HomeMy Public PortalAboutOrdinance 18-2021ORDINANCE 18-2021
AN ORDINANCE OF THE CITY OF HOPKINSVILLE CREATING AND ESTABLISHING FOR
BID A NON-EXCLUSIVE TELECOMMUNICATIONS (OR RELATED NON -CABLE)
FRANCHISE
SUMMARY
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
HOPKINSVILLE, KENTUCKY, AS FOLLOWS:
Section 1 — Sets forth provisions for the creating and establishing for bid a non-exclusive
telecommunications (or related non -cable) franchise for the placement of facilities for the
generation, transmission, distribution and sale of telecommunications or related non -cable
services within the public rights -of -way of the City of Hopkinsville for a ten (10) year duration; and
providing for compliance with other relevant laws, regulations, standards, and ordinances.
Section 2 — References existing legislation.
Section 3 — Sets forth definitions of terms contained in the Ordinance.
Section 4 — Applications.
All applications received by the Government from Applicants shall become the sole
property of the Government. Applications shall be accompanied by a non-refundable application
fee of five thousand dollars ($5,000.00) payable to the Government. Said application fee shall
defray in whole or part the Government's costs to process any application filed under this
Ordinance and negotiate, award and administer any franchise. Said application fee shall not be
considered franchise fee payments.
This section further sets forth the procedure for the submission of the application and the
required information to be contained in said application.
Section 5 — Sets forth the non-exclusive rights and privileges of Grantee in constructing, erecting,
operating and maintaining a Telecommunications System.
Section 6 — Standards.
The Grantee shall conform to at least the minimum standards or requirements in federal,
state and local law or regulation in the operation of its Telecommunications System pursuant to this
Ordinance. In addition, this section sets forth specific standards and requirements for each Grantee.
Section 7 — Sets forth requirements for moving permits and the trimming of trees.
Section 8 — Bonds.
The Grantee may, with respect to aspects of those projects in excess of one hundred
thousand dollars ($100,000.00) be required to post a project performance bond(s). This bond (or
bonds) shall be set in an amount and duration to be determined by the Government upon
discussing and verifying the scope of such a project with the Grantee, and shall be in favor of the
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Government to be issued by an entity subject to jurisdiction and venue in the City of Hopkinsville,
Kentucky.
Section 9 — Sets forth indemnification requirements of the Grantee.
Section 10 — Sets forth insurance requirements of the Grantee.
Section 11 — The Grantee shall comply with all applicable federal, state or local non-discrimination
and affirmative action laws.
Section 12 — Sets forth the requirements in the event of a transfer of control.
Section 13 — Sets forth the term of the franchise of ten (10) years from the date of acceptance.
Section 14 — Penalties.
(a) If, after the Grantee is provided the opportunity to appear and present evidence before
the Mayor or his or her designee, the Mayor finds that the Grantee has violated any of
the following provisions of this Ordinance, the following penalties shall be recoverable.
The decision of the Mayor or his or her designee shall be the final administrative decision
and shall be in writing and provide the basis for the decision. The decision may be
appealed to a court of competent jurisdiction.
(1) For failure to provide data and reports requested by the Government and as
required by this Ordinance the Grantee shall forfeit five hundred dollars
($500.00).
(2) For failure to pay a franchise fee when due pursuant to local law, the Grantee
shall forfeit five hundred dollars ($500.00).
(b) If the Grantee fails to comply within thirty (30) days of any written request from the
Government directing compliance with any other provisions of this Ordinance, the
Grantee shall forfeit five hundred dollars ($500.00). The decision of the City may be
appealed to a court of competent jurisdiction.
The Grantee shall not be excused from complying with any of the terms and conditions of this
Ordinance by any failure of the Government, upon any one or more occasions, to insist upon the
Grantee's performance or to seek the Grantee's compliance with any one or more of such terms or
conditions. Payment of penalties shall not excuse non-performance under this Ordinance. The right
of the Government to seek and collect penalties as set forth in this section is in addition to its right to
terminate and cancel as set forth in Section 16 of this Ordinance.
Section 15 — Sets forth the requirements that Grantee shall maintain its Telecommunication System
in reasonable operating condition at all normal times during the term of its Franchise.
Section 16 — Sets forth the conditions on which the franchise may be terminated and canceled, and
the procedure for termination.
Section 17 — Sets forth notification requirements in the event of foreclosure or judicial sale
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Section 18 — Sets forth the City's rights in the event of the appointment of a Receiver or Trustee.
Section 19 — Sets forth the requirement to offer the terms of this Ordinance to the public.
Section 20 — Sets forth the bidding process and requirements.
Section 21 — Compensation.
(a) During any period of time during which the Government opts to forego
collecting a Franchise Fee in lieu of participating Multichannel Video
Programming and Service Tax scheme under KRS 136.600 et seq.,
Franchisee shall not be required to pay Franchise Fees. If at any time the
Government opts exercise its constitutional right to collect Franchise Fees,
Grantee's first Franchise Fee payable under this Ordinance shall be paid to
the Government ninety (90) days after the Government gives notice to Grantee
that the Government has opted to exercise its constitutional right to collect
Franchisee Fees. At the time, the Government shall collect Franchise Fee as
set out in Section 21(b)-(k).
(b) If Grantee receives revenue from providing Telecommunications Service to
Customers within the City of Hopkinsville, Grantee shall pay an annual fee to
the Government, which must be the greater of either: (a) the Minimum Annual
Franchise Fee; or (b) an amount equal to five percent (5%) of Grantee's Gross
Revenues from providing Telecommunications Service to Customers within
the City of Hopkinsville. If Grantee does not receive revenue from providing
Telecommunications Service to Customers within the City of Hopkinsville,
Grantee shall pay an annual fee to the Government, which must be the greater
of either: (a) the Minimum Annual Franchise Fee; or (b) an amount equal to
two dollars ($2.00) per lineal foot of Facilities plus two hundred -seventy dollars
($270.00) per antenna or small cell when facilities are placed in "Road,"
"Street," or "Right-of-way" as defined by Section 3 (r).
(c) Grantees paying the Minimum Annual Franchise Fee, shall pay said Minimum
Franchise Fee based on each calendar year quarter period (January 1 through
March 31, April 1 through June 30, July 1 through September 30, and October
1 through December 31) on or before the forty-fifth (45th) day following each
calendar quarter period during the term of a franchise created under this
Ordinance.
(d) Gross Revenue based Franchise fee payments to the Government shall be
computed based on Grantee's Gross Revenues from each calendar year
quarter period (January 1 through March 31, April 1 through June 30, July 1
through September 30, and October. 1 through December 31) and paid on or
before the forty-fifth (45th) day following each calendar quarter period during
the term of a franchise created under this Ordinance.
(e) Facilities based Franchise Fee payments to the Government shall be
computed based on Grantee's lineal foot of Facilities in the City of Hopkinsville
"Road," "Street" or "Right-of-way" as defined by Section 3 (r) as of January 1
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of each calendar year and paid on or before April 15th of each calendar year
during the term of a franchise created under this Ordinance.
(f) Payment not received by the Government by the due date shall be assessed
interest equal to one percent (1%) per month. Interest shall be compounded
daily. Interest shall be due on the entire late payment from the date on which
the payment was due until the date on which the Government receives the
payment.
(g) Prior to making each payment to the Government, Grantee shall file with the
Government a written report containing an accurate statement in summarized
form, as well as in detail, of its calculation of the amount of the payment,
verified by an officer or other authorized representative of Grantee, setting forth
its Gross Revenues according to their accounting subdivisions, and any
deductions claimed for the period upon which the payment is computed. Such
reports shall be in form satisfactory to the Government.
(h) If any Franchise Fee is owed to the Government, upon reasonable notice, the
Government shall have the right to inspect the Grantee's income records, the
right to audit and to re -compute any amounts determined to be payable under
this Ordinance; provided, however, that such audit shall take place within
twelve (12) months following the close of the Grantee's fiscal year that is being
audited, and no audit shall occur more often than once in any given twelve (12)
month period of time. If, as a result of such audit or review, the Government
determines that Grantee has underpaid its fees to the Government in any
twelve (12) month period by ten percent (10%) or more, then, in addition to
making full payment of the relevant obligation, Grantee shall reimburse the
Government for all expenses incurred as a result of an audit or review and
such payments shall be paid within the thirty (30) days following written notice
to the Grantee by the Government, which notice shall include a copy of the
audit report and copies of all invoices for which the Government seeks
reimbursement.
(i) If any Franchise Fee is owed to the Government, in the event that any
Franchise Fee payment or recomputed amount is not made to the Government
on or before the applicable dates heretofore specified, interest shall be
charged from such date at the annual rate of 2% over prime interest rate.
Q) The Government reserves the right to require the Grantee to collect any
consumer or other tax or other fee that may be imposed by the Government,
the Commonwealth of Kentucky, or the federal government on
Telecommunications Services.
