, it shall, at its expense, replace and restore such Right-of-Way to a condition reasonably comparable to the condition of the Right-of-Way existing immediately prior to such disturbance.
3.2 Exclusion of Certain Locations. The City may restrict Grantee from using specific portions of the Right-of-Way if the City determines that any proposed use is: (1) intended to be located upon or across facilities or locations which, in the reasonable judgment of the Directors of Public Works and Utilities, cannot safely bear the weight or wind loading thereof, or would otherwise be rendered unsafe or unstable by the installation; (2) intended to be located upon or across facilities or locations which, in the reasonable judgment of the Directors of Public Works and Utilities, do not have electrical service adequate or appropriate for Grantee’s facilities; (3) intended to be located upon or across facilities or locations which, in the reasonable judgment of the Directors of Public Works and Utilities, is incompatible with the existing facilities or locations or would be inappropriate or inconsistent with the prevailing city aesthetic standards; or (4) inconsistent with the terms, conditions, or provisions by which such Right-of-Way was created or dedicated, or with its present use. The Directors of Public Works and Utilities may further exclude specific facilities or locations that have been designated or planned for other use or are not otherwise available for use by Grantee due to engineering, technological, proprietary, aesthetic, legal, or other limitations or restrictions as may be reasonably determined by the City. In the event such exclusions conflict with the reasonable requirements of Grantee, the City will cooperate in good faith with Grantee to attempt to find suitable alternatives, if available, provided that the City shall not be required to incur financial cost nor require the City to acquire new locations for Grantee. Any such exclusion identified in the Section shall not be applicable to or prohibit any of Grantee’s existing facilities or the replacement thereof.
3.3 Relocation at Request of the City. Upon receipt of reasonable advance notice, not to be less than 30 days, Grantee shall, at its own expense, protect, support, temporarily disconnect, relocate, reinstall or remove from the Right-of-Way, any property or facility of Grantee when lawfully required by the City by reason of traffic conditions, public safety, public interest, street abandonment, street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the City. If public funds are available to any company using such street, easement, or right of way for the purpose of defraying the cost of any of the foregoing, such funds shall also be made available to Grantee. If Grantee fails to accurately or timely disconnect, relocate, reinstall or remove its property or facilities when requested, Grantee shall have no claim for costs or damages against the City and its contractors unless the City or its contractors are solely responsible for the harm or damage by their negligent or intentional conduct. Grantee shall be responsible to the City and its contractors for all damages including, but not limited to, delay damages, repair costs, down time, construction delays, penalties or other expenses of any kind arising out of Grantee’s failure to disconnect, relocate, reinstall or remove its property or facilities, unless the damaged party is solely responsible for the harm or damage by its negligence or intentionally causes harm.
3.4 Relocation at Request of Third Party. Grantee shall, on the request of any Person holding a building or moving permit issued by the City, temporarily raise, lower or relocate its wires or other facilities as may be required to permit said person to exercise its rights under said permit, provided: (a) the expense of such action is paid by such Person, including, if required by Grantee, making such payment in advance; and (b) Grantee is given not fewer than ten (10) business days advance written notice to arrange for such action.
3.5 Trimming of Trees and Shrubbery. Grantee shall have the authority to trim trees or other natural growth overhanging any of its Cable System in the Service Area so as to prevent branches from coming in contact with Grantee’s wires, cables, or other equipment, which shall be done in accordance with industry standards. Grantee shall reasonably compensate the City or property owner for any damages caused by such trimming, and at its own cost and expense, reasonably replace all trees or shrubs damaged as a result of the construction, operation or maintenance of Grantee’s Cable System. Such replacement shall satisfy any and all obligations Grantee may have to the City or property owner pursuant to the terms of this Section.
3.6 Safety Requirements. All construction, installation, operation and maintenance of Grantee’s Cable System shall be performed in an orderly and workmanlike manner and in accordance with industry standards. All such work shall be performed in substantial accordance with applicable FCC or other federal, state, and local regulations, including permitting requirements. The Cable System shall not unreasonably endanger or interfere with the safety of Persons or property in the Service Area.
