APPENDIX B – FRANCHISESAPPENDIX B – FRANCHISES\ORDINANCE NO. 2310 (CABLE TV)

AN ORDINANCE GRANTING A 15,.YEAR NON-EXCLUSIVE FRANCHISE TO COX COMMUNICATIONS KANSAS, LLC, ITS SUCCESSORS AND ASSIGNS TO CONSTRUCT, OPERATION, AND MAINTAINA CABLE TELEVISION SYSTEM WITHIN THE CITY OF STERLING, KANSAS.

Section 1. Definitions. For the purpose of this ordinance the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future; words in the plural number include the singular number and words in the Singular number include the plural number. The word shall is always mandatory and not merely directory.

(a)   Cable Service - means (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

(b)   Cable System - means a facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (B) a facility that serves subscribers without using any public right-of-way; (C) a facility of a common carrier which is subject, in whole or in part, to the provisions of Title II of the Communications Act of 1934, as amended, except that such facility shall be B-3 considered a cable system (other than for purposes of 47 U.S.C. 541(c) to the extent such facility is used in the transmission of video programming directly to subscribers, unless the extent of such use is solely to provide interactive on demand services; (D) an open video system that complies with 47 U.S.C. 573; or (E) any facilities of any electric utility used solely for operating its electric utility systems.

(c)   City - is the City of Sterling, Kansas.

(d)   Cox - is Cox Communications Kansas, LLC, a Delaware limited liability corporation.

(e)   FCC - is the Federal Communications Commission.

(f)   Gross Annual Receipts - means any revenues received by Cox from the operation of the cable system to provide cable service within the city. Any taxes or fees on services furnished by Cox herein imposed directly or indirectly on any subscriber by any state, city or other governmental unit or third party and collected by Cox on behalf of such entity are excluded. For the purposes of calculating franchise fees, gross annual receipts do not include monies collected from subscribers as franchise fees.

(g)   Person - is any person, firm, partnership, association, corporation, company or organization of any kind.

Section 2. Grant. (a) Cox is hereby granted the nonexclusive franchise and right to construct on, though, along, under and over the streets, highways, easements, rights of way, and other public places of the city, a cable system which is to include, but not necessarily be limited to, a line or lines of wire, cables, fiber, or other conductors, together with all necessary feeders or service wires, poles, amplifiers, pedestals, power supplies and other attachments, devices or apparatus necessary to or usually used in connection with a cable system; to maintain, upgrade and keep the cable system in proper condition after its construction; and to operate the cable system. Nothing in this franchise shall be construed to prohibit Cox from offering any service over its cable system that is not prohibited by federal or state law.

(b)   The franchise granted to Cox hereunder includes the right for Cox to make such contracts as it deems necessary and proper and is able to negotiate with those public utilities and service corporations already holding franchises from the city, permitting it to use the existing utility poles and facilities for its installation and to erect any necessary poles and facilities for its own exclusive use.

Section 3. Construction Standards. (a) All work performed in the construction, operation, maintenance and repair of the cable system shall be performed in a safe, thorough and reliable manner using materials of good and durable quality. All construction, including installation, shall conform to all applicable federal and state laws and regulations, ordinances, local laws and regulations and the National Electric Safety Code. It is understood that notwithstanding such standards Cox shall have the right to wire and install its own power supplies.

(b)   Any property damaged or destroyed by Cox shall be repaired or replaced by Cox and reasonably restored to its pre-existing condition.

(c)   Cox shall have the authority to trim trees upon and overhanging all streets, alleys, easements, sidewalks and other public places so as to prevent the branches of such trees from coming into contact with the facilities of Cox. 8-4

(d)   Cox shall, upon seven days advance written notice, from any person holding an appropriate permit issued by the city, temporarily raise or lower its lines to permit the moving of any building or structure. The actual expense of such temporary removal shall be paid by the person requesting the same and Cox shall have the right to require payment in advance for such temporary removal.

(e)   Upon its receipt of reasonable advance notice, not to be less than five business days, Cox shall, at its own expense, protect, support, temporarily disconnect, relocate in the streets or other public rights-of-way, or remove from the streets or other public rights-of-way, any property of Cox when lawfully required by the city by reason of traffic conditions, public safety, street abandonment, freeway and street construction, change or establishment of street grade, installation of sewers, drains, gas or water pipes, or any other type of structures or improvements by the city; but, Cox shall in all cases have the right of abandonment of its property. If public funds are available to any company using such street, easement, or right of- way for the purpose of defraying the cost of any of the foregoing, such funds shall also be made available to Cox.

(f)   Cox is hereby authorized to extend the cable system as necessary, as desirable, or as required pursuant to the terms hereof within the city limits. . Whenever Cox shall receive a request for service from at least 15 subscribers within 1320 cable-bearing strand feet (one-quarter cable mile) of its trunk or distribution cable, it shall extend its cable system to such subscribers at no cost to such subscribers for system extension, other than the usual connection fees for all subscribers; provided that such extension is technically feasible, and if it will not adversely affect the operation, financial condition, or market development of the cable system. Notwithstanding the foregoing, Cox shall have a reasonable period of time in which to complete the initial construction of the cable system.

Section 4. Indemnification and Insurance. Cox shall at all times indemnify the city and the individual members of the city's governing body from any liability for “,’,  damages or claims resulting from property damage or bodily injury, which arise out of Cox's negligent construction, maintenance or operation of the cable system in the city . .

