ORDINANCE NO.
AN ORDINANCE CONCERNING THE NON-EXCLUSIVE FRANCHISE TO AT&T TELEPHONE COMPANY TO CONSTRUCT, USE AND MAINTAIN TELECOMMUNICATIONS CABLES AND LINES IN THE PUBLIC RIGHT-OF-WAY OF THE CITY OF LAWRENCE, KANSAS FOR THE PURPOSE OF SUPPLYING TELECOMMUNICATIONS SERVICES TO THE CITY OF LAWRENCE, KANSAS AND ITS INHABITANTS PURSUANT TO K.S.A. 12-2001 ET SEQ.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LAWRENCE, KANSAS:
Section 1. Definitions. For purposes of this Ordinance, the following words and phrases shall have the meanings given herein:
(A) The Telephone Company shall mean AT&T Telephone Company, its successors and assigns.
(B) City shall mean the City of Lawrence, Kansas.
(C) Facilities shall mean telephone and telecommunication lines, conduits, wires, cables, pipes, poles, towers, vaults and appliances, and appurtenances and improvements thereto, either under or above ground.
(D) Public improvement shall mean any existing or contemplated public facility, building or capital improvement project, including, without limitations, streets, alleys, sidewalks, sewer, water, drainage, right-of-way improvement and public projects.
(E) 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 public improvements, or any other purpose of a public nature.
(F) Right-of-way shall mean present and future streets, alleys, right-of-way and public utility easements, including public utility easements and right-of-way dedicated in plats to the City.
(G) 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.
(H) Telecommunications Service shall mean the offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
Section 2. Grant of Franchise.
(A) Pursuant to K.S.A. 12-2001 et seq. 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 its inhabitants thereof for the full term of this franchise; subject, however, to the terms and conditions herein set forth.
(B) This franchise does not provide the Telephone Company the right to provide “Cable Service” to the City and inhabitants thereof. For purposes of this ordinance, “Cable Service” is defined as the one-way transmission to subscribers 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, point to multi-point, and switched video services that the Telephone Company has historically offered or other similar services that the Telephone Company may in the future offer. Nothing in this franchise is intended to preclude the City from seeking, or authorize the City to seek, a franchise from any subsidiary, affiliate, or third party providing “Cable Services.” The Telephone Company and the City agree that nothing in this franchise 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). The Telephone Company and the City further agree, however, that this ordinance does not authorize the 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 (c)(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 negotiations in good faith with the Telephone Company within thirty (30) days to provide the Telephone Company a franchise to provide “Cable Service” to the City and the inhabitants thereof on terms no more burdensome than the franchise(s) granted to other providers of “Cable Service” with the City.
Section 3. Use of Right-of-Way. In the use of the right-of-way under this Ordinance, the Telephone Company shall be subject to all rules, regulations, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power and is subject to all applicable laws, orders, rules and regulations adopted by the governmental bodies now or hereafter having jurisdiction. In addition, the Telephone Company shall be subject to all rules, regulations, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City relating to permits, sidewalk and pavement cuts, utility location, construction coordination, beautification, tree care, and other requirements on the use of the right-of-way and shall comply with the following:
(A) The Telephone Company's use of right-of-way shall in all matters be subordinate to the City's use of the right-of-way for any public purposes. The Telephone Company shall coordinate the 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, the facilities shall be placed with adequate clearance from such public improvements so as not to impact or be impacted by such public improvement.
(B) All earth, materials, sidewalks, paving, crossings, utilities, public improvements or improvements of any kind injured, damaged or removed by the Telephone Company in its activities under this Ordinance shall be fully repaired or replaced within a reasonable time by the Telephone Company at its sole expense and to the reasonable satisfaction of the City and the Telephone Company.
(C) The Telephone Company shall keep and maintain accurate records and as-built drawings depicting the accurate location of all facilities constructed, reconstructed, or relocated in the right-of-way after the date hereof and provide the above information 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 obtained pursuant to this subsection 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. Telephone Company and the City agree that such information is confidential and proprietary and agree that such information shall remain the sole property of the Telephone Company and agree that pursuant to K.S.A. 45-221 (12), (18), as amended, such information does not constitute public records subject to K.S.A. 45-218, as amended. In the event that City is required by law to disclose such information, 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, or 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. 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 corners. Vertical locations or all points of facilities shall consist of elevations in either City datum or United States Geological Survey datum.
