An Ordinance Granting To Midcontinent Communications, A South Dakota General Partnership, A Contract Franchise For The Provision Of Telecommunications Services In The City Of Bonner Springs, Kansas And Prescribing The Terms Of The Contract Franchise.

NOW THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF BONNER SPRINGS, KANSAS:

SECTION 1. DEFINITIONS.

For the purposes of this Ordinance the following words and phrases shall have the stated meaning. 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. The word “shall” is always mandatory, and not merely directory.

(a)   “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 processed by a telecommunications local exchange service provider or private line service arrangements.

(b)   “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.

(c)   “Access Line Fee” means a fee determined by the City, up to a maximum as set out in K.S.A. 12-2001(c)(2), and amendments thereto, to be used by Grantee in calculating the amount of Access line remittance.

(d)   “Access line remittance” means the amount to be paid by Grantee to 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 Grantee within the City for each month in that calendar quarter.

(e)   “City” means the City of Bonner Springs, Kansas, a municipal corporation.

(f)   “Contract franchise” means this Ordinance granting the right, privilege, and franchise to Grantee to provide Telecommunications Services within the City.

(g)   “Facilities” means telephone and telecommunication lines, conduits, manholes, ducts, wires, cables, pipes, poles, towers, vaults, appliances, optic fiber, and all equipment used to provide telecommunication services.

(h)   “Grantee” means MIDCONTINENT COMMUNICATIONS, an electing carrier and telecommunications service provider providing local exchange service and/or operating facilities within the City. References to Grantee shall also include, as appropriate, any and all successors and assigns.

(i)    “Gross Receipts” shall have that meaning ascribed to it at K.S.A. 12-2001(c)(6), and amendments thereto.

(j)    “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.

(k)   “Public Improvement” shall mean any existing or contemplated public facility, public building, or capital improvement project, including but not limited to streets, alleys, sidewalks, sewers, water lines, drainage, Right of Way improvements, or other Public Projects.

(1)   “Public Project” shall mean any project planned or undertaken by the City, or by any other governmental entity, for the construction, reconstruction, maintenance, or repair of Public improvements or other public facilities, or for any purpose of a public nature.

(m)  “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 non-wire telecommunications or broadcast service, easements obtained by utilities or private easements in platted subdivisions or tracts.

(n)   “Telecommunications local exchange service provider” shall have that meaning ascribed to it at K.S.A. 12-2001(c)(8), and amendments thereto.

(o)   “Telecommunication Services” shall mean the offering of Telecommunications for a fee directly to the public, or to such classes of users as to be effectively available directly to the public, regardless of the Facilities or means employed.

SECTION 2. GRANT OF FRANCISE CONTRACT.

(a)   Subject to the provisions of K.S.A. 12-2001 and amendments thereto, there is hereby granted to Grantee this nonexclusive Contract franchise to provide telecommunications services to the consumers or recipients of such service located within the corporate boundaries of the City, for the term of this Contract franchise, subject to the terms and conditions of this Contract franchise.

(b)   The grant of this Contract franchise by the City shall not convey title, equitable or legal, in the Public right-of-way. This Contract franchise does not:

(1)   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;

(2)   Grant 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, specifically including, but not limited to, parkland property, City Hall property or public works facility property; or,

(3)   Excuse Grantee from obtaining appropriate access or attachment agreements before locating its Facilities on property or facilities owned or controlled by the City or a third-party.

(c)   As a condition of this grant, Grantee 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, and the Kansas Corporation Commission (KCC). Grantee shall also comply with all applicable laws, statutes, and City ordinances (including, but not limited to those relating to the construction and use of the Public Right-of-Way or other public property).

(d)   Grantee shall not 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 Franchise Contract, and Grantee shall not knowingly allow the use of its Facilities by any third party in violation of any federal, state, or local law. This Contract does not provide Grantee the right to provide cable service as a cable operator (as defined by 47 U.S.C. § 522 (5)) within the City. Grantee agrees that this Contract 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.

(e)   Access to the Public Right-of-Way shall be granted in a competitively neutral and nondiscriminatory basis and not in conflict with state or federal law.

SECTION 3. USE OF PUBLIC RIGHT-OF-WAY.

