APPENDIX B – FRANCHISE ORDINANCES\ORDINANCE NO. 148

AN ORDINANCE AUTHORIZING A NONEXCLUSIVE COMMUNITY ANTENNA TELEVISION SYSTEM FRANCHISE IN THE CITY OF KECHI, KANSAS; PROVIDING FOR DEFINITIONS; PROVIDING FOR THE TERM OF SUCH FRANCHISE; PROVIDING FOR REQUIREMENTS AND CONDITIONS; PROVIDING FOR REGULATION OF THE SYSTEM; PROVIDING FOR INITIAL RATES AND CHARGES; PROVIDING FOR PROGRAMMING REQUIREMENTS; PROVIDING FOR CITY RIGHTS IN THE FRANCHISE; PROVIDING FOR PAYMENT TO THE CITY; PROVIDING FOR FORFEITURE OF THE FRANCHISE; PROVIDING FOR THE SEVERABILITY THEREOF.

Section 1. Definitions.

For the purpose of this ordinance, the following terms, phrases, words, abbreviations, and their derivations shall have the meaning given herein, when not inconsistent with the context, words used in the present tense include the future tense, 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)   CATV shall mean a Community Antenna Television System as hereinafter defined.

(b)   City shall mean the City of Kechi, Kansas, in its present form, or in any later reorganized, consolidated, or enlarged form, or in any later reorganized, consolidated, or enlarged form.

(c)   City Council shall mean the present governing body of the city or any future board constituting the legislative body of the city.

(d)   Community Antenna Television System shall mean a system of antenna, coaxial cables, wires, wave guides or other conductors, equipment, or facilities designed, constructed, or used for the purpose of providing television or FM radio service by cable or through its facilities as herein contemplated, all of which will be used to regulatory supply the public with a service and which property, by the acceptance of this ordinance, grantee will devote to the public use.

(e)   FCC shall mean the Federal Communications Commission or its successor.

(f)   Franchise shall mean and include any authorization granted hereunder to construct, operate, and maintain a CATV system in the franchise territory.

(g)   Franchise Territory shall mean all of the area within the city limits of the city as well as any area henceforth annexed thereto during the term of this franchise.

(h)   Grantee shall mean Multimedia Cablevision, Inc.

(i)    Gross Annual Receipts shall mean any and all compensation from subscriber monthly service charges, installation charges, and any contributing grant or subsidy received directly or indirectly by the grantee from subscribers or users in the payment for television or FM radio signals or service received within the franchise territory. Gross annual receipts shall not include any taxes on service furnished by the grantee imposed directly on any subscriber or user by any city, state, or other governmental unit and collected by the grantee for such governmental unit.

(j)    Person shall mean person, firm, corporation, association, or any other legally recognized entity.

(k)   Property of Grantee shall mean all property owned, installed, or used by the grantee in the conduct of a CATV business in the franchise territory under the authority of this franchise.

(l)    Street shall mean the surface of and the space above and below any public street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway, or drive now or hereafter existing as such within the franchise territory.

(m)  Subscriber shall mean any person or entity receiving for any purpose the CATV service of the grantee.

Section 2. Franchise Granted.

(a)   A franchise be and hereby is granted to Multimedia Cablevision, Inc, hereinafter referred to as grantee, and grantee is authorized to engage in the business of operating and providing a CATV system in the franchise territory, and for that purpose to erect, install, construct, repair, replace, reconstruct, maintain and retain in, on, over, under, upon, across, and along any public streets, alleys, easements, and other public places, such poles, wires, cable conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, attachments, and other property as may be necessary and appurtenant to the CATV system; and in addition, so to use, operate, and provide similar facilities or properties rented or leased from other persons, firms, or corporations, including, but not limited to, any public utility or other grantee franchised or permitted to do business in the franchise territory.

(b)   The grantee shall use existing poles, towers, or other existing facilities wherever possible and it shall be the sole responsibility of the grantee to negotiate and enter into any and all contracts with the owner of such facilities to secure the necessary space thereon or therein for its operation under this franchise, and the grantee shall permit any other utility or utilities by appropriate contract or agreement negotiated by the parties to use any and all facilities constructed or erected by the grantee, All agreements and installations shall be subject to all existing and future resolutions and regulations of the city.

