AN ORDINANCE GRANTING TO IDEATEK TELCOM, LLC, A CONTRACT FRANCHISE TO CONSTRUCT, OPERATE AND MAINTAIN A TELECOMMUNICATIONS SYSTEM IN THE CITY OF GARDEN PLAIN, KANSAS.
This Contract Franchise (“Franchise or Agreement”) is entered into as of February 5, 2020 (“Effective Date”) by and between the City of Garden Plain, Kansas a municipal corporation (the “City”), and IdeaTek Telecom LLC (“IdeaTek”).
RECITALS
A. IdeaTek owns, maintains, operates and/or controls telecommunications and Internet Facilities serving IdeaTek’s customers. Such Facilities are in public rights-of-way (hereinafter “ROW”).
B. IdeaTek seeks to enter the City of Garden Plain ‘s public right-of-way, and other real property of the City to install, maintain and operate fiber network facilities (the “Network”), so that Idea Tek and/or its underlying customers (the “Customers”) may provide data, telecommunications, Internet, and related services to the residents and visitors of the City (the “Services”).
NOW THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF GARDEN PLAIN, 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 and words in the single number include the plural number.
a. Contract Franchise means this Ordinance granting the right, privilege and franchise to IdeaTek to provide services within the City.
b. Distributed antenna systems (DAS Facility”) means certain components of the Network consisting of distributed antenna systems which may be located on existing or new streetlights, stand-alone poles, third party utility poles, and other structures located on or within the ROW as permitted under this Contract Franchise ordinance, and which will be connected IdeaTek’s Facilities.
c. Facilities means any portion of a system located in, along, over, upon under, or through the right-of-way and may include, without limitation, antenna nodes, poles, equipment cabinets, underground and above ground fiber optic cable, fiber hand holes and enclosures, fiber repeaters and related equipment, DAS Facility, and will include other equipment as technology evolves, in a configuration and at locations to be filed and identified through the City permit process.
d. Gross receipts shall be defined as set forth in K.S.A. 12-2001 (c)(6). Uncollectible and late charges, taxes, surcharges, and other pass-through charges shall not be included within gross receipts.
e. IdeaTek means IdeaTek Telecom, LLC, a competitive telecommunications local exchange service provider providing local exchange, Internet services, and other telecommunications services within the City. References to IdeaTek shall also include as appropriate any and all successors and assigns.
f. Laws or Law as used in this Agreement means any and all statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, permits, approvals or other applicable requirements of the City or other governmental entity or agency having joint or several jurisdiction over the Parties’ activities under this Agreement or having jurisdiction that is applicable to any aspect of this Agreement that are in force on the Effective Date and as they may be enacted, issued or amended during the term of this Agreement.
g. Right-of-way or ROW shall mean only those areas of real property in which the City has dedicated or acquired rights-of-way interests in the real property. It shall include the area on, below, or above the present and future streets, sidewalks, alleys, avenues, roads, highways, parkways, boulevards, or bridges dedicated or acquired as rights-of-way. The term does not include the airwaves above rights-of-way with regard to wireless telecommunications, other non-wire telecommunications, or broadcast service, easements obtained by utilities, or private easements in platted subdivisions or tracts.
Section 2. GRANT OF CONTRACT FRANCHISE.
a. For and in recognition of the mutual consideration set forth in this Agreement, the satisfaction of which is hereby acknowledged, IdeaTek is hereby granted a non-exclusive Contract Franchise to construct, place, replace, repair, maintain, extend and operate its Facilities along, across, upon, under, or in the City’s Rights-of-Way for the purpose of providing a fiber optic network to provide digital data and/or voice transport services to the consumers or recipient within the corporate boundaries of the City, for the term of this Contract Franchise, and subject to the terms and conditions of this Contract Franchise. The City may, in writing, approve amendments to the locations and to the routes of IdeaTek’s Facilities, which approval shall not be unreasonably withheld, conditioned or delayed.
