APPENDIX B – FRANCHISE ORDINANCES\ORDINANCE NO. 1696-16 : TELECOMMUNICATIONS

AN ORDINANCE GRANTING TO SOUTHWESTERN BELL TELEPHONE COMPANY D/B/A AT&T KANSAS, A CONTRACT FRANCHISE FOR THE PROVISION OF TELECOMMUNICATIONS SERVICES IN THE CITY OF KECHI, KANSAS AND PRESCRIBING THE TERMS OF SAID CONTRACT FRANCHISE.

NOW THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF KECHI, KANSAS:

SECTION 1.  DEFINITIONS.

For the purposes of this Ordinance the following words and phrases shall have the meaning given herein. When not inconsistent within the context, words used in the present tense include the future tense and words in the single number include the plural number. The word "shall" is always mandatory, and not merely directory.

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 served by the simulated exchange access lines are used by a single customer of the provider of that 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; and lines providing only data services without voice services processed 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 the City, up to a maximum as set out in K.S.A. 2015 Supp. 12-2001 et seq., and amendments thereto, to be used by Grantee in calculating the amount of Access line remittance.

d.    “Access line remittance” - means the amount to be paid by Grantee to 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 Grantee within the City for each month in that calendar quarter.

e.     “City” - means the City of Kechi, Kansas.

f.     “Contract franchise” - means this Ordinance granting the right, privilege and franchise to Grantee to provide Telecommunications services within the City.

g.     “Facilities” - means telephone and telecommunications lines, conduits, manholes, ducts, wires, cables, pipes, poles, towers, vaults, appliances, optic fiber, and all equipment used to provide Telecommunications services.

h.    “Grantee” - means Southwestern Bell Telephone Company d/b/a AT&T Kansas, an electing carrier and telecommunications service provider providing service and/or operating Facilities within the City.  References to Grantee shall also include, as appropriate, any and all successors and assigns.

i.     “Gross Receipts” -  shall mean only those receipts collected from within the corporate boundaries of the City and that are derived from the following: (1) recurring Local exchange service for business and residence that includes basic exchange service, touch tone, optional calling features and measured local calls; (2) recurring local exchange Access line services for pay phone lines provided by Grantee to all pay phone service providers; (3) local directory assistance revenue; (4) line status verification/ busy interrupt revenue; (5) local operator assistance revenue; (6) nonrecurring Local exchange service revenue which shall include customer service for installation of lines, reconnection of service and charge, for duplicate bills; and (7) revenue received by Grantee from resellers or others that use Grantee's Facilities. 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 Grantee 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, those services shall be included from the date of the offering of those services within the City.

j.     “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.

k.    “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.

l.     “Telecommunications local exchange service provider” - means a local exchange carrier as defined in subsection (h) of K.S.A. 2015 Supp. 66-1,187, and amendments thereto, and a telecommunications carrier as defined in subsection (m) of K.S.A. 2015 Supp. 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.

m.   “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 2.  GRANT OF CONTRACT FRANCHISE.

a.     Subject to the provisions of K.S.A. 2015 Supp. 12-2001, there is hereby granted to Grantee this nonexclusive Contract franchise to provide telecommunications local exchange services to the consumers or recipients of that service located within the corporate boundaries of the City, for the term of this Contract franchise, subject to the terms and conditions of this Contract franchise.

 

b.    The grant of this Contract franchise by the City shall not convey title, equitable or legal, in the Public right-of-way. This Contract franchise does not:

(1)   grant the right to use facilities or any other property, telecommunications related or otherwise, owned or controlled by the City or a third-party, without the consent of such party;

(2)   grant the authority to construct, maintain or operate any Facility or related appurtenance on property owned by the City outside of the Public right-of-way, specifically including, but not limited to, parkland property, City Hall property or public works facility property; or

(3)   excuse Grantee from obtaining appropriate access or attachment agreements before locating its Facilities on property or facilities owned or controlled by the City or a third-party.

c.     As a condition of this grant, Grantee 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 FCC or the Kansas Corporation Commission (KCC). Grantee shall also comply with all applicable laws, statutes and/or city regulations (including, but not limited to those relating to the construction and use of the Public right-of-way or other public property).

d.    Grantee shall not provide any additional services for which a franchise is required by the City without first obtaining a separate franchise from the City or amending this Contract franchise, and Grantee shall not knowingly allow the use of its Facilities by any third party in violation of any federal, state or local law. In particular, this Contract franchise does not provide Grantee the right to provide cable service as a cable operator (as defined by 47 U.S.C. § 522 (5)) within the City.  Grantee 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.

e.     Access to the Public right-of-way shall be  granted and administered in a competitively neutral and nondiscriminatory basis and not in conflict with state or federal law.