In using the Public Rights of Way, the Company shall be subject to all ordinances, resolutions, rules, regulations, and policies now or hereafter adopted or promulgated by the City in the reasonable exercise of its police powers and shall be subject to all applicable laws, statutes, ordinances, regulations, orders, and rules adopted or promulgated by any governing body now or hereafter having jurisdiction. In addition, the Company shall be subject to all ordinances, resolutions, rules, regulations, and policies now or hereafter adopted or promulgated by the City relating to the use of the Public Rights of Way, including but not limited to permits, sidewalk and pavement cuts, utility location, construction coordination, “Complete Streets” policies, beautification, tree care, and other requirements affecting the use of the Public Rights of Way. The Company shall also comply with the following:

(a)   The Company’s use of the Public Rights of Way shall in all matters be subject and subordinate to the City’s use of the Public Rights of Way for any public purpose or for any purpose relating to the health, safety, and welfare of the City. The Company shall coordinate the placement of its Facilities in a manner that minimizes adverse impact on Public Improvements as reasonably determined by the City. Where placement is not otherwise regulated, the Facilities shall be placed with adequate clearance from such Public Improvements so as not to affect or be affected by such Public Improvements.

(b)   To the extent that the Company uses above-ground markers, antennas, or support structures related to its use of the Public Rights of Way for the placement of its Facilities, the Company agrees that it will seek City approval and comply with all City requirements before placing any such markers, antennas, or support structures and that said markers, antennas, and support structures shall be unobtrusive.

(c)   All earth, materials, sidewalks, paving, crossings, utilities, Public Improvements, or improvements of any kind that are injured, damaged, or removed by the Company while engaging in any activity under this Franchise Contract shall be fully repaired or replaced to their original condition within a reasonable time by the Company at its sole cost and expense and to the reasonable satisfaction of the City.

(d)   The Company shall keep and maintain accurate records and as-built drawings depicting the accurate location of all Facilities constructed, reconstructed, located, or relocated in the Public Rights of Way after the date hereof and shall provide that information to the City upon its written request. Where such information is available electronically, upon written request of the City the Company agrees to provide such information in an electronic format. Such location and identification shall be at the sole cost and expense of the Company, without any such cost or expense to the City.

The City agrees to use any information obtained under this subsection only to locate Facilities in connection with Public Projects and further agrees not to disclose such information to anyone other than City employees and its authorized agents requiring such information to locate Facilities in connection with Public Projects, except as may otherwise be required by law. The City and the Company agree that such information is confidential and proprietary. The City and the Company also agree that such information shall remain the sole property of the Company. The City and the Company further agree that such information shall not constitute an open public record as that term is defined by the Kansas Open Records Act of 1984, codified as amended at K.S.A. 45-215 et seq. In the event that the City shall be required to disclose such information, the City shall provide the Company advance notice of its intended disclosure of such information and shall take such action as may be reasonably required to cooperate with the Company in safeguarding such information.

The Company agrees to indemnify and to hold the City harmless from any and all penalties or costs, including attorneys’ fees, arising out of the actions of the Company or of the City at the written request of the Company, in seeking to safeguard the confidentiality of information provided to the City by the Company under this section.

In the event that such information is required by law to be publicly disclosed, then the Company shall have no further obligation under this section to provide the City with such information.

Except in cases of emergency or routine maintenance, a minimum of forty-eight (48) hours prior to construction, reconstruction, location, or relocation of any Facilities in a Public Right of Way, the Company shall submit to the Department of Public Works for approval, plans and specifications related to the proposed construction, reconstruction, location, or relocation. The City shall not unreasonably withhold, delay, or condition approval of said plans and specifications. The City’s review of the plans and specifications shall be confined to matters affecting the interests of the City.

(e)   Except in cases of emergency, the Company shall notify the City not less than twenty-eight (28) days in advance of any construction, reconstruction, repair, location, or relocation of Facilities that would require any street closure or that would reduce the traffic flow to less than two lanes of moving traffic. The City shall follow its policies in the approval or denial of such authority, neither of which shall be unreasonably withheld, conditioned, or delayed. Except in cases of emergency, no such closure shall take place without the prior authorization of the City.

In addition, all work performed in the traveled Public Rights of Way that, in any way, affects vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected. For all work performed in the traveled Public Rights of Way, the Company shall comply with the Manual for Uniform Traffic Control Devices {MUTCD) and the City’s regulations, rules, and orders regarding the placement of signs, barricades, and other safeguards, copies of which shall, upon written request, be made available to the Company, its employees, agents, or contractors.