(k) Notwithstanding any other provision of this Ordinance, the Grantee shall be
required to pay the Government an amount intended to adequately
compensate it for its permitting and inspection of the Grantee's construction
activities in the Rights -of -way pursuant to the Code of Ordinances and
attorney's fees (up to a maximum of $5,000) that the Government may incur
relating to the franchising process, including but not limited to any attorneys'
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fees incurred relating granting of the franchise and any transfer, renewal or
modification of the franchise.
Section 22 — Sets forth additional requirements.
Section 23 — Sets forth requirements of Letter of Credit and Performance Bond.
Section 24 — Sets forth provisions in the event of discontinuing use of facilities.
Section 25 — Sets forth requirements for bids offered for purchase of a franchise pursuant to this
Ordinance.
Section 26 — Sets forth provisions related to violations of the terms of the Ordinance and the
forfeiture of the franchise.
Section 27 — Sets forth provisions regarding the governing law.
Section 28 — Sets forth provisions in the event of non -enforcement by the Government.
Section 29 — Sets forth provisions regarding Grantee's agent.
Section 30 — Sets forth provisions regarding Third Parties.
Section 31 — Sets forth the requirements for the Erection, Removal and Common Uses of Poles.
Section 32 — Sets forth Aesthetic standards.
Section 33 — Severability.
If any section, sentence, clause or phrase of the Ordinance is held unconstitutional or
otherwise invalid, such infirmity shall not affect the validity of the Ordinance.
Section 34 — Effective Date.
The franchise created by this Ordinance shall become effective when the bid for it is
accepted by the City Council unless the City Council specifies a different date.
Section 35 — This Ordinance shall become effective upon publication and may be published in
summary.
The full text of this Ordinance is on file in the office of the undersigned City Clerk of the
City of Hopkinsville at 715 South Virginia Street, Hopkinsville, Kentucky, where it is available for
public inspection between the hours of 8:00 a.m. to 4:30 p.m., Monday through Friday.
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ORDINANCE 18-2021
TELECOMMUNICATIONS (OR RELATED NON -CABLE) FRANCHISE
PUBLICLY READ AND PASSED FIRST TIME: AUGUST 3. 2021
PUBLICLY READ AND PASSED SECOND TIME: AUGUST 17 2021
APPROVED:
Wendell A. Lynch
Mayor
ATTEST: C4 M
Christine M. Fletcher, MMC
City Clerk
I, H. Douglas Willen, hereby certify I am an Attorney licensed to practice law in the
Commonwealth of Kentucky, my office is located at 317 West Ninth Street, Hopkinsville,
Kentucky 42240. 1 further certify the foregoing Summary of Ordinance 18-2021, of the
City of Hopkinsville, Kentucky, was prepared in accordance with the requirements of
KRS 83A.060(9), and is a true and accurate summary of the contents of said Ordinance.
Ordinance IT- AjL
was published in the Kentucky New Era
on: r
As Certified By
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ORDINANCE 18-2021
AN ORDINANCE OF THE CITY OF HOPKINSVILLE CREATING AND
ESTABLISHING FOR BID A NON-EXCLUSIVE TELECOMMUNICATIONS (OR
RELATED NON -CABLE) FRANCHISE
NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF HOPKINSVILLE, KENTUCKY, AS FOLLOWS:
Section 1 — Creation of Franchise.
There is hereby created a non-exclusive franchise granting to the purchaser
thereof whose bid may be accepted, the discretionary right to construct, erect, operate
and maintain upon, through, along, under and over the streets, alleys, avenues, public
roads, highways, bridges, viaducts, sidewalks and other public ways of City of
Hopkinsville, a Telecommunications System (or a related system which is not otherwise
a Cable System) embracing underground conduits, manholes, Poles, Towers, Support
structures, cables, boxes, wires, fixtures, fiber, electrical conductors and other apparatus,
equipment and facilities necessary, essential, used or useful to and in the operation of
any type of Telecommunications System, subject to all of the provisions of this Ordinance.
This franchise does not excuse the Grantee from complying with any and all applicable
existing and future local laws and ordinances, as may be adopted or amended in the
future, and their pursuant regulations. It shall be the responsibility of the Grantee to
negotiate Pole attachment agreements with any Person, including the City, owning such
Poles.
Section 2 — Existing Legislation,
The Government has already adopted legislation and regulations pertaining to, and
including but not limited to, permitting, construction, street project and other related
activities by Grantees and franchisees and others in its Rights -of -way. Therefore, the
terms and provisions of the Hopkinsville Code of Ordinances, (the "Code"), and as it may
be amended in the future is incorporated herein by reference and shall apply as if fully
set forth herein.
Section 3 - Definitions.
The definitions and terminology of any terms contained in this Ordinance which are
not specifically defined in this section shall be contained in the applicable provisions of
the Code (as they may be amended in the future) which are hereby incorporated herein
by reference.
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(a) "Applicant" means a Person which is applying for a franchise.
(b) "Application" shall refer to the list of documents and information set forth in Section
4 required from new entrants, including any written responses provided on
Government forms or written correspondence provided in response to Government
inquiries and investigations. Applications must comply with the requirements of this
Ordinance in its entirety.
(c) "Cable Service" shall have the meaning in this Ordinance as it is defined in
Section 602(6) of the Communications Act of 1934, as amended as it may be
amended (hereinafter cited as 47 U.S.C. § 522(6)).
(d) "Cable System" shall have the meaning in this Ordinance as it is defined in Section
602(7) of the Communications Act of 1934, as it may be amended (47 U.S.C. §
522(7)).
(e) "City" means the City of Hopkinsville, a city created pursuant to the Kentucky
Revised Statutes, as it now exists in its present territorial limits, or may hereafter be
extended or reduced, and its elected and appointed officials, employees, agents,
boards, consultants, assigns, volunteers and successors in interest.
(f) "Communications Act" means the Communications Act of 1934, as amended from
time to time (47 U.S.C. § 151 et seq.).
(g) "Customer" means a person located within the territorial limits of the Government
who is legally receiving Telecommunications Service from the Grantee.
(h) "Equipment and apparatus" means any manholes, underground conduits, ducts,
nodes, electronic devices, Poles, Towers, or Support structures, cables, boxes,
wires, fixtures, conductors, or other facilities necessary, essential, used or useful
to and operated by the Telecommunications System.
(i) "Facility" or "Facilities" mean any tangible asset of Grantee's Telecommunication
System in the Right-of-way, including but not limited to equipment and apparatus
such as cabinets, pipes, conduits, wires, cables, amplifiers, transformers, fiber
optic lines, antennae, Pole, Tower, or Support structure, or ducts, required,
necessary, used or useful in the provision of utility or other services.
Q) "FCC" means the Federal Communications Commission, or its lawful successor.
(k) "Franchise Fee" means for the purposes of this Ordinance any fee that may be
imposed by the Government on Grantee as compensation for Grantee's use of
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public rights -of -way and roads. Use of this definition in this Ordinance is without
prejudice to any rights Grantee or Government may have under Federal and
Kentucky law as they may be amended.
(1) "Government" means (unless otherwise specified) the City of Hopkinsville, a city
created pursuant to the Kentucky Revised Statutes, as it now exists in its present
territorial limits, or may hereafter be extended or reduced, and its elected and
appointed officials, employees, agents, boards, consultants, assigns, volunteers
and successors in interest.
(m) "Grantee" means a Person to which a franchise under this Ordinance is granted by
City Council, or its successors and assigns.
(n) "Gross Revenue" means after adjustment for the net write-off of uncollectible
accounts, any and all revenues derived by Grantee within the City of Hopkinsville
from Grantee's Telecommunications System, including, but not limited to: revenues
from the sale of and use of Telecommunications Services originating or terminating
in the City of Hopkinsville; revenues charged to or attributable to a circuit location
in the City of Hopkinsville, regardless of where the circuit is billed or paid; revenues
from the use, rental, or lease of Grantee's operating Facilities within the City of
Hopkinsville, revenues from the provision of any and all products, services, or
charges (including installation, maintenance and service charges) and revenues
from any leases or Indefeasible Right of Use interests ("IRU") of any portion of
Grantee's Telecommunications System within the City of Hopkinsville. "IRU" or
"Indefeasible Right of Use" means any form of acquired capital interest in Grantee's
Telecommunications System in which the holder possesses a right to use the
Telecommunications System but not the right to control, maintain, construct or
revise the Telecommunications System.
(o) "Minimum Annual Franchise Fee" means $15,000 annually.
(p) "PSC" means the Kentucky Public Service Commission or its lawful successor.
(q) "Person" is any person, firm, partnership, association, corporation, company,
governmental entity or organization of any kind.
(r) "Pole" means a utility, lighting, or similar Pole made of wood, concrete, metal, or
other material, located or to be located within a public right-of-way. The term does
not include a Tower or Support structure.