3.7 Aerial and Underground Construction. In those areas of the Service Area where all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are underground, Grantee likewise shall construct, operate, and maintain all of its transmission and distribution facilities underground; provided that such facilities are actually capable of receiving Grantee’s cable and other equipment without technical degradation of the Cable System’s signal quality. In those areas of the Service Area where the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are both aerial and underground, Grantee shall have the right to construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof, aerially or underground; provided, the City may prohibit the installation of new aerial pole routes. To the extent possible, when installing aerial facilities, Grantee shall make use of existing poles for the installation of its facilities. Upon request, Grantee shall place above-ground facilities underground in conjunction with City capital improvement projects and/or at specific locations required by the City, provided that such placement is practical, efficient and economically feasible. Nothing contained in this Section shall require Grantee to construct, operate, and maintain underground any ground-mounted appurtenances such as subscriber taps, line extenders, system passive devices (splitters, directional couplers), amplifiers, power supplies, pedestals, or other related equipment. Notwithstanding anything to the contrary contained in this Section, in the event that all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are placed underground after the effective date of this Ordinance, Grantee shall only be required to construct, operate, and maintain all of its transmission and distribution facilities underground if it is given reasonable notice and access to the public utilities’ facilities at the time that such are placed underground.
SECTION 4. STANDARDS OF SERVICE.
4.1 System Capabilities. Grantee’s Cable System shall meet or exceed all FCC and industry design, capability and technical standards. Grantee shall at all times provide the system capabilities to comply with the FCC’s Emergency Alert System rules and regulations; provided, that at a minimum these capabilities will remain in place even if the FCC at some future date eliminates suggest regulations. Grantee will make audio descriptive service and closed caption capabilities available to the extent required by state and federal law. Conversion to High Definition Television/Advance Television (HDTC/ATV) formats shall occur in accordance with applicable law.
4.2 Customer Service Practices. Grantee shall meet or exceed all minimal FCC and industry customer service practices and standards. Grantee shall maintain a conveniently located customer service center open at least during normal business hours and where Subscribers may pay bills, pick up and return converter boxes and comparable items and receive information on Grantee and its services. Grantee shall also maintain a local or toll-free service line for Subscriber inquiries. Under normal operating conditions Grantee will begin work on all service interruptions and outages within a reasonable time frame but in no event later than twenty-four (24) hours.
4.3 Required Extensions of Service. Grantee is hereby authorized to extend the Cable System as necessary, as desirable, or as required pursuant to the terms hereof within the Service Area. Whenever Grantee shall receive a request for service from at least fifteen (15) Subscribers within 1320 cable-bearing strand feet (one-quarter cable mile) of its trunk or distribution cable, it shall extend its Cable System to such Subscribers at no cost to such Subscribers for system extension, other than the usual connection fees for all Subscribers; provided that such extension is technically feasible, and if it will not adversely affect the operation, financial condition, or market development of the Cable System, or as provided for under Section 4.4 of this Ordinance.
4.4 Subscriber Charges for Extensions of Service. No Subscriber shall be refused service arbitrarily. However, for unusual circumstances, such as a Subscriber’s request to locate his cable drop underground, existence of more than one hundred fifty (150) feet of distance from distribution cable to connection of service to Subscribers, or a density of fewer than fifteen
(15) Subscribers per 1320 cable-bearing strand feet of trunk or distribution cable, Cable Service or other service may be made available on the basis of a capital contribution in aid of construction, including cost of material, labor, and easements. Potential subscribers shall bear the costs of the construction and other costs on a pro rata basis. Grantee may require payment in advance of the capital contribution in aid of construction borne by such potential subscribers.
