AN ORDINANCE GRANTING THE FRANCHISE, PRNILEGES AND RIGHTS TO IDEATEK TELCOM, LLC, ITS SUCCESSORS AND ASSIGNS; TO CONSTRUCT, ACQUIRE, OPERATE AND MAINTAIN A COMMUNICATIONS SYSTEM IN THE CITY OF GOESSEL, KANSAS, AND TO USE THE STREETS, ROADS, ALLEYS, POLES, AND OTHER PUBLIC PLACES WITHIN SAID CITY FOR SUCH PURPOSES.

Be it Ordained by the Governing Body of the City of Goessel, of the State of Kansas that:

SECTION 1.

IdeaTek Telcom, LLC, its successors and assigns (herein referred to as “IdeaTek”) shall operate its communications system and all business incidental to or connected with conducting of a communications business and system in the City of Goessel, State of Kansas, (“herein referred to as “City”). The plant construction and appurtenances used in or incident to the provision of communication services and to the maintenance of a communication business and system by IdeaTek in said City shall be subject to such changes as may be considered necessary by the City in the exercise of its inherent powers and IdeaTek shall exercise its right to place, remove, construct, and reconstruct, extend and maintain its said plant and appurtenances as the business and purposes for which it is or may be incorporated may from time to time require along, across, on, over, though, above and under all the public streets avenues, alleys, bridges and the public grounds and places within the limits of said City as the same from time to time may be established.

SECTION2.

IdeaTek, on the request of any person 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 of wires shall be paid by the party or parties requesting the same, and IdeaTek may require such payment in advance. IdeaTek shall be given not less than forty-eight (48) hours advance notice to arrange for such temporary wire changes.

SECTION 3.

Permission is hereby granted to the IdeaTek to trim trees upon and overhanging streets, alleys, sidewalks and public places of said City so as to prevent the branches of such trees from coming in contact with the wires and cables of IdeaTek, all the said trimming upon request by the City will be done under the supervision and direction of any city official to whom said duties have been or may be delegated.

SECTION 4.

Permission is hereby granted to IdeaTek to make all necessary excavations in the public streets, roads, alleys, sidewalks or other public places, all in accordance with the ordinances applicable to such excavations by public utilities or others securing such permission.

A. All earth, materials, sidewalks, paving, crossings, utilities, public improvements, or improvements of any kinds, injured or removed by the IdeaTek in its activities under this franchise, shall be fully repaired or restored promptly by the IdeaTek at its sole expense and to the reasonable satisfaction of the City or owner thereof.

B. 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 Guidelines for Work Zone Traffic Control, unless otherwise agreed to by the City.

C. IdeaTek 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 the City procedures) of any construction, reconstruction, repair, or relocation or facilities which would require any street closure which reduces traffic flow to less than two lanes of moving traffic. Except in the event of an Emergency, as reasonably determined by IdeaTek, no such closure shall take place without prior authorization from the City.

D. It shall be the responsibility of IdeaTek to take adequate measures to protect and defend its facilities in the rights-of-way from harm or damage. If IdeaTek 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. IdeaTek 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 IdeaTek 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 IdeaTek facilities.

SECTION 5.

A. IdeaTek 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 IdeaTek, any agent, officer, director, representative, employee, affiliate or subcontractor of the provider, or their respective officers, agents, employees,, directors or representatives, while installing, repairing or maintaining facilities in a public right-of-way.

B. The indemnity provided by this subsection does not apply to any liability resulting from the actions of the City, its officers, employees, contractors or subcontractors. If IdeaTek and the City are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of this state without, however, waiving any governmental immunity available to the City and IdeaTek and does not create or grant any rights, contractual or otherwise, to any other person or entity.

C. IdeaTek or City shall promptly advise the other in writing of any known claim or demand against the provider or the city related to or arising out of the provider’s activities in a public right-of-way.

SECTION 6.

IdeaTek agrees to pay to the City as full compensation for granting the rights and privileges herein a $2.75 fee per access line as set out in K.S.A. 12-2001(G), and amendments thereto for local exchange service rendered wholly within the corporate limits of the City. Payment will be made on a quarterly basis.

(a) To determine an access line remittance fee, IdeaTek shall calculate and remit an amount equal to the access line fee established by the City multiplied by the access of the line count Such amount shall be due not later than 45 days after the end of the remittal period. The City shall have the right to examine, upon written notice, IdeaTek no more than once per calendar year, those -access line count records necessary to verify the correctness of the access line count If the access line count is determined to be erroneous, then IdeaTek shall revise the access line fees accordingly and payment shall be made upon such corrected access line count If the City and IdeaTek cannot agree on the access line count, or are in dispute concerning the amounts due under this section for the payment of access line fees, either party may seek appropriate relief in a court of competent jurisdiction, and that court may impose all appropriate remedies, including monetary and injunctive relief and reasonable costs. All claims authorized in this section must be brought within three years of the date on which the disputed payment was due. The access line fee imposed under this section must be assessed in a competitively neutral manner, may not unduly impair competition, must be nondiscriminatory and must comply with state and federal law.

SECTION 7

IdeaTek shall have 60 days after the final passage and approval of this ordinance to file with the City Clerk of the City 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 accepted the ordinance and acceptance shall constitute a contract between the City and the Telephone Company subject to the provisions of the laws of Kansas.

SECTION 8

This ordinance governing the use and occupancy of the public rights-of-way by IdeaTek shall not conflict with the mandatory provisions of K.S.A. 12-2001 and K.S.A. 17-1902, as amended, and said statutes shall control any conflicts with the City’s ordinances.

SECTION9

This agreement shall be construed under and in accordance with the laws of Kansas, and all obligations of the parties hereunder are performable and deemed to be performable in Marion County, Kansas. If any legal proceeding is brought to enforce the terms of this agreement, the same shall be brought in Marion County, Kansas and only in a state court action. Nothing in Section 9 shall be construed to limit or restrict IdeaTek’s right to initiate action in federal court (Kansas District) or to remove a state court action to federal court (Kansas District), if such is required by law.

SECTION 10

Permission is hereby granted to permit any telephone, electric light, or power wire attachments by the City or IdeaTek, on the poles of the other which must follow guidelines set forth in the National Electric Safety Code (NESC).

SECTION 11

As required in K.S.A. 12-200l(e), nothing herein contained shall be construed as giving to IdeaTek any exclusive privileges, nor shall it affect any prior or existing rights of IdeaTek to maintain a communications system within the City.

SECTION 12

The term of this ordinance shall be for five (5) years from the date on which it takes effect Thereafter, this franchise will renew for one (1) additional five (5) year term, unless either party notifies the other party of its intent to terminate or renegotiate the franchise at least one hundred and eighty (180) days before the termination of the then current term. After ten (10) years, this franchise shall renew for additional one (1) year terms until either party notifies the other party of its intent to terminate or renegotiate the franchise at least one hundred and eighty (180) days before the termination of the then current term. An additional term shall be deemed a continuation of this franchise and not as a new franchise or amendment.

(11-17-2014)