AN ORDINANCE GRANTING TO SOUTHWESTERN BELL TELEPHONE COMPANY, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE AND THE RIGHT TO CONSTRUCT, OPERATE, MAINTAIN AND EXTEND A TELECOMMUNICATIONS SYSTEM IN THE CITY OF BENTON, KANSAS, PRESCRIBING THE TERMS OF SAID GRANT AND RELATING THERETO; AND REPEALING ORDINANCE 149 AND ALL OTHER ORDINANCES AND RESOLUTIONS AND PARTS THEREOF INCONSISTENT OR IN CONFLICT WITH THE TERMS HEREOF. BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF BENTON, KANSAS:
Section 1 Definitions. For purposes of this ordinance, the following words and phrases shall have the meanings given herein:
(a) "Access lines" shall mean the following billed main lines and trunks, whether provided on a retail or wholesale basis: residential lines; business lines; ISDN lines (channels); PBX trunks; Centrex or Centrex-like stations; simulated exchange access lines provided by a central office based switching arrangement where all stations served by such simulated exchange access lines are used by a single customer of the provider of such arrangement; where stations are served by simulated exchange access lines provided by a central office based switching arrangement and the stations served are not used by a single customer of the provider of such arrangement, each station shall constitute an access line; and pay phone lines. "Access Line" shall include wireless telecommunication services subject to 47 C.F.R. Part 24. "Access Line" shall not including the following: wireless telecommunication services subject to 47 C.F.R. Part 22; unbundled loop facilities; and special access services.
(b) "City" shall mean the City of Benton, Kansas.
(c) "Cable Service" means the one way transmission to subscribers of video programming, or other programming service, and subscriber interaction, if any, which is required for selection and use of such video programming or other programming service. Cable Service does not include point to point, point to multipoint, and switched video services that Telephone Company has historically offered or other similar services that Telephone Company may in the future offer.
(d) "Facilities" shall mean telephone and telecommunication lines, conduits, fiber optic cables, wires, cables, pipes, poles, towers, vaults, and appliances, either under or above ground.
(e) "Public improvement" shall mean any existing or contemplated public facility, building, or capital improvement project, including without limitation streets, alleys, sidewalks, sewer, water, drainage, rights-of-way improvement, and public projects.
(f) "Public project" shall mean any project planned or undertaken by the City or any governmental entity for construction, reconstruction, maintenance or repair of public facilities or improvements or any other purpose of a public nature.
(g) "Rights-of-way" shall mean present and future streets, alleys, rights-of-way, and public easements, including easements dedicated in plats of the City of Benton, Kansas.
(h) "Street rights-of-way" shall mean the entire width between property lines of land, property or an interest therein of every way publicly maintained where any part thereof is open to the use of the public for purposes of vehicular traffic, including street, avenue, boulevard, highway, expressway, alley or any other public way for vehicular travel by whatever name.
(i) "Telecommunications" - The 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.
(j) "Telecommunications Service" - The offering of telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the facilities used.
(k) "Telephone Company" shall mean Southwestern Bell Telephone Company, its successors and assigns.
Section 2 Grant.
(a) There is hereby granted to Telephone Company the right, privilege and franchise to construct, maintain, extend and operate its facilities, in, through and along the rights-of-way for the purpose of supplying Telecommunications Services to the City and the inhabitants thereof for the full term of this franchise; subject, however, to the terms and conditions herein set forth.
(b) This franchise does not provide the Telephone Company the right to provide "Cable Service" to City and inhabitants thereof. For purposes of this ordinance, "Cable Service" is defined as the one-way transmission to subscribers of video programming or other programming services, and subscriber interaction, if any, which is required for the selection of such video programming or other programming service; but "Cable Service" does not include point to point, point to multi-point, and switched video services that Telephone Company has historically offered or other similar services that Telephone Company may in the future offer. Nothing in this franchise is intended to preclude the City from seeking, or authorize the City to seek, a franchise from any subsidiary, affiliate, or third party providing "Cable Services." Telephone Company and City agree that nothing in this franchise is intended to authorize the City to seek from Telephone Company nor to require Telephone Company to obtain a franchise to offer "Open Video Systems" as that term is used in section 653 of the Telecommunications Act of 1996 (codified at 47 U.S.C. 573). Telephone Company and City further agree, however, that this ordinance does not authorize Telephone Company to offer "Open Video Systems" without paying the fee on the gross revenues of the system operator for the provision of cable service in lieu of a franchise fee, pursuant to and in the manner described in 47 U.S.C. 573(c) (2) (b) and without complying with FCC regulations promulgated pursuant to 47 U.S.C. 573.
