[Adopted 6-1-1998 by Ord. No. 5827]
A.
The City of Parsons, pursuant to the applicable federal
and state law, is authorized to grant one or more nonexclusive franchises
to construct, operate, maintain, and reconstruct cable television
systems within the City limits. Unless otherwise permitted by applicable
laws, this franchise shall not extend to services beyond cable service,
such as telephone service or other telecommunications services. A
franchisee does not waive its rights to offer telephone service or
other telecommunications services subject to applicable local, state
or federal law.
B.
The Commissioners of the City of Parsons find that
the development of cable television systems has the potential of having
great benefit and impact upon the residents of Parsons. Because of
the complex and rapidly changing technology associated with cable
television, the City Commissioners further find that the public convenience,
safety, and general welfare can best be served by establishing regulatory
powers which should be vested in the City or such persons the City
shall designate. It is the intent of this article and subsequent amendments
to provide for and specify the means to obtain the best possible cable
television service for the public, and any franchises issued pursuant
to this article shall be deemed to include this finding as an integral
part thereof.
C.
The City shall not discriminate in awarding franchises
pursuant to this article. Entities which request a franchise to provide
substantially similar services to substantially similar groups of
City residents on substantially similar terms shall receive comparable
franchises. The terms and conditions of any additional franchise shall
be no less burdensome nor more favorable than those contained in any
other franchise, based upon a review of the provisions of each franchise
as a whole.
D.
This article shall be known as the "Cable Television
Ordinance."
For the purposes of this article, the following
terms, phrases, words and their derivations shall have the meaning
given herein. Words used in the present tense include the future,
words in the plural number include the singular number, and words
in the singular number include the plural number. The words "shall"
and "will" are mandatory and "may" is permissive. Words not defined
shall be given their common and ordinary meaning.
Those channels which, by the terms of this article or the
franchise agreement, are required to be kept available by the franchisee
for partial or total dedication to noncommercial educational or governmental
access use.
Any person controlling, controlled by, or under common control
with the franchisee.
Any service tier which includes the retransmission of local
television broadcast signals and access channels. This definition
shall be consistent with and deemed to change pursuant to any changes
in applicable federal law or the FCC rules.
The Cable Communications Policy Act of 1984, Pub. L. No.
98-549, 98 Stat. 2779 (1984) [codified at 47 U.S.C. §§ 521
to 611 (1982 and Supp. V 1987)], as amended by the Cable Television
Consumer Protection and Competition Act of 1992, Pub. L. No. 102-385,
and the Telecommunications Act of 1996, Pub. L. No. 104-104, as may,
from time to time, be amended.
The one-way transmission to subscribers of video programming
or other programming service and subscriber interaction, if any, which
is required for the selection or use of such video programming or
other programming service.
A facility, consisting of a set of closed transmission paths
and associated signal generation, reception, and control equipment,
that is designed to provide cable service which includes video programming
and which is provided to multiple subscribers within a community.
Such term does not include:
A facility that serves only to retransmit the
television signals of one or more television broadcast station;
A facility that serves subscribers without using
any public right-of-way;
A facility of a common carrier which is subject,
in whole or in part, to the provisions of 47 U.S.C. § 201
et seq., except that such facility shall be considered a cable system
[other than for purposes of 47 U.S.C. § 541(C)] to the extent
such facility is used in the transmission of video programming directly
to subscribers; or
Any facilities of any electric utility used
solely for operating its electric utility system.
A six-megahertz portion of the electromagnetic frequency
spectrum which is used in a cable system and which is capable of delivering
a television channel as defined by the Federal Communications Commission.
The City of Parsons, Kansas, and all territory within its
existing and future territorial corporate limits or jurisdiction for
purposes of this article.
The governing body of the City of Parsons, Kansas.
Any verbal or written inquiry, allegation or assertion made
by a person requiring subsequent corrective action to the system or
any portion thereof.
The Federal Communications Commission, its designee, or any
successor thereof.
An initial authorization or renewal thereof issued by the
City, whether such authorization is designated as a franchise, permit,
license, resolution, contract, certificate, agreement, or otherwise,
which authorizes the construction or operation of the cable system.
"Franchise" shall include both the franchise granted pursuant to this
article and the franchise agreement, or granting ordinance, and all
rights, powers and privileges thereunder.
The separate agreement or granting ordinance by which the
franchise is granted to the franchisee, as required by this article.
Includes all persons having any rights, powers, privileges,
duties, liabilities, or obligations under this article and the franchise
agreement (herein collectively called the "franchise") and any lawful
successor, transferee, or assignee of the original franchisee.
The City of Parsons, as represented by the Commissioners
of the City of Parsons or any delegate acting within the scope of
its jurisdiction.
All revenues received directly or indirectly by the franchisee
arising from or in connection with the provision of cable service
in the City and consistent with local, state, and federal law, including
but not limited to subscriber revenues (including pay TV), advertising
income, home shopping programs, rentals of equipment, antenna, or
signal space, and any and all other gross revenues received by the
franchisee from the provision of cable service in the area under the
jurisdiction of the City of Parsons. The franchisee is not required
to include revenues recorded as received but which are bad debt, but
it must include any recoveries of bad debt. This definition of "gross
revenues" also does not include any sales, excise or other taxes collected
by the franchisee on behalf of a federal, state, county, city, or
other governmental unit.
The act of connecting the system from the feeder cable to
the subscriber terminal so that cable service may be received by the
subscriber.
Those hours during which most similar businesses in the community
are open to serve customers. At the request of the City, "normal business
hours" will include some evening hours at least one night per week
and/or some weekend hours, but the franchisee shall not be required
to exceed 40 hours in any week.
Those service conditions which are within the control of
the franchisee. Those conditions which are not within the control
of the franchisee include, but are not limited to, natural disasters,
civil disturbances, power outages, telephone network outages, and
severe or unusual weather conditions. Those conditions which are ordinarily
within the control of the franchisee include, but are not limited
to, special promotions, pay TV events, rate increases, regular peak
or seasonal demand periods, and maintenance or upgrade of the system.
Information that a franchisee makes available to all subscribers
generally.
The delivery over the system of per-channel or per-program
programming to subscribers for a separate fee or charge from basic
cable service.
Any natural person or any association, firm, individual,
partnership, joint-stock company, joint venture, corporation, or other
legally recognized entity, public or private, whether for profit or
not for profit.
The entire geographic area within this City as it is now
constituted or may in the future be constituted, unless otherwise
specified in the franchise agreement.
The loss of picture or sound on one or more cable channels.
