A NON-EXCLUSIVE CONTRACT FRANCHISE ORDINANCE GRANTED TO SBC (SOUTHWESTERN BELL COMPANY, A TELECOMMUNICATIONS LOCAL EXCHANGE SERVICE PROVIDER PROVIDING LOCAL EXCHANGE SERVICE WITHIN THE CITY OF MAIZE, KANSAS.
Section 1. Pursuant to K.S.A. 2002 Supp. 12-2001, a contract franchise ordinance is hereby granted to Southwestern Bell Company (SBC), a Telecommunications Local Exchange Service Provider providing Local Exchange Service within the City of Maize, Kansas (the “City”), subject to the provisions contained hereafter. The initial term of this Franchise Ordinance (“Ordinance”) shall be for a period beginning April 1, 2003, and ending April 1, 2008. Compensation to be paid to the City shall be established pursuant to Section 3 of this Ordinance.
Section 2. Definitions. For the purpose of this Ordinance, the following words and phrases and their derivations shall have the following meanings:
(a) 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 Lines 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.
(b) 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.
(c) Access Line Fee means a fee determined by a City, up to a maximum as set out in K.S.A. 2002 Supp. 12-2001 and amendments thereto, to be used by a Telecommunications Local Exchange Service Provider in calculating the amount of Access Line Remittance.
(d) 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.
(e) 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, private line 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.
(f) 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 Services is provided. The term Local Exchange Service shall not include wireless communication services.
(g) Provider shall mean a local exchange carrier as defined in subsection (h) of K.S.A. 66-1,187, and amendments thereto, or a telecommunications carrier as defined in subsection (m) of K.S.A. 66-1,187, and amendments thereto.
(h) Public Right-of-Way means only the area of real property in which the City has a dedicated or acquired right-of-way interest in the real property. It shall include the area on, below or above the present and future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated or acquired as right-of-way. The term does not include the airwaves above a right-of-way with regard to wireless telecommunications or other nonwire telecommunications or broadcast service, easements obtained by utilities or private easements in platted subdivisions or tracts.
(i) 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.
(j) 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. Franchise Fee. Compensation made pursuant to this Ordinance shall be paid on a monthly basis without invoice or reminder from the City and paid within forty-five (45) days after the last day of the applicable month. For the first year of this Ordinance, said compensation shall be five percent (5%) of Gross Receipts. Thereafter, compensation shall continue to be five percent (5%) of Gross Receipts; unless the City notifies SBC prior to ninety (90) days before the end of the calendar year that it intends to increase or decrease the percentage of Gross Receipts or that it intends to switch to an Access Line Fee for the following calendar year. In the event the City elects compensation based on an Access Line Fee, nothing herein precludes the City from switching back to a percentage of Gross Receipts, provided the City notifies SBC prior to ninety (90) days before the end of the calendar year that it intends to elect to use a percentage of Gross Receipts for the following calendar year. Beginning January 1, 2004, any increased Access Line Fee or percentage Gross Receipts shall be made in compliance with the public notification procedures set forth in subsections (l) and (m) of K.S.A. 2002 Supp. 12-2001.
Section 4. Examination of Records. 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 Ordinance.
Section 5. SBC Responsibility. As a condition of this Ordinance, SBC 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 SBC’s right to challenge in good faith such requirements as established by the FCC, KCC or other City Ordinance. SBC shall also comply with all applicable laws, statutes and/or ordinances, subject to SBC’s right to challenge in good faith such laws, statutes and/or ordinances.
Section 6. Cable Service Not Part of Franchise. This Ordinance does not provide SBC the right to provide cable service as a cable operator (as defined by 47 U.S.C. § 522(5)) within the City. Upon SBC’s request for a franchise to provide cable service as a cable operator (as defined by 47 U.S.C. § 522(5)) within the City, the City agrees to timely negotiate such franchise in good faith with SBC. SBC agrees that this franchise does not permit it to operate an open video system without payment of fees permitted by 47 U.S.C. § 573(c)(2)(B) and without complying with FCC regulations promulgated pursuant to 47 U.S.C. § 573.
Section 7. Construction and Maintenance. If requested by City, in order to accomplish construction and maintenance activities directly related to improvements for the health, safety and welfare of the public, SBC shall remove its facilities from the public right-of-way or shall relocate or adjust its facilities within the public right-of-way at no cost to the City. Such relocation or adjustment shall be completed as soon as reasonably possible within the time set forth in any request by the City for such relocation or adjustment. Any damages suffered by the City or its contractors as a result of SBC’s failure to timely relocate or adjust its facilities shall be borne by SBC.
