AN ORDINANCE OF THE CITY OF ELLIS, KANSAS, GRANTING TO KAYS, INC., ITS SUCCESSORS, LESSEES AND ASSIGNS, FOR A PRIMARY TERM OF 10 YEARS TO BE EXTENDED TO 15 YEARS, THE RIGHT, AUTHORITY, POWER AND FRANCHISE TO ESTABLISH, CONSTRUCT, ACQUIRE, MAINTAIN, AND OPERATE A COMMUNITY ANTENNA AND CLOSED CIRCUIT ELECTRONIC SYSTEM WITHIN THE CITY OF ELLIS, KANSAS, AND ENVIRONS THEREOF, AND TO USE AND OCCUPY THE STREETS AND OTHER PUBLIC PLACES OF THE CITY OF ELLIS, KANSAS, FOR SUCH COMMUNITY ANTENNAE AND CLOSED CIRCUIT ELECTRONIC SYSTEM, AND REPEALING PAST ORDINANCES IN CONFLICT.
Section 1. Definitions. For the purpose of this ordinance, the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given herein. 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, provided further that the word shall is to be construed as mandatory.
(a) City - shall mean the City of Ellis, Kansas, a municipal corporation, or its successors, and shall include the city in its present incorporated form or in any later reorganized, consolidated, enlarged or reincorporated form.
(b) Council - shall mean the present governing body of the city or any future board constituting the legislative body of the city.
(c) Franchise - shall mean and include the right to conduct and operate a community antennae television system within the city subject to the terms and conditions hereinafter stated in the above-captioned ordinance.
(d) Franchisee - shall mean the person, firm, or corporation to whom or which a franchise, as hereinabove defined, is granted by the commission under this ordinance, and the lawful successors, transferee, lessee, or assignee of the person, firm, or corporation.
(e) Street - shall mean any public street, roadway, highway, alley or other public right-of-way now or hereafter subject to the jurisdiction and regulation of the city as provided by the laws of the State of Kansas, and any subsequent amendments thereof.
(f) Community Antennae Television System - hereinafter referred to as CATV System shall mean an electronic system with properties and facilities so constructed as to be used for the interception and receipt of electromagnetic radiation, and the transmission and distribution of same to subscribers by means of cable and other related facilities.
(g) Subscriber - shall mean any person which receives from the franchisee herein named, the services of the franchisee’s community antennae system.
(h) Person - shall mean any individual or association of individuals, or any firm, corporation or other business organization.
(i) Gross Receipts -The term gross receipts as applied to sales and services of community antennae and close circuit electronic service, shall include basic cable channels sold for domestic, residential or commercial consumption. This shall not include installation, repair and maintenance charges.
(j) Basic Cable - The term basic cable as used herein shall mean those cable services offered as the first tier of services to subscribers and shall include the minimum of services sold or extended by franchisee to subscribers.
(k) Non-Basic Cable - The term non-basic cable as used herein shall mean all of those cable services offered by franchisee in addition to or supplemental to basic cable, and shall include any and all second tier or premium services sold or extended by franchisee to subscribers.
Section 2. Grant of Non-Exclusive Franchise. After public hearings affording an opportunity to be heard to all interested parties, and after a review of the qualification of KAYS, Inc.,and after determining that to the best of their knowledge KAYS, Inc., is legally qualified, of good reputation, adequately financed, and technically competent to provide community antennae television services to the city and after determining that the construction arrangements of KAYS, Inc., are adequate and feasible, there is hereby granted unto KAYS, Inc., a non-exclusive franchise to construct, erect, operate and maintain a community antennae television system within the city, and in so doing to use the streets of the city by erecting, installing, constructing, repairing, replacing, reconstructing, maintaining and retaining in, on, upon, or across any such streets, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to a CATV system, and in addition, so to use, operate and provide for all or part of such facilities by service offerings obtained from any franchises or operating utility company providing service within the city.