(s) "Road" or "Street" or "Right-of-way" shall mean the surface of and the space above
and below any public road, street, highway, freeway, lane, path, public way or place,
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sidewalk, alley, court, boulevard, parkway, drive or easement now or hereafter held
by the Government for the purpose of public travel and shall include other
easements or rights -of -way as shall be now held or hereafter held by the
Government which shall, within their proper use and meaning entitle the
Government and its Grantee to the use thereof for the purposes of installing or
transmitting Telecommunication System transmissions over Poles, Towers, or
Support structures, wires, cables, conductors, ducts, conduits, vaults, manholes,
amplifiers, appliances, attachments, and other property as may be ordinarily
necessary and pertinent to a Telecommunication System.
(t) "Shall" is mandatory, not merely directive-
(u) "Small wireless facilities" are Wireless facilities that meet each of the following
conditions:
(1) The Facilities are mounted on Poles, Towers, or Support structures fifty-five
(55) feet or less in height including their antennas;
(2) Each antenna associated with the deployment, excluding associated
antenna equipment, is no more than three (3) cubic feet in volume;
(3) All other Wireless equipment associated with the structure, including the
Wireless equipment associated with the antenna and any associated
equipment on the structure, including collations, is no more than fifteen (15)
cubic feet in volume, cumulatively. The following types of associated,
ancillary equipment are not included in the calculation of equipment volume:
electric meter, telecommunications demarcation box, grounding equipment,
power transfer switch, cut-off switch, and vertical cable runs for connection
of power and other services;
(4) The Facilities do not require antenna structure registration under federal
law;
(5) The Facilities do not result in human exposure to radiofrequency radiation
in excess of the applicable safety standards provided in federal law; and
(6) Small wireless facilities do not include Poles, Towers, or Support structures.
(v) "Support structure" means a structure in the Right-of-way other than a Pole or a
Tower to which a Wireless facility is attached at the time of the application for an
Installation permit.
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(w) "Telecommunications Service" means any service provided for consideration for
the purpose of provision, transmission, conveyance, or routing of information
including, but not limited to, voice, video, images data, or any other information
signals without regard to the transmission protocol employed, whether or not the
transmission medium is owned by the provider itself and whether or not the
transmission medium is wireline. By way of example, and not limitation,
Telecommunications Service includes, but is not limited to the following:
1. Telecommunications service (as defined by 47 USC §153(53) (as such
term is now, or may in the future be, defined under federal law);
2. Telephone exchange service (as defined by 47 USC §153(54) (as such
term is now, or may in the future be, defined under federal law);
3. Exchange access (as defined by 47 USC §153 (20) (as such term is
now, or may in the future be, defined under federal law);
4. Mobile service (as defined by 47 USC §153(33) (as such term is now, or
may in the future be, defined under federal law);
5. Advanced communications services (as defined by 47 USC §153(1) (as
such term is now, or may in the future be, defined under federal law);
6. Long distance, inter -exchange and inter-LATA services, which may
include MTS, WATS, 800, operator services, directory assistance and
travel card services;
7. Private line point to point service for end users of voice and data
transmission; non -entertainment video, videoconferencing, or point to point
private line service; and
8. Any other intrastate or interstate telecommunication services which the
Kentucky Public Service Commission or the FCC has authorized or services
provided by radio common carrier.
(x) "Telecommunications System" means all fiber optics, wires, cables, ducts,
conduits, vaults, Poles, Towers, or Support structures, anchors, nodes, antennas,
cabinets, fixtures, transformers, Equipment and apparatus and other necessary
facilities owned or used by Grantee for the purpose of providing Telecommunications
Service and located in, above or below the Streets.
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(y) "Transfer" means any sale, lease, mortgage, assignment, merger or other form of
transfer of this Ordinance or of the rights and privileges granted or authorized by this
Ordinance.
(z) "Tower" means any structure in the public right-of-way built for the sole or primary
purpose of supporting a Wireless facility. A Tower does not include a Pole or a Support
structure.
(aa) "Wireless facility" means a Telecommunications System that enables Wireless
services, but does not include: (i) the Support structure, Tower, or Pole on, under, or
within which the equipment is located or collocated; or (ii) coaxial, fiber-optic or other
cabling that is between Telecommunications System or Poles or that is otherwise not
immediately adjacent to or directly associated with a particular antenna. A Small wireless
facility is one (1) example of a Wireless facility.
(bb) "Wireless services" means any wireless services using licensed or unlicensed
spectrum, whether at a fixed location or mobile, provided to the public.
Section 4 - Applications.
All applications received by the Government from Applicants shall become the sole
property of the Government. Applications shall be accompanied by a non-refundable
application fee of five thousand dollars ($5,000) payable to the Government. Said
application fee shall defray in whole or part the Government's costs to process any
application filed under this Ordinance and negotiate, award and administer any
franchise. Said application fee shall not be considered franchise fee payments.
(a) All questions regarding the meaning or intent of the Ordinance or application
documents shall be submitted to the Government in writing. Replies will be issued
by Addenda mailed or delivered to all parties recorded by the Government as
having received the application documents. The Government reserves the right to
make extensions of time for receiving applications as it deems necessary. Only
replies to questions by written Addenda will be binding. All applications must
contain an acknowledgment of receipt of all Addenda.
(b) Applications must be submitted at the time and place indicated in the application
documents. Applications may be modified at any time prior to the opening of the
applications, provided that any modifications must be duly executed in the manner
that the Applicant's application must be executed.
(c) Before submitting its application, each Applicant must (i) examine the Ordinance
and the application documents thoroughly, (ii) familiarize itself with local conditions
that may in any manner affect performance under this Ordinance, and (iii)
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familiarize itself with federal, state and local laws, Ordinances, rules and
regulations affecting performance under the franchise.
(d) The Government may make such investigations as it deems necessary to
determine the ability of the Applicant to perform under the franchise, and the
Applicant shall furnish to the Government all such information and data for this
purpose as the Government may request. The Government reserves the right to
reject any application if the evidence submitted by, or investigation of, such
Applicant fails to satisfy the Government that such Applicant is properly qualified
to carry out the obligations of the franchise and to complete the work contemplated
therein. Applications containing any condition on acceptance will not be accepted.
(e) Applicants shall submit all requested information as provided by the terms of this
Ordinance. The following information must be complete and verified as true by the
Applicant:
1. Name and address of Applicant. The Applicant's name, address, e-mail
address and telephone and facsimile numbers; date of application and
signature of Applicant or appropriate corporate officer(s); the name,
address and e-mail address, and telephone and facsimile numbers of a
local representative who shall be available at all times; and information
regarding how to contact the local representative in an emergency.
2. Description of proposed Telecommunications System. A description of
the Applicant's proposed Telecommunications System design.
3. Services. A statement setting forth a description of all the types of
Telecommunications Services proposed.
4. Applicant organization. The Applicant shall be a corporation or limited
liability company authorized to do business in the Commonwealth of
Kentucky, as certified by the Secretary of State. Applicant must fully
disclose the ownership of the Facilities to be used in rendering the
Telecommunications Service.
5. Technical description. Applicant shall provide a technical description of
the type of Telecommunication System proposed by the Applicant and
Applicant's plan for the installation of the Telecommunications
System. Telecommunications System designs are to be submitted in
bullet format detailing equipment start point, routes and end point
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location accompanied by network routing maps(s). The following
information shall be included in the application:
a. If the Applicant is proposing an underground installation in
existing ducts or conduits within the rights -of -way, information in
sufficient detail to identify the location of the existing ducts or
conduits to be occupied.
b. If Applicant is proposing an underground installation within new
ducts or conduits to be constructed within the rights -of -way:
i. The location, depth, size and quantity of proposed new
ducts or conduits;
6. A preliminary installation schedule and completion date.
7. Engineering statement. A statement from the Applicant's senior
technical staff member, or consultant, advising that the Applicant's
planned Telecommunications System and operations thereof would
meet all the requirements set forth herein.
8. Additional requirements.
a. Supplementary, additional or other information that the Applicant
deems reasonable for consideration may be submitted at the
same time as its application but must be separately bound and
submitted. The Government may, at its discretion, consider such
additional information as part of the application.
9. A copy of the Applicant's certificate of authority from the PSC
where the Applicant is lawfully required to have such certificate
from the PSC.
10. A copy of all insurance certificates required under this
Ordinance.
11. A statement signed by the Applicant that the Applicant agrees to be
bound by all provisions of this Ordinance and its franchise and
agrees to obtain all applicable permits and authorizations prior to
constructing, installing, or operating a system in the right-of-way.
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(f) The information provided by Applicant shall be certified as true and correct and
Applicant shall be responsible to certify to the Government any material changes
to the information provided in the completed application during the term of any
franchise.
(g) Supplementation to applications. The Government reserves the right to require
such supplementary, additional or other information that it deems reasonably
necessary for its determinations.
(h) The Government's rights reserved. The Government reserves the right to waive all
formalities and/or technicalities where the best interest of the Government may be
served.