Equipment and/or activation of two-way capability
that:
Is readily available with reasonable delivery
schedules from two or more sources of supply;
Has the capability to perform the intended functions
demonstrated within communities with similar characteristics (including
but not limited to population, density, and subscriber penetration)
under actual operating conditions for purposes other than test or
experimentation; and
Can be implemented by the franchisee in an economically
feasible manner.
"State of the art" does not include equipment
or facilities associated with public, educational, or governmental
access.
Each of the following which have been dedicated to the public
or are hereafter dedicated to the public and maintained under public
authority or by others and located within the City limits: streets,
roadways, highways, avenues, lanes, alleys, sidewalks, easements,
rights-of-way and similar public property and areas that the City
shall permit to be included within the definition of "street" from
time to time.
Any person who lawfully receives the cable service provided
by the franchisee.
The extension wiring from the franchisee's distribution lines
to a subscriber's building.
Programming provided by, or generally considered comparable
to programming provided by, a television broadcast station.
No person shall own or operate a cable system,
as defined herein, in the City except by franchise granted by the
City in the form of a franchise agreement between the City and the
franchisee which shall comply with all the specifications of this
article.
A.
In selecting an initial franchisee pursuant to this
article, the City shall prepare a request for proposals to seek bids
for a cable system to be established under franchise by the City.
This request for proposals will contain information and instructions
relating to the preparation and filing of proposals; conditions regarding
the installation, operation and maintenance of a cable system; and
the criteria to be used in evaluating applicant proposals. The provisions
of this section shall not be applicable to the renewal of any franchise.
B.
Applicants may be evaluated according to the following
criteria, among others:
(1)
Installation plan. Consideration may be given to an
installation plan that would provide the flexibility needed to adjust
to new developments, maintenance practices, and services that would
be available to the subscriber and the community immediately and in
the future.
(2)
Rate schedule. Consideration may be given to applicants
with the most reasonable installation and subscriber rate schedule.
(3)
Financial soundness and capability. The evidence of
financial ability required in the applicant's proposal shall be such
as to assure ability to complete the entire system within a maximum
of three years from the date the franchise is granted. The City will
also consider the applicant's ability to operate the system and provide
the necessary services.
(4)
Demonstrated experience in operating a cable system.
Consideration may be given to evidence of the applicant's experience
in operating a cable system, where such evidence would show or tend
to show or confirm the ability of the applicant to furnish sufficient
and dependable service to the potential public and private users.
(5)
Technical capability. The City may consider the quality
of service offered, including signal quality, response to subscriber
complaints, and billing practices.
(6)
Future needs. Consideration may be given to the franchisee's
ability to meet the future cable-related community needs and interests,
taking into account the cost of meeting such needs and interests.
(7)
Additional considerations. The City may consider any
additional information that it deems applicable.
C.
Initial application fee. A reasonable, nonrefundable
application fee established by the City in its request for proposals
shall accompany the application. Such application fee shall not be
deemed to be a franchise fee within the meaning of Section 622 of
the Cable Act (47 U.S.C. § 542), and such payments shall
not be deemed to be payments in kind or any involuntary payments chargeable
against the compensation to be paid by the franchisee to the City.
Franchise renewals shall be according to applicable
law. The City and franchisee, by mutual consent, may enter into renewal
negotiations at any time during the term of the franchise. The City
reserves any rights it may have to be compensated for funds expended
as a result of the franchise renewal process as allowed by local,
state, and federal laws. Such compensation, when combined with the
franchise fee imposed by the franchise agreement, shall not exceed
5% of the franchisee's gross revenues for that year. In the event
that the costs incurred by the City will not be fully compensated
in a given year due to the five-percent limit, such amount may be
carried forward for compensation in future years. However, such amounts
may not be carried forward for more than three years after the year
the costs are incurred. This provision does not constitute an agreement
by the franchisee to reimburse the City for the cost of the application
process.
A.
During the term of any franchise granted pursuant
to this article, the franchisee shall pay to the City for the use
of its streets an annual franchise fee in an amount up to 5% of the
annual gross revenues. This payment shall be in addition to any other
tax or payment owed to the City by the franchisee and does not include
rental of poles or underground conduits.
B.
Sales tax or other taxes levied directly on a per-subscription
basis and collected by the franchisee shall be deducted from the gross
revenues before computation of sums due the City is made. Franchise
fees shall be deducted from gross revenues to the extent allowed by
federal or state law. Payments due the City under the terms of this
article shall be computed quarterly as of September 30, December 31,
March 31, and June 30 for the preceding quarter and shall be paid
on or before the 30th calendar day from each said computation date
to the City. The City shall be furnished a statement with each payment,
certified as correct by the franchisee, reflecting the total amount
of gross revenues, and the above charges, deductions and computations,
for the three-month payment period covered by the payment. With the
payment each year for the quarter ending on December 31, a statement
certified by the controller or substantially similar position of the
franchisee shall be submitted certifying that the statements filed
and payments made by the franchisee for the preceding year were correct.
Upon 10 days' prior written notice, the City shall have the right
to conduct an independent audit of the franchisee's records, in accordance
with generally accepted accounting principles, and if such audit indicates
a franchise fee underpayment of 5% or more, the franchisee shall assume
all reasonable costs of such an audit. Any additional amount due the
City as a result of such audit shall be paid within 30 days following
written notice by the City to the franchisee, which notice shall include
a copy of the audit report.
C.
No acceptance of any payment shall be construed as
a release or as an accord and satisfaction of any claim the City may
have for further or additional sums payable as a franchise fee under
this article or for the performance of any other obligation hereunder.
D.
Failure to pay any fees required by this section within
10 days of receipt of written notice of such failure from the City
shall be grounds for termination of the franchise, and reinstatement
thereof may be had only upon resolution by the City Commissioners
and payment of the delinquent fee or fees plus any interest or penalties
as may be required.
E.
In the event that any franchise fee payment or recomputed
amount is not made on or before the dates specified above, the franchisee
shall pay as additional compensation an interest charge, computed
from such due date, at an annual rate equal to the prime lending rate
plus 1 1/2% during the period for which payment was due and unpaid.
F.
Each franchisee shall file with the City quarterly
reports of gross revenues certified as correct by the franchisee and
prepared in a form acceptable to the City.
A.
The term of the franchise shall be stated in the franchise
agreement.
B.
In addition to all other rights and powers of the
City by virtue of the franchise or this article, the City may terminate
and cancel the franchise and all rights and privileges of the franchisee
thereunder in the event that the franchisee either:
(1)
Substantially violates any provision of the franchise
agreement or this article;
(2)
Attempts to dispose of any of the facilities or property
of its cable system to prevent the City from purchasing the same,
as provided for herein; or
(3)
Attempts to evade any of the provisions of this article
or the franchise agreement or practices any fraud or deceit upon the
City.