SECTION 3.  USE OF PUBLIC RIGHT-OF-WAY.

a.     Pursuant to 2016 Kan.Sess.Law 259-63 (K.S.A. 17-1902), and amendments thereto, and subject to the provisions of this Contract franchise, Grantee has the right to construct, maintain and operate its Facilities along, across, upon and under the Public right-of-way. These Facilities shall be so constructed and maintained as not to obstruct or hinder the usual travel or public safety on those public ways or obstruct the legal use of those public ways by other utilities.

b.    Grantee’s use of the Public right-of-way shall always be subject and subordinate to the reasonable public health, safety and welfare requirements and regulations of the City. The City may exercise its home rule powers in its administration and regulation related to the management of the Public right-of-way; provided that, any such exercise must be competitively neutral and may not be unreasonable or discriminatory, and may not violate any applicable state or federal law, rule or regulation. Grantee and all other right-of-way users shall be subject to all applicable laws and statutes, and/or rules, regulations, policies, resolutions and ordinances adopted by the City, relating to the construction and use of the Public right-of-way.  City shall, pursuant to Section 11 of this Contract franchise, provide notice of the consideration and/or adoption of any rule, regulation, policies, resolutions and ordinances relating to construction in or use of the Public right-of-way, inasmuch as such adoption affects AT&T Kansas’ use of the Public right-of-way.

c.     Grantee shall participate in the Kansas One Call utility location program.

SECTION 4.   COMPENSATION TO THE CITY.

a.     In consideration of this Contract franchise, Grantee agrees to remit to the City a franchise fee of five percent (5%) of Gross Receipts. To determine the franchise fee, Grantee shall calculate the Gross Receipts and multiply those receipts by five percent (5%). Thereafter, subject to subsection (b) hereafter, compensation for each renewal term of this Contract franchise shall continue to be based on a sum equal to five percent (5%) of Gross Receipts, unless the City notifies Grantee prior to ninety days (90) before the end of the term that it intends to decrease the percentage of gross receipts or switch to an Access line fee in the following renewal term ; provided, that the Access line fee shall not exceed the maximum Access line fee allowed by Kansas law. In the event the City elects to change its basis of compensation, nothing herein precludes the City from switching its basis of compensation back; provided the City notifies Grantee prior to ninety days (90) before the end of the term.

b.    Beginning January 1, 2020, and every 36 months thereafter, the City, subject to the public notification procedures set forth in K.S.A. 2015 Supp. 12-2001 (m), and amendments thereto, may elect to adopt an increased Access line fee or Gross Receipts fee subject to the provisions and maximum fee limitations contained in K.S.A. 2015 Supp. 12-2001, and amendments thereto, or may choose to decline all or any portion of any increase in the Access line fee.

c.     Grantee shall pay on a monthly basis without requirement for invoice or reminder from the City, and within 45 days of the last day of the month for which the payment applies, franchise fees due and payable to the City. If any franchise fee, or any portion thereof, is not postmarked or delivered on or before the due date, interest thereon shall accrue from the due date until received, at the applicable statutory interest rate.

d.    No acceptance by the City of any franchise fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of any franchise fee payment be construed as a release of any claim of the City. Any dispute concerning the amount due under this Section shall be resolved in the manner set forth in K.S.A. 2015 Supp. 12-2001, and amendments thereto.

e.     The City shall have the right to examine, upon written notice to Grantee no more often than once per calendar year, those records necessary to verify the correctness of the franchise fees paid by Grantee.