Section 5 - Rights under Franchise.
(a) The Grantee shall have the non-exclusive right and privilege of constructing,
erecting, operating, and maintaining a Telecommunications System upon,
through, along, under and over the Rights -of -way within the City of
Hopkinsville as they now exist or may hereafter be extended; subject to the
provisions hereof and to all powers (including police power) inherent in,
conferred upon or reserved to the Government, including but not limited to
those contained in the Code. The Government reserves the right to grant
similar franchises to more than one Grantee.
(b) This Ordinance does not give the Grantee, the right nor the privilege of
attaching its Telecommunications System to any buildings, Poles, Towers,
or Support structures, streetlights, Equipment and apparatus, or Facilities
owned by any Person, including the Government. Additionally, this
Ordinance does not give the Grantee the right nor the privilege of
constructing, erecting, operating and maintaining a Telecommunications
System upon, through, along, under and over real property owned by any
Person, including the Government (other than Rights -of -way.) If Grantee
desires to attach its Telecommunications System to any buildings, Poles,
Towers, or Support structures, streetlights, Equipment and apparatus, or
Facilities owned by the any Person, including the Government or construct,
erect, operate and maintain a Telecommunications System upon, through,
along, under and over real property owned by any Person, including the
Government, the Grantee shall be required to enter into separate
agreements with said Person, including the Government.
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(c) This Ordinance does not include the right or privilege to provide Cable
Service or open video system (as defined by 47 CFR 76.1500 (a)), which
shall be subject to separate franchising requirements, and also does not
apply to (1) private communications system services provided without using
the public rights of way; (2) over -the -air radio or television broadcasting to
the public -at -large from facilities licensed by the Federal Communications
Commission or any successor thereto; and (3) direct -to -home satellite
service within the meaning of Section 602 of the Telecommunications Act
of 1996.
Section 6 - Standards.
The Grantee shall conform to at least the minimum standards or requirements in
federal, state and local law or regulation in the operation of its Telecommunications System
pursuant to this Ordinance. In addition to complying with other applicable law, the Grantee
agrees that:
(a) All working Facilities and conditions used during construction, installation and
maintenance of Facilities (including clearance of wires and cables above the
Rights -of -way and placement of any underground facilities) shall comply with
the standards of the Occupational Safety and Health Administration, the
National Electric Safety Code, and the National Electric Code. In the
operation of its Telecommunications System, the Grantee shall conform to
all standards required by applicable local, state, or federal law or regulation;
(b) All materials and equipment used or installed in construction shall be of first-
class quality, and any defect in the work, materials or equipment, whether
latent or patent, will be remedied by the Grantee at its cost;
(c) Construction, reconstruction, maintenance, or removal of any Facilities,
shall be performed with due regard for the rights of the Government and
others, and shall not unnecessarily interfere with, or in any way injure the
property of the Government or others under, on, or above the ground, or
otherwise unduly interfere with the public use of the Rights -of -way;
(d) Placement of lights, danger signals or warning signs shall be undertaken by
the Grantee in compliance with applicable law;
(e) Unless exempted by the Government, future Facilities shall be installed
underground at any location where all other utilities' Facilities that are used to
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provide customer service are then being installed underground, or when
otherwise required under the Code, and shall be in conformance with the
applicable requirements of this Ordinance and those set forth in the Code, the
Zoning Ordinance, or any other applicable local law or regulation. The
Grantee assumes all responsibility for damage or injury resulting from its
negligence or willful misconduct in connection with its placement or
maintenance of any above ground Facilities;
(f) Grantee shall identify all of its future Facilities, by tagging or marking its
Facilities with the Grantee's name and telephone number. Facilities in
existence prior to the effective date of this Ordinance are to be identified
and tagged during ordinary and routine maintenance and repair activities.
Additionally, upon written request, Grantee shall provide the Government
with an electronic map which contains the location of all of its Facilities;
(g) The Government, through its Mayor or his or her designee, or through such
assistants as the Government may employ or designate, may, at all times
and under reasonable conditions with prior notice, have reasonable access
to all or any of the property used in part or in whole by the Grantee in its
operating and maintaining the Telecommunications System under this
Ordinance and located within the Rights -of -way; and
(h) The Grantee agrees to provide to the Government and/or its City Council
with information pertaining to its provision of Telecommunications Services
pursuant to this Ordinance upon reasonable request. This shall include, but
is not necessarily limited to, attending public meeting(s) at which some or
all of the City Council members are in attendance (in order to provide such
information upon reasonable advance notice) and providing an annual
update to City Council upon its request.
Section 7 - Moving Permits and Tree Trimming.
(a) The Grantee shall, at the request of any Person holding a moving permit issued
by the Government, temporarily raise or lower its wires to permit the moving of
buildings or other structures. The expense of such temporary removal or
raising or lowering of wires shall be paid by the Person requesting the same,
and the Grantee shall have the authority to require such payment in advance.
The Grantee shall be given not less than fifteen (15) days advance notice to
arrange for such temporary wire changes.
(b) The Grantee shall have the authority to trim trees upon the overhanging
Rights -of -way so as to prevent the branches of such trees from coming in
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contact with the wires or cables of the Grantee. Any trimming, removal or other
disturbance of trees shall conform to all applicable laws or regulations.
Section 8 - Bonds.
The Grantee may, with respect to aspects of those projects in excess of one
hundred thousand dollars ($100,000.00) be required to post a project performance
bond(s). This bond (or bonds) shall be set in an amount and duration to be determined
by the Government upon discussing and verifying the scope of such a project with the
Grantee, and shall be in favor of the Government to be issued by an entity subject to
jurisdiction and venue in the City of Hopkinsville, Kentucky.
Section 9 - Indemnification.
The Grantee agrees to indemnify, hold harmless, and defend the Government from
any and all losses or claims of whatever kind to the extent that they arise from or are
alleged to have arisen, directly or indirectly from the execution, performance or breach of
this franchise by Grantee, its employees, agents, servants, owners, principals, lessees,
contractors and subcontractors, excluding negligence and misconduct on the part of the
Government. This indemnity agreement shall in no way be limited by any financial
responsibility, insurance, bond, letter of credit or loss control requirements below and
shall survive to the extent permitted by the applicable statute of limitations.
For purposes of this Indemnity provision:
(1) The word "defend" includes, but is not limited to, investigating, handling,
responding to, resisting, providing a defense for, and defending claims, at
Grantee's expense, using an attorney selected by the Grantee and
approved in writing by the Government which approval shall not be
unreasonably withheld.
(2) The word "claims" includes, but is not limited to, claims, demands, liens,
suits, and other causes of action of whatever kind.
(3) The word "losses" includes, but is not limited to: attorneys' fees and
expenses; costs of litigation; court or administrative agency costs;
judgments; fines; penalties; interest, all environmental cleanup and
redemption costs of whatever kind; and any liability arising from death,
injury or damage of any kind to any Person, including employees and
agents of Grantee, its servants, owners, principals, licensees, vendees,
lessees, contractors and subcontractors or the Government, and damage
to or destruction of any property, including the property of the Government.
(4) Notwithstanding anything to the contrary contained in this Ordinance, each
party will be responsible for injuries occurring to or damages suffered by
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their own employees or for worker's compensation claims filed by their own
employees.
Section 10 — Insurance.
(a) The Grantee shall procure and maintain for the duration of the franchise the
following insurance against claims for injuries to persons or damages to property
which may arise from or in connection with the performance hereunder by the
Grantee:
(1) Commercial General Liability Insurance with:
A. Limits of not less than $5,000,000.00 for property damage.
B. $5,000,000.00 for personal bodily injury or death to any one person.
C. $5,000,000.00 for bodily injury or death aggregate per single
accident or occurrence.
D. Products -Completed Operations coverage.
E. Personal and Advertising Injury coverage.
F. Explosion, collapse & underground coverage.
G. Grantee's policies shall include, and Grantee's certificate of
insurance will list as additional insureds, "the City of Hopkinsville, its
elected and appointed officials, employees, and, to the extent they
have an insurable interest, its agents, boards, consultants, assigns,
volunteers and successors in interest."
H. Additionally, such insurance shall contain endorsement that
Grantee's insurance coverage shall be primary insurance with
respect to the Government. Any insurance or self-insurance
maintained by the Government shall be in excess of the Grantee's
insurance and shall not contribute to it.
(2) Comprehensive Automobile Liability Insurance providing limits of not less
than $5,000,000.00.
(3) Workers' Compensation Insurance as required by the Kentucky Revised
Statutes and Employers Liability Coverage equal to $1,000,000 with
endorsement that insurer shall agree to waive all rights of subrogation
against Government for losses arising from work performed by the Grantee
for Government.
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(4) The Grantee shall abide by all local, state, and federal insurance
regulations.
(5) The required limits may be met by a combination of primary and excess or
umbrella insurance.
