AN ORDINANCE GRANTING TO IDEATEK TELCOM, LLC, A CONTRACT FRANCHISE TO CONSTRUCT, OPERATE, AND MAINTAIN A TELECOMMUNICATIONS SYSTEM IN THE CITY OF AUGUSTA, KANSAS.
This Contract Franchise (hereinafter, the “Ordinance”) is entered into as of June 5, 2023 (the “Effective Date”) by and between the City of Augusta, a municipal corporation (the “City”), and IdeaTek Telcom, LLC, a Kansas limited liability company (“IdeaTek”).
RECITALS
I. IdeaTek is a Telecommunications carrier as defined in K.S.A. 66-1,187(m) with authority under K.S.A. 17-1902 to occupy the public right-of-way subject and subordinate to the reasonable public health, safety and welfare requirements and regulations of the City.
II. IdeaTek seeks to enter the City of Augusta’s Right of Way, and other real property of the City, to install, maintain and operate fiber network Facilities (the “Network”), so that IdeaTek and/or its underlying customers (the “Customers”) may provide data, telecommunications, broadband 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 AUGUSTA, 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.
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 right-of-way as permitted under this Ordinance, and which will be connected to 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, streetlight poles, equipment cabinets, underground and above ground fiber optic cable, fiber handholes 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. “Laws” or “Law” as used in this Ordinance 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 Ordinance or having jurisdiction that is applicable to any aspect of this Ordinance that are in force on the Effective Date and as they may be enacted, issued, or amended during the term of this Ordinance.
f. “Network” means the franchisee's fiber network and DAS Facilities or small wireless facilities, including the antenna nodes, poles, equipment cabinets, underground and aboveground fiber optic cable, wires, lines, fiber handholes and enclosures, fiber repeaters and related equipment and appurtenance, and similar facilities and appurtenances, designed, constructed or occupied for the purpose of producing, receiving, amplifying or distributing telecommunications service to or from locations within the City.
g. "Right-of-way" or “ROW” means the surface and space on, above and below every municipal street, alley, road, highway, lane, or City right-of-way dedicated or commonly used now or hereafter for utility purposes, including but not limited to overhead lighting facilities, and including utility easements wherein the City now or hereafter acquires the right and authority to locate or permit the location of utilities consistent with communications facilities. This term shall not include any county, state, or federal right-of-way or any property owned or controlled by any person or agency other than the City, except as provided by applicable laws or pursuant to an agreement between the City and any such person or agency. Right- of-way shall not include property owned or held by City and not typically considered right-of-way such as City parks and City buildings.
h. “Small Wireless Facilities” or “Wireless Facilities” means a wireless facility that meets both of the following qualifications:
i. All antennas are located inside an enclosure of not more than (6) six cubic feet in volume or, in the case of an antenna that has exposed elements, the antenna and all of the antenna's exposed elements could fit within an imaginary enclosure of not more than (6) six cubic feet, and
ii. All other wireless equipment associated with the facility is cumulatively not more than (28) twenty-eight cubic feet on volume, or (50) fifty cubic feet in volume if the equipment was ground mounted before the effective date of this section. The following types of associated ancillary equipment are not included in the calculation of equipment volume pursuant to this subdivision:
1. An electric meter.
2. Concealment elements.
3. A telecommunications demarcation box.
4. Grounding equipment.
5. A power transfer switch.
6. A cutoff switch.
7. Vertical cable runs for the connection of power and other services.
i. “Telecommunications Service(s)” 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 ORDINANCE.
a. This Ordinance hereby grants to IdeaTek, the nonexclusive contract, right, privilege, and franchise to locate, construct, place, attach, install, operate, use, control, repair, replace, upgrade, enhance and maintain, facilities Network and Facilities along, across, upon or under any Public Right-of-way for the purpose of supplying Internet and Telecommunications Services to customers within the corporate boundaries of the City, for the term of this Ordinance, subject to the terms and conditions of this Ordinance.
b. Nothing in this Ordinance is intended to preclude the City from seeking or authorize the City to seek, a franchise from an affiliate or third-party providing telecommunications services.
c. This Ordinance does not grant IdeaTek the authority or right to provide end user “Cable Service.” For the 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.