Section 8. Public Right-of-Way Fees. The City may assess any of the following fees against SBC, for use and occupancy of the public right-of-way, provided that such fees reimburse the City for its reasonable, actual and verifiable costs of managing the City right-of-way, and are imposed on all other franchise holders in a nondiscriminatory and competitively neutral manner:
(1) A permit fee in connection with issuing each construction permit to set fixtures in the Public Right-of-Way within the City as provided in K.S.A. 17-1901, and amendments thereto, to compensate the City for issuing, processing and verifying the permit application. (a) An excavation fee for each street or pavement cut to recover the costs associated with construction and repair activity of SBC, their assigns, contractors and/or subcontractors with the exception of construction and repair activity required pursuant to subsection (1) of this section related to construction and maintenance activities directly related to improvements for the health, safety and welfare of the public; provided, however, imposition of such excavation fee must be based upon a regional specific or other appropriate study establishing the basis for such costs which takes into account the life of the City street prior to the construction or repair activity and the remaining life of the City street prior to the construction or repair activity and the remaining life of the City street. Such excavation fee is expressly limited to activity that results in an actual street or pavement cut; (b) Inspection fees to recover all reasonable costs associated with City inspection of the work of SBC in the right-of-way; (c) Repair and restoration costs associated with repairing and restoring the Public Right-of-Way because of damage caused by SBC, its assigns, contractors, and/or subcontractors in the right-of-way; and (d) A performance bond, in a form acceptable to the City, from a surety licensed to conduct surety business in the state of Kansas, insuring appropriate and timely performance in the construction and maintenance of facilities located in the Public Right-of-Way.
(2) The City may not assess any additional fees against Providers for use or occupancy of the Public Right-of-Way other than those specified in this subsection (2).
(3) The fees as identified in this section shall be set by a separate ordinance.
Section 9. Trimming of Trees. Permission is hereby granted by the City to SBC to trim trees that are upon or that overhang rights-of-way and that interfere with SBC’s ability to provide service to City inhabitants, subject to the City Administrator’s review and approval of SBC plans and details for such trimming. In preparing plans and details in trimming of trees, care shall be taken by SBC to protect the health and aesthetic value of such trees, and when required by City Administrator, such trimming shall be done under the supervision of the City. No trimming shall occur without at least twenty-four (24) hours advance notice (weekends and City holidays shall not be included in calculating the 24-hour notice) being given to the City Administrator and to any adjacent landowner; provided, however, SBC shall not be required to provide such notice or obtain prior approval to trim if the trimming is done under emergency conditions that require immediate trimming for safety reasons or to maintain service to SBC customers. In addition, the trimming of trees shall come in compliance with applicable laws, statutes and/or ordinances.
Section 10. Non-Exclusive Grant. Nothing herein contained shall be construed as giving SBC any exclusive privileges, nor shall it affect any prior or existing rights of SBC to maintain a telecommunications system within the City.
Section 11. Remittance of Rent on Resold Access Lines. SBC 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 12. Notice. Any required or permitted notice under this Ordinance shall be in writing. Notice upon either party shall be delivered by first class United States mail or by personal delivery to:(1) SBC, Director – Municipal Affairs, 220 E 6th Street, Room 505, Topeka, KS 66603; (2) City of Maize, Kansas, ATTN: City Clerk, 123 Khedive, Maize, Kansas 67101.
Section 13. Indemnification. SBC shall indemnify and hold the City and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorney fees and costs of defense), proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury (including death), property damage, or other harm for which recovery of damages is sought, to the extent that it is found by a court of competent jurisdiction to be caused by the negligence of the Provider, any agent, officer, director, representative, employee, affiliate or subcontractor of SBC, or their respective officers, agents, employees, directors or representatives, while installing, repairing or maintaining facilities in a Public Right-of-Way. The indemnity provided by this subsection does not apply to any liability resulting from the negligence of the City, its officers, employees, contractors or subcontractors. If SBC and the City are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of the state without, however, waiving any governmental immunity available to the City under state law and without waiving any defenses of the parties under state or federal law. This section is solely for the benefit of the City and SBC and does not create any grant of rights, contractual or otherwise, to any other person or entity.
Section 14. Failure to Enforce. The failure of either party to enforce and remedy any noncompliance of the terms and conditions of this Ordinance shall not constitute a waiver of rights nor a waiver of the other party’s obligations as provided herein.
Section 15. Invalidity of Ordinance. If any clause, sentence or section of this Ordinance shall be held invalid, it shall not affect the remaining provisions of this Ordinance.
Section 16. Force Majeure. Each and every provision hereof shall be subject to acts of God, fires, strikes, riots, floods, war and other disasters beyond SBC’s or the City’s control.
Section 17. Governing Law. This Ordinance is made under and in conformity with the laws of the state of Kansas. No such contract franchise shall be effective until the ordinance granting the same has been adopted as provided by law.
(04-28-2003)