f.     Unless previously paid, within sixty (60) days of the effective date of this Contract franchise, Grantee shall pay to the City a one-time application fee of Five Hundred Dollars ($500.00). The parties agree that this fee reimburses the City for its reasonable, actual and verifiable costs of reviewing and approving this Contract franchise.

g.     The franchise fee required herein shall be in addition to, not in lieu of, all taxes, charges, assessments, licenses, fees and impositions otherwise applicable that are or may be imposed by the City under K.S.A. 2015 Supp. 12-2001 and 2016 Kan.Sess.Laws 259-63 (K.S.A. 17-1902), and amendments thereto. The franchise fee is compensation pursuant to K.S.A. 2015 Supp. 12-2001(j)and shall in no way be deemed a tax of any kind.

h.    Grantee shall remit an Access line (franchise) fee or a Gross Receipts (franchise) fee to the City on those Access lines that have been resold to another telecommunications Local exchange service provider, but in that case the City shall not collect a franchise fee from the reseller service provider and shall not require the reseller service provider to enter a contract franchise ordinance. This Access line (franchise) fee or Gross Receipts (franchise) fee shall be in the same amount or percentage as the franchise fee set forth in subsection 4 a. hereinabove.

SECTION 5.  INDEMNITY AND HOLD HARMLESS.

a.     It shall be the responsibility of Grantee to take adequate measures to protect and defend its Facilities in the Public right-of-way from harm or damage. If Grantee fails to accurately or timely locate Facilities when requested, in accordance with the Kansas Underground Utility Damage Prevention Act, K.S.A. 66-1801 et seq., it has no claim for costs or damages against the City and its authorized contractors unless those parties are responsible for the harm or damage caused by their negligence or intentional conduct. The City and its authorized contractors shall be responsible to take reasonable precautionary measures, including calling for utility locations and observing marker posts when working near Grantee’s Facilities.

b.    Grantee 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 herm 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 Grantee, any agent, officer, director, employee, or subcontractor of Grantee, while installing, repairing or maintaining Facilities in the Public right-of-way.

c.     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 Grantee and the City are found jointly liable by a court of competent jurisdiction, liability shall be apportioned comparatively in accordance with the laws of this state without, however, waiving any governmental immunity available to the City 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 Grantee and does not create or grant any rights, contractual or otherwise, to any other person or entity.  Notwithstanding the foregoing, nothing herein shall in any way obligate AT&T Kansas for the negligence of any other third party or any portion of any harm caused by the same.

d.    Grantee or City shall promptly advise the other in writing of any known claim or demand against Grantee or the City related to or arising out of Grantee’s or the City’s activities in the Public right-of-way.

SECTION 6.  INSURANCE REQUIREMENT AND PERFORMANCE BOND

a.     During the term of this Contract franchise, Grantee shall obtain and maintain insurance coverage at its sole expense, with insurers rated at least A- VII by AM Best and that are authorized or permitted to do business in the State of Kansas. Should Grantee elect to use the services of an affiliated captive insurance company for this purpose, that company shall possess a certificate of authority from the Kansas Insurance Commissioner. Grantee shall provide not less than the following insurance:

(1)   workers’ compensation as provided for under any worker’s compensation or similar law in the jurisdiction where any work is performed with an employers’ liability limit for bodily injury of  $1,000,000 each accident, by disease policy limits and by disease each employee.

(2)   commercial general liability, written on Insurance Services Office (ISO) policy form CG 00 01 or its equivalent, including coverage for contractual liability and products completed operations liability on an occurrence basis and not a claims made basis, with a limit of not less than Two Million Dollars ($2,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage liability. The City shall be included as an additional insured as its interests may appear with respect to liability arising from Grantee’s operations under this Contract franchise.

b.    As an alternative to the requirements of subsection (a), Grantee may self-insure and, as such, Grantee has the ability to provide coverage in an amount not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in aggregate, to protect the City from and against  claims by any person whatsoever for loss or damage from personal injury, bodily injury, death or property damage occasioned by Grantee, or alleged to so have been caused or occurred as respects this Contract franchise.  In the event Grantee elects to self-insure its obligation to include City as an additional insured, the following provisions shall apply:

