AN ORDINANCE GRANTING PEOPLES TELECOMMUNICATIONS, LLC, A KANSAS LIMITED LIABILITY COMPANY, AND ITS SUBSIDIARIES, SUCCESSORS, TRANSFEREES AND ASSIGNS, A NON-EXCLUSIVE FRANCHISE TO ERECT, MAINTAIN AND OPERATE A TELECOMMUNICATIONS SYSTEM WITHIN THE CITY LIMITS OF LINN VALLEY, KANSAS, PRESCRIBING THE TERMS AND CONDITIONS THEREOF AND PROVIDING FOR PAYMENTS TO BE MADE TO THE CITY OF LINN VALLEY, KANSAS.

BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LINN VALLEY, LINN COUNTY, KANSAS:

 

ARTICLE 1

DEFINITIONS

For the purpose of granting this Franchise, the following terms shall have the meaning as described herein:

1.1 “City” shall mean the City of Linn Valley, Kansas, and shall include, when appropriate, the context of the territorial boundaries of the city limits of Linn Valley, Kansas, as they now or shall hereafter exist.

1.2. City Council. “City Council” shall mean the present governing body of the City or any successor to the legislative powers of the present City Council.

1.3. Franchise. “Franchise” shall mean the permission, license or authority given hereunder to conduct and operate a telecommunications system in the City, pursuant to this Ordinance passed by the City Council.

1.4. Grantee. “Grantee” shall mean Peoples Telecommunications, LLC, its subsidiaries, successors, transferees or assigns of the Franchise granted herein.

1.5. Franchise Revenue. “Franchise Revenue” shall mean a percentage of annual Franchise Revenue received by Grantee for basic service rates collected from subscribers of Grantee’s local telephone service; provided, however, that such phrase shall not include: (i) revenues received from any advertising carried on the telecommunications system; (ii) revenues from optional calling features; (iii) any taxes imposed directly or indirectly on any subscriber by any governmental unit or agency, and collected by Grantee on behalf of such governmental unit or agency; (iv) any revenues derived from installation charges; (v) revenues derived from Internet access; or (vi) revenues derived from video access.

1.6. Street. “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 for the purpose of public travel. It shall also include such other easements or rights-of-way as shall be now or hereafter held by the City, and which shall within their proper use and meaning entitle the City and Grantee to install or transmit telecommunications 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 Telecommunications System.

1. 7. Property of Grantee. “Property of Grantee” shall mean all property owned and installed or used by Grantee in the conduct of its telecommunications business in the City and under the authority of the Franchise granted herein.

1.8. Telecommunications System. “Telecommunications System” shall mean all equipment used to transport voice or data communications.

1.9. Subscriber. “Subscriber” shall mean any person or entity rece1vmg, for any purpose, one or more of the services offered within Grantee’s Telecommunications System.

1.10. Person. “Person” shall mean any individual or association of individuals, or any firm, corporation or other business entity.

1.11. Telecommunications Facilities. “Telecommunications Facilities” shall mean property of the Grantee used in operation of the Telecommunications System.

 

ARTICLE 2

GRANT OF FRANCHISE

2.1. General Grant. The City hereby grants to Grantee the right and privilege to construct, erect, operate and maintain a Telecommunications 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 a Telecommunications System within the City.

2.2. Non-Exclusivity. The authority given to Grantee in Section 2.1 is not and shall not be deemed to be an exclusive right or permission. The City expressly reserves the right to grant similar non-exclusive franchises to other Persons and allow them to use the Streets of the City within the same or other areas of the City as Grantee at any time; provided, however, that such other franchises do not interfere or create interference with Grantee’s Telecommunications System already established and said other franchisees shall not be extended preferential treatment over Grantee.

2.3. Modifications. 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 (1) year of the adoption of the modification, or at the time of renewal, whichever occurs first. It shall also be the policy of the City to amend this Franchise, upon application of Grantee, when necessary, to enable Grantee to take advantage of any developments in the telecommunications field which would afford Grantee an opportunity to more effectively, efficiently or economically serve its Subscribers, and to enable Grantee to conform to the Rules and Regulations of the Kansas Corporation Commission and the Federal Communications Commission as they may be amended from time to time.

 

ARTICLE 3

TERM

The term of this Ordinance shall be for a period of twenty (20) years from the effective date hereof.

 

ARTICLE 4

FORFEITURE

In addition to all other rights and powers reserved or pertaining to the City, the City reserves as an additional, separate and distinct remedy the right to revoke this Franchise and all rights and privileges of the Grantee hereunder for any of the following reasons:

a. Grantee fails, after thirty (30) days prior written notice, to comply with any of the provisions of this Ordinance granting this Franchise or has by act or omission, violated any term or condition thereof;

b. Any provision of this Ordinance is adjudged by a court of law as invalid or unenforceable, and the City Council finds that such provision constitutes a consideration material to the continuance of the Franchise granted herein; or

c. Grantee becomes insolvent, unable or unwilling to pay its debts or is adjudged bankrupt.

