WHEREAS, pursuant to K.S.A. 12-2007 there was published in the official city newspaper on the 30th day of August 2007, a Notice of Public Hearing, whereby notice was given that a public hearing on said application by Cunningham Communications, Inc., for a five (5) year nonexclusive franchise with the City of Belleville, Kansas; and

WHEREAS, a public hearing was held and conducted in accordance with the laws of the State of Kansas and said published Notice of Public Hearing, and it has been determined that Cunningham Communications, Inc. be granted a five (5) year nonexclusive right, authority, power and franchise to establish, construct, acquire, maintain and operate a Closed-Circuit Electronic System within the City of Belleville, Kansas; to render, furnish and sell closed-circuit electronic service from such System to the inhabitants of the City of Belleville, 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, as by said ordinance provided, all for the benefit of its subscribers and viewers.


Section 1. Definitions. For purposes of this Ordinance, the following words and phrases shall have the following meanings:

(a)   “Cable Information Service” shall mean a digital two-way interactive service provided over the Cable System using a cable modem and Internet protocols, which may include separately or in combination, broadband connectivity between the customer, access to the Internet, interactive content and programming, menus, navigational aids, electronic mail, packet voice, access to newsgroups, a web browser, Website hosting and other electronic signals and enhancements.

(b)   “Cable Service” shall mean:

(i)    The one-way transmission to subscribers of video programming, or other programming service, and

(ii)   Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

(c)   “Cable System: shall mean 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 the City.

(d)   “City” shall mean the City of Belleville, Kansas.

(e)   “Downstream Transmission” shall mean the transmission of signals from the Headend to remote points on the Cable System, or to interconnection points on the Cable System.

(f)   “Facilities” or “Facility” shall mean any distribution or transmission component of a cable system.

(g)   “FCC” shall mean the Federal Communications Commission of the United States government, or such successor agency or department.

(h)   “Franchise Area” shall mean the area within the City and within one-half (1/2) mile radius from the city limits of the City, which the Grantee is authorized to provide services under this Franchise, and any amendments thereto. Provided that the Grantee is not required to extend service to any area within or without the city limits where housing density is less than 30 homes per contiguous mile of plant.

(i)    “Grantee” shall mean Cunningham Communications, Inc. and any other divisions, affiliates or successors providing services over the Cable System.

(j)    “Gross Revenues” shall mean for purposes of franchise fee calculations all revenues received by Grantee from the operation of the Cable System to provide Cable Services and Cable Information Services within the City. Gross Revenues shall include, without limitation, subscriber revenues, basic monthly service fees, premium service fees, installation and reconnection fees, leased channel fees, additional outlet fees, converter rentals, remote control rentals and fees for subscription audio services, all adjusted for non-payment. Gross Revenues shall not include amounts collected for taxes, franchise fees, late fees, local origination programming or access programming fees.

(k)   “Headend” shall mean a facility for signal reception and distribution on a Cable System including cables, antennas, wires, satellite dishes, monitors, switches, modulators, processors, and all other related equipment an-d facilities.

(l)    “Public improvement” shall mean any existing or contemplated public facility, building or capital improvement project, including, without limitation, streets, alleys, sidewalks, sewer, water, drainage, Right-of-way improvement and public projects.

(m)  “Public project” shall mean any project planned or undertaken by the City or any governmental entity for construction, reconstruction, maintenance, or repair of public facilities or Public improvements, or any other purpose of a public nature.

(n)   “Right-of-way” shall mean present and future streets, alleys, Right-of-way and public utility easements, including public utility easements and Right-of-way dedicated in plats to the city.

(o)   “Upstream Transmission” shall mean the carrying of a transmission to the Headend from remote points on the Cable System or from interconnection points on the Cable System.

Section 2. Grant of Franchise. Pursuant to K.S.A. 12-2001 ET SEQ. and K.S.A. 12-2006 ET SEQ., the City grants to the Grantee the non-exclusive right, privilege and franchise to construct, maintain, extend and operate its Facilities, in, through and along the Right-of-way for the purpose of providing Cable Services and Cable Information Services to the City and its inhabitants for the full term of this Franchise; subject to the terms and conditions of this Ordinance and applicable law.

