ORDINANCE NO. 2005-1
AN ORDINANCE GRANTING TO THE PIONEER TELEPHONE ASSOCIATION, INC., dba PIONEER COMMUNICATIONS, ITS SUBSIDIARIES, SUCCESSORS, TRANSFEREES, OR ASSIGNS. A NON-EXCLUSIVE FRANCHISE TO MAINTAIN AND OPERATE A CABLE TELEVISION SYSTEM IN, OVER, UNDER, ALONG, ACROSS AND UPON THE STREETS, ALLEYS, EASEMENTS, RIGHT-OF-WAYS AND OTHER PUBLIC PLACES IN THE CITY OF DEERFIELD, KANSAS.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF DEERFIELD, KANSAS:
ARTICLE I
Definitions
For the purpose of the grant of this franchise, the following terms shall have the meaning as described herein:
(a) “City” shall mean the City of Deerfield, Kansas, and shall include when appropriate the context of the territorial boundaries of the City of Deerfield, Kansas, as they now or shall hereinafter exist.
(b) “Council” shall mean the present governing body of the City of Deerfield, Kansas, or any successor to the legislative powers of the present City Council.
(c) “Franchise” shall mean the permission, license, franchise or authority given hereunder to conduct and operate a cable television system in the City of Deerfield, Kansas
(d) “Grantee” shall mean Pioneer Telephone Association, Inc., dba Pioneer Communications, or its subsidiary, successors, transferees or assigns of the franchise granted herein.
(e) “Street” shall mean the surface of and the space below any public street, road, highway, freeway, lane, path, alley, court, sidewalk, parkway, drive or other easement now or hereafter held by the City of Deerfield, Kansas, for the purpose of public travel and shall include such other easements or rights-of-way as shall be now held or hereafter held by the City of Deerfield, which shall be within their proper use and meaning entitling the City of Deerfield and its grantee to the use thereof for the purpose of installing or transmitting cable television transmission over wires, cables, conductors, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments, and other property as may be ordinarily necessary and pertinent to a cable television system.
(f) “Property of Grantee” shall mean all property owned and installed or used by the grantee in the conduct of its cable television business in the City of Deerfield and under the authority of the franchise granted herein.
(g) “Cable Television System” shall mean any system which operates for hire the service of receiving and amplifying programs broadcast by one or more television and/or radio stations and any other programs originated by a cable television company or by any other party and distributing such programs by wire, cable, microwave, coaxial cable, or other means, whether such means are owned or leased, to persons who subscribe to such service.
(h) “Subscriber” shall mean any person or entity receiving for any purpose the cable television service of the grantee herein.
(i) “Person” shall mean any individual or association of individuals, or any firm, corporation or other business entity.
(j) “Facilities of Grantee” or “Cable Television Facilities” shall mean property of the grantee.
ARTICLE II
Grant of Franchise
SECTION 1: General Grant. The City hereby grants to the grantee a non-exclusive right and privilege to operate and maintain a cable television system within the City and in so doing to use the streets of the City by installing, constructing, repairing, replacing, reconstructing, maintaining, and retaining in, on, over, under any such street, wires, cables, conductors, poles, ducts, conduits, vaults, manholes, amplifiers, appliances, attachments and other property as may be necessary and pertinent to a cable television system within the City of Deerfield, Kansas.
SECTION 2: Financial Responsibility. Upon request by the City, grantee will provide a total disclosure of its financial capabilities by delivering copies of a current balance sheet and income statement.
SECTION 3: Non-Exclusivity. The authority hereby granted to conduct a cable television system in the City and to use and to occupy the streets therefore is not and shall not be deemed to be an exclusive right of permission. The city expressly reserves the right to grant similar non-exclusive franchises to other persons, firms or corporations to conduct television systems and to use the streets of the City therefore within the same or other areas of the City at any time or under any period of time.
SECTION 4: Notice Concerning Complaints. Notice of the procedures for reporting and resolving complaints will be given to each subscriber at the time of the initial subscription to the cable system.