C.
If the City believes that grounds for termination
exist or have existed, the City shall notify the franchisee, in writing,
setting forth the nature and facts of such noncompliance. If, within
the 30 days following such written notification, the franchisee has
not furnished reasonably satisfactory evidence that corrective action
has been taken or is being actively and expeditiously pursued, or
that alleged violations did not occur, or that the alleged violations
were beyond the franchisee's direct control, the City may, following
notice of the grounds for termination, pursuant to this section, and
the holding of a public hearing with the City Commission, revoke a
franchise. The franchisee shall be afforded a fair opportunity for
participation at the public hearing, including the right to introduce
evidence and question witnesses. The franchisee shall have the right
to appeal any such decision to a state or federal court, and the termination
shall not become effective until any such appeal has become final
or the time for taking such appeal has expired.
A.
All franchises granted pursuant to this article shall
be subject to the following provisions:
(1)
Any franchise granted hereunder shall be subject to
the right of the City to revoke the franchise pursuant to this article.
(2)
Any franchise granted hereunder shall contain provisions
mutually agreed upon and by which the City may:
(a)
Repeal the same for misuse, non-use, or the
failure to substantially comply with the material provisions of this
article or the franchise agreement.
(b)
Require proper and adequate extension of the
plant and service and maintenance thereof at the highest practicable
standard of efficiency and require extension of service to all residents
of the City, as specified in the franchise agreement.
(c)
Establish reasonable standards of service and
quality of products and prevent unjust discrimination in service or
rates.
(d)
Require continuous and uninterrupted service
to the public in accordance with the terms of the franchise throughout
the entire period thereof.
(e)
Impose such other regulations of general applicability
through lawful exercise of its police powers as may be determined
by the City Commissioners to be conducive to the health, safety, and
welfare of the public.
(f)
Control and regulate the use of its streets.
(g)
Inspect all construction or installation work
performed subject to the provisions of the franchise and this article
and make such inspections as it shall find necessary to ensure compliance
with the terms of the franchise, this article, and other pertinent
provisions of law.
(h)
Inspect the books, records, maps, plans, income
tax returns, and other like materials of the franchisee upon reasonable
notice to ensure compliance with the terms of the franchise, this
article and other pertinent provisions of law.
(i)
At the expiration of the term for which this
franchise is granted or upon the termination and cancellation as provided
herein, require the franchisee to remove at its own expense any and
all portions of the cable system from the streets within the City.
B.
Federal, state and City jurisdiction.
(1)
This article shall be construed in a manner consistent
with all applicable federal and state laws.
(2)
In the event that the state or federal government
shall discontinue preemption in any area of cable television over
which it currently exercises jurisdiction in such a manner as to expand
rather than limit municipal regulatory authority, the City may, if
it so elects, adopt rules and regulations in these areas to the extent
permitted by law.
(3)
This article shall apply to all franchises granted
or renewed from and after the effective date of this article.
(4)
The franchisee shall not be relieved of its obligation
to comply with any of the provisions of this article or any franchise
agreement granted pursuant to this article by reason of any failure
of the City to enforce prompt compliance.
(5)
This article and any franchise agreement granted pursuant
to this article shall be construed and enforced in accordance with
the substantive laws of the State of Kansas.
A.
The applicant awarded a franchise by the City Commission
shall execute a franchise agreement, agreeing to the terms and provisions
of the franchise and specifications of the franchise as may be incorporated
into the franchise agreement in writing.
B.
In addition to those matters required elsewhere in
this article to be included in the franchise agreement, it must contain
the following express representations by the franchisee:
(1)
That it accepts and agrees to all of the provisions
of this article and any supplementary specification as to construction,
operation, or maintenance of the system which the City may include
in the franchise agreement subject to applicable state and federal
law.
(2)
That it has examined all of the provisions of this
article and agrees that the provisions thereof are valid, binding
at this time, and enforceable as of the effective date of the franchise.
(3)
That it recognizes the right of the City to adopt
such additional regulations of general applicability as it shall find
necessary in the exercise of its police power.
C.
No franchise shall be exclusive.
D.
Every franchise shall specifically delineate the territorial
extent of the City in which the franchisee is authorized to operate.
E.
The franchise agreement shall contain such further
conditions or provisions as may be included in the request for proposal
and negotiated between the City and the franchisee, except that no
such conditions or provisions shall be such as to conflict with any
provisions of this article or other law. In case of such conflict
or ambiguity between any terms or provisions of the franchise agreement
and this article, the words of this article shall control.
A franchisee must provide access channels. If
there are one or more franchisees under this article, any new franchisee
must provide at a minimum the same number of channels as the franchisee
with the lowest number of access channels.
The franchisee shall, without charge for installation,
maintenance, or monthly service, provide one outlet of its basic cable
service at each fire and police station, public school, secondary
private school with students receiving funding under Title I of the
Education and Secondary School Act of 1965, City Hall, public library,
rescue squad building, recreation center, and other City facility,
provided that such locations are within 150 feet of the franchisee's
cable system and serviceable through a standard aerial drop. Such
installations shall be made at such reasonable locations as shall
be requested by the respective units of government or educational
institutions. Any charge for relocation of such installations shall,
however, be charged at actual cost. Additional installations at the
same location may be made at cost. No monthly service charges shall
be made for distribution of the franchisee's signals within such publicly
owned buildings. The franchisee shall provide a converter box, if
necessary, for receipt of basic cable service at no cost to each of
the above entities. The franchisee shall also wire any rooms in the
above-described buildings to receive cable at no more than the cost
to the franchisee.
A.
The franchisee shall not construct any cable system
facilities until the franchisee has secured the necessary permits
from the City or other cognizant public agencies.
B.
All of the franchisee's plant and equipment, including
but not limited to the antenna site, head end and distribution system,
towers, house connections, structures, poles, wire, cable, coaxial
cable, fixtures, and appurtenances, shall be installed, located, erected,
constructed, reconstructed, replaced, removed, repaired, maintained,
and operated in accordance with good engineering practices, performed
by experienced pole line construction crews and so as not to endanger
or interfere with the safety of any person or property, or to interfere
with improvements the municipality may deem proper to make, or to
interfere in any manner with the right of any property owner, or to
unnecessarily hinder or obstruct pedestrian or vehicular traffic on
municipal properties.
C.
Any opening or obstruction in or disturbance of the
streets or other municipal properties made by the franchisee in the
exercise of its rights under a franchise agreement shall be done in
compliance with City ordinances which regulate work in the public
ways of the City, except that any bond requirements therein may be
waived in cognizance of the bond requirements of this article.
D.