4.5 Service to Public Buildings. Grantee shall provide without charge one (1) standard installation and one (1) outlet of Basic Cable to the City’s office building(s) and public school building(s) that are passed by its Cable System. The outlets of Basic Cable shall not be used to distribute or sell Cable Service in or throughout such buildings; nor shall such outlets be located in common or public areas open to the public. Users of such outlets shall hold Grantee harmless from any and all liability or claims arising out of their use of such outlets, including, but not limited to, those arising from copyright liability. Notwithstanding anything to the contrary set forth in this Section, Grantee shall not be required to provide an outlet to such buildings where the drop line from the feeder cable to such buildings or premises exceeds one hundred fifty (150) cable feet, unless it is technically feasible and it will not adversely affect the operation, financial condition, or market development of the Cable System to do so, or unless the appropriate governmental entity agrees to pay the incremental cost of such drop line in excess of 150 cable feet. In the event that additional outlets of Basic Cable are provided to such buildings, the building owner shall pay the usual installation fees associated therewith, including, but not limited to, labor and materials. Upon request of Grantee, the building owner may also be required to pay the service fees associated with the provision of Basic Cable and the additional outlets relating thereto.
SECTION 5. FRANCHISE FEE.
5.1 Franchise Fee. Effective January 1, 2007 Grantee shall pay to the City a franchise fee equal to five percent (5%) of Gross Revenues from the provision of its Cable Services within the Service Area on a quarterly basis. For the purpose of this Section, the three-month period applicable under the Franchise for the computation of the franchise fee shall be a calendar quarter, unless otherwise agreed to in writing by the City and Grantee. The franchise fee payment shall be due and payable sixty (60) days after the close of the preceding calendar quarter. Each payment shall be accompanied by a letter from a representative of Grantee showing the basis for the computation. In the event that any franchise payment amount is not made on or before the applicable dates heretofore specified, interest shall be charged from such date at the annual rate of ten percent (10%). No acceptance by the City of any franchise fee payment shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of any franchise fee payment be construed as a release of any claim of the City.
5.2 Bundled Services. To the extent Grantee provides “bundled” services, including services that are not subject to this Franchise, for the purposes of determining the franchise fee due under this Franchise Grantee shall fairly reflect to the City an appropriate and reasonable division of services among the various services offered based on the actual value of each separate service, and shall not unreasonably “discount” the cost of any services subject to this Franchise.
5.3 Taxes. Grantee shall be fully responsible for the payment of all applicable taxes. The franchise fees required herein shall in no way be deemed a tax or any kind, and shall be in addition to, not in lieu of, all taxes, charges, assessments, licenses, fees and impositions otherwise applicable that are or may be imposed by the City.
5.4 Audit. Grantee shall at all times maintain complete and accurate books of account and records of the business and operations with respect to its Cable System in a manner that allows the City to determine whether Grantee has properly calculated its franchise fee. Upon reasonable notice, the City shall have the right during normal business hours to inspect such records and to audit amounts determined to be payable under this Franchise; provided, however, that such audit shall take place no more often than once per calendar year. If, as a result of such audit or review, the City determines that Grantee has underpaid its fees in any twelve (12) month period by ten percent (10%) or more, then, in addition to making full payment of the relevant obligation, Grantee include with such payment an additional amount as interest at a rate of 10% per annum, or the maximum rate allowed by law. Any additional amount due to the City as a result of an audit or review shall be paid within the thirty (30) days following written notice to the Grantee by the City, which notice shall include a copy of the audit report.
SECTION 6. REGULATION.
6.1 Rates and Charges. The City reserves the right to regulate rates for Basic Cable Service and any other services offered over the Cable System to the extent permitted by federal or State law. (See 47 C.F.R., Part 76.900, Subpart N, as amended from time to time.) Grantee shall give notice to the City of any rate modifications or additional charges thirty (30) days prior to the effective date thereof.
6.2 Conditions of Sale. Except to the extent expressly required by federal or state law, if a renewal or extension of the Franchise is denied or the Franchise is lawfully terminated, and the City either lawfully acquires ownership of the Cable System or by its actions lawfully affects a transfer of ownership of the Cable System to another party, any such acquisition or transfer shall be at a fair market value, determined on the basis of the Cable System valued as a going concern.
