AN ORDINANCE GRANTING TO ALLEGIANCE ENTERTAINMENT I, LLC D/B/A CHARTER COMMUNICATIONS (“CHARTER”) PERMISSION TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE SYSTEM UPON, ALONG, ACROSS, OVER, AND UNDER THE STREETS AND PUBLIC RIGHTS OF WAY OF THE CITY OF CONWAY SPRINGS, KANSAS.
Section 1. Definitions:
(a) “Basic Service”-means those audio and visual signals carried on the service tier of the Cable System, which includes local off-air television signals. Basic Service shall not include any other tier of service or any premium or pay-per-view channels or services.
(b) “Cable Act”-means the Cable Communications Policy Act of 1984, P.L. 98-549, 47 U.S.C. §521 Supp., as it may be amended or superseded.
(c) “Cable Service”-shall mean:
(1) The one-way transmission to Subscribers of:
(A) Video programming, or
(B) Other programming service, and
(2) Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.
(d) “Cable System” or “System”-means a system of antennas, cables, wires, lines, towers or any other conductors, converters, equipment or facilities designed, constructed, or operated for the purpose of producing, receiving, amplifying, modifying and distributing audio, video, and other forms of communication or electronic signals for the purpose of providing Cable Services to and from Subscribers within the jurisdictional limits of the Grantor.
(e) “Council”-means the governing body of the Grantor.
(f) “Franchise”-means the authorization granted hereunder of a franchise, privilege, permit, license or otherwise to construct, operate and maintain a Cable System within the jurisdictional limits of the Grantor.
(g) “Grantee”-means Charter Communications Entertainment I, LLC d/b/a Charter Communications (“Charter”), and its permitted successors and assigns.
(h) “Grantor”-means the City of Conway Springs, Kansas.
(i) “Gross Revenues”-means any revenue received by the Grantee from the operation of the Cable System to provide Cable Services within the jurisdictional boundaries of the Grantor, provided, however, that such phrase shall not include any taxes, fee or assessment of general applicability collected by the Grantee from Subscribers for pass-through to a government agency, including the FCC User Fee, or unrecovered bad debt.
(j) “School”-means all public and parochial primary and secondary (K-12) schools.
(k) “Streets”-means the public streets, avenues, highways, boulevards, concourses, driveways, bridges, tunnels, parks, parkways, waterways, alleys, all other rights-of-way and easements, and the public grounds places or water within the jurisdictional boundaries of Grantor.
(l) “Subscriber”-means a lawful purchaser of any Cable Service delivered over the Cable System.
Section 2. Granting of Franchise. The Grantor hereby grants to Grantee a non-exclusive Franchise for the use of the-Streets and dedicated easements within the Grantor for the construction, operation and maintenance. Of the Cable System, upon the terms and conditions set forth herein.
Section 3. Term. The Franchise shall be for a term of Twenty (20) years, commencing on the effective date of this Ordinance. Subsequent renewals shall be pursuant to the renewal provisions of the Cable Act, as it shall provide.
Section 4. Use of the Streets and Dedicated Easements.
(a) Grantee shall have the right to use the Streets of the Grantor for the construction, operations and maintenance of the Cable System.
(b) Grantee, at its own cost, shall have the right pursuant to the provisions of this Ordinance to construct, erect, suspend, install, renew, maintain and otherwise own and operate throughout the Streets of the Grantor, as now laid out or dedicated and all extensions thereof and additions thereto in the Grantor, the Cable System, either separately or in conjunction with any public utility operating within the Grantor. The Franchise shall further include the right, privilege, easement and authority to construct, erect, suspend, install, lay, renew, repair, maintain and operate such poles, wires, cable, underground conduits, manholes, ducts, trenches, fixtures, appliances and appurtenances for the purpose of distribution to inhabitants within the jurisdictional limits of the Grantor. Without limiting the generality of the foregoing, the Franchise shall and does hereby include the right to repair, replace and enlarge and extend the Cable System, provided that Grantee shall utilize the facilities of utilities whenever practicable.
(c) Grantee shall have the right to remove, trim, cut and keep clear of the Cable System, the trees in and along the Streets of the Grantor.
(d) Grantee in the exercise of any right granted to it by the Franchise shall, at no cost to the Grantor, promptly repair or replace any facility or service of the Grantor which Grantee damages, including but not limited to any Street or sewer, electric facility, water main, fire alarm, police communication or traffic control.
Section 5. Maintenance of the Cable System.
(a) Grantee shall at all times employ ordinary care in. The maintenance and operation of the Cable System so as not to endanger the life, health or property of any citizen of the Grantor or the property of the Grantor. The Cable System shall at all times be kept in good repair and in a safe and acceptable condition.
(b) Grantee shall install and maintain the Cable System so as not to interfere with the equipment of any utility of the Grantor or any other entity lawfully and rightfully using the Streets of the Grantor.
(c) All conductors, cables, towers, poles and other components of the Cable System shall be located and constructed by Grantee so as to reasonably minimize interference with access by adjoining property owners to the Streets;
Section 6. Service.
(a) Grantee shall provide to its Subscribers broad categories of video programming services.
(b) Grantee shall provide one free outlet of Basic Service to the following public facilities located within two hundred (200) feet of existing service lines of the Grantee and within the jurisdictional limits of the Grantor: City Hall, each Fire and Police station, public libraries and Schools. No monthly service fee shall be charged for such outlet. Grantee shall provide Basic Service to new construction hereafter for similar public facilities; provided they are within two hundred (200) feet of the existing service lines of Grantee.
