AN ORDINANCE GRANTING TO WORLD COMPANY, A KANSAS CORPORATION, ITS SUCCESSORS, LESSEES, AND ASSIGNS, AN EXTENSION, FOR A TERM OF FIFTEEN YEARS, OF ITS NONEXCLUSIVE FRANCHISE TO ESTABLISH, CONSTRUCT, ACQUIRE, MAINTAIN, AND OPERATE A CLOSED-CIRCUIT ELECTRONIC SYSTEM WITHIN THE CITY OF EUDORA, KANSAS, WHICH SAID NONEXCLUSIVE FRANCHISE WAS ORIGINALLY GRANTED BY ORDINANCE NO. 438 OF THE CITY OF EUDORA, KANSAS, AND AMENDED AND EXTENDED BY ORDINANCE NO. 587 OF THE CITY OF EUDORA, KANSAS.
WHEREAS, on the 16th day of July, 1980, the City of Eudora, Kansas, passed and approved Ordinance No. 438, whereby there was granted to World Company for a term of ten (10) years from the effective date thereof, the non-exclusive right, authority, power, and franchise to establish, construct, acquire f maintain, and operate a Closed-Circuit Electronic System within the City of Eudora, Kansas; to render, furnish, and sell closed-circuit electronic service from such system to the inhabitants of the City of Eudora, Kansas; and to use and occupy the streets, as defined by said ordinance, and other public places within the corporate limits of said City for its Closed-Circuit Electronic System;
WHEREAS, on the 30th day of April, 1990, the City of Eudora, Kansas, passed and approved Ordinance No. 587, which amended Ordinance No. 483 of the City of Eudora, Kansas, and otherwise extended the term of said non-exclusive franchise granted to World Company a period of fifteen (15) yearsi
WHEREAS, World Company has made application to the Governing Body of the City of Eudora, Kansas, to extend the existing nonexclusive franchise for a period of fifteen (15) years, from the effective date of this ordinance, as well as for modification and amendment of Ordinance No. 438 of the City of Eudora, Kansas, as amended and extended by Ordinance No. 587 of the City of Eudora, Kansas, which application has been received and acknowledged by the Governing Body of the City of Eudora, Kansasi
WHEREAS, pursuant to K.S.A. 12-2007, there was published in the official city newspaper, the Eudora News, on the 26th day of July, 2001, and the 2nd day of August, 2001, a Notice of Public Hearing, whereby notice was given that a public hearing on said application of World Company for the proposed amendment and extension of the franchise granted by Ordinance No. 438 of the City of Eudora, Kansas, as previously amended and extended by Ordinance No. 587 of the City of Eudora, Kansas; and
WHEREAS, said public hearing was held and conducted in accordance with the laws of the state of Kansas and said published Notice of Hearing, and it has been determined that an extension of the terms and other provided amendments of the subject franchise will provide the franchise holder the assurances necessary to permit it to make the additional investment required to upgrade and expand its current operations and services, all for the benefit of its subscribers and viewers who reside in the City of Eudora, Kansas, or its environs.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF EUDORA, KANSAS:
SECTION I Sections 1 through 17, inclusive, of Ordinance No. 438 of the City of Eudora, Kansas, as amended by Ordinance No. 587 of the City of Eudora, Kansas, is hereby amended to read as follows:
Section 1. DEFINITIONS: For the purpose of this Ordinance, the following terms, phrases, words, and derivations shall have the meaning ascribed to them herein:
(a) “CITY”: The City of Eudora, a municipal corporation of the state of Kansas, in its present incorporated form or in any later recognized, consolidated, enlarged, or reincorporated form.
(b) “COUNCIL”: The present Governing Body of the City of Eudora, Kansas, or any future board constituting the legislative body of the City of Eudora, Kansas.
(c) “GRANTEE”: The persons or corporations to whom or to which a franchise under this ordinance is granted by the City Council of the City of Eudora, Kansas, and the lawful successors or assigns of said persons or corporations.
(d) “STREET”: The surface of and the space above and below any public street, public right-of-way, road, highway, freeway, lane, alley, court, sidewalk, parkway, or drive, now or hereafter existing with the City of Eudora, Kansas.
(e) “CLOSED-CIRCUIT ELECTRONIC SYSTEM”: A system over which broadband service is provided to subscribers by means of a closedtransmission medium; however, such term does not include a system for the provision of common carrier service by a common carrier.
(f) “BROADBAND SERVICE”: Any receipt or transmission of electromagnetic signals over one or more coaxial cables or any other closed-transmission medium; however, such term does not include basic telephone service.