(c) Upon written request from Telephone Company, the City agrees to begin negotiations in good faith with Telephone Company within thirty (30) days to provide Telephone Company a franchise to provide "Cable Service" to the City and inhabitants thereof on terms no more burdensome than the franchisees) granted to other providers of "Cable Service" with the City."
Section 3 Use of rights a way. In the use of rights-of-way under this franchise, the Telephone Company shall be subject to all rules, regulations, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power. In addition, the Telephone Company shall be subject to all rules, regulations, policies, resolutions, and ordinances now or hereafter adopted or promulgated by the City relating to permits and fees, sidewalk and pavement cuts, utility location, construction coordination, beautification, and other requirements on the use of rights-of-way and shall comply with the following:
(a) The Telephone Company's use of rights-of-way shall in all matters be subordinate to the City's use of rights-of-way for any public purpose. The Telephone Company shall coordinate placement of its facilities in a manner which minimizes adverse impact on public improvements, as reasonably determined by the City. Where placement is not otherwise regulated, facilities shall be placed with adequate clearance from such public improvements so as not to impact or be impacted by such public improvement.
(b) All earth, materials, sidewalks, paving, crossings, utilities, public improvements, or improvements of any kind, injured or removed by the Telephone Company in its activities under this franchise, shall be fully repaired or restored promptly by the Telephone Company at its sole expense and to the reasonable satisfaction of the City or owner thereof.
(c) All facilities constructed, replaced, or relocated in the right-of-way after the date hereof shall be placed underground unless otherwise agreed to by the City. Where there are obstructions in the right-of-way such as trees, shrubs, other utilities, commercial signs, man-made structures, or other like obstructions which make the cost of such underground burial unreasonable, the Telephone Company may request waiver of this requirement, in which event the City will not unreasonably withhold consent. Any vaults, boxes, pedestals, and similar facilities placed above ground in street right-of-way shall be located behind the sidewalk where feasible.
(d) The Telephone Company shall keep and maintain accurate records and as-built drawings depicting accurate horizontal and vertical location of all facilities constructed, reconstructed, or relocated in the street right-of-way after the date hereof and provide location information regarding specific future project locations to the City upon request. Where such information is available electronically, upon request from the City, Telephone Company agrees to provide such information in an electronic format. (City agrees to use information only to locate utility facilities in connection with municipal projects and further agrees not to disclose such information to anyone other than City employees requiring such information to locate utility facilities in connection with municipal projects, except as required by law. Telephone Company and City agree that such information is confidential and proprietary and agree that such information shall remain the sole property of the Telephone Company and agree that pursuant to K.S.A. 45-221 (12), (18), as amended, such information does not constitute public records subject to K.S.A. 45-218, as amended. In the event that City is required by law to disclose such information, City shall provide the Telephone Company seven (7) days advance notice of its intended disclosure of such information and shall take such action as may be reasonably required to cooperate with the Telephone Company to safeguard such information. The Telephone Company agrees to indemnify and hold the City harmless from any and all penalties or costs, including attorney's fees, arising from the actions of the Telephone Company, or of the City at the written request of the Telephone Company, in seeking to safeguard the confidentiality of information provided by Telephone Company to City under this section. In the event such information is required by force of law to be publicly disclosed, the Telephone Company shall have no further obligation under this section to provide the City with such information). Such facilities shall be horizontally and vertically located at least every 100 feet and at any other alignment change. All points of facilities shall be horizontally located from street centerline, or section or quarter section lines or corners. Vertical locations or all points of facilities shall consist of elevations in either City datum or United States Geological Survey datum.
(e) All work performed in the traveled way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected. Such signing shall be in conformance with the latest edition of the Federal Highway Administration's Standards and Guideline for Work Zone Traffic Control, unless otherwise agreed to by the City.
(f) The Telephone Company shall notify the City not less than three (3) working days in advance (such notice to be adequate for timely notice on the governing body agenda under City procedures) of any construction, reconstruction, repair, or relocation of facilities which would require any street closure which reduces traffic flow to less than two lanes of moving traffic. Except in the event of an Emergency, as reasonably determined by the Telephone Company, no such closure shall take place without prior authorization from the City.
(g) The Telephone Company shall cooperate promptly and fully with the City and take all reasonable measures necessary to provide accurate and complete information regarding the nature and horizontal and vertical location of its facilities located within rights-of-way when requested by the City or its authorized agents for a public project. Such location and identification shall be at the sole expense of the Telephone Company without expense to the City, its employees, agents, or authorized contractors. The Telephone Company shall designate and maintain a local agent, familiar with the facilities, who is responsible for satisfying information needs of the City and other users of the rights-of-way.