(D) Except in cases of an emergency, a minimum of fourteen (14) days prior to construction, reconstruction or relocation of any facilities in the right-of-way, the Telephone Company shall submit to the City Engineer, or her or his designee, for approval, plans and specifications of the proposed installation. Such approval shall not be unreasonably withheld, delayed or conditioned. City review shall only concern matters related to the interests of the City as set forth in this Ordinance.
(E) The Telephone Company shall cooperate promptly and fully with the City and take all measures necessary to provide accurate and complete information regarding the nature and locations, both horizontal and vertical, of its facilities located within right-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 the Area Manager - External Affairs (Lawrence) as its agent to provide the City with timely information when required by this subsection.
(F) As reasonably necessary, the Telephone Company shall relocate or adjust any facilities located in the right-of-way for a public project within a reasonable time. Such relocation or adjustment 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 not inconsistent with this Ordinance pertaining to such.
(G) It shall be the sole responsibility of the Telephone Company to take adequate measures to protect and defend its facilities in the right-of-way from harm and damage. If the Telephone Company fails to accurately or timely locate facilities when requested, the Telephone Company has no claim for costs or damages against the City and its authorized contractors or any other party authorized to be in the right-of-way, except to the extent such harm or damage is caused by such party’s negligent or intentional conduct. City and its authorized contractors agree to take reasonable precautionary measures, including, but not limited to, calling for utility locations and observing marker posts, when working near Telephone Company facilities.
(H) Except in the event of an emergency, the Telephone Company shall notify the City not less than ten (10) days in advance of any construction, reconstruction, repair or relocation of facilities which would require any street closure which reduces traffic flow to less than two lanes of moving traffic. The City shall follow its policies in the grant or denial of such authority, which shall not be unreasonably delayed. Except in the event of an emergency, no such closure shall take place without such notice and prior authorization from the City.
In addition, 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. For all work within the right-of-way, the Telephone Company shall erect and maintain signs and other devices as required by City ordinances, regulations and rules.
(I) All technical standards governing construction, reconstruction, installation, operation, testing use, maintenance, and dismantling of the facilities in the right-of-way shall be in accordance with applicable present and future federal, state and City law and regulations.
Section 4. Street Tree Ordinance. The Telephone Company shall comply with the provisions of the Street Tree Ordinance (Chapter 18, Article 1, of the Code of the City of Lawrence, Kansas) and amendments thereto, in the care, pruning, trimming, and removing of trees located in or on the City right-of-way.
Section 5. Location of Underground Equipment and Facilities. The Telephone Company equipment shall be placed underground as required by City ordinances, including Chapter 5, Article 4A of the Code of the City of Lawrence, and amendments thereto. Where underground construction is made, the equipment and any necessary trenching shall be installed and maintained or provided by the Telephone Company in accordance with the ordinances of the City without expense to the City.
Section 6. Franchise Fee.
(A) In consideration for the grant of this franchise, the Company agrees to pay and the City of Lawrence, Kansas agrees to accept as adequate compensation and consideration for the franchise hereby granted a franchise fee as defined herein. The Company shall pay to the City a sum equal to four percent (4%) of “gross revenue from local exchange telecommunications service” rendered wholly within the corporate limits of the City through June 30, 2007. On and after July 1, 2007, the Company shall pay to the City the sum equal to five percent (5%) of “gross revenue from local exchange telecommunications service,” rendered wholly within the corporate limits of the City. For purposes of this Ordinance, “gross revenue from local exchange telecommunications service” shall mean those revenues less uncollectibles, derived from the following:
(1) Recurring local exchange service revenues for business and residence which include basic exchange service, Touch Tone, optional calling features and measured local calls;
(2) Revenues from recurring local exchange access line service revenues for pay phone lines provided by Company to all pay phone service providers;
(3) Local directory assistance revenue;
(4) Line status verification/busy interrupt revenue;
(5) Local operator assistance revenue;
6) Nonrecurring local exchange service revenue which shall include customer service for installation of lines, reconnection of service and charge for duplicate telephone bills.
(B) Telephone Company and City agree that all other revenues, including but not limited to, revenues from extended area service, unbundled loops, non-regulated services, carrier and end user access, long distance and all other services not wholly local in nature are excluded from “gross revenues from local exchange telecommunications services.” Telephone Company and City agree that “gross revenue from local exchange telecommunications services” shall be reduced by bad debt expenses and uncollectibles and further agree that franchise fees collected and late charges shall not be included within “gross revenues from local exchange telecommunications services.”
