A CONTRACT FRANCHISE ORDINANCE GRANTED TO SAGE TELECOM, INC., A
TELECOMMUNICATIONS LOCAL EXCHANGE SERVICE PROVIDER PROVIDING LOCAL EXCHANGE
SERVICE WITHIN THE CITY OF TOWANDA, KANSAS.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF TOWANDA, KANSAS:
SECTION 1. Pursuant
to K.S.A. 2005 Supp. 12-2001, a contract franchise ordinance is hereby granted
to Sage Telecom, Inc. (“Sage Telecom”), a telecommunications local exchange
service provider providing local exchange service within the City of Towanda,
Kansas (“City”), subject to the provisions contained hereafter. The initial
term of this contract franchise ordinance shall be for a period of two (2)
years beginning July 1, 2007, and ending June 30, 2009. Thereafter, this
contract franchise ordinance will automatically renew for additional one (1)
year terms, unless either party notifies the other party of its intent to
terminate the contract franchise ordinance at least ninety (90) days before the
termination of the then current term. The additional term shall be deemed a
continuation of this contract franchise ordinance and not as a new contract
franchise ordinance or amendment. Pursuant to K.S.A. 2005 Supp. 12-2001(b)(2)
under no circumstances shall this contract franchise ordinance exceed twenty
(20) years from the effective date of the contract franchise ordinance.
Compensation for said contract franchise ordinance shall be established
pursuant to Section 3 of this ordinance.
SECTION 2. For the
purpose of this contract franchise ordinance, the following words and phrases
and their derivations shall have the following meaning:
“Access line”
shall mean and be limited to retail billed and collected residential
lines; business lines; ISDN lines; PBX trunks and simulated exchange access
lines provided by a central office based switching arrangement where all
stations serviced by such simulated exchange access lines are used by a single
customer of the provider of such arrangement. Access line may not be construed
to include interoffice transport or other transmission media that do not
terminate at an end user customer’s premises, or to permit duplicate or
multiple assessment of access line rates on the provision of a single service
or on the multiple communications paths derived from a billed and collected
access line. Access line shall not include the following: Wireless
telecommunications services, the sale or lease of unbundled loop facilities,
special access services, lines providing only data services without voice
services process by a telecommunications local exchange service provider or
private line service arrangements.
“Access line count”
means the number of access lines serving consumers within the corporate
boundaries of the city on the last day of each month.
“Access line fee” means a fee determined by a city, up to a
maximum as set out in K.S.A. 2005 Supp. 12-2001 and amendments
thereto, to be used by a telecommunications local exchange service provider in
calculating the amount of access line remittance.
“Access line remittance” means the amount to be paid by a
telecommunications local exchange service provider to a city, the total of
which is calculated by multiplying the access line fee, as determined in the
city, by the number of access lines served by that telecommunications local
exchange service provider within that city for each month in that calendar
quarter.
“Gross receipts”
means only those receipts collected from within the corporate boundaries
of the city enacting the franchise and which are derived from the following:
(A) Recurring local exchange service for business and residence which
includes basic exchange service, touch tone, optional calling features and
measured local calls;
(B) recurring local exchange access line services for pay phone lines
provided by a telecommunications local exchange service provider to all pay
phone service providers;
(C) local directory assistance revenue;
(D) line status verification/busy interrupt revenue;
(E) local operator assistance revenue; and
(F) nonrecurring local exchange service revenue which shall include
customer service for installation of lines, reconnection of service and charge
for duplicate bills. All other revenues, including, but not limited to,
revenues from extended area service, the sale or lease of unbundled network
elements, nonregulated services, carrier and end user access, long distance,
wireless telecommunications services, lines providing only data service without
voice services processed by a telecommunications local exchange service
provider, privateline service arrangements, internet, broadband and all other
services not wholly local in nature are excluded from gross receipts. Gross
receipts shall be reduced by bad debt expenses. Uncollectible and late charges
shall not be included within gross receipts. If a telecommunications local
exchange service provider offers additional services of a wholly local nature
which if in existence on or before July 1, 2002, would have been included with
the definition of gross receipts, such services shall be included from the date
of the offering of such services in the city.
“Local exchange service” means local switched telecommunications
service within any local exchange service area approved by the state
corporation commission, regardless of the medium by which the local
telecommunications service is provided. The term local exchange service shall
not include wireless communication services.
“Telecommunications local exchange service provider” means a
local exchange carrier as defined in subsection (h) of K.S.A. 66-1,187, and
amendments thereto, and a telecommunications carrier as defined in subsection
(m) of K.S.A. 66-1,187, and amendments thereto, which does, or in good faith
intends to, provide local exchange service. The term telecommunications local
exchange service provider does not include an interexchange. carrier that does
not provide local exchange service, competitive access provider that does not
provide local exchange service or any wireless telecommunications local
exchange service provider.
“Telecommunications services” means
providing the means of 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.
SECTION 3. Compensation
made pursuant to this contract franchise ordinance shall be paid on a quarterly
basis without invoice or reminder from the City and paid not later than
forty-five (45) days after the end of the remittal period. For the first year
of this contract franchise ordinance, said compensation shall be a sum equal to
$0.60 per access line. Thereafter, compensation for each calendar year of the
remaining term of the contract franchise ordinance shall continue to be based
on a sum equal to $0.60 per access line; unless the City notifies Sage Telecom
prior to ninety days (90) before the end of the calendar year that it intends
to increase or decrease the percentage of gross receipts for the following
calendar year or that it intends to switch to an access line fee for the
following calendar year. In the
event City elects compensation based on an access line fee, nothing herein
precludes City from switching back to a gross receipts fee provided City
notifies Sage Telecom prior to ninety days (90) before the end of the calendar
year that it intends to elect a gross receipts 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 (l) and (m)
K.S.A. 2005 Supp. 12-2001.