(h) The Telephone Company shall promptly remove, relocate, or adjust any facilities located in rights-of-way if reasonably necessary and directed by the City for any publicly-funded improvement or project. Such removal, relocation, or adjustment for a particular public project shall be performed by the Telephone Company once at its sole expense without expense to the City, its employees, agents, or authorized contractors and shall be specifically subject to rules and regulations of the City pertaining to such. If additional removal, relocation, or adjustment is the result of the inaccurate or mistaken information of the Telephone Company, the Telephone Company shall be responsible for such at its sole expense.
(i) It shall be the responsibility of the Telephone Company to take adequate measures to protect and defend its facilities in the rights-of-way from harm or damage. If the Telephone Company fails to accurately or timely locate facilities when requested, it has no claim for costs or damages against the City and its authorized contractors unless such party is solely responsible for the harm or damage by its negligence or intentional conduct. Telephone Company shall be responsible to the City and its agents, representatives, and authorized contractors for all damages including, but not limited to, delay damages, repair costs, down time, construction delays, penalties or other expenses of any kind arising out of the failure of the Telephone Company to perform any of its obligations under this agreement unless the damaged party is solely responsible for the harm or damage by its negligence or intentionally caused harm. However, 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 Telephone Company facilities.
(j) The Telephone Company, on the request of any applicant, shall remove or raise or lower its wires temporarily to permit the moving of houses or other structures. The expense of such temporary removal, raising or lowering of wires shall be paid by the party or parties requesting the same, and the Telephone Company may require such payment in advance. The Telephone Company shall be given not less than fifteen (15) days' written notice from the applicant detailing the time and location of the moving operations, and not less than twenty-four (24) hours' advance notice from the applicant advising of the actual operation. The City shall not be liable for any such expense or notice requirement for the moving of houses or structures by the City or its contractors.
(k) Permission is hereby granted to the Telephone Company 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 in contact with the wires and cables of the Telephone Company, all of said trimming to be done under the supervision and direction of any City officials to whom said duties have been or may be designated in accordance with Benton City Code.
(l) All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of the facilities in the rights-of-way shall be in accordance with applicable present and future federal, state, and City laws and regulations, including but not limited to the most recent editions of the National Electrical Code, the National Electrical Safety Code, and the Fiber Optic Cable Installation Standard of the Telecommunications Industry Committee, or such substantive equivalents as may hereafter be adopted or promulgated. It is understood that the standards established in this paragraph are minimum standards and the requirements established or referenced in this ordinance may be additional to or stricter than such minimum standards.
(m) The City encourages the conservation of right-of-way by the sharing of space by all utilities. To the extent required by Federal or State law, the Telephone Company shall permit any other franchised entity by appropriate contract or agreement negotiated by the parties to use any and all facilities constructed or erected by the Telephone Company. All said agreements and installations shall be subject to all existing and future ordinances and regulations of the City. Telephone Company agrees that it will not grant any entity rights to occupy the rights-of-way without providing notice to the City. Nothing in this section shall be construed as requiring Telephone Company to provide City notice when it provides Telecommunications Services to any entity.
Section 4 Indemnity and hold harmless. The Telephone Company shall hold and save the City, its officers, employees, agents, and authorized contractors, harmless from and against all claims, damages, expense, liability and costs including attorney fees, to the extent occasioned in any manner by the Telephone Company's occupancy of rights-of-way, except to the extent otherwise specified in section 3(i). In the event a claim shall be made or an action shall be instituted against the City growing out of such occupancy of the right-of-way by facilities of the Telephone Company, then upon notice by the City to the Telephone Company, the Telephone Company will assume liability for the defense of such actions at the cost of the Telephone Company, subject to the option of the City to appear and defend, at its own cost, any such case.
Section 5 Payments and charges. The payments herein provided shall be in lieu of all other licenses, taxes, charges, fees or impositions, except that the usual general property taxes and special ad valorem property taxes, and any charges for pavement cuts or other charges based on restoring premises to their same condition, or charges made for privileges which are not in any way connected with telephone business, as such, will be imposed on the Telephone Company, and are not covered by the payments herein. The Telephone Company shall have the privilege of crediting such sums payable hereunder with any unpaid balance due said Telephone Company for telephone service rendered or facilities furnished to said City; provided, that said balance due is liquidated and uncontested.
Section 6 Compensation to city.