(f)   As reasonably necessary, the Company shall relocate or adjust any of its Facilities located in a Right of Way for a Public Project with no less than ninety (90) days prior written notice from the City. Such relocation or adjustment shall be performed by the Company, at its sole cost and expense, without any cost or expense to the City and shall be subject specifically to the rules and regulations of the City.

(g)   It shall be the sole responsibility of the Company to take adequate measures to protect and to defend its Facilities in the Public Rights of Way from harm and damage. If the Company fails to accurately or timely locate its Facilities when requested, in accordance with the Kansas Underground Utility Damage Prevention Act of 1993, codified as amended at K.S.A. 66-1801 et seq., then the Company has no claim for costs or damages against the City or its authorized agents and contractors or any other party authorized to be in the Public Rights of Way, except to the extent that such harm or damage is caused by any such party’s reckless or intentional conduct. The City agrees to take reasonable precautionary measures, including but not limited to calling for utility locations and observing marker posts, when working near the Company’s Facilities.

(h)   All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of the facilities in the Public Rights of Way shall be followed at all times work is performed in the Public Rights of Way. Additionally, all work performed in the Public Rights of Way shall be in compliance with all applicable federal, state, and local laws and regulations in effect at the time any such work is performed.

(i)    The City shall have the authority to prohibit the Company’s use or occupation of a specific portion of any Public Right of Way that is environmentally sensitive, as defined by federal, state, or local law or regulation, or that lies within a previously designated historic district, as defined by federal, state, or local law.

(j)    Grantee shall participate in the Kansas One Call utility location program.

SECTION 4. COMPENSATION TO THE CITY.

(a)   In consideration of this Franchise Contract, Grantee agrees to remit to the City a franchise fee of 5% of Gross Receipts. To determine the franchise fee, Grantee shall calculate the Gross Receipts and multiply such receipts by 5%. Thereafter, subject to subsection (b)hereafter, compensation for each calendar year of the remaining term of this Franchise Contract shall continue to be based on a sum equal to 5% of Gross Receipts, unless the City notifies Grantee prior to ninety days (90) before the end of the calendar year that it intends to switch to an Access line fee in the following calendar year; provided, such Access line fee shall not exceed $2.00 per Access line per month. In the event the City elects to change its basis of compensation, nothing herein precludes the City from switching its basis of compensation back; provided the City notifies Grantee prior to ninety days (90) before the end of the calendar year.

(b)   The City, subject to the public notification procedures set forth in K.S.A. 12-2001 (m), and amendments thereto, may elect to adopt an increased Access Line Fee or Gross Receipts Fee subject to the provisions and maximum fee limitations contained in K.S.A. 12-2001, and amendments thereto, or may choose to decline all or any portion of any increase in the Access line fee.

(c)   Grantee shall pay on a monthly basis without requirement for invoice or reminder from the City, and within 45 days of the last day of the month for which the payment applies franchise fees due and payable to the City. If any franchise fee, or any portion thereof, is not postmarked or delivered on or before the due date, interest thereon shall accrue from the due date until received, at the applicable statutory interest rate.

(d)   Upon written request by the City, but no more than once per quarter, Grantee shall submit to the City either a 9K2 (gross receipts) or 9KN (access lines) statement showing the manner in which the franchise fee was calculated.

(e)   No acceptance by the City of any franchise fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of any franchise fee payment be construed as a release of any claim of the City. Any dispute concerning the amount due under this Section shall be resolved in the manner set forth in K.S.A. 12-2001, and amendments thereto. Subject to any limitations of Kansas Statute, Grantee’s payment obligations shall survive the expiration or termination of this Contract franchise.

(f)   Unless previously paid, within sixty (60) days of the effective date of this Franchise Contract, Grantee shall pay to the City a one-time application fee of one thousand Dollars ($1,000). The parties agree that such fee reimburses the City for its reasonable, actual, and verifiable costs of reviewing and approving this Franchise Contract.

(g)   The franchise fee required herein pursuant to KS.A. 12-2001(j), shall be in addition to, not in lieu of, all taxes, charges, assessments, licenses, fees and impositions otherwise applicable that are or may be imposed by the City under K.S.A. 12-2001 and KS.A. 17-1902, as amended. The franchise fee is compensation for use of the Public right-of-way and shall in no way be deemed a tax of any kind.

