Article IX
DOUGLAS CABLE COMMUNICATIONS, L.P.

Sections:

Section 1.    Authority.

Section 2.    Franchise grant.

Section 3.    Rights conferred by franchise.

Section 4.    Installation of cable system.

Section 5.    Relocation of property.

Section 6.    Rates and charges.

Section 7.    Indemnification.

Section 8.    Payment to the city.

Section 9.    Service.

Section 10.    Franchise termination.

Section 11.    Sale, assignment or transfer of franchise.

Section 12.    Severability.

Section 13.    Play of system.

Section 14.    Conflicting ordinances.

Section 15.    Renewal.

Section 16.    Effective date of ordinance.

    Editor’s Note: Ord. No. 16891, adopted Nov. 28, 1995, transferred the franchise from Douglas Cable Communications, L.P. to Galaxy Telecom, L.P. and provided for the following:

    “AN ORDINANCE introduced by Mayor Felker, providing for and approving the transfer of the cable television franchises in the City of Topeka, Kansas, (the “City”) granted to Douglas Cable Communications, L.P. pursuant to Ordinance No. 15950, dated November 14, 1988, (the “Franchise Ordinance”); amending the Franchise Ordinance in certain respects; and providing the effective date of the transfer.”

AN ORDINANCE relating to a Cable Television System and Services in the City of Topeka, Kansas (City), and granting a non-exclusive franchise to Douglas Cable Communications, L.P. (Grantee), to construct, operate and maintain a cable television system and service within the City of Topeka, Kansas.

BE IT ORDAINED BY THE COUNCIL OF THE CITY OF TOPEKA, KANSAS:

Section 1. Authority.

This ordinance is passed and approved by the City Council of the City of Topeka, Kansas, and enacted pursuant to the laws of the State of Kansas. (Ord. 15950 § 1, 9-13-88.)

Section 2. Franchise grant.

Pursuant to law, a non-exclusive franchise is granted to Grantee to construct, own, and operate a cable television system in the City of Topeka, Kansas. Said non-exclusive franchise granted for a period of ten (10) years, shall vest all the rights, privileges, and immunities of a cable system with Grantee, and said non-exclusive franchise shall be subject to and conditioned upon all the terms, duties, and obligations found in the laws of the State of Kansas, rules and regulations of the Federal Communications Commission, and of this ordinance. Grantee shall, during the term of this franchise, maintain channel space on their system for public educational and government access. Grantee agrees that when the total of the subscribers within the City reaches 1,000, a character generated channel shall be provided, and when the subscriber level exceeds 5,000, an interconnect will be constructed to enable City Channel 24 to be broadcast over their system. (Ord. 15950 § 2, 9-13-88.)

Section 3. Rights conferred by franchise.

(a) This ordinance confers upon the Grantee the non-exclusive rights, authority, power and franchise to establish, construct, acquire, own, operate, and maintain a cable television system within the City, and to render, furnish and sell such service 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 exists or may hereafter exist for its cable 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, to make use of all land dedicated or acquired for public use and locations approved by the City Engineer, and other public places in the City, all towers, poles, cables, amplifiers, conduits, and other facilities owned, leased, or otherwise used by Grantee for the furnishing of cable service within the City during the continuance of the franchise hereby granted, and in accordance with the laws and regulations of Federal Communications Commission, State of Kansas, County of Shawnee and ordinances and regulations of the City of Topeka.

(b) The poles for the Grantee’s distribution system shall be those erected and maintained by anyone authorized to maintain poles in the streets or public ways when and where practicable. It is contemplated that reasonable standard pole attachment agreements will be entered into with non-municipal utilities as required by Grantee. Grantee is specifically granted the right to set its own poles in the event reasonable joint use is possible or feasible. In any areas where electric or telephone utilities are underground and in any new sub-divisions or new additions where said utilities are underground, the Grantee will lay its cable underground.

