92-9492 Agr Cable FranchiseKUM1r�-Cox Priming — Salina, Kansas
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6Y ORDINANCE NO.
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(Published in The Salina Journal January 1992)
ORDINANCE NUMBER 92-9492
AN ORDINANCE OF THE CITY OF SALINA, KANSAS, GRANTING TO
COMMUNICATIONS SERVICES, INC., OR THE LAWFUL SUCCESSOR, TRANSFEREE,
OR ASSIGNEE THEREOF, A FRANCHISE FOR PROVISION OF CABLE SERVICES TO
SALINA, KANSAS; AND REPEALING ORDINANCE NUMBER 8544.
BE IT ORDAINED by the Governing Body of the City of
Salina, Kansas:
SECTION I
DEFINITION OF TERMS
"Affiliate" means any person which directly or indirectly
owns or controls Grantee, any person which Grantee directly or
indirectly owns or which it controls, or any person under common
ownership or control with Grantee.
"Basic Cable Service" or "Basic Service" means any
(service tier which includes the retransmission of local broadcast
television signals.
"Cable Act" means the Cable Communications Policy Act of
1984, as amended.
"Cable Service" means (A) the one-way transmission to
subscribers of (i) video programming, or (ii) other programming
service; and (B) subscriber interaction, if any, which is required
for the selection of such video programming or other programming
service.
"Cable System" means, subject to the limitations in 47
U.S.C. 5522(6), a facility, consisting of a set of•closed
transmission paths and associated signal generation, reception, and
control equipment or other communications equipment that is
designed to provide cable service to multiple subscribers in
Salina.
"City," "Salina" or "Franchising Authority" means the
City of Salina, Kansas, or the lawful successor, transferee or
assignee thereof.
"Effective Date" shall mean the date the City's Grant
becomes effective, as provided in accordance with Section 2.3.
"FCC" means Federal Communications Commission, or any
successor governmental entity thereto.
"Franchise" shall mean this document, all exhibits
thereto, all matters incorporated by reference and all amendments
thereto, which collectively authorize construction and operation of
the Cable System for the purpose of offering Cable Service and
other service to Subscribers.
"Grantee" means Communications Services, Inc., or the
lawful successor, transferee, or assignee thereof.
"Install, construct, operate and maintain" or similar
formulations, shall include, but not be limited to, all work which
is or may be performed in connection with the Cable System or any
structure installed or used by Grantee in connection with such
Cable System, including but not limited to installation,
construction, operation, maintenance, relocation, removal,
modification, repair or erection of such structures.
— Salina, Kansas
"Person" means any entity, including an individual,
partnership, association, joint stock company, corporation, or
governmental entity.
"Public Way" shall mean the surface of, and space above
and below, any public street, highway, freeway, bridge, land path,
alley court, boulevard, sidewalk, parkway, way, lane, public way,
drive, circle, or other public right-of-way, including, but not
limited to, public utility easements, dedicated utility strips, or
rights-of-way dedicated for compatible uses and any temporary or
permanent fixtures or improvements located thereon now or hereafter
held by the City in the Service Area which shall entitle the City
and the Grantee to the use thereof for the purpose of installing,
operating, repairing, and maintaining the Cable System. Public Way
shall also mean any easement now or hereafter held by the City
within the Service Area for the purpose of installing, operating,
repairing and maintaining the Cable System. Public Way shall also
mean any easement now or hereafter held by the City within the
Service Area for the purpose of public travel, or for utility or
public service use dedicated for compatible uses, and shall include
other easements or rights-of-way as shall within their proper use
and meaning entitle the City and the Grantee to the use thereof for
the purposes of installing or transmitting Grantee's Cable Service
over poles, wires, cables, conductors, ducts, conduits, vaults,
manholes, amplifiers, compliances, attachments, and any other
property as may be ordinarily necessary and pertinent to the Cable
System.
"Service Area" means the municipal boundaries of Salina,
as those boundaries may be added to or reduced by annexation or
other legal means.
"Service Tier" means a category of Cable Service provided
by Grantee and for which a separate charge is made by Grantee.
"Video Programming" means programming provided by or
generally considered comparable to programming provided by a
television broadcast station.
SECTION II
GRANT OF FRANCHISE
2.1 Grant. The City authorizes Grantee to use Public
Ways to install, construct, operate and maintain a cable television
system. Grantee must pay all fees and compensation to the City
required by the Franchise or state or federal statutes and
constitutions.
2.2 Term. The Franchise granted hereby shall expire
fifteen (15) years after its effective date unless lawfully
terminated in accordance with its terms or other applicable law, or
altered in accordance with Section 14.4.
2.3 Effective Date. This Franchise shall become
effective sixty (60) days after publication, provided that, this
Franchise shall not become effective until all conditions precedent
are satisfied. For all conditions precedent to be satisfied the
City must sign the Franchise Agreement, and Grantee must, within
forty-five (45) days of the date the Franchise is signed by the
City: (a) sign the Franchise and accept its terms; and (b) provide
all warranties, proofs, and other documents required by the
Franchise.
2.4 Effect of Acceptance. By accepting the Franchise,
Grantee: (a) acknowledges and accepts the City's legal right to
issue and enforce the Franchise; (b) agrees it will not oppose
intervention by the City in any proceeding affecting the Salina
system; (c) accepts and agrees to each and every provision
contained herein; and (d) agrees that the Franchise was granted
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— Salina, Kansas
pursuant to processes and procedures consistent with applicable
law, and agrees it will not raise any claim or defense to the
contrary.
2.5 Rights Reserved. The City reserves its rights under
its lawful police powers, and nothing in this Franchise shall be
read to limit those rights. The City, among other things, does not
waive requirements of various codes and ordinances, and
resolutions, including zoning codes, codes regarding building
permits and fees, or time or manner of construction. Any fees or
charges paid, so long as generally applicable and not unreasonably
discriminatory, shall be paid in addition to the franchise fee
required under this Franchise.
2.6 Effect on Prior Franchise. Ordinance No. 8544 shall
be of no further force and effect as of the Effective Date of this
Franchise. The parties, upon the Effective Date of this franchise
and payment of the amounts required under this Section 2.6,
mutually release any claims each had or may have against the other
under Ordinance 8544 except with respect to claims related to the
drop agreement between Grantee and the City; claims (if any)
related to payment of the 1991 franchise fee; and claims for
indemnification, contribution or insurance related to Grantee's
operations under Ordinance No. 8544, which survive. Grantee shall
pay to the City on the Effective Date of the Franchise, the sum of
$770,000 as part of the costs relating to the grant of the new
franchise which gives the Grantee the right to distribute, sell, or
provide goods or services within the specified service area,
pursuant to proceedings conducted under 47 U.S.C. 5546. The
parties affirm and agree that the payments made hereunder do not
constitute franchise fee payments within the meaning of 47 U.S.C.
§542 and fall within the exceptions contemplated by 47 U.S.C.
S542(g)(2)(C)-(D)•
2.7 Franchise Non-exclusive.
This Franchise shall in no way limit the City from
authorizing construction of other cable systems. During the term
of this franchise, and subject to limitations on local authority
under applicable law:
a. Before issuing any cable television franchise the
City shall conduct a proceeding to determine whether an
applicant's proposal meets the future cable -related needs and
interests of the community. Grantee shall be notified of that
proceeding, and shall be given an opportunity to appear in the
proceeding and to present evidence relevant to the
determination of future cable -related needs and interests.
b. In the event the City enters into any franchise,
permit, license, authorization, or other agreement of any kind
with any other person or entity other than Grantee to enter
upon or use the streets and public rights-of-way for the
purposes of constructing or operating a cable system or
providing cable service to any part of the Service Area, the
material provisions thereof shall be reasonably comparable to
those contained herein in order that one operator not be
granted an unfair competitive advantage over another.
C. However, Grantee must cooperate with a new
franchisee concerning the availability of access programming
to the new system, to the end that both the benefits and
burdens of the access system, including programming shall be
equitably shared.
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— Salina, Kansas
SECTION III
USE OF STREETS AND PUBLIC GROUNDS
3.1 No Interference or Endangerment. The Grantee may
not endanger nor unreasonably interfere with the lives or property
of persons; unreasonably interfere with property of the City or any
public utility; or unnecessarily hinder or obstruct use of the
Public Ways. The Franchise does not establish priority for use of
Public Ways over holders of other permits or franchises; it grants
no vested interest in occupying any particular position in the
Public Ways. The City shall control distribution of space in the
Public Ways, but may not exercise that authority unreasonably. No
poles shall be erected by the Grantee without the prior approval of
the City with regard to location, height, types and any other
pertinent aspect. As far as possible, arrangements shall be made
for use of existing utility poles. No location of any pole or
wire -holding structure shall give rise to a vested interest in City
property or Public Ways and such poles or structures shall be
removed or modified by the Grantee at its expense whenever the City
reasonably determines that the public interest will be enhanced
thereby.
3.2 No Hindrance to Public Works and Improvements.
Grantee shall, at its cost, install, construct, operate and
maintain its System as directed by the City or other authorized
government entity so as to permit the City or other authorized
government entity to install, construct, maintain or operate public
works or public improvements. The Grantee, at its expense, shall
relocate or remove its cable system as requested by the City for
reasons of traffic conditions, public health and safety and
protection of property, street construction, grade change, or
construction of any public improvement. Grantee, at its expense,
shall promptly alter or relocate its cable system to conform to any
new line or grade. Grantee, at its expense, shall remove and
relocate its structures which obstruct Public Ways, or whenever the
City closes a Public Way. The City shall give the Grantee written
notice specifying a deadline for completion of the removal or
relocation. If, after fifteen (15) business days from the deadline
provided in the written notice, Grantee fails to remove or relocate
its system as required by the City or other authorized government
entity, the City or other authorized government entity may remove
or relocate Grantee's cable system, and Grantee shall compensate
the City or other authorized government entity for all reasonable
expenses incurred thereby.