(b) Acceptability of Insurers. Insurance is to be placed with insurers qualified to do
business in the Commonwealth of Kentucky.
(c) Evidence of Insurance. The Government is to be furnished Certificates of
Insurance reflecting the above coverages, and Grantee agrees to provide the
Government, the following:
(1) Signed renewal Certificates for expiring policies;
(2) New Certificates of Insurance if policies or carriers change during terms of
this franchise, showing compliance with the above Insurance requirements;
and
(3) Copies of Insurance policies upon request.
(d) Right to Review, Audit and Inspect. Grantee understands and agrees that the
Government may review, audit, and inspect any and all of Grantee's relevant
records and operations to ensure compliance with these Insurance requirements.
(e) Safety and Loss Control. Grantee agrees to adhere to and comply with all Federal,
State and Local safety and environmental laws, regulations and ordinances. The
Grantee shall provide all safeguards, safety devices and protective equipment
necessary to protect the life, health, safety and property of all persons on the job
site, the public and the owner as required by applicable Federal, State and local
law.
(f) Maintenance of Insurance. Grantee covenants and agrees that it shall not allow a
lapse in coverage required under this Ordinance. In the event of cancellation,
Grantee shall notify 30 days ahead of any cancellation, provided that such
notification shall not be required if in the normal course of Grantee's business,
such insurance in place with Grantee is cancelled and Grantee replaces such
insurance with no lapse of coverage. However, the Grantee must provide the
Government with documentation of the replacement insurance prior to the
cancellation of the insurance previous coverage.
(g) Definition of Default. Grantee understands and agrees that the failure to comply
with any of these insurance, safety or loss control provisions (including with,
among other things, Section 10(f)) within ten (10) business days after notice from
the Government that the Grantee is not in compliance shall constitute a default
under this Ordinance. The Government may elect, at its option, any single remedy
or any combination of remedies, as available, including but not limited to,
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purchasing insurance and charging Grantee for any such insurance premiums
purchased, or terminating the Grantee's franchise. The date of default with respect
to Section 10(f) shall relate back to the date of breach, without regard to the date
on which notice is provided by the Government.
Section 11 - Non-discrimination and Affirmative Action.
The Grantee shall comply with all applicable federal, state or local non-
discrimination and affirmative action requirements of any laws, regulations and executive
directives, and shall not discriminate in its employment practices against any employee
or Applicant for employment because of race, color, religion, national origin, sex, age or
disability.
Section 12 - Transfer of Control.
(a) If the Grantee files for a Transfer of the Grantee, it will furnish the Mayor or
his designee with timely notice of such filing.
(b) No Transfer shall take place, whether by forced or voluntary sale, lease,
mortgage, assignment, encumbrance, or any other form of disposition,
without prior notice to and approval by City Council which shall not be
unreasonably refused, withheld, or delayed. The notice shall include full
identifying particulars of the proposed transaction, and City Council shall act
by municipal order. City Council shall have one hundred twenty (120) days
within which to approve or disapprove a transfer of control or assignment, if
no action is taken within such one hundred twenty (120) days; approval shall
be deemed to have been given.
(c) Section 12(b) is not intended to apply to assignments to a parent, subsidiary
or affiliate of the Grantee, or in those instances in which the Grantee has filed
for a transfer of control before the PSC. Such inter -corporate transfers or
transfers subject to the jurisdiction of the PSC shall require notice to the
Government as provided in Section 12(a).
(d) In deciding on whether to grant an application for a Transfer, City Council
may consider the financial, technical and other qualifications of the transferee
(assignee) to operate the Telecommunication System; whether the
incumbent Grantee is in compliance with this Ordinance and, if not, the
proposed transferee's (assignee's) commitment to cure such noncompliance
and any other criteria allowed by applicable law.
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(e) The consent or approval of City Council to any Transfer of the Grantee shall
not constitute a waiver or release of the rights of the Government in and to
the streets.
Section 13 - Franchise Duration.
(a) The franchise hereby created shall be for a period of ten (10) years from the
date of acceptance by City Council.
(b) The franchise created by this Ordinance creates no vested rights in the
Grantee other than those provided by this Ordinance or at law, and any
installation or placement of Facilities by the Grantee in the Rights -of -way is
at the Grantee's risk.
Section 14 - Penalties.
(a) If, after the Grantee is provided the opportunity to appear and present
evidence before the Mayor or his or her designee, the Mayor finds that the
Grantee has violated any of the following provisions of this Ordinance, the
following penalties shall be recoverable. The decision of the Mayor or his or
her designee shall be the final administrative decision and shall be in writing
and provide the basis for the decision. The decision may be appealed to a
court of competent jurisdiction.
(1) For failure to provide data and reports requested by the Government and
as required by this Ordinance the Grantee shall forfeit five hundred
dollars ($500.00).
(2) For failure to pay a franchise fee when due pursuant to local law, the
Grantee shall forfeit five hundred dollars ($500.00).
(b) If the Grantee fails to comply within thirty (30) days of any written request from
the Government directing compliance with any other provisions of this
Ordinance, the Grantee shall forfeit five hundred dollars ($500.00). The
decision of the City may be appealed to a court of competent jurisdiction.
(c) The Grantee shall not be excused from complying with any of the terms and
conditions of this Ordinance by any failure of the Government, upon any one
or more occasions, to insist upon the Grantee's performance or to seek the
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Grantee's compliance with any one or more of such terms or conditions.
Payment of penalties shall not excuse non-performance under this Ordinance.
The right of the Government to seek and collect penalties as set forth in this
section is in addition to its right to terminate and cancel as set forth in Section
16 of this Ordinance.
Section 15 - Maintenance of Telecommunication System.
The Grantee shall maintain its Telecommunication System in reasonable operating
condition at all normal times during the term of its Franchise. An exception to this is
automatically in effect when Telecommunications Service furnished by the Grantee is
interrupted, impaired or prevented by fires, strikes, riots or other occurrences beyond the
control of the Grantee, or by storms, floods or other casualties, in any of which events the
Grantee shall do all things reasonably within its power to restore normal
Telecommunications Service within a reasonable period of time.
Section 16 - Right to Terminate and Cancel the Franchise.
(a) In addition to all other rights and powers pertaining to the Government by
virtue of this Ordinance or otherwise, the Government, by and through its
Council, reserves the right to terminate and cancel the franchise and all rights
and privileges of the Grantee hereunder if the Grantee:
(1) Willfully violates any provision of this Ordinance, the franchise or any
material rule, order, or determination of the Government made
pursuant to the franchise or any federal, state or local regulation,
except where such violation is without fault or through excusable
neglect or due to a force majeure act;
(2) Willfully attempts to evade any provision of this Ordinance or the
franchise or practices any fraud or deceit upon the Government;
(3) Fails to begin or complete construction as provided under this
Ordinance or the Grantee's franchise;
(4) Knowingly makes a material misrepresentation of any fact in the
application, proposal for renewal, or negotiation of the franchise; or
(5) Entry of a final and non -appealable order by the Public Service
Commission of Kentucky which revokes any authority of the Grantee
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to provide Telecommunications Service in the City of Hopkinsville,
Kentucky.
(b) The Government may make a written demand that the Grantee do or
comply with any such provision, rule, order or determination. The Grantee
will be provided the opportunity to appear and present evidence before the
Mayor or his or her designee, whose decision shall be the final
administrative decision, and shall be in writing and provide the basis for the
decision. If the violation by the Grantee continues for a period of thirty (30)
days following such a decision by the Mayor or his or her designee without
written proof that the corrective action has been taken or is being actively
and expeditiously pursued by the Grantee, the Government may place its
request for termination of the franchise as early as the next regular City
Council meeting agenda. The Government shall cause to be served upon
Grantee, at least ten (10) days prior to the date of such City Council
meeting, a written notice of intent to request such termination and the time
and place of the meeting and shall publicly notice the same.
(1) It shall be a defense to any attempt to terminate and cancel the
franchise that the Grantee was relying on federal law, state law, or a
valid tariff in acting or not acting on the issue in dispute.
(2) The City Council shall consider the request of the Government and
shall hear any Person interested therein, and shall determine in its
discretion, whether or not any violation by the Grantee was with just
cause.
(3) If such violation by the Grantee is found to have been with just cause,
the City Council shall direct the Grantee to comply therewith within
such time and manner and upon such terms and conditions as are just
and reasonable within the Government's lawful authority.
(4) If City Council determines such violation by the Grantee was without
just cause, then City Council may, by municipal order, declare that
the franchise of the Grantee shall be terminated and forfeited unless
there is compliance by the Grantee within such reasonable period as
City Council may fix. Any such determination by City Council is a final
appealable action to a court of competent jurisdiction.
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Section 17 - Foreclosure or Other Judicial Sale.