Section 3. USE OF PUBLIC RIGHT-OF-WAY.
a. Pursuant to K.S.A. 17-1902, and amendments thereto, and subject to the provisions of this Agreement, IdeaTek shall have the right to construct, maintain and operate its Facilities along, across, upon and under the public Right-of-Way. Such 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.
b. IdeaTek’s use of the public Right-of-Way shall always be subject to 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. IdeaTek shall be subject to all applicable laws and statutes, and/or rules, regulations, policies, resolutions and ordinances adopted by the City, related to the construction and use of the public Right-of-Way, as may be amended from time to time.
c. IdeaTek shall participate in the Kansas One Call utility location program.
d. Idea Tek may attach its Facilities to an existing utility pole pursuant to a properly executed agreement with the pole owner, provided, however, that any necessary replacement of the pole in order to accommodate the attachment shall be subject to the proper exercise of the City’s police powers, and in no instance shall IdeaTek erect a new pole within an existing aerial pole line absent the City’s prior authorization.
e. It is understood that IdeaTek may build new Facilities in the City which would comply with all encroachment and building permits, applicable City, state and federal specifications, and Laws. The parties agree that in areas where there are existing Facilities, IdeaTek will work with the owner of such existing Facility to collocate the DAS Facility but only when the Facility owner is willing to allow such co-location and where such co-location is feasible from a safety, technical, and engineering perspective.
f. IdeaTek shall comply with the City’s right-of-way maintenance procedures and all other applicable policies, procedures and ordinances, including but not limited to, all registration and permitting requirements.
g. IdeaTek will provide reasonable notice to the City for any new installation and give the City reasonable time to provide input on the placement/location of new Facilities.
h. No notice is necessary to the City for Facility maintenance, except as required by the City’s right-of-way maintenance procedures or unless such maintenance will require street closure, and in such event, IdeaTek will use reasonable efforts to coordinate such closure with the City.
i. Zoning regulations shall not apply to installations within the Public ROW.
j. IdeaTek shall be responsible for any damage, ordinary wear and tear excepted, to street pavement, existing facilities and utilities, curbs, gutters, sidewalks, landscaping, and all other public or private facilities, to the extent caused by IdeaTek’s construction, installation, maintenance, access, use, repair, replacement, relocation, or removal of the Network in the City’s ROW. IdeaTek shall promptly repair such damage and return the City’s ROW and any affected property to a safe and satisfactory condition in accordance with the City’s applicable street restoration standards or to the property owner if not the City. IdeaTek’s obligations under this section 3.j shall survive for one (1) year past the completion of such reparation and restoration work and return of the affected part of the City’s ROW by IdeaTek to the City.
k. As reasonably necessary to accommodate City improvements, IdeaTek shall relocate or adjust any of its Facilities located in a Right-Of-Way upon ninety (90) days written notice from the City. Such relocation or adjustment shall be performed by IdeaTek at its sole cost and expense, without any cost or expense to the City or its authorized agents and contractors and shall be subject specifically to the rules and regulations of the City. Notwithstanding the foregoing, IdeaTek shall not be responsible for the expenses of relocation to accommodate any private party initiated relocation of its Facilities. The expenses attributable to such a project shall be the responsibility of the private party upon the request and appropriate documentation of IdeaTek. Before such expenses may be billed to the private party, IdeaTek shall coordinate with the private party and the City on the design and construction to ensure that the work required is necessary and done in a cost effective manner. IdeaTek may require payment in advance of estimated costs of relocation prior to undertaking any work required to accommodate any installation initiated after the effective date of this Agreement.
Section 4. COMPENSATION TO THE CITY.
a. IdeaTek shall pay right-of-way permitting fees as applicable under City policy.
b. In consideration of this Agreement, Idea Tek agrees to pay to the City a Franchise Fee of five percent (5%) of Gross Receipts as defined in K.S.A. 12-2001(c)(6).
c. The franchise fee is compensation for the use of the Right-of-Way and shall in no way be deemed a tax of any kind.
d. Each franchise fee payment must be accompanied by a statement showing the manner in which the franchise fee was calculated.
e. The franchise fee shall be paid on a quarterly basis. Any franchise fee not postmarked or delivered within 45 days following the end of a quarter shall accrue interest from the due date until received, at the applicable statutory interest rate as defined in K.S.A. 16-201.
Section 5. RECORD REVIEW.
The City shall have the right to examine, upon written notice to IdeaTek, no more than once per calendar year, those records necessary to verify the correctness of the compensation paid pursuant to this Contract Franchise ordinance.
Section 6. RESOLD SERVICES.
Idea Tek shall collect and remit compensation as described in Section 4 on those access lines that have been resold to another telecommunications local exchange service provider.
Section 7. INDEMNITY AND HOLD HARMLESS.
a. It shall be the responsibility of IdeaTek to take adequate measures to protect and defend its 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 such parties are responsible for the harm or damage caused by the gross negligence. 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 IdeaTek’s Facilities.
b. IdeaTek shall indemnify and hold the City and its officers, employees and agents 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 IdeaTek, any agent, officer, director, representative, employee, affiliate or subcontractor of IdeaTek, or its respective officers, agents, employees, directors, or representatives, while installing, repairing, or maintaining Facilities in the public Right-of-Way.
c. IdeaTek or City shall promptly advise the other in writing of any known claim or demand against IdeaTek or the City related to or arising out of IdeaTek’s activities in the public Right-of-Way.
