An Ordinance of the City of Bucklin, Kansas Granting a Franchise to United Communications Association, Inc., for the Construction and Operation of a Communications System The City of Bucklin, Kansas, having determined that the financial, legal and technical ability of United Communications Association, Inc., a Kansas corporation, is reasonably sufficient to provide services, facilities, and equipment necessary to meet the future cable-related and telecommunications-related needs of the community, does hereby ordain as follows:
SECTION 1
Definition of Terms
For the purpose of this ordinance (“the Ordinance”), the following terms, phrases, words, and abbreviations shall have the meanings ascribed to them below. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number:
a. “Affiliate” means an entity which owns or controls, is owned or controlled by, or is under common ownership or control with Grantee.
b. “Basic Cable” means the tier of Cable Service regularly provided to all Subscribers that includes the retransmission of local broadcast television signals.
c. “Cable Service” means (I) the one-way transmission to Subscribers of Video Programming or other programming service, and (ii) Subscriber interaction, if any, which is required for the selection or use of such Video Programming or other programming service.
d. “Communications System” means 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, and all facilities used in the provision of Telecommunications Service and other service to Subscribers.
e. “FCC” means Federal Communications Commission, or successor governmental entity thereto.
f. “Franchise” means the initial authorization, or renewal thereof, issued by Franchising Authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, or otherwise, which authorizes construction and operation of the Communications System for the purpose of offering Cable Service, Telecommunications Service or other service to Subscribers.
g. “Franchising Authority” means the City of Bucklin, Kansas or the lawful successor, transferee, or assignee thereof.
h. “Grantee” means United Communications Association, Inc., or the lawful successor, transferee, or assignee thereof.
i. “Gross Revenues” means the monthly revenues for the provision of Basic Cable received by Grantee from Subscribers located within the Service Area. “Gross Revenues” does not include: (I) any revenues received from any advertising carried on the Communications System; (ii) any taxes on Cable Service which are imposed directly or indirectly on any Subscriber by any governmental unit or agency, and which are collected by Grantee on behalf of such governmental unit or agency; (iii) any revenues derived from services sold on a per channel or per view basis; or (iv) any revenues derived from installation or repair charges.
j. “Person” means an individual, partnership, association, joint stock company, trust corporation, or governmental entity.
k. “Public Way” means the surface of, and the 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 Franchising Authority in the Service Area which shall entitle Franchising Authority and Grantee to the use thereof for the purpose of installing, operating, repairing, and maintaining the Communications System. “Public Way” also means any easement now or hereafter held by Franchising Authority 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 Franchising Authority and Grantee to the use thereof for the purposes of installing or transmitting Grantee’s Telecommunications Service or other service over poles, wires, cables, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary and appurtenant to the Communications System.
1. “Service Area” means the present municipal boundaries of Franchising Authority if Franchising Authority is a city, and shall include any additions thereto by annexation or other legal means; and means the county boundaries of Franchising Authority if Franchising Authority is a county.
m. “Subscriber” means a user of the Communications System who lawfully receives Cable Service, Telecommunications Service or other service there from with Grantee’s express permission.
n. “Telecommunications Service” means the offering of telecommunications for a fee directly to the public, or to such classes as to be effectively available directly to the public, regardless of the facilities used.
o. “Video Programming” means programming provided by, or generally considered comparable to programming provided by, a television broadcast station.
SECTION 2
Grant of Franchise
2.1 Grant. Franchising Authority hereby grants to Grantee a nonexclusive Franchise which authorizes Grantee to construct and operate a Communications System and offer Cable Service, Telecommunications Service and other service in, along, among, upon, across, above, over, under, or in any manner connected with Public Ways within the Service Area and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across, or along any Public Way and all extensions thereof and additions thereto, such poles, wire, cable, conductors, ducts, conduits, vaults, manholes, pedestals, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the Communications System.
2.2 Term. The Franchise granted pursuant to this Ordinance shall be for an initial term of twenty (20) years from the effective date of the Franchise as set forth in Section 2.3, unless otherwise lawfully terminated in accordance with the terms of this Ordinance.
2.3 Effective Date. This ordinance shall be effective upon passage by the City Council and publication in the official city newspaper.
2.4 General Manager Craig Mock and the Bucklin City commissioners, at the February 14, 2006 meeting, mutually agreed to delete this section.