Section 3. Use of Right-of-way. In the use of the Right-of-way under this Ordinance, the Grantee shall be subject to all applicable local, state and federal law and regulations. In addition, Grantee shall comply with the following:

(a)   The Grantee’s use of Right-of-way shall in all matters be subordinate to the City’s use of Right-of-way for any public purposes. The Grantee shall coordinate the placement of its Facilities in a manner which minimizes adverse impact on Public improvements, as reasonably determined by the City. Where placement is not otherwise regulated, the Facilities shall be placed with adequate clearance from such public improvements so as not to impact or be impacted by such Public improvement.

(b)   All earth, materials, sidewalks, paving, crossings, utilities, public improvements or improvements of any kind injured, damaged, or removed by the Grantee in its activities under this Ordinance shall be fully repaired or replaced within a reasonable time by the Grantee at its sole expense and to be reasonable satisfaction of the City and the Grantee.

(c)   The Grantee shall keep and maintain accurate records and as-built drawings depicting accurate location of all facilities constructed, reconstructed, or relocated in the Right-of-way after the date hereof and provide location information regarding specific future project locations to the City upon request. Where such information is available electronically, upon request from the City, Grantee agrees to provide such information in an electronic format. City agrees to use information obtained pursuant to this section only to locate utility facilities in connection with municipal projects and further agrees not to disclose such information to anyone other than City employees requiring such information to locate utility facilities in connection with municipal projects, except as required by law. Grantee and the City agree that such information is confidential and proprietary and agree that such information shall remain the sole property of the Grantee and agree that pursuant to K.SA 45-221 (12), (18), as amended, such information does not constitute public records subject to K.S.A. 45-218, as amended. In the event that City is required by law to disclose such information, City shall provide the Grantee seven (7) days advance notice of its intended disclosure of such information and shall take such action as may be reasonably required to cooperate with the Grantee to safeguard such information.

The Grantee agrees to indemnify and hold the City harmless from any and all penalties or costs, including attorney’s fees, arising from the actions of the Grantee, or of the City at the written request of the Grantee, in seeking to safeguard the confidentiality of information provided by the Grantee to the City under this section.

In the event such information is required by force of law to be publicly disclosed, the Grantee shall have no further obligation under this section to provide the City with such information.

(d)   Except in cases of an emergency, a minimum of fourteen (14) days prior to construction, reconstruction or relocation of any facilities in the Right-of-way, the Grantee shall submit to the City Manager, or his or her designee, for approval, plans and specifications of the proposed installation. Such approval shall not be unreasonably withheld, delayed or conditioned. City review shall only concern matters related to the interests of the City as set forth in this Ordinance.

(e)   The Grantee shall cooperate promptly and fully with the City and take all measures necessary to provide accurate and complete information regarding the nature and locations of its Facilities located within Right-of-way when requested by the City or its authorized agents for a Public project. Such location and identification shall be at the sole expense of the Grantee, without expense to the City, its employees, agents, or authorized contractors.

(f)   As reasonably necessary, the Grantee shall relocate or adjust any Facilities located in the Right-of-way for a Public project within a reasonable time. Such relocation or adjustment shall be performed by the Grantee at its sole expense, without expense to the City, its employees, agents, or authorized contractors and shall be specifically subject to the rules and regulations of the City not inconsistent with this Ordinance pertaining to such. The Grantee shall cooperate with all private citizens and businesses requiring the Grantee to move Facilities. For projects which are not Public improvements, Grantee may charge reasonable fees for the temporary removal of Facilities according to a written schedule established by the Grantee.

(g)   It shall be the primary responsibility of the Grantee to take adequate measures to protect and defend its Facilities in the right-of-way from harm and damage. If the Grantee fails to accurately or timely locate Facilities when requested, the Grantee has no claim for costs or damages against the city and its authorized contractors or any other party authorized to be in the right-of-way; except to the extent such harm or damage is caused by such party’s negligent or intentional conduct. The City and its authorized contractors agree to take reasonable precautionary measures, including, but not limited to, calling for utility locations and observing marker posts, when working near Grantee’s Facilities.

