AN ORDINANCE FOR SOUTH CENTRAL WIRELESS, INC., ITS SUCCESSORS AND ASSIGNS, FOR A FRANCHISE AGREEMENT AND THE RIGHT TO CONSTRUCT, OPERATE, MAINTAIN AND EXTEND A TELECOMMUNICATIONS SYSTEM IN THE CITY OF ATTICA, KANSAS, PRESCRIBING THE TERMS OF SAID GRANT AND RELATING THERETO. BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF ATTICA, KANSAS:
SECTION 1: DEFINITIONS.
For purposes of this ordinance, the following words and phrases shall have the meanings given herein:
(a) “Access Lines” shall mean the following: billed main lines and trunks, whether provided on a retail or wholesale basis; residential lines; business lines; ISDN lines (channels); PBX trunks; Centrex or Centrex-like stations; unbundled loop facilities; special access services; simulated exchange access provided by central office switching arrangement where all stations are served by such simulated exchange access lines are used by a single customer of the provider of such arrangement; where stations are served by simulated exchange access lines provided by central office bases switching arrangement and the stations served are not used by a single customer of the provider of such arrangement; each station shall constitute an access line; and pay phone lines. “Access Line” shall include wireless telecommunication services subject to 47 C.F.R. Part 24.
(b) “City” shall mean the City of Attica, Kansas
(c) “Cable Service” means the one way transmission to subscribers of video programming service, and subscriber interaction, if any, which is required for selection and use of such video programming or other programming service. Cable Service does not include point to point, point to multi-point, or switched video services that Telephone Company has historically offered or other similar services that Telephone Company may in the future offer
(d) “Facilities” shall mean telephone and telecommunication lines, conduits, fiber optic cables, wires, cables, pipes, poles, towers, vaults, and appliances, either under or above ground.
(e) “Public improvement” shall mean any existing or contemplated public facility building, or capital improvement project, including without limitation streets, alleys, sidewalks, sewer, water, drainage, rights-of-way improvement, and public projects.
(f) “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 improvements or any other purpose of a public nature.
(g) “Rights-of way” shall mean present and future streets, alleys, rights-of way, and public easements dedicated in plats of the City of Attica, Kansas.
(h) “Street rights-of way” shall mean the entire width between property lines of land, property or an interest therein of every way publicly maintained where any part thereof is open to the use of the public for purposes of vehicular traffic, including street, avenue, boulevard, highway, expressway, alley or any other public way for vehicular travel by whatever name.
(i) “Telecommunications” shall mean the transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.
(j) “Telecommunications Service” shall mean the offering of telecommunications for a fee directly to the public, or to such classes or users as to be effectively available directly to the public, regardless of the facilities used.
(k) “Telephone Company” shall mean South Central Wireless, Inc., its successors and assigns.
SECTION 2: GRANT.
(a) There is hereby granted to the Telephone Company the right, privilege and franchise to construct, maintain, extend and operate its facilities, in, through and along the rights-of way for the purpose of supplying Telecommunications Services to the City and the inhabitants thereof for the full term of this :franchise; subject, however, to the terms and conditions herein set forth.
(b) This franchise agreement does not provide the Telephone Company the right to provide “Cable Service” to City and inhabitants thereof. For purposes of this ordinance, “Cable Service” is defined as the one-way transmission to subscribers “‘1 of video programming or other programming services, and subscriber interaction, if any, which is required for the selection of such video programming or other programming service; but “Cable Service” does not include point to point to multi-point, and switched video services that the Telephone Company has historically offered or other similar services that the Telephone Company may offer in the future. Nothing in this franchise agreement is intended to preclude the City from seeking, or authorizing the City, to seek a franchise agreement from any third party, subsidiary, or affiliate providing “Cable Services.” The Telephone Company and the City agree that nothing in this franchise agreement is intended to authorize the City to seek from the Telephone Company nor to require the Telephone Company to obtain a franchise to offer “Open Video Systems: as that term is used in Section 653 of the Telecommunications Act of 1996 (codified at 47 U.S.C. 573). Telephone Company and City further agree, however, that this ordinance does not authorize Telephone Company to offer “Open Video Systems” without paying the fee on the gross revenues of the system operator for the provision of cable service in lieu of a franchise fee, pursuant to and in the manner described in 47 U.S.C. 573 (2) (b) and without complying with FCC regulations promulgated pursuant to 47 U.S.C. 573.
