AN ORDINANCE GRANTING TO BLUE VALLEY TELECOMMUNICATIONS, INCORPORATED, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE AND THE RIGHT TO CONSTRUCT, OPERATE, MAINTAIN AND EXTEND A WIRELESS TELECOMMUNICATIONS INTERNET SYSTEM IN THE CITY OF MARYSVILLE, KANSAS, PRESCRIBING THE TERMS OF SAID GRANT AND RELATING THERETO.
Section 1. Definitions. For purposes of this ordinance, the following words and phrases have the meanings given herein:
(a) “City” - shall mean the City of Marysville, Kansas.
(b) “Post Internet Service” - means the transmission to subscribers of availability for subscriber interaction or selection and use of wireless internet communications.
(c) “Facilities” - shall mean antennas, towers, telecommunication lines, conduits, vaults, and appliances, including storage buildings, not to exceed 20 x 20 feet on site, either under or above ground at a site pre-approved by the City.
(d) “Public Improvement” - shall mean any existing or contemplated public facilities, specifically that portion of the real estate necessary for building at or below the Marysville City standpipe and the use of the walkways or any portion of the standpipe such that it shall not interfere with the private uses of said standpipe or use of municipal waters or other co-occupants.
(e) “Telecommunications Service.” - 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 specifically as internet communications.
(f) “Telephone Company” - shall mean Blue Valley Telecommunications, Inc., its successors and assigns.
Section 2. Grant. (a) There is hereby granted to Blue Valley Telecommunications, Inc., the right, privilege and franchise to construct, maintain, extend and operate its facilities, in, through and below the Marysville City standpipe 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.
(c) Upon written request from Telephone Company, the City agrees to begin negotiations in good faith with Telephone Company within thirty (30) days to provide Telephone Company a franchise to provide “Cable Service” to the City and inhabitants thereof on terms no more burdensome that the franchise(s) 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, 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. 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 and fees, utility locations, construction coordination, beautification, and other requirements on the use of the site.
(a) The Telephone Company’s use of rights-of-way shall in all matters be subordinate to the City’s use of said facility 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, i.e., stand pipes 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 or removed by the Telephone Company in its activities under this franchise shall be fully repaired or restored by the Telephone Company at its sole expense and to the reasonable satisfaction of the City or owner thereof.
(c) The Telephone Company shall keep and maintain accurate records and as-built drawings depicting accurate location of all facilities and how they are hooked up which are constructed, reconstructed, or operated from the premises.
(d) All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of the facilities in the City shall be in, accordance with applicable present and future federal, state, and City laws and regulations. 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.
(e) The City encourages the conservation of rights-of-way. The Telephone Company shall not permit any other franchised or non-franchised entity to use any and all facilities constructed or erected by the Telephone Company without the prior written permission of the City.
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 cost including attorney fees, to the extent occasioned in any manner by the Telephone Company’s occupancy of the premises. In the event a claim shall be made or an action shall be instituted against the City growing out of such occupancy of the facilities of the Telephone Company, then 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 any licenses, taxes, charges, fees or impositions, except that the usual general property taxes and special ad valorem property taxes, and any other charges based on restoring premises to their same condition, or charges made for privileges which are not in any way connected with the internet 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 sums payable hereunder with any unpaid balance due said Telephone Company for internet services or facilities furnished to said City; provided, that said balance due is liquidated and uncontested.
Section 6. Compensation to City. In consideration of the franchise granted to Telephone Company by City, Telephone Company agrees to pay the City during this ordinance five percent (5%) of gross receipts. Gross receipts is defined as gross revenues from any internet charges to any individual who is serviced by the facility in the City of Marysville.
Section 7. Termination of Franchise. In case of failure on the part of Blue Valley Telecommunications, Inc., its successors and assigns, to comply with any of the provisions of this ordinance, or if Blue Valley Telecommunications, Inc., 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, Blue Valley Telecommunications, Inc., 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.
Section 8. Rights and Duties of Grantee Upon Expiration of Franchise. Upon the expiration of this franchise, whether by lapse of time, by agreement between the Telephone Company and the City of Marysville, or by forfeiture thereof, the Telephone Company shall work closely with the City to remove from public property any and all of its antennas, towers, and any other appurtenances and equipment used in its said business within a reasonable time after such expiration; but shall leave the building which shall be erected upon the tower site for the use of the City of Marysville at no cost to the City of Marysville. During term of this franchise, Telephone Company shall be solely responsible to maintain said building, including exterior appearance. All of the above mentioned actions will be monitored by the City to insure that the Telephone Company works closely with City for such removal, if appropriate.
Section 9. Term and Termination Date. The term of this franchise shall be five (5) years commencing on the eleventh day of March, 2002.
Section 10. Minimum Payment. The minimum payment under this agreement, regardless of whether services are provided therefrom, shall be One Thousand Dollars ($1,000.00) per year, said amount to be due and payable upon signing of this lease and on the anniversaries thereof which shall be credited against the franchise fee.
Section 11. Franchise Fee Payment. Compensation required by this franchise shall be paid on a quarterly basis and shall come due and payable sixty (60) days after the end of the first three (3) month period, and every quarter thereafter. These payments shall reflect and they shall be deducted from the One Thousand Dollar ($1,000.00) minimum payment above set out.
Section 12. Acceptance of Terms by the Telephone Company. The Telephone Company shall have ten (10) days after the final passage and approval of this ordinance to file with the City Clerk of the City of Marysville its acceptance in writing of the provisions, terms and conditions of this ordinance, which acceptance shall be duly acknowledged before some officer authorized by law to administer oaths; and when so acceptable, the ordinance and acceptance shall constitute a contract between the City of Marysville and the Telephone Company subject to the provisions of the laws of the State of Kansas.
Section 13. Right to Assign. 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 and shall be approved in writing by the City of Marysville and approved by the governing body of the City of Marysville at a regularly scheduled council meeting and such assignment to be qualified through a third party shall be non-reasonably withheld.
Section 14. Conditions of the 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 15. 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 16. 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 perform-able in Marshall County, Kansas. In the event that any legal proceeding is brought to enforce the terms of this agreement, the same shall be brought in Marshall County, Kansas, limited to state court action.
Section 17. Notice. For the purpose of this agreement, notice to the City will be to:
City Administrator
City of Marysville
209 North Eighth Street
Marysville, KS 66508
Notice to the Telephone Company will be to:
General Manager
Blue Valley Telecommunications, Inc.
1557 Pony Express Highway
Home, KS 66438
Notice will be effective upon delivery by hand delivery or by first class mail to the above address until City or the Telephone Company notifies the other, in writing, of a change in address.
Section 18. Public Purpose. All of the regulations provided in this ordinance are hereby declared to be for a public purpose and for 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 duties, shall not thereby render himself personally liable; and he is hereby relieved from all personal liability for any damage that might accrue to persons or property as a result of any required or permitted actions in the discharge of his said duties. Neither the City nor the Telephone Company, by accepting this ordinance, waives its right to seek all appropriate legal and equitable remedies as allowed by law upon violation of the terms of this ordinance, including seeking injunctive relief in a court of competent jurisdiction as above set out.
(03-11-2002)