Grantee and the City agree that in the case of a lawful revocation of the Franchise, at Grantee’s request, which shall be made in its sole discretion, Grantee shall be given a reasonable opportunity to effectuate a transfer of its Cable System to a qualified third party. The City further agrees that during such a period of time, it shall authorize Grantee to continue to operate pursuant to the terms of its prior Franchise; however, in no event shall such authorization exceed a period of time greater than six (6) months from the effective date of such revocation. If, at the end of that time, Grantee is unsuccessful in procuring a qualified transferee or assignee of its Cable System which is reasonably acceptable to the City, Grantee and the City may avail themselves of any rights they may have pursuant to federal or state law; it being further agreed that Grantee’s continued operation of its Cable System during the six (6) month period shall not be deemed to be a waiver, nor an extinguishment of, any rights of either the City or Grantee. Notwithstanding anything to the contrary set forth in this Section 4.4, neither the City nor Grantee shall be required to violate federal or state law.
6.3 Transfer of Franchise. All of the rights and privileges and all of the obligations, duties and liabilities created by this Franchise shall pass to and be binding upon the successors and assigns of Grantee. This Franchise shall not be assigned or transferred by Grantee without the written approval of the City, which approval shall not be unreasonably withheld; provided, however, that transfers or assignments of this Franchise between any wholly owned parent or subsidiary, or between wholly owned subsidiaries, shall be permitted without the prior approval of the City as long as notice is provided to the City in writing within thirty (30) days of the closing of such intracompany transfer. In the case of any sale or transfer of ownership of an interest in or control of this Franchise or Cable System, the City shall have one hundred twenty (120) days to act upon any request for approval of such transfer that contains or is accompanied by such information as is required in accordance with FCC Regulations.
SECTION 7. COMPLIANCE AND MONITORING.
7.1 Books and Records.
(A) Upon 48 hours written notice, Grantee shall permit examination by any duly authorized representative of the City of all franchise property and facilities, together with any appurtenant property and facilities of Grantee situated within or outside the City, and all records relating to Grantee, provided they are necessary to enable the City to ascertain Grantee’s compliance with this Franchise. Such records include all books, records, maps, plans, engineering reports and related contracts, financial statements, service complaint logs, performance test results records of request for service, and other like materials of Grantee. Grantee shall have the right to be present at any such examination.
(B) Upon request, copies of all petitions, applications, communications and reports submitted by Grantee to the FCC, the Securities and Exchange Commission or any other federal or State regulatory commission or agency having jurisdiction in respect to any matters affecting the Cable System operations shall be made available to the City, as well copies of responses from any such agency.
(C) If any of the records described in the previous subsections are proprietary in nature or may be kept confidential by state, federal or local law, upon proper request by Grantee, such information obtained during such an inspection shall be treated as confidential, making it available only to those persons who must have access to perform their duties on behalf of the City, including, but not limited to, the City Manager’s Office and Council members. To the extent any state or federal requirement for privacy applies to the information to be submitted, said law shall control.
7.2 Performance Reviews.
(A) The City may, in its discretion conduct a performance review once during any term of this Franchise. The City shall give notice to the Grantee and the public that it is commencing an evaluation of the Grantee’s performance under its Franchise. Notice of all evaluation sessions shall be published in the same way as a legal notice. The results of this evaluation shall be reported at a public City Council meeting. The primary purpose of this evaluation shall be to consider whether the Grantee has substantially complied with, or made all reasonable efforts to comply with, all substantive requirements of its Franchise, especially the customer service standards.
(B) If an evaluation preceding has revealed deficiencies in the Grantee’s performance under its Franchise, the City shall notify the Grantee and request that the deficiencies be corrected within a reasonable period of time. If the deficiencies are not the result of force majeure and involve substantial non-compliance and/or repeated non-compliance with the Franchise and are not, or cannot be, corrected within a reasonable period of time, the City may initiate a proceeding proposing the termination of the Franchise or other appropriate action as determined solely by the City.