(c) Upon written request from the Telephone Company, the City agrees to begin within thirty (30) days, good faith negotiations with the Telephone Company to provide the Telephone Company a franchise to provide “Cable Service” to the City and inhabitants thereof on terms no more burdensome than the :franchises granted to other providers of “Cable Service” with the City.
SECTION 3: USE OF RIGHTS-OF-WAY.
In the use of rights-of-way under this franchise agreement, the Telephone Company shall be subject to all rules, regulations, policies, resolutions and ordinances now in effect or hereafter adopted or promulgated by the City in the reasonable exercise of its police power. In addition, the Telephone Company shall be subject to all rules, regulations, policies, resolutions, and ordinances now effect or hereafter adopted or promulgated by the City relating to permits and fees, sidewalk and pavement cuts, utility locations, construction coordination, beautification, and other requirements on the use of rights-of-way and shall comply with the following:
(a) The Telephone Company’s use of rights-of-way shall in all matters be subordinate to the City’s use of rights-of-way for any public purpose. The Telephone Company shall coordinate 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, facilities shall be placed with adequate clearance from such public improvements so as not to impact or be impacted by such public improvement. Such facilities shall be horizontally and vertically located at least every 100 feet and at any other alignment change. All points of facilities shall be horizontally located from street centerline, or section or quarter section lines or comers. Vertical locations or all points of facilities shall consist of elevations in either City datum or United States Geological Survey datum.
(b) All earth materials, sidewalks, paving, crossings, utilities, public improvements, or improvements of any kind, injured or removed by the Telephone Company in its activities under this franchise agreement shall be fully repaired or restored promptly by the Telephone Company at its sole expense and to the reasonable satisfaction of the City or owner thereof.
(c) All facilities constructed, replaced, or relocated in the rights-of-way after the date hereof shall be placed underground unless otherwise agreed to by the City. Where there are obstructions in the right-of-way such as trees, shrubs, other utilities, commercial signs, man-made structures, or other like obstructions which may make the cost of such underground burial unreasonable, the Telephone Company may request waiver of this requirement, in which event the City will not unreasonably withhold consent. Any vaults, boxes, pedestals, and similar facilities placed above ground in street right-of-way shall be located behind the sidewalk where feasible.
(d) The Telephone Company shall keep and maintain accurate records and as-built drawings depicting accurate horizontal and vertical location of all facilities constructed, reconstructed, or relocated in the street rights-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, Telephone Company agrees to provide such information in an electronic format. (City agrees to use information 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. The Telephone Company and the City agree that such information is confidential and proprietary and further agree that such information shall remain the sole property of the Telephone Company and agree that pursuant to KS.A 45-221 (12), (18), as amended, such information does not constitute public records subject to KS.A. 45-218, as amended. In the event that the City is required by law to disclose such information, the City -shall provide the Telephone Company 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 Telephone Company to safeguard such information. The Telephone Company 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 Telephone Company, of the City at the written request of the Telephone Company, in seeking to safeguard the confidentiality of information provided by the Telephone Company to the City under this section. In the event such information is required by force of law to be publicly disclosed, the Telephone Company shall have no further obligation under this section to provide the City with such information.
(e) 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. Such signing shall be in conformance with the latest edition of the Federal Highway Administration’s Standards and Guideline for Work Zone Traffic Control, unless otherwise agreed to by the City.
(f) The Telephone Company shall notify the City, not less than three (3) working days in advance (such notice to be adequate for timely notice on the governing body agenda under City procedures) of any construction, reconstruction, repair, or relocation of facilities which would require any street closure which reduces traffic to less than two lanes of moving traffic. Except in the event of an emergency, as reasonably determined by the Telephone Company, no such closure shall take place without prior authorization from the City.
(g) The Telephone Company shall cooperate promptly and fully with the City and take all reasonable measures necessary to provide accurate and complete information regarding the nature and the horizontal and vertical location of its facilities, located within rights-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 Telephone Company without expense to the City, its employees, agents, or authorized contractors. The Telephone Company shall designate and maintain a local agent, familiar with the facilities, who is responsible for satisfying information needs of the City and other users of the rights-of-way.
(h) The Telephone Company shall promptly remove, relocate, or adjust any facilities located in rights-of-way if reasonably necessary and directed by the City for any publicly funded improvement or project. Such removal, relocation, or adjustment for a particular public project shall be performed by the Telephone Company at its sole expense without expense to the City, its employees, agents, or authorized contractors and shall be specifically subject to rules and regulations of the City pertaining to such. If additional removal, relocation, or adjustment is the result of the inaccurate or mistaken information of the Telephone Company, the Telephone Company shall be responsible for such removal, relocation or adjustment at its sole expense.