The Grantee shall provide the Government, in the form and manner required by
the appropriate court or judicial body, at least thirty (30) days advance written notice, if at
all possible, of the foreclosure or other judicial sale of all or a substantial part of the
Grantee's Facilities within the City of Hopkinsville, or upon the termination of any lease
covering all or a substantial part of its Facilities, and such notification shall be treated as
a notification that a transfer or assignment of the franchise has taken place.
Section 18 - Government's Rights after the Appointment of a Receiver or Trustee.
City Council shall have the right to cancel a Grantee's franchise thirty (30) days
after the appointment of a receiver, or trustee, to take over and conduct the business of
the Grantee, whether in receivership, reorganization, bankruptcy, or other action or
proceeding, unless such receivership or trusteeship shall have been vacated prior to the
expiration of said thirty (30) days, unless:
(a) Within thirty (30) days after his election of appointment, such receiver or
trustee shall have fully complied with all the provisions of this Ordinance
and remedied all defaults thereunder; and,
(b) Such receiver or trustee, within said thirty (30) days shall have executed an
agreement, duly approved by the court having jurisdiction in the premises,
whereby such receiver or trustee assumes and agrees to be bound by each
and every provision of this Ordinance and the franchise granted to the
Grantee.
Section 19 - Advertising for Bids.
It shall be the duty of the Mayor or his designee to offer the terms of this Ordinance
to the public. If additional interested bidders are identified or express an interest in obtaining
a franchise after this initial offering, the additional offering and advertisement to
accommodate such bidders is hereby authorized.
Section 20 - Bid Process.
(a) Bids and proposals for the purchase and acquisition of the franchise hereby
created shall be in writing and shall be delivered to the Mayor or his designee
upon the date(s) and at the time(s) fixed by him or her in said advertisement(s)
for receiving same. Thereafter, the Mayor shall report and submit to City Council,
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at the time of its next regular meeting or as soon as practicable thereafter, said
bids and proposals for its approval.
(b) City Council reserves the right, for and on behalf of the Government, to reject any
and all bids for said franchise that do not meet the requirements of this Ordinance
or if the Application is incomplete and, in case the bids reported by the Mayor
shall be rejected by City Council, it may direct said franchise and privilege to be
again offered for sale, from time to time, until a satisfactory bid therefore shall be
received and approved.
(c) Each bid made by a Person not already holding a franchise within the territorial
limits of the City of Hopkinsville sufficient to render the Telecommunications
Service required by this Ordinance, shall be accompanied by cash or a certified
check drawn on a bank of the Commonwealth of Kentucky, or a national bank,
equal to five percent (5%) of the fair estimated cost of the Telecommunications
System required to render the Telecommunications Service, which check or
cash shall be forfeited to the Government in case the bid should be accepted
and the bidder should fail, for thirty (30) days after the confirmation of the sale,
to pay the price and to give a good and sufficient performance bond in favor of
the Government in a sum equal to one-fourth (1/4) of the fair estimated cost of
the Telecommunications System to be erected, conditioned that it shall be
enforceable in case the Grantee should fail, within one hundred eighty (180)
days, to establish and begin rendering the Telecommunications Service in the
manner set forth in this Ordinance. Upon rendering the initial
Telecommunications Service, this bond may be replaced by the performance
bond required by Section 23(b), if applicable.
(d) The Government reserves the right to review any of bidder's supporting
documentation which justifies and compliance with laws and regulations.
Section 21 - Compensation.
(a) During any period of time during which the Government opts to forego
collecting a Franchise Fee in lieu of participating Multichannel Video
Programming and Service Tax scheme under KRS 136.600 et seq.,
Franchisee shall not be required to pay Franchise Fees. If at any time
the Government opts exercise its constitutional right to collect Franchise
Fees, Grantee's first Franchise Fee payable under this Ordinance shall
be paid to the Government ninety (90) days after the Government gives
notice to Grantee that the Government has opted to exercise its
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constitutional right to collect Franchisee Fees. At the time, the
Government shall collect Franchise Fee as set out in Section 21(b)-(k).
(b) If Grantee receives revenue from providing Telecommunications
Service to Customers within the City of Hopkinsville, Grantee shall pay
an annual fee to the Government, which must be the greater of either:
(a) the Minimum Annual Franchise Fee; or (b) an amount equal to five
percent (5%) of Grantee's Gross Revenues from providing
Telecommunications Service to Customers within the City of
Hopkinsville. If Grantee does not receive revenue from providing
Telecommunications Service to Customers within the City of
Hopkinsville, Grantee shall pay an annual fee to the Government, which
must be the greater of either: (a) the Minimum Annual Franchise Fee; or
(b) an amount equal to two dollars ($2.00) per lineal foot of Facilities
plus two hundred -seventy dollars ($270.00) per antenna or small cell
when facilities are placed in "Road," "Street," or "Right-of-way" as
defined by Section 3 (r).
(c) Grantees paying the Minimum Annual Franchise Fee, shall pay said
Minimum Franchise Fee based on each calendar year quarter period
(January 1 through March 31, April 1 through June 30, July 1 through
September 30, and October 1 through December 31) on or before the
forty-fifth (45th) day following each calendar quarter period during the
term of a franchise created under this Ordinance.
(d) Gross Revenue based Franchise fee payments to the Government shall
be computed based on Grantee's Gross Revenues from each calendar
year quarter period (January 1 through March 31, April 1 through June
30, July 1 through September 30, and October. 1 through December 31)
and paid on or before the forty-fifth (45th) day following each calendar
quarter period during the term of a franchise created under this
Ordinance.
(e) Facilities based Franchise Fee payments to the Government shall be
computed based on Grantee's lineal foot of Facilities in the City of
Hopkinsville "Road," "Street" or "Right-of-way" as defined by Section 3
(r) as of January 1 of each calendar year and paid on or before April 15th
of each calendar year during the term of a franchise created under this
Ordinance.
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(f) Payment not received by the Government by the due date shall be
assessed interest equal to one percent (1 %) per month. Interest shall
be compounded daily. Interest shall be due on the entire late payment
from the date on which the payment was due until the date on which the
Government receives the payment.
(g) Prior to making each payment to the Government, Grantee shall file with
the Government a written report containing an accurate statement in
summarized form, as well as in detail, of its calculation of the amount of
the payment, verified by an officer or other authorized representative of
Grantee, setting forth its Gross Revenues according to their accounting
subdivisions, and any deductions claimed for the period upon which the
payment is computed. Such reports shall be in form satisfactory to the
Government.
(h) If any Franchise Fee is owed to the Government, upon reasonable
notice, the Government shall have the right to inspect the Grantee's
income records, the right to audit and to re -compute any amounts
determined to be payable under this Ordinance; provided, however, that
such audit shall take place within twelve (12) months following the close
of the Grantee's fiscal year that is being audited, and no audit shall occur
more often than once in any given twelve (12) month period of time. If,
as a result of such audit or review, the Government determines that
Grantee has underpaid its fees to the Government in any twelve (12)
month period by ten percent (10%) or more, then, in addition to making
full payment of the relevant obligation, Grantee shall reimburse the
Government for all expenses incurred as a result of an audit or review
and such payments shall be paid within the thirty (30) days following
written notice to the Grantee by the Government, which notice shall
include a copy of the audit report and copies of all invoices for which the
Government seeks reimbursement.
(i) If any Franchise Fee is owed to the Government, in the event that any
Franchise Fee payment or recomputed amount is not made to the
Government on or before the applicable dates heretofore specified,
interest shall be charged from such date at the annual rate of 2% over
prime interest rate.
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(j) The Government reserves the right to require the Grantee to collect any
consumer or other tax or other fee that may be imposed by the
Government, the Commonwealth of Kentucky, or the federal
government on Telecommunications Services.
(k) Notwithstanding any other provision of this Ordinance, the Grantee shall
be required to pay the Government an amount intended to adequately
compensate it for its permitting and inspection of the Grantee's
construction activities in the Rights -of -way pursuant to the Code of
Ordinances and attorney's fees (up to a maximum of $5,000) that the
Government may incur relating to the franchising process, including but
not limited to any attorneys' fees incurred relating granting of the
franchise and any transfer, renewal or modification of the franchise.
Section 22 - Additional Requirements.
In addition to all other requirements, and except to the extent prohibited by law,
any Grantee not already owning Facilities within the Rights -of -way sufficient to render
Telecommunications Services within the City of Hopkinsville, or any Grantee that is
required pursuant to law to file for a certificate of convenience and necessity from the
Kentucky Public Service Commission in order to replace or significantly upgrade or
expand a substantial portion of its existing Facilities within the Rights -of -way, shall also
be required to perform the following requirements during the construction, replacement,
upgrade or expansion of its Telecommunications System unless City Council determines
that any or all of such requirements are not necessary to adequately protect the interests
of the Government:
(a) In addition to obtaining any and all permits required pursuant to the Code,
the Grantee shall submit for the Government's approval a comprehensive
schedule of construction of its Telecommunications System no later than one
(1) month after the Government's acceptance of the Grantee's bid. The
schedule shall include sufficient detail for Government to determine the time
and locations of construction activities and shall also depict the anticipated
time frame of identifiable tasks required for construction purposes, as
delineated by the Government. No construction related activities may be
conducted in the Rights -of -way until the schedule is approved by the
Government. In addition, at thirty (30) day intervals during construction, the
Grantee shall provide the Government with a plan of construction activities
setting forth a general description of the activities to be undertaken during the
following thirty (30) days and designating the geographical area of the City of
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Hopkinsville that will be affected. Approval by the Government of these plans
shall constitute a condition which must be met prior to undertaking any
construction activities.
