AN ORDINANCE GRANTING TO RISC COMMUNICATIONS, INC., dba Nex-Tech, A SUBSIDIARY OF RURAL TELEPHONE SERVICE COMPANY, INC., A KANSAS CORPORATION, ITS SUCCESSORS, TRANSFEREES AND ASSIGNS, A NON-EXCLUSIVE FRANCHISE TO ERECT, MAINTAIN, AND OPERATE A CABLE TELEVISION SYSTEM IN, UNDER, OVER, ALONG, ACROSS AND UPON THE STREETS, LANES, AVENUES, ALLEYS, BRIDGES, HIGHWAYS, AND OTHER PUBLIC PLACES IN THE CITY OF OSBORNE FOR THE PURPOSE OF TRANSMISSION AND DISTRIBUTION, BY CABLE, OF TELEVISION, RADIO, DATA AND MUSIC FOR SALE TO THE INHABITANTS OF SAID OR OTHER PURPOSES.
ARTICLE I
Definitions
For the purpose of the grant of this franchise, the following terms shall have the meaning as described herein:
(1) City - shall mean the City of Osborne, Kansas, and shall include when appropriate the context of the territorial boundaries of the City of Osborne, Kansas, as they now or shall hereafter exist
(2) Council - shall mean the present governing body of the City of Osborne, Kansas, or any successor to the legislative powers of the present City Council.
(3) Franchise - shall mean the permission, license, franchise or authority given hereunder to conduct and operate a cable television system in the City of Osborne, Kansas.
(4) Grantee - shall mean RTSC Communications, Inc. dba Nex-Tech, a subsidiary of Rural Telephone Service Company, Inc., or its successors, transferees or assigns of the franchise granted herein.
(5) Gross Revenue - shall mean the monthly basic cable revenues received by grantee from subscribers of the cable system; provided, however, that such phrase shall not include:
(i) revenues received from any advertising carried on the cable system;
(ii) any taxes on communications service which are imposed directly or indirectly on any subscriber thereof by any governmental unit or agency, and which are collected by the grantee on behalf of such governmental unit or agency;
(iii) revenues derived from services sold on a per-channel or per-view basis; or
(iv) any revenues derived from installation charges.
(6) Street - shall mean the surface of and the space above and 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 Osborne, 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 Osborne, which shall be within their proper use and meaning entitle the City of Osborne and its grantee to the use thereof for the purpose of installing or transmitting cable television transmissions over poles, 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.
(7) 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 Osborne and under the authority of the franchise granted herein.
(8) 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, data services, music and any other programs originated by a cable television company or by any other party and distributing such programs by wire, cable, microwave, co-axial cable, or other means, whether such means are owned or leased, to persons who subscribe to such service.
(9) Subscriber - shall mean any person or entity receiving for any purpose the cable television service of the grantee herein.
(10) Person - shall mean any individual or association of individuals, or any firm, corporation or other business entity.
(11) 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 construct, erect, operate and maintain a cable television system within the City and in so doing to use the streets of the City by erecting, installing, constructing. repairing, replacing, reconstructing, maintaining and retaining in. on, under, upon or across any such street, such poles, wires, cables, conductors, ducts, conduits, vaults, manholes. amplifiers, appliances, attachments and other property as may be necessary and pertinent to cable television system within the City of Osborne, Kansas.
SECTION 2: 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 bother persons, firms or corporations to conduct televisions 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 3: 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 4: 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 often (10) 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 Osborne, 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:
(1) 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;
(2) 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;
(3) The grantee becomes insolvent, unable or unwilling to pay its debts or is adjudged a bankrupt; or
(4) All or part of 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; or
(5) 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
(6) 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 revocation 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 revocation as proposed in said ordinance depends upon a finding of fact, such finding of fact is made by the City Council after hearing provided for, if requested by the grantee, 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 two percent (2%) of the gross revenue from the operation of the business in said City. Such payment shall be made quarterly in four
(4) installments, within 30 days of the end of the quarter during the terms of this ordinance. The City agrees to accept this sum as full and fair compensation.