3.3 Removal or Relocation in Event of Emergency. In
event of emergency, or where the cable system creates or is
contributing to an imminent danger to health, safety or property,
the City may remove or relocate Grantee's cable system without
prior notice.
3.4 Relation to Penalties for Failure to Provide
Service. The Grantee shall not be penalized by the City for any
failure to provide service which results from relocation or removal
under section 3.2 or 3.3, where the cable was installed in accord
with applicable safety codes and generally accepted industry
standards.
3.5 Other General Conditions on Use of Public Ways.
a. Grantee, at its cost, shall protect or support
public or private property to prevent damage caused by
construction, installation, maintenance or operation of its
cable system. If Grantee fails to protect such property, the
City may do so, and Grantee shall compensate the City for all
reasonable expenses incurred thereby. Grantee, within ten
(10) days of completion of work and at its expense, shall
restore Public Ways it disturbs to as good a condition as
prior to disturbance; and within that period shall repair,
replace or compensate property owners for damage to public or
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private property caused by Grantee (the City may elect to
repair or replace public property, such as sewage lines, and
bill Grantee for the reasonable cost of repair). Subject to
the foregoing, Grantee may trim trees and other vegetation
from Public Way, at its expense and subject, at the City's
option, to the City's supervision.
b. Grantee shall notify any person whose property is
damaged by Grantee within four (4) hours of the time the
damage is discovered. At a minimum, this section requires
Grantee to place a prominent notice in a prominent place on
the damaged property, and to make diligent efforts to contact
the property owner or resident directly.
C. All excavation shall be performed so as to create
the least inconvenience to public, and in accordance with
permits issued by the City. The City shall have the right to
supervise all excavation.
3.6 Special Conditions on Use of Compatible Easements.
The Grantee shall ensure:
a. that the safety, functioning and appearance of the
property and the convenience and safety of other persons are
not adversely affected by the installation, construction,
maintenance or operation of the cable system;
b. that the cable system, or any part thereof, shall be
removed or relocated at Grantee's expense upon the property
owner's request whenever the compatible easement is closed or
relocated in accordance with law;
C. that the cost of the installation, construction,
operation or maintenance of the cable system or any part
thereof shall be borne by the Grantee or the subscriber, in
accordance with the requirements of the Franchise; and
d. the owner of the property shall be justly
compensated in accordance with applicable law by the Grantee
for any damages caused by the installation, construction,
operation or maintenance of the cable system or any part
thereof by the Grantee.
3.7 Movement of Wires for Third Person. Grantee shall
raise or lower wires or equipment upon the reasonable request of
any third person, including any person holding a building moving
permit. Expenses associated with raising and lowering the wires or
equipment (except where this Franchise or applicable laws or
agreements provide otherwise) shall be paid by the person
requesting the same and the Grantee may require advance payment.
Grantee shall be entitled to require that it be given up to ten
(10) business days advance notice by the person requesting the
movement.
3.8 No Guarantee of Accuracy of Maps. The City does not
guarantee the accuracy of any maps showing the horizontal or
vertical location of existing structures. In Public Ways, where
necessary, the location shall be verified by excavation.
3.9 Construction Standards. The construction,
installation, operation and maintenance of the Cable System and all
parts thereof shall be performed in an orderly and workmanlike
manner. All such work shall be performed in accordance with the
following safety, construction and technical specifications and
codes and standards, as they may now exist or be amended or adopted
hereafter:
a. Occupational Safety and Health Administration (OSHA
Safety and Health Standards;
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K,hn-Con Printing — Salina, Kansas
b. National Electrical Code;
C. National Electrical Safety Code (NESC);
d. Obstruction Marking and Lighting, AC 70/7460 i.e.,
Federal Aviation Administration;
e. Construction, Marking and Lighting of Antenna
Structures, FCC Rules Part 17;
f. All Federal, State and Municipal Construction
Requirements, including FCC Rules and Regulations;
g. All Building and Zoning Codes, and all Land Use
Restrictions and local safety codes; and
In the event of a conflict among codes and standards, the
most stringent code or standard shall apply (except insofar as
those standards, if followed, would result in a system which could
not meet requirements of federal, state or local law; and except
for such minor modifications as are typical in the industry). The
City may adopt reasonable additional standards after consultation
with the Grantee as required to ensure that work continues to be
performed in an orderly and workmanlike manner, or to reflect
changes in standards which may occur over the franchise term.
3.10 Subcontractors. All contractors or subcontractors
shall be properly licensed, and each contractor or subcontractor
shall have the same obligations with respect to its work as Grantee
would have under this Franchise and applicable laws if the work
were performed by Grantee. Grantee shall be responsible for
ensuring that the work of contractors and subcontractors is
performed consistent with the Franchise and applicable law, shall
be fully responsible for all acts or omissions of contractors or
subcontractors and shall be responsible for promptly correcting
acts or omissions by any contractor or subcontractor.
3.11 Removal of Wires. Grantee shall remove its cable
system from the Public Ways within twelve (12) months of the lawful
termination of the Franchise, unless City provides for some later
date to ensure continuity of service to subscribers, provided that,
this Section 3.11 shall not be read to waive rights Grantee might
otherwise have under applicable law. The City may require Grantee
to continue to provide service and to cooperate with transition to
another provider as necessary to assure continuity of service to
subscribers. Grantee may be required to continue to provide
service, under the same terms and conditions as if the Franchise
remained in effect, for a period not to exceed eighteen (18) months
from the later of the scheduled termination date, or the final
determination of the lawfulness of any termination. Grantee shall
have twelve (12) months to remove its cable system from the last
day of any period it is required to continue to provide service.
If the cable system is not removed, it shall be deemed abandoned.
3.12 Use of Equipment by City. Subject to applicable
tariffs, the City may use poles or conduits of Grantee at no
charge, so long as the use does not interfere with Grantee's use.
The City shall indemnify, defend and save harmless Grantee for all
claims arising out of the City's use of Grantee's poles or
conduits, including reasonable attorneys fees and costs. Nothing
in this Section prohibits the Grantee from participating in the
defense of any litigation by its own counsel at its own cost.
3.13 Aerial and Underground Construction. With regard to
all areas of new construction or line extension, where the
transmission and distribution facilities of public utilities
providing telephone communications and electric services are
located underground, the Grantee likewise shall locate its cable
system underground. In any area of new construction or line
extension where the telephone or electric utility lines are
relocated so that both electric and telephone lines are located
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Kinn -Cox Printing — Salina, Kansas
underground, after the effective date of this Franchise, Grantee
likewise shall relocate its cable system underground, if it is
given notice and access to the public utilities' facilities at the
time that such are placed underground.
Notwithstanding this Section 3.13, the City, through
exercise of its lawful police powers, may require the Grantee to
place existing facilities underground, in which case Grantee shall
be compensated for its reasonable costs incurred in placing its
facilities underground.
SECTION IV
SYSTEM FACILITIES, EQUIPMENT AND SERVICES
4.1 System Design.
a. Grantee shall upgrade its system so that the system
in its entirety uses at least 450 mHz equipment of high
quality and reliability. Grantee shall integrate a fiber
optic backbone design, and in a manner which will reduce the
number of trunk amplifiers in a cascade out of the headend to
a maximum number of eight (8), and so that optical receive
sites have no more than four (4) trunk amplifiers in a
cascade. The fiber optic technology will integrate into the
system in a manner which permits the Grantee to take full
advantage of the benefits of that technology, including
increased reliability and improved system performance.
b. Grantee shall install, replace as necessary and
maintain, a dedicated, bidirectional fiber optic link between
the Access Center and the headend. The link shall be
completed within six (6) months of the effective date of the
Franchise, or the date the Access Center is completed,
whichever is later. The dedicated connection shall be
designed and include all equipment, including but not limited
to laser transmitters, modulators, and processors required so
that the Access Center can send signals to the headend on at
least three (3) channels initially; and so that the Access
Center can remotely (1) route signals originated at the Center
or at other locations onto any of the three access channels on
the regular subscriber network; and (2) otherwise control the
signals to allow for smooth breaks, transitions, insertion of
station ID's and other material.
C. The Grantee shall install, replace as necessary and
maintain, dedicated bidirectional fiber optic links and all
equipment required to make them operable so that the
City/County Building, the Bicentennial Center, Fire Station
#1, the Law Enforcement Center, the two public high schools,
Kansas State University -Salina College of Technology, Kansas
Wesleyan, the Public Library, and the Community Theatre, will
be able to send signals to the Access Center using those
dedicated, bidirectional fiber optic links; provided however,
that Grantee is obligated to provide a total of one portable
laser transmitter one fixed laser transmitter, and two channel
modulators for use at these locations. The link between the
City/County Building and the Access Center shall be completed
within six (6) months of the effective date of this Franchise,
or the date the Access Center is completed, whichever is
later. The other links required under this Section 4.1.c
shall be completed no later than the date the system upgrade
is completed as required by Section 4.1.h hereof, or the date
the Access Center is completed, whichever is later.
