ORDINANCE NO. 236 (CABLE FRANCHISE – WHEAT STATE TELECABLE)
AN ORDINANCE GRANTING A FRANCHISE TO WHEAT STATE TELECABLE, INC., A CORPORATION EXISTING UNDER THE GENERAL BUSINESS LAWS OF THE STATE OF KANSAS, ITS SUCCESSORS AND ASSIGNS, TO OPERATE AND MAINTAIN A COMMUNITY ANTENNA TELEVISION SYSTEM IN THE CITY OF BENTON KANSAS: SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF FRANCHISE PROVIDING FOR CITY REGULATION AND USE OF THE COMMUNITY ANTENNA TELEVISION SYSTEM AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE FRANCHISE PROVISIONS.
Section 1. This ordinance shall be known as "The Benton Community Antenna Television Franchise Ordinance No. 1.
Section 2. For the purposes 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 singular number include the plural number. The word shall is always mandatory and not merely directory.
(a) City is the City of Benton, State of Kansas.
(b) Council is the city council of the city.
(c) 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.
(d) Person is any person, firm, partnership, association, corporation, company or organization of any kind.
(e) Grantee is Wheat State Telecable, Inc., or anyone who succeeds it.
(f) Franchise shall mean and include any authorization granted hereunder in terms of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a CATV system in the city.
(g) Property of Grantee shall mean all property owned, installed, or used by a grantee in the conduct of a CATV business in the city under the authority of franchise granted pursuant to this ordinance.
(h) Street shall mean the surface of and the space above and below any public street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway, or drive, now or hereafter existing as such within the city.
(i) Subscriber shall mean any person or entity receiving for any purpose the CATV service of the grantee.
(j) Gross Subscriber Base Revenue shall mean those monies received by grantee from its regular CATV subscribers during the operation of the regular CATV business within the city and shall not include any other income of the CATV system.
Section 3. Grant of Non-Exclusive Authority. There is hereby granted by the city to the grantee the non-exclusive 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.
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 authority by the city.
Section 5. Territorial Area Involved. This franchise relates to the city limits of the city. Grantee may build into newly platted areas on the same basis as the utility companies.
Section 6. Indemnification. The grantee shall save the city harmless from all loss sustained by the city on account of any suit, judgment, execution, claim, or demand whatsoever, resulting from negligence on the part of the grantee, its agents, employees, or independent contractors, in the construction, operation, or maintenance of the CATV system. Further, 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:
(a) $300,000 for all bodily injury or death to anyone person, within the limit, however, of $500,000 for bodily injury or death resulting from anyone accident.
(b) $100,000 for property damage resulting from one accident.
(c) Workers' compensation coverages covering all of grantee's employees.
Section 7. Signal Quality Requirement. The grantee shall produce a picture, whether in black and white or in color, that shall be as good as the state of the art allows, accompanied with proper sound on typical standard production TV sets in good repair.
Section 8. Operation and Maintenance of System. The grantee shall render efficient service, make repairs promptly and interrupt service only for good cause and for the shortest time possible. Such interruption insofar as possible shall be preceded by notice and shall occur during periods of minimum use of the system.
Section 9. Carriage of Signals - Program Alteration. Grantee shall receive and distribute television and radio signals which are disseminated to the general public without charge by broadcasting stations licensed by the Federal Communications Commission, and shall comply with all regulations of the Federal Communications Commission regarding the carriage of the programming of any existing or future television broadcasting, program, alteration, advertising, availability of local origination, and such other regulations hereinafter promulgated by the Federal Communications Commission.
Section 10. Service. The grantee shall, upon request, provide a drop service at no cost to the following locations in the city for the purposes of public education and information: a city-owned building, parochial school, community center, and public schools. A drop service shall mean that one service connection shall be made available to each site specified with no internal wiring being required on behalf of the grantee, the internal wiring to be and remain the responsibility of the individual site concerned.
Section 11. Emergency Use of Facilities. In the case of any emergency or disaster, the grantee shall, upon request of the city, make its facilities available to the city for emergency use.
Section 12. Other Business Activities. This franchise authorizes only the operation of a CATV system as provided for herein, and does not take the place of any other license or permit which might be required by law of the grantee.
Section 13. Safety Requirements.
(a) The grantee shall install and maintain its facility in accordance with the requirements of the National Electrical Safety Code as promulgated by the National Bureau of Standards and the Department of the Interior.
(b) The grantee shall maintain a sufficient force of employees to provide 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 efficiently, effectively, or economically service its customers.
Section 15. Conditions on Street Occupancy.
(a) All transmission and distribution structures erected by the grantee within the city shall be so located as to cause minimum interference with the proper use of streets, alleys, and other public areas and places.