SECTION 3
Standards of Service
3.1 Conditions of Street Occupancy. All transmission and distribution structures, poles, other lines, and equipment installed or erected by Grantee pursuant to the terms hereof shall be located so as to cause a minimum of interference with the proper use of Public Ways and with the rights and reasonable convenience of property owners who own property that adjoins any of such Public Ways.
3.2 Restoration of Public Ways. If during the course of Grantee’s construction, operation, or maintenance of the Communications System there occurs a disturbance of any Public Way by Grantee, it shall, at its expense, replace and restore such Public Way to a condition reasonably comparable to the condition of the Public Way existing immediately prior to such disturbance.
3.3 Relocation at Request of Franchising Authority. Upon its receipt of reasonable advance notice, not to be less than five (5) business days, Grantee shall, at its own expense, protect, support, temporarily disconnect, relocate in the Public Way, or remove from the Public Way, any property of Grantee when lawfully required by Franchising Authority by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by Franchising Authority; but, Grantee shall in all cases have the right of abandonment of its property. If public funds are available to any company using such street, easement, or right of way for the purpose of defraying the cost of any of the foregoing, such funds shall also be made available to Grantee.
3.4 Relocation at Request of Third Party. Grantee shall, on the request of any Person holding a building moving permit issued by Franchising Authority, temporarily raise or lower its wires to permit the moving of such building, provided: (a) the expense of such temporary raising or lowering of wires is paid by such Person, including, if required by Grantee, making such payment in advance; and (b) Grantee is given not fewer than ten (10) business days advance written notice to arrange for such temporary wire changes.
3.5 Trimming of Trees and Shrubbery. Grantee shall have the authority to trim trees or other natural growth overhanging any of its Communications System in the Service Area so as to prevent branches from coming in contact with Grantee’s wires, cable, or other equipment. Grantee shall be permitted to charge Persons who own or are responsible for, such trees or natural growth for the cost of such trimming, provided that similar charges are assessed by and paid to the utilities of Franchising Authority for tree trimming. Grantee shall reasonably compensate Franchising Authority or property owner for any damages caused by such trimming, or shall, in its sole discretion and at its own cost and expense, reasonably replace all trees or shrubs damaged as a result of any construction of the System undertaken by Grantee. Such replacement shall satisfy any and all obligations Grantee may have to Franchising Authority or property owner pursuant to the terms of this Section.
3.6 Safety Requirements. Construction, installation, and maintenance of the Communications System shall be performed in an orderly and workmanlike manner. All such work shall be performed in substantial accordance with applicable FCC or other federal, state, and local regulations. The Communications System shall not unreasonably endanger or interfere with the safety of Persons or property in the Service Area.
3.7 Aerial and Underground Construction. In those areas of the Service Area where all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are underground, Grantee likewise shall construct, operate, and maintain all of its transmission and distribution facilities underground; provided that such facilities are actually capable of receiving Grantee’s cable and other equipment without technical degradation of the Communications System’s signal quality. In those areas of the Service Area where the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are both aerial and underground, Grantee shall have the sole discretion to construct, operate, and maintain all of its transmission and distribution facilities, or any part thereof, aerially, or underground. Nothing contained in the Section 3. 7 shall require Grantee to construct, operate, and maintain underground any ground-mounted appurtenances such as subscriber taps, line extenders, system passive devices (splitter, directional couplers), amplifiers, power supplies, pedestals, or other related equipment. Notwithstanding anything to the contrary contained in this Section 3.7, in the event that all of the transmission or distribution facilities of the respective public utilities providing telephone communications and electric services are placed underground after the effective date of this Ordinance, Grantee shall only be required to construct, operate, and maintain all of its transmission and distribution facilities underground if it is given reasonable notice and access to the public utilities’ facilities at the time that such are placed underground.
3.8 Required Extensions of Service. The Communications System, as constructed as of the date of the passage and final adoption of this Ordinance, substantially complies with the material provisions hereof. Grantee is hereby authorized to extend the Communications System as necessary, as desirable, or as required pursuant to the terms hereof within the Service Area. Whenever Grantee shall receive a request for service from at least (15) Subscribers within 1320 cable-bearing strand feet (one quarter cable mile) of its trunk or distribution cable, it shall extend its Communications System to such Subscribers at no cost to such Subscribers for system extension, other than the usual connection fees for all Subscribers; provided that such extension is technically feasible, and if it will not adversely affect the operation, financial condition, or market development of the Communications System, or as provided for under Section 3.9 of this Ordinance.