Section 3. Term of Franchise. The term of this franchise ordinance shall not take effect unless and until the same shall have been read in full at three regular meetings of the governing body of the city and immediately thereafter published in the official city paper once a week for two consecutive weeks, and until 60 days from the date of its final passage, and then shall take effect only in conformity with the laws of the State of Kansas. The conditions set forth in this franchise ordinance continue for a term of 10 years from the date and shall continue for an additional five years thereafter unless the city shall have notified the franchisee by writing on or before the beginning of the 9th year of this franchise to the contrary, subject to the provisions of Section 11 herein. Franchisee shall indicate acceptance of this agreement or the lack thereof, by filing accordingly such indication with the city clerk within 30 days of final passage of this ordinance.
Section 4. Standards for Construction of Franchisee’s Facilities. Any construction of facilities after the effective date of this ordinance shall comply with the following standards:
(a) The construction of the properties and facilities of the franchisee’s CATV system shall conform, at least, to the standards of the National Electrical Code of the National Board of Fire Underwriters in the latest edition thereof, at the time any such properties and facilities shall be constructed or reconstructed, provided further that the construction shall be in conformance with all laws and regulations of the United States of America and the State of Kansas and any administrative agency thereof, having jurisdiction to regulate the construction of the CATV system.
(b) All transmission and distribution structures, lines and equipment erected by the franchisee within the city shall be so located as to cause minimum interference with the proper use of streets, easements, sidewalks, alleys and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who join any of the streets, easements, sidewalks, alleys or other public ways and places.
(c) In case of disturbance caused by the franchisee or any street or paved area, the franchisee shall, at its expense and in a manner approved by the city, replace and restore such street or paved area in as good condition as theretofore existed.
(d) The franchisee shall have the authority, in conformity with the ordinances of the city including any ordinances presently existing or which may be passed at any point in the future, and under the supervision of the governing body of the city and within the city limits, to trim trees which are located upon and overhang the public streets and other public ways of the city, so as to prevent the branches of such trees from coming in contact with the franchisee’s properties.
(e) The franchisee shall not place poles or other fixtures where the same will interfere with any existing gas, electric or telephone fixtures, water hydrants or mains, or sewer mains, and all such poles or other fixtures placed in any street shall be placed at the outer edge of existing or proposed sidewalk and inside the curb line, and those placed in alleys shall be placed close to the line of the lot abutting on the alley, and then in such a manner as not to interfere with the usual travel on the streets, alleys and public ways.
Section 5. Operating Standards. The franchisee’s CATV system shall be constructed, operated and maintained in accordance with the highest accepted standards of the community antennae television industry to insure that the subscriber receives the highest quality of service and shall at all times be in conformance with the Federal Communications Commission rules, regulations and proof of performance test provisions.
Section 6. Additional Standards of Operations. The franchisee shall comply with the following additional standards of operations:
(a) The franchisee shall at all times make and keep full and complete plats, maps and records showing exact location of its facilities located within the public ways of the city. A copy of such records shall be kept within the city and available for inspection by the city superintendent.
(b) The franchisee shall, at its expense, protect, support, temporarily disconnect, relocated in the same street or other public place, or remove from the street or other public place, any property of the franchise when lawfully required by the city by reason of traffic conditions, public safety, street vacation, 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 the city; but, the franchisee may in all cases have the right of abandonment of its property, subject to city ordinances and approval, if federal and state funds are available to any utility company for the purpose of defraying the cost of any of the foregoing, such funds shall also be made available to the franchisee if the federal or state regulations permit.
(c) The franchise shall, on the request of any person holding a building moving permit issued by the city, temporarily raise or lower its wires to permit the moving of a building. the expense of such temporary removal, and of raising or lowering of wires shall be paid by the person requesting the same, and the franchisee shall have the authority to require such payment in advance. The franchisee shall be given no less than 48 hours advance notice to arrange for such temporary wire changes.