The franchisee shall comply with the minimum standards
provided for by the applicable ordinances of the City adopted from
time to time containing construction or building standards of general
applicability.
E.
The franchisee shall, at its expense, protect, support,
temporarily disconnect, relocate in the same street or other street,
or remove from the street any property of the franchisee when required
by the City Commissioners or their designee by reason of traffic conditions,
public safety, street excavation, freeway and street construction,
change or establishment of street grade, or installation of sewers,
drains, water pipes, power lines, signal lines and tracks, or any
other type of structures or improvements by public agencies. If the
City compensates any utility for such work, the City must similarly
compensate the franchisee for such work.
F.
The franchisee shall, on the request of any private
party holding an appropriate permit issued by the City, temporarily
raise or lower its lines to permit the moving of any building or other
structure, and the actual expense of the same shall be paid in advance
by the party requesting the same.
G.
The franchisee shall have the right, with the prior
approval of the City, to remove, trim, cut and keep clear of its poles,
wires or cables the trees in and along the streets of the City, but
in the exercise of such right, the franchisee shall not cut or otherwise
injure said trees to any greater extent than is reasonably necessary
for the continued integrity of its poles, wires or cables.
H.
The franchisee, in the exercise of any right granted
to it by the franchise, shall reconstruct, replace, restore, or repair
any street and any sewer, gas, or water main, pipe, electric, fire
alarm, or police communications, off or on City property, or right-of-way
or traffic control facility of the City which may be damaged or destroyed
by the exercise of any such right to a condition as good as that prevailing
before said work to the reasonable satisfaction of the City. The City
reserves the right to determine whether the franchisee has properly
complied with the provisions of this subsection, and in the event
it is determined that the franchisee has failed to do so, the City
shall have the right, following notice to the franchisee and reasonable
opportunity for the franchisee to cure, to carry out such provisions,
and the franchisee shall reimburse the City in full for all expenses
incurred by the City in carrying out all or part of such provisions.
I.
Upon failure of the franchisee to commence, pursue,
or complete any work required by law or by the provisions of this
article to be done in any street within the time prescribed and to
the satisfaction of the City Commissioners or their designee, the
City Commissioners or their designee may, following notice to the
franchisee and reasonable opportunity for the franchisee to cure,
at its option, cause such work to be done, and the franchisee shall
pay to the City the cost thereof in the itemized amounts reported
by the City Commissioners or their designee to the franchisee within
30 days after receipt of such itemized report.
J.
The City shall have the right to install and maintain
upon the poles and within the underground pipes and conduits of the
franchisee any wires and fixtures desired by the City, provided that:
(1)
Such use by the City does not interfere with existing
or future use by the franchisee;
(2)
The City shall take reasonable precautions to prevent
any use of the franchisee's facilities in any manner which results
in the inappropriate use of such facilities or any loss or damage
to the system;
(3)
To the extent provided by the Kansas Tort Claims Act
and amendments thereto, the City holds the franchisee harmless against
and from all claims, demands, costs, or liabilities of every kind
and nature whatsoever arising out of such use of said poles or conduits;
(4)
The City shall be able to use the poles at no cost;
and
(5)
At the franchisee's sole discretion, the City may
be required either to pay a reasonable rental fee or otherwise reasonably
compensate the franchisee for the use of such conduit or other equipment;
provided, however, that the franchisee agrees that such compensation
or charge shall not exceed that paid by it to public utilities.
A.
All construction practices will be in accordance with
all applicable sections of the Occupational Safety and Health Act
of 1970, as amended, as well as all other applicable local, state
and federal laws and regulations.
B.
All installation of electronic equipment shall be
installed in accordance with the provisions of the National Electrical
and Safety Code and National Electrical Code, as amended.
C.
Antennas and their supporting structures (towers)
shall be painted, lighted, erected, and maintained in accordance with
all applicable rules and regulations of the Federal Aviation Administration
and all other local, state and federal laws and regulations.
D.
The results of tests required by the FCC must be filed
with the City within 30 days of a request by the City.
E.
At any time after commencement of service to subscribers,
the City may require the franchisee to perform additional tests, full
or partial repeat tests, or tests involving a specific subscriber's
drop. Such additional tests may be made on the basis of complaints
received or other evidence indicating an unresolved controversy or
significant noncompliance, and such tests will be limited to the particular
matter in controversy. The City shall be able to designate a representative
to be present during the testing. If a test indicates that the franchisee
is in compliance with FCC standards and requirements, the City shall
bear the expense of such test. If a test indicates that the franchisee
is not in compliance with FCC standards and requirements, the franchisee
shall bear the expense of such test. The City shall endeavor to so
arrange its requests for such special tests so as to minimize hardship
or inconvenience to the franchisee or to the subscriber.
F.
Upon request, the franchisee shall provide annual
reports to the City of the following statistical information:
(1)
Statistics compiled on a quarterly basis recording
service calls in which a technician or repairman is dispatched to
a residence to correct a reception problem.
(2)
Service interruption logs, in which service interruptions
to multiple addresses are recorded.
(3)
Franchisee's leakage log.
(4)
New services to be offered to residents of the City
or technology to be deployed in the City within the next 30 days.
(5)
Records of policy concerns and complaints called or
written into the system and kept in the ordinary course of business.
G.
Technical standards. The City and franchisee will
negotiate in good faith to develop technical standards for the operation
of the franchisee's system. If the parties are unable to reach agreement
as to such technical standards, the franchisee shall comply with the
most recent applicable technical standards promulgated by the FCC.
The City has determined that cable television
technology, programs and services are subject to continuing change.
This includes changes in law and regulations as well as technological
and service advancements. For this reason, it is essential that any
franchise which is granted pursuant to this article must include provisions
for periodic review, evaluation and modification and procedures and
requirements relating to evaluation of the state of the art technology
and services, permitting the City to require appropriate upgrade and
changes based upon its review and in accordance with the procedures
outlined in the franchise agreement.
Any damage caused to the property of building
owners or users or any other person by the franchisee's negligence
shall be repaired fully to a condition as good as that prevailing
before said work by the franchisee.
Upon termination of service to any subscriber,
the franchisee shall promptly remove all its facilities and equipment
from the premises of such subscriber upon his or her request.
A.
The franchisee shall not sell, transfer, lease, assign,
sublet or dispose of any franchise awarded under this article or any
of the rights or privileges granted by the franchise to any person,
other than an affiliate of the franchisee, without the prior consent
of the City Commissioners, which consent shall not be unreasonably
withheld. Further, any sale or transfer and the consent thereto shall
comply with applicable law requirements. Any attempt to sell, transfer,
lease, assign or otherwise dispose of the franchise and/or the cable
system without the consent of the City, except as otherwise provided
herein, shall be null and void. The granting of a security interest
in any of franchisee's assets, or any mortgages or other hypothecation,
shall not be considered a transfer for the purposes of this section.
