AN ORDINANCE GRANTING A FRANCHISE TO CLEARWATER CABLE VISION, INC., ITS SUCCESSORS AND ASSIGNS TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELECOMMUNICATIONS SYSTEM IN THE CITY OF BELLE PLAINE, KANSAS, SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE PROVIDING FOR CITY REGULATION AND USE OF THE CABLE TELEVISION SYSTEM PROHIBITING CERTAIN ACTS, AND PROVIDING PENALTIES FOR THE VIOLATION HEREOF.
SECTION 1. DEFINITIONS.
For the purpose of this ordinance the following terms, phrases, words, abbreviations, and their derivation shall have the meaning herein given. 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) “City” shall mean the City of Belle Plaine,
(b) “Council” shall mean the governing body of the City.
(c) “Company” shall mean the grantee of rights under this ordinance.
(d) “Person” shall mean any person, firm, partnership, association, corporation, company or organization of any kind.
(e) “Franchise Area” shall mean that area within the corporate limits of the City as now or hereafter constituted.
(f) “Street” shall mean the surface of and the space above and below any public street, right of way, road, highway, freeway, bridge, lane, path, alley, court, sidewalk, parkway, drive, communications or utility easement, by whatever name called, now or hereafter existing as such within the Franchise Area.
(g) “Property of Company” shall mean all property owned, installed or used by the Company in the conduct of a CATV business in the City.
(h) “CATV” shall mean a Cable Telecommunications System as hereinafter defined.
(i) “Cable Telecommunications System” shall mean a system composed of, without limitation, antenna, cables, wires, lines, towers, wave guides, or any other conductors, converters, equipment or facilities, designed, constructed or wired for the purpose of producing, receiving, amplifying and distributing audio and/or visual radio, television, electronic or electrical signals, and other telecommunications services to and from persons, subscribers and locations in the Franchise Area,
(j) “Basic CATV Service” shall mean the simultaneous delivery by the
Company to television receivers (or any other suitable types of audio-video communication receivers) of all subscribers in the city of all signals of over-the-air television broadcasters required by the FCC to be carried by a Cable Television System as defined hereinabove. Basic CATV Service shall also include additional channels including original cablecast programming at the option of the Company.
(k) “Pay Television Service” shall mean the delivery over the Cable Television System of audio video signals in intelligible form to subscribers for a fee or charge (over and above the charge for Basic CATV Service) on a per program, per channel or other subscription basis.
(l) “Subscriber” shall mean any person or entity receiving Basic CATV Service,
(m) “Gross Annual Basic Subscriber Revenues” shall mean any and all compensation and other consideration received directly by the Company from Subscribers in payment for regularly furnished Basic Cable Service. Gross Basic Subscriber Revenue shall not include any taxes or charges on services furnished by the Company imposed directly on any Subscriber or user by any city, state or other governmental unit and collected by the Company for such governmental unit, “nor” shall it include revenue from “auxiliary” services which include, but are not limited to, advertising, leased channels and Pay Television Service.
(n) “FCC” shall mean the Federal Communication Commission,
SECTION 2. GRANT OF AUTHORITY.
There is hereby granted by the City to the Company the right and privilege to engage in the business of operating and providing a Cable Telecommunications System in the City, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across and along any public street, public way and public place, now laid out or dedicated and all extensions thereof and additions thereto in the Franchise Area such poles, -wires, cable, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the Cable Telecommunications System; and in addition, so to use, operate, and provide similar facilities or properties rented or leased from other Persons including but not limited to any public utility or other grantee franchised or permitted to do business in the City.
SECTION 3. NON-EXCLUSIVE GRANT.
The right to use and occupy said Street for the purpose herein set forth, shall not be exclusive, and the City reserves the right to grant a similar use in said Streets to any other Person.
SECTION 4. TERM OF FRANCHISE.
The franchise and rights herein granted shall take effect and be in force thirty (30) days from and after the final passage hereof and upon filing of acceptance by the Company and shall continue in force and effect for a term of fifteen (15) years after the effective date of this franchise. Upon written request of either the City or the Company, this franchise may be reviewed after five (5) years from the effective date of this ordinance, and every five year (5) years thereafter to review the rate set forth in Section 11 below. Said request must be served upon the other party at least one hundred twenty (120) days prior to the end of each period set forth above, and shall state specifically the amendments required. The City and the Company shall negotiate in good faith in an effort to agree upon mutually satisfactory amendments. Amendments under this section, if any, shall be made by ordinance as prescribed by statute. Except as provided within this section the franchise shall remain in effect according to its terms pending completion of any review or renegotiation provided by this subsection.
SECTION 5. CONDITIONS OF STREET OCCUPANCY.
(a) All transmission and distribution structures, lines and equipment erected by the Company within the Franchise Area shall be so located as to cause minimum interference with the proper use of Streets, and other public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said Street or other public ways and places. The Cable Telecommunications System shall be constructed and operated in compliance with all City, State and National construction and electrical codes and shall be kept current with new codes. The Company shall install and maintain its wires, cables, fixtures and other equipment in such manner that they will not interfere with any installations of the City or of a public utility serving the City.
(b) In case of disturbance of any street, public way, or paved area, the Company shall, at its own cost and expense and in a manner approved by the City, replace and restore such Street, 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 franchise the City shall lawfully elect to alter or change the grade of any Street, sidewalk, alley, or other public way, the Company, 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 fixtures placed in any public way by the Company shall be placed in such manner as not to interfere with the usual travel on such public way.
(e) The Company shall, on the request of any person lawfully moving a building, 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 Company shall have the authority to require such payment, in advance. The Company shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes.
(f) The Company shall have the authority to trim trees upon and overhanging Streets and public ways and places in the Franchise Area so as to prevent the branches of such trees from coming in contact with the wires and cables of the Company.
(g) In all sections of the Franchise Area where the cables, wires, or other like facilities of public utilities are placed underground, the Company shall place its cables, wires or other like facilities underground to the maximum extent that existing technology reasonably permits the Company to do so.
(h) The Company shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place, or remove from the street or other public place, any property of the Company when required by the City by reason of traffic conditions, public safety, street vacation, freeway and street construction, change of establishment of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by public agencies; provided, however, that the Company shall in all such cases have the rights and obligations of abandonment of property of the Company, subject to City ordinances.
(i) No Person shall have the right to make use, for any private, public or other purpose, of any poles or conduits controlled or maintained exclusively by or for Company in any street without compensation as agreed to by Company.
SECTION 6. SAFETY REQUIREMENTS.
(a) The Company 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) All structures and all lines, equipment and connections in, over, under, and upon the Streets, sidewalks, alleys, and public ways or places of the franchise area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair.
SECTION 7. SYSTEM CONSTRUCTION AND EXTENSION.
(a) The Cable Telecommunications System now proposed is hereby approved as to extent of service area. Company is hereby authorized to construct and/or extend the trunk and distribution system as necessary within the Franchise Area.
(b) Company, whenever it shall receive a request for service from at least ten (10) subscribers within one thousand (1,000) cable feet of its trunk cable, shall extend the Cable Television System to such Subscribers at no cost to the subscribers for system extension other than the usual connection fees for all Subscribers, provided that such extension is technically and physically feasible. The one thousand (1,000) feet shall be measured in extension length of Company’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 premises.
(c) No person, firm or corporation in the Company’s service area shall be arbitrarily refused service. However, in recognition of the capital costs involved, for unusual circumstances, such as requirement for underground cable, or more than one hundred fifty (150) feet of distance from distribution cable to connection of service to subscribers, or a density of less than ten (10) subscribers per one thousand (1,000) feet of cable system, in order to prevent inequitable burdens on potential cable Subscribers in more densely populated areas, service may be made available on the basis of cost of materials, labor and easements.
(d) In the event additional adjacent territory is incorporated within the City’s limits, by annexation or otherwise, Company’s rights and duties under this Ordinance shall be deemed to include such additional territory.
SECTION 8. OPERATIONAL STANDARDS.
The Company shall operate and maintain its Cable Television System in full compliance with the standards set forth by the FCC.
SECTION 9. LOCAL OFFICE: COMPLAINTS.