(h)   Except in the event of an emergency, the Grantee shall notify the City not less than ten (10) days in advance of any construction, reconstruction, repair or relocation of Facilities which would require any street closure which reduces traffic flow to less than two (2) lanes of moving traffic. The City shall follow its policies in the grant or denial of such authority, which shall not be unreasonably delayed. Except in the event of an emergency, no such closure shall take place without such notice and prior authorization from the City.

In addition, all work performed in the traveled way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected. For all work within the Right-of-way, the Grantee shall erect and maintain signs and other devices as required by City Ordinances, regulations and rules.

(i)    All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance and dismantling of the Facilities in the Right-of-way shall be in accordance with applicable present and future federal, state and city law and regulations.

(j)    The Grantee shall, wherever possible, utilize existing poles, and shall not place its poles or other fixtures where the same will interfere with any gas, electric or telephone fixture, water hydrant or main, and all such poles or other fixtures placed in any street shall be placed inside the curb line, and those placed in alleys shall be placed dose to the line of the lot abutting on said alley, and then in such a manner as not to interfere with the usual travel on said streets, alleys and public ways.

(k)   Use of Facilities. In the exercise of this franchise, the franchisee may, with the consent of the owner, use the poles, conduit and other equipment of public utilities doing business in the city.

In addition, the City is the owner of certain utilities, and in order to keep the number of utility poles to a minimum, hereby consents to the installation of franchisee’s cable plant and other facilities on poles belonging to the City except as hereinafter set out. Such installation shall be made in accordance with the National Electric Safety Code, the electric code of the City and such other safety requirements as may be applicable. As compensation for the use of said poles, franchisee agrees to pay to the City the amount of One Dollar ($1.00) per pole per year, for each pole belonging to the city to which franchisee makes contact. Annual pole rental shall be paid on the first business day in February of each year during the term of this franchise. At the request of either party hereto, the parties shall jointly inventory poles belonging to the City to which the franchisee is attached. The use of said poles by franchisee for the purposes authorized herein shall be subject to inspection by the City, and franchisee agrees that it will correct any deficiency or improper condition, upon notice from the City, of such condition. Franchisee’s use of said poles shall not vest in franchisee any ownership, and its relationship shall remain that of a renter of space on said poles.

(l)    The Grantee shall, at its own expense, places its cables, lines, conduits and other equipment underground in any area designated by the City, within a reasonable time after written request from the City, provided that electric, telephone and all other utility services are also being required by the City to be placed underground.

(m)  The Grantee shall, on request of any person holding a building movement permit issued by the City, temporarily raise or lower its wires to permit the moving of buildings. The expense of such removal, raising or lowering of wires shall be paid by the person requesting the same. The Grantee shall have authority to require such payment in advance. The Grantee shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes.

Section 4. Public Tree Care. The City or Grantee may care, prune, trim and remove trees located in or on the City Right-of-way pursuant to the provisions of Section 28 of Chapter 12 of the Belleville Municipal Code, as may be necessary to insure safety.

Section 5. Location of Underground Equipment and Facilities. Where necessary, the Grantee’s equipment shall be placed underground in such locations as shall be determined by mutual agreement between the City and Grantee, without expense to the City.

Section 6. Franchise Fee.

(a)   In partial consideration for the grant of this Franchise and the premises, the Grantee agrees to pay and the City agrees to accept as adequate compensation and consideration for the Franchise granted in lieu of any occupation, license, or privilege tax or any lease or easement charge, a franchise fee as defined herein. The Grantee shall pay to the City as a Cable Service franchise fee a sum equal to three percent (3%) of Gross Revenues derived from the operation of Grantee’s Cable System to provide Cable Services within the corporate limits of the City and within one-half (1/2) mile radius from the city limits of the City.