(b)   Cox shall keep the cable system and cable system facilities continuously insured against such risks as are customarily insured against by businesses of like size and type, including but not limited to:

(1)   Liability insurance for bodily injury including death with limits of at least $2,000,000 per occurrence and with single limits of at least $500,000 per occurrence for property damage including loss of use occurring on, arising out of or in any way related to the cable system and cable system facilities.

(2)   Workmen's Compensation Insurance of statutory limits and Employee's Liability Insurance with limits of not less than $100,000.

(3)   Comprehensive Automobile Liability Insurance of at least $500,000 per occurrence and with single limits of at least $500,000 per occurrence for property damage including loss of use occurring on, arising out of, or in any way related to the cable system and cable system facilities.

Section 5. Services. Upon request of the city manager, Cox shall provide to the city one cable outlet with free installation and free monthly basic service to city 8-5 owned office buildings, public libraries and public schools within a serviceable area. Cox shall not be responsible for internal wiring of these locations.

Section 6. Franchise Fee. (a) Cox shall remit semi-annually to the city five percent of its gross annual receipts.

(b)   For the purpose of this section, the semi-annual period applicable under the franchise for the computation of the franchise fee shall be January through June, and July through December. The franchise fee payment shall be due and payable 90 days after the close of the preceding period. Each payment shall be accompanied by a letter from a representative of Cox showing the basis for the computation. Cox shall keep an accurate record of its gross annual receipts during the semi-annual period.

Section 7. Service Procedures. Cox shall maintain a toll free phone number for the purpose of receiving orders for service and resolving all complaints regarding the quality of service, equipment malfunctions and similar matters for prompt resolution.

Section 8. Discrimination Prohibited. Cox shall not refuse to hire or employ, nor bar or discharge from employment, nor unlawfully discriminate against any person in terms, conditions or privileges of employment because of age, race, creed, color, national origin or sex.

Section 9. Books and Records. The city reserves the right to inspect all pertinent books, records, maps, plans, financial statements and other like materials of Cox, for the purpose of ensuring compliance with the franchise granted hereunder, upon reasonable written notice to Cox and during Cox's regular business hours. The city will maintain the confidentiality of such materials and the information contained therein to the maximum extent allowed by law.

Section 10. Reservation of Rights. The city reserves the right to adopt, in addition to the provisions contained in this ordinance and existing applicable ordinances, such additional regulations as it shall find necessary in the lawful exercise of its police power; provided, however, that such regulations shall be reasonable and not materially in conflict with the rights and privileges granted to Cox hereunder, or with any provision of federal law.

Section 11. Term. The franchise granted to Cox hereunder shall remain in full force and effect for a period of 15 years from the effective date hereof. Thereafter renewal of the franchise shall be governed by applicable federal and, to the extent not inconsistent therewith, state law.

Section 12. Enforcement and Termination of Franchise. In the event that the city believes that Cox has not complied with the terms of the franchise, it shall notify Cox in writing of the exact nature of the alleged default. Cox shall have 60 days from receipt of the notice described in Section 12: (a) to respond to the city contesting the assertion of default; (b)               to cure such default; or (c) in the event that, by the nature of the default, such default cannot be cured within B-6 the 60 day period, to initiate reasonable steps to remedy such default and to notify the city of the steps being taken and the projected date that they will be completed. . In the event that Cox fails to respond to the notice described in this section or in the event that the alleged default is not remedied within 60 days after Cox is notified of the alleged default pursuant to this section, the city shall schedule a public meeting to investigate the default. Such public meeting shall be held at the next regularly scheduled meeting of the city which is scheduled at a time which is no fewer than five business days therefrom. The city shall notify Cox of the time and place of such meeting and provide Cox with a full and fair opportunity to be heard. Subject to applicable federal and state law, in the event the city determines, after such meeting, that Cox is in default of any provision of the franchise, the city may:

(a)   Foreclose on all or any part of any security provided under the franchise, if any, including, without limitation, any bonds or other surety; provided, however, that the foreclosure shall only be in such a manner and in such amount as the city reasonably determines is necessary to remedy the default;

(b)   Commence an action at law for monetary damages or seek other equitable relief;

(c)   In the case of a substantial default of material provision of the franchise, declare the franchise agreement to be revoked; or

(d)   Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to' damages. Cox shall not be relieved of any of its obligations to comply promptly with any provision of the franchise by reason of any failure of the city to enforce prompt compliance. Cox shall have the right to appeal any determination of the city to an appropriate court, which shall have the power to review the decision of the city “de novo” and to modify or reverse such decision as justice may require. The parties hereby agree that it is not the city's intention to subject Cox to penalties, fines, forfeitures or revocation of the franchise for so-called “technical” breach(es) or violation(s) of the franchise, which shall include but are not limited to the following: (1) in instances or for matters where a violation or a breach by Cox of the franchise was good faith error that resulted in no or minimal negative impact on the subscribers, or (2) where there existed circumstances reasonably beyond the control of Cox and which precipitated a violation by Cox of the franchise or which were deemed to have prevented Cox from complying with a term or condition of the franchise.

Section 13. Governing Law. The franchise granted to Cox hereunder is subject to all applicable provisions of the Communications Act of 1934, as amended, and regulations promulgated by the FCC pursuant thereto, as well as state laws or regulations governing cable television operations not inconsistent therewith.

Section 14. Separability. If any section, subsection, sentence, clause, phrase, or portion of this ordinance is for any reason held invalid by any court or agency of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provisions and such holding shall not affect the validity of the remaining portions of the ordinance. 8-7

Section 15. Successors and Assigns. The rights and privileges and all of the obligations, duties and liabilities created by the franchise granted to Cox hereunder shall pass to and be binding upon the successors of the city and the successors and assigns of Cox.

(10-13-00)