(g) “SUBSCRIBER”: Any person or entity receiving, for any purpose, the closed-circuit electronic service of the grantee herein.
(h) (i) “GROSS RECEIPTS”: The term “Gross Receipts,” as applied to the sales of closed-circuit electronic services, shall include all receipts of the Grantee from its franchised operations hereunder, except as specifically excluded hereby. “Gross Receipts” shall not include service to educational institutions as such users are construed by the Internal Revenue Code of the United States, as amended; nor shall it include service to other units of government. Further, “Gross Receipts” shall not include installation, service, or disconnect charges, nor deposits to secure returns of equipment, nor advertising and production charges, nor taxes imposed by the governmental agency upon the subscriber and collected by the Grantee. In the event that the Grantee shall provide new or additional services under this franchise and there shall be a question of whether the fee for such services shall be included in “Gross Receipts,” as defined herein, such question shall be reviewed by the Grantee together with the Council before the calculation of the franchise fee for any period in which such question shall arise.
(h) (ii) The term “Gross Receipts” shall not include receipts for and from the sale of data services until such time a final order shall be entered by a court of competent jurisdiction allowing such receipts to be included in “Gross Receipts,” or by an act of Congress allowing such receipts to be counted as “Gross Receipts.” Upon the occurrence of either of those events, the Grantee and Council shall meet and confer prior to such receipts being included in “Gross Receipts.”
SECTION 2. There is hereby granted to World Company, a Kansas corporation duly authorized to do business in the State of Kansas (hereinafter, “Grantee”), and to its successors, lessees, and assigns, for a period of fifteen (15) years, from and after the effective date of this ordinance, the non-exclusive right, authority, power, and franchise to establish, construct or acquire, maintain, and operate a Closed-Circuit Electronic System within the City of Eudora, Kansas (hereinafter, “City”) to render, furnish, and sell closed-circuit electronic service from such system to the inhabitants of the City; and to use and occupy the streets r public rights-of-way, and other public places within the corporate limits of the City, as the same now exist or may hereafter exist, for its 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 of the City, all towers, poles, cables, amplifiers, conduits, and other facilities owned, leased, or otherwise used by the Grantee for the furnishing of closed-circuit electronic services within the City, during the continuance of the franchise hereby granted. Grantee is hereby given the first option to renew this franchise agreement by notification to the Governing Body of the City (hereinafter, “Council”) in writing one-hundred-twenty (120) days prior to the expiration of the same.
SECTION 3. Any pavements, sidewalks, or curbing removed, or any and all excavations made by the Grantee shall be done under the supervision and direction of the Council, under permits issued for work by the proper officials of the City, and shall be made and done in such manner as to cause the least inconvenience to the inhabitants of the City and the public, in general, and all such pavements, sidewalks, curbing, and excavations shall be replaced and repaired, in as good a condition as they were prior to Grantee’s work, 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 locations 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 main, and all such poles or other fixtures placed in any street or public right-of-way shall be placed at the outer edge of the sidewalk and inside the curb line, and those placed in any alley shall be placed close to the line of the lot abutting on said alley, and then in such a manner as to not interfere with the usual travel on said streets, alleys, and public ways. Construction and maintenance of the transmission, distribution system, including house connections, shall be in accordance with the provisions of the National Electrical Safety Code, prepared by the National Bureau of Standards, the National Electrical Code of the National Board of Fire Underwriters, and such applicable ordinances and regulations of the City, affecting electrical installations, which may be presently in effect, or changed by future ordinances. Installation and housedrop hardware shall be uniform throughout the City, except that the company shall be free to change its hardware and installation procedures as the art progresses.
SECTION 4. The Grantee shall indemnify, protect, and hold harmless, the City from and against losses and physical damage to property, 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 erection, maintenance, presence, use, or removal of said attachments on poles within the City, or by any act of the Grantee, its agents or employees. The Grantee shall carry insurance to protect the parties hereto from and against all claims, demands, actions, judgment, costs, expenses, and liabilities which may arise or result, directly or indirectly, from or by reason of such loss, injury, or damage. The amounts of such insurance against liability due to physical damage to property shall not be less than $500,000.00 as to anyone accident and not less than $1,000,000.00 aggregate in any single policy year; and against liability due to bodily injury or to death of persons not less than $500,000.00 as to anyone person and not less than $1,000,000.00 as to anyone accident. The Grantee shall also carry such insurance as it deems necessary to protect it from all claims under any workman’s compensation laws in effect that may be applicable to the Grantee. All insurance required by the agreement shall be and remain in full force and effect for the entire life of this agreement. Said policy or policies of insurance or a certificate (s) of such insurance shall be approved by the Council and then be deposited with and kept on file with the City Clerk. Said policies of insurance shall provide that they shall not be canceled without written notice of intent to cancel being given the Governing Body of the City at least thirty (30) days prior to the effective date of such cancellation.