(d) The franchisee will limit failures to a minimum by locating and correcting malfunctions promptly, but in no event longer than 24 hours after notice has been given except the time shall be extended when the performance of this obligation is presented by an act of God or the same is otherwise made impossible because of circumstances over which the franchisee has no control; and that the franchise shall provide its subscribers with facilities for receiving requests and complaints for service. Should a subscriber have an unresolved complaint regarding cable television operation, the subscriber shall be entitled to file his or her complaint with the city clerk, who has primary responsibility for the continuing administration of the franchise and procedures of resolving complaints, and thereafter to meet jointly with the representative of the franchisee within 30 days to fully discuss and resolve such matters. The franchisee shall notify each subscriber of his or her rights to such a procedure if the complaint is not resolved to satisfaction of subscriber within 15 days.
(e) The franchisee shall at all times employ ordinary care and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injuries, or nuisances to the public. All structures and all lines, equipment, and connections in, over, above, under, and upon all streets of the franchise area shall be kept and maintained in a safe and suitable condition and in good order and repair.
Section 7. Indemnification of City. It is expressly understood and agreed by and between the city and the franchisee that the franchisee shall protect and hold the city harmless from all claims, actions, suits, liability, loss, expense or damages of every kind and description, court costs, and reasonable attorney’s fees, which may accrue to or be suffered or claimed by any persons arising out of the negligence of the franchisee in the ownership, construction, repair, replacement, maintenance and operation of the CATV system, provided the city gives prompt notice of any such claims, actions, and suits, without limitations, in writing. The franchisee shall maintain full force and effect during the life of any franchise, public liability insurance in an insurance company with a national rating acceptable to the city. The insurance shall be in the sum of no less than $500,000 for personal injury to any one person; $1,000,000 for personal injury in any one accident and $500,000 for property damage in any one accident. All such insurance may contain reasonable deductible provisions not to exceed $1,000 for any type of coverage, and the city shall be named as an additional insured. The city may require that any and all investigation of claims made by any person against the city arising out of any use or misuses of privileges granted to the franchise hereunder shall be made by, or at the expense of the franchisee or its insurer. The franchise may bring its obligations to carry any insurance required hereby within the coverage of any so- called blanket policy or policies of insurance now or hereafter carried, by appropriate amendment, endorsement, or otherwise, provided, however, the interest of the city shall be as fully protected thereby as if the franchisee has obtained individual policies of insurance, and the city a named insured in any policy. The policy, or certificate of insurance, will be approved by the city attorney, and filed in the office of the city clerk; the city will receive prior notice of any intent to cancel insurance by the issuing company.
Section 8. Extensions. The franchisee is hereby authorized to extend the existing system within the franchise area to the extent that such is or may become economically feasible. The franchisee acknowledges the city from time to time may add additional land to the city limits by annexation to which franchisee is obligated to serve under this franchise. The obligation shall occur whenever the franchise shall receive requests for service from at least 13 subscribers within 1,320 cable feet of its aerial trunk cable and the connection shall be solely for the usual connection and service fees for all subscribers, provided that such extension is technically feasible. The 1,320 feet shall be measured in extension length of franchisee’s cable required for service located within the public way or easement and shall not include length of necessary service drop to the subscriber’s home or premise. No person in the franchisee’s service area shall be arbitrarily refused services; but in recognition of the capital costs involved in unusual circumstances, including, without limitations, when the distance from distribution cable to connection of service to subscribers is more than 150 feet or when a subscriber density exists less than the density specified herein above, service shall be made available on the basis of costs of materials, labor, and easements, plus 10 percent, in order to prevent inequitable burdens of potential cable subscribers in more densely populated areas.
Section 9. Assignments. All provisions of this ordinance shall be binding upon the franchisee and all successors, lessees and assigns of the franchisee whether expressly stated herein or not, however, the franchisee may not sell, transfer, assign or lease this franchise without the consent of the city, which shall not be unreasonably withheld.
Section 10. Statutory Regulations. The franchise herein granted shall be subject to all of the provisions of Article 20 of Chapter 12, K.S.A. and amendments thereof, as may be applicable to this franchise.