(c)   The grantee will not erect a separate system of poles in the franchise territory or on the streets therein, but may erect poles where necessary. The erection of poles shall be subject to all existing and future resolutions and regulations of the city applicable thereto.

(d)   The grantee's transmission and distribution system, poles, wires, and appurtenances shall be located, erected, and maintained so as not to endanger or interfere with the lives of persons, or to interfere with improvements the city may deem property to make, or to unnecessarily hinder or obstruct the free use of the streets, alleys, bridges, or other public property. Removal of poles or equipment when necessary to avoid such interference will be at the grantee's expense.

(e)   The construction and maintenance of the transmission and distribution system shall be in accordance with the provisions of the National Electrical Safety Code of the National Board of Fire Underwriters, and such applicable governmental resolutions and regulations affecting electrical installations, which may be presently in effect, or hereafter adopted or amended.

(f)   All installations of equipment shall be of a permanent nature, durable, and installed in accordance with good engineering practice, and of sufficient height to comply with all existing governmental regulations, ordinances, resolutions, and state laws so as not to interfere in any manner with the right of the public or individual property owner, and shall not interfere unduly with the travel and use of public places by the public during the construction, repair, and removal thereof and shall not unduly obstruct or impede traffic.

(g)   In the construction, installation, maintenance, removal, or repair of the facilities herein contemplated, the grantee shall exercise reasonable care and diligence to avoid damage, injury or nuisance to persons or property and shall install and maintain its facilities in a workmanlike manner so as to minimize the public inconvenience and so as not to interfere with any facilities of the city.

The grantee shall comply with all existing city regulations pertaining to the use of streets and shall, at its own expense, carefully guard and protect all streets entered and opened by it so as to prevent injury to persons or damage to property while work therein is being performed. All such streets shall be restored to their former condition by the grantee as soon as it practicable after the completion of work.

(h)   The grantee shall have the right hereunder to trim trees in and overhanging the streets, in a workmanlike manner, so as to protect its facilities from abrasive contact. Notwithstanding the foregoing, the city, at its option, may, following written notice to grantee, undertake such trimming at the grantee's expense.

(i)    The grantee may make a charge to subscribers for installation or connection to its CATV system and a monthly service charge which during the two-year period following the date the grantee commences construction of its CATV system will not exceed the following rates and charges:

Subscriber rates for connection and monthly service shall be the same rates charged in Wichita for the same service.

(j)    There shall be no charge for the disconnection of any installation or outlet. If any subscriber fails to pay a properly due monthly subscriber fee, or any other properly due fee or charge, the grantee may disconnect the subscriber's service outlet, provided, however, that such disconnection shall not be effected until 45 days after the due date of the delinquent fee or charge and shall include five days' written notice of the intent to disconnect properly mailed to the subscriber in question. After disconnection, upon payment in full of the delinquent fee or charge, any reasonable collection expense or penalty, and the payment of a reconnection charge, the grantee shall promptly reinstate the subscriber's cable service.

Section 3. Terms of Franchise.

(a)   This nonexclusive franchise and the rights, privileges, an authority hereby granted shall take effect and be in full force from and after final passage by the city council and shall continue in force and effect for a term of 15 years from the passage.

(b)   This franchise may be terminated prior to its date of expiration by the city council in the event that the city council shall have found, after 30 days' notice of any proposed termination and public hearing, that:

(1)   After having received written notice from the city setting forth the nature of any such default, the grantee has continued to be in material default of any provision of this ordinance or any term or condition of any franchise or permit issued hereunder;

(2)   The grantee has failed to complete construction as specified herein;

(3)   The grantee is in default in the making of any payments required under this ordinance;

(4)   The grantee becomes insolvent or is adjudged a bankrupt;

(5)   The grantee attempts to evade any of the provisions of this franchise or practices any fraud or deceit upon the city;

(6)   Any provision of this ordinance has become invalid or unenforceable and the city council further finds that such provisions constitutes a consideration material to the grantee of the franchise;

(7)   The city acquires the CATV system property of the grantee.

(c)   The city recognizes that the field of cable communications is relatively new and rapidly changing in the areas of regulation, technology, financing, marketing and law. Therefore, in order to provide maximum flexibility in this franchise and to provide continued advancement of the system, the following provisions are established for review and renegotiation of the franchise hereby granted;

(1)   Special review and renegotiation sessions may be held at any time during the term of the franchise on the request of either the city or the grantee with such request to specify the topics to be reviewed and renegotiated, including any proposals therefor.