(c) 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. Further, if available, the City shall provide to Grantee at no charge space for attachment on all municipally owned poles. Any municipally owned land, if desirable by Grantee for head-end location, shall be provided at no charge given consideration as described in Section 8 herein. (Ord. 15950 § 3, 9-13-88.)

Section 4. Installation of cable system.

(a) The installation of the cable system shall be in accordance with the requirements of the National Electric Safety Code, and all applicable laws, ordinances, rules and regulations of the FCC.

(b) The Grantee, at its expense, 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 Grantee.

(c) The Grantee shall at its expense, protect, support, temporarily disconnect, relocate or remove any property of the Grantee located upon streets, rights of way and easements of the City, when required by the City because of traffic conditions, public safety, street vacation, street construction, change or establishment of street grade, installation of sewers, drains, water pipes, municipal power lines, and tracks or any other type of structure or improvement by the City on City facilities.

(d) Any pavements, sidewalks, or curbing taken up by Grantee, and any and all excavation made by Grantee shall be done only after notice to City, and shall be done in such a manner so as to cause the least reasonable inconvenience to the inhabitants of the City and to the general public. All repairs and replacements shall be made at the expense of the Grantee, with all reasonable speed, leaving such disturbed areas in as good condition as existed prior to any taking up or excavation. (Ord. 15950 § 4, 9-13-88.)

Section 5. Relocation of property.

The Grantee, at the request of any person holding a permit issued by the City, shall temporarily remove, raise or lower its wires or cables to permit the moving of buildings or equipment. The expense of such temporary removal, raising or lowering shall be paid by the person requesting the same, and the Grantee may require such payment in advance. The Grantee shall be given not less than thirty (30) days’ advance notice to arrange for such temporary wire or cable change. The charge by the Grantee for such relocation shall not exceed Grantee’s cost, and in any event shall not be more than a reasonable sum for such service. (Ord. 15950 § 5, 9-13-88.)

Section 6. Rates and charges.

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 customers. Subscriber rates and charges shall be subject to approval by the City. (Ord. 15950 § 6, 9-13-88.)

Section 7. Indemnification.

(a) The Grantee agrees to hold and save said City harmless from any and all liability that may arise out of the construction, maintenance, operation or use of Grantee’s system and works and the providing of such services and to provide and keep in force adequate liability insurance therefor, to the extent of bodily injury limits of $500,000/$500,000 and a property damage limit of $300,000/$300,000 naming the City as an additional insured, as its interest may appear. Grantee shall also provide and maintain insurance under a Broad Form Automobile Policy, with $100,000/$500,000 coverage limits and Workmen’s Compensation insurance within statutory limits. All insurance shall be insured by a company authorized to do business in the State of Kansas, and shall be provided before the Grantee, its successors and assigns thereof, shall commence the construction or other operations mentioned in this section. The City shall notify the Grantee’s representative or employee in the City, if any, within ten (10) days after presentation of any demand or claim that may arise, whether by suit or otherwise, against the City. Grantee shall maintain on file with the City Clerk at all times a current certificate of insurance. All insurance policies shall, if possible, provide for not less than thirty (30) days’ notice of cancellation. The policies mentioned herein shall name the City, its officers, boards, commissions, agents and employees as additional insureds.

(b) Grantee agrees to indemnify and save harmless the City, its officers, and employees from and against any and all claims, demands, actions, suits and proceedings, by others against all liability to others, including, but not limited to any liability for damages by reason of or arising out of a failure by Grantee to secure consents from the owners, authorized distributors or licensees, or to obtain proper licenses on programs to be delivered by the Grantee CATV system, and against other loss, cost, expense and damages resulting therefrom, including copyright infringement which the City may incur arising out of the exercise or enjoyment by Grantee of its franchise. (Ord. 15950 § 7, 9-13-88.)

Section 8. Payment to the city.