B.
Any change of control of the franchisee shall be deemed
to be a sale or transfer of the franchise. A change of control shall
include any stock sale by the franchisee to, or any merger or consolidation
with, any person (or group of persons acting in concert) who is not
an affiliate of the franchisee before such transaction.
C.
The franchisee must comply with provisions of the
Cable Act regarding transfers of ownership and any other state, federal,
or local laws which are applicable.
D.
The franchisee shall notify the City in writing of
any foreclosure or any other judicial sale of all or a substantial
part of the property of the franchisee or upon the termination of
any lease or interest covering all or substantial part of said franchised
property. Such notification shall be considered by the City as notice
that a change in control or ownership of the franchise has taken place,
and the provisions under this section governing the consent of the
City to such change in control or ownership shall apply.
E.
For the purpose of determining whether it shall consent
to such a change, transfer, or acquisition of control, the City may
inquire into the qualifications of the prospective transferee or controlling
party, and the franchisee shall assist the City in any such inquiry.
In seeking the City's consent to any change in ownership or control,
the franchisee shall have the responsibility of ensuring that the
transferee completes an application, which application shall include
the information required under state and federal law. The transferee
shall be required to establish that it possesses the legal, technical,
and financial qualifications to operate and maintain the system and
comply with all franchise requirements for the remainder of the term
of the franchise. The City can consider the legal, technical, and
financial qualifications of the transferee as well as whether the
proposed transfer will adversely affect the City's subscribers. The
City can also consider the ability of the proposed transferee to complete
any system upgrade as specified in the franchise agreement. After
considering the legal, financial, and technical qualifications of
the applicant, as well as the effect upon the City's subscribers,
and determining that they are satisfactory, the City shall approve
the transfer of rights and obligations of said franchise.
F.
The franchisee shall reimburse the City for all reasonable
costs incurred by the City as a result of the transfer process, including
outside consultants' fees. Such reimbursement, when combined with
the franchise fee imposed by a franchise agreement, shall not exceed
5% of the franchisee's gross revenues for that year. In the event
that the costs incurred by the City will not be fully reimbursed in
a given year due to the five-percent limit, such amount may be carried
forward for reimbursement in future years. However, such amounts may
not be carried forward for more than three years after the year the
costs are incurred.
G.
Any financial institution having a pledge of the franchisee
or its assets for the advancement of money for the construction and/or
operation of the franchise shall have the right to notify the City
that it or its designee satisfactory to the City shall take control
of and operate the cable television system in the event of a franchisee
default in its financial obligations. Further said financial institution
shall also submit a plan for such operation within 30 days of assuming
such control that will assure continued service and compliance with
all franchise requirements during the term the financial institution
exercises control over the system. The financial institution shall
not exercise control over the system for a period exceeding one year
unless extended by the City in its discretion, and during said period
of time it shall have the right to petition the City to transfer the
franchise to another franchisee.
H.
Notwithstanding anything to the contrary contained
herein, no such prior consent shall be required for any transfer or
assignment to any person controlling, controlled by or under the same
common control as the franchisee.
A.
If, subject to the provisions of the Cable Act, a
renewal of a franchise is denied, the City may, to the extent permitted
by local law, purchase, upon payment to the franchisee of the cable
system's fair market value as a going concern, exclusive of any value
allocated to the franchise itself, that portion of the franchisee's
cable system serving the City.
B.
Subject to the Cable Act, if a franchise is revoked
for cause, the City may, to the extent permitted by local law, acquire
that portion of the cable system serving the City upon payment of
an equitable price.
A.
Subject to any geographical coverage policy outlined
in a franchise agreement, the franchisee shall design, construct,
and maintain the cable television system to have the capability to
serve every dwelling unit in the service area that receives public
water or sewer service and that has a minimum density of 20 homes
per mile.
B.
After service has been established by activating trunk
and/or distribution cables for any part of the service area, the franchisee
shall provide cable service to any requesting subscriber within that
service area within 30 days from the date of the request, provided
that the franchisee is able to secure all rights-of-way necessary
to extend service to such subscriber within such thirty-day period
on reasonable terms and conditions.
A.
The City may grant one or more franchises for a service
area. The City may, in its sole discretion, limit the number of franchises
granted based upon, but not necessarily limited to, the requirements
of applicable laws and specific local considerations, such as:
(1)
The capacity of the public rights-of-way to accommodate
multiple coaxial cables in addition to the cables, conduits, and pipes
of the utility systems, such as electrical, power, telephone, gas,
and sewerage.
(2)
The impact on the community of having multiple franchises.
(3)
The disadvantages that may result from cable system
competition, such as the requirement for multiple pedestals on residents'
property and a disruption arising from numerous excavations of the
streets.
(4)
The legal, technical, and financial capabilities of
the applicant and its guaranteed commitment to make the necessary
investment to erect, maintain, and operate the proposed system for
the duration of the franchise term.
B.
Each franchisee awarded a franchise to serve the entire
City shall offer service to all residences in the City in accordance
with construction and service schedules mutually agreed upon between
the City and the franchisee and consistent with applicable law.
The franchisee shall not oppose intervention
by the City in any suit or proceeding to which the franchisee is a
party.
A.
The franchisee shall not, in its rates or charges,
or in making available the services or facilities of its system, or
in its rules or regulations, or in any other respect, make or grant
preferences or advantages to any subscriber or potential subscriber
to the system, or to any user or potential user of the system, and
shall not subject any such persons to any prejudice or disadvantage.
The foregoing shall not be deemed to prohibit or preclude promotional
rates or charges.
B.
The franchisee shall not deny service, deny access,
or otherwise discriminate against subscribers on the basis of race,
color, religion, national origin or sex. The franchisee shall comply
at all times with applicable equal employment opportunity requirements
and all other applicable federal, state and local laws and regulations
and all executive and administrative orders relating to nondiscrimination
which are hereby incorporated and made part of this article by reference.
The franchisee shall comply with the subscriber
privacy standards located in 47 U.S.C. § 551. If the standards
in 47 U.S.C. § 551 cease to exist, the City shall have the
right to implement the following:
A.
No signal shall be transmitted from a subscriber terminal
for purposes of monitoring individual viewing patterns or practices
without the express written permission of the subscriber. The request
for such permission shall be contained in a separate document with
a prominent statement that the subscriber is authorizing the monitoring
and acknowledging the provisions. The authorization shall be revocable
at any time by the subscriber without penalty of any kind whatsoever;
provided, however, that the franchisee shall be entitled, without
permission, to conduct system-wide or individually addressed sweeps
for the purpose of verifying system integrity, controlling return
transmission or billing for services.
