AN ORDINANCE OF THE CITY OF ELLINWOOD, KANSAS, GRANTING CABLE SYSTEMS, INC. ITS SUCCESSORS AND ASSIGNS, A NON-EXCLUSIVE RIGHT, PRIVILEGE, FRANCHISE AND RIGHT-OF-WAY TO OPERATE A CABLE TELEVISION SYSTEM WITHIN THE CITY OF ELLINWOOD; DESCRIBING THE FRANCHISE, PROVIDING FOR A FIVE YEAR TERM; REQUIRING OPEN RECORD KEEPING; SETTING SERVICE AREAS; PROVIDING MINIMUM GUIDELINES FOR CONSTRUCTION, MAINTENANCE, INSTALLATION AND CUSTOMER SERVICE; PROVIDING FOR LIABILITY AND INDEMNIFICATION FOR THE CITY OF ELLINWOOD; PROVIDING REMEDIES IN CASE OF DEFAULT; PROVIDING A WAIVER AND REPEALING ORDINANCE NO. 8809. BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF ELLINWOOD, BARTON COUNTY, KANSAS:
SECTION 1. Grant of Franchise. The City of Ellinwood, (hereinafter referred to as the “City”), hereby grants to The Helicon Group, LP., dba Charter Communications (hereinafter referred to as the “Company”), a non-exclusive franchise to construct and operate a cable television system within the City of Ellinwood, in the State of Kansas, subject to the terms and conditions as hereinafter specified.
SECTION 2. Nature of Franchise. The franchise granted by the City under the provisions of this Ordinance grants the Company the right, privilege, and duty to 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 such extensions thereof and additions thereto in the City, poles, wires, cables, and undergoing conduits, manholes, and other television fixtures necessary for the maintenance and operation of a cable system (a) for the interception, sale, transmission, and distribution of television programs and communications signals, and the right to sell the same to inhabitants of the City, on the(terms and conditions herein provided. The City expressly reserves the right to grant a similar use of said streets, alleys, public ways and public places to any other person or firm, Company or association, at any time during the period of this franchise. This franchise grants no rights for uses of the public rights of way other than for a system used in the provision of cable television service and other communications services.
SECTION 3. Term of Franchise. The term of the franchise granted herein shall be for a period of five (5) years from and after the effective date of this Ordinance as hereinafter provided, and subject to the conditions and restrictions as provided herein.
SECTION 4. Franchise Rights Subject to Local Powers. In accepting this franchise, the Company acknowledges that its rights hereunder are subject to the power of the City to adopt and enforce laws applicable to the safety and welfare of the public, and it agrees to comply with all applicable general laws and Ordinances enacted by the City pursuant to such power.
SECTION 5. Franchise Fees. In consideration of the rights, privileges and franchise hereby granted, and as compensation to the City for the use of its public ways and places by the Grantee, and in lieu of all occupation and license taxes, Grantee shall pay to the City an annual fee on or before the fifteenth day of January each year, during the existence of this franchise, in an amount equal to five percent (5%) of the annual gross, receipts. Such payment shall be in addition to any other payment, charge, permit fee or bond owed to the City by the Grantee and shall not be construed as payment in lieu of personal or real property taxes levied by state, county or local authorities consistent with Section 622 of the Cable Act. Notwithstanding anything to the contrary, the term “gross revenues” shall not include any revenues derived directly or indirectly from ancillary telecommunications services (including, but not limited to, point-to-point telecommunications, telephony, data transmissions, etc.) unless all other service providers of such services in the City are subject to equal or greater franchise fee, or gross receipts tax, or otherwise equitably taxed as the law allows. In the event that the Company provides ancillary telecommunications services and similar franchise fee or tax applies to other service providers of similar services in the City, the Company shall upon the request of the City include these services as gross revenues for the purpose of franchise fee payment.