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Ku -C , Printing — Salina. Kansas
d. The Grantee shall install, replace as necessary and
maintain, dedicated bidirectional fiber optic links and all
equipment required to make them operable so that all public
schools may send signals to the access facility; provided
that, Grantee shall have no obligation under this Section
4.1.d. to provide any laser transmitter or modulator. The
links shall be completed by the date the system upgrade is
completed as required by Section 4.1.h hereof.
e. The Grantee shall use equipment generally used in
high-quality, reliable, modern systems of similar design,
including but not limited to back-up power supplies capable of
providing power to the system for three (3) hours in the event
of an electrical outage; and including but not limited to
modulators, antennae, amplifiers and other electronics which
permit and are capable of passing through the signals received
at the headend without substantial alteration or
deterioration. This obligation shall include the obligation
to install equipment to retransmit in stereo satellite and
local broadcast signals provided in stereo. The obligation to
provide back-up power supplies requires Grantee to provide
back-up power supplies at each fiber optic receive node.
f. The Grantee shall install equipment so that the
headend is capable of providing at least 60 -plus channels in
full configuration and will develop signals of high quality
throughout the Service Area (including on channels
retransmitting upstream signals received through the headend),
and so that the headend has adequate ventilation and space to
be able to meet or exceed these design requirements.
g. The Grantee, to the extent practical, shall install
equipment and construct its system so that, except for premium
or pay-per-view services, a subscriber can use all features
such as remote control units for VCR and television set for
simultaneous viewing and recording on different channels.
h. The upgrade required under this Section shall be
completed no later than August 31, 1993, if this Franchise is
signed by the City no later than January 1, 1992. The
completion date will be extended one day for each day between
January 1, 1992 and the date the Franchise is signed by the
City. The City shall grant reasonable extensions of time to
complete construction in particular areas of the City if,
prior to the scheduled time for completion, Grantee shows
that, notwithstanding its due diligence, it has been unable to
extend service to a specified area because the acts or
omissions of a third party (not including Grantee's
subcontractors or agents) have caused a delay in construction
beyond delays reasonably expected during the course of a
rebuild or upgrade, and Grantee proposes a reasonable
alternative deadline for extension of service to that area.
4.2 Svstem Desian Review Process.
a. At least thirty (30) days prior to the date
construction of any required upgrade or rebuild is scheduled
to commence, Grantee shall provide a detailed system design
and construction plan, available for review by the City either
at the local office of the Grantee, or, at the City's request,
at any TCI office designated by the City, which shall include
at least the following elements:
1. Design type; Trunk and feeder design; Number
and location of hubs or nodes
2. Distribution system -cable, fiber, equipment to
be used.
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Kuhn -Cos Printing — Salina, Kansas
3. Headend design and
including make and
signal processors,
etc.
reception facilities
model number of antennae,
modulators, demodulators,
4. Plans for standby power at headend, hubs/nodes,
and satellite terminals. The plan should state
the make and model number of equipment to be
used as well as time capacity.
5. The Emergency Alert System Grantee plans to
install including: make and model numbers of
equipment; whether system will override all
audio and video channels or only audio
channels; and how system will be activated and
from where.
6. Longest amplifier cascade in system (number of
amplifiers, number of miles, type of
cable/fibre).
7. Design maps and tree trunk maps for the system.
The system design will be shown on maps of
industry standard scale using standard
symbology, and shall depict all electronic and
physical features of the cable plant.
b. The City shall have twenty (20) days from the date
Grantee notifies the City the design and construction plans
are available for review to submit comments on the plans.
Grantee must submit a written response to the comments
including an amended plans, if appropriate, within ten (10)
days of the date it receives the City's comments. The City
reserves any rights it may have under this Franchise,
including rights to impose penalties or terminate the
Franchise based on the design.
4.3 Initial and Continuing Tests. The Grantee shall
perform all tests necessary to demonstrate compliance with the
requirements of 47 CFR 76 subpart K of the FCC rules and
regulations. All tests shall be conducted in accordance with the
most current publications of Tektronix, "No Loose Ends", and/or
NCTA's, "Recommended Practices for Measurements on Cable Television
Systems". The Grantee shall perform at least the following tests:
a. The Grantee in conjunction with various
manufacturers shall perform a preconstruction quality test on
quantities of system components determined by the Grantee
based on random samples. All new trunk and distribution cable
shall be sweep tested on the reel to verify compliance with
manufacturers specification of frequency response and
structural return loss. No component shall be used in the
system which fails to meet the manufacturers' specification.
b. Acceptance Tests. The Grantee shall perform
acceptance tests on the entire system at the conclusion of the
upgrade to demonstrate compliance with 47 CFR 76 subpart K of
the FCC Rules and Regulations in accordance with Section 4.7
The City has the option of witnessing the tests. The
test results shall be submitted to the City for review. The
Grantee shall have the obligation, without further notice from
the City, to take corrective action if any segment is not
operating or performing within 47 CFR 76 subpart K of the FCC
Rules and Regulations in accordance with Section 4.7.
C. Continuing Tests. The Grantee and the City will
jointly select test points at various points of the system.
The quantity of these test points will be mutually agreed upon
based on what best represents the architecture of the system.
The Grantee shall perform Proof of Performance Tests at these
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Kah, Co. Printing — Salina, Kansas
locations annually in conjuction with 47 CFR 76 subpart K
through the life of the franchise, and at other points
mutually agreed upon where system user complaints indicate
tests are warranted or as required to test all major trunk
lines. The City shall have the option of witnessing the
tests. A written report of the test results shall be filed
with the City within thirty (30) days of the test. If a
location fails to meet performance specifications as outlined
in 47 CFR 76 subpart K in accordance with Section 4.7, the
Grantee, without requirement of additional notice or request
from the City, shall take corrective action, re -test the
locations and advise the City of the action taken and results
achieved.
4.4 Inspections during Construction. The City may
conduct inspections of construction areas and subscriber
installations, including to assure compliance with applicable laws,
codes and requirements of this Franchise. The Grantee shall be
notified of any violations found during course of inspections. The
Grantee must bring violations into compliance within thirty (30)
days of date it receives notice, and submit a report to the City
describing the steps taken to bring itself into compliance.
Inspection does not relieve the Grantee of its obligation to build
in compliance with all provisions of the Franchise.
4.5 Other Construction Procedures. The Grantee:
a. shall follow a system design and construction plan
consistent with its obligations under this Franchise, use the
equipment specified, (or substitute equipment of equivalent or
better quality) in such distribution system design plan and
construction plan (except insofar as those plans, if carried
out, would result in construction of a system which would not
meet requirements of federal, state or local law; and except
for such minor modifications as are typical in the industry).
b. shall use equipment of good and durable quality.
C. shall provide a monthly construction report to the
City in a form reasonably required by the City.
d. shall maintain a public file showing its plan and
timetable for construction of the cable system. Grantee shall
notify residents in any construction area at least one (1) day
in advance before first entering onto property to perform any
work in conjunction with system construction, and shall
additionally notify affected residents in advance of any work
which will involve excavation, replacement of poles, or tree
trimming.
e. shall make available
implementation of the upgrade,
the City's review at the local
the City's request, at any TCI
within, sixty (60) days of
as -built system design maps for
office of the Grantee, or at
office designated by the City.
f. shall provide maps showing the actual location of
additions or extensions to its lines within thirty (30) days
of completion of system construction in any geographic area.
4.6 System Maintenance.
a. Interruptions to be Minimized. The Grantee shall
schedule maintenance so that activities likely to result in an
interruption of service are performed during periods of
minimum subscriber use of the system. The Grantee shall make
best efforts to minimize interruptions of service consistent
with reasonable and customary upgrade practices.
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Kinn -GO. Printing — Salina, Kansas
b. Maintenance Practices. In addition to its other
obligations, Grantee shall (a) use replacement components of
good and durable quality, with characteristics better or equal
to replaced equipment; and (b) follow the more stringent of
industry maintenance standards or corporate maintenance
standards.
4.7 System Performance. The system shall meet or exceed
the standards set forth in 47 C.F.R. Section 76.601 et seq. ("FCC
Standards"), as those standards may be in effect at all times.
The parties anticipate that the standards may be revised between
the date the Franchise is signed and the date the initial system
upgrade is completed, and agree that the system will be designed
and constructed so that it shall meet or exceed FCC Standards in
effect at all times. If the FCC Standards are eliminated and not
replaced, the City may continue to enforce the standard which
existed prior to the date of elimination. If the City has
authority to establish standards, standards may be amended or added
in conjunction with and subject to the Section 10.12 periodic
review.
4.8 Future System Upgrades/Rebuilds. Grantee shall
provide additional or new facilities and equipment, expand channel
capacity and otherwise upgrade or rebuild its system throughout the
franchise term as required to incorporate improvements in
technology to reasonably meet the needs and interests of the
community in light of the costs thereof.
4.9 System Extension.
a. The Grantee shall build its system so that it is
able to provide service to all areas located within the City
limits as they existed on January 1, 1991. It must build the
system so that it can extend service to residents, including
residents located in areas which may be annexed in the future,
in accordance with 4.9.b.
b. Line Extension Requirements.
1. Existing City limits. Within the City
boundaries as they existed on January 1, 1991,
the Grantee must extend service upon request to
any person or business for no charge other than
the then -prevailing, normal installation
charge, unless the Grantee demonstrates to the
City's satisfaction that extraordinary
circumstances justify a waiver of this section.