SECTION 5: Modification
of Franchise Standards. Any modification of the provisions of the federal
franchise standards resulting from an amendment of the standards by the Federal
Communications Commission must be incorporated into this franchise within one
year of the adoption of the modification, or at the time of franchise renewal,
whichever occurs first.
ARTICLE III
Term
The franchise herein granted shall be for a term of five (5) years unless the same shall sooner expire by reason of other provisions.
The term of this franchise shall commence on the first day of the first month following the date the grantee hereunder accepts and agrees to abide with the terms and conditions of this franchise by filing a written acceptance thereof with the City Clerk of the City of Deerfield, Kansas; which acceptance shall be filed, if it is to be valid, within sixty (60) days from the effective date of the ordinance granting the franchise. If such acceptance shall not be filed within the time aforesaid, then the ordinance granting this franchise shall be deemed void and of no further force and effect and the offer of franchise contained in the ordinance will stand revoked.
ARTICLE IV
Forfeiture
In addition to all other rights and powers reserved or pertaining to the City, the City reserves as an additional and as a separate and distinct remedy the right to revoke this franchise and all rights and privileges of the grantee hereunder in any of the following events or for any of the following reasons:
(a) Grantee fails after thirty (30) days prior written notice to comply with any of the provisions of the ordinance granting this franchise or has, by act or omission, violated any term or condition thereof;
(b) Any provision of such ordinance shall be finally adjudged by a court of law as invalid or unenforceable and the City Council further finds that such provision constitutes at that time a consideration material to the continuance of the franchise granted herein;
(c) The grantee becomes insolvent, unable or unwilling to pay its debts or is adjudged a bankrupt;
(d) All or part of the grantee’s facilities should be sold under an instrument to secure a debt and are not redeemed by the grantee within sixty (60) days from such sale;
(e) The grantee attempts to or does practice any fraud or deceit in its conduct or relations with the City or subscribers, under this franchise; or
(f) The City condemns all of the property of the grantee within the City by lawful exercise of eminent domain.
ARTICLE V
Ordinance of Revocation
No revocation provided for in the previous paragraph except for reasons of condemnation shall be effective unless or until the City Council shall have adopted an ordinance setting forth the cause and reason for the revocations and the effective date thereof, which ordinance shall not be adopted without thirty (30) days prior notice thereof to the grantee and an opportunity for the grantee to be heard on the proposed adoption of said proposed ordinance. If the revocations as proposed and said ordinance depends upon a finding of fact, such finding of fact shall be made by the City Council after a hearing is provided for, if requested by the grantee and shall be conclusive.
ARTICLE VI
Consideration
In consideration of the grant of the franchise to the grantee, the grantee shall pay to the City an amount equal to 3 percent (3%) of the gross revenue from the operation of the business in said City, such payments, together with all reports required by law and the Governing Body of said City, shall be made semi-annually on the 1st day of July and the 31st day of December of each year during the term of this franchise.
ARTICLE VII
Indemnification
SECTION 1: General Liability Insurance. The grantee shall concurrently with the filing of the acceptance of this franchise furnish to the City and file with the City Clerk at all times during the existence of this franchise and maintain in full force at its own cost and expense, a general liability insurance policy in the amount of One Million Dollars ($1,000,000) indemnifying and defending the City, its officers, boards, commission, agents and employees from and against any and all claims, demands, actions, suits and proceedings by other, against all liabilities to others including, but not limited to, any liability for damages by reason of, or arising out of, any failure by the grantee to secure consents from the owners, authorized distributors or licensees of programs to be transmitted or to be distributed by the grantee, and against any loss, costs, expense or damages resulting therefrom, arising out of the exercise or enjoyment of its franchise, irrespective of the amount of comprehensive liability policy required hereunder.
