Chapter 26
VIDEO SERVICE PROVIDERS
Sec. 26-1. Definitions.
Sec. 26-2. Agreement with city required.
Sec. 26-3. Authorization from city required.
Sec. 26-4. Health, safety, and welfare regulations.
Sec. 26-5. Specific portions of right-of-way restricted.
Sec. 26-6. Additional requirements.
Sec. 26-7. Emergencies.
Sec. 26-8. Excavation permits, fees.
Sec. 26-9. Indemnity.
Sec. 26-10. Claim notification.
Sec. 26-11. Penalty provision.
Sec. 26-12. Previous franchises.
Sec. 26-1. Definitions.
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
The Act means the Kansas Video Competition Act.
Public right-of-way means only the area of real property in which the city has a dedicated or acquired right-of-way interest in the real property, including the area on, below or above the present and future streets, alleys, avenues, roads, highways, parkways, boulevards, or easements dedicated or acquired as public right-of-way, or public utility easements. The term does not include real property owned by the city, unless specifically authorized by an easement or other agreement. The term does not include the airwaves above a right-of-way with regard to wireless telecommunications or other nonwire telecommunications or broadcast service, easements obtained by utilities or private easements in platted subdivisions or tracts.
Video service means video programming services provided through wireline facilities located at least in part in the public rights-of-way without regard to delivery technology, including internet protocol technology. This definition does not include any video programming provided by a commercial mobile service provider defined in 47 U.S.C. Section 332(d).
Video service provider means any person, firm, corporation, association, utility, or entity, which has received a video service authorization from the state corporation commission, intending to provide such service within the city.
(Ord. No. 2351, § 1, 11-14-06)
Sec. 26-2. Agreement with city required.
(a) In accordance with the Act, video service providers shall provide at least 30 calendar days' advance notice of its intent to provide video service within the city. The video service provider shall execute an agreement with the city in keeping with the Act.
(b) Every video service provider in the city shall pay a video service provider fee equal to five percent of the total gross revenues, as defined by the Act. Such fee shall be remitted within 45 calendar days after the end of the quarter. As required by the Act, the city shall give written notice of this requirement to every video service provider.
(Ord. No. 2351, § 1, 11-14-06)
Sec. 26-3. Authorization from city required.
(a) No video service provider shall enter upon the public right-of-way of the city, or in any manner establish a physical presence on, upon, in or over the right-of-way of the city, for the purpose of installing, constructing, maintaining or operating lines, conduits, wires, fiber optic cables, cables, pipes, pipelines, poles, antennae, towers, vaults or appliances, or related facilities or appurtenances thereto, without the express written permission of the city, pursuant to chapter 78, article II of this Code.
(b) Nothing in this chapter shall be interpreted as granting a video service provider the authority to construct, maintain or operate any facility or related appurtenance on real property owned by the city outside of the public right-of-way.
(c) The city shall process each valid and administratively complete application for use of the right-of-way within 30 days.
(Ord. No. 2351, § 1, 11-14-06)
Sec. 26-4. Health, safety, and welfare regulations.
The authority of a video service provider to use and occupy the public right-of-way shall always be subject and subordinate to the reasonable public health, safety and welfare requirements and regulations of the city.
(Ord. No. 2351, § 1, 11-14-06)
Sec. 26-5. Specific portions of right-of-way restricted.
(a) The city shall have the authority to prohibit the use or occupation of a specific portion of public right-of-way by a video service provider due to a reasonable public interest, necessitated by public health, safety and welfare, based upon a recommendation of the city engineer, and is nondiscriminatory among all authorized video service providers.
(b) If the city denies a request to use or occupy a specific portion of the public right-of-way, the video service provider shall be served a notice of such denial by first class mail. The notice shall indicate that the service provider shall have ten days from the date of receipt of the notice to request a public hearing by the governing body concerning the denial. Failure to make a timely request for a hearing shall constitute a waiver of the service provider's right to contest the denial before the governing body. The hearing shall be held by the governing body within 30 days after the filing of the request therefor, and the potential service provider shall be advised by the city of the time and place of the hearing. Following the public hearing, if the governing body denies a potential service provider's request to use or occupy a specific portion of the public right-of-way, such determination may be appealed to district court.
(Ord. No. 2351, § 1, 11-14-06)
Sec. 26-6. Additional requirements.
(a) Underground facilities. In those areas and portions of the city where either the transmission and distribution facilities of the public utility providing telecommunications or video service, or those of the city providing electric service are underground, or may hereafter be placed underground, pursuant to chapter 90 of this Code, then the video service provider shall likewise construct, operate and maintain all of its transmission, amplification and distribution facilities underground.
(b) Indemnity insurance required.