3.9 Subscriber Charges for Extensions of Service. No Subscriber shall be refused service arbitrarily. However, for unusual circumstances, such as a Subscriber’s request to locate his cable drop underground, existence of more than one hundred fifty (150) feet of distance from distribution cable to connection of service to Subscribers, or a density of fewer than fifteen (15) Subscribers per 1320 cable-bearing strand feet of trunk or distribution cable, Cable Service, Telecommunications Service or other service may be made available on the basis of a capital contribution in aid of construction, including cost of material, labor, and easements. For the purpose of determining the amount of capital contribution in aid of construction to be borne by Grantee and Subscribers in the area in which Cable Service, Telecommunications Service or other service may be expanded, Grantee shall contribute an amount equal to the construction and other costs per mile, multiplied by a fraction whose numerator equals the actual number of potential Subscribers per 1320 cable-bearing strand feet of its trunks or distribution cable, and whose denominator equals fifteen (15) subscribers. Potential Subscribers shall bear the remainder of the construction and other costs on a pro rata basis. Grantee may require payment in advance of the capital contribution in aid of construction borne by such potential Subscribers.
3.10 Service to Public Buildings. Grantee shall provide without charge one (1) outlet of Basic Cable to Franchising Authority’s office building(s) and public school building(s) that are passed by its Communications System. The outlets of Basic Cable shall not be used to distribute or sell Cable Service in or throughout such buildings; nor shall such outlets be located in common or public areas open to the public. Users of such outlets shall hold Grantee harmless from any and all liability or claims arising out of their use of such outlets, including, but not limited to, those arising from copyright liability. Notwithstanding anything to the contrary set forth in this Section 3.10, Grantee shall not be required to provide an outlet to such buildings where the drop line from the feeder cable to such buildings or premises exceeds one hundred fifty (150) cable feet, unless it is technically feasible and it will not adversely affect the operation, financial condition, or market development of the Communications System to do so, or unless the appropriate governmental entity agrees to pay the incremental cost of such drop line in excess of 150 cable feet. In the event that additional outlets of Basic Cable are provided to such buildings, the building owner shall pay the usual installation fees associated therewith, including, but not limited to, labor and materials. Upon request of Grantee, the building owner may also be required to pay the service fees associated with the provision of Basic Cable and the additional outlets relating thereto.
SECTION 4
Regulation by Franchising Authority
4.1 Franchise Fee
(A) Grantee shall pay Franchising Authority a franchise fee equal to two percent (2%) of Gross Revenues (defined in Section 1) received by Grantee on an annual basis; provided however, that Grantee may credit against any such payments: (I) any tax, fee, or assessment of any kind imposed by Franchising Authority or other governmental entity on a cable operator, or Subscriber, or both, solely because of their status as such; (ii) any tax, fee or assessment of general applicability which is unduly discriminatory against cable operators or Subscribers (including any such tax, fee, or assessment imposed, both on utilities and cable operators and their services), and (iii) any other special tax, assessment, or fee such as a business, occupation, and entertainment tax. For the purpose of this Section, the 12-month period applicable under the Franchise for the computation of the franchise fee shall be a calendar year, unless otherwise agreed to in writing by Franchising Authority and Grantee. The franchise fee payment shall be due and payable ninety (90) days after the close of the preceding calendar year. Each payment shall be accompanied by a letter from a representative of Grantee showing the basis for the computation.
(B) Limitation on Franchise Fee Actions. The period of limitation for recovery of any franchise fee payable hereunder shall be five (5) years from the date on which payment by Grantee is due. Unless within five (5) years from and after such payment due date Franchising Authority initiates a lawsuit for recovery of franchise fees in a court of competent jurisdiction, recovery shall be barred and Franchising Authority shall be stopped from asserting any claims whatsoever against Grantee relating to alleged franchise fee deficiencies.
4.2 Rates and Charges. Franchising Authority may not regulate the rates for the provision of Cable Service, Telecommunications Service or other service, including, but not limited to ancillary charges relating thereto, except as expressly provided herein and except as authorized pursuant to federal and state law. From time to time, and at any time, Grantee has the right to modify its rates and charges, at its discretion and without consent of Franchising Authority, including, but not limited to, the implementation of additional charges and rates; provided, however, that Grantee shall give notice to Franchising Authority of any such modifications or additional charges thirty (30) days prior to the effective date thereof.
