AN ORDINANCE GRANTING A NON-EXCLUSIVE FRANCHISE TO CABLE SYSTEMS, INC., ITS SUCCESSORS AND ASSIGNS, TO OPERATE AND MAINTAIN A COMMUNITY ANTENNA TELEVISION SYSTEM IN THE CITY, SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE, PROVIDING FOR CITY REGULATION AND USE OF THE COMMUNITY ANTENNA TELEVISION SYSTEM, AND PRESCRIBING PENALTIES FOR VIOLATION OF THE FRANCHISE PROVISIONS.

Section 1. Short Title: This ordinance shall be known and may be cited as the “CATV Ordinance.”

Section 2. Definitions. For the purpose of this ordinance, the following terms, phrases, words, and their derivations shall have the meaning given herein. When not inconsistent with the context, 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 word shall is always mandatory and not merely directory.

(a)   City is the City of Ellinwood, Kansas.

(b)   Community Antenna Television System. hereinafter referred to as CATV System or system means a system of coaxial cables or other electrical conductors and equipment used or to be used primarily to receive television or radio signals directly or indirectly off-the-air and transmit them to subscribers for a fee.

(c)   Governing Body is the city council of Ellinwood, Kansas.

(d)   Person is any person, firm, partnership, association, corporation, company or organization of any kind.

(e)   Grantee is Cable Systems, Inc., a corporation, or anyone who succeeds the corporation in accordance with the provisions of this franchise.

Section 3. Grant of Authority.

There is hereby granted by the city to the grantee the right and privilege to construct, erect, operate and maintain, in, upon, along, across, above, over and under the streets, alleys, public ways and public places now laid out or dedicated, and all extensions thereof, and additions thereto, in the city, poles, wires, cables, underground conduits, manholes, and other television conductors and fixtures necessary for the maintenance and operation in the city of a CATV system for the interception, sale and distribution of television and radio signals.

(b) The right to use and occupy the streets, alleys, public ways and places for the purposes herein set forth shall not be exclusive, and the city reserves the right to grant a similar use of the streets, alleys, public ways and places, to any person at any time during the period of this franchise.

Section 4. Compliance with Applicable Laws and Ordinances. The grantee 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 regulations as the city shall thereafter provide.

Section 5. Territorial Area Involved. This franchise is related to the present territorial limits of the city and to any area henceforth added thereto during the term of this franchise.

Section 6. Liability and Indemnification. (a) By its acceptance of this franchise, the grantee specifically agrees that it will pay all damages and penalties which the city may legally be required to pay as a result of grantee’s operation and conduct of this business. This indemnification shall include, but not be limited to, claims for personal injury, property damage, product liability claims, breach of contract claims or any other claim arising from the grantee’s operation and/or conduct of its business. Grantee shall be responsible for any and all expenses, including attorney’s fees, incurred by the city as a result of any action filed against the city by any third party and for which action is filed as a result of the operation and/or conduct of grantee’s business.

(b)   The grantee shall maintain, and by its acceptance of this franchise specifically agrees that it will maintain throughout the term of this franchise liability insurance insuring the city and the grantee with regard to all damages in the following amounts:

(1)   $100,000 for bodily injury or death to any one person within the limit, however, of $500,000 for bodily injury or death resulting from any one accident.

(2)   $300,000 for property damage resulting from any one accident.

(3)   $300,000 for any other type of liability resulting from claims of injury to or destruction of tangible property, personal injury and all types of liability whatsoever arising out of the franchise of the cable television system.

Section 7. Color TV. The facilities used by the grantee shall be capable of distributing color TV signals, and when the signals the grantee distributes are received in color, they shall be distributed in color where technically feasible.

Section 8. Signal Quality Requirements. The grantee shall:

(a)   Grantee shall produce a picture and sound quality as set forth by the Federal Communications Commission for such a CATV system.

(b)   Limit failures to a minimum by locating and correcting malfunctions promptly.

(c)   Demonstrate by instruments and otherwise to subscribers that a signal of adequate strength and quality is being delivered.

Section 9. Operation and Maintenance of System.

(a)   The grantee shall put, keep and maintain all parts of the system in good condition throughout the entire franchise period.

(b)   Upon the reasonable request for service by any person located within the franchise territory, the grantee, shall, within 30 days, furnish the requested service to such person. A request for service shall not be reasonable for the purpose of this subsection if no trunk line installation capable of servicing that person’s block has as yet been installed.

(c)   The grantee shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Such exemptions, insofar as possible, shall be preceded by notice and shall occur during a period of minimum system use.