SECTION 8. INSURANCE, INDEMNFICATION AND BOND.
8.1 Insurance Requirements. Grantee shall maintain in full force and effect during the term of the Franchise, at its own cost and expense, Comprehensive General Liability Insurance in the amount of $1,000,000, Business Auto Coverage in the amount of $1,000,000 and Workers’ Compensations limits as required by the statutes of the State of Kansas. Such insurance shall designate the City as an additional insured, shall be with a company licensed to do business in Kansas with a rating by Best of not less than “A”, and shall contain an endorsement stating that the policy shall not be cancelled or materially modified so as to be out of compliance with the requirements of this Section or not renewed without thirty (30) days advance written notice to the City Manager.
8.2 Indemnification. Grantee agrees to indemnify, save and hold harmless, and defend the City, its elected officials, officers, boards, employees and agents, from and against any and all claims, demands, actions, losses, damages, liabilities, fines, charges, penalties, judgments, remedial actions of any kind, and all costs and expenses of any kind, including, without limitation, reasonable attorney’s fees and costs of defense, arising, directly or indirectly, in whole or in part, out of the fact the City granted this Franchise and the rights and privileges hereunder to Grantee, out of the activities performed or failed to be performed by Grantee under this Franchise, or out of Grantee’s construction, operation or maintenance of its Cable System. This indemnification obligation is not limited or capped in any manner by the amount or type of damages payable under any insurance requirement of this Franchise, nor does the City waive any rights under this Section by the acceptance or receipt of any such insurance policy certification. The fact Grantee carries out any activity under this Franchise through any independent contractor or subcontractor shall not constitute an avoidance of or defense to Grantee’s duty of indemnification under this Section. This indemnification shall survive the termination of this Franchise for a period of five (5) years after the effective date of termination.
8.3 Bonds and Other Surety. Except as expressly provided herein, Grantee shall not be required to obtain or maintain bonds or other surety as a condition of this Franchise. In order to minimize such costs, the City agrees to require bonds and other surety only in such amounts and during such times as there is a reasonably demonstrated need therefore. The City agrees that in no event, however, shall it require a bond or other related surety in an aggregate amount greater than $25,000, conditioned upon the substantial performance of the material terms, covenants, and conditions of this Franchise. Initially, no bond or other surety shall be required. In the event that one is required in the future, the City agrees to give Grantee at least sixty (60) days prior written notice thereof stating the exact reason for the requirement. Maintenance of any requisite bond and surety required by this Section shall in no way limit the liability of Grantee for any failure to fully perform its obligations under this Franchise.
SECTION 9. ENFORCEMENT AND TERMINATION OF FRANCHISE.
9.1 Notice of Violation. In the event that the City believes that Grantee has not complied with the terms of the Franchise, it shall notify Grantee in writing of the exact nature of the alleged default (the “Notice of Violation”).
9.2 Grantee’s Right to Cure or Respond. Grantee shall have thirty (30) days from receipt of the Notice of Violation: (a) to respond to the City contesting the assertion of default; or (b) to cure such default; or (c) in the event that, by the nature of the default, such default cannot be cured within the sixty (60) day period, to initiate reasonable steps to remedy such default and to notify the City of the steps being taken and the projected date that they will be completed (the “Cure Period”).
9.3 Public Hearing. In the event that Grantee fails to respond to the Notice of Violation pursuant to the procedures set forth hereinabove, or in the event that the alleged default is not remedied within the Cure Period, the City shall schedule a public meeting to investigate the default. Such public meeting shall be held at the next regularly scheduled meeting of the City’s Governing Body which is scheduled at a time which is no fewer than five
(5) business days therefrom. The City shall notify Grantee of the time and place of such meeting and provide Grantee with an opportunity to be heard.
