AN ORDINANCE GRANTING A CITY FRANCHISE TO TWIN VALLEY TELEPHONE, INC., OF MILTONVALE, KANSAS, FOR THE RIGHT TO ERECT, MAINTAIN AND OPERATE IN, UNDER, ALONG, ACROSS AND UPON THE STREETS, A VENUES, SIDEWALKS, ALLEYS, BRIDGES AND HIGHWAYS AND OTHER PUBLIC PLACES IN THE CITY OF WAKEFIELD, KANSAS, AND SUBSEQUENT ADDITIONS THERETO, FOR THE PURPOSE OF TRANSMISSION AND DISTRIBUTION BY WIRE OR CABLE OF VOICE COMMUNICATIONS, INFORMATION, ENTERTAINMENT AND OTHER SIGNALS TO ENABLE SALE OF ITS SERVICE TO THE INHABITANTS OF SAID CITY, AND ENVIRONS THEREOF AND OTHER PURPOSES, FOR A TERM OF TEN YEARS, SUBJECT TO RENEWAL, AND REGULA TING THE SAME; AND PROVIDING WHEN THIS ORDINANCE SHALL BE IN FULL FORCE AND EFFECT.
BE IT ORDAINED by the Governing Body of the City of Wakefield, Kansas:
Section 1. In consideration of the faithful performance and observance of the conditions and reservations herein specified, Twin Valley Telephone, Inc., of Miltonvale, Kansas, (hereinafter referred to as Grantee), a company doing business under the laws of the State of Kansas, its successors and assigns is hereby granted the nonexclusive right to construct and/ or install and cause to be constructed and/ or installed, and to maintain and cause to be maintained, and to operate telecommunications local exchange service, information, entertainment and other electronic signal transmission and distribution facilities and additions thereto (and related electronic facilities) in, under, over, along across and upon the streets, avenues, sidewalks, alleys, and other public places in the City of Wakefield, Kansas, (hereinafter referred to as the City) and subsequent additions thereto, for the purpose of providing such services, in accordance with the laws and regulations of the United States of America, and the State of Kansas, and this Ordinance for a period of ten (10) years with automatic renewal for an additional ten (10) years from and after the effective date of this Ordinance, unless sooner terminated as herein provided.
This ordinance is granted pursuant to KS.A. 12-2001 (2004 Supp.) after a full, open and public hearing upon prior notice and opportunity of all interested parties to be heard and upon careful consideration of the Grantee’s qualifications including its legal charter, financial and technical qualifications and the adequacy and feasibility of its construction, maintenance and operation arrangements.
Section 2. In the exercise of the rights herein granted:
(a) The Grantee shall have the right to construct and/ or install and maintain, or to cause to be constructed and/ or installed and maintained, equipment and facilities as necessary for the operation and maintenance of the subject systems, provided, however, that all equipment and facilities so constructed and/ or installed in any public place shall be at locations approved by the Governing Body of the City.
(b) It is the stated intention of the City that all holders of public licenses and franchises within the corporate limits of the City shall cooperate in the construction, maintenance and operation of its system.
(c) The Grantee shall be entitled to determine the nature and extent of services to be provided to subscribers over its equipment and facilities, subject to all applicable regulations and laws of the United States and of the State of Kansas. The Grantee shall maintain a toll free telephone number to be provided to all subscribers for the purpose of receiving inquiries and complaints from its customers and shall investigate all complaints within twenty-four (24) hours of their receipt and shall in good faith attempt to resolve them swiftly and equitably.
(d) The City designates the City Clerk of Wakefield, Kansas, as the official of the franchising authority that has primary responsibility for the continuing administration of the franchise and implementation of the complaint procedures provided for herein.
(e) Notice of the procedures for reporting and resolving complaints will be given by grantee to each subscriber at the time of the subscriber’s initial subscription to the cable system.
(a) All structures, lines and equipment constructed and/ or installed or caused to be constructed and/ or installed by the Grantee within the City shall be so located as to cause minimum interference with the use of streets, avenues, sidewalks, alleys, bridges and highways, easements and other public ways and places and with consideration for the convenience of property owners, and the Grantee shall comply with all reasonable, proper and lawful ordinances of the City now or hereafter in force.