2. New areas.
(i) For areas annexed after January 1, 1991,
Grantee will extend its trunk and distribution
system to serve subscribers requesting service
after the date hereof at the then -prevailing
normal installation charge (unless the Grantee
demonstrates to the City's satisfaction that
extraordinary circumstances justify a higher
charge) where:
A. the new subscriber requesting service is
located within five hundred (500) feet
from the nearest existing Cable System
plant, or
B. the number of homes to be passed by such
extension is equal to or greater than five
(5) homes per quarter mile of such
extension measured from the nearest
existing Cable System plant.
11
Kuhn-Gow Printing — Salina, Kansas
(ii) Cost sharing. In the event that the
requirements set forth in 4.9.b.2.i. are not
met, the Grantee will extend its cable
television system on request based upon the
following cost-sharing formula.
A. Total Cost to Construct Extension* = Cost Per Quarter
Quarter Miles of Extension Mile of Extension
B. Total Cost Per Quarter Grantee's Share Per
Mile of Extension = Subscriber
5
C. Total Cost to Construct Extension = Cost Per Subscriber
Number of Subscribers Requesting Service
D. Cost Per Subscriber Minus = Subscriber's Share
Grantee's Share Per Subscriber
* Total Cost to Construct Extension is defined as the
actual turnkey cost to construct the entire extension including
electronics, pole make-ready charges and labor, but not the cost of
the subscriber drop.
3. Subscriber drops. The Grantee shall not assess
any additional cost for service drops of one
hundred fifty (150) feet or less unless the
Grantee demonstrates to the City's
satisfaction that extraordinary circumstances
justify a higher charge. Where a drop exceeds
one hundred fifty (150) feet in length, Grantee
may charge subscriber for the difference
between Grantee's actual costs associated with
installing a one hundred fifty (150) foot drop,
and Grantee's actual cost of installing the
longer drop. Provided that, drop length shall
be the shorter of (1) the actual length of
installed drop or (2) shortest distance to the
point where Grantee would be required to extend
its distribution system.
4. In any area where Grantee would be entitled to
install a drop above -ground, Grantee will
provide the subscriber the option to have the
drop installed underground, but may charge the
subscriber the difference between the actual
cost of the above -ground installation and the
actual cost of the underground installation.
5. Time for extension. Grantee must extend
service to any person who requests it: within
seven (7) days of the request, where service
can be provided by activating or installing a
drop; after the upgrade of the system is
completed, within thirty (30) days of the
request within the existing City limits as of
January 1, 1991, where an extension is
required, or in any case where an extension of
one-half mile or less is required; or within
six (6) months for annexed areas where an
extension of one-half mile or more is required.
6. Notwithstanding the foregoing, Grantee shall
install one drop at no charge to every school
and public building. Grantee may charge for
service delivered over that drop; however, the
City and school may install facilities and
equipment to transmit the signal to all rooms
within a building, and shall not be required to
pay any more for service than the Grantee
charges for delivery to a single drop point to
a residential subscriber.
12
— Salina, K--
4.10 Public, Educational and Governmental Use.
a. PEG Channel Capacity. Grantee shall set aside three
(3) downstream channels for public, educational and
governmental ("PEG") use initially. One (1) channel must be
activated on the effective date of the Franchise, and two (2)
additional channels must be activated on the earlier of
September 30, 1993, or completion of the system upgrade
required by Section 4.1.h. hereof. In addition, Grantee must
activate upstream capacity in accordance with 4.1.b -d. All
PEG access channels must be provided as part of any basic
service tier.
b. Requirements Regarding Rules and Procedures for Use
of PEG Channels.
1. The City shall designate a nonprofit access
management corporation (hereafter, "Access
Corporation"), initially "Community Access
Television of Salina, Inc." to manage the use
of the PEG channels required under the
Franchise.
2. The Access Corporation shall establish and
enforce rules for use of the PEG channels (i)
to assure non-discriminatory access to the
channels to similarly situated users; and (ii)
to promote use and viewership of the channels,
consistent with the obligation to provide non-
discriminatory access to similarly situated
users. The City shall be responsible for
establishing and enforcing rules for use of the
channel capacity and managing the use of the
channels during any period such Access
Corporation does not exist.
3. The Grantee may not exercise any editorial
control over the content of programming on the
designated channels (except for such
programming the Grantee may produce and
cablecast on the same basis as other channel
users).
4. The channels shall be available at no charge to
users and to the Access Corporation.
5. When access channels are not being used to
carry programming provided by other access
users, the Access Corporation at its sole cost
and expense shall have the right to back-up
access programming with other programming,
consistent with its mission to promote public,
educational and governmental use of the
channels. This paragraph shall not limit
Grantee's rights under 47 U.S.C. §531(d).
C. Equipment and Facilities. Grantee shall pay to the
City for PEG access equipment and facilities the following
amounts:
1. for facilities $150,000, to be deposited on the
effective date of the franchise; and
2. for equipment; $200,000, to be deposited on the
effective date of the franchise.
The above-described $350,000 is included in and not in
addition to those funds described in Section 2.6 above.
13
Kinn -Cox Printing — Salina, Kansas
d. Access Services. Grantee shall have a continuing
obligation to provide adequate playback, training, outreach,
administrative support and production assistance to access
users, in accordance with community needs as reasonably
ascertained by the City in light of the costs thereof;
provided that, Grantee shall have no obligation under this
section so long as it maintains a valid and binding contract
with the Access Corporation designated by the City. Nothing
in this section requires or shall be deemed to require Grantee
to make any payment which constitutes a franchise fee under 47
U.S.C. 6542.
e. General. The parties agree that any cost to Grantee
associated with providing access services, facilities and
equipment under this Franchise, including without limitation
the amounts set forth in 4.10.c.1-2, and payments made outside
this Franchise, if any, are not part of the franchise fee, and
fall within one or more of the exceptions to 47 U.S.C. 5542.
4.11 Leased Use.
a. Number of channels. The Grantee shall provide
leased access channels as required under the Cable Act.
b. Reservation of rights. In the event the leased
access requirements of Cable Act change, the City may require
Grantee to continue to provide channels it was required to
provide under the Cable Act, if consistent with federal law.
C. To the maximum extent permitted consistent with
federal laws and regulations, the City may regulate terms and
conditions for leased use of the channels; may require the
Grantee to provide leased users access to system facilities,
equipment and services under reasonable terms and conditions;
may require the Grantee to attach or interconnect its system
to equipment and facilities to facilitate leased use of the
channels, under reasonable terms and conditions; and may
establish other rules and regulations to promote leased use of
the channels.
d. The Grantee shall maintain a file showing the terms
and conditions under which it provided services, facilities,
equipment and channels to leased users. The file shall, at a
minimum, show the lease price, all compensation to the Grantee
(including compensation in cash, in-kind services, facilities
and equipment, or by barter), and the nature of the lessee, or
its programming, if considered in establishing the lease term
and conditions. The file shall be provided to the City upon
request.
4.12 Subscriber Services.
a. For the period beginning on the effective date of
the Franchise through the completion of the system upgrade
required by Section 4.1 hereof: a minimum of thirty-six (36)
activated channels and twenty-six (26) basic service channels;
b. For the period beginning on completion of the system
upgrade required by Section 4.1 hereof, through the end of the
Franchise (subject to future agreements in light of changes in
system capacity): a minimum of forty-five (45) activated
channels and twenty-eight (28) basic service channels.
C. In addition to such other service requirements as
may be contained in this Franchise, Grantee agrees to provide
the following broad categories of service:
1. Kansas broadcast programming;
2. Kansas educational broadcast programming;
14
Huhn -Cox Printing — Selina, Kansas
3. non -network arts/cultural programming;
4. non -network educational and informational
programming;
5. children's programming;
6. public affairs programming services which
address major local, state and federal issues
of interest to the citizens
of Salina; and
7. programming which satisfies ascertained needs
and interests of the citizens of Salina.
Nothing in subparagraphs c.1 or c. hereof shall be read
to require Grantee to carry every Kansas commercial or educational
broadcast station.
d. Grantee shall conduct subscriber surveys on a
regular basis, no less than once every three (3) years, to
determine the programming needs and interests of its
subscribers.
4.13 Non -Discrimination.
a. Grantee shall not unlawfully discriminate against
any subscriber or potential subscriber on basis of race,
color, religion, national origin, age, or sex; or deny service
to any group of potential subscribers because of the income of
the residents of the area in which a group of potential
subscribers reside; provided that, nothing shall prohibit
Grantee from providing a "lifeline" type of service to the
poor, the elderly, the developmentally disabled or physically
disabled.
b. Grantee shall ensure that its services are
accessible, as far as possible, to disabled people. All
closed -caption programming retransmitted by the system shall
include the closed -caption signal.
4.14 No City Control.
a. During the term of this Franchise, the City may not
prohibit Grantee from providing any program or class of
programs, or otherwise censor communications over the cable
system; except that, nothing in this section shall be read to
authorize Grantee to engage in communications which are
prohibited by law, or to expand or contract any rights the
City may have to enforce generally applicable laws with
respect to obscenity, libel, slander or otherwise unprotected
speech against the Grantee (for channels the Grantee
controls), program producer or other responsible party.
b. Parental Control Device. Upon request, Grantee
shall provide parental control devices to any subscriber.
Grantee shall charge no more than its cost for the parental
control devices it provides.
SECTION V
RATE REGULATION AND CONSUMER PROTECTION
5.1 Regulation of Rates. The City may regulate
Grantee's rates and charges to the maximum extent permitted
consistent with federal law and regulations. Grantee shall file a
schedule of its rates and charges with the City on the effective
date of this Franchise.