SECTION 2: Comprehensive General Liability Program: The grantee shall also concurrently with the filings of its acceptance of this franchise furnish to the city and file with the City Clerk at all times during the term of this franchise, maintain in full force and effect at its own costs and expense, a comprehensive general liability insurance policy indemnifying and defending the City, its officers, boards, commissions, agents and employees from and against all claims by any person whatsoever for loss, for damage, of personal injury, or death from the franchise herein granted, or alleged to so have been caused or occurred, with the minimum liability limits for Five Hundred Thousand Dollars ($500,000) for personal injury or death to any one person and One Million Dollars ($1,000,000) for personal injury or death to two or more persons in any one occurrence and Five Hundred Thousand Dollars ($500,000) for damages to property resulting from any one occurrence.
ARTICLE VIII
Use and Installation
SECTION 1: Degree of Care. The grantee or any persons, firm or corporation erecting, constructing or maintaining any of the property used by or for the grantee shall at all times employ due care or the highest degree of care required by law under the facts and circumstance and shall maintain and install the property of the grantee in accordance with commonly accepted methods and principals so as to prevent failures and accidents likely to, or which may tend to cause damage, injury or nuisance to the public.
SECTION 2: Location of Facility. All cable television facilities shall be so located as to cause minimum interference with the proper use of streets, and so as to cause minimum interference with rights and reasonable convenience of property owners abutting the streets, and in no event shall any of such facilities be located so as to substantially interfere with the usual public travel on any street of the City.
SECTION 3: Damage to Public Property. Whenever the grantee shall cause or any person on its behalf shall cause any injuries or damage to any public property or street by or because of the installation, maintenance or operation of the cable television facilities, such injury or damage shall be immediately remedied in such fashion as directed by the City Council.
ARTICLE IX
Operation and Maintenance
The grantee shall render efficient service, make repairs promptly and only interrupt service for good cause for the shortest time possible. Interruptions for system maintenance insofar as possible shall be preceded by notice and shall occur during off-peak hours of minimum use of the system.
In order to limit failures and malfunctions of the cable television system to a minimum, and that the same might be promptly corrected at all times after notice of malfunction or failure, the grantee shall consistently maintain a listed telephone, which telephone shall so be operated that complaint for request for repairs or adjustments because of malfunctions can be received at any time of day.
Failure or malfunctions of the system shall be corrected by the grantee within twenty-four (24) hours after notice of such failure or malfunctions except or unless such
failure or malfunction shall be over substantial portion of grantee’s system and shall have been caused by storm, fire, lightning, explosion, civil commotion or other similar catastrophe.
ARTICLE X
Compliance with the Law
Grantee shall, at all times during the term of this franchise, be subject to all lawful exercises of the police power of the City and to such reasonable regulations as the City shall prescribe for the general conduct of persons providing cable television service within the City.
ARTICLE XI
Sale or Lease of Franchise
The franchise shall be deemed a privilege to be held in personal trust by the grantee. It may not be sold, transferred, leased, assigned or disposed of in whole or in part whether by force or voluntary sale, consolidation or otherwise without the prior consent of the City Council, expressed by resolution, and then only under such conditions may therein be prescribed.
ARTICLE XII
Grantee Without Recourse
The grantee shall have no recourse whatsoever against the City or any loss, cost, expense or damage arising out of any of the provisions or requirements of this franchise or because of the enforcement thereof by the city, nor for the failure of the City to have the authority to grant all or any part of the franchise.
ARTICLE XIII
Request of Service
The grantee shall, whenever it receives a request for service, provide service to any potential subscriber within the city limits of the City of Deerfield, Kansas, and the grantee shall extend its existing system to such subscriber at no cost to the subscriber for the system extension other than the usual connect fees for all subscribers.
ARTICLE XIV
Notice
Whenever under the terms of this franchise either party shall be required or permitted to give notice to the other, such notice shall be in writing and if to be served upon the City it shall be delivered by first class mail to the City of Deerfield, Kansas, and if the grantee then by delivering first class mail to such officer at such address as the grantee shall from time to time direct.
ARTICLE XV
Service to Public Facilities
The grantee shall provide without charge one connection to each elementary, high school or public school, and to each public library and city building and to provide basic service to these connections without charge.
ARTICLE XVI
That this ordinance shall take effect from and after its passage and publication in the official city newspaper.
(4-5-05)