(h)   Grantee shall remit an access line (franchise) fee or gross receipts (franchise) fee to the City on those access lines that have been resold to another telecommunications local exchange service provider, but in such case the City shall not collect a franchise fee from the reseller service provider and shall not require the reseller service provider to enter into a franchise contract ordinance. Such Access line (franchise) fee or Gross Receipts (franchise) fee shall be in the same amount or percentage as the franchise fee set forth in subsection 4 a. hereinabove.

SECTION 5. ACCESS TO INFORMATION.

(a)   The City shall have the right to examine, upon written notice to Grantee, those records necessary to verify the correctness of the franchise fees paid by Grantee. The Grantee, in determining the amount of Gross Receipts subject to the Franchise Fee, agrees to use commercially reasonable efforts to ensure the accuracy of its records and submissions. In the event and to the extent that the accounting submitted to the City is found to be incorrect, due to the Grantee’s failure to use commercially reasonable efforts, then payment shall be made on the corrected amount, it being agreed that the City may accept any amount offered by the Grantee, but the acceptance thereof shall not be deemed a settlement, compromise, or accord and satisfaction, if the amount in dispute is later determined to be incorrect.

(b)   Grantee agrees that all its books, records, documents, contracts, and agreements, as may reasonably be necessary for an effective audit under this Ordinance, shall, upon reasonable notice being given by the City, be opened to the City, including its duly authorized agents, auditors, and employees, for inspection and examination for the purposes of verifying the Grantee’s accounting. The City shall bear the costs of any such audit; unless, however, the audit discloses that the Grantee owes the City money and has failed to use commercially reasonable efforts in rendering its accounting. In that case, the Grantee shall be responsible to the City for the reasonable costs of the audit. Notwithstanding the foregoing, the Grantee shall continue to have the right to require from the City reasonable protection of proprietary information.

SECTION 6. LOCATION OF UNDERGROUND FACILITIES AND EQUIPMENT.

Grantee’s facilities and equipment shall be placed underground as required by City ordinances. Where underground construction is made, the Facilities, appurtenances, and improvements thereto, and any necessary trenching, shall be installed, maintained, or provided by the Grantee in accordance with City ordinances and at the Grantee’s sole cost and expense.

SECTION 7. NO AUTHORITY.

This Franchise Contract does not grant the Grantee the right or the authority to use the Public Right of- Way for any other purpose than the provision of Telecommunications Services. If the Grantee wishes to use the Public Right-of-Way for any other purpose, it shall first negotiate and enter into a separate Franchise Contract or other agreement with the City. If the Grantee wishes to use the Public Right-of-Way for any other purpose than the provision of Telecommunications Services, the City agrees, upon the written request of the Grantee, to commence negotiations in good faith with the Grantee within thirty (30) days of the Grantee’s written request.

SECTION 8. INDEMNITY AND HOLD HARMLESS.

(a)   Grantee shall be responsible for taking adequate measures to protect and defend its Facilities in the Public Right-of-Way from harm or damage. If Grantee 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., Grantee shall have no claim for costs or damages against the City and its authorized contractors unless such parties are responsible for the harm or damage by its negligence or intentional conduct. The City and its authorized contractors shall be responsible for taking reasonable precautionary measures, including calling for utility locations and observing marker posts when working near Grantee’s Facilities.

(b)   Grantee 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 Grantee, any agent, officer, director, representative, employee, affiliate or subcontractor of Grantee, or its respective officers, agents, employees, directors or representatives, while installing, repairing or maintaining Facilities in the Public Right-of Way.

(c)   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 Grantee 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 Grantee and does not create or grant any rights, contractual or otherwise, to any other person or entity.

(d)   Grantee or City shall promptly advise the other in writing of any known claim or demand against either party related to or arising out of Grantee’s or the City’s activities in the Public Right-of-Way.

SECTION 9. INSURANCE REQUIREMENT AND PERFORMANCE BOND

(a)   During the term of this Franchise Contract, Grantee shall carry and maintain insurance coverage at its sole expense, with insurers rated at least A-VII by AM Best and that are eligible to do business in the state of Kansas. Grantee shall provide the following insurance:

(1) Workers’ compensation as provided for under any worker’s compensation or similar law in the jurisdiction where any work is performed with an employers’ liability limit equal to the amount required by law.