SECTION 6. Records and Reports. The Company shall keep true, accurate and current books of account which books and records shall be made available for inspection and copying during business hours within forty-eight (48) hours’ notice, by the City Administrator, or its authorized representative. If requested information is not kept at the system office, the Company shall have seven (7) days to provide such requested information.
SECTION 7. Customer Service. The Company shall comply with and be bound by all of the customer service standards in effect and applicable to cable television systems of the size of \hat serving the City, as required by the laws of the United States (including the Communications Act of 1934, as amended by the Cable Television Consumer Protection and Competition Act of 1992 and as otherwise heretofore or hereafter amended (the “Cable Act”)) and the rules and regulations of the Federal Communications Commission (FCC).
The Company shall, whenever it shall receive requests for service from at least thirty five (35) subscribers within one (1) mile from its existing system, extend such system to such subscribers at no cost to the subscriber for system extension other than usual connection fees for all subscribers. The one (1) mile shall be measured in the extension length of the Company’s cable required for service located with the public way or easements and shall not include the length of necessary service drop to the subscriber’s home or premises.
If the request for service requires a drop or line extension in excess of one hundred fifty feet (150’), Company must extend and make available service to such home at a connection charge not to exceed actual construction and installation (including labor) cost incurred by the Company for the distance exceeding one hundred fifty feet (150’), provided that the Company may require Payment in advance from subscriber.
SECTION 8. Construction, Maintenance, and Installation. The construction, maintenance, and installation of the equipment and facilities by the Company, including connections to subscribers of Company’s service, shall be in accordance with all applicable Ordinances and regulations of the City, the National Electrical Safety Code, and in accordance with the technical standards established by the Federal Communications Commission.
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, the Cable Operator likewise shall construct, operate and maintain all of its transmission or distribution facilities underground.
SECTION 9. Services. The Company shall provide at no charge, upon request by the City Administrator, one (1) service drop per facility at all Public Schools in the City, to the City Library, to the Fire Station, to the Hospital and to the City Hall, so long as such buildings are within three hundred feet (300’) of the cable system’s feeder lines. If such building is located more than three hundred feet (300’) from existing cable system feeder lines or more than one (1) drop is required at any one building, the charge for the additional footage and additional drops shall be based on Company’s cost of time and material for installing such service. No monthly charges shall be made for providing basic cable service at these buildings.
In the event the FCC enacts regulations regarding Emergency Alert Systems (EAS), the Company will install equipment to provide emergency alert according to FCC requirements.
SECTION 10. System Upgrade. The Company shall upgrade it cable television system to improve the system through the replacement of system components including, but not limited to, amplifiers, cable, splitters, couplers, connectors and subscriber tap-off devices. The resultant system bandwidth shall be, at a minimum, four hundred and fifty (450) megahertz, capable of the carriage of sixty (60) analog channels. Such improvements shall be completed as soon as possible, but under no circumstances shall said improvements be completed later than the first anniversary of the effective date of this Agreement.
SECTION 11. Liability and Indemnification. The Company, its successors and assigns, shall hold the City harmless against any and all damages that may be caused by reason of the construction, maintenance, installation and operation of Company’s television distribution system in the City to any and every person or persons that may be damaged by reason of construction, maintenance, installation and operation of Company’s television distribution system in the City, and the Company, its successors and assigns, shall cause to be defended at its own expense, all actions that may be commenced against the City for damages caused by reason of the construction or operation of such system. The Company shall carry commercial general liability and property damage insurance in the sum of at least $1,000,000.00 for each occurrence. The Company shall furnish to the City copies of certificates of insurance within 1 O days after the effective date of this Ordinance.
SECTION 12. System Construction and Maintenance Procedures. All transmission and distribution structures, lines, and equipment erected by the Company within the City after the effective date of the Ordinance shall be so located 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 of reasonable convenience of property owners who adjoin any of said streets, alleys, or other public ways and places.
(a) In case of disturbance of pavement, sidewalk, driveway, or other surfacing, the Company shall at its own cost and in a manner approved by the City, replace and restore all paving, sidewalk, driveway, or other surface of any street or alley disturbed in as good condition as before said work commenced, and shall guarantee such work for a period of one (1) year after such replacement or restoration shall have been erected.