(C) If during the term of this ordinance Telephone Company offers additional services of a wholly local nature which if in existence at the effective date of this ordinance would have been included with the definition of “gross revenue from local exchange telecommunications services,” such services shall be included within “gross revenue from local exchange telecommunications services” from the date of the offering of such services in City for the remaining term of the ordinance.
(D) The franchise fee shall be paid monthly, by electronic transfer to the City of Lawrence, Kansas, or other method approved by the City and Company, for the preceding monthly period. Concurrent with submission of the monthly payment, the Company shall also submit a report in substantially the same form as Attachment A to this ordinance which shall detail revenues from specific sources. The Company shall pay the applicable fee to the City within forty-five (45) days of the last day of the applicable month for which a fee payment is due and owing. Payments received after the due date shall be subject to a late payment charge of one and one-half percent (1 ½ %) per month. Payments due and owing as the result of an audit of franchise fee payments shall be subject to a late payment charge of one and one-half percent (1 ½ %) per month; provided such late payment charges shall 1) begin to accrue forty-five (45) days after notice is mailed to the Company; and 2) the late payment charge shall only apply to audit generated payments agreed to by the City and the Company.
(E) During the successive terms of this ordinance, if any, City may by ordinance modify the franchise fee required by this ordinance to increase the percentage of “gross revenues from local exchange telecommunications services” required under this ordinance by one (1) percent; Provided however, that (1) any such increase(s) may occur only once in any twelve-month period; (2) City shall provide the Telephone Company with ninety (90) days notice prior to the effective date of any such ordinance providing such increase; (3) City shall lawfully enact an ordinance effectuating such an increase in compensation; and (4) the percentage of gross revenues required under this ordinance may never exceed a maximum of five (5) percent. City agrees to indemnify and hold harmless the Telephone Company for any and all liability, costs, damages, and expenses, including but not limited to attorney’s fees, resulting from claims, demands, or causes of actions arising out of or related in any manner to increases in the percentage of “gross revenues from local exchange telecommunications services” pursuant to this subsection.
(F) 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 Telephone Company to pay the reduced level required by law for the remainder of the term of this ordinance. The parties further agree that this franchise may be terminated by Telephone Company if authority to collect the payments required under section 6 or any part of such payments shall be removed, canceled or withdrawn by legislation, judicial or regulatory act.
(G) The franchise fee shall be in lieu of all other licenses, charges, fees or impositions (other than the usual general or special ad valorem taxes) which might be imposed by the City for the privilege of operating a telephone system within the City.
(H) The Company agrees to use due diligence in ascertaining the boundaries of the City, including the annexation of property into the City. The City shall provide copies of annexation ordinances to the Company on a timely basis. The Company shall obtain a copy of the annual boundary resolution adopted by the City, and the Company shall compare the City boundaries with existing and planned Company services and customers to ensure appropriate franchise fee collection from customers within the corporate limits of the City.
Section 7. Sharing of Space. The City encourages the conservation of right-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. 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 Telephone Company to provide City notice when it provides telecommunications services to any entity.
Section 8. Access to Information regarding Company Equipment, Facilities and Revenues. The Company shall provide the City, or City audit representatives, with reasonable access to Company records, revenue codes and information documenting the total “gross revenues from local exchange telecommunications services” as defined in Section 6 to verify the correctness of amounts paid under this franchise.
Section 9. Attachment to Poles. Nothing in this ordinance shall be construed to require or permit any telephone, electric light or power wire attachments by either the City or the Telephone Company on the poles of the other. If such attachments are desired by the City or the Telephone Company, then a separate non-contingent agreement shall be prerequisite to such attachments.
Section 10. Indemnification and Hold-Harmless. The Telephone Company, its successors and assigns, shall at all times save and hold harmless the City of Lawrence, Kansas, from all liability, costs, damages, and expenses of any kind, for the payment of which said City may become liable to any person, firm, or corporation by reason of any claim or damages to the extent caused by the failure of the Telephone Company, its employees, agents, or servants to exercise due care and diligence in the construction, installation, maintenance, and operation of telecommunications services and the transmission, and/or distribution of such services within the City or outside the City.