(2) Commercial general liability, written on Insurance Services Office (ISO) policy form CG 00 01 or its equivalent, including coverage for contractual liability and products completed operations liability on an occurrence basis and not a claims made basis, with a 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 included as an additional insured with respect to liability arising from Grantee’s operations under this Franchise Contract.

(b)   As an alternative to the requirements of subsection (a), Grantee may demonstrate to the satisfaction of the City that it is self-insured and as such Grantee has the ability to provide coverage in an amount not less than one millions dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) 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 Grantee, or alleged to so have been caused, in whole or in part, by Grantee or occurred as respects this Contract franchise.

(c)   Grantee shall, as a material condition of this Contract franchise, prior to the commencement of any work and prior to any renewal thereof, deliver to the City a certificate of insurance on an ACORD form or evidence of self-insurance evidencing that the above insurance is in force and will not be cancelled or non-renewed, or modified with respect to areas and entities covered without first giving the City thirty (30) days prior written notice. Grantee further will give the City not less than 30 days written notice of any modification of any required insurance policy.

(d)   Grantee shall, as a material condition of this Contract franchise, prior to the commencement of any work and prior to any renewal thereof, deliver to the City a performance bond in the amount of Ten Thousand Dollars ($10,000), payable to the City to ensure the appropriate and timely performance in the construction and maintenance of Facilities located in the Public right-of-way. The required performance bond must be issued by a surety company authorized to transact business in the state of Kansas and satisfactory to the City Attorney in form and substance.

(e)   As of the date of this Contract franchise, Grantee anticipates a limited scope of work, which is described in Exhibit A, attached. If Grantee later expands the scope of work, then the City, at its reasonable discretion, upon thirty (30) days prior notice, may require Grantee to increase the amount of the performance bond or letter of credit. Such increase shall not exceed a total of $50,000.

SECTION 10. REVOCATION AND TERMINATION.

(a)   In case of failure on the part of Grantee to comply with any of the provisions of this Franchise Contract, or if Grantee should do or cause to be done any act or thing prohibited by or in violation of the terms of this Franchise Contract, then the Grantee shall forfeit all rights, privileges and franchise granted herein, and all such rights, privileges, and franchise hereunder shall cease, terminate, and become null and void, and this Franchise Contract shall be deemed revoked or terminated, provided that said revocation or termination shall not take effect until the City has completed the following procedures:

(1)   Before the City proceeds to revoke and terminate this Contract franchise, it shall first serve a written notice upon Grantee, setting forth in detail the neglect or failure complained of, and Grantee shall have thirty (30) days thereafter in which to comply with the conditions and requirements of this Contract franchise;

(2)   If at the end of such thirty (30) day period the City deems that the conditions have not been complied with, the City shall take action to revoke and terminate this Contract franchise by an affirmative vote of the Governing Body present at the meeting and voting, setting out the grounds upon which this Contract franchise is to be revoked and terminated; provided, to afford Grantee due process, Grantee shall fust be provided reasonable notice of the date, time and location of the Governing Body’s consideration, and shall have the right to address the Governing Body regarding such matter;

(3)   Upon any determination by the City Council to revoke and terminate this Contract franchise, Grantee shall have thirty (30) days to appeal such decision to the District Court of Wyandotte County, Kansas. This Contract franchise shall be deemed revoked and terminated at the end of this thirty (30) day period, unless Grantee has instituted such an appeal. If Grantee does timely institute such an appeal, such revocation and termination shall remain pending and subject to the court’s final judgment. Provided, however, that the failure of Grantee to comply with any of the provisions of this Contract franchise or the doing or causing to be done by Grantee of anything prohibited by or in violation of the terms of this Contract franchise shall not be a ground for the revocation or termination thereof when such act or omission on the part of Grantee is due to any cause or delay beyond the control of Grantee or to bona fide legal proceedings.

(b)   Nothing herein shall prevent the City or Grantee from invoking any other remedy that may otherwise exist at law.

SECTION 11. RESERVATION OF RIGHTS.

(a)   The City specifically reserves its right and authority as a customer of Grantee and as a public entity with responsibilities towards its citizens, to participate to the full extent allowed by law in proceedings concerning Grantee’s rates and services to ensure the rendering of efficient Telecommunications service and any other services at reasonable rates, and the maintenance of Grantee’s property in good repair.