(i) It shall be the responsibility of the Telephone Company to take adequate measurements to protect and defend its facilities in the rights-of way from harm or damage. If the Telephone Company fails to accurately or timely locate facilities when requested, it has no claim for costs or damages against the City and its authorized contractors unless such party is solely responsible for the harm or damage by its negligence or intentional conduct. The Telephone Company shall be responsible to the City and its agents, representatives, and authorized contractors for all damages including, but not limited to, delay damages, repair costs, down time, construction delays, penalties or other expenses of any kind arising out of the failure of the Telephone Company to perform any of its obligations under this agreement unless the damaged party is solely responsible for the harm or damage by its negligence or intentionally caused harm. However, the City and its authorized contractors shall be responsible to take reasonable precautionary measures, including calling for utility locations and observing marker posts when working near telephone Company facilities.
(j) The Telephone Company, on the request of any applicant, shall remove or raise, or lower its wires temporarily to permit the moving of houses or other structures. The expense of such temporary removal, raising or lowering the wires shall be paid by the party or parties requesting the same, and the Telephone Company shall be given not less than fifteen (15) days’ written notice from the applicant detailing the time and location of the moving operations, and not less than twenty-four (24) hours advance notice from the applicant advising of the actual operation. The City shall not be liable for any such expense or notice requirement for the moving of houses or structures by the City or its contractors.
(k) Permission is hereby granted to the Telephone Company to trim trees of the City which overhang streets, alleys, sidewalks and public places of the City, so as to prevent the branches of such trees from coming in contact with the wires and cables of the Telephone Company. All of said trimming to be done under the supervision and direction of any City official to whom said duties have been or may be designated in accordance with Attica City code.
(l) All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of the facilities in the rights-of-way shall be in accordance with applicable present and future federal, state, and City laws, regulations and ordinances, including but not limited to the most recent editions of the National Electrical Code, the National Electrical Safety Code, and Fiber Optic Cable Installation Standard of the Telecommunications Industry Committee, or such substantive equivalents as may hereafter be adopted or promulgated. It is understood that the standards established in this paragraph are minimum standards and the requirements established or referenced in this ordinance may be additional to or stricter than such minimum standards.
(m) The City encourages the conservation of rights-of-way by the sharing of space by all utilities. To the extent required by Federal or State law, the Telephone Company 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 Telephone Company. All said agreements and installations shall be subject to all existing and future ordinances and regulations of the City. The Telephone Company agrees that it will not grant any entity rights to occupy the rights-of-way without providing notice to the City. Nothing in this section shall be construed as requiring the Telephone Company to provide the City notice when it provides Telecommunications Services to any entity.
SECTION 4: INDEMNITY AND HOLD HARMLESS.
The Telephone Company shall hold and save the City, its officers, employees, agents, and authorized contractors, harmless from and against all claims, damages, expense, liability and costs including attorney fees, to the extent occasioned in any manner by the Telephone Company’s occupancy of rights-of-way, except to the extent otherwise specified in section 3 (i). In the event a claim shall be instituted against the City, growing out of such occupancy of the rights-of-way by facilities of the Telephone Company, upon notice by the City to the Telephone Company, the Telephone Company will assume liability for the defense of such actions at the cost of the Telephone Company, subject to the option of the City to appear and defend, at its own cost, any such case.
SECTION 5: PAYMENTS AND CHARGES.
The payments herein provided shall be in lieu of all other licenses, taxes, charges, fees or impositions, except that the usual general property taxes and special ad valorem property taxes, and any charges for pavement cuts or other charges based on restoring premises to their same conditions, or charges made for privileges which are not in any way connected with telephone business, as such, will be imposed on the Telephone Company, and are not covered by the payments herein. The Telephone Company shall have the privilege of crediting such sums payable hereunder with any unpaid balance due the Telephone Company for telephone service rendered or facilities furnished to the City; provided, that the balance due is liquidated and uncontested.
SECTION 6: COMPENSATION TO CITY.
(a) In consideration of the franchise granted to the Telephone Company by the City, a sum of Two dollars and Twenty five cents ($2.25) per month for each access line served by the Telephone Company for local service within the city limits of the City shall be paid by the Telephone Company to the City. Compensation required by this franchise agreement shall be paid on a quarterly basis. The number of access lines as of year-end of the preceding calendar year shall be used to calculate payments to the City for the following year.