The franchisee or applicant for franchise shall
diligently apply for all necessary permits and authorizations required
in the conduct of its business and shall diligently pursue the acquisition
thereof, including necessary pole attachment contracts and necessary
authorizations from the Federal Aviation Administration to construct
such receiving antenna towers as may be required and any necessary
authorizations or waivers from the FCC. After the franchisee has diligently
pursued the acquisition of necessary pole attachment contracts or
other necessary easements, and where such necessary contracts have
not been entered or easements obtained after a reasonable period of
time, the franchisee may submit the matter to the City Commissioners
and the City Commissioners may thereupon provide assistance that may
be necessary to arrive at a solution so that scheduled construction
of the system will not be impaired.
A.
Each franchisee shall file an annual report. Such
report shall include:
(1)
An ownership report, identifying all persons who at
any time during the preceding year controlled or benefited from an
interest in the franchisee of 5% or more.
(2)
Copies of all rules, regulations, terms, and conditions
the franchisee has adopted for the conduct of its business.
(3)
A summary of any customer surveys conducted that year, including surveys conducted pursuant to § 240-40.
(4)
A summary of the previous year's (or in the case of
the initial reporting year, the initial year's) activities in development
of the cable system, including but not limited to services begun or
discontinued during the reporting year.
(5)
A list of the franchisee's officers, board members,
and other principals.
B.
Upon request, a franchisee shall allow the City Manager
or his or her designee to review a detailed plan (map) of its local
system at its offices.
A franchisee shall at all times comply with
the emergency alert system requirements of the FCC. The franchisee
shall, in the case of any emergency or disaster, make its entire system
available without charge to the City or to any other governmental
or civil defense agency that the City shall designate.
The City Commissioners may amend this article
whenever necessary to enable the franchisee to take advantage of any
developments in the field of transmission of communication signals
and upgrade the system which will afford it an opportunity to more
effectively, efficiently or economically serve its customers, provided
that this section shall not be construed to require the City to make
any such amendment.
A.
Liability and indemnification. The franchisee shall
indemnify, hold harmless, release and defend the City, its officers,
agents and employees from and against any and all lawsuits, claims,
causes of action, actions, liability, demands, damages, disability
losses, expenses, including reasonable attorneys' fees, and costs
or liabilities of any nature that may be asserted by any person or
entity from any cause whatsoever, including another's concurring negligence,
arising from injury to persons or damages to property to the extent
caused by any conduct undertaken by the franchisee, its officers,
agents or employees by reason of its construction, operation or maintenance
of its system. Such damages and penalties shall include, but not be
limited to, damages arising out of copyright infringements and all
other damages arising out of the installation, operation or maintenance
of the cable system authorized herein, whether or not any act or omission
complained of is authorized, allowed, or prohibited by the franchise,
except that a franchisee shall not be liable for payment of damages
and penalties arising solely from any acts or omissions by the City,
its agents or employees. If a lawsuit is filed against the City, either
independently or jointly with the franchisee, to recover for any claim
or damages, the franchisee, upon notice to it by the City, shall,
at its sole cost and expense, defend and fully control the defense
of the City against the action, and in the event of a final judgment
being obtained against the City, either independently or jointly with
the franchisee, solely by reason of the acts of the franchisee, the
franchisee shall pay said judgment and all costs and hold the City
harmless therefrom. However, the franchisee may not enter into any
compromise, settlement, resolution, or disposition of a claim or proceeding
that may create or impose liability for the City without obtaining
the City's written consent thereto. In order for the City to assert
its rights to be indemnified and held harmless, the City must:
(1)
Notify the franchisee of any claim or legal proceeding
which gives rise to such right;
(2)
Afford the franchisee the opportunity to participate
in and fully control any compromise, settlement, resolution, or disposition
of such claim or proceeding; and
(3)
Fully cooperate in the defense of such claim and make
available to the franchisee all such information which it may lawfully
furnish to the franchisee and relating to the claim.
B.
Security funds. The City may require the franchisee
to file with the City Clerk, concurrently with its acceptance of the
franchise and at the franchisee's sole expense, a corporate surety
bond, construction bond, performance bond and/or letter of credit.
Such bond and/or letter of credit shall be in an amount specified
in the franchise agreement, issued by a responsible company licensed
to do business in Kansas and conditioned upon the faithful performance
of the franchisee to meet its obligations under this article and the
franchise.
C.
Insurance.
(1)
During the course of the franchise, the franchisee
shall be required to maintain liability insurance to protect the City
and the franchisee from and against any and all claims, injury, or
damage to persons or property, both real and personal, caused by the
construction, erection, operation, or maintenance of any aspect of
the system. The amount of insurance shall be specified in the franchise
agreement.
(2)
The franchisee shall provide workers' compensation
insurance as required by state law.
(3)
All such insurance coverage shall provide a thirty-day
notice to the City Manager in the event of material alteration or
cancellation of any coverage afforded in said policies prior to the
date said material alteration or cancellation shall become effective.
(4)
Copies of all certificates evidencing insurance shall
be furnished to and filed with the City Manager prior to the commencement
of operations or the expiration of prior policies, as the case may
be.
(5)
It shall be the obligation of the franchisee to promptly
notify the City of any pending or threatened litigation that would
be likely to affect the franchisee's insurance coverage.
D.
Non-waiver. Neither the provisions of this section
nor any bonds accepted by the City pursuant thereto nor any damages
recovered by the City thereunder shall be construed to excuse unfaithful
performance by the franchisee or limit the liability of the franchisee
under this article or the franchise for damages, either to the full
amount of the bond or otherwise.
The franchisee shall:
A.
Limit failures to a minimum by locating and correcting
malfunctions properly, but in no event longer than 24 business hours
after notification.
B.
Notify subscribers affected 24 hours prior to any
planned service interruption. Such notice may be made through the
cable system itself.
C.
Demonstrate to subscribers upon request, by instruments
and otherwise, that a signal of adequate strength and quality is being
delivered.
A.
It shall be the right of all subscribers to continue
receiving cable services insofar as their financial and other obligations
to the franchisee are honored. In the event that the franchisee elects
to rebuild, modify, or sell the system or the City gives notice of
intent to terminate or fails to renew this franchise, the franchisee
shall act so as to ensure that all subscribers receive continuous,
uninterrupted service.
B.