(2)   Nothing contained in this section, however, shall be construed as requiring either the city or grantee to negotiate a new franchise or extend an existing franchise.

Section 4. Renewal.

(a)   The council may decide that the franchise granted pursuant to this ordinance should be renewed or extended, if the grantee applies to the council at least eight months prior to the expiration of this ordinance or any renewals thereof. Failure to make such a timely application shall be cause for the forfeiture of renewal and extension rights hereunder, unless otherwise waived by the council.

(b)   The grantee's renewal application, when filed, shall demonstrate the following:

(1)   It has been and continues to be in substantial compliance with the terms, conditions, and limitations of this ordinance;

(2)   Its system has been installed, constructed, maintained, and operated in accordance with the accepted standards of the industry and this ordinance;

(3)   It has the character, legal, technical, financial and other qualifications then required by federal, state, or local law to continue to maintain and operate its system, and to extend the same as the state of the ar progresses so as to assure its subscribers of high quality service;

(4)   It has made a good faith effort to provide services and facilities which accommodate the demonstrated needs of subscribers as reasonably ascertained by the council.

(c)   Upon a filing consistent with this section, the council shall, prior to the consideration of any other applications, consider and act upon the grantee's requested renewal in conformance with the following procedure:

(1)   Within 90 days of the receipt of the application, the council shall, following appropriate public notice, hold a public hearing affording due process on the grantee's application at which interested parties, including the grantee, shall be afforded an opportunity to present oral or written comments.

(2)   By written resolution reciting the basis of its findings, the council shall report to the city, within 90 days of the public hearing, that it:

(A)  Has found that the public interest is no longer served by the continuation of the system's communication services within the city, and therefore has decided that any such services should not be enfranchised within the city limits during the year succeeding the date of the grantee's termination of service;

(B)  Has found that the grantee has substantially failed to meet the criteria for renewal established in Section 4, and therefore has decided that the grantee's renewal application should be denied;

(C)  Has found that the grantee has substantially met the criteria established in Section 4, except where prevented by conditions beyond its reasonable control, and therefore has decided that this franchise should be renewed.

Section 5. Conditions.

(a)   This franchise shall be nonexclusive.

(b)   No privilege or exemption is hereby granted or conferred by this franchise except those specifically prescribed herein.

(c)   Any privilege claimed under this franchise by the grantee in any street or easement, or other public property, shall be subordinate to any prior lawful occupancy of the streets, easements, or other public property.

(d)   This franchise shall be a privilege to be held in personal trust by the original grantee. It cannot in any event be sold, transferred, leased, assigned, or disposed of, in whole or in part, either by forced or involuntary sale, or by voluntary sale, merger, consolidation, or otherwise, without the prior consent of the city council expressed by resolution and then only under such conditions as may therein be prescribed. Any such transfer or assignment shall be made only an instrument in writing, a duly executed copy of which shall be filed in the office of the city council within 30 days after any such transfer or assignment. The consent of the city council may not be arbitrarily refused; provided, however, that the proposed assignee must show financial responsibility and must agree to comply with all provisions of this ordinance; and provided, further, that no such consent shall be required for a transfer in trust, mortgage, security agreement, or other hypothecation as a whole to secure an indebtedness.

(e)   Time shall be of the essence of this franchise granted hereunder. The grantee shall not be relieved of its obligation to comply promptly with any of the provisions of this ordinance or by any failure of the city to enforce prompt compliance.

(f)   Any right or power in, or duty impressed upon, any officer, employee, department, or board of the city shall be subject to transfer by the city to any other officer, employee, department, or board of the city.

(g)   The grantee shall have no recourse whatsoever against the city for any loss, cost, expense, or damage arising out of any provision or requirement in this ordinance.

(h)   This franchise does not relieve the grantee of any obligation involved in obtaining pole space from any utility company or from others maintaining poles in streets.