(b) If during the term of this ordinance any entity provides Local Service in the City and provides compensation to the City at an amount less than the Telephone Company is required to pay for each access line, per month, as set out in section 6 (a) or such entity provides no compensation to the City for each such access line, this ordinance shall require compensation no greater than such amounts, if any, from the Telephone Company during such time remaining in the term of this ordinance as is paid by such other entity.
(c) The parties agree that if federal law or state law is enacted setting forth a maximum allowable level of compensation for franchise rights and if such maximum allowable level is less than the level of compensation required by this ordinance, this ordinance shall require the Telephone Company to pay the reduced level required by law for the remainder of the term of this ordinance.
(d) If during the term of this ordinance, the Telephone Company believes that it is entitled to a reduction in compensation pursuant to subsections (b) and ( c) above, the Telephone Company agrees to notify the City in writing and agrees that it will continue to pay the City a monthly rate as set forth in section 6 (a) for each access line served by the Telephone Company for Local Service within the limits of the City until final agreement is reached with the City, but not longer than sixty (60) days following such notice to the City.
(e) The Telephone Company shall correctly code all customers that are located within the corporate limits of the City, provided that the City shall give Telephone Company notice of boundary changes as provided below. Coding shall be updated to reflect annexation and other changes in the City boundaries, and the associated changes in customers and access lines, within thirty (30) days of the date the City provides the Telephone Company written notice of the annexation or other changes in boundaries and a list of addresses affected by such changes. Such notice shall be sent to South Central Wireless, Inc., 101 S. Main, Medicine Lodge, Kansas 67104. In the event of annexations, the Telephone Company may request additional time in writing to re-code customers. This request will not be unreasonably denied by the City.
SECTION 7: COLLECTION OF COMPENSATION.
This franchise agreement may be terminated by the Telephone Company if authority to collect the amounts of such payments or part of such payments, from its customers within the limits of the City shall be removed, canceled or withdrawn by legislative, judicial or regulatory act. The City and the Telephone Company acknowledge and agree that the Telephone Company has collected and paid the City all amounts due and owing for the Telephone Company’s use and occupancy of the City rights-of-way at all times prior to January 3, 2011.
Compensation for each calendar year during the term of the contract franchise ordinance shall continue to be based on a sum equal to $2.25 per month for each access line unless the City notifies the Telephone Company prior to ninety (90) days before the end of the calendar year that it intends to increase or decrease the amount for access lines for the following calendar year or that it intends to switch to a gross receipt fee for the following calendar year. In the event the City elects to proceed with compensation based on a gross receipt fee, nothing herein precludes the City from switching back to an access line fee provided the City notifies the Telephone Company prior to ninety (90) days before the end of the calendar year that the City intends to elect an access line fee for the following calendar year. Any increased access line fee or gross receipt fee shall be in compliance with the public notification procedures set forth in Subsections (1) and (m) of K.S.A. 2002 Supp.
SECTION 8: TERMINATION OF FRANCHISE.
In case of failure on the part of the Telephone Company, its successors and assigns, to comply with any of the provisions of this ordinance, or if the Telephone Company, 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 Telephone Company, 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 conforms with the following proceedings: Before the City proceeds to forfeit the franchise it shall serve written notice upon the manager of South Central Wireless, Inc. at its principal office, and upon the trustee or trustees in any deed of trust securing bonds of the Telephone Company of record in Barber County, Kansas, or Harper County, Kansas, by mailing notice to such trustee or trustees at the address designated in the trust deed. This notice by the City shall set forth, in detail, the neglect or failure of the Telephone Company, its agents, successors and assigns, and the Telephone Company shall have ninety (90) days thereafter in which to comply with the conditions of this franchise agreement. If at the end of such ninety-day (90) period the City deems that the conditions of such franchise agreement have not been fully complied with by the Telephone Company and that such franchise agreement is subject to cancellation by reason thereof, the City shall enact an ordinance setting out the grounds upon which said franchise agreement is to be canceled or terminated. If within thirty (30) days after the effective date of said ordinance the Telephone Company has not instituted an action, either in the District Court of Barber County, Kansas, the District Court of Harper County, Kansas, or another court of competent jurisdiction, to determine whether the Telephone Company has violated the terms of the franchise agreement and the franchise agreement is subject to cancellation by reason of the violation by the Telephone Company, such franchise agreement shall be canceled and terminated at the end of the thirty-day (30) period. If within such thirty-day (30) period the Telephone Company does institute action, as above provided, to determine whether the Telephone Company has violated the terms of the franchise agreement and that the franchise agreement is subject to cancellation by reason of that violation and the Telephone Company prosecutes such court action to final judgment with due diligence, and the court finds that the franchise agreement is subject to cancellation by reason of the violation of its terms, this franchise shall terminate thirty (30) days after the final judgment in rendered.