d. This Ordinance shall not convey title, equitable or legal, in the ROW, and gives only the right to occupy the ROW, for the purposes and for the period stated herein and subject to the terms stated in this Ordinance. This Ordinance does not:
i. 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;
ii. Grant the authority to construct, maintain or operate any Facility or related appurtenance on property owned by the City whether inside or outside of the ROW, specifically including, but not limited to, poles, streetlights, buildings, towers, park property, City Hall property, or other facilities;
iii. Excuse IdeaTek from obtaining appropriate access or attachment agreements or permits before locating its Facilities on Facilities or property owned or controlled by the City or a third-party;
iv. Grant to any licensee or lessee of IdeaTek or other third party a right of access or authority to the City's ROW without said licensee, lessee, or third party obtaining all necessary permits and authorizations from the City if determined necessary by the City, a contract franchise for said licensee, lessee, or third party.
v. 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 Ordinance, and IdeaTek shall not knowingly allow the use of its Facilities or Network by any third party in violation of any federal, state, or local law.
e. This Ordinance is subject to and conditioned upon the terms and conditions of all applicable federal, state, and local laws, existing now or in the future, and the parties shall comply with any such laws in the exercise of their rights and performance of their obligations under this Ordinance.
f. As noted in subsection (c), IdeaTek shall not provide any additional services for which a separate franchise ordinance is required by the City without first obtaining a separate franchise ordinance or amending this Ordinance. In particular, this Ordinance does not grant IdeaTek the right to provide cable services as a cable operator (as defined by 47 U.S.C. § 522(5)) within the City. IdeaTek also agrees that this Ordinance does not permit it to operate an open video system without the payment of fees contemplated by 47 U.S.C. § 573(c)(2)(B) and without complying with all Federal Communications Commission (“FCC”) regulations promulgated pursuant to 47 U.S.C. § 573. IdeaTek shall not knowingly allow the use of its Facilities by any third party in violation of this subsection or of any federal, state, or local laws.
g. The authority of IdeaTek to use and occupy the ROW 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 ROW provided that any such exercise must be competitively neutral, not in conflict with state or federal law and may not be unreasonable or discriminatory. IdeaTek shall comply with all laws, rules, and lawful City regulations, in effect now or as may be adopted in the future, governing the use of ROW, the City's zoning, land use, and subdivision regulations and amendments thereto.
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 Ordinance, IdeaTek shall have the right to construct, maintain and operate its Facilities along, across, upon and under the public ROW. IdeaTek shall construct and maintain the Facilities in a skillful and workmanlike manner that does not obstruct or hinder the usual travel or public safety on such ROW, and that does not obstruct or interfere with the legal use of the ROW by other utilities.
b. IdeaTek shall participate in the Kansas One Call utility location program. IdeaTek shall be solely responsible for communicating with Kansas One-Call, or for taking other necessary measures to determine the location of public improvements or other facilities located in the ROW.
c. IdeaTek may attach its Facilities to an existing City-owned utility pole pursuant to the current National Electric Safety Code. IdeaTek shall coordinate the placement of its Facilities in the ROW in a manner that minimizes adverse impact on public improvements, as reasonably determined by the City engineer.
d. It is understood that IdeaTek may build new Facilities in the City which would comply with all applicable Laws. If the City has no formal third-party utility installation policy or permit process, IdeaTek will not be obligated to make application for new facility installations unless and until such time a formal process is implemented by the City in a reasonable and non-discriminatory form and enforced among all third-party utility installations.
e. IdeaTek shall install Facilities in accordance with traffic control plans for temporary construction work that are approved by the City, which approval shall not unreasonably be withheld, conditioned or delayed.
f. Except in cases of emergency, a minimum of fourteen (14) days prior to construction, reconstruction, location, or relocation of any Facilities in a ROW, IdeaTek shall submit to the City Engineer, or his or her designee, for approval, plans and specifications related to the proposed construction, reconstruction, location, or relocation. The City shall not reasonably withhold, delay, or condition approval of said plans and specification. The City’s review of the plans and specifications shall be confined to matters impacting the interests of the City in managing the ROWs of the City.
g. No notice is necessary to the City for Facility access and maintenance unless such maintenance will require street closure, and in such event, IdeaTek will use reasonable efforts to coordinate such closure with the City.
h. Zoning regulations shall not apply to installations within the public ROW.
i. 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 adjacent property to a safe and satisfactory condition to the City 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.h 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.
j. IdeaTek shall pay for the electricity and other utilities services it consumes in its operations at the rates charged by the servicing utility companies.