(d)   Grantee shall not allow its cable or other operations to interfere with television reception of persons not served by grantee, nor shall the system interfere with, obstruct or hinder in any manner, the operation of the various utilities serving the residents of the city.

(e)   The grantee shall continue, throughout the term of the franchise, to maintain the technical standards and quality of service set forth in this ordinance. should the city reasonably find, by resolution, that the grantee has failed to maintain these technical standards and quality of service, and should it, by resolution, specifically enumerate improvements to be made, the grantee shall make such improvements. Failure to make such reasonable improvements within three months of such resolution shall constitute a breach of the ordinance, unless such failure is beyond the reasonable control of grantee.

(f)   The grantee shall maintain an office within the city limits which shall be open during paying agent within the city limits for the convenience of consumers in paying their bills. Consumers shall be entitled to pay their bills at the office.

Section 10. Free Service to Public Facilities. The company agrees to provide, without charge, one connection with basic service to each public school, the city hall, the public library and the Ellinwood District Hospital. In the event the hospital does not make cable TV a basic service available to its patients, one connection will be provided the hospital administration without charge for public safety purposes.

Section 11. Emergency Use of Facilities. In the case of any emergency or disaster, the grantee shall make its facilities available to the city for emergency use.

Section 12. Permits. Etc.. Required. This franchise authorizes only the operation of a CATV system as provided for herein, and does not take the place of any other franchise, license or permit which might be required by law of the grantee.

Section 13. Safety Requirements.

(a)   The grantee 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.

(b)   The grantee shall install and maintain its wires, cables, fixtures, and other equipment in accordance with the requirements of the National Electrical Code of the National Board of Fire Underwriters, and in such manner that they will not interfere with any installation of the city of a public utility serving the city.

(c)   All structures and all lines, equipment, and connections in, over, under and upon the streets, sidewalks, alleys and public ways or places of the city, wherever situated or located, shall at all times be kept and maintained in a safe, suitable, substantial condition, and in good ord.er and repair.

(d)   The grantee shall maintain a force of one or more resident agents or employees at all times and shall have sufficient employees to provide safe, adequate and prompt service for its facilities.

Section 14. New Developments. It shall be the policy of the city to liberally amend this franchise, upon application of the grantee, when necessary to enable the grantee to take advantage of any developments in the field of transmission of television and radio signals which will afford it an opportunity to more effectively, efficiently, or economically to serve its customers; provided, however, that this section shall not be construed to require the city to make any amendment that would interfere with the city’s policy of requiring the grantee to maintain high quality cable service; nor shall this section be construed to prohibit the city from unilaterally amending the ordinance when such amendment is in keeping the city’s policy of requiring the grantee to maintain high quality cable service at a cost to the consumer that is competitive with similar systems and franchises.

Section 15. Conditions on Street Occupancy.

(a)   All transmissions and distribution structures, lines, and equipment erected by the grantee within the city shall be so located so as to cause minimum interference with the proper use of streets, 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, alleys or other public ways and places.

(b)   In case of disturbance of any street, sidewalk, alley or public way, or paved area, the grantee shall, at its own cost and expenses and in a manner approved by the city administrator replace and restore such street, sidewalk, alley, public way, or paved area in as good a condition as before the work involving such disturbance was done.

(c)   If at any time during the period of this franchise the city shall lawfully elect to alter or change the grade of any street, sidewalk, alley, or other public way, the grantee, upon reasonable notice by the city, shall remove, relay, and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at its own expense.

(d)   Any poles or other fixture placed in any public way by the licensee shall be placed in such a manner as not to interfere with the usual travel on such public way.

(e)   The grantee 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 buildings. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same, and the grantee shall have the authority to require such payment in advance. The grantee shall be given not less than 48 hours advance notice to arrange for such temporary wire changes.

(f) The grantee shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, and public ways and places of the city so as to prevent the branches of such trees from coming in contact with the wires and cables of the grantee, except that at the option of the city, such trimming may be done by it or under its supervision and direction at the expense of the grantee.

(g) In all sections of the city where the cables, wires, or other like facilities of public utilities are placed underground, the grantee shall place its cables, wires or other like facilities underground to the maximum extent that existing technology reasonably permits the grantee to do so.

Section 16. Preferential or Discriminatory Practices Prohibited.

(a)   Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users, or general citizens on the basis of race, color, age, religion, national origin or sex. Grantee shall comply at all times with all other applicable federal, state, city and county laws, and all executive and administrative orders relating to nondiscrimination.

(b)   Grantee shall strictly adhere to the equal employment opportunity requirements of the FCC, as expressed in the Cable Television Rules, 47 CFR Subsection 76.311, and as may be amended from time to time.

