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03-10124 Agr Southwestern Bell(Published in the Salina Journal on January 3, 2003) ORDINANCE NUMBER 03-10124 AN ORDINANCE GRANTING TO SOUTHWESTERN BELL TELEPHONE COMPANY L.P., d/b/a SBC KANSAS, A FRANCHISE FOR THE RIGHT TO CONSTRUCT, OPERATE, MAINTAIN AND EXTEND A TELECOMMUNICATIONS SYSTEM IN THE CITY OF SALINA, KANSAS, AND REPEALING ORDINANCE NUMBER 98-9894. Be it ordained by the governing body of the City of Salina, Kansas: SECTION 1. Grant of Franchise. Pursuant to K.S.A. 2002 Supp. 12-2001, a contract franchise ordinance is hereby granted to Southwestern Bell Telephone Company L.P., d/b/a SBC Kansas (SBC), a telecommunications local exchange service provider providing local exchange service within the City of Salina, Kansas ("City"), subject to the provisions contained hereafter. The term of this ordinance shall be for a period beginning April 1, 2003, and ending December 31, 2006. Compensation for said contract franchise ordinance shall be established pursuant to Section 3 of this ordinance. SECTION 2. Definitions. For the purpose of this contract franchise ordinance, the following i! 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 served 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 services 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 K.S.A. 2002 jI 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 exchange service provider within that city for each month in that calendar quarter. "City Regulations" shall refer to all laws, rules, and regulations of the City, whether established by ordinance, resolution, or other authorized method. "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 of 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. "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 nonwire 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 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. '; SECTION 3. Compensation. Compensation made pursuant to this contract franchise 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 partial calendar year of this contract franchise ordinance, said compensation shall be a sum equal to 5% of gross receipts. j Thereafter, compensation for each calendar year of the remaining term of the contract franchise ordinance shall continue to be based on a sum equal to 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 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 prior to ninety (90) days before the end of the calendar year. Beginning j 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 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 contract franchise ordinance. SECTION 5. Compliance with Law. As a condition of this contract franchise 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 regulations. SBC shall also comply with all applicable laws, statutes and/or city regulations, subject to SBC's right to challenge in good faith such laws, statutes and/or city regulations. SECTION 6. Not a Cable Operator. This contract franchise 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. Facilities. SBC shall have the right pursuant to this contract franchise ordinance to construct, maintain and operate poles, conduit, cable, switches and related appurtenances and facilities along, across, upon and under any public right-of-way. Such appurtenances and facilities shall be so constructed and maintained as not to obstruct or hinder the usual travel or public safety on such public ways or obstruct the legal use by other utilities. SECTION 8. Limited to Public Right -of -Way. Nothing in this contract franchise ordinance shall be interpreted as granting SBC 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. SECTION 9. Right -of -Way Management. The authority of SBC to use and occupy 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. Nothing herein shall be construed to limit the authority of the City to require a competitive infrastructure provider to enter into a contract franchise ordinance. SECTION 10. Limitation on Use of Portion of Right -of -Way. The City shall have the authority to prohibit the use or occupation of a specific portion of public right-of-way by SBC due to a reasonable public interest necessitated by public health, safety and welfare so long as the authority is exercised in a competitively neutral manner and is not unreasonable or discriminatory. A reasonable public interest shall include the following: (1) The prohibition is based upon a recommendation of the city engineer, is related to public health, safety and welfare and is nondiscriminatory among providers, including incumbent providers; (2) SBC has rejected a reasonable, competitively neutral and nondiscriminatory justification offered by the City for requiring an alternate method or alternate route that will result in neither unreasonable additional installation expense nor a diminution of service quality; (3) the City reasonable determines, after affording the provider reasonable notice and an opportunity to be heard, that a denial is necessary to protect the public health and safety and is imposed on a competitively neutral and nondiscriminatory basis; or (4) the specific portion of the public right-of-way for which SBC seeks use and occupancy is environmentally sensitive as defined by state or federal law or lies within a previously designated historic district as defined by local, state or federal law. SECTION 11. Right -of -Way Regulations. SBC shall comply with all laws and city regulations governing the use