(1)   City shall promptly and no later than thirty (30) days after notice thereof provide Grantee with written notice of any claim, demand, lawsuit or the like, for which it seeks coverage pursuant to the section and provide Grantee with copies of any demands, notices, summonses or legal papers received in connection with such claim, demand, lawsuit or the like;

(2)   City shall not settle any such claim, demand, lawsuit or the like with the prior written consent of Grantee; and,

(3)   City shall fully cooperate with Grantee in the defense of the claim, demand, lawsuit or the like.

c.     Grantee shall, as a material condition of this Contract franchise, prior to the commencement of any work and prior to any renewal thereof, deliver to the City a certificate of insurance or evidence of self-insurance, satisfactory in form and content to the City, evidencing that the above insurance is in force.  Grantee shall timely notify the City if the insurance is cancelled or materially changed with respect to areas and entities covered. Grantee shall make available to the City on request a redacted policy declarations page and, if a claim has been denied by Grantee or its insurer, or a reservation of rights letter has been issued, Grantee shall make available a copy of the relevant policy.

d.    Grantee shall, as a material condition of this Contract franchise, prior to the commencement of any work and prior to any renewal thereof, deliver to the City a construction bond in the amount of Fifty Thousand Dollars ($50,000), to ensure the appropriate and timely performance in the construction and maintenance of Facilities located in the Public right-of-way. The required performance bond must be issued by a surety company authorized to transact business in the State of Kansas, and satisfactory to the City Attorney in form and substance.

SECTION 7.  REVOCATION AND TERMINATION.

In case of failure on the part of Grantee to comply with any of the provisions of this Contract franchise, or if Grantee should do or cause to be done any act or thing prohibited by or in violation of the terms of this Contract franchise, Grantee shall forfeit all rights, privileges and franchise granted herein, and all these rights, privileges and franchise hereunder shall cease, terminate, and become null and void, and this Contract franchise shall be deemed revoked or terminated, provided that, the revocation or termination, shall not take effect until the City has completed the following procedures: Before the City proceeds to revoke and terminate this Contract franchise, it shall first serve a written notice upon Grantee, setting forth in detail the neglect or failure complained of, and Grantee shall have sixty (60) days thereafter in which to comply with the conditions and requirements of this Contract franchise. If at the end of the sixty (60) day period the City deems that the conditions have not been complied with, the City shall take action to revoke and terminate this Contract franchise by an affirmative vote of the City Council present at the meeting and voting, setting out the grounds upon which this Contract franchise is to be revoked and terminated; provided, to afford Grantee due process, Grantee shall first be provided reasonable notice of the date, time and location of the City Council’s consideration, and shall have the right to address the City Council regarding this matter. Nothing herein shall prevent the City from invoking any other remedy that may otherwise exist at law. Upon any determination by the City Council to revoke and terminate this Contract franchise, Grantee shall have thirty (30) days to appeal that decision to the District Court of Sedgwick County, Kansas. This Contract franchise shall be deemed revoked and terminated at the end of this thirty (30) day period, unless Grantee has instituted an appeal. If Grantee does timely institute an appeal, the revocation and termination shall remain pending and subject to the court’s final judgment. Provided, however, that the failure of Grantee to comply with any of the provisions of this Contract franchise or the doing or causing to be done by Grantee of anything prohibited by or in violation of the terms of this Contract franchise shall not be a ground for the revocation or termination thereof when that act or omission on the part of Grantee is due to any cause or delay beyond the control of Grantee or to bona fide legal proceedings.

SECTION 8.  RESERVATION OF RIGHTS.

a.     The City and Grantee hereby acknowledge that the City, in accordance with 47 U.S.C. § 253, may not prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.  To the extent permitted by law, the City specifically reserves its right and authority as a public entity with responsibilities towards its citizens to participate to the full extent allowed by law in proceedings concerning Grantee’s rates and services to ensure the rendering of efficient Telecommunications service and any other services at reasonable rates, and the maintenance of Grantee’s property in good repair.

b.     In granting its consent hereunder, the City does not in any manner waive its regulatory or other rights and powers under and by virtue of the laws of the State of Kansas, as the same may be amended; its Home Rule powers and other authority established pursuant to the Constitution of the State of Kansas; nor, any of its rights and powers under or by virtue of present or future ordinances of the City.