Section 11. Franchise Payments. (a) In consideration for the rights, privileges and franchise hereby granted, and as compensation to the city for the use of its public ways and places by the franchisee and in lieu of all occupation and license taxes, the franchisee shall, on or before the 31st day of January and the 31st day of July of each year pay to the city a sum equal to three percent of the receipts of basic cable. All payments will be accompanied by a certified notarized statement, from the sale of community antennae and closed-circuit electronic service within the then existing corporate limits of the city for the preceding six month period ending on the 31st day of December and the 30th day of June, respectively. Copyright tax, local and state sales tax and franchise tax may be an add-on to rates and may be automatically passed through to subscriber. If passed on, these costs shall be shown separately on billing to subscribers.
Section 12. Revocation of Franchise. The governing body of the city may revoke the franchise on the following grounds:
(a) Willful and material breach of any terms or conditions of this franchise and violation of applicable law;
(b) Misrepresentation of fact in the application for, or negotiation of this franchise;
(c) Insolvency of the franchisee, or inability of the franchisee to pay its just debts, or application of the franchisee for adjudication as a bankrupt;
(d) Quality of operator’s service has not been reasonable in light of cable- related community needs and interest, taking into account the cost of meeting such needs and interests, as determined by the city’s governing body.
The city shall file with the franchisee a detailed list of the grounds alleged for revocation of the franchise. This notice shall include specific details of the acts, omissions, breaches, or other grounds asserted as warranting revocation. The notice shall also include the time and date established for a public hearing to be held on the matter before the governing body. The franchise shall have at least 60 days prior to the hearing and after receipt of the notice during which it may remedy the acts, omission, breaches, or other grounds asserted as giving cause for revocation and which are stated in the notice. If prior to the time of the public hearing, the city determines that the franchisee has taken action during or making significant progress toward eliminating the causes and grounds asserted as giving causes to revoke, the city shall either cancel the hearing or postpone the hearing for a reasonable time to a certain date, whichever is appropriate. Any evidence offered by the city, the franchisee, subscribers or any other interested person or entity, whether oral or written, shall be received by the governing body of it tends to substantiate or disprove the causes or grounds for revocation stated in the notice. The governing body shall determine based on all admissible evidence submitted to it at the hearing, whether or not to revoke the franchise. Upon a finding that the grounds for revocation as stated in the notice have been substantiated by a preponderance of the evidence, the governing body shall revoke the franchise, subject to judicial review sought by the franchisee. Revocation shall be accomplished by the passage of an ordinance and delivery of a certified copy of it to the franchisee.
Section 13. Procedure Upon Termination. Upon termination of the franchise, if the franchisee shall not have acquired an extension or renewal thereof and accepted the same, and if it shall not have sold its property in place, it shall promptly remove all its property; provided however, that the franchisee may have the rights and obligations of abandonment of its property, subject to city ordinance and approval. In so removing the property, the franchisee shall refill, at its expense, any excavation that it shall make and shall leave the streets in as good condition as that prevailing prior to the franchisee’s removal of its property. Property abandoned as a result of the termination of the franchise and not removed or sold to a new franchisee within a period of one year from the date of the termination shall become the property of the city and the franchisee agrees to execute and deliver an instrument in writing transferring its ownership interest in any such property to the city.
Section 14. Improvements. As an inducement to franchise to continue to improve its systems and services offered at all times during the franchise period, the city hereby agrees to give franchisee the opportunity to negotiate a renewal of this franchise agreement with the city before the expiration of the initial franchise period herein stated. Assuming franchisee’s operation under this franchise agreement has been satisfactory, that franchisee has continued an updating of the system, and after compliance with applicable rules and regulations of the Federal Communications Commission, the governing body may give favorable consideration to renewal of this franchise agreement by franchisee.
