A CONTRACT FRANCHISE ORDINANCE GRANTED TO SOUTHWESTERN BELL TELEPHONE, L.P., A TELECOMMUNICATIONS LOCAL EXCHANGE SERVICE PROVIDER PROVIDING LOCAL EXCHANGE SERVICE WITHIN THE CITY OF HAYSVILLE, KANSAS.
BE IT ORDAINED BY THE GOVERNING BODY OF THE OTY OF HAYSVILLE, KANSAS:
SECTION 1: Pursuant to KS.A. 2002 Supp. 12-2001, a contract franchise ordinance is hereby granted to Southwestern Bell Telephone, L.P., d/b/a SBC Kansas (“SBC Kansas”), a telecommunications local exchange service provider providing local exchange service within the City of Haysvi1le (“City”), subject to the provisions contained hereafter.
SECTION 2: For the purpose of this contract franchise ordinance, the following words and phrases and their derivations shall have the following meaning:
“Access line” shall mean and be limited to retail billed and collected residential lines; business lines; ISDN lines; PBX trunks and simulated exchange access lines provided by a central office based switching arrangement where all stations serviced by such simulated exchange access lines are used by a single customer of the provider of such arrangement. Access line may not be construed to include interoffice transport or other transmission media that do not terminate at an end user customer’s premises, or to permit duplicate or multiple assessment of access line rates on the provision of a single service or on the multiple communications paths derived from a billed and collected access line. Access line shall not include the following: Wireless telecommunications services, the sale or lease of unbundled loop facilities, special access services, lines providing only data services without voice services process by a telecommunications local exchange service provider or private line service arrangements.
“Access line count” means the number of access lines serving consumers within the corporate boundaries of the city on the last day of each month.
“Access line fee” means a fee determined by a city, up to a maximum as set out in KS.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.
“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.
“Communications system” or “System” means the cables, wires, lines, optic fiber, and any associated converters, equipment, or other facilities designed, constructed or occupied by a Provider or others for the purpose of producing, receiving, amplifying or distributing Telecommunications Service to or from locations with the city.
“City” means the City of Haysville, Kansas, the franchisor herein.
“Facilities” means any portion of a System located in, along, over, upon, under, or through the Public Right-of-Way.
“Franchise fee” means the Access Line Fee or fee on Gross Receipts established under this ordinance.
“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, reconnecting 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 provider offers additional services of a wholly local nature if in existence on or before July 1, 2002, would have been included with the definition of gross receipts, such services shall be included from the date of the offering of such services in the city.
“Local exchange service” means local switched telecommunications service within any local exchange service area approved by the state corporation commission, regardless of the medium by which the local telecommunications service is provided. The term local exchange service shall not include wireless communication services.
“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.
“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 non-wire telecommunications or broadcast service, easements obtained by utilities or private easements in platted subdivisions or tracts.
“Telecommunications local exchange service provider” means a local exchange carrier as defined in subsection (h) of KS.A. 66-1, 187, and amendments thereto, and a telecommunications carrier as defined in subsection (m) of KS.A. 66-1, 187, and amendments thereto, which does, or in good faith intends to, provide local exchange service. The term telecommunications local exchange service provider does not include an interexchange carrier that does not provide local exchange service, competitive access provider that does not provide local exchange service or any wireless telecommunications local exchange service provider.
“Telecommunications services” means providing the means of transmission, between or among points specified by the user, of information of the user’s choosing, without change in the form or content of the information as sent and received.
SECTION 3: This contract franchise ordinance shall be effective for a period of twenty (20) years beginning on January 1, 2004 and ending on December 31, 2024.
I. Upon written request of either the City or SBC Kansas, this franchise may be reviewed after five (5) years from the effective date of this ordinance, and every five (5) years thereafter. Said request must be served upon the other party at least one hundred twenty (120) days prior to the end of every five years of the term of this Ordinance, and shall state specifically the amendments desired. The City and SBC Kansas shall negotiate in good faith in an effort to agree upon mutually satisfactory amendments.
Amendments under this section, if any, shall be made by ordinance as prescribed by statute. Except as provided within this section the franchise shall remain in effect according to its terms pending completion of any review or renegotiation provided by this subsection.
II. Upon written request of either the City or SBC Kansas, the franchise shall be reopened and renegotiated at any time upon any of the fol1owing events:
(a) Change in federal, state, or local law, regulation, or order which materially affects any rights or obligations of either the City or SBC Kansas, including, but not limited to, the scope of the grant to the Company or the compensation to be received by the City.
(b) Change in the structure or operation of the telecommunications industry that materially affects any rights or obligations of either the City or SBC Kansas, including, but not limited to, the scope of the grant to SBC Kansas or the compensation to be received by the City.
(c) Any other material and unintended change or shift in the economic benefit the City or SBC Kansas relied upon and anticipated upon entering into this franchise.
SECTION 4: Compensation made pursuant to this contract franchise ordinance shall be paid on a monthly basis without invoice or reminder from the City and paid not later than forty-five (45) days after the last day of the applicable month. For the first year of this contract franchise ordinance, said compensation shall be a sum equal to five percent (5%) of gross receipts. Thereafter, compensation for each calendar year of the remaining term of the contract franchise ordinance shall continued to be based on a sum equal to five percent (5%) of gross receipts; unless the City notifies SBC Kansas prior to ninety days (90) before the end of the calendar year that it intends to increase or decrease the percentage of gross receipts for the following calendar year or that it intends to switch to an access line fee for the following calendar year. In the event City elects compensation based on an access line fee, nothing herein precludes City from switching back to a gross receipts fee provided City notifies SBC Kansas prior to ninety days (90) before the end of the calendar year that it intends to elect a gross receipts fee for the following calendar year. Beginning January 1, 2004, any increased access line fee or gross receipt fee shall be in compliance with the public notification procedures set forth in subsections (1) and (m) K.S.A 2002 Supp. 12-2001.
