AN ORDINANCE GRANTING A NONEXCLUSIVE FRANCHISE TO GALAXY TELECOM, L, P. A DELAWARE CORPORATION, TO BUILD, CONSTRUCT, OPERATE AND MAINTAIN A BROADBAND COMMUNICATION SYSTEM FOR THE DISTRIBUTION OF AUDIO, VIDEO AND DATA TRANSMISSIONS IN, UNDER AND OVER PUBLIC RIGHTS OF WAY IN THE CITY OF WAKEFIELD, KANSAS.
WHEREAS, at this time the City of Wakefield, Kansas (City) has been provided a community antenna television system and service by Empire Cable of Kansas, Inc., under the authority of Ordinance No. 1078, and
WHEREAS, the franchise granted by Ordinance No. 1078 expired in 1992 without renewal in compliance with law, and the City did, pursuant to K.S.A. 12-2007, conduct a public hearing on April 1, 1996, after published notice of hearing on March 18, 1996, on the question of whether a cable television service franchise should be granted at this time.
NOW, THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF WAKEFIELD, KANSAS:
Section 1. FRANCHISE GRANT. Pursuant to law, a nonexclusive franchise is granted to Galaxy Telecom, L.P., (Grantee) to construct, operate and maintain a broadband communication system, as hereinafter defined, in the City for a period of ten (10) years from the effective date of this Ordinance. Said nonexclusive franchise shall be subject to and conditional upon all provisions of federal and state law and the rules and regulations of the Federal Communications Commission. Broadband communications system shall be defined as and shall mean the system of antennas, towers, satellite earth stations, microwave, coaxial cable, fiber optics, waveguides, or other conductors, converters, equipment and· facilities, designed and constructed for the purpose of producing, receiving, transmitting, amplifying and distributing audio, video, digital and other forms of electronic and electrical signals to persons who subscribe to programs and services delivered by such signals. Said definition shall not include any such facility that serves only subscribers in one or multiple unit dwellings under common ownership, control or management, and does not use the rights of way of the City.
Section 2. GRANT OF AUTHORITY.
(a) There is hereby granted to the Grantee the nonexclusive right and privilege to construct, erect, operate and maintain in, upon, along, across, above, over and under the streets, alleys, public utility easements, public ways and public places now laid out or dedicated, and all extensions thereto in the City, according to the technical specifications of the Federal Communications Commission, all poles, wires, cables, underground conduits, manholes and other conductors and fixtures necessary for the transmission of communication signals and all other signals permitted by the Federal Communications Commission or its successor agency, either separately or upon or in conjunction with any public utility maintaining the same in the City, with all of the necessary and desirable appliances and appurtenances pertaining thereto. Without limiting the generality of the foregoing, this franchise and grant shall and does hereby include the right in, over, under and upon the streets, sidewalks, alleys, public utility easements and public grounds and places in the City to install, erect, operate or in any way acquire the use of, as by leasing or licensing, all lines and equipment necessary to a broadband communication system and the right to make connections to subscribers and the right to repair, replace, enlarge and extend said lines, equipment and connections. Grantee shall have authority to trim trees that overhang the public right-of-way only when absolutely necessary and then in a good and workmanlike manner. This franchise and grant includes the right to use public property which shall have been acquired by the City in the future as well as public property currently owned by it, upon approval being granted by the City.
(b) The above grant to Grantee shall include the right to offer broadband communication service to residents within the present boundarie5 of the City as those boundaries may change from time to time by annexation or otherwise. Whenever the Company receives a request for service from at least ten ( 10) single family residence connections within one thousand five hundred (1500) feet of its distribution cable, it shall extend the system to such subscribers at no cost to the subscribers other than the usual connection and service fees for all subscribers, provided that such system extension is technically and physically feasible. Measurement of the general density standard for service to any areas shall be from the closest existing point of the Company’s system. No person, firm, or corporation in the Company’s service area shall be arbitrarily refused service. However, in unusual circumstances, such as a requirement for underground cable that requires rock saw or service to subscribers of a density of less than ten (10) single family residences per one thousand five hundred ( 1500) feet of distribution cable, in order that the existing subscribers shall not be unfairly burdened, service may be made available on the basis of a capital contribution by the prospective subscriber(s) to the Company, including reimbursement for the Company’s cost of materials, labor and easements.
Section 3. LIABILITY - INDEMNIFICATION - INSURANCE.