(a) In consideration of the franchise granted to Telephone Company by City, Telephone Company agrees to pay to City, a sum of three ($.03) per month for each access line served by Telephone Company for local service within the city limits of City. Compensation required by this franchise shall be paid on an annual basis and shall become due and payable sixty (60) days after the end of the first year with the first payment due March 1, 2001. The number of access lines as of December 31 shall be used to calculate payments to City for the following year.
(b) If during the term of this ordinance any entity provides Local Service in City and provides compensation to City at an amount less than the Telephone Company is required to pay under section 6(a) per month for each access line within the City or provides no compensation to City for each such access line, this ordinance shall require compensation no greater than such amounts, if any, during such time remaining of the term of this ordinance that the lesser compensation, if any, is paid by such other entity.
(c) The parties agree that if federal law or state law is enacted setting forth a maximum allowable level of compensation for franchise rights and if such maximum allowable level is less than the level of compensation required by this ordinance, this ordinance shall require Telephone Company to pay the reduced level required by law the remainder of the term of this ordinance.
(d) If during the term of this ordinance, Telephone Company believes that it is entitled to reduction in compensation pursuant to subsections (b) and (c) above, Telephone Company agrees to notify City in writing and agrees that it will continue to pay City the monthly rate set forth in section 6(a) for each access line served by Telephone Company for Local Service within the city of City until final agreement is reached with the City sixty (60) days following such notice to City.
(e) The Telephone Company shall correctly code all customers that are located within the corporate limits of the City, provided that the City shall give Telephone Company notice of boundary changes as provided below. Coding shall be updated to reflect annexation and other changes in City boundaries, and the associated changes in customers and access lines, within thirty (30) days of the date City provides Telephone Company written notice of the annexation or other changes in boundaries and a listing of addresses affected by such changes. Such notice shall be sent to Southwestern Bell Telephone Company, 823 Quincy, Room 801, Topeka, Kansas 66612. In the event of annexations, Telephone Company may request additional time in writing to re-code customers, which request will not be unreasonably denied.
Section 7 Collection of compensation. This franchise may be terminated by the Telephone Company if authority to collect the amounts of such payments, or part of such payments, from its customers within the City shall be removed, canceled or withdrawn by legislative, judicial or regulatory act. City and Telephone Company acknowledge and agree that Telephone Company has collected and paid City all amounts due and owing for Telephone Company's use and occupancy of City rights-of-way at all times prior to January 1, 2000.
Section 8 Attachment to poles. Nothing in this ordinance shall be construed to require or permit any telephone, electric light or power wire attachments by either the City or the Telephone Company on the poles of the other. If such attachments are desired by the City or the Telephone Company, then a separate non-contingent agreement shall be prerequisite to such attachments.
Section 9 Termination of franchise. In case of failure on the part of Southwestern Bell Telephone, its successors and assigns, to comply with any of the provisions of this ordinance, or if Southwestern Bell Telephone, it successors and assigns, should do or cause to be done any act or thing prohibited by or in violation of the terms of this ordinance, Southwestern Bell Telephone, its successors and assigns, shall forfeit all rights and privileges and granted by this ordinance and all rights hereunder shall cease, terminate and become null and void, provided that said forfeiture shall not take effect until the City of Benton shall carry out the following proceedings. Before the City of Benton proceeds to forfeit said franchise, as in this section prescribed, it shall first serve a written notice upon the manager of Southwestern Bell Telephone Company at its principal office in the City of Benton, and upon the trustee or trustees in any deed of trust securing bonds of Southwestern Bell Telephone of record in Butler County, Kansas, by mailing notice to such trustee or trustees to the address designated in such trust deed, setting forth in detail in such notice the neglect or failure complained of, and Southwestern Bell Telephone shall have ninety days thereafter in which to comply with the conditions of this franchise. If at the end of such ninety-day period the City of Benton deems that the conditions of such franchise have not been complied with by Southwestern Bell Telephone and that such franchise is subject to cancellation by reason thereof, the City of Benton, in order to terminate such franchise, shall enact an ordinance setting out the grounds upon which said franchise or agreement is to be canceled or terminated. If within thirty days after the effective date of said ordinance Southwestern Bell Telephone shall not have instituted an action, either in the District Court of Butler County, Kansas, or some other court of competent jurisdiction to determine whether or not Southwestern Bell Telephone has violated the terms of this franchise and that the franchise is subject to cancellation by reason thereof, such franchise shall be canceled and terminated at the end of such thirty-day period. If within such thirty-day period Southwestern Bell Telephone does institute action, as above provided, to determine whether or not Southwestern Bell Telephone has violated the terms of this franchise and that the franchise is subject to cancellation by reason thereof and prosecutes such action to final judgment with due diligence, then, in that event, in case the court finds that the franchise is subject to cancellation by reason of the violation of its terms, this franchise shall terminate thirty days after such final judgment is rendered.