In the event of a change of the franchisee, or in
the event a new operator acquires the system, the franchisee shall
cooperate with the City's new franchisee or operator in maintaining
continuity of cable service to all subscribers. During such period,
the franchisee shall be entitled to the revenues for any period during
which it operates the system and shall be entitled to reasonable cost
for its services when it no longer operates the system.
C.
In the event that the franchisee fails to operate the system for three consecutive days without approval of the City, the City may, at its option, operate the system or designate an operator until such time as the franchisee restores cable service under conditions acceptable to the City or a permanent operator is selected. This subsection shall not apply if the cable operator is unable to operate the system due to force majeure as defined in § 240-48. If the City is required to fulfill this obligation for the franchisee, the franchisee shall reimburse the City for all reasonable costs or damages in excess of revenue from the system received by the City that are a result of the franchisee's failure to perform.
A.
The franchisee shall at all times employ ordinary
care and shall install, maintain and use commonly accepted methods
and devices for preventing failures and accidents which are likely
to cause damage, injuries or nuisances to the public.
B.
The franchisee shall install and maintain its wires,
cables, fixtures, and other equipment in accordance with the requirements
of the National Electrical Safety Code of the Institute of Electrical
and Electronic Engineers, the National Electrical Code of the National
Fire Protection Association, the Bell System Code of Pole Line Construction
and applicable federal, state and local regulations.
C.
All structures and all lines, equipment and connections
in, over, under, and upon the streets of the City, wherever situated
or located, shall at all times be kept and maintained in a safe, suitable,
substantial condition and in good order and repair.
A.
Every three years after the effective date of a franchisee's
franchise agreement, the City may request the franchisee to conduct
a statistically valid random survey of City subscribers. Such survey
shall be provided to the City at least 30 days before its use for
the City's review and input. Each questionnaire shall be prepared
and conducted in good faith so as to provide reasonably reliable measures
of subscriber satisfaction with:
B.
The survey shall be conducted in conformity with such
requirements, including supervision and review of raw data, as the
City may prescribe. The franchisee may satisfy this requirement through
a telephone survey conducted by an independent person in the business
of regularly conducting telephone surveys or by inserting the survey
instrument in the regular monthly subscriber invoices.
C.
The franchisee shall make available to the City for
review the results of the survey and shall report in writing what
steps, if any, the franchisee is taking to implement the findings
of the poll survey, such as correcting problems and expanding services,
to the extent the City can maintain the confidentiality of the results.
The City shall be able to review the survey results at the franchisee's
office during normal business hours.
D.
If the franchisee is ever subject to "effective competition"
as defined by applicable federal law, it shall not be required to
comply with this survey requirement.
A.
The franchisee shall maintain a staffed local office
in the City which will be open at least during normal business hours.
B.
FCC standards. A franchisee shall at all times comply
with the customer service standards of the FCC as they may from time
to time be amended. In the absence of FCC customer service standards,
the franchisee shall comply with the standards below.
C.
Cable system office hours and telephone availability:
(1)
The franchisee will maintain a local, toll-free or
collect call telephone access line which will be available to its
subscribers 24 hours a day, seven days a week.
(a)
Trained franchisee representatives will be available
to respond to customer telephone inquiries during normal business
hours.
(b)
After normal business hours, the access line
may be answered by a service or an automated response system, including
an answering machine. Inquiries received after normal business hours
must be responded to by a trained franchisee representative on the
next business day.
(c)
The franchisee shall further maintain a maintenance
service which shall be promptly available to subscribers 24 hours
a day upon telephone request.
(2)
Under normal operating conditions, telephone answer
time by a customer representative, including wait time, shall not
exceed 30 seconds when the connection is made. If the call needs to
be transferred, transfer time shall not exceed 30 seconds. These standards
shall be met no less then 90% of the time under normal operating conditions,
measured on a quarterly basis.
(3)
The franchisee will not be required to acquire equipment
or perform surveys to measure compliance with the telephone answering
standards above unless a historical record of complaints indicates
a clear failure to comply.
(4)
Under normal operating conditions, the customer will
receive a busy signal less than 3% of the time.
D.
Installations, outages and service calls. Under normal
operating conditions, each of the following four standards will be
met no less than 95% of the time measured on a quarterly basis:
(1)
Standard installations will be performed within seven
business days after an order has been placed. Standard installations
are those that are located up to 150 feet from the existing distribution
system.
(2)
Excluding conditions beyond the control of the franchisee,
the franchisee's representatives will be available to begin working
on service interruptions within 24 hours, upon request. The franchisee
must begin actions to correct other service problems the next business
day after notification of the service problem.
(3)
The appointment window for installations, service
calls, and other installation activities will be either at a specific
time or, at a maximum, within a four-hour time block during normal
business hours. (The franchisee may schedule service calls and other
installation activities outside of normal business hours for the express
convenience of the customer.)
(4)
The franchisee may not cancel an appointment with
a customer after the close of business on the business day prior to
the scheduled appointment.
(5)
If the franchisee's representative is running late
for an appointment with a customer and will not be able to keep the
appointment as scheduled, the customer will be contacted. The appointment
will be rescheduled, as necessary, at a time which is convenient for
the customer.
E.
Communications between franchisee and cable subscribers.
(1)
Notifications to subscribers.
(a)
The franchisee shall provide written information
on each of the following areas at the time of installation of service,
at least annually to all subscribers, and at any time upon request:
[1]
Products and services offered;
[2]
Prices and options for programming services
and conditions of subscription to programming and other services;
[3]
Installation and service maintenance policies;
[4]
Instructions on how to use the cable service;
[5]
Channel positions for programming carried on
the system; and
[6]
Billing and complaint procedures, including
the address and telephone number of the City official who handles
cable issues.
(b)
Customers will be notified of any changes in
rates, programming services or channel positions as soon as possible
through announcements on the cable system and in writing. Notice must
be given to subscribers a minimum of 30 days in advance of such changes
if the change is within the control of the franchisee. In addition,
the franchisee shall notify subscribers 30 days in advance of any
significant changes in the other information required by the preceding
subsection.
(2)
Billing.
(a)
Bills will be clear, concise and understandable.
Bills must be fully itemized, with itemizations including, but not
limited to, basic and premium service charges and equipment charges.
Bills will also clearly delineate all activity during the billing
period, including optional charges, rebates, and credits.
(b)
In case of a billing dispute, the franchisee
must respond to a written complaint from a subscriber within 30 days.
(4)
Credits. Credits for service will be issued no later
than the customer's next billing cycle following the determination
that a credit is warranted.
A.
All rates and charges for basic cable service and
any other cable programming services, as defined by the Cable Act
and applicable FCC regulations, shall, to the extent not preempted
by state or federal law, be subject to regulation by the City.
B.