SECTION 5: The City sha11 have the right to examine, upon written notice to the telecommunications local exchange service provider, no more than once per calendar year, those records necessary to verify the correctness of the compensation paid pursuant to this contract franchise ordinance.
SECTION 6: As a condition of this contract franchise ordinance, SBC Kansas 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 Kansas’ right to challenge in good faith such requirements as established by the FCC, KCC or other City Ordinance. SBC Kansas shall also comply with all applicable laws, statutes and/or ordinances, subject to SBC Kansas’ right to challenge in good faith such laws, statutes and/or ordinances.
SECTION 7. SBC Kansas shall construct, maintain and operate poles, conduit, cable, switches and related appurtenances and facilities that shall be laid or installed under this grant shall be so located and laid as not to obstruct or interfere with any water pipes, drains, sewers, or other structures already installed. SBC Kansas shall provide, prior to commencing work, information to the City concerning work to be performed in the streets, avenues, bridges, parks, parking areas, and public places of the City. The City may require that information be provided on its standard permit form, but without requiring approval, consent, or fees. In the event of an emergency, SBC Kansas shall have the right to commence work without having first provided such form( s).
SECTION 8. SBC Kansas shall, in doing work in the public right-of-way in connection with its said communications system and services shall avoid, so far as may be practicable, interfering with the use of any street, alley, avenue, or other public thoroughfare.
SECTION 9: SBC Kansas shall repair all damage to the public right-of-way caused by the activities of SBC Kansas, or any agent affiliate, employee, or subcontractor of SBC Kansas, while occupying, installing, repairing or maintaining facilities in a public right-of-way and to return the public right-of-way to its functional equivalence before the damage pursuant to the reasonable requirements and specifications of the City. If SBC Kansas fails to make the repairs required by the City, the City may effect those repairs and charge SBC Kansas the cost of those repairs. If the City incurs damages as a result of a violation of this subsection, then the City shall have the remedies provided in KS.A. 17-1902, as amended.
SECTION 10: This contract franchise ordinance does not provide SBC Kansas the right to provide cable service as a cable operator (as defined by 47 U.S.C. § 522 (5)) within the City. Upon SBC Kansas’ 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 Kansas. SBC Kansas 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 11: If requested by the City, in order to accomplish construction and maintenance activities directly related to improvements for the health, safety, and welfare of the public, SBC Kansas 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 Kansas’ failure to timely relocate or adjust its facilities shall be borne by SBC Kansas.
SECTION 12: Permission is hereby granted to SBC Kansas to trim trees upon and overhanging streets, alleys, sidewalks and public places of said city so as to prevent the branches of such trees from coming on contact with SBC Kansas’ facilities, all the said trimming shall comply with all applicable laws, statutes and/or ordinances.
SECTION 13: Nothing herein contained shall be construed as giving SBC Kansas any exclusive privileges, nor shall it affect any prior or existing rights of SBC Kansas to maintain a telecommunications system within the City.
SECTION 14: SBC Kansas 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 15: Any required or permitted notice under this contract franchise ordinance shall be in writing. Notice upon the City shall be delivered to the city clerk by first class United States mail or by personal delivery. Notice upon SBC Kansas shall be delivered by first class United States mail or by personal delivery to:
Southwestern Bell Telephone, L.P.
Barb Schmidtlein Shipman
Area Manager - External Affairs
220 E 6th Street, Room 505
Topeka, Kansas 66603
SECTION 16: The failure of either party to enforce and remedy any noncompliance of the terms and conditions of this contract franchise ordinance shall not constitute a waiver of rights nor a waiver of the other party’s obligations as provided herein.
SECTION 17: Each and every provision hereof shall be subject to acts of God, fires, strikes, riots, floods, war and other disasters beyond SBC Kansas’ or the City’s control.
SECTION 18: SBC Kansas has entered into this contract franchise ordinance as required by the City and KS.A 2002 Supp. 12-2001. If any clause, sentence, section, or provision of K.S.A 2002 Supp. 12-2001, and amendments thereto, shall be held to be invalid by a court of competent jurisdiction, either the City or SBC Kansas may elect to terminate the entire contract franchise ordinance. In the event a court of competent jurisdiction invalidates K.S.A. 2002 Supp. 12-2001, and amendments thereto, if SBC Kansas is required by law to enter into a contract franchise ordinance with the City, the parties agree to act in good faith in promptly negotiating a new contract franchise ordinance.
SECTION 19: In entering into this contract franchise ordinance, neither the City’s nor SBC Kansas present or future legal rights, positions, claims, assertions or arguments before any administrative agency or court of law are in any way prejudiced or waived. By entering into the contract franchise ordinance, neither the City nor SBC Kansas waive any rights, but instead expressly reserve any and all rights, remedies, and arguments the City or SBC Kansas may have at law or equity, without limitation, to argue, assert, and/or take any position as to the legality or appropriateness of this contract franchise ordinance or any present or future laws, ordinances, and/or rulings which may be the basis for the City and SBC Kansas entering into this contract franchise ordinance.
SECTION 20: This contract franchise 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.
(10-27-2003)