PROVIDED, however, that the failure of Southwestern Bell Telephone to comply with any of the provisions of this ordinance or the doing or causing to be done by Southwestern Bell Telephone of anything prohibited by or in violation of the terms of this ordinance shall not be a ground for the forfeiture thereof when such act or omission on the part of Southwestern Bell Telephone is due to any cause or delay beyond the control of Southwestern Bell Telephone, its successors and assigns, or to bona fide legal proceedings.
Section 10 Rights and duties of grantee upon expiration of franchise. Upon expiration of this franchise, whether by lapse of time, by agreement between the Telephone Company and the City of Benton, or by forfeiture thereof, the Telephone Company shall have the right to remove from public property any and all of its lines, poles, towers and other appurtenances and equipment used in its said business within a reasonable time after such expiration, but in such event, it shall be the duty of the Telephone Company, immediately upon such removal, to restore the streets, avenues, alleys, parks and other public ways and grounds from which said lines, poles, towers, other appurtenances and other equipment are removed to as good condition as the same were before said removal was effected.
Section 11 Term and termination date. The term of this franchise shall be five (5) years commencing January 1, 2000. The Telephone Company or City, at its option, shall have the right to extend this franchise upon the same terms and conditions for subsequent terms of five (5) years, by providing written notice of its desire to extend the franchise not later than one hundred and eighty (180) days prior to the expiration of the initial term. The Telephone Company or City may reject the additional term by providing written notice within ninety (90) days of receipt of written notice of its desire to extend the franchise. The additional term shall be deemed a continuation of this franchise and not as a new franchise or amendment.
Section 12 Acceptance of terms by the telephone company. The Telephone Company shall have sixty (60) days after the final passage and approval of this ordinance to file with the City Clerk of the City of Benton its acceptance in writing of the provisions, terms and conditions of this ordinance, which acceptance shall be duly acknowledged before some officer authorized by law to administer oaths; and when so accepted the ordinance and acceptance shall constitute a contract between the City of Benton and the Telephone Company subject to the provisions of the laws of the State of Kansas.
Section 13 Right to assign. This franchise shall be assignable only in accordance with the laws of the State of Kansas, as the same may exist at the time when any assignment is made.
Section 14 Conditions of franchise. This contract, franchise, grant and privilege is granted and accepted under and subject to all applicable laws and under and subject to all of the orders, rules and regulations now or hereafter adopted by governmental bodies now or hereafter having jurisdiction, each and every provision hereof shall be subject to Acts of God, fires, strikes, riots, floods, war and other causes beyond the Telephone Company's control. This franchise shall not be exclusive.
Section 15 Invalidity of ordinance. If any clause, sentence, or section of this ordinance shall be held to be invalid, it shall not affect the remaining provisions of this ordinance.
Section 16 Venue. This agreement shall be construed under and in accordance with the laws of the State of Kansas, and all obligations of the parties hereunder are performable in Butler County, Kansas. In the event that any legal proceeding is brought to enforce the terms of this agreement, the same shall be brought in Butler County, Kansas limited to state court action. Nothing in Section 16 shall be construed to limit or restrict Telephone Company right to initiate action in federal court (Kansas District) or to remove a state court action to federal court (Kansas District).
Section 17 Notice. For the purpose of this agreement, notice to the City will be to:
City of Benton
Benton, KS 67017
Notice to the Telephone Company will be to:
Southwestern Bell Telephone
Area Manager-Municipal Affairs
220 E 6th , Room 505
Topeka, KS 66603
Notice will be effective upon delivery by hand delivery or by first class mail to the above address until the City or the Telephone Company notifies the other, in writing, of a change in address.
Section 18 Repeal of ordinance 149. Ordinance 149 shall be canceled, annulled, repealed and set aside.
Section 19 Public purpose. All of the regulations provided in this ordinance are hereby declared to be for a public purpose and the health, safety, and welfare of the general public. Any member of the governing body or City official or employee charged with enforcement of this ordinance, acting for the City in the discharge of his duties, shall not thereby render himself personally liable; and he is hereby relieved from all personal liability for any damage that might accrue to persons or property as a result of any act required or permitted in the discharge of his said duties. Neither the City nor the Telephone Company by accepting this ordinance waives its right to seek all appropriate legal and equitable remedies as allowed by law upon violation of the terms of this ordinance, including seeking injunctive relief in a court of competent jurisdiction.