Section 7. Insurance/Indemnity.
(a) From and after the effective date of this Ordinance, Grantee shall maintain in full force and effect at all times for the full term of the Franchise, at the expense of the Grantee, a comprehensive general liability insurance policy, written by a company authorized to do business in the state, protecting against liability for loss or bodily injury and property damage occasioned by the installation, removal, maintenance or operation of the Cable System by Grantee in the following minimum amounts:
One Million Dollars ($1,000,000) for property damage in any one occurrence.
One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) aggregate for general liability insurance.
Worker’s compensation coverage in accordance with state law.
(b) The Granter and its officials and employees shall be named as additional insureds on such policy. The Granter shall be notified by the insurance company at least thirty (30) days prior to the expiration or cancellation of such insurance policy.
(c) Grantee hereby agrees to indemnify and hold the Granter, including its agents and employees, harmless from any claims or damages resulting from the actions of Grantee in constructing, operating or maintaining the Cable System. Granter agrees to give the Grantee written notice of its obligation to indemnify Granter within ten (10) days of receipt of a claim or action pursuant to this section. Notwithstanding the foregoing, the Grantee shall not be obligated to indemnify Granter for any damages, liability or claims resulting from the willful misconduct or negligence of Granter or for the Grantor’s use of the Cable System.
Section 8. Pledge, Assignment of Assets. Grantee may not assign the Franchise without first obtaining the written consent of the Council, which consent shall not be unreasonably withheld, provided, however, that-Grantee may mortgage or pledge the Franchise for financing purposes or may transfer the Franchise to an affiliated entity upon 30 days’ written notice to the Granter;
Section 9. Cancellation and Expiration.
(a) Unless earlier terminated in accordance with this Ordinance, the Franci4se shall expire Twenty (20) years after the effective date of this Ordinance.
(b) Prior to revocation or termination of the Franchise, the Granter shall give written notice to the Grantee of its intent to revoke-the Franchise on the basis of a pattern of noncompliance by the Grantee, including one or more instances of substantial noncompliance with a material provision of the Franchise. The notice shall set force the exact nature of the noncompliance. The Grantee shall have sixty (60) days from such notice to either object in writing and to state its reasons for such objection and provide any explanation or to cure the alleged noncompliance. If Grantee has not cured the breach within such sixty (60) day time period or if the Granter has not otherwise received a satisfactory response from Grantee, the Granter may then seek to revoke the Franchise at a public hearing. The Grantee shall be given at least thirty (30) days prior written notice of such public hearing, specifying the time and place of such hearing and stating its intent to revoke the Franchise.
(c) At the hearing, the Granter shall give the Grantee an opportunity to state its position on the matter, present evidence and question witnesses, after which it shall determine whether or not the Franchise shall be revoked. The public hearing shall be on the record and a written transcript shall be made available to the Grantee within ten (10) business days. The Grantee may appeal such determination to an appropriate court, which shall have the power to review the decision of the Granter de nova.
(d) Prevention or delay of any performance under the Franchise due to circumstances beyond the control of Grantee including, but not limited to, natural disasters, employee strikes, war or delays caused by utility companies that affect the Grantees ability to operate shall not be deemed noncompliance with or a violation of this Franchise.
(e) Upon termination of the Franchise, Grantee agrees to remove the Cable System from the Streets of the Granter, unless Granter and Grantee agree that the Cable System can be abandoned in place.
Section 10. Enforcement of Terms and Conditions. Either the Granter or Grantee may institute proceedings in a court of competent jurisdiction to enforce the terms and conditions of this Ordinance.
Section 11. Equal Protection. The Granter shall not authorize or permit any person providing and/or Cable Services to enter into any part of the Grantor’s Streets favorable or less burdensome, to such person than those applied to Franchise, in order that one operator not be granted an unfair competitive advantage over another, and to provide all parties equal protection under the law.
Section 12. Notices, Miscellaneous.
(a) Every notice served upon the Granter shall be delivered or sent by certified mail, return receipt requested, to:
City of Conway Springs City Hall
Attention: City Clerk
208 W. Spring Avenue
Conway Springs, Kansas 67031
and every notice served upon Grantee shall be delivered or sent by certified mail, return receipt requested, to Allegiance Communications With a copy to:
Allegiance Communications
Attention: Corporate Government Affairs
12405 Powerscourt Drive
St. Louis, MO 63131
(b) All provisions of this Ordinance shall apply to the respective parties, their successors and assigns.
(c) If any particular section of this Ordinance shall be held invalid, the remaining provisions and their application shall not be affected thereby.
Section 13. Franchise Fee.
(a) Grantee shall pay to the Granter annually an amount equal to three percent (3%) of its Gross Revenues for such calendar year.
(b) Each year during which the Franchise is in force, Grantee shall pay Granter no later than ninety (90) days after the end of each calendar year the franchise fees required by this Section, together with a financial statement showing total Gross Revenues derived from the Cable System during such year. The Granter shall have the right to review the previous year’s books of the Grantee to ensure proper payment of the fees payable hereunder;
Section 14. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is held invalid, unconstitutional or unenforceable, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof.
(08-08-04)