4.3 Renewal of Franchise. Franchising Authority and Grantee agree that any proceedings undertaken by Franchising Authority that relate to the renewal of the Franchise shall be governed by and comply with the provisions of Section 626 of the Communications Act of 1934, as amended, unless the procedures and substantive projections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provision of federal or state law. In addition to the procedures set forth in such Section 626, Franchising Authority agrees to notify Grantee of its preliminary assessments regarding the identity of future cable-related community needs and interests, as well as the past performance of Grantee under the then current Franchise term. Franchising Authority further agrees that such a preliminary assessment shall be provided to Grantee prior to the time that the four (4) month period referred to in subsection (c) of such Section 626 is considered to begin. Notwithstanding anything to the contrary set forth in this Section 4.3, Grantee and Franchising Authority agree that at any time during the term of the then current Franchise, while affording the public appropriate notice and opportunity to comment, Franchising Authority and Grantee may agree to undertake and finalize negotiations regarding renewal of the then current Franchise and Franchising Authority may grant a renewal thereof. Grantee and Franchising Authority consider the terms set forth in this Section to be consistent with the express provisions of such Section 626.
4.4 Conditions of Sale. Except to the extent expressly required by federal or state law, if a renewal or extension of the Franchise is denied or the Franchise is lawfully terminated, and Franchising Authority either lawfully acquires ownership of the Communications System or by its actions lawfully effects a transfer of ownership of the Communications System to another party, any such acquisition or transfer shall be at a fair market value, determined on the basis of the Communications System valued as a going concern.
Grantee and Franchising Authority agree that in the case of a lawful revocation of the Franchise, at Grantee’s request, which shall be made in its sole discretion, Grantee shall be given a reasonable opportunity to effectuate a transfer of its Communications System to a qualified third party. Franchising Authority further agrees that during such a period, it shall authorize Grantee to continue to operate pursuant to the terms of its prior Franchise; however, in no event shall such authorization exceed a period of time greater than six (6) months from the effective date of such revocation. If, at the end of that time, Grantee is unsuccessful in procuring a qualified transferee or assignee of its Communications System which is reasonably acceptable to Franchising Authority, Grantee and Franchising Authority may avail themselves of any rights they may have pursuant to federal or state law; it being further agreed that Grantee’s continued operation of its Communications System during the six (6) months period shall not be deemed to be a waiver, nor an extinguishment of, any rights of either Franchising Authority or Grantee. Notwithstanding anything to the contrary set forth in the Section 4.4, neither Franchising Authority nor Grantee shall be required to violate federal or state law.
4.5 Transfer of Franchise. Grantee’s right, title or interest in the Franchise shall not be sold, transferred, assigned, or otherwise encumbered, other than to an Affiliate, without the prior consent of Franchising Authority, which consent shall not be unreasonably withheld. Grantee shall give Franchising Authority at least thirty (30) days’ notice of any such proposed assignment, sale or transfer. If Grantee does not receive written notice of Franchising Authority’s objection to such assignment within thirty (30) days receipt of notice of such proposed assignment, sale, or transfer, Franchising Authority’s consent shall be deemed to have been given. No such consent shall be required, however, for a transfer in trust, by mortgage, by other hypothecation, or by assignment of any rights, title, or interest of Grantee in the Franchise or Communications System in order to secure indebtedness.
4.6 Pole Rental. The Grantee may use the utility poles of the City on which to place and affix its cable, conduits, and other necessary fixtures and fittings for its distribution system, but that said installations shall be made in such a way as to not to interfere with the primary use for which the said utility poles are intended, or in such a way as to constitute a hazard or danger to persons or property. That for each utility pole, owned by the City and so use by the grantee, there shall be an annual rental charge of $1.00 payable on the 1st day of July of each year.
4.7 Performance Review. Within six (6) months prior to the expiration of each successive five (5) year period of the term hereof, Franchising Authority may initiate a review of Grantee’s performance under the Franchise. If Franchising Authority determines that Grantee’s performance is inadequate, it shall notify Grantee in writing of the specific areas of inadequacy. Grantee shall have one hundred twenty (120) days to correct the inadequacy or, if the inadequacy by its nature cannot be corrected within the 120-day period, to attain material progress toward correction of the inadequacy and to notify Franchising Authority of the projected date of correction of the inadequacy. Failure to comply with this requirement entitles Franchising Authority to proceed with termination proceedings under Section 7.3.