(i)    This franchise shall be in lieu of any and all other rights, privileges, powers, immunities, and authorities owned, possessed, controlled, or exercisable by grantee, or any successor to any interest of grantee, of or pertaining to the construction, operation, or maintenance of any CATV system in the franchise territory; and the acceptance hereof shall operate, as between grantee and the city, as an abandonment of any and all such rights, privileges, powers, immunities, and authorities within the franchise territory, to the effect that, as between grantee and the city, any and all construction, operations, and maintenance by grantee of its CATV system in the franchise territory shall not be, and shall be deemed and construed in all instances and respects not to be, under and pursuant to any other right, privilege, power, immunity, or authority whatsoever.

(j)    If the grantee overbuilds, rebuilds, modifies, or sells the system, or the city revokes or fails to renew this franchise, or the city elects to acquire the system, the grantee is required as part of this franchise to continue to operate the system, providing all service at existing levels until an orderly change of operation is effectuated. In the event the grantee fails to operate the system for five consecutive days without prior approval of the city, or willfully withholds service for any reason without just cause, the city, or its agent, shall have the right to operate the system until such time as a new operator is selected. If the city is required to fulfill this obligation for the grantee, grantee shall reimburse the city for any costs or damages which are the result of grantee's failure to perform.

(k)   The grantee shall, upon reasonable notice and without expense to the city, relocate its facilities to accommodate such public works or improvements as the city shall in its judgment designate. The grantee shall, at the expense of any person holding a building moving permit issued by the city, temporarily raise, lower, or remove its wires to permit the moving of the building. In such event, grantee shall be given not less than seven days advance written notice to arrange for such temporary wire changes. Grantee's estimated charges for such works shall be payable not less than 48 hours in advance of the move.

(l)    Grantee shall not deny service or access, or otherwise discriminate against its subscribers, users, or employees on the basis of race, color, religion, national origin or sex.

(m)  Grantee shall not, without the specific authorization of the subscriber(s) involved, sell, or otherwise make available to any person or group of persons lists of the names and addresses of its subscribers, or any list which identifies the viewing habits of any individual subscriber, except as the same is necessary for the construction, marketing and maintenance of grantee's facilities and services hereunder and the concomitant billing of subscribers for the services.

(n)   Grantee shall exercise no control over program content on any of the access channels.

(o)   Liability for obscenity, defamation, or invasion of privacy on any access channel shall rest with the person or group of person utilizing the access channel.

(p)   Grantee shall not be relieved of its obligation to comply with the provisions of this ordinance by reason of any failure of the city or the city council to enforce prompt compliance, nor shall any inaction of the city or the city council be deemed to waive or void any provision of this ordinance.

(q)   During the term of this franchise, grantee shall comply with all present and future applicable laws, rules, and regulations, and any amendments thereto, promulgated by any federal, state, or local authority of competent jurisdiction, including but not limited to the laws, rule and resolutions of the FCC and the city.

Section 6. Permits Required.

(a)   Grantee shall forthwith proceed with due diligence to obtain all necessary permits and authorizations which are required in the conduct of its business, including, but not limited to, any utility joint use attachment agreements, microwave carrier licenses, and any other permits, licenses, and authorizations to be granted by duly constituted regulatory agencies having jurisdiction over the operation of CATV systems, or their associated microwave transmission facilities.

(b)   Within 180 days after obtaining all necessary permits, licenses, and authorizations, grantee shall commence construction and installation of the CATV system.

(c)   Within 90 days after the commencement of construction and installation of the system, grantee shall proceed to render service to subscribers, and the completion of the construction and installation shall be pursued with reasonable diligence thereafter to provide service to all areas of the franchise territory.

(d)   Failure on the part of grantee to commence and diligently pursue each of the foregoing requirements, and to complete each of the matters set forth herein, shall be grounds for termination of all or any portion of such franchise under and pursuant to the terms of Section hereof; provided, however, that the city council, in its discretion, may extend the term for the commencement and completion of construction and installation for additional periods in the event the grantee, acting in good faith, experiences delays by reason of circumstances beyond its control.

Section 7. Facility Construction.

(a)   Any poles, wires, cable liens, conduits, or other properties of the grantee to be constructed or installed in streets shall be so constructed or installed only at such locations and in such manner as shall be approved by the city acting in the exercise of its reasonable discretion.