k. IdeaTek shall, at IdeaTek’s sole cost and expense, perform all maintenance and repairs reasonably needed to maintain its facilities in good condition and neat and orderly appearance, and in compliance with all applicable laws. In the event any facility requires replacement because such part cannot be repaired, IdeaTek shall, at IdeaTek’s sole cost and expense, replace the irreparable facility. IdeaTek shall not cause rubbish, garbage, or debris on or around the facilities and shall not permit any rubbish, garbage, or debris to accumulate on or around any enclosed areas around the facilities. If the City gives IdeaTek written notice of a failure by IdeaTek to maintain the facilities, IdeaTek shall use its best efforts to remedy such failure within forty-eight (48) hours after receipt of such written notice.
l. In granting this contract franchise ordinance, the City makes no express or implied representation or warranty regarding its rights to authorize the installation or construction of Facilities on any particular segment of the ROW. The burden and responsibility for making all such determinations in advance of construction or installation shall be entirely upon IdeaTek.
m. IdeaTek shall take all reasonable measures necessary to maintain accurate and complete records in electronic format, of all Facilities constructed, reconstructed, or relocated in the ROW. IdeaTek 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 the ROW when requested by the City or its authorized agents for a public project. Such location and identification shall be at the sole expense of IdeaTek without expense to the City, its employees, agents, or authorized contractors.
SECTION 4. COMPENSATION TO THE CITY.
a. In consideration of this Ordinance, IdeaTek agrees to pay the City one hundred and fifty dollars ($150.00) per year per attachment for the attachment of wireless equipment to support any DAS Facility or Small Wireless Facility within the City on City owned infrastructure or newly placed IdeaTek poles within the City (such amount being the “DAS Franchise Fee”). IdeaTek shall pay the DAS Franchise Fee on the 15th day of the second month following the month in which the gross revenue is received.
b. IdeaTek agrees to remit to the City five percent (5%) of Gross Receipts as defined in K.S.A. 12-2001(c)(6) for all fiber connections made in the Network (the “Fiber Franchise Fee,” and collectively with the DAS Franchise Fee, the “Franchise Fee”). IdeaTek shall pay its Fiber Franchise Fee on the 15th day of the second month following the month in which the gross revenue is received.
c. A one-time permit and license fee of $1,000.00 for each DAS Facility or Small Wireless Facility installed within the public ROW of the City shall be paid by IdeaTek. This fee shall be in addition to other City permit and review fees that exist as of the date the DAS Facility or Small Wireless Facility is installed that relate to the installation of the DAS Facility or Small Wireless Facility. IdeaTek shall pay the one-time application fee upon submission of a complete application for the installation of a DAS Facility or Small Wireless Facility per this article and after the date of IdeaTek’s submission of a complete application, the City shall not retroactively apply any new permit or licensing fees to the DAS Facility or Small Wireless Facility.
d. IdeaTek shall reimburse the City for the publication costs related to the adoption or amendment of this Ordinance.
e. If any Franchise Fee, or any portion thereof, is not postmarked or delivered on or before the due date, interest shall accrue from the due date until received, at an annual rate of ten percent (10%), or if lower, the highest percentage allowed by law.
f. IdeaTek shall keep accurate books of account at its principal office in Buhler, Kansas, or such other location of its choosing, for the purpose of determining the amounts due to the City pursuant to this subsection. The City shall have access to, and the right to examine, at all reasonable times, all books, receipts, files, records, and documents of IdeaTek necessary to verify the correctness of compensation paid to the City, and to correct the same, if found to be erroneous. The City may only exercise its right to examine the books, receipts, files, records, and documents one time per year at a mutually agreeable time. If the statement of fees paid by IdeaTek is incorrect, IdeaTek shall promptly make payment upon such corrected statement and reimburse the City for all commercially reasonable costs associated with the records review including staff wages, consultant fees, and travel costs (i.e. mileage and lodging). The City agrees to hold in confidence any non-public information it learns from IdeaTek to the fullest extent permitted by law.
g. IdeaTek 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 5. TERM.
a. This Ordinance shall be effective for a term of five (5) years from the effective date of this Ordinance. Thereafter, this Ordinance shall automatically renew for three (3) additional five-year terms, unless a party notifies the other party of its intent to terminate the franchise prior to 180 days before the termination of the current term. The additional terms are a continuation of this franchise and not a new franchise or amendment.
b. Upon written request of either the City or IdeaTek, this Ordinance shall be renegotiated at any time in accordance with the requirements of K.S.A. 12¬2001 and K.S.A. 17-1902, as amended, 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 IdeaTek, including but not limited to the scope of the Ordinance granted to the IdeaTek or the compensation to be received by the City.
c. Amendments under this section, if any, shall be made by contract franchise ordinance as prescribed by statute. The Ordinance shall remain in effect according to its terms pending completion of any review or renegotiation provided by this section.