(b) In the event that at any time during the period of this Agreement, the City shall lawfully elect to alter, or change the grade of any street, alley, or other public way, the Company, upon reasonable notice from the City except in the event of an emergency, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes, and other fixtures at its own expense, such relocation to be completed within such period of time as may be specified by the City Administrator, but in no case less than thirty (30) days.
(c) The company shall, upon request of any person holding a building moving permit, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal, raising or lowering wires shall be paid by the person requesting the same, and the Company shall have the authority to require such payment in advance. The Company shall be given not less than five (5) working days advance notice to arrange for such temporary changes.
(d) The Company shall have the authority to trim trees upon and overhanging streets, alleys, sidewalks, and public places of the City so as to prevent the branches of such trees from coming in contact with the wires and cables of the Company. All trimming shall be done at the expense of the Company, and Company shall leave such premises in a clean and neat appearance shall be construed to compel the City to maintain any of said poles for a period longer than demanded by its own service requirements.
(e) The Company shall maintain the cable system in compliance with applicable technical standards as they have been adopted by the FCC.
SECTION 13. Pole Attachments. The Company may use the utility poles of the City on which to place and affix its cables, conduits and other necessary fixtures and fittings for its distribution system pursuant to the subsections herein.
(a) The Company shall, at its own expense, make and maintain its attachments in such a manner as to not conflict with or alter existing equipment or use of said poles by the City, or by other utility companies using or having the right to use said poles, or interfere with the working use of facilities thereon or which from time to time be placed thereon. In the event that at any time during the period of this Agreement, the City shall elect to alter, replace or relocate its poles or equipment attached to said poles as may be required by routine maintenance or for the service needs of the City, the Company will, at its own expense, and within thirty (30) days of notice from the City, perform work as needed to conform with the requirements any such alteration, replacement or relocation may necessitate. In cases of emergency, or in the event the Company fails to perform its covenant herein, the City may arrange to perform said work on behalf of the Company, and the Company shall upon demand of the City, reimburse the City for the expense thereby incurred.
(e) In the event that any City owned pole or poles to which the Company desires to make a new attachment is inadequate to support the additional attachment or equipment in accordance with applicable rules and regulations, the Company may request the City to make changes necessary to accommodate such new attachment(s), including, but not limited to, rearrangement of existing City facilities or provision of adequate poles. In any such event, the Company shall, upon demand of the City, reimburse the City for any expense incurred while making any such changes, including, but not limited to, preliminary survey costs, labor and/or materials required to rearrange existing City facilities and installation or removal of poles or any City attachment thereto. The Company will also, on demand, reimburse the owner or owners of other attachments to said pole or poles for any expense incurred by it or them in transferring or rearranging said facilities at the request of the Company, provided said owner or owners have the right to use said pole or poles for any such attachment under an Agreement with the City that contains terms significantly similar to this Ordinance. Any guying of poles required to accommodate the attachments of the Company shall be provided by and at the expense of the Company and to the satisfaction of the City.
(f) The City reserves the right to itself and to the owners of other facilities attached to said poles to operate, replace and enlarge its facilities in such a manner as to best enable it to meet the needs of its customers and fulfill its own service requirements. The City shall not be liable to the Company or Company customers for any interruption of service or for interference with the operation of the Company system arising in any manner out of the use of City poles hereunder, or arising in any manner out of the condition or character of City’s facilities or the manner of operation thereof.
(h) The Company shall exercise special precautions to avoid damage to facilities of the City and of other authorized users supported on said poles; and hereby assumes all responsibility for any and all loss for such damage that may be caused by Company employees, agents and contractors. The Company shall make an immediate report to the City of the occurrence of any damage and the Company hereby agrees to reimburse the City for all reasonable expenses incurred, including materials used, in making such repairs.
