AN ORDINANCE OF THE CITY OF WINCHESTER, KANSAS, GRANTING TO GIANT COMMUNICATIONS, LLC, ITS SUCCESSORS, LESSEES AND ASSIGNS, FOR A TERM OF FIVE (5) YEARS, THE NON-EXCLUSIVE RIGHT, AUTHORITY, POWER AND FRANCHISE TO ESTABLISH, CONSTRUCT, ACQUIRE, MAINTAIN AND OPERATE A CABLE TELEVISION SYSTEM WITHIN THE CITY OF WINCHESTER, TO RENDER, FURNISH AND SELL CABLE TELEVISION SERVICES THEREFROM WITHIN THE CITY OF WINCHESTER, AND ENVIRONS THEREOF, AND TO USE AND OCCUPY THE STREETS AND OTHER PUBLIC PLACES OF THE CITY OF WINCHESTER FOR SUCH CABLE TELEVISION SERVICES.
WHEREAS, it is in the public interest of the City of Winchester, Kansas, and its citizens to have available to the City of Winchester and its citizens, cable television and related services within the city limits; and,
WHEREAS, Giant Communications, LLC, a Kansas limited liability company, has applied to the City of Winchester for permission to construct, maintain and operate such a cable television system within the City and has agreed to pay the City for this privilege, and has otherwise agreed to perform as hereinafter provided.
NOW THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF WINCHESTER, KANSAS:
Section 1. Authority. This franchise is granted under and by authority and in conformity with provisions of K.S.A. 12-2005, et seq., as amended, and shall not be considered as an exclusive franchise, right or privilege, and this franchise shall at all times be subject to the laws of the United States, the State of Kansas and the ordinances of the City of Winchester, Kansas.
Section 2. Grant. After a full, open and public hearing, upon prior notice and the opportunity to all interested parties to be heard, and after a review of the qualifications of Giant Communications, LLC and after determining that Giant Communications, LLC is legally qualified, of good moral character and reputation, adequately financed, and technically competent to provide cable television and related services (hereinafter “Cable Television Services or System”) to the City of Winchester, Kansas (the “City”) there is hereby granted to Giant Communications, LLC, a limited liability company duly authorized to do business in the State of Kansas (hereinafter called the “Grantee”), and to the Grantee’s successors, lessees and assigns, for the full term of five (5) years from the date hereof, the nonexclusive right, authority, power and franchise to establish, construct, acquire, maintain and operate a Cable Television System within the City to render, furnish and sell Cable Television Services from such system to the inhabitants of the City and its environs, 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 exist for its Cable Television 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, easements, rights of way, and other public places of the City, all towers, poles, cables, amplifiers, conduits, and other facilities owned, leased, or otherwise used by the Grantee for the furnishing of Cable Television Services within the City and environs thereof during the continuance of the franchise hereby granted. The Grantee acknowledges that the City, from time to time, may add additional land to the City limits by annexation to which Grantee is obligated to construct and provide service in an area where density of homes at least twenty (20) homes per strand mile.
Section 3. Excavations. Any pavements, sidewalks, or curbing taken up or any and all excavations made by the Grantee shall be done under the supervision and direction of the governing body of the City under permits issued for work by the proper officials of the City and shall be made and done in such manner as to give the least inconvenience to the inhabitants of the City and the public generally, and all such pavements, sidewalks, curbing, and excavations shall be replaced and repaired in as good condition as before, with all convenient speed, by and at the expense of the Grantee, which shall at all times make and keep full and complete plats, maps, and records showing the exact location of its facilities located within the public ways of the City. The Grantee shall not place poles or other fixtures where the same will interfere with any gas, electric or telephone fixtures, water hydrants or mains, and all such poles and other fixtures placed in any street shall be placed at the outer edge of the sidewalk and inside the curb line, and those placed in alleys shall be placed close to the line of the lot abutting on said alley, and then in such a manner as not to interfere with the usual travel on said streets, alleys and public ways.
Section 4. Insurance. It is expressly understood and agreed by and between the Grantee and the City that the Grantee shall save the City harmless from all loss sustained by the City on account of any suit, judgment, execution, claim or demand whatsoever, resulting from negligence on the part of the Grantee in the construction, operation or maintenance of its Cable Television System in the City, and Grantee shall cause to be defended at its own expense all actions that may be commenced against the City by reason of the construction and/or operation of such system. The Grantee shall carry public liability and property damage insurance in the sum of $500,000.00, combined single limits, with the City named as an additional insured, said insurance to be carried with an insurance company with a recognized national rating acceptable to the City.