SECTION 6. [This section intentionally omitted.]
SECTION 7. NON-INTERFERENCE.
a. IdeaTek shall operate its network in a manner that will not cause interference with any City communications systems and to the services and facilities of other licensees or lessees of City property located at or near the Facilities that were in operation prior to the installation of the network or that are in operation prior to any modifications IdeaTek may make to the network.
b. IdeaTek’s network and facilities shall not cause interference with public safety communications systems operated by City or any other public agency, regardless of the date such systems or any components thereof have been placed in service. Nor shall Ideatek’s network and facilities cause interference with the City's use of the IdeaTek poles for the City's intended City purpose.
c. If such interference with the facilities described in subsections (a) or (b) occurs, IdeaTek shall, upon receipt of written notice from the City, immediately commence commercially reasonable, diligent, efforts to correct or eliminate such interference. If such interference cannot be corrected by IdeaTek to the reasonable satisfaction of the City within the cure period set forth in the City's notice, which notice shall not be less than thirty (30) days, absent an emergency or danger to public health and safety requiring shorter notice, such interference shall be deemed a material breach under this Ordinance and City may terminate the Ordinance. Interference caused by actions of IdeaTek’s customer(s) remains the responsibility of IdeaTek.
SECTION 8. INDEMNITY AND HOLD HARMLESS.
a. It shall be the responsibility of IdeaTek to take adequate measures to protect and defend its facilities in the public ROW from harm or damage. If IdeaTek 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 such parties are responsible for the harm or damage caused by their 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 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 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 ROW.
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 ROW.
SECTION 9. INSURANCE REQUIREMENT.
a. During the term of this franchise, IdeaTek shall obtain and maintain insurance coverage at its sole expense, with financially reputable insurers with an A.M. Best rating of no less than A-:VII. A current, updated insurance certificate or proof of self-insurance demonstrating the required coverage amounts have been met shall be provided to and kept on file by the City Clerk. IdeaTek shall provide not less than the following insurance:
i. Workers' compensation as provided for under any workers' compensation or similar law in the jurisdiction where any work is performed with an employers' liability limit equal to the amount required by law.
ii. Commercial general liability with limits of insurance not less than $2,000,00 each occurrence, $2,000,000 annual aggregate, $2,000,000 completed Operations/Product Aggregate covering claims for bodily injury, property damage, personal and advertising injury, completed operation/product liability and contractual liability arising from the activities and operations of the franchisee and independent contractors operating on their behalf. The City shall be included as an additional insured. The insurance for the additional insured shall be as broad as the insurance for the named insured and apply on a primary/noncontributor basis and include protection for completed operations/products claim. Coverage for the additional insured shall include defense expense. If in order to accomplish the required limits of insurance, the franchisee must purchase an excess liability/umbrella policy, such policy shall be written on a follow form basis and be as broad as the underlying insurance. The City shall be included as additional insured to the policy.
iii. Business Auto Liability Insurance with limits of insurance not less than $1,000,00 Combined Single Limit for bodily injury and property damage covering ownership or use of all owned, hired, and non-owned autos used in connection with the Franchisee operations and activities. The City shall be included as additional insured to the auto liability policy.
b. As an alternative to the requirements of subsection (a), IdeaTek may demonstrate to the satisfaction of the City that it is self-insured and as such IdeaTek has the ability to provide coverage in an amount not less than $1,000,000.00 per occurrence and $2,000,000.00 in aggregate, to protect the City from and against all claims by any person whatsoever for loss or damage from personal injury, bodily injury, death, or property damage occasioned by IdeaTek, or alleged to so have been caused or occurred.
c. IdeaTek shall, as a material condition of this Ordinance, 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 and will not be cancelled or materially changed with respect to areas and entities covered without first giving the City 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.
d. To the extent such requirement is required of all existing telecommunications franchise holders, upon written request, IdeaTek shall, as a material condition of this Ordinance, prior to the commencement of any work and prior to any renewal of this franchise, deliver to the City a performance bond in the amount of $100,000.00, payable to the City to ensure the appropriate and timely performance in the construction and maintenance of facilities located in the ROW as set forth in this article; to ensure IdeaTek's repair and restoration of its damage to its facilities or the ROW; and to ensure IdeaTek's removal of its facilities, as set forth herein. The required performance and maintenance bond must be with good and sufficient sureties, 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 10. TAXES.