(c)   Neither the grantee nor the city shall tap or monitor or arrange for the tapping or monitoring, or permit, either expressly or impliedly, any other person or tap or monitor any cable, line, signal input device or subscriber outlet or receiver for any purpose whatsoever, without the express permission of the subscriber; provided, however, that the grantee shall be entitled to conduct system wide or individually addressed “sweeps” for the purpose of verifying system integrity, controlling return path transmission, or billing or paying services.

(d)   The grantee shall not, without the specific authorization of the subscriber involved, sell, or otherwise make available to any person, lists of the names and addresses of such subscriber, or any list which identifies the viewing habits of any individual subscriber, except as the same is necessary for the construction, marketing and maintenance of the grantee’s facilities and services hereunder and the concomitant billing of subscribers for the services, or as the same may be necessary to give leased channel users sufficient and pertinent information to make full use of the leased access channel. The grantee shall not provide information concerning the viewing habits of identifiable individual subscribers to any person, group or organization for any purposes whatsoever.

Section 17. Removal of Facilities Upon Request. Upon termination of service to any subscriber, the grantee shall promptly remove all its facilities and equipment from the premises of such subscriber upon his or her request.

Section 18. Transfer of Franchise. The grantee shall not transfer this franchise to another person voluntarily or involuntarily without prior approval of the city by ordinance. If the grantee be a corporation, the transfer during the franchise term by the shareholders or the corporation of 30% or more of the total voting stock of the corporation to anyone other than the holders of shares at the time of the granting of the franchise shall constitute a “transfer of the franchise” within the meaning of this section of this ordinance. The foregoing restriction, however, shall not restrict any owner or shareholder of grantee from conveying his or her interest or any part thereof in the franchise, to his or her spouse, child or children. Additionally, any shareholder of grantee, if grantee is a corporation, will be entitled to transfer is or her stock to any other shareholder or owner of the corporation.

Section 19. Filings and Communications with Regulatory Agencies. When requested to do so, copies of all petitions, applications and communications submitted by the grantee to the Federal Communications Commission, Securities and Exchange Commission, or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters affecting CA1V operations authorized pursuant to this franchise, shall also be submitted simultaneously to the governing body.

Section 20. City Rights i n Franchise. (a) The right is hereby reserved to the city or the governing body to adopt, in addition to the provisions contained herein and in existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of the police power; provided that such regulations, by ordinance or otherwise, shall be reasonable and not in conflict with the rights herein granted.

(b)   The city shall be furnished at least annually with a statement compiled by a certified public accountant reflecting and showing the gross revenues of the grantee and the city, at least annually, shall have the right to examine such of the company’s records relative to the gross revenue received by the company.

(c)   The city shall have the right, during the life of this franchise, to install and maintain free of charge upon the poles of the grantee any wire and pole fixtures necessary for any municipal use on the condition that such wire and pole fixtures do not interfere with the CATV operations of the grantee.

(d)   Tue city shall have the right to inspect all construction or installation work performed subject to the provisions of the franchise and make such continuing inspections as it shall find necessary to insure compliance with the terms of this franchise and other pertinent provisions of law.

(e)   At the expiration of the term for which this franchise is granted, or upon its termination and cancellation, as provided for herein, the city shall have the right to require the grantee to remove at its own expense all portions of the CATV system from all public ways with the city.

Section 21. Renewal of Franchise.

(a)   At least 24 months prior to the expiration of the franchise, grantee shall inform the city in writing of its intent to seek renewal of the franchise.

(b)   After giving public notice, the city shall proceed to determine whether the grantee has satisfactorily perform his or her obligations under the franchise by methods established in the 1984 Federal Cable Act or any amendments to the act.

(c)   A four-month period shall be provided to determine the grantee’s eligibility for renewal.

(d)   The city shall then prepare within two months, any amendments to the city’s cable television ordinance that it believes necessary.

(e)   If the city finds the grantee’s performance satisfactory, a new franchise shall be granted for a period of 10 years.

(f)   In the event the current grantee is determined by the city to have performed unsatisfactorily, new applicants shall be sought and evaluated and a franchise award shall be made by the city according to the franchising procedures adopted by the city. Nothing in this provision shall be construed so as to prohibit grantee from participating as one of the applicants for the new franchise award.

Section 21. Maps. Plats and Reports.

(a)   The grantee shall file with the city clerk true and accurate maps or plats of all existing and proposed installations.

