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 WHITEWATER, KANSAS.
BE IT ORDAINED BY THE
GOVERNING BODY OF THE CITY OF WHITEWATER, KANSAS:
SECTION 1. Pursuant to
K.S.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 Whitewater, Kansas (“City”), subject to the
provisions contained hereafter. The initial term of this ordinance shall be for
a period beginning October 1, 2005, and ending September 30, 2010. Compensation
for said contract franchise ordinance shall be established pursuant to Section
3 of this ordinance.
SECTION 2. For the
purpose of this contract franchise ordinance, any reference to the terms “Access
line”, “Access line count”, “Access line fee” or “Access line remittance”,
shall have the statutory definitions set forth in K.S.A. 12-2001. The following
words and phrases and their derivations shall have the following meaning:
“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, privateline 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.
“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.
“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. Compensation
made pursuant to this contract franchise ordinance shall be paid on a quarterly
basis without invoice or reminder from the City and paid not later than
forty-five (45) days after the end of the remittal period. For the first year
of this contract franchise ordinance, said compensation shall be a sum equal to
5 percent (5%) of gross receipts. 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 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. Any increased access line fee or
gross receipt fee shall be in compliance with the public notification
procedures set forth in subsections (l) and (m) K.S.A. 2002 Supp. 12-2001.
SECTION 4. 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. 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 6. 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 contract franchise ordinance 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. 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 8. 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 9. 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.
Cindy
Zapletal
Director-External
Affairs
1640
Fairchild Avenue, First Floor
Manhattan,
Kansas 66502
SECTION 10. 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 11. Force
Majeure. 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 12. SBC Kansas
has entered into this contract franchise ordinance as required by the City and
K.S.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 13. 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 14. This
contract franchise ordinance is made under and in conformity with the laws of
the State of Kansas. No such contract franchise ordinance shall be effective until
the ordinance granting the same has been adopted as provided by law.
(05-09-2005)