AN ORDINANCE GRANTING A FRANCHISE TO OZ CABLE COM. 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 TOWANDA, KANSAS, SETTING FORTH CONDITIONS ACCOMPANYING THE GRANTEE OF FRANCHISE PROVIDING FOR CITY REGULATION AND USE OF THE COMMUNITY ANTENNA TELEVISION SYSTEM AND PRESCRIBING PENALTIES FOR THE VIOLATION OF THE FRANCHISE PROVISIONS.
1. This ordinance shall be known as “The Towanda Community Antenna Television Franchise Ordinance No. 266.”
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 Towanda, State of Kansas.
(b) Council is the city council of 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 Oz Cable Com., 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 of 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.
3. Grant of Exclusive and Non-Exclusive Authority. There is hereby granted by the city to the grantee the 120 day 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. Upon the expiration of 120 days, the grantees authority herein shall be non-exclusive and it is understood that other cable television suppliers may be allowed franchises within the city similar to the one granted herein.
4. Compliance With Applicable Laws and Ordinances. The grantee shall at all time during the life of this franchise, be subject to all lawful exercise of authority by the city.
5. Territorial Area Involved. This franchise relates to the city limits of the City of Towanda. Grantee may build into newly-platted areas on the same basis as the utility companies.
6. Indemnification. The grantee shall maintain, and by its acceptance of this franchise specifically agree 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 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.
(b) $100,000 for property damage resulting from one accident.
(c) Workmen’s Compensation coverage covering all of grantee’s employees.
7. Signal Quality Requirements. 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.
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.
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.
10. Service. The grantee shall, upon request, provide a drop service at no cost to the following locations in the City of Towanda, for the purposes of public education and information: A city-owned building, parochial schools, public schools and Butler County Community Junior College. A drop service shall mean that one service connection shall be made available to each site specified with no internal wiring before required on behalf of the grantee, such internal wiring to be and remain the responsibility of the individual site concerned.
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.
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.
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 Department of the Interior.
(b) The grantee shall maintain a sufficient force of employees to provide adequate and prompt service for its facilities.
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 more effectively, efficiently, or economically to serve its customers.
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 such 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 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 15 days advance notice to arrange for such 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.
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.
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.
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.
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.
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 the city.
(b) The grantee shall file annually with the city clerk, not later than 90 days after end of 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 such verification the resultant franchise fee.
22. Payment to the City. The grantee, after the system is operational, shall pay to the city annually an amount equal to three percent of the gross subscriber base revenues.
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 such violation is without fault or through excusable neglect.
24. Duration of Franchise.
(a) 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 15 years.
(b) Grantee is granted an option to extend the aforementioned term of this franchise for a period of 15 years.
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, such use will be allowed at the same price per pole as grantee is paying the utility companies, provided such 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.
26. Number of Channels. The grantee’s cable distribution system shall be capable of carrying at least 35 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 for the benefit of the inhabitants of the city. Other channels will be available as the need arises.
27. Rates. The following rates and charges are hereby authorized for service under this franchise to be effective upon the date of the signing hereof. These rates shall not be exceeded, except that they may be adjusted on the anniversary date of this franchise based on increases in the Private Transportation Index of the National Consumer Price Index as indicated by the U.S. Government.
Thereafter, increases in the rate schedule may be made by the grantee providing the city is notified thereon wiring 45 days prior to the proposed change. If no action is taken within the 45 days, the proposed change will be effective immediately thereafter. If the city objects to the proposed change, it may during the aforementioned time limit hold a public hearing affording due process to which the grantee is an indispensable party. Following the hearing the city may act affirmatively or negatively upon the proposed increase, it must at that time, notify the grantee in writing stating its reasons.
Residential Rates
(a) Original connection charge, single television outlet (except that if underground cable is used to connect from pole to house, additional charge of 15? per foot will be made) - $20;
(b) Additional television outlets, each (installation) - $7.50 ($8)*;
(c) Relating outlet charge, each - $7.50 ($8)*;
(d) Reconnection charge (when customer has previously subscribed to service) - $7.50 ($8)*;
(e) Monthly service charge, single television outlet - $7.50 ($10)*;
(f) Additional television outlets, each (monthly) - $1.50 ($2.50)*;
Commercial Rates
(a) Installation Charges: Hotels, Motels, Apartments, Hospitals, and similar mass receivers, single television outlet; Wiring and installation of additional units; Actual cost of material and labor - $20;
(b) Monthly Service Charge
First outlet - $7.75 ($10)*;
Next 15 units - $4.50 ($5.50)*;
Next 35 units - $4.25 ($5.25)*;
Over 51 units - $4 ($5)*.
(c) Relocating Outlet Charge, each - $7.50 ($8)*;
(d) Reconnection charge (when customer has previously subscribed to service) - $7.50 ($8)*.
*Rates in parentheses may be charged anytime during the term of the franchise without prior approval.
Where there is more than 150 feet of distance from cable to connection of service to subscriber, grantee will charge for installation on the basis of costs of material and labor.
If in the future, the State of Kansas, regulates the rates of the grantee for the service provided for in this franchise, this section shall be of no effect during such state regulation to the extent of any conflict therewith.
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.
29. Costs. The grantee shall assume the cost of publication of this franchise if such publication is required by law, and any other costs incurred in connection therewith.
30. Qualifications. The grantee’s legal character, financial, technical, and other qualifications have been approved by the franchising authority as part of a fully public proceeding, affording due process.
31. 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.
32. Grantee shall at all times, during the existence of this franchise, maintain a business office in the city of El Dorado, Kansas.
33. Separability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions hereof.
34. As per our agreement we will hire at least one individual, supplied with a marked company vehicle who will concentrate his daily activities in the city limits of Towanda. However, as work load demands he may be used in other parts of the cable system.
(7-17-1979)