(As Amended by Ord. 973)
AN ORDINANCE GRANTING UNTO KARLEN COMMUNICATIONS, INC., ITS SUCCESSORS AND ASSIGNS, FOR A TERM OF FIFTEEN YEARS, THE RIGHT, AUTHORITY, POWER AND FRANCHISE TO ESTABLISH, CONSTRUCT, ACQUIRE, MAINTAIN AND OPERATE COMMUNITY ANTENNA AND CLOSED-CIRCUIT ELECTRONIC SYSTEM WITHIN THE CITY OF HOISINGTON, KANSAS, AND TO USE AND OCCUPY THE STREETS AND OTHER PUBLIC PLACES OF THE CITY OF HOISINGTON, KANSAS, FOR SUCH COMMUNITY ANTENNA AND CLOSED-CIRCUIT ELECTRONIC SYSTEM, AND REPEALING ORDINANCE NO. AND ALL OTHER ORDINANCES OR PARTS OF ORDINANCES OF THE CITY OF HOISINGTON IN CONFLICT HEREWITH.
Section 1. In consideration of the faithful performance and observance of the conditions and reservations hereinafter specified, and after full consideration of the franchisee's legal, character, financial, technical and other qualifications, and the adequacy and feasibility of its construction and service arrangements, which have been approved by the franchising authority as part of a full public proceeding affording due process by notice of public hearing published in the official city newspaper in compliance with K.S.A. 12-2007, the non-exclusive right, authority, power and franchise is hereby granted to Karlen Communications, Inc., hereinafter referred to as “the company,” a corporation duly incorporated under the laws of the State of New York its successors and assigns, provided such successors or assigns are approved by the governing body, to establish, construct, acquire, maintain and operate a community antennae and closed-circuit electronic system within the City of Hoisington, Kansas, hereinafter referred to as “the city” or “franchising authority,” to render, furnish and sell community antennae and closed-circuit electronic service from such system to the inhabitants of the city and to use and occupy the streets and other public places within the corporate limits of the city as the same now exist or may hereafter for its community- antennae and closed-circuit electronic system, including the right to enter and construct, erect, locate, relocate, repair and rebuild in, on, under, along, over and across the streets, alleys, avenues, parkways, lanes, bridges and other public places in the city, all towers, poles, cables, amplifiers, conduits and other facilities owned, leased or otherwise used by the company for the furnishing of community antennae and closed-circuit electronic service within the City of Hoisington.
Section 2. The poles used for the company's distribution system shall be those erected and maintained by anyone authorized to maintain poles in the streets when and where practicable, providing mutually satisfactory rental agreements can be entered into with said companies. Where the use of such poles is not practicable or mutually satisfactory or rental agreements cannot be entered into with said persons or utilities, the company shall have the right to erect and maintain its own poles and underground conduits as may be necessary for the proper construction and maintenance of the community antennae and closed-circuit system.
Section 3. The company's transmission and distribution system, poles, underground conduits, wires, and appurtenances shall be located, erected and maintained so as not to endanger or interfere with the lives of persons, or obstruct the free use of the streets, alleys, bridges or other public property. Construction and maintenance of the transmission and distribution system, including house connections, shall be in accordance with the provisions of the National Electrical Safety Code of the National Board of Fire Underwriters and such applicable ordinances and regulations on the city affecting electrical installations which may be in effect.
Section 4. The city reserves the right of reasonable regulation of the erection, excavation, construction or installation of any such facilities by the company, and to designate where such facilities are to be placed within the streets, alleys and other public ways and places. The company shall not places poles or other fixtures where the same will interfere with any gas, electric or telephone fixtures, water hydrants or mains, and all such poles or other fixtures shall be placed in alleys where feasible and shall be placed near the line of the lot abutting on said alley and then in such a manner as not to interfere with travel on said streets, alleys and public ways. Provided, however, no poles or towers shall be erected by the company without the express written consent of the city at locations to be approved by the city, which consent shall be evidenced by written permit from the city manager, after plans and specifications for such facilities have been filed with the city manager, and provided further that the company shall, at its own expense, move its lines, underground conduits, cables, wiring, towers, poles and other apparatus to other locations when required by the governing body for the safety or convenience of the city and the inhabitants thereof.