15
Kuhn -Con Printing — Salina, Kansas
5.2 Prior Approval. Grantee shall be required to submit
any change in rates or charges to the City for approval prior to
implementing that change, to the extent Grantee may be required to
do so consistent with federal laws and regulation. Nothing in this
section shall be deemed to waive any rights Grantee may have under
47 U.S.C. S543(e)(1).
5.3 Notice of Changes. At least sixty (60) days prior
to implementing any changes in rate levels, services or service
terms, Grantee shall provide the City written notice describing any
such changes it plans to make and the proposed effective dates for
the changes (or, in cases where the change in services or service
terms is not known to Grantee sixty (60) days prior to the date the
change is to be implemented, as soon as possible and no later than
thirty (30) days prior to implementing any change). At least
thirty (30) days prior to implementing any changes in rate level,
services or service terms and conditions, Grantee must provide each
affected subscriber notice, describing the changes it plans to make
and the proposed effective dates for the changes. Any change made
without the required notice shall be of no force or effect in
determining the payments owed or the legal rights of the City or
subscribers, but Grantee may make an otherwise lawful change once
the notice is given.
5.4 Support for Access.
a. The City recognizes that provision of support for
PEG access is a valid expense associated with the provision of
basic service under this Franchise, and that Grantee should be
compensated through its rates for reasonable costs associated
with the provision of support for PEG access. The parties
agree that existing rates compensate Grantee for costs
associated with providing the support required by Section 4.10
a -c.
b. The City agrees that Grantee may pass-through in
1992 up to $0.60 per basic subscriber per month to compensate
it for any additional support it actually provides for access
to the Access Corporation. This pass-through amount to the
Access Corporation may be increased each year by an amount not
to exceed the percentage increase in basic service (not
considering the amount attributable to access collected under
this section 5.4.b), or if there is no basic service rate, by
an amount not to exceed the percentage increase in the level
of service most comparable to basic service. The pass-through
for access, as it may be increased from time to time in
accordance with this section 5.4.b., may be shown as a
separate line item on the subscriber's bill. The amount
collected by Grantee under this section 5.4.b shall not be
deemed "gross revenues" for purposes of calculating the
franchise fee owed to the City. This section 5.4.b. is
without prejudice to Grantee's right to provide additional
amounts for and in support of access, and to seek to reflect
those additional amounts in rates.
5.5 Customer Service Standards.
a. Grantee shall have an obligation to provide high-
quality service to its subscribers throughout the franchise
term. To this end, the parties have established initial
customer service standards which standards are set forth in
Attachment 1. Grantee shall meet or exceed the customer
service standards on an ongoing basis.
b. Grantee's service must be provided subject to all
rights its subscribers may have under federal, state or local
laws.
16
— Salina, Kansas
5.6 Right to Maintain Antenna. The Grantee shall not,
as a condition to providing service, require a subscriber or
potential subscriber to remove any existing antenna, or disconnect
an antenna except at the express direction of the subscriber or
potential subscriber, or prohibit or discourage a subscriber from
installing an antenna switch provided such equipment and
installations are consistent with applicable codes.
5.7 Duty to Install Telephone Monitoring Equipment. The
Grantee shall install such devices as are required to enable it to
determine whether it is complying with each and every standard for
customer telephone service, as amended from time to time.
5.8 Non -Discrimination. Except to the extent and for
the time it is prohibited from doing so by federal law, the City
prohibits Grantee from discriminating among similarly situated
subscribers in the provision of any services, facilities or
equipment. Nothing shall prohibit Grantee from conducting
temporary bona fide promotions, except the Grantee may not
discriminate among subscribers in the price for any service tier or
program service unless the promotional rate is available to all
similar classes of subscribers throughout Salina.
SECTION VI
EEO
6.1 EEO. The Grantee shall comply with federal, state
and local laws and regulations governing equal employment
opportunities, as the same may be from time to time amended.
Reserved.
SECTION VII
SECTION VIII
FRANCHISE FEES
8.1 Franchise Fee. As compensation for the use of
valuable Public Ways, and to defray certain of the costs associated
with cable regulation during the franchise term, Grantee shall pay
the City five percent (5%) of the gross revenues it derives or
which any person who would be defined as a cable operator under 47
U.S.C. §602(4) derives in connection with the operations of the
Salina system. The Franchise shall be read to prevent Grantee from
avoiding the provisions of this section by lease, contract or other
arrangement.
The term gross revenues includes, but is not limited to:
revenues from pay, pay-per-view and basic service subscriptions;
revenues from the provision of services, facilities or equipment to
subscribers; revenues from the sale of all advertising; revenues
for carriage of any service; revenues received from home shopping
services; and any other compensation received, from any source and
regardless of form, cash and non-cash. Any sales tax collected
from subscribers on behalf of any federal, state or local
government or agency shall not be considered part of Grantee's
gross revenues. Grantee is not required to pay a franchise fee on
revenues recorded as received but which are in fact "bad debt,"
except Grantee must pay the fee on all recoveries of bad debt.
Revenues from advertising sold for transmission on more than one
system shall be allocated on a pro rata basis, (revenues divided by
number of basic subscribers capable of receiving the advertising on
the systems for which the advertising is sold) times (the number of
basic subscribers in the City).
17
Kuhn -Cox Printing — Salina. K-11
8.2 Not in Lieu of Other Taxes. The Franchise fee
payment is not a payment in lieu
assessment. This paragraph is n
Grantee may have to claim that a
constitutes a franchise fee for
of any other tax, fee or
of intended to waive any rights
particular tax, fee or assessment
purposes of 47 U.S.C. 5542(g).
8.3 Payments Quarterly. Franchise fee payments are due
and payable quarterly: May 15 for the first quarter, August 15 for
the second quarter, November 15 for the third quarter and
February 15 for the fourth quarter of each calendar year. Interest
on late payments shall be paid at the statutory rate then
applicable on any late payments. Penalties may be imposed for
materially inaccurate reporting or underpayment to the City.
8.4 No Accord or Satisfaction. Acceptance of any
payment shall not operate as an accord or satisfaction, or a waiver
of any right under the franchise or law, provided, however, that
the City shall commence any action on any payment within five (5)
years of the due date of the payment.
8.5 Reporting Forms. Each payment shall be accompanied
by a form reporting revenues and subscriber levels by category. A
copy of the form which will be used initially is included as
Attachment A. The City may from time to time make such reasonable
amendments to the form as are required to ensure that all gross
revenues are reported clearly and accurately.
8.6 Right to Audit. The City shall have the right to
audit the Grantee's books on reasonable notice to ensure compliance
with this Franchise fee section.
SECTION IX
LIABILITY, INDEMNITY AND INSURANCE
9.1 Indemnity. The Grantee shall indemnify, defend and
save the City harmless from all loss or damages sustained by the
City on account of any suit, judgment, execution, claim or demand
(including legal fees incurred) resulting from Grantee's
installation, construction, operation or maintenance of its system.
The duty to indemnify and hold harmless shall include but not be
limited to a duty to indemnify against losses or damages sustained
as a result of Grantee's acts or omissions (1) arising out of
Grantee's use or attempt to use Public Ways; and (2) arising out of
any claim for invasion of the right of privacy, libel, slander,
copyright violation, patent infringement or the like. The
indemnity is conditioned on the following: the City must notify
Grantee within thirty (30) days after the presentation of any claim
or demand, either by suit or otherwise, made against the City on
account of any act or omission by Grantee. Nothing in this section
prohibits the City from participating in the defense of any
litigation by its own counsel at its own cost.
9.2 Insurance.
a. The Grantee shall maintain the following insurance
for its own coverage and for use in indemnification of the
City:
1. A comprehensive general liability policy in the
minimum of $500,000 for damage to any single
property, and $1,000,000 for damage aggregate
per single accident or occurrence; $1,000,000
for bodily injury to any one person and
$2,000,000 bodily injury aggregate per single
accident or occurrence; or in such other
amounts as are acceptable to the City and
provide substantially equivalent coverage. The
City shall be designated as an additional
insured.
18
Kuhn -Cox Printing — Salina. Kansas
2. Automobile liability in the same amounts.
3. Worker's Compensation and Employer's liability
insurance in the statutory amounts required.
b. No later than sixty (60) days after the effective
date of the Franchise the Grantee shall furnish the City
certificates of insurance, in a form satisfactory to the City,
showing that Grantee has all the insurance required by this
section. Grantee shall provide new certificates upon renewal
of any policy or if the insurance carrier for any policy
changes. The insurance policies required herein shall contain
an endorsement stating that:
It is understood and agreed that this policy
may not be cancelled nor the amount of coverage
reduced until thirty (30) days after receipt by
the City Clerk of the City of Salina, Kansas,
by certified mail, of a written notice of
intent to cancel or reduce the coverage.
C. The amounts and types of insurance required herein
are subject to reconsideration at each four-year review
period. The City may request appropriate revisions. Grantee
may not unreasonably refuse to comply. Any new certificate
must be submitted within thirty (30) days of any agreed
revision.
d. The Grantee's compliance with these insurance
requirements shall in no way waive or limit its duty to
indemnify and hold harmless.
9.3 No Limitation. The rights of the City and the
obligations of Grantee under this Franchise shall not be diminished
in any respect by recovery of any amounts under this Section.
9.4 No Liability. The City shall not be liable to
Grantee for any damages or loss which Grantee may suffer as the
result of the City's lawful exercise of the authority granted under
this Franchise.