(b) In case the Grantee requires disturbance of pavement, sidewalk, driveway or other surface, it shall, at its own expense and in a manner approved by the City, replace and restore the same in as good condition as before said work was commenced. If the grantee fails to do so within a reasonable time, the City may do so and charge the expense thereof to the Grantee
(c) In the event the City shall lawfully elect to alter or change any street, avenue, sidewalk, alley, bridge, highway, easement, or other public way requiring the relocation of the facilities utilized by the Grantee, then the Grantee, upon reasonable notice by the City, shall remove and relocate such facilities at its own expense and as directed by the City.
(d) The Grantee shall, when necessary, on the request of any person holding an appropriate permit issued by the city, temporarily raise or lower its lines as may be necessary to permit the moving of any building or other structure. The actual and necessary expense of such temporary removal shall be paid by the person requesting the same, and the Grantee shall have the right to require such payment in advance of such temporary removal.
(e) All poles, lines, structures and other facilities of the Grantee in, under, over, along, across and upon the streets, avenues, sidewalks, alleys, bridges and highways, easements, and other public ground or places within the City shall be kept by the Grantee at all times in a safe and sound condition. In the event of damage to such facilities beyond grantee’s control, including but not limited to calamity and/ or act of God, Grantee will repair the same promptly and within a reasonable time.
(a) The Grantee shall at all times during the term hereof be subject to all lawful exercise of the police power by the City, and to such reasonable regulations as the City shall hereafter provide by ordinance or resolution; provided, however, that the Grantee’s provision of service as a telecommunications public utility shall be subject to the laws of the State of Kansas and of the United States of America and to regulation lawfully imposed pursuant thereto.
(b) Whenever it is necessary to shut off or interrupt service for the purpose of making planned repairs, installations or adjustments, the Grantee shall make all reasonable effort to do so at such times as will cause the least amount of inconvenience to its customers and the City. In the event of any interruption of service, whether planned or unforeseen, the Grantee shall proceed with due diligence and restore service as quickly as possible under the circumstances.
Section 5. The Grantee shall save the City harmless from any and all loss sustained by the City by reason of any suit, judgment, execution, claim or demand whatsoever, resulting from negligence on the part of the Grantee in the construction, operation or maintenance of its system within the City; for this purpose the Grantee shall carry property damage and public liability insurance with a responsible insurance company authorized to do business within the State of Kansas. The amounts of such insurance to be carried against liability owing to damage to property and for public liability shall be reasonable, adequate and in keeping with accepted standards in the industry, but shall not be less than $250,000.00 each person, $500,000.00 each occurrence, $100,000.00 property damage, and the same shall be subject to review by the City at any time during the life of this ordinance. The Grantee shall also carry such insurance necessary to protect it from claims made under applicable Workers Compensation laws. As a condition hereof, the City shall notify the Grantee within ten (10) days after the presentation of any claim or demand, either by suit or otherwise, made against the City on account of any allegation of negligence as aforesaid on the part of the Grantee.
Section 6. The Grantee shall have the right to charge and collect compensation from all subscribers to whom it shall furnish service, but the Grantee shall not as to rates, charges, service, facilities, or in any other respects, make or grant any preference or advantage to any person or subject any person to any prejudice or disadvantage, provided, further, that this provision shall not be deemed to prohibit the establishment of graduated scales of charges and classified rate schedules, including but not limited to establishment of differing charges for differing types of service or groups of such services, to which any customer coming within such scale of charges or classifications shall be entitled. Rates shall be the same for all customers within each rate classification which are served by the Grantee from identical facilities. The Grantee may modify the rates charged for any service or group of services upon prior notice to subscribers. The Grantee shall provide to the City a current schedule of the maximum rates Grantee shall be entitled to charge for its services at all times during the effective term hereof, which shall be maintained in the city records on file at the City Office and available for inspection by the public.