(a) Damages. The Grantee shall pay, and by its acceptance of this authority, does specifically agree that it will pay all damages and penalties which the City legally may be required to pay as a result of granting this franchise. These damages or penalties shall include, but shall not be limited to: Damages arising out of copyright infringement, defamation, unauthorized taking, antitrust and royalty payments; any and all damages, including personal injury, death and property damages, arising out of the installation, operation or maintenance of the system authorized hereby. Provided, however, that this indemnification does not extend to causes of actions arising solely from the actions of the City, its officers and employees and for which Grantee has no responsibility. And further provided that the City shall be liable for damages to the equipment and facilities of the Grantee which are the result of negligent or deliberate acts of employees of the City.
(b) Expenses of Litigation. Grantee shall pay and by its acceptance hereof specifically agrees that it will pay all expenses incurred by the City in defending itself with regard to all damages and penalties mentioned in Subsection 3 (a) for which Grantee has any responsibility, including expenses of investigation, except causes of action arising solely from the actions of the City, its officers and employees and for which Grantee has no responsibility. These expenses include all out-of-pocket expenses, such as attorney fees, providing Grantee shall have exclusive right to retain counsel of its choice, and shall include also the reasonable value of any services rendered by the City Attorney or his assistant(s) or any employees of the City.
(c) Insurance. Grantee shall maintain, and by acceptance hereof specifically agrees that it will maintain, throughout the term of this authority and grant, liability insurance insuring the Grantee and the City (the City to be a named insured) with respect to all damages mentioned in Subsection 3 (a) , in the following minimum amounts:
(1) Five Hundred Thousand and no/100 Dollars ($500,000.00) for bodily injury or death to any one person; One Million and no/100 Dollars ($1,000,000.00) for bodily injury or death resulting from any one accident;
(2) Five Hundred Thousand and no/100 Dollars ($500,000.00) for property damages resulting from one accident;
(3) One Million and no/100 ($1,000,000.00) for umbrella; and Dollars
(4) Workmen’s Compensation Insurance as required by all applicable Federal, State, Maritime or other laws, including Company’s Liability, with a limit of at least One Hundred Thousand and no/100 ($100,000.00).
(d) Casualty. Grantee shall keep the system and system facilities continuously insured against such risks as customarily are insured against by businesses of like size and type, including, but not limited to, insurance upon repair or replacement, if available, and to the full insurable value of the system facilities (with reasonable deductible provisions) against loss or damage by fire or lightning, with uniform standard coverage endorsement as in use in the State of Kansas.
(e) Co-insurance. Grantee may have the City included as co-insureds on all insurance policies referred to in Subsections (c) and (d). All such policies shall provide that the issuing insurance company will not cancel them without at least ten days prior notice to the Grantee and the City.
Section 4. CONSTRUCTION AND PERFORMANCE STANDARDS. All system facilities shall be installed, repaired and replaced by Grantee, or by someone in its behalf, and Grantee shall be solely responsible for and shall pay the expenses thereof, including the cost of promptly restoring the surface of any street, alley or other public way or any point of excavation, whether on public or private property. During the term hereof, Grantee shall be responsible for all costs of moving any portions of the system in the event the City finds that the public needs require changes in the location or use of any public property, including streets, grades, curbs, sewers and water mains. Grantee shall construct, install, operate and maintain its system in an orderly workmanlike manner and consistent with all federal, state, county and City laws, ordinances, construction standards and governmental requirements, and with technical standards of the Federal Communications Commission. Tests and measurements to ensure compliance with technical standards shall be performed by the Grantee, in a manner that is consistent with the provisions and standards of· the Federal Communications Commission, and results of all tests and measurements required to be taken by the Grantee shall be recorded, maintained and made available to the City upon request. Such tests and measurements shall be performed by Grantee upon the request of the City with good cause. Grantee shall not allow its cable or other operations to interfere with television reception of persons not served by the Grantee, nor shall the system interfere with, obstruct or hinder in any manner the operation of various utilities serving the residents of the City. Failures to the system shall be corrected promptly by the Grantee, and in no event longer than three ( 3) days after written notice by the City to Grantee of such failure.
Section 5. FRANCHISE FEE. The Grantee shall pay the City an amount equal to one percent (1.0%) of the Grantee’s gross basic revenue attributable to the operations of the system within the City. Grantee shall file accurate verified statements of gross revenue covered by this franchise during the period for which payment is to be made. Said payment shall be made annually and not later than 120 days after the close of the fiscal year of the Grantee. The City shall have the right to inspect the Grantee’s income records and the right to audit and recompute any amount determined to be payable under this Ordinance.
Section 6. RATES. Grantee shall charge subscribers for the connection of system services, and for the providing of system services to subscribers in accordance with Federal Communications Commission Rules 76.900 through 76.937, and all charges shall be uniform and non-discriminatory.