SECTION 9: RIGHTS AND DUTIES OF GRANTEE UPON EXPIRATION OF FRANCHISE
Upon expiration of this franchise agreement, whether by lapse of time, by agreement between the Telephone Company and the City, or by forfeiture, the Telephone Company shall have the right to remove from public property any and all of its lines, poles, towers and other appurtenances and equipment used in its business, within a reasonable time, after such expiration. Furthermore, it shall be the duty of the Telephone Company, immediately upon such removal of the lines, poles, towers and other appurtenances and - equipment, to restore t4e streets, avenues, alleys, parks and other public ways and grounds from which said lines, poles, towers, and other appurtenances and other equipment are removed to as good condition as it was before removal was effected by the Telephone Company.
SECTION 10: TERM AND TERMINATION DATE.
The term of this franchise shall be five (5) years commencing January 1, 2011 The Telephone Company or the City, at its option, shall have the right to extend this franchise agreement upon the same terms and, conditions for a subsequent term of five (5) years, by providing written notice of this desire no later than one hundred and eighty (180) days prior to the expiration of the initial term. The Telephone Company or the City may reject the additional term by providing written notice within ninety (90) days of receipt of the written notice to extend the franchise. The additional term shall be deemed a continuation of this franchise agreement and not as a new franchise agreement or amendment to the franchise agreement.
SECTION 11: ACCEPTANCE OF TERMS BY THE TELEPHONE COMPANY.
The Telephone Company shall have sixty (60) days after the final passage and approval of this ordinance to file with the City Clerk of the City of Attica its acceptance, in writing of the provisions, terms and conditions of this franchise agreement ordinance. This written acceptance shall be duly acknowledged before an officer authorized by law to administer oaths; and when so accepted the ordinance and acceptance shall constitute a contract between the City and the Telephone Company subject to the provisions of the laws of the State of Kansas.
SECTION 12: RIGHT TO ASSIGN.
This franchise agreement shall be assignable only in accordance with the laws of the State of Kansas, as the same may exist at the time when any assignment is made.
SECTION 13: CONDITIONS OF FRANCHISE.
This contract, franchise, grant and privilege 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 Telephone Company’s control. This franchise shall not be exclusive.
SECTION 14: INVALIDITY OF ORDINANCE.
If any clause, sentence, or section of this ordinance shall be held to be invalid, it shall not affect the remaining provisions of this ordinance.
SECTION 15: VENUE.
This agreement shall be construed under and in accordance with the laws of the State of Kansas, and all obligations of the parties hereunder are performable in Harper County, Kansas. In the event that any legal proceeding is brought to enforce the terms of this agreement, the same shall be brought in Harper County, Kansas limited to state court action. Nothing in Section 16 shall be construed to limit or restrict Telephone Company’s right to initiate action in federal court (Kansas District) or to remove a state court action to federal court (Kansas District).
SECTION 16: NOTICE.
For the purpose of this agreement, notice to the City will be to:
City Administrator/Mayor
City of Attica
127 N. Main Street
Attica, Kansas 67009
Notice to the Telephone Company will be to:
General Manager
South Central Wireless, Inc.
101 S. Main
Medicine Lodge, Ks. 67104
Notice will be effective upon delivery by hand or by first class mail to the above address until the City or the Telephone Company notifies the other, in writing, of a change in address.
SECTION 17: PUBLIC PURPOSE.
All of the regulations provided in this ordinance are hereby declared to be for a public purpose and the health, safety, and welfare of the general public. Any member of the governing body or City official or employee charged with enforcement of this ordinance, acting for the City in the discharge of his/her duties, shall not render the official or employee personally liable; and he/she is hereby relieved from all personal liability for any damage that might accrue to persons or property as a result of any act required or permitted in the discharge of his/her duties. Neither the City nor the Telephone Company by accepting this franchise agreement ordinance waives its right to seek appropriate legal and equitable remedies as allowed by law upon violation of the terms of this franchise agreement ordinance, including seeking injunctive relief in a court of competent jurisdiction in accordance with the provisions of this franchise agreement ordinance.
(01-31-2011)