The Company shall maintain a business office or agent which subscribers may telephone during regular business hours without incurring added message or toll charges so that CATV maintenance service shall be promptly available. Should a Subscriber have an unresolved complaint regarding the quality of cable television service, equipment malfunctions, or similar matters, the Subscriber shall be entitled to meet jointly with a representative of the City and representative of the Company within thirty (30) days to fully discuss and resolve such matters.
SECTION 10. PREFERENTIAL OR DISCRIMINATORY PRACTICES PROHIBITED
The Company shall not as to rates, charges, service facilities, rules, regulations or in any other respect make or grant any preference or advantage to any person nor subject any person to any prejudice or disadvantage, provided that nothing in this franchise shall be deemed to prohibit the establishment of a graduated scale of charges and classified rate schedules to which any customer coming within such classification would be entitled, and provided further that connection and service charges may be waived or modified during promotional campaigns of Company.
SECTION 11. FRANCHISE PAYMENTS.
The Company shall bill and collect from Customers and shall pay quarterly to the City, a sum equal to three percent (3%) of the Gross Basic Subscriber Revenues for the cable television operations in the City, payable for the preceding three (3) month period on or about each January 30, April 30, July 30, and October 30 of each year during the term of this franchise. No other fee, charge or consideration shall be imposed. Sales tax or other taxes levied directly on a per subscription basis and collected by the Company shall not be considered a part of the Gross Basic Subscriber Revenues. The Company shall provide a summary report with each payment showing the ending monthly subscriber count and franchise fees collected for each month.
SECTION 12. INDEMNIFICATION OF CITY.
(a) The Company shall at all times protect and hold harmless the City from all claims, actions, suits, liability, loss, expense or damages of every kind and description, including investigation costs, court costs and attorney’s fees, which may accrue to or be suffered or claimed by any person or persons arising out of the gross negligence of the Company in the ownership, construction, repair, replacement, maintenance and operation of said Cable Telecommunications System and by reason of any license, copyright, property right or patent of any article or system used in the construction or use of the Cable Telecommunications System.
(b) The Company shall maintain in full force and effect during the life of any franchise, public liability insurance in a solvent insurance company authorized to do business in the State of Kansas, covering claims for bodily injury liability; personal injury; and property damage under a policy of General Liability Insurance, with limits not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) aggregate.
SECTION 13. PROCEDURES.
(a) Any inquiry, proceeding, investigation or other action to be taken or proposed to be taken by the City in regard to the operations of Company’s Cable Telecommunications System shall be taken only after thirty (30) days public notice of such action or proposed action is published in the official city newspaper; a copy of such action or proposed action is served directly on Company; and, the Company has been given an opportunity to respond in writing and/or at hearings as may be specified by the City, and members of general public have been given an opportunity to respond or comment in writing on the action or proposed action.
(b) The public notice required by this section shall state clearly the action or proposed action to be taken, the time provided for response and the person or persons in authority to whom such responses should be addressed and such other procedures as may be specified by the City. If a hearing is to be held, the public notice shall give the date and time of such hearing, whether public participation will be allowed and the procedures by which such participation may be obtained. The Company shall be a necessary party to any hearing conducted in regard to its operations.
SECTION 14. DEFAULT.
Willful failure or refusal by Company to comply with any requirement herein, or any term or condition of franchise issued hereunder, shall be sufficient cause for termination of any franchise by the City, as follows:
(a) Upon the continuing of any such failure or refusal for a period of thirty (30) days next following written demand by the City that the Company do or comply with any such requirement, limitation, term or condition, the City may cause to be placed upon the agenda of a regular session of the Council the request for termination of such franchise, and in such case, the City shall cause to be served upon Company, at least ten (10) days prior to the date of such session of the Council, a written notice of its intent to request such termination at the time and place of such session.
(b) At such session of the Council, or any adjournment thereof, the Council shall consider the request of the City and shall hear any persons desiring to be heard, and shall determine whether or not any such failure or refusal by Company was with just cause.
(c) If the Council shall determine such failure or refusal by Company was without just cause, then the Council may pass its resolution declaring that the franchise of Company shall be terminated and forfeited unless there be compliance by Company within thirty (30) days, and such resolution shall operate to declare such franchise terminated and forfeited on the thirtieth (30th) day next following the passage thereof, and without further notice to Company, unless Company shall so comply within such thirty (30) day period, such termination and forfeiture to become effective for all purposes one hundred eighty (180) days thereafter.