Section 11. Assignment of Franchise. Pursuant to the written permission of the City, which shall not be unreasonably withheld, the Telephone Company shall have the right to assign this franchise, and the rights and privileges herein granted, to any person, firm or corporation, and any such assignee, by accepting such assignment, shall be bound by the terms and provisions hereof. If the Telephone Company should seek approval to assign this franchise, the Telephone Company shall notify the City in writing. All such assignments shall be in writing and authenticated copies thereof shall be filed with the City Clerk. This franchise 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 12. Conditions of Franchise. This contract, franchise, ordinance, 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 13. Notice to Parties. For the purpose of this Agreement, notice to the City will be to: City Manager, P.O. Box 708, 6 East 6th Street, Lawrence, Kansas, 66044. For the purpose of this Agreement, notice to the Telephone Company will be to: AT&T Telephone Company . Notice will be effective upon delivery by hand delivery 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 14. Length of Franchise Agreement. This agreement shall be effective for one (1) year after its effective date pursuant to Section 17. This agreement shall be extended for successive one (1) year terms unless prior to one hundred eighty (180) days before the expiration of the original term or of a successive term either party provides written notice to the other party of its intention to terminate the agreement at the expiration of such term.
Section 15. Rights and Duties of Grantee upon Expiration of Ordinance. Upon expiration of this Ordinance, whether by lapse of time, by agreement between the Telephone Company and the City, or by forfeiture thereof, the Telephone Company shall have the right to remove from public property and all of its facilities used in its business within reasonable time after such expiration or forfeiture, but in such event, it shall be the duty of the Telephone Company immediately upon such removal, to restore the right-of-way from which said facilities are removed to as good condition as the same were before said removal was effected without cost to the City.
Section 16. Termination or Forfeiture of Franchise.
(A) 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 of Lawrence shall carry out the following proceedings.
(B) Before the City of Lawrence proceeds to forfeit said franchise, as in this section prescribed, it shall first serve a written notice as provided by the Notice provisions of this ordinance, setting forth in detail the conditions of neglect, default or failure complained of, and the Telephone Company shall have ninety (90) days after the mailing of such notice in which to comply with the conditions of this franchise. If at the end of such ninety (90) day period the City of Lawrence deems that the conditions of such franchise have not been complied with by the Telephone Company and that such franchise is subject to cancellation by reason thereof, the City of Lawrence, in order to terminate such franchise shall enact an ordinance setting out the grounds upon which said franchise is to be canceled and terminated. If within thirty (30) days after the effective date of said ordinance the Telephone Company shall not have instituted an action in the District Court of Douglas County, Kansas to determine whether or not the Telephone Company has violated the terms of this franchise and that the franchise is subject to cancellation by reason thereof, such franchise shall be canceled and terminated at the end of such thirty-day period.
(C) If within such thirty (30) day period the Telephone Company does institute an action, as above provided, to determine whether or not the Telephone Company has violated the terms of this franchise and that the franchise is subject to cancellation by reason thereof and prosecutes such action to final judgment with due diligence, then, in that event in case the court finds that the franchise is subject to cancellation by reason of the violation of its terms, this franchise shall terminate thirty (30) days after such final judgment is rendered and available appeals exhausted.
Section 17. Effectiveness. This ordinance shall become effective and be in force and shall be a binding contract between the Telephone Company and the City of Lawrence, Kansas, their successors and assigns, from and after the following: 1) the ordinance has been approved by the Telephone Company in writing pursuant to Section 20, 2) the ordinance has been read in full at three regular meetings of the governing body, 3) the ordinance has been published in the official city paper once a week for two consecutive weeks, and 4) the expiration of 60 days from the date of final passage without the submission of a proper petition asking that the franchise be submitted for adoption to popular vote; all as provided by K.S.A. 12-2001. The Telephone Company shall pay for the required publications of this ordinance.
Section 18. Severability. If any provision, section or subsection of this ordinance or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions, sections or subsections or applications of this ordinance which can be given effect without the invalid provision, section or subsection or application, and to this end the provisions, sections, and subsections of this ordinance are declared to be severable.
Section 19. Company Acceptance. The Company shall, within sixty (60) days, after the final publication of this ordinance, file with the City Clerk its written acceptance of all the terms, conditions, and provisions of this ordinance, and in case its failure so to do, this Ordinance shall be null and void. The acceptance of this ordinance, shall be in writing, and shall be duly acknowledged before some 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.
Passed by the governing body this day of , 2006.
Mike Amyx, Mayor
ATTEST:
Frank S. Reeb, City Clerk
Approved as to form and legality:
Toni Ramirez Wheeler, Interim Director of
Legal Services