Section 7. In consideration of the rights, privileges and franchise hereby granted, and as compensation to the City for the use of its public ways and places by the Grantee, and in lieu of all occupation and license taxes and other fees of any nature whatsoever, the Grantee shall collect and remit to the City a fee equal to 1 % of gross receipts. Pursuant to K.S.A. 12-2001 (c) (6) (2004 Supp.) the term “gross receipts” shall mean only those receipts collected from within the corporate boundaries of the City and which are derived from the following: (A) Recurring local exchange service for business and residence which includes basic exchange service, touch tone, optional calling features and measured local calls; (B) recurring local exchange access line services for pay phone lines provided by the Grantee to all pay phone service providers; (C) local directory assistance revenue; (D) line status verification/busy interrupt revenue; (E) local operator assistance revenue; and (F) nonrecurring local exchange service revenue which shall include customer service for installation of lines, reconnection of service and charge for duplicate bills. All other revenues, including, but not limited to, revenues from extended area service, the sale or lease of unbundled network elements, non-regulated services, carrier and end user access, long distance, wireless telecommunications services, lines providing only data service without voice services processed by the Grantee, private line service arrangements, internet, broadband and all other services not wholly local in nature are excluded from gross receipts. Gross receipts shall be reduced by bad debt expenses. Uncollectible and late charges shall not be included within gross receipts. If the Grantee offers additional services of a wholly local nature which if in existence on or before July 1, 2002, would have been included with the definition of gross receipts, such services shall be included from the date of the offering of such services in the City. Pursuant to KS.A. 12-2001 (r) (2004 Supp.), without prejudice to the Grantee’s other rights and authorities, the Grantee shall add to its end-user customer’s bill, statement or invoice a surcharge equal to the pro rata share of any such fees.
Section 8. The Grantee shall have the right to trim trees upon and overhanging the streets, avenues, alleys, sidewalks and other public ways and places of the City so as to prevent the branches of such trees from coming in contact with the wires, cables, conduits and other necessary fixtures and fittings of the Grantee, provided, however, that except for trimming necessary for ordinary maintenance and repair of the system all such trimmings shall be done pursuant to notice to the City and the right of the City to supervise the same, and by and at the expense of the Grantee.
Section 9. The Grantee may surrender its rights under this ordinance at any time upon filing with the City Clerk of the City a written notice of its intention to do so at least six (6) months before the surrender date. On the surrender date specified in the notice, all of the rights and privileges and all of the obligations, duties and liabilities of the Grantee shall terminate and it may dispose of its property located within the City in any manner it chooses.
Section 10. The obligations of the Grantee as specified in this Ordinance may be discharged on the Grantee’s behalf by one or more other entities PROVIDED, that in the discharge thereof, such other entity or entities shall enjoy the same rights and privileges and shall be subject to the same duties and requirements as are applicable to the Grantee.
Section 11. The rights granted under this ordinance shall be freely assignable and transferable by the Grantee during the term hereof, provided, that no assignment or transfer of the right granted hereunder shall become effective until the assignee or transferee has filed with the City Clerk of the City an instrument accepting the terms of this ordinance and agreeing to perform all of the conditions hereof.
Section 12. The City hereby expressly reserves the right, power and authority to terminate this ordinance and rescind all rights, privileges and authority herein granted to the Grantee at any time for any material and substantial default in the performance of any of the obligations and duties imposed upon the Grantee herein. The City shall provide written notice to the Grantee of any such default. If the Grantee fails within sixty (60) days of receipt of such notice to remedy such default, or submit reasonable justification therefore, then the City shall have the right, after a full and complete public hearing, to revoke any or all rights and privileges granted herein, provided however that said default did not result from factors beyond the reasonable control of the Grantee.
Section 13. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof.
Section 14. This ordinance is governed by and subject to all applicable rules and regulations of the Federal Communications Commission and Orders of the Kansas Corporation Commission. Should there be any modifications of the provisions of such Rules and Regulations or such Orders which must be incorporated into this ordinance, the City and the Grantee agree that such further action shall be accomplished within one (1) year of the adoption of the modification.
Section 15. It shall be the policy of the City to amend this Ordinance liberally, upon application of the Grantee, to take advantage of any developments in the fields of telecommunications, transmission of programming and/ or information and related services which will afford the Grantee an opportunity more effectively or economically to serve its subscribers.
Section 16. The Grantee shall have the right at all times to take such legal action as it deems necessary to preserve the security of its system, equipment and facilities and to assure only authorized use thereof by its subscribers or others.
Section 17. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed.