AN ORDINANCE GRANTING A FRANCHISE TO BEATRICE CABLE TV COMPANY TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE SYSTEM OVER, UNDER AND UPON THE PUBLIC WAY IN THE CITY OF HANOVER, KANSAS, FOR THE TRANSMISSION BY CABLE OF AUDIO AND VISUAL SIGNALS, ESTABLISHING TERMS, AND REGULATIONS FOR SUCH USE.

Be It Ordained By The Governing Body of The City of Hanover, Kansas:

Section 1. DEFINITIONS. The following terms, phrases and words, as used in this franchise, shall unless the context plainly requires otherwise, have the following meanings:

(a)   “Basic Cable” is the lowest priced tier of service that includes the retransmission of local broadcast television signals.

(b)   “Cable Act” means 47 U.S.C. 151 et seq., as amended.

(c)   “Cable Services” shall mean (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.

(d)   “Cable System” shall mean of 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 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, except that such facility shall be considered a Cable System (other than for purposes of Section 621 (c) to the extent such facility is used in 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 Section 653 of title VI of the Communications Act of 1934; or (E) any facilities of any electric utility used solely for operating its electric utility system.

(e)   “Company” shall mean the person that is awarded franchise, by issuing authority, to construct and operate a Cable System, in accordance with the provisions of applicable law, within the City of Hanover, Kansas.

(f)    “FCC” shall mean the Federal Communications Commission, as presently constituted by the United States Congress, or any successor agency.

(g)   “Franchise” shall mean the initial authorization, renewal thereof, issued by the Franchise Authority, whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, or otherwise, which authorized construction and operation of the Cable System.

(h)   “Issuing Authority” shall mean the City of Hanover, Kansas, acting by and through its duly elected Council Members.

(i)    “Person” shall mean any person, firm, partnership, corporation, association, and/or any other legal entity.

(j)    “Public Ways” shall mean the streets, avenues, highways, parkways, concourses, boulevards, bridges, viaducts, tunnels, or any other public rights-of-way, including but not limited to, public utility easements, dedicated utility strips, or rights-of way dedicated for compatible use, and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the Issuing Authority in the Service Area.

(k)   “Service Area” means the present municipal boundaries of the issuing Authority, and shall include any additions thereto by annexation or other legal means.

(l)    “Subscriber” shall mean a person who legally receives services of the Cable System with the Grantee’s express permission.

(m)  “Gross Subscriber Revenues” shall mean any and all revenue received from the operation of the Cable System to provide Basic Cable Services in the Service Area, but shall not include any refunds or credits made to the Subscriber or any taxes, fees, or assessments imposed by the Issuing Authority on the company, its Subscribers, or both. The term shall not include revenue from “ancillary” or “auxiliary” services, which include, but are not limited to, advertising, leased channels, and per program or per channel charges, if any.

Section 2. AUTHORIZATION GRANTED. Subject to the provisions of this Ordinance, the right and privilege is hereby granted to Beatrice Cable TV Company, a Nebraska corporation, duly incorporated and existing under and by virtue of the laws of the State of Nebraska, and authorized to conduct business in the State of Kansas, (hereinafter called the “Company”) to enter upon the Public Ways of the City of Hanover for the purpose of erecting, constructing, maintaining and operating a Cable System.

Section 3. Company’s legal character, financial, technical, and other qualifications, and the adequacy and feasibility of its construction arrangements have been approved by the Issuing Authority as part of full public proceeding affording due process.

Section 4. The Company shall, as expeditiously as possible, investigate and resolve, to the extent possible all complaints regarding the quality of service, equipment malfunctions and similar matters.

Section 5. TERMS AND CONDITIONS OF OPERATION. The authorization herein granted is conditioned upon compliance with the following terms and conditions:

(a)   That notwithstanding any grant of authority herein elsewhere made it is expressly understood that the joint use of any and/or all-existing poles in place owned by the City of Hanover, or others, is anticipated. The Company shall have the power to erect, locate or relocate any of its towers, pole or poles at any place within the City of Hanover. The Company shall not make use of any towers, pole or poles anywhere within the City of Hanover, which may be owned by the City of Hanover without compensation by prior agreement with the City. In the event of the joint use of existing poles, or of poles hereafter to be erected either by the City of Hanover, the Company shall pay to the City of Hanover for the privilege of affixing its cables, amplifiers, conduits and other facilities to such poles the sums in the matter following, to wit:

No charge shall be made to the Company for such use for the first Year from the date construction shall end; and thereafter, charge shall be made of One Dollar ($1.00) per pole per annum.

(b)   All installations by the Company of poles and cables and all other facilities relative to its operation shall be made in accordance with good engineering practice and shall comply with all existing ordinances and regulations and will conform with the standards of the National Electrical Safety Code.

(c)   The Cable System shall be installed and maintained in accordance with accepted standards of the industry, to the effect that Subscribers shall receive the highest accepted service.

(d)   In case of disturbance of any Public Way for the convenience of the Company, then the Company shall at its own expense restore such Public Way to a condition which existed prior to the disruption.

(e)   The Company shall have the authority to trim trees upon and overhanging Public Ways in the City of Hanover, according to good forestry practices, so as to prevent the branches of such trees from being in contact with the wires and cables of the Company.

Section 6. UTILITY COMPANY AGREEMENTS. The Company may enter into an agreement, for the purpose of sharing posts, poles, conduits and other such structures, with any person or corporation, including telephone companies and other utility companies. The City of Hanover shall actively assist the Company to the fullest extent necessary in obtaining joint pole or conduit use agreements from the owners of existing poles and conduits.

Section 7. NON-EXCLUSIVE FRANCHISE. The authorization granted by this ordinance is a nonexclusive franchise.

Section 8. TERM OF FRANCHISE - RENEWAL. This authorization shall be for a period of five (5) years from approval of this ordinance. The franchise may be renewed by the Company, its successors and assigns for additional years by written agreement between the Company and the City of Hanover, but only after the City of Hanover has reviewed the operation and all the provisions hereof have been fully or substantially complied with. The Issuing Authority and the Company agree that any proceedings undertaken by the Issuing Authority that relate to the renewal of the Company’s Franchise shall be governed by and comply with the provisions of Section 626 of the Cable Act, as amended, unless the procedures and substantive protections set forth therein shall be deemed to be preempted and superseded by the provisions of any subsequent provision of federal or state law.

Section 9. FRANCHISE FEES. The Company shall pay an annual franchise fee to the City of Hanover, in the manner following to wit: of 1 % per annum of Gross Subscriber Revenues.

The Company shall file with the City of Hanover, within ninety (90) days after the expiration of any calendar year during which the this franchise is in force, a certified statement showing in appropriate detail the total gross subscriber revenues from the operation of the Cable System in the City, during the preceding calendar year. It shall be the duty of the Company to pay to the City of Hanover within thirty (30) days after the time for filing such statements, the specified sum due for the calendar year covered by such a statement. Upon reasonable written request, a duly authorized representative of the Issuing Authority shall have the authority to examine those books and records of the Company which are necessary to verify the accuracy of the payments due hereunder.

Section 10. ASSIGNMENT. The authorization granted by this ordinance shall not be transferred or assigned by the Company, except to an entity controlling, controlled by, or under common control with the Company, without approval of the Issuing Authority.

Section 11. INDEMNIFICATION AND INSURANCE. The Company shall indemnify, defend, protect, and save harmless the City of Hanover from and against losses and physical damages to property and bodily injury or death to persons, including payments made under the Workmen’s Compensation Law, which may arise out of or be caused by the Company’s operation of its Cable System within the City of Hanover or by an act of the Company, its agents or employees.

The Company shall maintain in full force and effect, at its own cost and expense, during the term of this Agreement, Commercial General Liability Insurance in the amount of $1,000,000 combined single limit for bodily injury, and property damage. The Grantee shall provide a Certificate of Insurance designating the city as an additional insured. Such insurance shall be noncancellable except upon 30 days prior written notice to the City. The City of Hanover shall notify the Company, in writing, within ten (10) days after the presentation of any claim or demands, either by suit or otherwise, made against the City of Hanover on account of any negligence as aforesaid on the part of the Company. Failure by the City of Hanover to properly notify the Company with ten (10) days of any such claim, suit or demand against the City shall release the Company from its obligation to indemnify the City of Hanover as provided herein.