9.4 Enforcement. Subject to applicable federal and state law, in the event the City determines, after such public meeting, that Grantee is in default of any provision of the Franchise, the City may:
(A) Foreclose on all or any part of any security provided under the Franchise, if any, including, without limitation, any bonds or other surety; provided, however, that the foreclosure shall only be in such a manner and in such amount as the City reasonably determines is necessary to remedy the default;
(B) Commence an action at law for monetary damages, seek an injunction, or seek other equitable relief;
(C) In the case of a substantial default of a material provision of the Franchise, declare the Franchise Agreement to be revoked; or
(D) Seek specific performance of any provision which reasonably lends itself to such remedy, as an alternative to damages.
Grantee shall not be relieved of its obligations to comply promptly with any provision of the Franchise by reason of any failure of the City to enforce prompt compliance. A waiver by the City of a breach of any provision or occurrence shall not constitute a waiver of any other breach or occurrence.
9.5 Acts of God. Grantee shall not be held in default of the provisions of the Franchise, nor suffer any enforcement or penalty relating thereto, where such alleged default is caused by strikes, acts of God, power outages, or other events reasonably beyond its ability to control.
SECTION 10. MISCELLANEOUS PROVISIONS.
10.1 Preemption. If the FCC or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of the Franchise, then to the extent such jurisdiction shall preempt and supersede or preclude the exercise of the like jurisdiction by the City, the jurisdiction of the City shall cease and no longer exist.
10.2 No Discrimination. Grantee shall afford equal opportunity in employment to all qualified persons. No person shall be discriminated against in employment or in the offering of service or access because of race, color, religion, national origin, sex or age. Grantee shall maintain and carry out a continuing program of specific practices designed to assure equal opportunity in every aspect of its employment policies and practices, and comply at all times with all applicable federal and State laws and orders relating to non-discrimination.
10.3 Subcontractors. All provisions of this Franchise shall apply to any subcontractor or other Person performing any work or services on behalf of Grantee pursuant to this Franchise. Grantee shall be responsible and liable for all actions or inactions of said subcontractors or Persons. Grantee shall not permit any subcontractor or Person to perform any work or service without being adequately insured in the manner required by this Franchise.
10.4 Actions of the Parties. In any action by either party or representative thereof mandated or permitted under the terms hereof, such party shall act in a reasonable, expeditious and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld.
10.5 Extension During Negotiations. In the event the parties are actively negotiating in good faith a new franchise ordinance or an amendment to this Franchise upon the termination date of this Franchise the parties by written mutual agreement may extend the termination date of this Franchise to allow for further negotiations. Such extension period shall be deemed a continuation of this Franchise and not as a new franchise ordinance or amendment.
10.6 Notice. Unless expressly otherwise agreed between the parties, every notice or response to be served upon the City or Grantee shall be in writing, and shall be deemed to have been duly given to the required party when delivered personally to the Person designated below, or five (5) business days after having been posted in a properly sealed and correctly addressed envelope by certified or registered mail, postage prepaid, at a Post Office or branch thereof regularly maintained by the U.S. Postal Service.
The notices or responses to the City shall be addressed as follows:
City of Osawatomie Attn: City Manager
P.O. Box 37 Main at Fifth
Osawatomie, Kansas 66064
The notices or responses to Grantee shall be addressed as follows:
Suddenlink Communications
Attention: Michael Zarrilli
12444 Powerscourt Drive, Suite 450
St. Louis, MO 63131
With a copy to:
Raymond Greenwood
16610 N. Dallas Pkwy Suite 2300
Dallas, TX 75248
The City and Grantee may designate such other address or addresses from time to time by giving written notice to the other party.
10.7 Publication of Notices. Grantee shall pay all costs of publication that may be required of this Ordinance and any amendments thereto.
10.8 Descriptive Headings. The captions to Sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein.
10.9 Severability. If any Section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other Section, sentence, paragraph, term or provision hereof, all of which shall remain in full force and effect for the term of the Franchise, or any renewal or renewals thereof.
(11-9-2006)