Section 15. Rights of the Franchisee. The franchisee shall have the authority to promulgate such rules, regulations, terms and conditions of its business as shall be reasonably necessary to enable the franchisee to exercise its rights and perform its services under this franchise and to assure an uninterrupted service to each and all of its customers. The provisions of Section 6(d) herein shall apply to the administration of the rates, regulations, terms and conditions.
Section 16. Rights Reserved to the City. Without the elimination upon the rights the city might otherwise have, the city does hereby expressly reserve the following rights, power and authorities:
(a) The franchisee shall at all times during the life of this franchise, be subject to all lawful exercise of the police power by the city, and to such reasonable regulation as the city shall hereafter by resolution or ordinance provide;
(b) The right of reasonable regulation of the erection, construction or installation of any facilities by the franchisee and to reasonably designate where such facilities are to be placed within the public ways and places;
(c) The right to grant additional CATV franchises with the city.
Section 17. City’s Failure to Enforce the Terms and Conditions of this Franchise. The city’s failure to enforce and remedy any noncompliance by the franchisee of the terms and conditions of this franchise ordinance shall not constitute a waiver of the city’s rights hereunder, and the franchisee shall continue to perform its obligation as herein provided.
Section 18. Amendments to Franchise. Upon application of the franchisee, the city may amend the franchise to enable the franchisee to take advantage of any developments in the field of transmission of television and radio signals which will afford an opportunity to more effectively, efficiently or economically serve its customers, and to enable the franchisee to conform to the rules and regulations of the Federal Communications Commission as they may be amended from time to time.
Section 19. Franchisee is Without Remedy Against the City. The franchisee shall have no remedy or recourse whatsoever against the city for any loss, cost, expense or damage arising from any of the provisions or requirements of the franchise ordinance, or because of the enforcement thereof by the city for any loss, cost, expense or damage arising from any of the provisions or requirements of the franchise ordinance, or because of the enforcement thereof by the city for any loss, cost, expense or damage arising from any of the provisions or requirements of the franchise ordinance, or because of the enforcement thereof by the city, or for the failure of the city to have the authority to grant all, or any part, of the franchise herein granted; provided that the franchisee expressly acknowledges that it accepted the franchise herein granted in reliance upon its independent and personal investigation and understanding of the power of authority of the city to grant the franchise herein conferred upon the franchisee; provided further that the franchisee acknowledges by its acceptance of the franchise that it has not been induced to enter into this franchise upon any understanding of promise, whether given verbally or in writing by or on behalf of the city, or by any other person concerning any term of condition of this franchise not expressed herein; provided further that the franchisee acknowledges by the acceptance of this franchise that it has carefully read the provisions, terms and conditions of.
Section 20. Miscellaneous Provisions. (a) Whenever, under the terms of this franchise ordinance, either party hereto shall be required or permitted to give notice to the other, such notice shall be in writing, and if to be served upon the city, it shall be delivered either by first class United States mail addressed to the office of the city clerk of the city or by personal delivery of the same to the persons, or his or her duly authorized agent for receiving the same, and if the notice be addressed to the franchisee, the same shall be delivered by either first class United States mail addressed to any officer of the franchisee or its resident agent, or by personally delivering the same to such person as hereinafter provided, or such other person as the franchisee shall from time to time direct.
(b) The franchisee shall assume the cost or publication of this franchise when such publication is required by law. A bill for publication costs shall be presented to the franchisee by the city clerk.
Section 21. Severability. If any section, paragraph, sentence, clause or phrase of this ordinance is for any reason held invalid by the decision of any court or regulatory body of competent jurisdiction, such decision shall not affect the validity of the remaining portions. The validity of any portion of this ordinance shall not abate, reduce or otherwise affect any consideration or other obligation required of the franchisee.
Section 22. Repeal of Conflicting Ordinances. all ordinances or parts of ordinances in conflict with the provisions of this ordinance and more particularly Ordinance No. 854 plus amending Ordinance No. 872 and Ordinance No. 938 of the city are hereby repealed.
(06-14-1988)