IdeaTek agrees that it will be solely responsible for the payment of any and all applicable taxes, fees and assessments levied on its ownership, use and maintenance of the network and this Ordinance.
SECTION 11. REVOCATION AND TERMINATION.
In case of failure on the part of IdeaTek to comply with any of the material provisions of this Ordinance, or if IdeaTek should do or cause to be done any act or thing prohibited by or in violation of the terms of this Ordinance, the City shall abide by the requirements of K.S.A. 12-2001 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 12. 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 of present or future ordinances of the City.
b. In entering into this Ordinance, 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 into the Ordinance, 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, non-franchise ordinances and/or rulings.
SECTION 13. 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 Ordinance 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 or the IdeaTek unless said waiver or relinquishment is in writing and signed by both the City and the IdeaTek.
SECTION 14. DEFAULT ABANDONMENT.
a. A "default" shall be deemed to have occurred if a party fails to cure a breach, within thirty (30) days after written notice specifying such breach, provided that if the breach is of a nature that it cannot be cured within thirty (30) days, a default shall not have occurred so long as the breaching party has commenced to cure within said time period and thereafter diligently pursues such cure to completion.
b. Upon a party's failure to timely cure a breach after notice, and upon expiration of the above cure periods, then the other party may terminate this Ordinance and pursue all remedies provided for in this Ordinance and/or any remedies it may have under applicable law or principles of equity relating to such breach.
c. In addition to the remedies set forth herein, the City shall have the right to terminate this Ordinance if (i) the City is mandated by law, a court order or decision, or the federal or state government to take certain actions that will cause or require the removal of the Facilities from the ROW; or (ii) if IdeaTek's licenses are terminated, revoked, expired, or otherwise abandoned. Such termination rights under subsection (iii) shall be subject to IdeaTek's rights to just compensation, if any, from the federal, state, or local government requiring such removal for any taking of a protected property right.
d. In the event IdeaTek ceases to operate and abandons the network, any facility, or parts thereof, for a period of ninety (90) days or more, IdeaTek shall, at its sole cost and expense and within ninety (90) days from the date of abandonment, vacate and remove the network or the abandoned part thereof. If such removal disturbs the facility or adjacent property (including ROW or City real property), IdeaTek shall also, at its sole cost and expense, restore or repair the ROW, each facility, and any adjacent property to its original condition, reasonable wear and tear excepted, and further excepting landscaping and related irrigation equipment or other aesthetic improvements made by IdeaTek to the facility or adjacent property. Alternatively, the City may allow IdeaTek, in the City's sole and absolute discretion, to abandon the network, or any part thereof, in place and convey it to the City.
e. Upon expiration or termination of this Ordinance for any reason, IdeaTek shall have the right to remove any and all of its Facilities within sixty (60) days after such termination or expiration, or, subject to the approval of the City Engineer said approval not to be unreasonably withheld, to transfer any and all of its Facilities to another entity authorized to place facilities in the ROW. IdeaTek has the duty, immediately upon any such removal, to restore the ROW from which the facilities are removed to as good a condition as the same were before removal was performed. If IdeaTek fails to remove or transfer its Facilities within sixty (60) days, the City may, at its option, remove any or all of the Facilities at IdeaTek's expense, or take ownership of any or all of Facilities for the City's use and/or disposal.
SECTION 15. TRANSFER AND ASSIGNMENT.
This franchise shall be assignable in accordance with the laws of the State of Kansas. IdeaTek shall provide the City written notice of any transfer or assignment within thirty (30) days, including notice of the name and address of the assignee and contact information. IdeaTek's obligations under this Ordinance with regard to indemnity, bonding and insurance shall continue until the transferee or assignee has taken the appropriate measures necessary to assume and replace the same, the intent being that there shall be no lapse in any coverage as a result of any transfer or assignment.