of public right-of-way. SECTION 12. Repair of Damage to Right -of -Way. The City requires SBC to repair all damage to the public right-of-way caused by the activities of SBC, or of any agent affiliate, employee, or subcontractor of SBC, while occupying, installing, repairing or maintaining facilities in a public right-of-way and to return the right-of-way, to its functional equivalence before the damage pursuant to the reasonable requirements and specifications of the City. If SBC fails to make the repairs required by the City, the City may effect those repairs and charge SBC the costs of those repairs. If the City incurs damages as a result of a violation of this subsection, then the City shall have a cause of action against SBC for violation of this subsection, any may recover its damages, including reasonable attorney fees, if SBC is found liable by a court of competent jurisdiction. SECTION 13. 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 such providers 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; (2) an excavation fee for each street or pavement cut to recover the costs associated with construction and repair activity of SWTB, their assigns, contractors and/or subcontractors with the exception of construction and repair activity required pursuant to subsection (1) of K.S.A. 2002 Supp. 17-1901 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. Such excavation fee is expressly limited to activity that results in an actual street or pavement cut; (3) inspection fees to recover all reasonable costs associated with city inspection of the work of SBC in the right-of-way; _ (4) repair and restoration costs associated with repairing and restoring the public right-of- way because of damage caused by SWTB , its assigns, contractors, and/or subcontractors in the right-of-way; and (5) a performance bond, in a form acceptable to the City, from a surety licensed to conduct surety business in state of Kansas, insuring appropriate and timely performance in the construction and maintenance of facilities located in the public right-of-way. SECTION 14. Indemnification and Hold Harmless. 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 SBC, 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 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 SBC and does not create or grant any rights, contractual or otherwise, to any other person or entity. SECTION 15. Notification of Claims. SBC or the City shall promptly advise the other in writing of any known claim or demand against SBC or the City related to or arising out of SBC's activities in a public right-of-way. SECTION 16. Removal or Relocation of Facilities. 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 17. Tree Trimming. Permission is hereby granted to SBC to trim trees upon any overhanging streets, alleys, sidewalks and public places of said city so as to prevent the branches of such trees from coming in contact with SBC's facilities, all the said trimming shall comply with all applicable laws, statutes and/or city regulations. SECTION 18. Non-exclusive Franchise. 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 19. 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 20. Notices. Any required or permitted notice under this contract franchise ordinance shall be in writing. Notice upon the City shall be delivered by first class United States mail or by personal delivery to: City Manager City of Salina P.O. Box 736 Salina, KS 67402-0736 Notice upon SBC shall be delivered by first class United States mail or by personal delivery to: SBC Kansas �i Director -Municipal Affairs 220 E. 6t'' Street, Room 505 Topeka, KS 66603 SECTION 21. Failure to Enforce. 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 22. 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 23. Applicable Law. 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. SECTION 24. Repealer. Ordinance Number 98-9894 as extended pursuant to Ordinance Number 02-10121 is hereby repealed effective April 1, 2003. SECTION 25. Effective Date. Following the adoption of this ordinance and its and publication in the official city newspaper, this ordinance shall be in full force and effect from and after April 1, 2003. Introduced: January 13, 2003 Passed: January 27, 2003 [SEAL] ATTEST: Lieu Arm Nicola, City Clerk stin . Sea on, Mayor AS TO FORM: ,,4 ,;,- Bengtson, ACCEPTANCE ORDINANCE NO. 03-10124 WHEREAS, the governing body of the City of Salina, Kansas, did on the 27th day of January, 2003, adopt and pass an ordinance entitled: "AN ORDINANCE GRANTING TO SOUTHWESTERN BELL TELEPHONE, L.P. A TELEPHONE FRANCHISE AND THE RIGHT TO CONSTRUCT, OPERATE AND MAINTAIN TELECOMMUNICATIONS FACILITIES WITHIN THE CORPORATE LIMITS OF THE CITY OF SALINA, KANSAS." WHEREAS, said ordinance was duly signed by the mayor of said City of Salina, Kansas, and the seal of said City affixed and attested thereto by the City Clerk of the said City, Salina, and WHEREAS, said ordinance further provided that it should be in full force and effect after its adoption and publication and its acceptance by the Southwestern Bell Telephone, L.P. NOW, THEREFORE, in compliance with the terms of said ordinance so enacted and so approved and attested, the Southwestern Bell Telephone, L.P. hereby accepts said ordinance and files this its written acceptance with the City Clerk of said City in his said office. I— Dated this Z day of June, 2003. SBC Kansas Acceptance filed in the office of the City Clerk of Salina, Kansas, this day of, 2003. Ur►G.. It - City Clerk