(b)   At the request of the city, the company will make available to the city annual financial statements prepared by a certified public accountant reflecting the herein mentioned relative to the company’s operation of the cable TV system under and by virtue of the privileges of this franchise, and shall furnish such information as is requested by the city relative to the investment of properties devoted to the operation of the cable TV system, together with the other reasonable information as the city may request relative to the company’s operation of the system, and the city shall have the right of an independent audit of the company’s records relative to the items herein mentioned. Provided, however, that in the event the company is engaged in businesses other than the operation of the cable TV system, the company shall not be required to disclose information relative to other activities.

(c)   The grantee shall keep on file with the city clerk a current list of its shareholders and bondholders.

Section 22. Payment to the City. The grantee shall pay to the city annually an amount equal to three percent of the annual gross operating revenues during the year, which shall include but not necessarily be limited to monthly subscriber fees.

Company further agrees to pay the city the sum of $1.75 per pole per year for each pole owned by the city and used by grantee for any portion of a year. This annual payment shall be made to the city within 60 days subsequent to the company’s annual accounting period. This payment shall be in addition to any other tax or payment owed to the city by the grantee.

Section 23. Forfeiture of Franchise. (a) In addition to all other rights and powers pertaining to the city by virtue of this franchise or otherwise, the city reserves the right to terminate and cancel this franchise and all rights and privileges of the grantee hereunder in the event that the grantee:

(1)   Violates any material provision of this franchise or any reasonable rules, order or determination of the city or governing body made pursuant to this franchise and fails to cure the violations within 15 days or has made a reasonable attempt to cure the defect within 15 days following written notice of the violation to grantee by the city; provided further, however, in the event it is determined the violation is without fault such violation shall not terminate this franchise provided grantee cures the violation within 30 days following such violation.

(2)   Becomes insolvent, unable or unwilling to pay its debts, or is adjudged a bankrupt.

(3)   Attempts to evade any of the provisions of this franchise or practices any fraud or deceit upon the city.

(b) Such termination and cancellation shall be by ordinance duly adopted after 30 days’ notice to the grantee and after public hearings, if requested by grantee, and shall in no way effect any of the city’s right under this franchise or any provision of law. In the event that such termination and cancellation depends upon a finding of fact, such finding of fact as made by the governing body or its representatives shall be conclusive. Provided, however, that before this franchise may be terminated and canceled under this section, the grantee must be provided with an opportunity to be heard before the governing body.

Section 25. City’s Right of Intervention. The grantee agrees not to oppose intervention by the city in any suit or proceeding to which the grantee is a party wherein the city’s intervention is for the purpose of protecting its interest and/or property.

Section 26. Further Agreement and Waiver by Grantee. The grantee agrees to abide by all provisions of this franchise, and further agrees that it will not at any future time set up as against the city or the governing body the claim that the provisions of the franchise are unreasonable, arbitrary, or void.

Section 24. Duration and Acceptance of Franchise. (a) This franchise and the rights, privileges, and authority herein granted shall take effect and be in force from and after final passage hereof, as provided by law, and shall continue in force and effect for a term of 12 years, provided that within five days prior to the date of the passage of this ordinance the grantee shall file with the city clerk its unconditional acceptance of this franchise and promise to comply with and abide by all its provisions, terms, and conditions. Such acceptance and promise shall be in writing duly executed and sworn to, by or on behalf of the grantee before a notary public or other officer authorized by law to administer oaths.

(b) Should the grantee fail to comply with subsection (a) above, it shall acquire no rights, privileges, or authority under this franchise whatever.

Section 25. Erection. Rental. Removal. and Common User of Poles. (a) No poles shall be erected by the grantee without prior approval of the utilities manager of this city with regard to location, height, type and any other pertinent aspect. However, no location of any pole or wire-holding structure of the grantee shall be a vested interest and such poles or structures shall be removed or modified by the grantee at its own expense whenever the utilities manager determines that the public convenience would be enhanced thereby.

(b)   Where poles or other wire-holding structures already existing for use in serving the city are available for use by the grantee, but it does not make arrangements for such use, the city may require the grantee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to the grantee are just and reasonable.

(c)   Where the city or a public utility serving the city desires to make use of the poles or other wire-holding structures of the grantee but agreement therefore with the grantee cannot be reached, the governing body shall require the grantee to permit such use for such consideration and upon such terms as the governing body shall determine to be just and reasonable, if the governing body determines that the use would enhance the public convenience and would not duly interfere with the grantee’s operations.

(d)   The city, by and through tis utilities manager, reserves the right to declare any pole or poles unavailable for use by grantee if such use in any manner interferes or renders dangerous, the operation and maintenance of the city’s municipal utilities system.

Section 26. Publication Costs. The grantee shall assume the entire cost of publication of this franchise. Such amount is payable upon the grantee’s filing of acceptance of this franchise.

(12-13-1988)