 

ARTICLE 5

ORDINANCE OF REVOCATION

No revocation provided for in Article 4 shall be effective unless or until the City Council provides written notice to Grantee, and Grantee is given at least thirty (30) days to cure any alleged breach of Article 4 herein. If, upon expiration of the time to cure, City Council believes Grantee has failed to cure, the City Council must adopt an Ordinance setting forth the cause and reason for the revocation and the effective date thereof in order to effectuate any revocation. Such Ordinance shall not be adopted without thirty (30) days prior written notice thereof to Grantee along with an opportunity for 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 must be made by the City Council after a conclusive hearing is provided, if requested by Grantee.

 

ARTICLE 6

INDEMNIFICATION

Grantee 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 Grantee, any agent, officer, director, representative, employee, affiliate or subcontractor of the Grantee, or their respective officers, agents, employees, directors or representatives, while installing, repairing or maintaining facilities in a public right-of-way. The indemnification provided by this Article does not apply to any liability resulting from the negligence of the City, its officers, employees, contractors or subcontractors.

 

ARTICLE 7

USE AND INSTALLATION

7.1. Degree of Care. Grantee or any Persons erecting, constructing or maintaining any of the Property of Grantee shall, at all times, employ due care or the highest degree of care required by law under the facts and circumstances and shall maintain and install the Property of Grantee in accordance with commonly accepted methods and principals so as to prevent failures and accidents likely to damage, injure or create a public nuisance.

7.2. Location of Facility. All Telecommunications Facilities shall be located so as to cause minimum interference with the proper use of Streets and the rights and reasonable convenience of property owners abutting the Streets. In no event shall such Telecommunications Facilities be located so as to substantially interfere with the usual public travel on any Street within the City.

7.3. Damage to Public Property. Whenever Grantee or any person on its behalf causes any injury or damage to any public property or Street by or because of the installation, maintenance or operation of the Telecommunications Facilities, such injury or damage shall be immediately remedied in such fashion as directed by the City Superintendent at Grantee’s expense.

7.4. Tree Trimming. Grantee shall have authority to trim trees upon and over the Streets of the City so as to prevent the branches of such trees from coming in contact with wires, cables and other Telecommunications Facilities. All trimming shall be done under the supervision of the City Superintendent at Grantee’s expense.

7.5. Facilities Upgrades/Changes. Grantee shall exercise its right to place, remove, construct and reconstruct, extent and maintain its plant and appurtenances as the business, and purposes for which, may from time to time require along, across, on, over, through, above, and under any public rights-of-way including, but not limited to, Streets, avenues, alleys, bridges and the public grounds and places within the limits of the City at Grantee’s expense.

 

ARTICLE 8

REMOVAL AND ABANDONMENT OF PROPERTY

If this Franchise is terminated or revoked, Grantee shall remove from the Streets all of its Telecommunications Facilities other than those which the City may permit to be abandoned in place. In the event of such removal, Grantee shall return the Street to similar condition as it was in before the Telecommunications Facilities were placed.

 

ARTICLE 9

COMPENSATION

In consideration of granting this Franchise to Grantee, Grantee shall pay the City two percent (2%) of the Franchise Revenue. Such payments shall be made in two installments, on or before the first day of January and the first day of July of each year during the term of this Ordinance for the six-month period ending at the last May 31 and November 30, respectively. The City agrees to accept this sum as full and fair compensation.

 

ARTICLE 10

COMPLIANCE WITH 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 telecommunications service within the City.

 

ARTICLE 11

SALE OR LEASE OF FRANCHISE

This Franchise shall be deemed a privilege to be held in personal trust by Grantee. It may not be sold, transferred, leased, assigned or disposed of in whole or in part, either by force of voluntary sale, consolidation or otherwise, without prior notification to the City Council.

 

ARTICLE 12

MISCELLANEOUS PROVISIONS

12. 1. Supersedes Prior Ordinances. All Ordinances and parts of Ordinances in conflict herew1th are hereby repealed as of the Effective Date of this Ordinance. This Ordinance specifically supersedes the previously adopted Ordinances.

12.2. Binding Effect. All provisions of this Ordinance shall be binding upon Grantee and all its subsidiaries, successors, transferees and assigns, whether expressly stated herein or not.

12.3. Approval. This Ordinance shall not take effect and be in force until after the expiration of sixty (60) days from the date of this final passage and acceptance by the Grantee, within said sixty (60) days, in writing.

(09-12-2011)