Section 5. Any pavement, sidewalks or curbing taken up or any and all excavations made by the company shall be done under the applicable ordinances of the city relating thereto and permits issued in connection therewith, and shall be made and done in such a manner as to cause the least possible inconvenience to the general public, and all such pavement, sidewalks, curbing and excavations shall be replaced and repaired in accordance with applicable ordinances of the city in as good condition as before with all convenient speed, at the expense of the company, which shall at all times make and keep full and complete plats, maps and records showing the exact locations of the facilities located within the public ways of the city and shall keep complete copies thereof on file in the office of the city clerk. Any opening or obstruction on the streets or other public places made by the company in the course of its operation shall be guarded and protected at all times by the placement of adequate barriers, fences or boardings, the bounds of which during periods of dusk and darkness shall be clearly designed by red warning lights.
Section 6. In the event that at any time during the period of this franchise the city shall lawfully elect to repair, reconstruct, alter or change the grade of any street alley or other public way, or make new public improvements, 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. Upon cancellation or termination of this franchise in accordance with its terms and conditions, the company at its own expense shall remove all towers, poles, cables, amplifiers, conduits and other facilities owned or controlled by it and located within the streets, alleys, and other public places in accordance with applicable ordinances of the city and the terms and conditions of this franchise.
Section 7. That the company shall have the authority to promulgate such rules, regulations, terms and conditions of its business as shall be reasonably necessary to enable the company to exercise its rights and perform its services under this franchise and to assure an uninterrupted service to each of all of its customers. The company shall have the right and power to fix, charge, collect and receive reasonable rates for community antennae and closed-circuit television and other electronic service furnished within the corporate limits of the city, provided that the governing body of the city reserves the right at all times during the existence of this franchise, to fix and determine maximum rates to be charged by the company for services in said city. The present rates and charges of the company have been approved by the franchising authority pursuant to a full public proceeding. Any increase in subscribed rates must also first be approved by the franchising authority after a full public proceeding.
Section 8. The distribution system of the company to be hereafter installed shall not be abandoned either in whole or in part without the consent of the governing body.
Section 9. The company shall indemnify, protect and save harmless the city from and against losses and physical damages to property and bodily injury or death to persons including payments made under any Workmen's Compensation Law which may arise out of or be caused by the erecting, maintenance, presence, use or removal of said attachments on poles within the city or by any act of the company, its agents or employees. The company shall carry insurance to protect the parties hereto from and against all claims, demands, actions, judgments, costs, expenses and liabilities which may arise or result directly or indirectly from or by reason of such loss, injury or damage. Prior to commencing construction, the company shall file with the city clerk certificates evidencing that public liability insurance with limits of at least $100,000 on any person and $300,000 for anyone accident, and property damage insurance of at least $25,000, on occurrence basis, is currently being maintained by the company. The company shall also carry such insurance as it deems necessary to protect it from all claims under any Workmen's Compensation Law in effect that may be applicable to the company. The company shall indemnify said city against all claims for copyright infringement or other demands based upon alleged pirating of protected works of music, drama or literature used in programs provided to patrons of the company within the city. All insurance required by this agreement shall be and remain in full force and effect for the entire life of this agreement. The city shall notify the company within 10 days after presentation or service of any demand, claim or suit covered under this section.
Section 10. The company 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 reasonable and normal expenses of such temporary removal, raising or lowering the 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 48 hours advance notice to arrange for such temporary wire changes.
Section 11. Subject to the rights of adjoining property owners, 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 to be done under the supervision and direction of the city and at the expense of the company.
Section 12. 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, and to such reasonable regulation as the city shall hereafter by resolution or ordinance provide.
Section 13. The company shall grant to the city, free of expense, joint use of any and all poles owned by it for any proper municipal purpose acceptable to the company insofar as it may be done without interfering with the free use and enjoyment of the company's own wires and fixtures and the city shall hold the company harmless from any and all actions, causes of actions, or damage caused by the placing of the city's wires or appurtenances upon the poles of the company. Proper regard shall be given to all existing safety rules governing construction and maintenance in effect at the time of construction.
