AN ORDINANCE OF THE CITY OF PLAINS, KANSAS, GRANTING INTERLINK COMMUNICATIONS PARTNERS, LLC D/B/A CHARTER COMMUNICATIONS, ITS SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE RIGHT, PRIVILEGE, FRAN CHISE, AND RIGHT-OF-WAY TO OPERATE A CABLE TELEVISION SYSTEM WITHIN THE CITY OF PLAINS; DESCRIBING THE FRANCHISE, PROVIDING FOR A TEN 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 PLAINS; PROVIDING REMEDIES IN CASE OF DEFAULT; PROVIDING A WAIVER AND REPEALING ORDINANCE NO. 423.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF PLAINS, MEADE COUNTY, KANSAS:
SECTION 1. Grant of Franchise. The City of Plains, (hereinafter referred to as the “City”), hereby grants to Interlink Communications Partners, LLC d/b/a Charter Communications, (hereinafter referred to as the “Company”), a non-exclusive franchise to construct and operate a cable television system within the City of Plains, in the State of Kansas, subject to the terms and conditions 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 underground 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 communication services.
SECTION 3. Term of Franchise and Periodic Performance Evaluations. The term of the franchise granted herein shall be for a period of ten (10) years from and after the effective date of this Ordinance as hereinafter provided, and subject to the conditions and restrictions as provided herein. The City may hold performance evaluation sessions within sixty (60) days of the second, fourth, sixth, and eighth anniversary dates of the effective date of this Ordinance, and at any other time mutually agreed upon by the Company and the City. Such evaluation sessions shall be conducted by the City. The evaluation sessions shall be open to the public and announced at least one week in advance in the newspaper of general circulation in the Franchise Area. Topics which may be discussed at the evaluation session may include, but are not limited to, cable service rates; franchise fees; new technologies; system performance; cable services provided; programming offered; customer satisfaction; amendments to the Ordinance; judicial and FCC rulings; line extensions and City or Company’s rules; provided that nothing in this subsection shall be construed as requiring the renegotiation of this Agreement. During this evaluation, Company shall fully cooperate with the City and shall provide such information and documents as the City may require to perform the evaluation. If, during the mid-term evaluation, the City determines that system performance does not meet the needs of Company subscribers, the City may require that changes be made to the Company system that will correct under performance within thirty (30) days (,r notice: to the Company. If such changes are not feasibly correctable for technical or economic reasons, the Company may, within the thirty (30) day cure period provide a plan to the City to correct such under performance.
SECTION 4. Franchise Rights Subject to Local Powers. In accepting this franchise, the Company acknowledges that its rights hereunder are subject to the lawful power of the City to adopt and to 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 lawful 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 Company, the Grantee shall annually pay to the City of Plains, Kansas, during the existence of this franchise, five percent (5%) of its Gross Revenues. Said franchise fees shall be paid within ninety (90) days after each calendar year, with a brief report prepared by a representative of the Company showing the basis of computation. Said franchise fee percentage shall begin sixty (60) days after the effective date of this Franchise to allow the Company the opportunity to make adjustments on customers’ bills and to provide any notifications subject to applicable federal law.
Notwithstanding anything to the contrary, the term “Gross Revenues” shall mean any revenues received by the Company from the operation of the Cable System to provide Cable Services within the jurisdictional boundaries of the City. “Gross Revenues” shall not include any taxes, fees or assessment of general applicability collected by the Company from customers for pass-through to a government agency, including the FCC User Fee, franchise fee or unrecovered bad debt.
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 televisions systems of the size of that 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) single family dwelling units 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 Electric 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, one (1) service drop per facility at all Public Schools (K-12) in the City, to the City Library, to the Fire Station, to the City Hall, to the Club House at the City owned golf course (so long as such use is not for commercial purposes), and to the planned Community Center upon construction, so long as such buildings are within two hundred feet (200’) of the cable system’s feeder lines. If such building is located more than two hundred feet (200’) from existing cable system feeder lines or more than one (1) drop is require at anyone 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. 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 the 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 ten (10) days after the effective date of this Ordinance.
SECTION 11. 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, 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.
(e) The Company shall maintain the cable system in compliance with applicable technical standards as they have been adopted by the FCC.
SECTION 12. Channel Capacity. Immediately after the effective date of this Agreement, the Company shall commence steps necessary 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) programming services. 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 13. 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 sale 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 Company 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 14. 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.
SECTION 15. Separability. If any section, subsection, sentence, clause, phrase, or portion of this Ordinance is for any reason held to be invalid, unconstitutional, or unenforceable, by a court of competent jurisdiction, such portion shall be deemed to be a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions hereof. Should any provision of this Ordinance be inconsistent or at variance with any rule, regulation, or policy, in whole or in part, with the Federal Communications Commission or any other agency having jurisdiction, such provision shall be invalid, but the remaining provisions hereof shall not be affected thereby.