SECTION 4: The City
shall have the right to examine, upon written notice to the telecommunications
local exchange service provider, no more than once per calendar year, those
records necessary to verify the correctness of the compensation paid pursuant
to this contract franchise ordinance.
SECTION 5. As a
condition of this contract franchise ordinance, Sage Telecom is required to
obtain and is responsible for any necessary permit, license, certification,
grant, registration or any other authorization required by any appropriate
governmental entity, including, but not limited to, the City, the Federal
Communications Commission (FCC) or the Kansas Corporation Commission (KCC),
subject to Sage Telecom’s right to challenge in good faith such requirements as
established by the FCC, KCC or other City Ordinance. Sage Telecom shall also
comply with all applicable laws, statutes and/or ordinances, subject to Sage
Telecom’s right to challenge in good faith such laws, statutes and/or
ordinances.
SECTION 6: Nothing
herein contained shall be construed as giving Sage Telecom any exclusive
privileges, nor shall it affect any prior or existing rights of Sage Telecom to
maintain a telecommunications system within the City.
SECTION 7: Sage
Telecom shall collect and remit compensation as described in Section 3 on those
access lines that have been resold to another telecommunications local exchange
service provider.
SECTION 8: The City
agrees to provide Sage Telecom with notification in the event that it annexes
property into the corporate boundaries of the City that would require Sage
Telecom to collect and pay a franchise fee on access lines or gross receipts
which prior to the annexation of the
property Sage Telecom was not required to pay a franchise fee. The City agrees
to provide Sage Telecom with notification in the event the City renumbers or
renames any streets that would require Sage Telecom to collect and pay a
franchise fee on access lines or gross receipts which prior to the renumbering
or renaming of the streets Sage Telecom would not have been required to pay a
franchise fee. The City agrees that in the event the City does not provide Sage
Telecom with notice of an annexation or renumbering and/or renaming of the
streets, Sage Telecom is not liable to the City for payment of franchise fees on
the annexation or renumbered and/or renamed streets prior to the City providing
notice to Sage Telecom of such.
SECTION 9: The
City agrees that under K.S.A. 2005 Supp. 12-2001, and other state and federal
laws, this contract franchise ordinance must be competitively neutral and may
not be unreasonable or discriminatory to any telecommunications local exchange
service provider operating in the City.
SECTION 10: Any
required or permitted notice under this contract franchise ordinance shall be
in writing. Notice upon the City shall be delivered to the city clerk by first
class United States mail or by personal delivery. Notice upon Sage Telecom
shall be delivered by first class United States mail or by personal delivery
to:
Sage
Telecom, Inc. Accounts Payable
805
Central Expressway South, Ste. 100
Allen,
TX 75013-2789
SECTION 11: Failure
to Enforce. The failure of either party to enforce and remedy any noncompliance
of the terms and conditions of this contract franchise ordinance shall not
constitute a waiver of rights nor a waiver of the other party’s obligations as
provided herein.
SECTION 12: Force
Majeure. Each and every provision hereof shall be subject to acts of God,
fires, strikes, riots, floods, war and other disasters beyond Sage Telecom’s or
the City’s control.
SECTION 13:
Sage Telecom has entered into this contract franchise ordinance as required by
the City and K.S.A. 2005 Supp. 12-2001. If any clause, sentence, section, or
provision of K.S.A. 2005 Supp. 12-2001, and amendments thereto, shall be held
to be invalid by a court of competent jurisdiction, either the City or Sage
Telecom may elect to terminate the entire contract franchise ordinance. In the
event a court of competent jurisdiction invalidates K.S.A. 2005 Supp. 12-2001, and
amendments thereto, if Sage Telecom is required by law to enter into a contract
franchise ordinance with the City, the parties agree to act in good faith in promptly
negotiating a new contract franchise ordinance.
SECTION 14: In
entering into this contract franchise ordinance, neither the City’s nor Sage
Telecom present or future legal rights, positions, claims, assertions or
arguments before any administrative agency or court of law are in any way
prejudiced or waived. By entering into the contract franchise ordinance,
neither the City nor Sage Telecom waive any rights, but instead expressly
reserve any and all rights, remedies, and arguments the City or Sage Telecom
may have at law or equity, without limitation, to argue, assert, and/or take
any position as to the legality or appropriateness of this contract franchise
ordinance or any present or future laws, ordinances, and/or rulings which may
be the basis for the City and Sage Telecom entering into this contract
franchise ordinance.
SECTION 15: The
parties agree that in the event of a breach of this contract franchise
ordinance by either party, the non breaching party has the right to terminate
the contract franchise ordinance immediately. Prior to terminating the contract
franchise ordinance, the non breaching party shall first serve a written notice
upon the breaching party, setting forth in detail the nature of the breach, and
the breaching party shall have thirty (30) days thereafter in which to cure the
breach. If at the end of such thirty (30) day period the non breaching party
deems that the breach has not been cured, the non breaching party may take
action to terminate this contract franchise ordinance.
SECTION 16:
This contract franchise ordinance is made under and in conformity with the laws
of the State of Kansas. No such contract franchise ordinance shall be effective
until the ordinance granting the same has been adopted as provided by law.
SECTION 17: This
franchise ordinance shall take effect upon its execution, passage by the
governing body, and publication in the official city newspaper. All publication
costs shall be paid by Sage Telecom.
(04-11-2007)