c.     In granting its consent hereunder, Grantee does not in any manner waive its regulatory or other rights and powers under and by virtue of the laws of the State of Kansas or applicable federal laws and regulations, as the same may be amended or under the Constitution of the State of Kansas, nor any of its rights and powers under or by virtue of present or future ordinances of the City or any other State or federal laws.

d.     In entering into this Contract franchise, neither the City’s nor Grantee’s 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, neither the City nor Grantee waive any rights, but instead expressly reserve any and all rights, remedies, and arguments the City or Grantee may have at law or equity, without limitation, to argue, assert, and/or take any position as to the legality or appropriateness of the Contract franchise or any present or future laws, non-franchise ordinances and/or rulings that may be the basis for the parties entering into this contract franchise.

SECTION 9.  FAILURE TO ENFORCE.

The failure of either the City or the Grantee to insist in any one or more instances upon the strict performance of any one or more of the terms or provisions of this Contract franchise shall not be construed as a waiver or relinquishment for the future of any term or provision, and it shall continue in full force and effect. No waiver or relinquishment shall be deemed to have been made by the City or the Grantee unless that waiver or relinquishment is in writing and signed by both the City and the Grantee.

SECTION 10.  TERM AND TERMINATION DATE.

a.     This Contract franchise shall be effective for a term beginning on the effective date of this Contract franchise and ending on December 31, 2019. Thereafter, this Contract franchise will automatically renew for up to five (5) additional three (3) year terms, unless either party notifies the other party of its intent to terminate the Contract franchise at least ninety (90) days before the termination of the then current term. The additional term shall be deemed a continuation of this Contract franchise and not as a new franchise or amendment.

b.    Upon written request of either the City or Grantee, this Contract franchise shall be renegotiated at any time in accordance with the requirements of state law upon any of the following events: changes in federal, state, or local laws, regulations, or orders that materially affect any rights or obligations of either the City or Grantee, including but not limited to the scope of the Contract franchise granted to Grantee or the compensation to be received by the City hereunder.

c.     If any clause, sentence, section, or provision of K.S.A. 2015 Supp. 12-2001, and amendments thereto, shall be held to be invalid by a court or administrative agency of competent jurisdiction, provided that order is not stayed, either the City or Grantee may elect to terminate the entire Contract franchise. In the event of an invalidity, if Grantee is required by law to enter into a Contract franchise with the City, the parties agree to act in good faith in promptly negotiating a new Contract franchise.

d.    Amendments under this Section, if any, shall be made by contract franchise ordinance as prescribed by statute. This Contract franchise shall remain in effect according to its terms, pending completion of any review or renegotiation provided by this section.

e.     In the event the parties are actively negotiating in good faith a new contract franchise ordinance or an amendment to this Contract franchise upon the termination date of this Contract franchise, the parties by written mutual agreement may extend the termination date of this Contract franchise to allow for further negotiations. This extension period shall be deemed a continuation of this Contract franchise and not as a new contract franchise ordinance or amendment.

SECTION 11. POINT OF CONTACT AND NOTICES

Grantee shall at all times maintain with the City a local point of contact who shall be available at all times to act on behalf of Grantee in the event of an emergency. Grantee shall provide the City with that local contact’s name, address, telephone number, fax number and e-mail address. Emergency notice by Grantee to the City may be made by telephone to the City Administrator/City Clerk or the Public Works Director. All other notices between the parties shall be in writing and shall be made by personal delivery, depositing that notice in the U.S. Mail, first class postage prepaid or Certified Mail, return receipt requested, or overnight delivery by a nationally recognized courier.. All written notices shall be deemed delivered upon actual receipt or refusal of delivery.

The City:

The City of Kechi

220 W. Kechi Rd.

Kechi, KS 67067Attn: City Administrator/City Clerk

Grantee:

Southwestern Bell Telephone Company d/b/a AT&T Kansas

Office of the President

220 SE 6th St., Room 500

Topeka, KS 66603

or to replacement addresses that may be later designated in writing.