Section 12. ENFORCEMENT AND TERMINATION OF FRANCHISE.

12.1 Notice of Violation. In the event that the City of Hanover believes that the Company has not complied with the terms of the Franchise, it shall notify the Company in writing of the exact nature of the alleged noncompliance.

12.2 The Company’s Right to Cure or Respond. The Company shall have 30 days from receipt of the notice described in Section 12.1: (a) to respond to the City of Hanover, contesting the assertion of noncompliance, or (b) to cure such default, or (c) in the event that, by the nature of default cannot be cured within the 30-day period, initiate reasonable steps to remedy such default and notify the City of Hanover of the steps being taken and the projected date that they will be completed.

12.3 Public Hearing. In the event that the Company fails to respond to the notice described in Section 12.1 pursuant to the procedures set forth in Section 12.2, or in the event that the alleged default is not remedied within 30 days or the date projected pursuant to 12.2 (c) above, the City of Hanover shall schedule a public hearing to investigate the default. Such public hearing shall be held at the next regularly scheduled meeting of the City of Hanover which is scheduled at a time which is no less than five business days therefrom. The City of Hanover shall notify the Company in writing of the time and place of such meeting and provide the Company with an opportunity to be heard.

12.4 Enforcement. Subject to applicable federal and state law, in the event the City of Hanover, after such meeting, determines that the Company is in default of any provision of the Franchise, the City of Hanover may:

(a)   Seek specific performance of any provision, which reasonably lends itself to such remedy, as an alternative to damages:

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

(c)   In the case of a substantial default of a material provision of the Franchise, declare the Franchise Agreement to be revoked in accordance with the following:

The City of Hanover shall give written notice to the Company of its intent to revoke the Franchise on the basis of a pattern of noncompliance by the Company, including one or more instances of substantial noncompliance with a material provision of the Franchise. The notice shall set forth the exact nature of the noncompliance. The Company shall have 90 days from such notice to object in writing and to state its reasons for such objection. In the event the City of Hanover has not received a response satisfactory from the Company, it may then seek termination of the Franchise at a public meeting. The City of Hanover shall cause to be served upon the Company, at least 10 days prior to such public meeting, a written notice specifying the time and place of such meeting and stating its intent to request such termination.

At the designated meeting, the City of Hanover shall give the Company an opportunity to state its position on the matter, after which it shall determine whether or not the Franchise shall be revoked. The Company may appeal such determination to an appropriate court, which shall have the power to review the decision of the City of Hanover do nova and to modify or reverse such decision as justice may require. Such appeal to the appropriate court must be taken within 60 days of the issuance of the determination of the City of Hanover.

The City of Hanover may, at its sole discretion, take any lawful action which it deems appropriate to enforce the City of Hanover’s rights under the Franchise in lieu of revocation of the Franchise.

Section 13. FORCE MAJEURE. The Company shall not be held in default under, or in noncompliance with, the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by events that is reasonably beyond the Company’s ability to anticipate and control.

Section 14. EQUAL PROTECTION. In the event the Issuing Authority enters into a Franchise, permit, license, authorization, or other agreement of any kind with any other Person or entity other than the Company to enter into the Issuing Authority’s Public Ways for the purpose of constructing or operating a Cable System or providing Cable Service to any part of the Service Area, the material provisions thereof shall be reasonably comparable to those contained herein, in order that one operator not be granted an unfair competitive advantage over another, and to provide all parties equal protection under the law.

Section 15. SEVERABILITY. If any provision, section, subsection, sentence, clause, phrase or other portion of this ordinance or the application thereof to any person or circumstance is held to be unconstitutional, illegal, or in conflict by a court of competent jurisdiction, or by any federal agency, including the FCC, the remainder of this ordinance, and the application of such provisions to other persons and circumstances, shall not be affected thereby, and to this end, such portion of this ordinance shall be deemed a separate, distinct and independent provision and not affecting the validity of the remainder of this ordinance.

(06-12-2000)