Section 7. CUSTOMER SERVICE STANDARDS. The Grantee shall maintain a system to receive and resolve inquiries and complaints. Work on service interruptions, complaints regarding the quality of service and equipment malfunctions shall begin promptly and within Twenty-four ( 24) hours of receipt of the complaint by Grantee. Grantee shall inform all subscribers of billing and complaint procedures. Upon request, copies of all rules and regulations in connection with the handling of inquiries and complaints by Grantee shall be furnished to the City. Any personally identifiable information collected from any customer by the Grantee in the normal course of business in providing service to that customer will not be used by the Grantee except to provide said service to the subscriber, or to detect unauthorized use of Grantee’s equipment or signals. The Grantee shall take such actions as necessary to prevent unauthorized access to such information by a person other than the customer or the Grantee as provided by law. Failure of the Grantee to furnish customer service in compliance with this Ordinance or the regulations of the Federal Communications Commission shall be cause for termination and cancellation of this franchise as hereinafter provided.
Section 8. SYSTEM MAP REQUIRED TO BE FILED. This Ordinance is passed and adopted in conformity with K.S.A. 12-2006 et. seq., and in addition to other provisions herein set out, said Grantee shall file with the City and obtain approval thereof of a proper map showing and describing the exact location or proposed location of all of its facilities within the City’s streets, alleys and public ways and secure from the proper City officials approval for the location and the erection of, either above or below ground facilities so as not to interfere with existing public utility franchises, excluding herefrom the necessity of securing prior approval of the City if and when said Grantee obtains pole attachment agreements with existing public utilities for the joint use of poles that may be now existing or may be hereafter erected by such public utility franchise other than by this Ordinance.
Section 9. TERMINATION. In addition to all of the rights and powers of the City by virtue of this Ordinance, or otherwise, the City reserves the right to terminate and cancel this franchise and all rights and privileges of the Grantee arising hereunder in the event that the Grantee:
(1) Violates any material provision of this authority or any rule, order or determination of the City made pursuant to this authority, except where such violation is beyond the control of the Grantee;
(2) Becomes insolvent, or is unable or unwilling to pay its debts, or is adjudged bankrupt or placed in receivership, or is no longer authorized to do business in the State of Kansas;
(3) Attempts to dispose of any facilities or property of its system in violation of the terms of this authority.
(4) Attempts to evade any of the material provisions of this authority or practices any fraud or deceit upon the City; s. and/or herein;
(5) Fails to begin or complete construction fails to provide services as required
(6) Fails· to restore system-wide service following Seventy-two ( 72) consecutive hours of interrupted services, except where prior approval of such interruption shall have been obtained from the City, or in the event that any such action is caused by acts of God, national emergency, war, strikes or other actions beyond the control of the Grantee.
Any termination proceeding initiated by the City shall occur only after thirty ( 30) days written notice to Grantee. The Grantee shall have an opportunity to respond to such a claim at a public hearing held on the matter. Grantee shall be a necessary party to all public hearings regarding operations or terminations of this franchise.
Upon termination, cancellation or expiration of this authority, the City shall have the right to require the Grantee to remove, at its own expense, all portions of the system from all public ways within the City within ninety (90) days of such termination, cancellation or expiration. Any of Grantee’s property not removed within said Ninety (90) days period shall be deemed abandoned. By action of this Ordinance, such abandoned property shall be the property of the City.
Section 10. ASSIGNMENT. Except for a mortgage or assignment to secure a loan to construct and operate said system, Grantee shall not sell, lease, sublet, or transfer its system and/or the privileges granted herein without first notifying the City and obtaining written consent to such assignment or transfer by the City.
Section 11. UNLAWFUL ACTS . It shall be unlawful for any person to:
(a) Make any unauthorized connection, whether physically, electrically, acoustically, inductively or otherwise, with any part of Grantee’s cable television signals, radio signals, pictures, programs, sounds or any other information or intelligence transmitted over Grantee’s cable system without payment to Grantee or its approved successors, assigns or lessees.
(b) Without the consent of the Grantee, willfully tamper with, remove or injure any cable, wire or other equipment used for the distribution of television signals, radio signals, pictures, programs, sounds or any other information or intelligence transmitted over the Grantee’s cable system.
Any person who violates any provision of this Ordinance shall be guilty of a misdemeanor, and shall be punished by a fine of not more than Three Hundred Dollars ($300.00), or by imprisonment for a term not exceeding Ninety ( 90) days, or by both such fine and imprisonment.
Section 12. SEVERABILITY. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any federal or state court or administrative or governmental agency of competent jurisdiction, specifically including the Federal Communications Commission, such portions shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions hereof, so long as the part hold invalid or unconstitutional shall not go to the essence hereof, or increase the liability of the City in any manner or form whatsoever.