SECTION 5
Compliance and Monitoring
5.1 Books and Records. Grantee agrees that Franchising Authority may review such of Grantee’s books and records, during normal business hours and on a nondisruptive basis, as are reasonably necessary to monitor compliance with the terms hereof. Such records include, but are not limited to, any public records required to be kept by the Grantee pursuant to the rules and regulations of the FCC. Notwithstanding anything to the contrary set forth herein, Grantee shall not be required to disclose information which it reasonably deems to be proprietary or confidential in nature. Franchising Authority agrees to treat any information disclosed to it by Grantee as confidential, and to disclose it only to employees, representatives, and agents of the Franchising Authority that have a need to know, or in order to enforce the provisions hereof.
SECTION 6
Insurance, Indemnification, and Bonds or Other Surety
6.1 Insurance Requirements. Grantee shall maintain in full force and effect during the term of the Franchise, as its own cost and expense, Comprehensive General Liability Insurance in the amount of $1,000,000 combined single limit for bodily injury, and property damage. Such insurance shall designate Franchising Authority as an additional insured.
6.2 Indemnification. Grantee agrees to indemnify, save and hold harmless, and defend Franchising Authority, its officers, boards and employees, from and against any liability for damages and for any liability or claims resulting from property damage or bodily injury (including accidental death) which arise out of Grantee’s construction, operation or maintenance of its Communications System, including, but not limited to, reasonable attorney’s fees and costs.
6.3 Bonds and other Surety. Except as expressly provided herein, Grantee shall not be required to obtain or maintain bonds or other surety as a condition of being awarded the Franchise or continuing its existence. Franchising Authority acknowledges that the legal, financial, and technical qualifications of Grantee are sufficient to afford compliance with the terms of the Franchise and the enforcement thereof. Grantee and Franchising Authority recognize that the costs associated with bonds and other surety may ultimately be borne by the Subscribers in the form of increased rates for Cable Service, Telecommunications Service or other service. In order to minimize such costs, Franchising Authority agrees to require bonds and other surety only in such amounts and during such times as there is a reasonably demonstrated need therefore. Franchising Authority agrees that in no event, however, shall it require a bond or other related surety in an aggregate amount greater than $10,000, conditioned upon the substantial performance of the material terms, covenants, and conditions of the Franchise. Initially, no bond or other surety shall be required. In the event that one is required in the future, Franchising Authority agrees to give Grantee at least sixty (60) days prior written notice thereof stating the exact reason for the requirement. Such reason must demonstrate a change in Grantee’s legal, financial, or technical qualifications which would materially prohibit or impair its ability to comply with the terms of the Franchise or afford compliance therewith.
SECTION 7
Enforcement and Termination of Franchise
7.1 Notice of Violation. In the event that Franchising Authority believes that Grantee has not complied with the terms of the Franchise, it shall notify Grantee in writing of the exact nature of the alleged default.
7.2 Grantee’s Right to Cure or Respond. Grantee shall have sixty (60) days from receipt of the notice described in Section 7.1: (a) to respond to Franchising Authority contesting the assertion of default; (b) to cure such default; or ( c) in the event that, by the nature of the default, such default cannot be cured within the sixty (60) day period, to initiate reasonable steps to remedy such default and to notify Franchising Authority of the steps being taken and the projected date that they will be completed.
7.3 Public Hearing. In the event that Grantee fails to respond to the notice described in Section 7.1 pursuant to the procedures set forth in Section 7.2, or in the event that the alleged default is not remedied within one hundred twenty (120) days after Grantee is notified of the alleged default pursuant to Section 7.1, Franchising Authority shall schedule a public meeting to investigate the default. Such public meeting shall be held at the next regularly scheduled meeting of Franchising Authority which is scheduled at a time no fewer than five (5) business days there from. Franchising Authority shall notify Grantee of the time and place of such meeting and provide Grantee with an opportunity to be heard.