SECTION 12.  TRANSFER AND ASSIGNMENT.

This Contract franchise is granted solely to the Grantee and shall not be transferred or assigned without the prior written approval of the City; provided that a transfer or assignment may occur without written consent of the City to a wholly owned parent or subsidiary, or between wholly owned subsidiaries, or to an entity with which Grantee is under common ownership or control, upon written notice to the City.  City and Grantee acknowledge that said City consent shall only be with regard to the transfer or assignment of this Contract franchise, and that, in accordance with Kansas law, the City does not have the authority to require City approval of transfers of ownership or control of the business or assets of Grantee.  In the event of any transfer or assignment of this Contract franchise, Grantee shall timely notify the City of the successor entity, provide a point of contact for the successor entity, and advise the City of the effective date of the transfer or assignment. Additionally, Grantee’s obligations under this Contract franchise with regard to indemnity and insurance shall continue until the transferee or assignee has taken the appropriate measures necessary to assume and replace them, the intent being that there shall be no lapse in any coverage as a result of the transfer or assignment.

SECTION 13.  MOST FAVORED NATION

Pursuant to K.S.A. 2015 Supp. 12-2001 and 2016 Kan.Sess.Laws 259-63 (K.S.A. 17-1902), City represents and warrants that all benefits, terms and conditions in this Contract franchise and relative to Grantee’s deployment of network Facilities and services in the City are and, during the term of this Contract franchise, will continue to be no less favorable to Grantee, in the same or similar circumstance, than those currently being offered to or that may be offered and agreed to by City and any other local exchange carrier, telecommunications carrier, network based broadband or video services provider, competitive infrastructure provider or Internet Protocol services provider, regardless of the form or nature of the agreement with any such other carrier or provider, and that the City shall treat Grantee in a competitively neutral, non-discriminatory manner.

SECTION 14.  CONFIDENTIALITY.

Information provided to the City under K.S.A. 2015 Supp. 12-2001 shall be governed by confidentiality procedures in compliance with K.S.A. 45-215 and K.S.A. 66-1220a, et seq., and amendments thereto. Grantee agrees to indemnify and hold the City harmless from any and all penalties or costs, including attorney’s fees, arising from the actions of Grantee, or of the City at the written request of Grantee, in seeking to safeguard the confidentiality of information provided by Grantee to the City under this Contract franchise.

SECTION 15. ACCEPTANCE OF TERMS.

Grantee shall have sixty (60) days after the final passage and approval of this Contract franchise to file with the City Administrator/City Clerk its acceptance in writing of the provisions, terms and conditions of this Contract franchise, which acceptance shall be duly acknowledged before some officer authorized by law to administer oaths; and when so accepted, this Contract franchise and acceptance shall constitute a contract between the City and Grantee subject to the provisions of the laws of the State of Kansas, and shall be deemed effective on the later of the date Grantee files acceptance with the City or publication of this Contract franchise in accordance with Statute (the “Effective Date”).

SECTION 16. PAYMENT OF PUBLICATION COSTS.

In accordance with Kansas law, Grantee shall be responsible for payment of all costs and expense of publishing this Contract franchise, and any amendments thereof.

SECTION 17. SEVERABILITY.

If any clause, sentence, or section of this Contract franchise, or any portion thereof, shall be held to be invalid by a court of competent jurisdiction, that decision shall not affect the validity of the remainder, as a whole or any part thereof, other than the part declared invalid; provided, however, the City or Grantee may elect to declare the entire Contract franchise is invalidated if the portion declared invalid is, in the judgment of the City or Grantee, an essential part of the Contract franchise.

SECTION 18. FORCE MAJEURE.

Each and every provision hereof shall be reasonably subject to acts of God, fires, strikes, riots, floods, war, terrorism and other disasters beyond Grantee’s or the City’s control.

SECTION 19. EFFECTIVE DATE.

This contract franchise ordinance is made under and in conformity with the laws of the State of Kansas. This contract franchise ordinance shall not be effective until published 1 time per week for 2 consecutive weeks and the passage of 60 days from the date of the meeting of the governing body at which this ordinance was proposed.

(11-10-2016)