Section 5. Rates. The Grantee shall have the authority to promulgate such rules, regulations, terms and conditions of its business as shall be reasonably necessary to enable the Grantee to exercise its rights and perform its services under this franchise and to assure an uninterrupted service to each and all of its subscribers. The Grantee shall have the right and power to fix, charge, collect and receive reasonable rates for its Cable Television Services.
Section 6. Right of Reasonable Regulation. The City reserves the right of reasonable regulation of the erection, construction or installation of any facilities by the Grantee and to reasonably designate where such facilities are to be placed within the public ways and places.
Section 7. Temporary Wire Movement. 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, and of raising or lowering of wires, shall be paid by the person or entity requesting the same, and the Grantee shall have the authority to require such payment in advance. The Grantee shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes.
Section 8. Trees. The Grantee shall have the authority to trim trees upon any 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 Grantee, all trimming to be done under the supervision and direction of the City and at the expense of the Grantee. Grantee shall protect and save harmless the City from any and all claims for damage arising out of the trimming of trees as herein provided.
Section 9. Utility Poles. If the City is the owner of any utility poles, and in order to keep the number of utility poles to a minimum, the City hereby consents to the installation of Grantee’s facilities on poles belonging to it except as hereinafter set out. Such installation shall be made in accordance with the National Electric Safety Code, the electric code of the City and such other safety requirements as may be applicable. Should the existing poles be inadequate to support Grantee’s facilities, or if for any reason the manager of the City utility services deems it unsafe or if the facilities of Grantee will unduly interfere with the use of any pole or poles for an existing utility, the City shall have the right to refuse Grantee the right to install its facilities or any part of such facilities on any such pole or poles. As compensation for the use of said poles, Grantee will pay to the City the franchise fee hereinafter set forth in this Ordinance. The use of said poles by Grantee for the purposes authorized herein shall be subject to inspection by the City, and Grantee agrees that it will correct any deficiency or improper condition upon notice from the City of such condition. Grantee’s use of said poles shall not vest in Grantee any ownership in the poles, and its relationship shall remain that of lessee.
Section 10. Grade Alteration. In the event that at any time during the period of this franchise the City shall lawfully elect to alter, or change the grade of, any street, alley or other public way, the Grantee, 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.
Section 11. Regulations. The Grantee 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 12. Franchise Fee. In consideration for the rights, privileges and franchise hereby granted, and as compensation to the City for the use of its public ways and places by the Grantee, and in lieu of all occupation and license taxes, the Grantee shall, on or before the 31st day of July and the 31st day-of January of each year in which this franchise is effective, pay to the City a sum equal to three percent (3%) of the gross subscriber revenues derived from cable television services within the then existing corporate limits of the City for the preceding six (6) month period ending on the 30th day of June and the 31st day of December, respectively. “Gross subscriber revenues” means revenues received from subscribers for basic, expanded and pay television services and any other changes made to subscribers, but shall exclude sales taxes, copyright and other fees passed on to subscribers. It shall not include advertising revenues or any other non-subscriber income of the system. Such franchise fee shall be paid on revenues as received, not billed.
Section 13. Effective Time. This franchise and the rights, privileges, and authority hereby granted 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 five (5) years.
Section 14. Damage to Property. Giant Communications shall, in doing work in connection with its Cable Television System, avoid, so far as may be practical, interfering with the use of, or causing damage to any public or private property, street, alley, avenue or other public thoroughfare, and shall, at its own expense, and in a manner satisfactory to the duly authorized representatives of the City, replace any and all paving disturbed and repair any and all damages to substantially as good condition as before said work commenced.
Section 15. Amendment. It shall be the policy of the City to 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 to more effectively, efficiently or economically serve its customers, and to enable the Grantee to conform to the rules and regulations of the Federal Communications Commission as they may be amended from time to time.
Section 16. Removal upon Termination. Upon termination of service to any subscriber, the Grantee shall promptly remove all its facilities and equipment from the premises of such subscriber.
Section 17. Repealer. This ordinance and franchise supercedes, takes the place of and replaces Ordinance No.4-302, dated October 4, 1982, and the cable television franchise therein granted.
Section 18. Severability. If any section, subsection, clause or phrase of this ordinance is for any reason held illegal, invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. Any and all ordinances and parts of ordinances in conflict herewith are hereby repealed as of the effective date of this ordinance.
Section 19. Successors in Interest. All provisions of this ordinance shall be binding upon the Grantee and all successors, lessees and assigns of the Grantee whether expressly stated herein or not, and all the rights, authorities, powers, grants, and privileges secured by this ordinance to the Grantee shall be held to inure to the benefit of the Grantee and all successors, lessees, and assigns of the Grantee.
(12-05-2005)