(b)   In those areas and portions of the franchise territory where the transmission or distribution facilities of both the public utility providing telephone service and those of the utility providing electric service are underground; the grantee shall likewise construct, operate, and maintain all of its transmission and distribution facilities underground. For the purpose of this subsection “underground” shall include a partial underground system (e.g. streamlining). Amplifiers, couplers, and terminals in grantee's transmission and distribution lines may be in appropriate housing upon the surface of the ground.

Section 8. Grantee’s Property – Abandonment.

(a)   In the event that the use of any part of the CATV system is discontinued for any reason for a continuous period of 12 months, or in the event such system or property has been installed in any street or public place without complying with the requirements of this franchise, or this franchise has been terminated, cancelled, or has expired, grantee shall promptly, upon being given 10 days notice, remove from the streets or public places all such property and poles of such system other than any which such property has been removed to a condition satisfactory to the city.

(b)   Any property of grantee remaining in place 30 days after the termination or expiration of the franchise shall be considered permanently abandoned. The city may extend such time, not to exceed an additional 30 days.

(c)   Any property of the grantee to be abandoned in place shall be abandoned in such manner a the city shall prescribe. Upon permanent abandonment of the property of grantee in place, the property shall become that of the city, and grantee shall submit to the city an instrument in writing, to be approved by the attorney for the city, transferring to the city the ownership of such property.

Section 9. Grantee Property - Relocation.

Grantee shall, at its expense, protect, support, temporarily disconnect, relocate in the same street or other public place, or remove from the street or other public place any property of grantee when required by the city by reason of traffic conditions, public safety, street vacation, freeway and street construction, change or establishment of Street grade, installation of sewers, drains, water pipes, power liens, signal lines, and tracts of any other type of structure, or improvements by public agencies; provided, however, that grantee shall in all such cases have the privileges, and be subject to the obligations, to abandon any property of grantee in place, as provided in Section 7 hereof.

Section 10. City Completion of Work.

Upon failure of grantee to commence, pursue, or complete any work required by law or by the provisions of this franchise to be done in any street or other public place, within the time prescribed, and to the satisfaction of the city, the city, at its option, may cause such work to be done and grantee shall pay to the city the cost thereof, plus 10 percent, within 30 days after receipt of an itemized report of such costs.

Section 11. Liability Insurance and Bond.

(a)   The grantee shall pay, and within 30 days of the effective date of this ordinance, specifically agrees to pay all damages and penalties which the city or the city council may legally 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 the installation, operation, or maintenance of the system authorized by this franchise. This indemnification provision shall not apply in the event that the city, its officers, employees, and/or agents, or the city council, its officers, employees and/or agents take part in, consent to, or otherwise are directly or indirectly responsible for the course of action which gives rise to the injury, loss, damage, claims, suits, judgments, or other proceedings or liability.

(b)   The grantee shall maintain and, within 30 days of the effective date of this ordinance, specifically agrees to maintain, throughout the term of this franchise, lability insurance insuring the city, the city council, and the grantee with regard to all damages and penalties mentioned in Section 11, in the minimum amounts of:

(1)   $500,000 for bodily injury or death or any one person, within the limit of $1,000,000 for bodily injury or death resulting from any one accident;

(2)   $200,000 for property damage resulting from any one accident;

(3)   Worker's compensation coverage covering all of grantee's employees.

(c)   The grantee shall maintain and, within 30 days of the effective date of this ordinance, specifically agrees to maintain, throughout the term of this franchise, a faithful performance bond running to the city, executed by a surety company authorized to do business as surety in the State of Kansas, in the penal sum of up to $25,000 to ensure that the grantee shall well and truly observe, fulfill, and perform each term and condition of this ordinance, and that, in case of any breach of this ordinance, the amount of all damages and penalties proximately resulting from the failure of the grantee to well and faithfully observe and perform any provision of this ordinance shall be recoverable by the city from the bond.

(d)   Within 30 days of the effective date of this ordinance, grantee shall furnish proof to the city council that a satisfactory insurance policy and performance bond have been obtained. The insurance policy and performance bond shall be approved by the city council, and a copy of such insurance policy and performance bond along with written evidence of payment of the required premiums, shall be field and maintained with the city. The insurance policy and performance bond shall specify that at least 30 days prior written notice shall be field with the city council of any intention not to renew, to cancel or to make a material change therein.