SECTION X
MONITORING PERFORMANCE;
EXERCISE OF REGULATORY AUTHORITY
10.1 Inspection of Books and Records.
(a) The City may require Grantee or any Affiliate in
control or possession of documents to produce documents,
including financial documents the City deems necessary to
ensure compliance with the Grantee or any Affiliate
obligations under this Franchise, at the City/County Building
for inspection and copying. The documents requested shall be
produced upon reasonable notice and no later than thirty (30)
days after the request for production. If the books, records,
maps or plans or other requested documents are too voluminous,
or for security reasons cannot be copied and moved, then
Grantee or its Affiliate may request that the City inspect
them at some other location, provided that (1) the Grantee or
its Affiliate makes necessary arrangements for copying
documents selected by the City after review; and (2) the
Grantee or its Affiliate pays all travel and additional
copying expenses incurred by the City in inspection of those
documents. The parties agree that any payments made by
Grantee or any affiliate hereunder are not a franchise fee and
fall within one of the exceptions thereto.
19
KUM1n-C . Priming — Salina, Kansas
(b) Grantee has the right to obtain relief from any
court of competent jurisdiction on the ground that the City
has unreasonably determined that information requested under
this Section is necessary to ensure compliance with the
Franchise.
10.2 Inspection of Installations.
(a) Upon reasonable notice and during normal business
hours, the City shall have the right to inspect Grantee's
facilities and equipment and to perform tests as the City
deems necessary to ensure compliance with the terms of the
Franchise.
(b) Grantee has the right to obtain relief from any
court of competent jurisdiction on the ground that the City
has unreasonably determined that the inspection or tests to be
performed under this Section are necessary to ensure
compliance with the Franchise.
10.3 Requests for Information. The Grantee or any
Affiliate in control or possession of information respecting the
Grantee's cable system in Salina shall respond to reasonable
inquiries from the City concerning the construction, operation,
installation or maintenance of that cable system; plans for its
expansion; or the Grantee or Affiliate's financial or legal status.
The Grantee or Affiliate shall provide the information requested
within thirty (30) days of request. Requests for extensions of
time to respond shall not be unreasonably denied.
10.4 Records Maintained. In addition to public file
records and maps, the Grantee shall maintain records of the
following:
a. records of outages, indicating date, duration, area
and the estimated number of subscribers affected, type of
outage and cause in a form reasonably required by the City.
b. records of service calls for repair and maintenance,
indicating date and time service was requested, date of
acknowledgement and date and time service was scheduled (if it
was scheduled), the date and time service was provided and (if
different) the date and time the problem was solved.
Grantee's Service Call log contains this information in a form
acceptable to the City.
C. records of installation/reconnection and requests
for service extension, indicating date of request, date of
acknowledgment, and date and time service was extended.
Grantee's Work Order contains this information in a form
acceptable to the City.
d. records of complaints, indicating date complaint
received, nature of complaint and resolution of complaint, and
date of resolution. Grantee's System Complaint Call Report
and the reports provided in b and c above contain this
information in a form acceptable to the City.
The records shall be kept at the Grantee's local office
and shall be available for City review and copying during normal
business hours. The parties shall cooperate to amend requirements
under this section so that the City has access to information to
evaluate Grantee's compliance with the Franchise and so that
Grantee may amend its forms as its services evolve.
20
Kuhn -CO% P—tinq — Salina. Kansas
10.5 Reports Prepared. The Grantee shall provide the
following reports:
a. a monthly report stating subscriber totals for each
category of service; the number of subscribers added and the
number disconnecting. Grantee's Monthly Subscriber Recap
contains this information in a form acceptable to the City.
b. an annual report showing the number of system
extensions; and the amount of contribution and number of
contributing subscribers and costs associated with any
extension made under 4.9.b.2.ii in a form reasonably required
by the City.
C. a monthly summary showing the number of service
calls received by type; and the percentage of service calls
compared to the subscriber base by type of complaint.
Grantee's Monthly Service Call Report contains this
information in a form acceptable to the City.
d. a summary of number of outages, number of planned
outages, number of outages during prime viewing hours, and
number of outages by approximate duration in a form reasonably
required by the City.
e. annually, a Franchise fee report showing revenues
received, by category, in a form reasonably required by the
City; and
f. annually, a list of officers and directors of
Grantee and Grantee's parent.
10.6 Documents to be Provided. Grantee shall provide the
following documents to the City in a timely manner, so as to permit
the City to protect any interests it may have in any proceeding,
and in no event later than within thirty (30) days of the date the
documents are received or filed, without regard to whether the
documents are received or filed by Grantee or an Affiliate.
a. annual report, if any, of Grantee, or each Affiliate
of Grantee which controls Grantee and issues an annual report;
b. copyright filings reflecting the operation of the
Salina system;
C. FCC Forms 325 and 395 for the Salina system, or
their successor forms;
d. any filing made at the FCC or any state or federal
agency regarding the Salina system; its proof -of -performance
tests; its RF signal leakage tests; and
e. any notice of deficiency; forfeiture; or other
document issued by any state or federal agency instituting any
investigation or civil or criminal proceeding; regarding the
Salina system, Grantee, or any Affiliate of Grantee, to the
extent the same may directly affect or bear upon operations in
Salina.
f. any request for protection under Bankruptcy laws, or
any judgment related to a declaration of bankruptcy.
10.7 Testing. When, based on investigation or subscriber
complaint, the City has questions concerning the reliability or
technical quality of system, the City may require Grantee to
perform tests and prepare a report showing (1) the nature of the
complaint or problem which precipitated the test; (2) the system
component or area tested; (3) the equipment and procedures used;
(4) any conclusions drawn from the tests; and (5) other information
pertinent to understanding tests. The City may observe the tests.
The City annually may require the Grantee to perform tests and
21
Kuhn -Cox Printing — Salina. Kansas
prepare reports regarding two (2) occurrences under this Section
10.7, and Grantee shall bear the costs of performing the tests and
preparing the reports regarding those occurrences, whether or not
the tests show Grantee's system meets the requirements of this
Franchise. If in any calendar year the City requires Grantee to
perform more than two (2) tests under this Section 10.7, the
reasonable costs associated with performing those tests shall be
borne as follows: at the Grantee's expense if the system
performance is not in compliance with the requirements of this
Franchise, and at the City's expense if the system performance is
in compliance with the requirements of this Franchise.
10.8 No Limitation. Grantee's duty to prepare reports,
submit documents and conduct tests under this Section 10 shall not
limit Grantee's duty to permit the City to inspect documents, or
Grantee's duty to respond to requests for other information under
other provisions of the franchise or applicable law.
10.9 Confidentiality of Information. The Grantee shall
mark any information which it produces to the City which
constitutes a business or trade secret "confidential," and produce
it to a person designated by the City for purposes of holding such
information. To the extent permitted under applicable law, and
except where to do so could be inconsistent with its obligations
under this Franchise and applicable law, information produced by
Grantee which contains business or trade secrets shall be kept
confidential. The City shall promptly notify Grantee if any person
requests access to the information under the Kansas Open Records
Act, or if the City determines that it will be necessary to reveal
the information in the discharge of its obligations under the
franchise and applicable law, so that Grantee may take appropriate
steps as may be available to protect any rights it may claim to
have to prevent disclosure.
10.10 Four -Year Review.
a. During the years which commence on the fourth,
eighth and twelfth anniversaries of the effective date of the
Franchise, the City may commence a review of Grantee's
performance under the Franchise. As part of this review, the
City may consider: (1) whether Grantee has complied with its
obligations under Franchise and applicable law; (2) whether
customer service standards, technical standards, bond or
security fund requirements are adequate or excessive; and (3)
other issues as may be raised by Grantee, the City or the
public.
b. The City shall conduct public hearings to provide
Grantee and the public the opportunity to comment on Grantee's
performance and other issues considered as part of the four-
year review.
10.11 Five-year reviews: technological changes.
a. During each of the years which commence on the fifth
and tenth anniversaries of the effective date of the
Franchise, the City may commence a review to determine whether
Grantee has satisfied its obligation to respond to community
needs and interests by incorporating technological advances
into its system through upgrades and rebuilds.
b. The City shall conduct public hearings to provide
Grantee and the public the opportunity to comment on the
issues which are to be considered in this five-year review.