(i) Upon notice from the City to the Company that the right to use any pole or poles has been revoked by a property owner, the permit covering the use of such pole shall immediately terminate and the cables, wires, conduit or other fixtures of the Company shall be removed at once from the affected pole or poles at the sole expense of the Company. In the event that the Company fails to remove said cables, wires, conduit or other fixtures from the affected pole or poles, the City may do so and the Company shall, on demand, reimburse the City for the expense thereby incurred.
(j) If a pole under this Agreement becomes unsafe for use by authorized Company employees for any reason other than damage caused by Company attachments or by the actions of Company employees, the City shall, upon notice from the Company and at its own expense, make corrections or repairs within thirty (30) days to restore the pole to a safe condition, provided, however, that the Company shall assume responsibility for relaying, relocating, transferring or otherwise altering its own attachments at its own expense. The Company reserves the right to terminate use of any pole under this Agreement if, in the opinion of the Company, such unsafe condition has not been remedied by the City within thirty (30) days. In the event of any such termination of use by the Company, the City waives its right to claim a service provision default has occurred in any Company service area that may be affected by said termination and thereby waives its right to seek remedies to any such service provision default.
(k) Nothing herein shall be construed as affecting the rights or privileges previously granted by the City, by contract or otherwise, to others, not party to this Agreement, to use any poles herein, and the City shall have the right to continue and extend such rights or privileges. The attachment privileges herein granted to the Company shall at all times be subject to such contracts and arrangements.
(l) The Company shall not assign, transfer or sublet the pole attachment privileges hereby granted to others, not parties to this Agreement, without the prior written consent of the City.
(m) No use, however extended, of City poles under this Agreement, shall create or vest in the Company any ownership or property rights in said poles, but the Company’s rights therein shall be and remain a mere license. Nothing herein contained shall be construed to compel the City to maintain any of said poles for a period longer than demanded by its own service requirements.
(n) The City reserves to itself the right to abandon a pole or poles to which the Company’s wires, cables, conduits or fixtures are attached. The Company shall be given thirty (30) days’ notice of each proposed abandonment and shall have the option of removing its attachments or of purchasing the abandoned pole or poles in place from the City. The purchase price will be the installed cost of the pole or poles, depreciated at a rate of 4.25 percent per year, less the estimated cost to the City of removing the pole or poles. If the Company does not remove its attachments and does not exercise its option to buy the abandoned pole or poles, the Company’s cables, wires, conduit or other fixtures shall be deemed worthless, and may be caused by the City to be removed from the pole or poles, and be disposed of at any suitable place at the expense of the Company. The City shall be free from any liability therefore to anyone.
(o) There shall be paid by the Company an annual per pole rental charge of one dollar and seventy-five cents ($1.75), the same to become due and payable on the first day of June and the first day of January of each year during the remainder of the term of this Agreement. The City and the Company accept co-responsibility for counting and auditing the number of said pole attachments.
SECTION 14. Default of Franchise. Should the Company fail to keep and perform any of the obligations herein contained, the City shall have the right to notify the Company thereof, and should the Company fail to cure, remedy or purge such condition within thirty (30) days after the receipt of such notice, or should bankruptcy proceedings be brought by or against the Company, or should an assignment be made by the Company for the benefit of creditors, the Company shall be deemed to be in default. At the sole discretion of the City, such a default may result in the termination of this Agreement and the revocation of the Ordinance granted hereunder should the situation not be substantially cured within thirty (30) days from the initial date of the default condition and notice thereof by the City to the Company. If the Compan1 does not believe a substantial default has occurred or believes there exists reason to excuse the substantial default it must, within the thirty (30) day notice period, request a hearing before the City. Such hearing shall occur within thirty (30) days of the Company’s request for hearing.
SECTION 15. Waivers. The waiver or forbearance by the City of any failure on the part of the Company to comply with any of the Company’s obligations under this Ordinance shall not be construed to constitute a waiver of any subsequent default.
(07-18-2001)