(b) In case of grantee's disturbance of any street, sidewalk, alley, or public area, the grantee shall, at its own expense, replace and restore the street, sidewalk, alley, or public area.
(c) The grantee shall, on the request of any person holding a building moving permit issued by the city, temporarily raise or lower its wire to permit the moving of buildings. The expense of the 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 the payment in advance. The grantee shall be given not less than one day advance notice to arrange for the temporary wire changes.
(d) 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 and other like facilities underground to the maximum extent that existing technology reasonably permits.
Section 16. Preferential or Discriminatory Practices Prohibited. The grantee shall not, as to rates, charges, service, service facilities, employment, rules, regulations, or in any other respect make or grant any undue preference or advantage to any person, nor subject any person to prejudice or disadvantage, and shall comply with the Federal Civil Rights Act.
Section 17. Removal of Facilities Upon Request. Upon termination of service to any subscriber, the grantee shall remove all its facilities and equipment from the premises upon request.
Section 18. Transfer of Franchise. The grantee shall not transfer this franchise to another person without prior approval of the city, which approval shall not be unreasonably withheld.
Section 19. Filings and Communications with Regulatory Agencies. Copies of all petitions and applications submitted by the grantee to the Federal Communications Commission or any other federal or state regulatory commission shall be submitted simultaneously to the city.
Section 20. City Inspection.
(a) The city shall have the right to inspect the maps, plans, and other like materials of the grantee at any time during normal business hours, and the right to inspect the books and records of grantee at the expense of city.
(b) The city shall have the right to inspect all construction or installation work performed subject to the provisions of this franchise as is reasonable to insure compliance with same.
Section 21. Plans and Reports. (a) The grantee shall file with the city clerk true and accurate plans of Its plant.
(b) The grantee shall file annually with the city clerk, no later than 90 days after the end of the grantee's fiscal year, a verification by a certified public accountant as to the gross subscriber base revenue of grantee for the preceding fiscal year, reflecting in the verification the resultant franchise fee.
Section 22. Payment to the City. The grantee, after the system is operational, shall pay to the city annually an amount equal to one percent of the gross subscriber base revenue. The payment shall be made on or before April 15 of each year.
Section 23. Forfeiture of Franchise. In addition to all other rights and powers pertaining to the city by virtue of this franchise or otherwise, the city reserves the right, following a public hearing to which grantee is an indispensable party, to terminate and cancel this franchise and all rights and privileges of the grantee hereunder in the event that the grantee violates any rules, order, or determination of the city council made pursuant to this franchise, except where the violation is without fault or through excusable neglect.
Section 24. Duration of Franchise. This franchise 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 20 years.
Section 25. Erection, Removal, and Common User of Poles.
(a) No poles shall be erected in or removed from a city right-of-way by the grantee without prior approval of the city engineer.
(b) Where a proposed joint-user desires to make use of the poles or other wire holding structures of the grantee, the use will be allowed at the same price per pole as grantee is paying the utility companies, provided the use can be made without interruption to grantee's facility. All change-outs shall be at the expense of the proposed joint-user and subject to approval of grantee's engineer.
Section 26. Number of Channels. The grantee's cable distribution system shall be capable of carrying at least 20 television channels. Further, the grantee shall make available, upon the request of the city council, one channel for educational TV and one channel for any other noncommercial service of the benefit of the inhabitants of the city. Other channels will be available as the need arises.
Section 27. Rules, Regulations and Rates. The grantee shall have the authority to promulgate the rules, regulations, terms and conditions of and for its business as shall be necessary to enable the grantee 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 grantee shall have the right and power to fix, charge, collect and receive reasonable rates for community antennae and closed-circuit electronic service furnished within the corporate limits of the city.
Section 28. Pole Use Fee. The grantee shall negotiate a contract with the owner of the poles to which grantee attaches its transmission cable or devices.
Section 29. Costs. The grantee shall assume the cost of publication of this franchise, if the publication is required by law, and any other costs incurred in connection therewith.
Section 30. Modification. Any modification of the provisions of Section 76.31 of the Rules and Regulations of the Federal Communications Commission shall be incorporated into this franchise agreement within one year of the adoption of the modification or at the time of franchise renewal, whichever occurs first.
Section 31. Business Office. Grantee shall, at all times during the existence of this franchise, maintain a business office and provide a toll free number for the business office.
Section 32. Construction Time. The grantee shall accomplish significant construction within 128 months after publication of this ordinance and shall thereafter reasonably make cable service available to a substantial percentage of this franchise each year.
Section 33. Separability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutionally by any court of competent jurisdiction, the portion shall be deemed a separate, distinct, and independent provision, and the holding shall not affect the validity of the remaining portions hereof.