SECTION 16. 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 U.S. Mail, Certified Mail, return receipt requested. Any notice served by 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 U.S. 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: IdeaTek:
City of Augusta IdeaTek Telcom
Attn: City Clerk Attn: Legal Department
113 E 6th PO Box 407
Augusta, Kansas 67010 Buhler, KS 67522
Daniel@IdeaTek.com
Replacement addresses may be later designated in writing.
SECTION 17. ACCEPTANCE.
Prior to the effective date of this franchise, IdeaTek shall file with the City clerk its acceptance in writing of the provisions, terms and conditions of this Ordinance, which acceptance shall be duly acknowledged before an officer authorized by law to administer oaths. When so accepted, the ordinance and acceptance shall constitute a contract between the City and IdeaTek subject to the provisions of the laws of the state of Kansas.
SECTION 18. CONFIDENTIALITY.
Information provided to the City under K.S.A. 12-2001 shall be governed by confidentiality procedures in compliance 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 IdeaTek to the City under this Ordinance.
SECTION 19. NON-DISCRIMINATION.
a. IdeaTek will not, on the grounds of race, religion, color, sex, disability, national origin, or ancestry, discriminate or permit discrimination against any person in the use of the ROW or in activities under this franchise.
b. The City agrees that under K.S.A. 12-2001 and K.S.A 17-1902, and other state and federal laws, this Ordinance must be competitively neutral and may not be unreasonable or discriminatory to any telecommunications provider operating in the City.
SECTION 20. MOST-FAVORED MUNICIPALITY.
Should IdeaTek after the Parties' execution and delivery of this Ordinance 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 Ordinance, the City shall have the right to require that IdeaTek modify this Ordinance to incorporate the same or substantially similar superior benefits.
SECTION 21. 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 any future franchisee of the public ROW engaged in the same or similar business described in this Ordinance. Should the City enter into any subsequent agreement of any kind no matter what nomenclature is attached thereto with any other franchisee during the term of this Ordinance, which agreement provides for benefits or terms more favorable than those contained in this Ordinance, then this Ordinance 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 Ordinance to contain the more favorable terms and conditions.
SECTION 22. SEVERABILITY.
If any clause, sentence, or section of this Ordinance, or any portion thereof, shall be held to be invalid by a court of competent jurisdiction, such 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 IdeaTek may elect to declare the entire Ordinance invalidated if the portion declared invalid is, in the judgment of the City or IdeaTek, an essential part of the Ordinance.
SECTION 23. ENTIRE ORDINANCE; MODIFICATION.
a. This Ordinance constitutes the entire agreement between the parties relating to the subject matter hereof. All prior and contemporaneous agreements, representations, negotiations, and understandings of the parties, oral or written, relating to the subject matter hereof are merged into and superseded by this Ordinance. The parties agree that this Ordinance is the project of joint draftsmanship and that should any of the terms be determined by a court, or in any type of quasi-judicial or other proceeding, to be vague, ambiguous and/or unintelligible, that the same sentences, phrases, clauses or other wording or language of any kind shall not be construed against the drafting party.
b. Any modification or amendment to this Ordinance shall be of no force and effect unless it is in writing, signed by the parties, and adopted pursuant to the requirements of state law.
SECTION 24. SURVIVAL OF TERMS.
All of the terms and conditions in this Ordinance related to payment, removal due to termination or abandonment, indemnification, limits of City's liability, attorneys' fees and waiver shall survive termination of this Ordinance.
SECTION 25. GOVERNING LAW AND VENUE.
a. As a condition of this Ordinance, IdeaTek 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”), subject to IdeaTek's right to challenge in good faith such requirements as established by the FCC, KCC, or other City regulations. IdeaTek shall also comply with all applicable laws, statutes and/or City regulations, subject to IdeaTek's right to challenge in good faith such laws, statutes, and/or City regulations.
b. The obligations and undertakings of both parties hereto shall be performed at Augusta, Butler County, Kansas. In the event that any legal proceeding is brought to enforce the terms of this franchise, the same shall be brought in state or federal courts, as appropriate, having jurisdiction for Butler County, Kansas.
SECTION 26. FORCE MAJEURE.
Each and every provision hereof shall be reasonably subject to acts of God, fires, strikes, riots, floods, war, and other disasters beyond IdeaTek's or the City's control.
(06-05-2023)