(d) Within one hundred eighty (180) days after such declaration of termination and forfeiture. Company may sell, remove, or transfer the entire system of Company, subject to the provisions of Section 15 of this Ordinance.
(e) If Company shall fail or refuse to sell, remove or transfer the entire system of Company, as hereinabove provided, and regardless of the exercise of any other right of City hereunder, then the City may institute appropriate court action to enforce the requirements of this Section 15.
SECTION 15. TRANSFER.
The Company shall not sell or transfer its plant or system to another, other than a parent company or a wholly-owned subsidiary of the Company, nor transfer any rights under this franchise to another without notice to the Council. Provided, that no sale or transfer shall be effective until the vendee, assignee or lessee has filed in the office of the City Clerk an instrument duly executed reciting the fact of such sale, assignment or lease accepting the terms of the franchise and agreeing to perform all the conditions thereof. Neither this Section nor other Sections of this franchise shall preclude the assignment of certain rights in the system by the Company for the purpose of financing without notice.
SECTION 16. NEW DEVELOPMENTS.
It shall be the policy of the City liberally to amend this franchise upon application of the Company, when necessary to enable the company to take advantage of any developments in the field of transmission of telecommunications signals which will afford it an opportunity more effectively, efficiently or economically to serve its customers.
SECTION 17. MISCELLANEOUS PROVISIONS.
(a) When not otherwise prescribed herein, all matters herein required to be filed with the city shall be filed with the City Clerk.
(b) The Company shall provide without charge one television service outlet to each governmental office building, fire station, police station, and public and non- profit private school building that is passed by its cable. The distribution of the cable facility inside such building and the extent thereof shall be the option, duty and expense of the building owner.
(c) In the case of any emergency or disaster, the Company shall, upon request of the City make available its facilities to the City for emergency use during the emergency or disaster period.
SECTION 18. COMPLIANCE WITH APPLICABLE LAWS AND ORDINANCES.
The Company shall at all times during the life of this franchise be subject to” all lawful exercise of the police power by the City. The City reserves the right to adopt from time to time in addition to the provisions herein contained such ordinances as may be deemed necessary to the exercise of police power. Such regulation shall be reasonable and not destructive to the rights herein granted and not in conflict with the laws of the State or other local laws or regulations.
SECTION 19. VIOLATIONS.
(a) From and after the effective date of this ordinance, it shall be unlawful for any person to construct, install or maintain within any public street in the City, or within any other public property of the City, or within any privately owned area within the City which has not yet become a public street but is designated or is designated or delineated as a proposed public street on any tentative subdivision map approved by the City any equipment or facilities for distributing any television signals or radio signals through a Cable Telecommunications System, unless a franchise authorizing such use of such street or property or area has first been obtained and unless such franchise is in full force and effect.
(b) It shall be unlawful for any Person to make any unauthorized connection whether physically, electrically, acoustically, inductively or otherwise, with any part of the franchised Cable Telecommunications System within this City for the purpose of enabling himself or others to receive any television signal, radio signal, picture, program or sound, without payment to the Company.
(c) It shall be unlawful for any person, without the consent of the Company, to willfully tamper with, remove or injure any cables, wires or equipment used for distribution of television signals, radio signals, pictures, programs or sound.
SECTION 20. PENALTIES.
Any person violating or failing to comply with any of the provisions of Section 19 of this Ordinance shall be guilty of a misdemeanor. Each day of continued violation or failure to comply shall be a separate offense. Each offense may be punished by a fine not to exceed Five Hundred Dollars ($500.00) or by imprisonment for a term of not to exceed thirty (30) days or by both such fine and imprisonment.
SECTION 21. SEVERABILITY.
If any section, subsection, sentence, clause or phrase of this Ordinance is for any reason held invalid or unconstitutional by the decision of any court or regulatory body of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. The Council hereby declares that it would have passed this Ordinance and each section, subsection, sentences, clauses, or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases by declared illegal, invalid or unconstitutional. The invalidity of any portion of this Ordinance shall not abate, reduce or otherwise affect any consideration or other obligation required of the Company. All ordinances and parts of ordinances in conflict with the provisions of this ordinance are hereby repealed.
(04-15-2010)