(b) The Grantee shall furnish traffic control plans, including site -specific hours of
construction, to the Government no later than seven (7) days prior to the
commencement of any construction activities. Such plans are subject to
approval or modification by the Government. No construction related activities
may be conducted in the Rights -of -way without an approved traffic control
plan.
(c) The Grantee shall provide the Government a local telephone contact number,
staffed twenty-four (24) hours per day, to enable the Government to report
any concerns regarding construction of the Telecommunications System. If
the Government reports any concerns to the Grantee, the Grantee shall
respond within a reasonable time as specified by Government or as specified
elsewhere in this Ordinance. The Grantee shall perform the required repair
or correct any adverse impact to Government's use or operations, or the use
or operations of a third party caused by the Grantee's construction activities
in the Rights -of -way at no cost to the Government.
(d) Fourteen (14) days prior to commencement of construction, and every thirty
(30) days thereafter during construction the Grantee shall publish, at its sole
cost, a notice containing a map depicting where construction will occur in the
Kentucky New Era. Additionally, such notice shall provide a general
description of construction activities and a telephone number to be called by
citizens with questions concerning construction activities. A copy of said
notice(s) shall be provided to the Government.
(e) The Grantee shall provide at least fourteen (14) days' notice to other utilities
in the City of Hopkinsville of its interest in seeking construction permits to open
the street before it applies for any street cut permit. The Government shall
provide the Grantee with a listing of all such utilities and their points of contact
upon request. Such notice shall inform the other utility companies of the
Grantee's intent to undertake construction in the affected areas and state that
the other utility companies must notify the Government and the Grantee within
seven (7) days of receipt of such notice of their desire to simultaneously lay
conduit, or other Facilities, in any trench opened by the Grantee.
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(f) Failure to comply with the above provisions, or the Code may, in the sole
discretion of the Government:
(1) Be the basis for the Government to reasonably require that the Grantee
perform more extensive restoration work than otherwise anticipated by
a permit; and
(2) May result in the Grantee being assessed an additional premium on
any permit fee to recoup any additional costs or expenses reasonably
associated with the Grantee's failure.
(g) Unless otherwise provided an extension by City Council, the Grantee must
make Telecommunications Services available within the City of Hopkinsville
within one year from the date of the award of the franchise. This requirement
shall not apply to a Grantee that does not provide, or has no intention of
providing, any Telecommunications Services to the City of Hopkinsville
Customers.
(h) The Grantee shall maintain accurate Telecommunications System design
drawings, maps and improvement plans of the Telecommunications System,
in a form acceptable to the Government, in a manner consistent with industry
construction standards. The Grantee shall furnish the Government, without
charge, with a complete set of "as -built" drawings within sixty (60) days of
completion of construction of the Telecommunications System. Such maps
and improvement plans shall also be furnished to Government in digital form
and shall be provided pursuant to a lawful protective agreement.
Section 23 - Letter of Credit and Performance Bond.
In addition to all other requirements, and except to the extent prohibited by law, any
Grantee not already owning Facilities within the Rights -of -way sufficient to render
Telecommunications Services within the City of Hopkinsville, shall also be required to
perform the following requirements during the construction of its Telecommunications
System unless City Council determines that any or all of such requirements are not
necessary to adequately protect the interest of the Government:
(a) Within ten (10) days after the award of a franchise pursuant to this Ordinance,
the Grantee shall deposit with the Government's Division of Revenue a one-
year irrevocable renewable letter of credit from a financial institution approved
by City of Hopkinsville in the amount of fifty thousand dollars ($50,000.00).
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The form and content of such letter of credit shall be approved by the
Government. The letter of credit shall be used to insure the faithful
performance by the Grantee of all provisions of this Ordinance; and
compliance with all orders, permits and directions of any agency, council,
board, department, division or office of the Government having jurisdiction
over its acts or defaults under this Ordinance, and the payment by the Grantee
of any claims, liens and taxes due the Government which arise by reason of
the construction, operation or maintenance of the Telecommunications
System.
(1) The letter of credit shall be maintained at fifty thousand dollars
($50,000.00) during the entire term of Grantee's franchise, even if
amounts have to be withdrawn pursuant to this section.
(2) If the Grantee fails to pay to the Government any compensation within
the time fixed herein; or, fails, after ten (10) days' notice to pay to the
Government any taxes due and unpaid; or, fails to repay the
Government, within such ten (10) days, any damages, costs or
expenses which the Government is compelled to pay by reason of any
act or default of the Grantee in connection with its franchise; or, fails,
after three (3) days' notice of such failure by the Government to comply
with any provision of its franchise which the Government reasonably
determines can be remedied by demand on the letter of credit, the
Government may immediately request payment of the amount thereof,
with interest and any penalties, from the letter of credit. Upon such
request for payment, the Government shall notify the Grantee of the
amount and date thereof.
(3) The rights reserved to the Government with respect to the letter of
credit are in addition to all other rights of the Government and no action,
proceeding or exercise of a right with respect to such letter of credit
shall affect any other right the Government may have.
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(4) The letter of credit shall contain the following endorsement:
"It is hereby understood and agreed that this letter of
credit may not be cancelled by the surety nor the
intention not to renew be stated by the surety until thirty
(30) days after receipt by the Government, by
registered mail, a written notice of such intention to
cancel or not to renew."
(b) If necessary, after the initial service requirement is met and the bonds required
by Section 8 of this Ordinance no longer protect the Government, the
Government may require the Grantee to file with the Government a
Performance Bond in an amount up to Five Hundred Thousand Dollars
($500,000.00) in favor of the Government. This bond shall be maintained
throughout the construction period. In lieu of the above -mentioned
performance bond, the Grantee may deposit with the Government an
irrevocable letter of credit from a financial institution located in the City of
Hopkinsville in an amount up to Five Hundred Thousand Dollars
($500,000.00). The form and content of such letter shall be approved by the
Government.
(1) In the event the Grantee fails to comply with the Code or any law,
ordinance or regulation governing the franchise, or fails to well and truly
observe, fulfill and perform each term and condition of this Ordinance
or the franchise, including the Grantee's application (as required in
Section 4), there shall be immediately recoverable, jointly and
severally, from the principal and surety of the bond or the letter of
credit, any damages or loss suffered by the Government as a result,
including the full amount of any compensation, indemnification, or cost
of removal or abandonment of any property of the Grantee, plus a
reasonable allowance for attorney's fees, including the Government
legal staff, and costs, up to the full amount of the bond.
(2) Upon completion of construction of the Grantee's initial service area
the requirement of this additional performance bond shall be waived.
(3) The bond or letter of credit shall contain the following endorsement:
"It is hereby understood and agreed that this bond
[letter of credit] may not be cancelled by the surety nor
the intention not to renew be stated by the surety until
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thirty (30) days after receipt by the Government,
registered mail, a written notice of such intent to cancel
or not to renew."
(4) The rights reserved to the Government with respect to the performance
bond or letter of credit are in addition to all other rights of the
Government, and no action, proceeding or exercise of a right with
respect to such performance bond or letter of credit shall affect any
other right the Government may have.
Section 24 - Discontinuing Use of Facilities.
If Grantee decides to discontinue use of Facilities within all or a portion of the
Streets and does not intend to use those Facilities again in the future, the Government
may direct Grantee to remove the Facilities or may permit the Facilities to be left in place
as abandoned, which permission shall not be unreasonably withheld or delayed. If
Grantee is permitted to abandon its Facilities in place, upon written consent of the
Government, the ownership of Facilities in the Government's Streets shall transfer to the
Government and Grantee shall have no further obligation therefor. Notwithstanding
Grantee's request that any such Facility remain in place, the Government may require
Grantee to remove the Facility from the street area or modify the Facility in order to protect
the public health and safety or otherwise serve the public interest. The Government may
require Grantee to perform a combination of modification and removal of the Facility.
Grantee shall complete such removal or modification in accordance with a reasonable
schedule set by the Government. Until such time as Grantee removes or modifies the
Facility as directed by the Government, or until the rights to and responsibility for the
Facility are accepted by another Person having authority to construct and maintain such
Facility, Grantee shall be responsible for all necessary repairs and relocations of the
Facility, as well as restoration of the Street, in the same manner and degree as if the
Facility were in active use, and Grantee shall retain all liability for such Facility.
Section 25 - Offers of Payment.