(1) The video service provider shall indemnify and hold harmless the city and its officers from any and all liability for damages proximately resulting from any operations pursuant to this chapter, and agrees that at all times during the existence of the agreement it will maintain in force, furnish and file with the city, at its own expense, a general comprehensive liability insurance policy, in protection of the city, its boards, commissions, officers, agents and employees, in a company authorized to do business in the state, and in a form approved by the city attorney, protecting the city and such persons against liability for loss or damages for personal injury, death and property damage occasioned by the operations of grantee with minimum liability limits of $500,000.00 for personal injury or death of any one person, and $1,000,000.00 for personal injury or death of two or more persons in any one occurrence, and $500,000.00 for damage to property resulting from any one occurrence.
(2) The policies mentioned in subsection (b)(1) of this section shall name the city as an additional insured, and shall also contain a provision that a written notice of any cancellation or reduction in coverage of such policy shall be delivered to the city ten days in advance of the effective date thereof. If such insurance is provided in either case by a policy which also covers the grantee or any entity or person other than those above named, then such policy shall contain the standard cross-liability endorsement. No agreement under this chapter shall be effective unless and until each of the foregoing policies of insurance as required in this section have been delivered to the city.
(3) The indemnity insurance requirement of this section may be waived if the video service provider provides, to the city attorney, sufficient proof that the video service provider has sufficient financial assets to indemnify the city through other means.
(c) Video service providers shall be required to provide capacity for two public, educational and government (PEG) access channels for noncommercial programming. The video service provider shall not be responsible for the operation of PEG channels, but shall be responsible for transmission of such channels. Operators of PEG channels shall ensure that programming is in compliance with the Act. As required by the Act, the city shall give written notice of this requirement to every video service provider. The video service provider shall provide such PEG channels not later than 120 days after the city's written request.
(d) Video service providers shall provide concurrent rebroadcast of local broadcast channels, or another economical and technical process, for providing appropriate messages in the event of public safety emergency issued over the emergency broadcast system.
(Ord. No. 2351, § 1, 11-14-06)
Sec. 26-7. Emergencies.
Force majeure. Each and every provision hereof shall be subject to acts of God, fires, strikes, riots, floods, war and other disasters beyond the video service provider's or the city's control.
(Ord. No. 2351, § 1, 11-14-06)
Sec. 26-8. Excavation permits, fees.
(a) It shall be unlawful for any video service provider to make an excavation in any public right-of-way without first obtaining a permit for such purposes from the city, as prescribed in chapter 78, article II of this Code.
(b) The following fees shall be assessed against video service providers authorized to use the public right-of-way:
(1) A permit fee as prescribed in sections 78-42(d) and 42-471 of this Code;
(2) A performance bond pursuant to section 78-42(f) of this Code, in a form acceptable to the city, from a surety licensed to conduct surety business in the state of Kansas, insuring appropriate and timely performance in the construction and maintenance of facilities located in the public right-of-way.
(Ord. No. 2351, § 1, 11-14-06)
Sec. 26-9. Indemnity.
(a) Video service providers shall indemnify and hold the city and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorney fees and costs of defense), proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury (including death), property damage or other harm for which recovery of damages is sought, to the extent that it is found by a court of competent jurisdiction to be caused by the negligence of the video service provider, any agent, officer, director, representative, employee, affiliate or subcontractor of the provider, or their respective officers, agents, employees, directors or representatives, while installing, repairing or maintaining facilities in a public right-of-way.
(b) The indemnity provided by this subsection does not apply to any liability resulting from the negligence of the city, its officers, employees, contractors or subcontractors. If a service provider and the city are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of this state without, however, waiving any governmental immunity available to the city under state law and without waiving any defenses of the parties under state or federal law.
(c) This section is solely for the benefit of the city and the video service provider and does not create or grant any rights, contractual or otherwise, to any other person or entity.
(Ord. No. 2351, § 1, 11-14-06)
Sec. 26-10. Claim notification.
A video service provider shall promptly advise the city in writing of any known claim or demand against the service provider or the city related to or arising out of the service provider's activities in a public right-of-way.
(Ord. No. 2351, § 1, 11-14-06)
Sec. 26-11. Penalty provision.
Any video service provider or agent, contractor or subcontractor thereof, violating any provision of this article, shall be guilty of a class C violation, and shall upon conviction, be subject to a maximum fine of $500.00. Every day a violation occurs or continues shall constitute a separate offense.
(Ord. No. 2351, § 1, 11-14-06)
Sec. 26-12. Previous franchises.
CATV franchise agreements existing prior to July 1, 2006, shall remain in effect until such franchise expires, subject to the provisions of the Act.
(Ord. No. 2351, § 1, 11-14-06)