7.4 Enforcement. Subject to applicable federal and state law, in the event Franchising Authority determines, after such meeting, that Grantee is in default of any provision of the Franchise, Franchising Authority may:
(a) Foreclose on all or any part of any security provided under the Franchise, if any, including, without limitation, any bonds or other surety; provided, however, that the foreclosure shall only be in such a manner and in such amount as Franchising Authority reasonably determines is necessary to remedy the default;
(b) Commence an action at law for monetary damages or seek other equitable relief;
(c) In the case of a substantial default of a material provision of the Franchise, declare the Franchise Agreement to be revoked; or
(d) Seek specific performance of any provision which reasonably lends itself to such remedy, as an alternative to damages. Grantee shall not be relieved of any of its obligations to comply promptly with any provision of the Franchise by reason of any failure of Franchising Authority to enforce prompt compliance.
7.5 Acts of God. Grantee shall not be held in default of the provisions of the Franchise, nor suffer any enforcement or penalty relating thereto, where such alleged default is caused by strikes, acts of God, power outages, or other events reasonably beyond its ability to control.
SECTION 8
Unauthorized Reception
8.1 Misdemeanor. In addition to those criminal and civil remedies provided by state and federal law, it shall be a misdemeanor for any Person to create or make use of any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any part of the Communications System without the express consent of Grantee. Further, · without the express consent of Grantee, it shall be a misdemeanor for any Person to tamper with, remove, or injure any property, equipment, or part of the Communications System or any means of receiving Cable Service, Telecommunications Service, or other service. Subject to applicable federal and state laws, Franchising Authority shall incorporate into its criminal code, if not presently a part thereof, criminal misdemeanor law which shall enforce the intent of this Section 8.1.
SECTION9
Miscellaneous Provisions
9.1 Documents Incorporated and Made a Part hereof. The following documents shall be incorporated herein by this reference, and in the case of a conflict or ambiguity between or among them, the document of latest date shall govern:
(a) Any enabling ordinance in existence as of the date hereof; and
(b) Any franchise agreement between Grantee and Franchising Authority reflecting the renewal of the Franchise, if any.
9.2 Preemption. If the FCC or any other federal or state body or agency shall now or hereafter exercise any paramount jurisdiction over the subject matter of the Franchise, then to the extent such jurisdiction shall preempt and supersede or preclude the exercise of the like jurisdiction by Franchising Authority, the jurisdiction of Franchising Authority shall cease and no longer exist.
9.3 Actions of Franchising Authority. In any action by Franchising Authority or representative thereof mandated or permitted under the terms hereof, such party shall act in reasonable, expeditious and timely manner. Furthermore, in any instance where approval or consent is required under the terms hereof, such approval or consent shall not be unreasonably withheld.
9.4 Notice. Unless expressly otherwise agreed between the parties, every notice or response to be served upon Franchising Authority or Grantee shall be in writing, and shall be deemed to have been duly given to the required party five (5) business days after having been posted in a properly sealed and correctly addressed envelope by certified or registered mail, postage prepaid, at a Post Office or branch thereof regularly maintained by the U.S. Postal Service.
The notices or responses to Franchising Authority shall be addressed as follows:
City of Bucklin
117 W Oak St
Bucklin, Kansas 67834
The notices or responses to Grantee shall be addressed as follows:
United Communications Association, Inc.
1107 McArtor Road
PO Box 117
Dodge City, Kansas 67801
Franchising Authority and Grantee may designate such other address or addresses from time to time by giving notice to the other.
9.5 Subscriber Complaint Services. Grantee shall provide subscriber services on the following basis:
(A) Grantee shall:
(1) Provide a toll-free telephone service, on seven day a week, 24 hour a day basis, capable of forwarding subscriber complaints to Grantee.
(2) Respond to subscriber complaints within 36 hours after the customer calls in, except for acts of God.
(3) In other cases where service is not restored within thirty-six (36) hours, except for Acts of God, Grantee shall upon customer request refund or credit an appropriate portion of the monthly charge for tier of service which is unavailable to the subscriber.
(B) Grantee shall cooperate with the City to maintain appropriate subscriber complaint procedures.
9.6 Descriptive Headings. The captions to Sections contained herein are intended solely to facilitate the reading thereof. Such captions shall not affect the meaning or interpretation of the text herein.
9. 7 Severability. If any Section, sentence, paragraph, term, or provision hereof is determined to be illegal, invalid, or unconstitutional, by any court of competent jurisdiction or by any state or federal regulatory authority having jurisdiction thereof, such determination shall have no effect on the validity of any other Section, sentence, paragraph, term or provision hereof, all of which shall remain in full force and effect for the term of the Franchise, or any renewal or renewals thereof.
(03-15-2005)