Bids offered for purchase of a franchise pursuant to this Ordinance shall state the
bidder's acceptance of the conditions set forth in this Ordinance. If any bid shall include
an offer of payment over and above the terms of the franchise, then a certified check for
said amount, payable to the City of Hopkinsville, shall be deposited with the Government.
This amount shall be in addition to the provision for any payments contained in Sections
4 and/or 21 of this Ordinance.
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Section 26 - Forfeiture.
Any violation by the Grantee or successor or authorized Grantee representative of
the provisions of this Ordinance or any material portions thereof, or the failure promptly
to perform any of the provisions thereof, shall be cause for the forfeiture of its franchise
and all rights hereunder after written notice to the Grantee and continuation of such
violations, failure or default, as set forth herein.
Section 27 - Governing Law.
This Ordinance and any franchise awarded pursuant to it shall be governed by the
laws of the Commonwealth of Kentucky, both as to interpretation and performance, and
in accordance with all federal laws and regulations. The venue for any litigation related to
this Ordinance or any franchise shall be in the court of competent jurisdiction in Christian
County, Kentucky.
Section 28 - Non -enforcement by the Government.
Grantee shall not be relieved of its obligations to comply with any of the provisions
of this Ordinance by reason of any failure of the Government to enforce prompt
compliance, nor does the Government waive or limit any of its rights under this Ordinance
by reason of such failure or neglect.
Section 29 - Agent.
The Grantee shall provide to the Government written contact information at
Grantee's corporate headquarters. This contact information may be used by the
Government to correspond with Grantee regarding all activities required pursuant to this
Ordinance. The Government will deliver service of any legal proceeding initiated by the
Government upon Grantee's registered agent for the Commonwealth of Kentucky.
Section 30 - Third Parties.
This Ordinance and any franchise awarded pursuant to it does not create a
contractual relationship with or right of action in favor of a third party against either the
Government or the Grantee.
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Section 31- Erection, Removal and Common Uses of Poles.
(a) Grantee shall not erect or authorize or permit others on its behalf to erect any Poles
except when absolutely necessary to provide Telecommunication Service. Poles may not
be erected by the Grantee when other Poles are available on reasonable terms and
conditions. Terms and condition which comply with applicable State and/or Federal
regulations shall be deemed reasonable. No Poles, Towers, or Support structures shall
be erected by the Grantee without prior approval of the Government with regard to need,
location, height, type, and any other pertinent aspect. However, no location of and Poles,
Towers, or Support structures of the Grantee shall be a vested interest and such Poles,
Towers, or Support structures shall be removed or modified by the Grantee at its own
expense whenever the Government determines that the public health, welfare and/or
safety would be enhanced thereby.
(b) Where Poles, Towers, or Support structures already existing for use in serving the
Government are available for use by the Grantee on reasonable terms and conditions,
but it does not make arrangements for such use, the Government may require the
Grantee to use such Poles, Towers, or Support structures for reasonable and proper
consideration consistent with applicable law or place its facilities underground if it
determines that the public health, welfare and/or safety would be enhanced thereby and
if such use would not unduly interfere with Grantee's operations.
Section 32. Aesthetic standards.
Unless otherwise approved by the City in order to prevent an effective prohibition of
service in accordance with federal regulations, as applicable, no Person shall locate
or maintain a Facility, Pole, Tower, or Support structure, except in accordance with
the following design standards:
(a) All Facilities shall be located and designed so as to minimize visual impact on
surrounding properties and from Rights -of -way.
(b) All new or replacement Poles, Towers, or Support structures placed in the Right-
of-way shall be the same color, shape, material, and general height as those
existing Poles, Towers or Support Structures adjacent to the location of the new
or replacement Pole, Tower, or Support structure.
(c) All coaxial, fiber-optic, or other cabling and wires shall be contained inside any
new or replacement Tower, Pole, or Support structure. On existing Poles,
Towers, or Support structures, or new wooden Poles, where it is impossible to
place wiring inside the Pole, Tower or Support structure, all coaxial, fiber-optic,
or other cabling and wires shall be flush -mounted and covered with a metal,
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plastic, or similar material matching the color of the Pole, Tower or Support
structure. All coaxial, fiber-optic, or other cabling and wires shall be contained
inside any new Tower, Support structure or Pole placed in the Right-of-way.
(d) No Tower shall be placed in the Right-of-way within two hundred fifty (250) feet
on the same street of an existing Tower. Replacing an existing Tower with a
Tower, or a lighted Pole with another lighted Pole housing Wireless facilities, in
the same location shall not violate this provision.
(e) All new Towers, Support structures and Poles should be located on the same
side of the street as existing Towers, Poles, or Support structures. However, this
does not preclude an applicant from locating its Wireless facilities on existing
lighted Poles under a decommissioning agreement in which the applicant takes
ownership of the lighted Pole.
(f) The centerline of any new Pole, Support structure or Tower shall be aligned with
the centerline of adjacent Poles or trees, unless the new structure's height
conflicts with overhead power utility lines. Replacing an existing Pole, Support
structure, or Tower with another Pole, Support structure, or Tower in the same
location shall not violate this provision.
(g) All new Poles, Towers, Support Structures or Facilities proposed to be fronting a
dwelling shall be placed on property lines, unless it would obstruct sight distance
at driveways or other accesses to roadways. In those instances where placement
of a new Pole, Support structure, Tower, or Facilities on the property line would
obstruct sight distance, the Pole, Support Structure or Tower, or Facilities shall
be placed in such a location as to prevent the obstruction of sight distance at
driveways or other accesses to roadways. Replacing an existing Pole, Support
structure, Tower or Facility with a Pole, Support structure, Tower, or Facility in
the same location shall not violate this provision.
(h) New Poles, Support Structures, Towers, or Facilities shall not be placed in front
of store front windows, walkways, entrances or exits, or in such a way that would
impede deliveries. Replacing an existing Pole, Support structure, Tower, or
Facility with a Pole, Support structure, Tower, or Facility in the same location shall
not violate this provision.
(i) No new Poles, Support Structures or Towers shall be placed in front of driveways,
entrances, or walkways. Replacing an existing Pole, Support structure, or Tower
with a Pole, Support Structure, or Tower in the same location shall not violate this
provision.
Q) No applicant shall locate or maintain a Pole, Support structure, Tower, or
equipment associated with a Wireless facility, as to interfere with the health of a
tree.
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(k) In areas where the undergrounding of utilities has occurred, but lighted Poles are
present, the applicant shall locate its Wireless facilities on existing lighted Poles
or seek to decommission the lighted Pole to replace it with a lighted Pole to house
its Wireless facilities.
(1) If the applicant elects to decommission an existing lighted Pole in order to install
a Wireless facility in its location, the applicant shall comply with this Ordinance,
including these aesthetic standards, and any decommissioning agreement
between the applicant and the City or its equivalent.
(m) In those locations where the undergrounding of utilities has occurred, all Facilities
shall be placed underground.
(n) No equipment associated with any Facility shall impede, obstruct, or hinder ADA
access, or pedestrian or vehicular access, or block driveways, entrances, or
walkways. The installation of new ground furniture is prohibited.
(o) To protect the health and safety of the public from the harms of noise pollution,
all Facilities shall have a low noise profile.
(p) Within twenty-one (21) calendar days from the date the operator receives notice
thereof, operator shall remove all graffiti on any of its Facilities located in the
Right-of-way.
(q) All Facilities, Poles, Towers, and Support structures shall comply with such
additional design standards as may be set forth in any written policies or
guidelines issued by the City.
(r) All Poles, Towers, Support structures, and other lines and equipment installed or
erected by Registrant under this Ordinance shall be located so as to minimize
any interference with the proper use of the Right-of-way with the rights and
reasonable convenience of property owners whose property adjoins or abuts any
affected Right-of-way. Subject to applicable codes, overhead drops shall be as
close as possible to other utility drops in order to concentrate the drops in as
small an area as possible to minimize visual clutter and interference with the use
of private property.
Section 33 - Severability.
If any section, sentence, clause or phrase of the Ordinance is held unconstitutional
or otherwise invalid, such infirmity shall not affect the validity of the Ordinance.
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Section 34 - Effective Date.
The franchise created by this Ordinance shall become effective when the bid for it
is accepted by City Council unless the Council specifies a different date.
Section 35 — This Ordinance shall become effective upon publication and may be
published in summary.
ORDINANCE 18-2021
TELECOMMUNICATIONS (OR RELATED NON -CABLE) FRANCHISE
PUBLICLY READ AND PASSED FIRST TIME: AUGUST 3 2021
PUBLICLY READ AND PASSED SECOND TIME: AUGUST 17 2021
APPROVED:
Wendell A. Lynch
Mayor
ATTEST: _MA&_jM ?JZ16k�
Christine M. Fletcher, MMC
City Clerk
Ordinance -a
was published in the Kentucky New Era
on:
As Certified By WV,
1
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