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 Grantee, and to properly regulate the activities of Grantee, the Grantee 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 five (5) percent of the gross subscriber revenues for cable television service within the then existing corporate limits of the City for the proceeding six-month period ending on the last day of December and the last day of June, respectively. The books of Grantee shall be open to inspection by the City at all reasonable times to verify the accuracy of the computation and correctness of the report which shall accompany payment. Grantee shall keep books and records pursuant to established practices using generally accepted auditing procedures. (Ord. 15950 § 8, 9-13-88.)

Section 9. Service.

Grantee shall maintain a listed, toll-free telephone service staffed to provide service on a 24-hour basis, seven (7) days a week, so that messages, complaints and requests for service or repairs or adjustments may be received at any time without toll charges. (Ord. 15950 § 9, 9-13-88.)

Section 10. Franchise termination.

If the Grantee should violate any of the terms, conditions or provision of this franchise, or if the Grantee should fail to comply with any reasonable provision of any ordinance of the City regulating the use by the Grantee of the streets, alleys, easements, or public ways of the City, or if the Grantee shall become insolvent, unable, or unwilling to pay its debts, or Grantee abandons the cable system, or after having constructed and placed all or any portion thereof in operation, for any reason fails to operate it for a period of thirty (30) days, and any such violation continues for thirty (30) days after the Grantee shall have been notified in writing by the City to desist from such violation so specified, or if the Grantee is adjudged as bankrupt, or there is notice of a prospective foreclosure or other judicial sale of all or a substantial part of the system, or Grantee is found to have practiced any fraud upon the City, then the City may terminate and cancel this franchise, and thereupon all the rights and privileges granted by this franchise, shall be deemed to have been forfeited and annulled. In the event such forfeiture is imposed, the Grantee shall be afforded a period of six (6) months after a final order of forfeiture, and including any appeal thereof, within which to sell, transfer, convey or otherwise dispose of the above described cable television system to a qualified purchaser at fair market value. During the six (6) month period the Grantee shall operate the cable television system pursuant to the terms and provisions of this franchise. (Ord. 15950 § 10, 9-13-88.)

Section 11. Sale, assignment or transfer of franchise.

In the event that Grantee desires or voluntarily intends to transfer, sell, assign or otherwise convey its interest and ownership in this franchise to another entity or individual, the City, upon reasonable notice of such intent, shall have the absolute right to approve or disapprove such conveyance. (Ord. 15950 § 11, 9-13-88.)

Section 12. Severability.

If any section, subsection, sentence, 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. The City declares that it would have passed this ordinance and each section, subsection, sections, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared illegal, invalid, or unconstitutional. The invalidity of any portions of this ordinance shall not abate, reduce or otherwise affect any consideration or other obligation required by Grantee by the franchise granted hereunder. (Ord. 15950 § 12, 9-13-88.)

Section 13. Play of system.

This ordinance is passed and adopted in conformity with the laws of the City, and the addition to other provisions herein set out, said Grantee shall file with the City and obtain approval thereof, a proper map showing and describing the exact location or proposal [proposed] location of all its facilities within the City’s streets, alleys and public ways. (Ord. 15950 § 13, 9-13-88.)

Section 14. Conflicting ordinances.

All ordinances and parts of ordinances in conflict herewith are hereby repealed as of the effective date of this ordinance, excluding however, all public utility franchises heretofore granted to public utilities, including utilities regulated by the State Corporation Commission. (Ord. 15950 § 14, 9-13-88.)

Section 15. Renewal.

The Grantee shall be entitled to a renewal of this franchise for an additional period of ten (10) years upon a showing that the Grantee has substantially complied with all material terms of the franchise, and has proposed in its request for renewal to continue to meet the terms of the franchise. The renewal procedures shall be governed by the applicable sections of the Cable Communications Policy Act of 1981. (Ord. 15950 § 15, 9-13-88.)

Section 16. Effective date of ordinance.

This ordinance shall take effect and be in force from and after its passage, approval and publication in the official city newspaper and as of November 14, 1988. (Ord. 15950 § 16, 9-13-88.)