C. At any time after the commencement of the five-year
review, the City may require the Grantee to submit a proposal
describing its plans including a timetable and costs, to
incorporate technological advances into its system through
upgrades or rebuilds. The City may set a deadline for
22
K.h,-Cox Printing — Saline. Kansas
submission of the paper, which deadline shall provide the
Grantee no fewer than ninety (90) days to prepare the proposal
from the date a written request for the proposal is submitted
to the Grantee.
d. Following receipt of the proposal, the City and the
Grantee shall negotiate in good faith to develop a plan,
including a timetable, for an appropriate upgrade or rebuild
of the system. If the parties are unable to reach agreement
within ninety (90) days after receipt of the proposal the City
may commence an administrative proceeding in accordance with
this section to review the proposal.
e. The City shall provide prompt public notice of the
administrative proceeding to consider whether the Grantee's
proposal for upgrade or rebuild is reasonable to meet future
community -related needs and interests, taking into account the
cost of meeting such needs and interests.
f. In any proceeding under paragraph (d), the Grantee
shall be afforded adequate notice and the Grantee and City
shall be afforded fair opportunity for full participation,
including the right to introduce relevant evidence, to require
the production of evidence to compel the relevant testimony of
officials, agents, employees or consultants of the other, to
compel the testimony of other persons as permitted by law and
to question witnesses. The parties may introduce evidence
regarding system design and capacity in other communities. A
transcript shall be made of any proceeding.
g. The City and Grantee shall attempt to select jointly
a third party to conduct the administrative hearing described
above. If the parties are unable to agree upon a single
hearing officer, each may select one officer and the two
officers so selected shall select a third officer.
h. At the completion of a proceeding under section (d),
the administrative hearing officer[s] shall issue a written
decision, adopting, rejecting or modifying the proposal for
rebuild or upgrade, and shall transmit a copy of the decision
to the City and to the Grantee. The governing body of the
City may then adopt, reject or modify the decision of the
hearing officer, and shall issue a written statement setting
forth the reasons for its actions. Grantee shall be bound by
the City's decision, unless it appeals the decision within
sixty (60) days of the date it is issued, under subsection
(i).
i. If the Grantee is adversely affected by the decision
of the City, it may file an appropriate action in any court of
competent jurisdiction. For purposes of that action, the
parties stipulate that the record of the administrative
hearing and the decisions of the administrative hearing
officer(s) and the City shall constitute the entire factual
record. Grantee shall be entitled to such relief as the Court
deems appropriate (i) if the Grantee demonstrates that the
action of the City was not supported by a preponderance of the
evidence, based on the stipulated record or (ii) if the court
finds the City's actions were not in compliance with the
procedural requirements of this section.
10.12 Five-year reviews: access equipment and
facilities.
a. During each of the years which commence on the fifth
and tenth anniversaries of the effective date of the
Franchise, the City may commence a review to determine whether
additional facilities or equipment are appropriate to meet
community needs and interests in public, educational or
governmental use of cable, taking into consideration the cost
of providing the same.
23
Kuftn-Cox Printing — SW-. Kansas
b. The City shall conduct public hearings to provide
Grantee and the public the opportunity to comment on the
issues which are to be considered in this five-year review.
C. If the City determines that additional facilities or
equipment are required for public, educational or governmental
use, it may require Grantee to provide them; provided that,
the City shall permit Grantee to pass-through (as a line item
at Grantee's option) the cost of providing such facilities and
equipment in rates as appropriate in light of then -prevailing
federal laws and regulation. Except as prohibited by law, the
parties agree to use the following formula, in determining the
amount which is eligible for pass-through in any month during
which such costs are being recovered: (cost of
facilities/equipment) divided by (number of subscribers)
divided by (12) divided by (number of years remaining in
franchise).
10.13 Grantee Cooperation. The Grantee shall
cooperate in the four and five-year reviews, including by
submitting reports on the state of cable technology.
10.14 Exercise of Authority. The City may exercise
appropriate regulatory authority under the provisions of this
Franchise and applicable law, as amended from time to time.
10.15 Obligation to Release. The Grantee shall take
all steps required, if any, to ensure that it is able to provide
the City all information which must be provided or may be required
under this Franchise, including by providing appropriate subscriber
privacy notices. Nothing in this section shall be read to require
Grantee to violate 47 U.S.C. 5551.
SECTION XI
PERFORMANCE GUARANTIES; REMEDIES; TERMINATION
11.1 Performance Bond.
a. During the period beginning on the effective date of
Franchise, Grantee shall maintain a performance bond, or other
surety acceptable to the City, in a form acceptable to the
City, in the amount of $350,000 to ensure faithful performance
of the system construction requirements.
b. The Bond or other surety shall be released within
twelve (12) months after Grantee provides written notice to
City that the system construction has been completed in
accordance with the Franchise.
C. The City may re-establish performance bond
requirements in the event any future system rebuild or upgrade
is required, in any amount not to exceed ten percent (10%) of
the estimated cost of the proposed re -build or upgrade.
11.2 Security Fund.
a. During the term of Franchise, Grantee shall deposit
with the City a Security Fund in the amount of $75,000, which
shall be provided in cash or in the form of an irrevocable
letter of credit or other instrument in a form acceptable to
the City. The instrument shall give the City the
unconditional right to draw on Security Fund as it deems
necessary to ensure the compliance with each and every
provision of the Franchise, including provisions with respect
to indemnities, damages, losses and penalties, provided that
at least thirty (30) days prior to drawing on the fund, the
City notifies the Grantee of the reason it intends to draw on
the fund, so that Grantee may take steps to cure any
noncompliance.
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Kuhn -Cox Printing — Salina, Kansas
b. The Grantee shall replenish the Security Fund within
thirty (30) days of the date the City mails the Grantee
written notice stating a) that money has been withdrawn from
the fund; b) the amount of the withdrawal; and c) the reason
for the withdrawal.
C. The Security Fund amount may be adjusted throughout
the term of the Franchise by the City by resolution to take
into account increases in the consumer price index.
11.3 Liquidated Damages. Because Grantee's failure to
comply with provisions of this Franchise will result in injury to
the City, and because it will be difficult to estimate the extent
of such injury, the City and Grantee hereby agree to the following
liquidated damages, which represent both parties' best estimate of
the damages resulting from the specified injury. Damage amounts
may be adjusted throughout term of Franchise by the City by
resolution to take into account increases in the consumer price
index.
a. for failure to complete construction or extend
service in accordance with the Franchise: $750/day for each
day the violation continues;
b. for failure to comply with material requirements for
public, educational and government use of system: $250/day for
each day the violation continues;
C. for repeated, willful or continuing failure to
submit reports, maintain records, provide documents or
information: $100/day for each day the violation continues;
d. for violation of customer service standards, except
for those set forth below, $150 per violation per day;
e. for repeated, willful or continuing violation of
Sections 2, 3 and 9 of the customer service standards, $200
per violation.
f. for failure to comply with transfer provisions:
$500/day from the date of any unlawful transfer; and
g. for all other material violations including an
unreasonable claim that a document contains a trade secret or
confidential information when the document does not contain a
trade secret or confidential information: $250/day for each
day violation continues.
11.4 Termination. The Franchise shall terminate on the
expiration date hereof, and at the City's option may be terminated,
subject to the provisions of Section 11.5 for the following
reasons:
a. if Grantee's charter or other authorization to
conduct business in Kansas is revoked, or any other license
which Grantee requires to conduct business in Salina is
revoked.
b. if Grantee is adjudged bankrupt;
C. for a substantial violation of any material
provision of the Franchise, or any material rule, order or
regulation or other determination of the City made pursuant to
the Franchise;
d. for any attempt to evade any material provision of
the Franchise or to practice any fraud or deceit upon cable
system subscribers or the City;
25
Kuhn -Cox Priming — Salina, Kansas
e. for failure to complete system construction on
schedule; or for failure to obtain necessary licenses or
authorizations for construction or operation prior to the
scheduled dates, respectively, for commencing construction or
commencing service to subscribers;
f. if the system is abandoned; or
g. for fraudulent or negligent misrepresentation of
fact in obtaining the Franchise, obtaining any rate change, or
in obtaining or objecting to any amendment of the Franchise.
11.5 Procedures for Termination and Forfeiture.
a. The City shall notify Grantee of the alleged
violation which may warrant termination, which notice shall
(1) describe the specific alleged violation; (2) direct
Grantee to correct or to show cause why alleged violation
should not be corrected; and (3) state the time for response
which shall be no less than thirty (30) days from the date
Grantee is sent notice.
b. Within the time designated, Grantee must (1) cure
the violation or (in the event the violation cannot be
completely cured within the time period specified) take
reasonable steps to begin to cure, and submit a written
response to City, identifying the specific steps taken; or (2)
contest the assertion of non-compliance, describing all facts
relevant to claim, supported by affidavits and documents. No
further opportunity to cure is required before the City
exercises its rights under the Franchise. Grantee's duty to
cure includes a duty to pay any liquidated damages owed to the
City from the date of the initial violation.
C. If Grantee contests the City's assertion of non-
compliance, or fails to completely cure the default, the City
shall schedule a hearing to review the default. The City
shall cause to be served upon such Grantee at least seven (7)
days prior to the date of such hearing, a written notice of
the City's intent to review; the potential remedies sought;
and the time and place of the meeting, notice of which shall
be published at least once, no later than seven (7) days
before such meeting in a newspaper of general circulation
within the City. The City shall hear any person interested
therein, and shall specifically provide Grantee an opportunity
to be heard, and shall determine whether or not any failure,
refusal or neglect by the Grantee was with just cause.
d. If the City shall determine such failure, refusal,
or neglect by the Grantee was without just cause, then the
City may take any actions it is permitted to take under this
Franchise or applicable law. Such actions may be taken
immediately upon completion of the hearing contemplated by
this section or at such time or after such additional
proceedings as the City may specify.
e. Except where precluded by court order, pending
litigation or any appeal to any regulatory body or court
having jurisdiction over the Grantee shall not excuse the
Grantee from the performance of its obligations under this
ordinance or the Franchise.
f. For purposes of this section, and subject to force
majeure, the system shall be deemed abandoned if, during any
period this Franchise is in effect, Grantee fails to provide
services over the system for ninty-six (96) consecutive hours
without the prior consent of the City.
M.
Kuhn -Cox Printing — Salina, Kansas
11.6 Remedies Cumulative. Remedies provided herein are
cumulative and in addition to other rights the City may have at law
or equity or under the Franchise, which it may exercise at any
time.