Section 12. Right of Inspection.

(a)   At all reasonable times, the grantee shall permit any duly authorized representative of the city to examine all property of the grantee, together with any appurtenant property of the grantee situated within or without the franchise territory, and to examine and transcribe any and all maps and other records kept or maintained by the grantee or under its control which deal with the operations, affairs, transactions, or property of the grantee with respect to its franchise. If any such maps or records are not kept in the franchise territory or the city of Wichita, Kansas, or upon reasonable request made available to the city, and if the city council shall determine that an examination thereof is necessary or appropriate, then all travel and maintenance expenses necessarily incurred in making such examination shall be paid by the grantee.

(b)   The books and records of the grantee shall be kept in such a way as to show the activities of this unit separate from any other activities of the grantee. The city council shall have the right to inspect, at any time during normal business hours, all books, records, maps, plans, income tax returns, financial statements, and other like materials of the grantee which relate to its operations hereunder, including expenses attributed to the system by any parent corporation. Access to the aforementioned records or any reports to be provided pursuant hereto shall not be denied on the basis that the records or reports contain proprietary information obtained from the grantee with the same degree of confidentiality as would be accorded similar information by the FCC.

(c)   The grantee shall prepare and furnish to the city, at the times and in the form prescribed, such reports with respect to its operations, affairs, transactions, or property as may be reasonably necessary or appropriate to the performance of any of the rights, functions, or duties of the city or any of its officers in connection with the franchise.

(d)   The grantee shall at all times make and keep full and complete plans and records showing the exact location of all CATV system equipment installed or in use in streets and other public places in the franchise territory.

(e)   The city shall have the right to supervise or inspect all work performed by the grantee or its agents upon streets to insure compliance with this ordinance. In the event such inspection reveals that the grantee has failed, in the city's judgment, to fulfill its obligations under this article, the city shall notify the council, and the council shall in turn notify the grantee, in writing, of its specific deficiencies. Absent commencement of corrective action by the grantee within 48 hours of receipt of the notification, the city, at the direction of the council, may undertake the necessary repairs or restorations at the grantee's sole expense pursuant to Section 10 hereof,

Section 13. Installation Requirements.

The CATV system shall be installed and maintained in accordance with the highest and best accepted standards of the industry to the effect that subscribers shall receive the highest possible service. In determining the satisfactory extent of such standards, the follow, among others, shall be considered:

(a)   The system be installed using all bank equipment capable of passing the entire VHF and FM spectrum, and that it have the further capability of converting UHF for distribution to the subscribers on the VHF band.

(b)   The system, as installed, be capable of passing standard color TV signals without the introduction of material degradation on color fidelity and intelligence.

(c)   The system and all equipment be designed and rated for 24 hour per day continuous operation.

(d)   The system provide a nominal signal level of 2,00 microvolts at the input terminals of each TV receiver.

(e)   The system signal-to-noise ratio is less than 40 decibels.

(f)   The hum modulation of the picture signal is less than five percent.

(g)   The system use components having a VSWR of 1.4 or less.

(h)   The system be capable of carrying at least 35 channels.

Section 14. Grantee Requirements.

(a)   When not otherwise prescribed herein required to be filed with the city shall be filed with the city clerk.

(b)   The grantee shall pay to the city a sum of money sufficient to reimburse it for all publication expenses incurred by it in connection with the granting of a franchise. Such payment shall be made within 30 days after the city furnish the grantee with a written statement of such expenses.

(c)   The grantee shall maintain an office which subscribers may call without incurring added message or toll charges so that CATV maintenance service shall be promptly available to subscribers at all times.

(d)   The grantee shall:

(1)   Produce a picture, whether in black and white or in color, that is undistorted, free from ghost images, and accompanied with proper sound on typical standard production TV sets in good repair, and as good as the state of the art allows.

(2)   Transmit signals of adequate strength to produce good pictures with good sound at all outlets without causing cross-modulation in the cables or interfering with other electrical or electronic systems.

(3)   Limit failures attributable to grantee's equipment outages to a minimum by locating and correcting malfunctions promptly, but in no event longer than 72 hours after notice with normal outages to be corrected as soon as feasible as dictated by the availability of necessary replacement equipment where required.

(4)   Demonstrate by use of instruments or otherwise to subscribers that a signal of adequate strength and quality is being delivered.