(b)   Grantee shall also pay as a Cable Information Service franchise fee to the City a sum equal to five percent (5%) of Gross Revenue derived from the operation of Grantee’s Cable System to provide Cable Information Services within the corporate limits of the City, and within one-half (1/2) mile radius from the city limits of the City, unless the City’s authority to require such payments is expressly preempted by state or federal law.

(c)   The franchise fee shall be paid semi-annually to the City during the term of the franchise, for each preceding six (6) month period. The Grantee shall pay the applicable fee to the city within forty-five 45) days to the last day of the applicable six (6) month for which a fee payment is due. Payments received after the due date shall be subject to a one-time charge equal to ten percent (10%) of the payment due. The Grantee shall provide with every payment required pursuant to this Section a completed report in substantially the same form as Exhibit A.

(d)   The franchise fee shall be in lieu of all other licenses, charges, fees or impositions (other than the usual general or special ad valorem taxes or special assessments) which might be imposed by the City for the privilege of operating Grantee’s Cable System and Facilities within the City.

Section 7. Local Office. Grantee will have a technician in Belleville on a permanent basis, and will maintain a place in Belleville where subscribers can pay bills and make inquiries.

Section 8. Sharing of Space. The City encourages the conservation of Right-of-way by the sharing of space by all utilities. To the extent required by federal or state law, the Grantee shall permit any other franchised entity 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 Ordinances and regulations of the City. Grantee agrees that it will not grant any entity rights to occupy the Right-of-way without providing notice to the City.

Section 9. Technical Requirements for Cable System.

(a)   General. The Grantee’s Cable System operated hereunder shall at all times be operated and updated, as needed, so that a minimum, it is conformance with all applicable and current federal, state and local technical specifications and standards, including but not limited to, technical specifications contained in FCC rules and regulations, or any other applicable law which may supersede such rules. As a supplement to the technical standards, the Grantee shall operate the system in a manner to provide to all subscribers video and audio signals of consistently good quality, subject to quality of signal received by Grantee from third parties for transmission.

Section 10. Public, Educational and Governmental Access.

(a)   Access channel. The Grantee shall make available a public, educational and governmental (PEG) access channel as specified in this Section.

(1)   The Grantee shall make available one (1) access channel for city non-commercial uses and purposes and for noncommercial uses and purposes of other institutions and of the public generally, at no cost to the City or others.

The above access channel shall be of the same transmission quality as other channels of the cable system.

(2)   The City shall serve as Designated Access Manager for public use of such access channel.

(3)   The operation of the PEG access channel shall be the responsibility of the municipality receiving the benefit of such channel. The Grantee shall bear only the responsibility for the transmission of the channel.

(4)   The Grantee shall offer, at no charge, the present version of Community Windows software for the use of entities designated by the city to have access to the PEG access channel.

(b)   Grantee shall provide free cable service to the City through one existing connection at City Hall.

(c)   Grantee shall offer free cable service to educational institutions and churches located within the city.

Section 11. Cable System Service Standards. The Grantee shall provide service standards which comply, at a minimum, with Cable System service standards required by the FCC.

Section 12. Access to Information and City Audit regarding Grantee Equipment, Facilities and Revenues. The Grantee shall provide the City, or City audit representatives, with reasonable access to Grantee records, revenue codes and information documenting the total gross revenues from Cable Service as defined in this Ordinance. The Grantee shall comply with all reasonable requests for information in the performance of any audit and shall pay 50% of the actual and reasonable costs of such audit, not to exceed $2,500 per audit.

Section 13. Indemnification and Hold-Harmless. The Grantee, its successors and assigns, shall at all times save and hold harmless the City from all liability, costs, damages, and expenses of any kind, for the payment of which the City may become liable to any person, firm, or corporation by reason of any claim or damages to the extent caused by the failure of the Grantee, its employees, agents, or servants to exercise due care and diligence in the construction, installation, maintenance, and operation of Cable Services and the transmission, distribution of such services within the franchise area. Grantee will carry insurance for injury or death, $500,000; property damage, $1,000,000 and other liability, $1,000.000.