11.7 Sale of System on Termination. Without limiting any
rights of the City under other provisions of federal, state or
local law:
a. if renewal of the Franchise is denied, the City
shall have an option to acquire ownership of the system or
require Grantee to transfer ownership to another person. Any
such acquisition or transfer shall be at fair market value,
determined on the basis of the cable system valued as a going
concern but with no value allocated to the Franchise itself.
b. if the Franchise is revoked for cause the City shall
have an option to acquire ownership of the cable system or
require Grantee to transfer ownership to another person. Any
such acquisition or transfer shall be at an equitable price,
as that term is used in 47 U.S.C. §547(b).
11.8 Notification of Option. The City shall notify the
Grantee of its intent to exercise its option to buy upon
termination for cause within six (6) months of the final
determination of the validity of the City's decision to terminate.
The City and Grantee shall enter into good faith negotiations
promptly to establish price in accordance with section 11.7 and
terms and conditions which reflect usual industry practices.
SECTION XII
TRANSFER
12.1 No Transfer Without Consent. The Franchise may not
be assigned or transferred, in whole or part, or leased or sublet,
mortgaged or pledged in trust by any means without the City's prior
consent. A change of control or ownership of Grantee shall be
considered a transfer of the Franchise. The term "control"
includes actual working control in whatever manner exercised, and
shall be deemed to have occurred upon acquisition or accumulation
by any person of ten percent (10%) of the shares or interests in
Grantee or any entity which directly owns or controls Grantee.
Grantee and the proposed transferee must cooperate in the City's
investigation of the transfer and each is required to provide
pertinent documents and respond to reasonable requests for
information. In reviewing a transfer request, the City may examine
the financial, technical and legal qualifications of the
transferee; whether the transferee agrees to accept and be bound by
each and every term of the Franchise; whether the transferee agrees
to accept to be bound by related amendments, ordinances and
resolutions then lawfully in effect; whether the transferee agrees
to assume all liability and responsibility for acts or omissions of
Grantee, known and unknown; whether the transferee agrees that the
transfer will not allow it to exercise any rights which could not
have been exercised by the transferor, had it continued to hold the
Franchise; and any other matter which the City is legally entitled
or required to consider. The City may grant, deny or establish
conditions on transfer, as appropriate hereunder to protect its
interests in the Franchise and the public interest but may not
withhold its consent to a transfer unreasonably.
12.2 Securing Debt. Notwithstanding the foregoing,
pledges in trust or mortgages of the assets of the system to secure
an indebtedness may be made without the City's prior consent;
except that no such arrangement may be made which would in any
respect under any condition prevent Grantee or any successor from
complying with all its obligations under the Franchise, nor may any
such arrangement permit a third party to succeed to the interest of
Grantee without the prior consent of the City.
27
Kuhn -Cox Priming — Salina, Kansas
12.3 Certain Transfers to Affiliates. Notwithstanding
the foregoing, the City recognizes that Grantee is indirectly owned
by TCI Central, Inc. ("TCI Central"), which in turn owns or
controls directly a number of other cable companies. In order to
facilitate reorganization of TCI Central companies, as deemed
appropriate, the City agrees that prior consent shall not be
required for any transfer to any company owned or controlled or
under common control and with the same direct parent as TCI
Central, i.e., TCI Holdings, Inc., and which is intended after such
transfer to remain under the ownership or control of TCI Central or
an entity under common control or with the same direct parent as
TCI Central, provided that, no such transfer shall be valid unless
and until Grantee and transferee submit a binding agreement and
warranty to the City, stating that: (a) the transferee has read,
accepts and agrees to be bound by each and every term of the
franchise and related amendments, regulations, ordinances and
resolutions then in effect; (b) the transferee assumes all
liabilities and responsibility under the Franchise, and related
amendments, regulations, ordinances and resolutions then lawfully
in effect for the acts and omissions of Grantee known and unknown,
and agrees that the transfer shall not permit it to take any
position or exercise any right which could not have been exercised
by Grantee; (c) the transfer will not substantially increase the
financial burdens upon or substantially diminish the financial
resources available to the system operator, comparing the Grantee
to the transferee in a manner which materially may affect the
Salina system; Grantee and transferee shall also describe the
nature of the transfer, and submit complete information regarding
the effect of the transfer on the direct and indirect ownership and
control of the system operator.
12.4 Prior To Construction. No transfer shall be granted
prior to substantial completion of the system construction required
under this Franchise.
12.5 Effect of Unlawful Transfer. Notwithstanding
Sections 11.4 and 11.5 every transfer, assignment or change of
control made in violation of this section shall make the Franchise
subject to cancellation.
12.6 Timetable for Consideration. Any request for a
transfer shall be deemed granted unless the City acts upon the
request within one hundred twenty (120) days of the date the
transferee submits a request for approval of the transfer and
transferee and transferor have submitted the information which they
may be required to submit in connection with the transfer. The
timetable may be extended with the consent of the City and either
the Grantee or transferee.
12.7 Transfer Fees. Any person who desires the City to
consider an application for transfer or assignment of the Franchise
to it shall compensate the City for all costs (including reasonable
consultant and attorneys fees) associated with considering the
application for transfer or assignment.
SECTION XIII
REPRESENTATIONS AND WARRANTIES
13.1 Valid Corporate Form. Grantee represents and
warrants it is a corporation duly authorized to conduct business in
Kansas and to enter into this Franchise.
13.2 No Outstanding Forfeitures. Grantee represents and
warrants that to the best of its knowledge there are no forfeitures
or notices of investigations pending against it at state and
federal levels relating to the operation of the Salina system and
that Grantee is, to the best of its knowledge, in compliance with
all applicable state and federal laws governing operation of the
Salina cable system.
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— Salina, Kansas
13.3 Familiarity with Franchise. Grantee and the City
represent and warrant that they have read and understand all
provisions of this Franchise.
13.4 Ability to Perform. Grantee represents that it has
the financial, legal and technical ability to comply with all its
obligations under the Franchise.
SECTION XIV
MISCELLANEOUS
14.1 Time of Essence, Maintenance of Records of Essence.
In determining whether Grantee has substantially complied with
Franchise, the parties agree that time is of essence to the
agreement. As a result, Grantee's failure to complete
construction, extend service, seek approval of transfers or provide
information in a timely manner may constitute substantial breaches.
The maintenance of records and provision of reports in accordance
with the Franchise is also of essence to the agreement.
14.2 No Waiver. No failure of City or Grantee to
exercise and no delay in exercising any right shall operate as a
waiver of City's or Grantee's rights hereunder, nor shall single or
partial exercise of any right preclude any other right. A waiver
of any right or remedy at one time shall not affect exercise of
that right or remedy at any other time, or limit Grantee's duty to
comply with the Franchise at any other time. For a waiver by
either party to be effective, it must be in writing. The failure
of City to take any action in the event of a material breach shall
not constitute a waiver of rights, or affect the right of the City
to enforce the Franchise with respect to that breach or any other
breach.
14.3 Effect of Preemption; Federal and State Law.
Grantee must comply with all applicable provisions of federal and
state law, except to the extent those provisions are superseded by
a provision of this Franchise. If the City's ability to enforce
any Franchise provision is finally and conclusively preempted, then
the provision shall be deemed preempted but only to the extent and
for the period the preemption is required by law. If, as a result
of a change in law or otherwise, the provision would again be
enforceable, it shall be enforceable and Grantee will comply with
all obligations thereunder without the requirement of any action by
City.
14.4 Severability. If any section, subsection, sentence,
clause or phrase of this Franchise is for any reason held illegal,
invalid or unconstitutional by the decision of any court of
competent jurisdiction, or by any state or federal regulatory
authority having jurisdiction thereof, such decision shall not
affect the validity of the remaining portions hereof; provided that
if a court of competent jurisdiction declares, or any state or
federal regulatory authority having jurisdiction declares that
Section 10.12 is illegal, invalid, or unconstitutional, or may
otherwise not be enforced according to its terms, the City at its
option may shorten the Franchise term to a period no shorter than
ten (10) years from the effective date of this Franchise, and in
any event no shorter than thirty-six (36) months from the date the
City exercises its option.
14.5 Interpretation. Any dispute regarding the
interpretation of the Franchise terms is to be resolved in a manner
most favorable to the public interest.
14.6 Acts of God. Grantee shall not be deemed in default
or non-compliance with provisions of this Franchise where
performance was rendered impossible by war or riots, civil
disturbance, hurricanes, floods or other natural catastrophes or
similar events beyond Grantee's control, and the Franchise shall
W
Kuhn -Cox Printing — Sallna Kansas
not be revoked or Grantee penalized for such non-compliance,
provided the Grantee takes immediate and diligent steps to bring
itself back into compliance and to comply as soon as possible with
the Franchise under the circumstances without endangering the
health, safety and integrity of Grantee's employees or property, or
the health, safety and integrity of the public, or public or
private property.
14.7 Notice. Notice shall be provided by mail, to
persons designated by the Grantee and the City.
14.8 Descriptive Headings.
are descriptive only.
14.9 Kansas Law Applies.
interpretation of this Franchise.
The headings set forth herein
Kansas law shall govern the
14.10 Compliance with Applicable Laws. Except as
otherwise provided in this Franchise, the Grantee and the City
shall comply with applicable federal and state laws.
repealed.
Section 15. That Ordinance Number 8544 is hereby
Section 16. That this ordinance shall be in full force
land effect from and after its adoption and publication once in the
official city newspaper.
(SEAL)
ATTEST:
-1,,a-�- I kL w4.A_
Jacqu line Shiever, City Clerk
Introduced: January 6, 1992
Second Reading: January 13, 1992
Third Reading: January 27, 1992
I Ai
Stephen C. Rya , Mayor
30