The City may utilize a rate consultant to advise it
on proposed rate changes and to assist it in the procedures and the
standards for review adopted by the FCC. A rate consultant may be
any person who has sufficient background and experience, in the sole
opinion of the City, to properly evaluate and analyze rates and charges.
A.
The franchisee shall at all times maintain:
(1)
A full and complete set of plans, records and as-built
maps showing the location of the cable television system installed
or in use in the City, exclusive of subscriber service drops and equipment
provided in subscribers' homes.
(2)
If requested by City, a summary of service calls,
identifying the number, general nature and disposition of such calls,
on a monthly basis to the extent kept in the regular course of business.
B.
Upon 48 hours' written notice, the franchisee shall
permit examination by any duly authorized representative of the City
of all franchisee property and facilities, together with any appurtenant
property and facilities of the franchisee situated within or outside
the City, and all records relating to the franchisee, provided that
they are necessary to enable the City to ascertain the franchisee's
compliance with this article and the franchise agreement. Such records
include all books, records, maps, plans, engineering reports and related
contracts, financial statements, service complaint logs, performance
test results, records of requests for service, and other like materials
of the franchisee. The franchisee shall have the right to be present
at any such examination.
C.
If any of the records described in the previous subsection
are proprietary in nature or must be kept confidential by state, federal,
or local law, upon proper request by the franchisee, such information
obtained during such an inspection shall be treated as confidential,
making it available only to those persons who must have access to
perform their duties on behalf of the City, including but not limited
to the Division of Finance, the Law Department and Commission members.
To the extent any state or federal requirement for privacy applies
to the information to be submitted, said law shall control.
D.
The City shall have the right to request copies of
any petitions, applications, communications, and reports submitted
by the franchisee or on its behalf to the FCC, Securities and Exchange
Commission, or any other federal or state regulatory commission or
agency having jurisdiction with respect to any matters affecting the
cable system authorized pursuant to this article and any franchise,
as such documents relate to the franchisee's operation of its system
under the franchise. Copies of responses from the regulatory agencies
to the franchisee shall likewise be furnished to the City upon request.
A.
In the event that the use of any property of the franchisee
within the franchise area or a portion thereof is discontinued for
a continuous period of 12 months, the franchisee shall be deemed to
have abandoned that franchise property.
B.
The City, upon such terms as City may impose, may
give the franchisee permission to abandon, without removing, any system
facility or equipment laid, directly constructed, operated, or maintained
under the franchise. Unless such permission is granted or unless otherwise
provided in this article, the franchisee shall remove all abandoned
aboveground facilities and equipment upon receipt of written notice
from the City and shall restore any affected street, alley, or public
property to its former state at the time such facilities and equipment
were installed, so as not to impair its usefulness. In removing its
plant, structures and equipment, the franchisee shall refill, at its
own expense, any excavation that shall be made by it and shall leave
all streets in as good condition as that prevailing prior to such
removal without materially interfering with any electrical or telephone
cable or other utility wires, poles, or attachments. The City shall
have the right to inspect and approve the condition of the streets,
cables, wires, attachments, and poles prior to and after removal.
The liability, indemnity, and insurance provisions of this article
and the security fund as provided herein shall continue in full force
and effect during the period of removal and until full compliance
by the franchisee with the terms and conditions of this section.
C.
Upon abandonment of any franchise property in place,
the franchisee, if required by the City, shall submit to the City
an instrument, satisfactory in form to the City, transferring to the
City the ownership of the franchise property abandoned.
D.
At the expiration of the term for which the franchise
is granted and a denial of any renewal, or upon its revocation or
earlier expiration, as provided for herein, in any such case without
renewal, extension, or transfer, the City shall have the right to
require the franchisee to remove, at its own expense, all aboveground
portions of the cable television system from all streets within the
City within a reasonable period of time, but which shall not be less
than 180 days.
E.
Notwithstanding anything to the contrary set forth
in this article, the franchisee may abandon any underground franchise
property in place so long as it does not materially interfere with
the use of the street in which such property is located or with the
use thereof by any public utility or other cable franchisee.
A.
In addition to any rights specifically reserved to
the City by this article, the City reserves to itself every right
and power which is required to be reserved by a provision of any ordinance
or under the franchise.
B.
Waiver.
(1)
The City shall have the right to waive any provision
of the franchise, except those required by federal or state regulation,
if the City determines that:
(2)
To be effective, such waiver shall be evidenced by
a statement in writing signed by a duly authorized representative
of the City. Waiver of any provision in one instance shall not be
deemed a waiver of such provision subsequent to such instance nor
be deemed a waiver of any other provision of the franchise unless
the statement so recites.
C.
The City shall have the right to delegate its administrative
authority unless specifically preempted by federal, state, or local
law.
All persons, including officers of any franchisee,
causing, participating in, or permitting any violation of any provision
of this article shall be severally or jointly liable therefor.
Any proceeding relating to enforcement or interpretation
of the provisions of this article or any franchise granted pursuant
to it shall, if brought in state court, be venued in the County of
Labette, in the State of Kansas, or if brought in federal court shall
be in the Federal District Court in the State of Kansas.
A.
In the event that the franchisee's performance of
any of the terms, conditions, or obligations required by this article
or a franchise granted hereunder is prevented by a cause or event
not within the franchisee's control, such inability to perform shall
be deemed excused and no penalties or sanctions shall be imposed as
a result thereof.
B.
For the purpose of this section, causes or events
not within the control of the franchisee shall include but not be
limited to acts of God, strikes, sabotage, riots or civil disturbances,
restraints imposed by order of a governmental agency or court, failure
or loss of utilities, explosions, acts of public enemies, and natural
disasters such as floods, earthquakes, landslides, and fires.
The franchisee shall not be relieved of its
obligation to comply promptly with any of the provisions of the franchise
by any failure of the City to enforce prompt compliance.
If any provision of this article is held by
any court or by any federal or state agency of competent jurisdiction
to be invalid as conflicting with any federal or state law, rule,
or regulation now or hereafter in effect, or is held by such court
or agency to be modified in any way in order to conform to the requirements
of any such law, rule, or regulation, such provision shall be considered
a separate, distinct, and independent part of this article, and such
holding shall not affect the validity and enforceability of all other
provisions hereof. In the event that such law, rule, or regulation
is subsequently repealed, rescinded, amended, or otherwise changed,
so that the provision hereof which had been held invalid or modified
is no longer in conflict with such law, rule, or regulation, said
provision shall thereupon return to full force and effect and shall
thereafter be binding on the City and franchisee, provided that the
City shall give the franchisee 30 days' written notice of such change
before requiring compliance with said provision or such longer period
of time as may be reasonably required for the franchisee to comply
with such provision.