SECTION 5. The Grantee shall have the authority to promulgate such rules, regulations, terms, and conditions of this business as shall be reasonably necessary to enable the Grantee to exercise its rights and to perform its services under this franchise and to assure 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 services hereunder, and to fix and collect reasonable deposits for its equipment, which it shall lease to its subscribers. The Grantee shall file with the City Clerk a schedule of its proposed rates, charges, and deposits for its services and equipment to be leased to its subscribers. Such schedule of proposed rates, charges and deposits shall be the maximum to be charged by the Grantee until after thirty (30) days next following the filing of each successive replacement schedule of such maximum rates, charges or deposits by the Grantee with the City Clerk.
SECTION 6. The City reserves the right to 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. The Grantee shall, on the request of any person holding a building permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The expense of such temporary removal, raising, or lowering of wires shall be paid by the person requesting the same, and the Grantee shall have the authority to require such payment in advance. The Grantee shall be given not less than seven (7) days advanced notice to arrange for such temporary wire changes.
SECTION 8. The Grantee 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 into contact with the wires and cables of the Grantee. All such trimming shall be done under the supervision and direction of the City and at the expense of the Grantee.
SECTION 9. In the event that, at any time during the term 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 10. The Grantee shall, at all times during the term of this franchise, be subject to all lawful exercises of the police power by the City and be subject to reasonable regulation by the City, as the City shall hereafter, by resolution or ordinance, provide. The Grantee shall comply with all federal, state and local laws, statutes, codes, ordinances, rules, and regulations applicable to Grantee’s business hereunder, including those of the Federal Communications Commission.
SECTION 11. Also in consideration of the granting of this franchise to the Grantee, the Grantee shall pay to the City in lieu of all occupation and license taxes, five percent (5%) of the Grantee’s Gross Receipts, as that term is defined in Sections 1 (h) (i) and 1 (h) (ii) of this Ordinance. The payments, aforesaid, shall be made at the conclusion of each three (3) month period of operation, but in no event shall the payment to the City for any twelve month period be less than $20,000.00 per year.
SECTION 11a. Also in consideration of the granting of this franchise, The Grantee shall make available to the City and all other units of local government, local educational institutions, and community groups and organizations of the City, at the earliest time technology economically permits it, at least one (1) access channel in its Closed-circuit Electronic System for the origination and transmission of local programming, all in accordance with rules and regulations to be established by the Grantee and filed with the City Clerk. The Grantee shall have the right to use said access channel for its own purposes at all times it is not otherwise being utilized as herein provided.
Upon request by the City, the Grantee shall make all reasonable efforts to provide the City with one or more additional access channels,the cost, terms and conditions for which shall be negotiated by the parties.
SECTION 11b. In further consideration of the granting of this franchise, the Grantee shall make available to the City, and its offices, and local educational institutions, complimentary cable television services. However, if the service requires a drop originating more than one-hundred-twenty (120) feet from the point of connection, an installation fee will be charged. Similarly, Grantee shall make available to the City, and its offices, and local educational institutions, internet access, including law enforcement secure internet connection, at a reduced rated, which rate shall be negotiated by the parties.
SECTION 11c. Furthermore, the Grantee shall, insofar as possible, adopt all modifications in Federal Communications Commission technical standards within one (1) year of their adoption by the Federal Communications Commission.
SECTION 12. There shall be, during the first month of the fifth year of this franchise extension, meetings of representatives of the City and of the Grantee to review this franchise agreement for the purpose of keeping its provisions current with developments and technology related to delivery of closed-circuit electronic service and operations, and to review and discuss appropriate matters of importance or concern to either party.
SECTION 13. All ordinances and parts of ordinances in conflict herewith are hereby repealed as of the effective date of this ordinance.
SECTION 14. All provisions of this ordinance shall be binding upon the Grantee and all successors r 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.
SECTION 15. The franchise herein granted shall be subject to all of the provisions of K.S.A. 12-2001 et seq., and all amendments thereto. The World Company, its successors, lessees, and assigns shall, within thirty (30) days from and after the passage, approval, and final publication of this ordinance, file with the City Clerk of the City of Eudora, Kansas, its written acceptance of all the terms and provisions hereof; pay the costs of publication of this ordinancei and its failure to file said acceptance will make this ordinance null and void.
(9-24-2001)