Section 14. Assignment of Franchise. Pursuant to the written permission of the City and the submission of FCC from 394 or such successor form, the Grantee shall have the right to assign the Franchise granted under this Ordinance, and the associated rights and privileges to any person, firm or corporation, and any such assignee, by accepting such assignment, shall be bound by the terms and provisions hereof. If the Grantee should seek approval to assign this Franchise, the Grantee shall notify the City in writing. All such assignments shall be in writing and authenticated copies thereof shall be filed with the City Clerk. This Franchise shall be assignable only in accordance with federal law and the laws of the State of Kansas, as the same may exist at the time when any assignment is made. In the event that Grantee assigns this Franchise to a wholly owned subsidiary or affiliate of Grantee, such assignment shall require thirty (30) days prior written notice to the City and shall not require City approval.

Section 15. Conditions of Franchise.

(a)   This Franchise is granted and accepted under and subject to all applicable laws and under and subject to all of the orders, rules and regulations now or hereafter adopted by governmental bodies now or hereafter having jurisdiction, each and every provision hereof shall be subject to Acts of God, fires, strikes, riots, floods, war and other causes beyond the Grantee’s control. This Franchise shall not be exclusive.

(b)   Grantee shall not deny service, deny access, or otherwise discriminate against subscribers, channel users of citizens generally on the basis of race, color, religion, national origin or sex, and shall strictly comply with all federal, state, city and county laws, regulations or executive orders relating to non-discrimination.

Section 16. Other Franchises. Grantee agrees that the City may grant to other providers one or more franchises to provide Cable Service and other services. To avoid unfair competition due to disparate franchise obligations, if the City grants franchise rights to other providers in competition with Grantee, Grantee may petition the City to modify terms of this Ordinance to adjust or eliminate terms that are more burdensome or costly than the terms of a competing provider’s franchise. The City shall schedule a public hearing on the petition within sixty (60) days of receipt and shall issue a written decision granting or denying such petition with sixty (60) days of such hearing.

Section 17. Changes in laws or regulations. The City or the Grantee may seek modification of this Ordinance due to changes in federal or state laws or regulations in accordance with the following procedures:

(a)   The party seeking modification shall serve the other party notice of a request for modification under this Section. The notice shall specify: (I) the changes in laws or regulations on which the modification request is based; and (II) the desired modifications.

(b)   Within sixty (60) days of delivery of the notice, representatives of the City and the Grantee shall meet to develop mutually agreeable modifications to the Ordinance. Any mutually agreeable modifications shall be presented to the City governing body as recommendations for modification to the Ordinance under this Section.

(c)   If the City and the Grantee cannot develop a mutually agreeable recommendation for modification within a reasonable time, then the City and the Grantee shall submit to the City governing body their respective proposals for modification under this Section.

(d)   The City governing body shall review the proposals and comments of interested parties at a public hearing. The City governing body shall then issue a decision concerning any modification to the Ordinance under this Section.

(e)   The Grantee may appeal under applicable law a denial of a modification proposal under this Section.

Section 18. Notice to Parties. For the purpose of this Agreement, notice to the City will be to: City Manager, P.O. Box 280, Belleville, Kansas 66935. For the purpose of this Agreement, notice to the Grantee will be to: David Cunningham, Cunningham Communications, Inc., P.O. Box 108, Glen Elder, Kansas 67446. Notice will be effective upon delivery, by hand delivery or by first class mail to the above address until the City or the Grantee notifies the other, in writing, of a change in address.

Section 19. Effective Period: Renewal

(a)   Initial Term of Franchise Agreement. This Agreement shall be effective for an initial term of five (5) years after its effective date pursuant to Section 22. Upon request by the City, the Grantee and the City may periodically conduct a meeting to review this Ordinance, and related performance and cooperation issues.

(b)   Renewal of Agreement; Modification. At the end of the initial term and of any renewal term, this Agreement shall be extended for an additional term of five (5) years unless either the City or the Grantee gives notice to the other of an intent not to extend. Any such notice shall be given not less than ninety (90) days prior to the expiration of a term. If either the City or the Grantee desires to extend the effective term of this Agreement but desires to modify any of the substantive provisions hereof, the party desiring such modification shall initiate and both parties shall follow the procedures specified in Subsections (a) and (b) of Section 17 hereof regarding any modifications including modifications due to changes in laws or regulations. If agreement of the City and the Grantee cannot be reached thereby, either party may then elect to terminate this agreement, in which case the Grantee shall have a reasonable time to remove its facilities from the Right-of-way and discontinue service.