Section 8. INSURANCE REQUIREMENT.
a. During the term of this Contract Franchise, Idea Tek shall obtain and maintain insurance coverage at its sole expense, with financially reputable insurers that are licensed to do business in the State of Kansas. Should IdeaTek 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. IdeaTek shall provide not less than the following insurance:
(1) Workers’ compensation as provided for pursuant to the laws of the state of Kansas with an employers’ liability limit equal to the amount required by law.
(2) Commercial general liability, including coverage for contractual liability and products completed operations liability on an occurrence basis and not a claims make basis, with an aggregate 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 named as additional insured with respect to liability arising from IdeaTek’s operations under this Contract Franchise.
b. IdeaTek shall, as a condition of this Agreement and prior to the commencement of any work, deliver to the City a certificate of insurance evidencing that the above insurance is in force and will not be cancelled without first giving the City thirty (30) days prior written notice. IdeaTek shall make available to the City, on request, the policy declarations page and a certified copy of the policy in effect so that limitations and exclusions can be evaluated for appropriateness of overall coverage.
Section 9. TRANSFER AND ASSIGNMENT.
Pursuant to the written permission of the City, which shall not unreasonably be withheld or delayed, IdeaTek shall have the right to assign this Contract Franchise and the rights and privileges hereby granted to any person, firm, or corporation, and any such assignee, who by accepting such assignment shall be bound by the terms and provisions of this Contract Franchise. If IdeaTek should seek approval to assign this Contract Franchise, IdeaTek shall notify the City in writing. All such assignments shall be in writing and authenticated copies thereof shall be filed with the City Clerk. This Contract Franchise shall be assignable only in accordance with the laws of the State of Kansas.
Section 10. REVOCATION AND TERMINATION.
In case of failure on the part of IdeaTek to comply with any of the provisions of this Contract Franchise, or if IdeaTek should do or cause to be done any act or thing prohibited by or in violation of the terms of this Contract Franchise, the City shall abide by the requirements of K.S.A. 12-200 l which requires reasonable notice and an opportunity for a public hearing before the City governing body before a Contract Franchise ordinance may be revoked.
Section 11. RESERVATION OF RIGHTS.
a. In granting its consent hereunder, IdeaTek 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, or under the Constitution of the State of Kansas, nor any of its rights and powers under or by virtue or present or future ordinances of the City.
b. In entering into this Contract Franchise, neither the City’s nor IdeaTek’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 in the Contract Franchise, neither the City nor IdeaTek waive any rights, but instead expressly reserve any and all rights, remedies, and arguments the City or IdeaTek may have at law or equity, without limitation, to argue, assert, and/or take any position as to the legality or appropriateness of any present or future laws, nonfranchise ordinances and/or rulings.
Section 12. FAILURE TO ENFORCE.
The failure of either the City or the IdeaTek 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 such term or provision, and the same shall continue in full force and effect. No waiver or relinquishment shall be deemed to have been made by the City of the IdeaTek unless said waiver or relinquishment is in writing and signed by both the City and the IdeaTek.
Section 13. TERM AND TERMINATION DATE.
a. This Contract Franchise shall be effective for a term of ten (10) years from the effective date of this Contract Franchise ordinance. Thereafter, this Contract Franchise will renew for one (l) additional ten (10) year term, unless either party notifies the other party of its intent to terminate or renegotiate the Contract Franchise at lease one hundred eighty (180) days before the termination of the then current term. The additional term shall be deemed a continuation of this Contract Franchise and not a new franchise of amendment.
b. Upon written request of either the City or IdeaTek, this Contract Franchise shall be renegotiated at any time upon either of the following events: (I) any change in federal, state, or local laws, regulations, orders or rules that materially affect any rights or obligations of either the City or Idea Tek; or (ii) notice is given not less than one hundred eighty (180) days before the termination of the ten-year current term.
c. If any clause, sentence, section, or provision of K.S.A. 12-2001, and amendments thereto, shall be held to be invalid by a court or administrative agency of competent jurisdiction, provided such order is not stayed, either the City or IdeaTek may elect to terminate the entire Contract Franchise. In the event of such invalidity, if IdeaTek 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 the 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. Such extension period shall be deemed a continuation of this Contract Franchise and not as a new Contract Franchise ordinance or amendment.