ARTICLE VII
Indemnification
SECTION 1: 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 maintain in full force at its own cost and expense a liability insurance policy in the amount of One Million Dollars ($1,000,000) with a company approved by the City of Osborne and in a form satisfactory to the City Attorney indemnifying and defending the City, its officers, boards, commissions, agents and employees from and against any and all claim9, demands, actions, suits and proceedings by others, 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 Liability Policy. The grantee shall also concurrently with the filing of its acceptance of this franchise furnish to the City and file with the City Clerk at all time during the term of this franchise maintain in full force and effect at its own costs and expense, a general comprehensive liability insurance policy indemnifying and defending the City, its officers, boards, commissions, agents and employees with a company approved by the City of Osborne and in a form satisfactory to the City Attorney, from and against all claims by any person whatsoever for loss, for damage, for personal injury, death or the franchise herein granted or alleged to so have been caused or occurred with the minimum liability limits of 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 damage 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.
SECTION 4: Tree Trimming. The grantee shall have authority to trim trees upon and over hang the streets of the City so as to prevent the branches of such trees from coming in contact with wires, cables, and other facilities of the grantee. All trimming shall be done under the supervision of the City Superintendent at the expense of the Grantee.
ARTICLE IX
Removal and Abandonment of Property
If the use of any part of the grantee’s cable television system is discontinued for a period of six (6) months, or if such system has been installed in any street without complying with the requirements of grantee’s franchise, or if the franchise is terminated or revoked, the grantee shall promptly, upon being given thirty (30) days notice, remove from the streets, alleyways, etc. all its facilities other than that which the City of Osborne, Kansas, may permit to be abandoned in place. In the event of such removal, the grantee shall promptly restore the street from which such facilities have been removed to a condition satisfactory to the Osborne City Council.
Any property of the grantee remaining in place ninety (90) days after the termination or revocation of this franchise shall be considered permanently abandoned and shall become the property of the City of Osborne, Kansas.
ARTICLE X
Operation and Maintenance
The grantee shall render efficient service, make repairs promptly and only interrupt service for good cause for the shortest time possible. 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 complaints or requests for repairs or adjustments because of malfunctions can be received at any time of day Sunday through Saturday and holidays.
Failures or malfunctions of the system shall be corrected by the grantee within twenty-four (24) hours after notice of such failure or malfunction except or unless such failure or malfunction shall be over a substantial portion of grantee’s system and shall have been caused by storm, fire, lightning, explosion, civil commotion or other similar catastrophe.
ARTICLE XI
Program Presentation
All programs of broadcasting stations carried by the grantee shall be distributed or transmitted to the subscriber without material degradation of picture quality or sound and without significant variation between the quality of picture or sound transmitted or distributed by the grantee to the subscribers between the programs of one broadcasting station and another, so far as the same may be within the control of the grantee.
ARTICLE XII
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 XIII
Emergency Use
In the event of an emergency or disaster, the grantee shall, at the request of the City, make available its facilities to the City for emergency use during the period of such emergency or disaster and shall provide such personnel to operate properly under the circumstances.
ARTICLE XIV
Books and Records
The grantee shall file with the City Clerk’s Office true and accurate maps or plats of all existing or proposed installation systems on the streets of the City.
ARTICLE XV
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 either 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 as may therein be prescribed.
ARTICLE XVI
Grantee Without Recourse
The grantee shall have no recourse whatsoever against the City for 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 XVII
Basic Service Requirements
The service or system shall be designed with stereo sound, and with capability in the future for digital transmission, and shall carry, at a minimum, the following:
(A) Three local area networks mutually agreed upon,
(B) Two educational television channels,
(C) One weather channel.
ARTICLE XVIII
Grantee’s Rates and Regulations
The rates and charges of the grantee for its services to any subscriber shall be fair and reasonable and no higher than necessary to meet all costs of service, assuming efficient and economical management, including a fair return on the fair value of the properties devoted to such service and such rates and charges shall not be unreasonable or be discriminatory.
ARTICLE XIX
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 Osborne, 128 North 1st Street, Osborne, Kansas 67473, 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 XX
Service to Public Facilities
The grantee shall provide without charge one connection to each elementary, high school, public or parochial school, and to each public library and city office and to provide service to these connections without charge.
(11-18-1999)