Section 20. Rights and Duties of Grantee Upon Expiration of Ordinance. Upon expiration of this Ordinance, whether by lapse of time, by agreement between the Grantee and the City, or by forfeiture thereof, the Grantee has the right and obligation to remove from public property all of its Facilities used in its business within reasonable time after such expiration or forfeiture, but in such event, it shall be the duty of the Grantee immediately upon such removal, to restore the Right-of-way from which its Facilities are removed to as good condition, subject to depreciation, as before removal and without cost to the City.

Section 21. Termination or Forfeiture of Franchise.

(a)   In case of failure on the part of the Grantee, its successors and assigns, to comply with any of the provisions of this Ordinance, or if the Grantee, its successors and assigns, should do or cause to be done any act or thing prohibited by or in violation of the terms of this Ordinance, the Grantee, its successors and assigns, shall forfeit all rights and privileges granted by this Ordinance and all rights hereunder shall cease, terminate and become null and void, provided that said forfeiture shall not take effect until the City shall carry out the following proceedings and all additional provisions as required by the State and Federal law.

(b)   Before the City proceeds to forfeit the Franchise, as in this section prescribed, it shall first serve a written notice as provided by the Notice provision of this Ordinance, setting forth in detail the conditions of neglect, default or failure complained of, and the Grantee shall have ninety (90) days after the mailing of such notice in which to comply with the conditions of this Franchise. If, at the end of such ninety (90) day period, the City deems that the conditions of such Franchise have not been complied with by the Grantee and that such Franchise is subject to cancellation by reason thereof, the City, in order to terminate the Franchise shall enact an Ordinance setting out of the grounds upon which the Franchise is to be cancelled and terminated. If within thirty (30) days after the effective date of the Ordinance, the Grantee has not instituted an action in the District Court of Republic County, Kansas to determine whether or not the Grantee has violated the terms of this Franchise and that the Franchise is subject to cancellation by reason thereof, such Franchise shall be cancelled and terminated at the end of such thirty (30) day period.

(c)   If within such thirty (30) day period the Grantee does institute an action, as above provided, to determine whether or not the Grantee has violated the terms of this Franchise and that the Franchise is subject to cancellation by reason thereof and prosecutes such action to final judgment with due diligence, then, in the event the court finds that the Franchise is subject to cancellation by reason of the violation of its terms, this Franchise shall terminate thirty (30) days after such final judgment is rendered and available appeals exhausted.

Section 22. Effectiveness. This Ordinance shall become effective after the following: 1) prior to the Grantee considering action on this Ordinance it shall hold a public hearing for public comments on the franchise issue after publication notice in the official city newspaper of the City of Belleville, Kansas, at least one week prior to the public hearing; 2) the Ordinance shall become effective immediately upon its passage, approval and publication according to law. The Grantee shall pay for the required publications of this Ordinance.

Section 23. Severability. If any provision, section or subsection of this Ordinance or the application thereof to any person or circumstances is held invalid; such invalidity shall not affect other provisions, sections, or subsections or applications of this Ordinance which can be given effect without the invalid provision, section or subsection or application and to this end the provisions, sections, and subsections of this Ordinance are declared to be severable.

Section 24. Grantee Acceptance. The Grantee shall, within sixty (60) days, from the final publication of this Ordinance, file with the City Clerk its written acceptance of all the terms, conditions, and provisions of this Ordinance, and in case its failure to do so, this Ordinance shall be null and void. The acceptance of this Ordinance shall be in writing, and shall be duly acknowledged before some officer authorized by law to administer oaths.

Section 25. That Ordinance No. 800 is hereby repealed and all Ordinances and parts of Ordinances in conflict herewith.

(Ord. 800; Ord. 877; 09-10-2007)