Section 14. POINT OF CONTACT AND NOTICES.
IdeaTek 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 IdeaTek in the event of an emergency. All other notices between the parties shall be in writing and shall be made by personal delivery or by depositing such notice in the United States Mail, Certified Mail, return receipt requested. Any notice served by the U.S. Mail or Certified Mail, return receipt requested, shall be deemed delivered five (5) calendar days after the date of such deposit in the US Mail unless otherwise provided. “Business day” for purposes of this section shall mean Monday through Friday, City and/or IdeaTek observed holidays excepted.
The City:
City of Garden Plain, Kansas
c/o City Clerk
505 N. Main
Garden Plain, Kansas 67050
IdeaTek:
IdeaTek Telcom
Attn: Contract Notifications
PO Box 407
Buhler, Kansas 67522
Daniel@ideatek.com
or to replacement addresses that may be later designated in writing.
Section 15. CONFIDENTIALITY.
Information provided to the City under K.S.A. 12-200 l shall be governed by confidentiality procedures in accordance with K.S.A. 45-215 et seq and amendments thereto. IdeaTek agrees to indemnify and hold the City harmless from any and all penalties or costs, including attorney’s fees, arising from the actions of IdeaTek, or of the City at the written request of IdeaTek, in seeking to safeguard the confidentiality of information provided by Idea Tek to the City under this Contract Franchise.
Section 16. COMPETITIVE NEUTRALITY.
The City agrees that under K.S.A. 12-2001 and K.S.A. 17-1902, and other state and federal laws, this Contract Franchise ordinance must be competitively neutral and may not be unreasonable or discriminatory to any telecommunications provider operating in the City.
Section 17. MOST-FAVORED MUNICIPALITY.
Most Favored Municipality. Should IdeaTek after the Parties’ execution and delivery of this Agreement enter into a franchise agreement with another municipality of the same size or smaller than the City in this State, which agreement contains financial benefits for such municipality which, taken as a whole and balanced with the other terms of such agreement, are in the City’s opinion substantially superior to those in this Franchise Agreement, the City shall have the right to require that IdeaTek modify this Franchise Agreement to incorporate the same or substantially similar superior benefits to be effective as of the date IdeaTek commenced providing superior benefits to such other municipality.
Section 18. MOST FAVORED PROVIDER.
All of the benefits and terms granted by the City herein are at least as favorable as the benefits and terms granted by the City to all future franchisee of the public ROW engaged in the same or similar business described in this Franchise Agreement. Should the City enter into any subsequent agreement of any kid no matter what nomenclature is attached thereto with any other franchisee during the term of this Franchise Agreement, which Agreement provides for benefits or terms more favorable than those contained in this Franchise Agreement, then this Franchise Agreement shall be deemed to be modified effective as of the date of such more favorable agreement to provide IdeaTek with those more favorable benefits and terms. The City shall notify IdeaTek promptly of the existence of such more favorable benefits and terms and IdeaTek shall have the right to receive the more favorable benefits and terms immediately. If requested in writing by IdeaTek, the City shall amend this Contract Franchise to contain the more favorable terms and conditions.
Section 19. SEVERABILITY.
If any provision, section, or subsection of this Contract Franchise is declared invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions, sections, subsections, or applications of this Contract Franchise that can be given effect without the invalid provision, section, subsection, or application, and to this end, the provisions, sections, subsections and applications of this Contract Franchise are hereby declared to be severable.
Section 20. FORCE MAJEURE.
Each and every provision hereof shall be reasonable subject to acts of God, fires, strikes, riots, floods, war and other disasters beyond IdeaTek’s or the City’s control.
Section 21. GENERAL PROVISIONS.
a. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, successors, assigns and transferees.
b. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof.
c. This Agreement shall be interpreted and enforced according to, and the parties’ rights and obligations governed by, the domestic law of the State of Kansas or applicable federal law, without regard to laws regarding choice of applicable law. Any proceeding or action to enforce this Agreement, or otherwise directly related to the Agreement shall occur in the federal court with jurisdiction over Sedgwick County or the state courts located in Sedgwick, County, Kansas.
d. All of the terms and conditions in this Agreement related to payment, removal due to termination or abandonment, limits of City’s liability, attorney’s fees and waiver shall survive termination of this Agreement.
e. In the interpretation and application of its rights under this Contract Franchise, the City will act in a reasonable, non-discriminatory, and competitively neutral manner in compliance with all applicable federal, state, and local laws and regulations.
f. This Contract Franchise ordinance is made under and in conformation with and is subject to the laws of the State of Kansas.
(02-05-2020)