Section 14. Procedures have been adopted by the company and the city for the investigation and resolution of all unresolved complaints regarding cable television service; the company is required to maintain a local business office or agent for these purposes; the city hereby designates office of the city manager which will have primary responsibility for the continuing administration of the franchise and implementation of complaint procedures; and notice of the procedures for reporting and resolving complaints will be given to each subscriber at the time of initial subscription to the cable television system operated by the company.
Section 15. That the company specifically agrees:
(a) To furnish said service to any place in the corporate limits of said city as the same exist from time to time, upon application and tender of required connection fee therefor;
(b) By means of its cables, to provide to its patrons in said city, a television signal that will produce a clear picture, substantially free from distortion, smearing, fading, ghosting, channel interference of other irritating reception conditions associated with fringe areas, as well as satisfactory sound accompaniment thereto;
(c) By means of its cables, to provide to its patrons in said city, an F.M. radio signal that will produce in such a television set or F.M. radio set clear, static free reception;
(d) To construct, maintain and operate its said system in such manner as not to interfere in any way with any television reception (either video or audio), or radio reception, by any set not connected to the system of the company;
(e) To provide all major national television networks, plus a choice of the better metropolitan independent television broadcasting stations, furnished to the company by its microwave supplier, 24-hourweather scope information, and at least three sources of F.M. radio service on the cable for reception by the patron, at his option, on radio, hi-fi or stereo of F.M. capacity;
(f) To provide free of any charge, when it becomes available, educational network television programming, delivered on the cable of the system at an outside connection to each school in said city for which request is made;
(g) To furnish without installation charge or monthly service fee a single outlet to any of the city departmental offices within the service area of the company, if and when requested to do so; but such outlets shall not exceed an aggregate total of 10.
(h) To furnish without installation charge or monthly service fee a minimum of two outlets to the general hospital within said city.
Section 16. 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, and in lieu of all occupation and license taxes, the company shall, on or before the last day of January and the last day of July of each year to which this franchise is effective, pay to the city a sum equal to three percent of the gross receipts from the sale of basic cable television service by the Hoisington system serving the inhabitants of the city and its environs for the preceding six months period ending on the last day of December and last day of June, respectively. The term “gross receipts” is applied to sales of community antennae television service, as used in this section, shall include service sold for domestic or residential consumption, and service for commercial or industrial consumption, but shall not include services to educational institutions not operating for profit, churches and charitable institutions, as such users are construed by the United States Department of internal Service under the Revenue Act of 1932, as amended. Specifically excluded from this determination are fees charged for subscription services and leased access service. The city shall have the right and privilege, by and through its auditor or other persons designated by it, of free access to the books, vouchers, contracts, and records of the company and the successors and assigns thereof, for the purpose of ascertaining the gross receipts derived from the distribution and sale of said signal service, in order to determine therefrom the amount to be paid the city.
Section 17. Failure or refusal to observe the terms and provisions of this franchise by the company, its successors, assigns, or designees, shall entitle the city to cancel and terminate this franchise and all rights thereunder. The city may exercise such rights 90 days after the service of notice upon the company of failure to observe the terms thereof, and upon refusal by the company during said 90 day period to perform or act as required by said franchise, this franchise shall be considered canceled and null and void except that it shall still retain its rights to a collect all monies due from company to city and to receive the benefits due city as provided in Sections 9, 14 and 16 of this franchise ordinance. No cancellation may be enacted after the 90 day period without first providing for public hearing. Service of such initial notice shall be made by registered mail to the company's office in the City of Hoisington and also to its office at 31 Ward Drive, New Rochell, New York 10804.
Section 18. Any modifications of the provisions of the Federal Communications Commission's franchise standards resulting from amendment by said commission shall be incorporated into this franchise within one year of adoption of the modification, or at the time of franchise renewal, whichever occurs first.
Section 19. All provisions of this ordinance shall be binding upon the company and all successors and assigns of the company, whether expressly stated herein or not, and all rights, authorities, powers, grants, and privileges secured by this ordinance to the company shall be held to inure to the benefit of the company and all successors and assigns to the company.
Section 20. The company shall at the time this franchise becomes effective pay to the city the sum to cover ordinance publication costs when presented with bill by the city.
Section 21. Should the provisions of any section to this ordinance be adjudged illegal by any judicial body, or superseding federal and/or state authority possession such authority or right, said section or provisions shall be null and void without affecting the validity of all other sections of this ordinance.