Section 15. Programming.

(a)   The grantee shall construct a system capable of receiving and transmitting a minimum of 35 channels of programming and shall provide at least the following programming, all of which shall be available to all subscribers without payment of additional charges and without requiring such subscribers to modify their television receivers or purchase any additional equipment

(1)   KAKE-TV (Wichita (ABC);

(2)   KARD-TV Wichita (NBC);

(3)   KTVH-TV Hutchinson (CBS);

(4)   KPTS Hutchinson (PBS);

(5)   One channel dedicated to programming produced by governmental units or agencies;

(6)   One public access channel;

(7)   Two independent commercial television channels;

(8)   One premium service channel;

(9)   One news channel;

(10) One weather channel;

(11) One public information channel;

(12) Cable Public Affairs Network;

(13) One channel devoted to children's programming;

(14) One channel devoted to religious programming;

(15) One channel carrying programming from Wichita State University;

(16) Three channels carrying programming form Unified School District No. 259; and

(17) Any other significantly viewed programming as determined by the rules and regulations of the Federal Communications Commission.

(b)   The grantee shall provide, at no additional cost to subscribers, a set-top converter or similar device enabling every subscriber to the CATV service to receive all services.

(c)   In order to provide the signals set out in (15) and (16) above, the grantee will:

(i)    Construct a cable system, including the time base correctors, modulators, and modulators, from the Unified School District No. 259 Instructional Materials Center to the grantee's head-end facility for the franchise territory;

(ii)   Provide a return signal that can be monitored at the School Service Center;

(iii)  Provide a cable or microwave system to deliver signals from Wichita State University originating point to grantee's head-end facility for the franchise territory; and

(iv)  Provide for installation of one drop and free service to Kechi Child Development Center, and, upon request, to each public and private school and all city-occupied buildings within the franchise territory.

Section 16. Gross Annual Receipts.

(a)   Grantee hereby contracts, and is hereby obligated during the term of this franchise, to pay to the city a sum equal to three percent of the gross annual receipts of the grantee.

(b)   In the event that the law, in the future, permits some larger basis for computing this fee, the council shall, at its election, be entitled to collect up to five percent upon 60 days prior written notice to grantee.

(c)   Payments due under this provision shall be payable 45 days after the end of each calendar quarter. Each such payment shall be accompanied by a report, certified by an officer of the grantee, showing the basis for the computation thereof.

(d)   No acceptance of any payment shall be construed as an account that the amount paid is in fact the correct amount, and all amounts paid shall be subject to audit and recomputation by the council for a period of one year after receipt thereof. In the event that a recomputation results in additional fees owned, such amount shall be subject to a 10 percent per annum interest charge.

(e)   Nothing in this section shall be interpreted as relieving the grantee of its liability for other properly applicable local taxes.

Section 17. Acceptance.

(a)   This franchise shall not become effective unless and until all things required in this section and Section 11 hereof are done and completed, all of such things being hereby declared to be conditions precedent to the effectiveness of any such franchise granted hereunder. In the event any of such things are not done and completed in the time and manner required, the city council may declare the franchise null and void.

(b)   Within 60 days after the date this ordinance is adopted, the grantee shall file with the city council its written acceptance, in form satisfactory to the attorney for the city, of the franchise, together with the bond and insurance policies required by Section 11 hereof, and its agreement to be bound by, and to comply with, and do all things required of it by the provisions of this franchise. Such acceptance and agreement shall be acknowledged by the grantee before a notary public.

Section 18. Miscellaneous.

(a)   Inquiries or complaints from subscribers shall be received during normal business hours, Monday through Friday. All complaints and inquiries will be investigated, responded to, or acted upon as promptly as practical and within 24 hours.

(b)   Without additional charges to subscribers, the grantee shall maintain its facilities in good working order and repair.

Section 19. 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 thereof; the city council hereby declares that it would have passed this ordinance and each section, subsection, sentence, clause, and phrase hereof irrespective of the fact that any one or more sections, subsections, clauses, or phrases be declared illegal, invalid, or unconstitutional. The invalidity of any portion of this ordinance shall not abate, reduce, or otherwise affect any consideration or other obligation required of the grantee of any franchise granted hereunder.

(1-8-81)