(b)   In granting its consent hereunder, the City 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, its Home Rule powers 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.

(c)   In granting its consent hereunder, Grantee 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.

(d)   In entering into this Franchise Contract, neither the City’s nor Grantee’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 Franchise Contract, neither the City nor Grantee waive any rights, but instead expressly reserve any and all rights, remedies, and arguments the City or Grantee 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 (e.g. the City’s Right-of-Way ordinance referenced in Section 3(c) of this Franchise Contract), and/or rulings .

SECTION 12. FAILURE TO ENFORCE.

The failure of either the City or the Grantee to insist in any one or more instances upon the strict performance of any one or more of the terms or provisions of this Franchise Contract 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 Grantee unless said waiver or relinquishment is in writing and signed by both the City and the Grantee.

SECTION 13. TERM AND TERMINATION DATE.

(a)   This Franchise Contract shall be effective for an initial term of five (5) years term from the effective date of this Franchise Contract. Thereafter, this Contract franchise will renew for two (2) additional one (1) year terms, unless either party notifies the other party of its intent to terminate the Contract franchise at least ninety (90) days before the termination of the then current term. The additional term shall be deemed a continuation of this Contract franchise and not as a new franchise or amendment. Upon written request of either the City or Grantee, this Contract franchise shall be renegotiated at any time in accordance with the requirements of state law 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 Grantee, including but not limited to the scope of the Contract franchise granted to Grantee or the compensation to be received by the City hereunder.

(b)   Upon written request of either the City or Grantee, this Franchise Contract shall be renegotiated at any time in accordance with the requirements of state law 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 Grantee, including but not limited to the scope of the Franchise Contract granted to Grantee or the compensation to be received by the City hereunder.

(c)   If any clause, sentence, section, or provision of K.S.A. 12-2001, et seq., 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 Grantee may elect to terminate the entire Franchise Contract. In the event of such invalidity, if Grantee is required by law to enter into a Franchise Contract with the City, the parties agree to act in good faith in promptly negotiating a new Franchise Contract.

(d)   Amendments under this Section, if any, shall be made by franchise contract ordinance as prescribed by statute. This Franchise Contract 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 Franchise Contract upon the termination date of this Franchise Contract, the parties by written mutual agreement may extend the termination date of this Franchise Contract to allow for further negotiations. Such extension period shall be deemed a continuation of this Franchise Contract and not as a new franchise contract ordinance or amendment.

SECTION 14. POINT OF CONTACT AND NOTICES

Grantee shall maintain with the City a local point of contact who shall be available at all times to act on behalf of Grantee in the event of an emergency. Grantee shall provide the City with said local contact’s name, address, telephone number, fax number and e-mail address. Emergency notice by Grantee to the City may be made by telephone to the City Clerk or the Public Works Director. All other notices between the parties shall be in writing and shall be made by personal delivery, 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 seven (7) 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 Grantee observed holidays excepted.

The City:                                                                          The Grantee

City of Bonner Springs                                                      Midcontinent Communications Name

200 E 3rd St                                                                      3901 N. Louise Ave

Bonner Springs, KS 66012                                                 Sioux Falls, SD 57107

Attn: City Clerk 913-667-1716                                           800-888-1300

cityclerk@bonnersprings.org                                             notices@midco.com

or to replacement addresses that may be later designed in writing.

SECTION 15. TRANSFER AND ASSIGNMENT.

This Contract franchise is granted solely to Grantee and shall not be transferred or assigned without the prior written approval of the City; provided that such transfer or assignment may occur without written consent of the City to: a wholly owned parent or subsidiary; between wholly owned subsidiaries; or, to an entity with which Grantee is under common ownership or control, upon written notice to the City.

SECTION 16. 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 and 66-1220a, et seq., and amendments thereto. Grantee agrees to indemnify and hold the City harmless from any and all penalties or costs, including attorney’s fees, arising from the actions of Grantee, or of the City at the written request of Grantee, in seeking to safeguard the confidentiality of information provided by Grantee to the City under this Franchise Contract.

SECTION 17. ACCEPTANCE OF TERMS.

Grantee shall have sixty (60) days after the final passage and approval of this Contract franchise to file with the City Clerk its acceptance in writing of the provisions, terms and conditions of this Contract franchise, which acceptance shall be duly acknowledged before some officer authorized by law to administer oaths; and when so accepted (the “Effective Date”), this Contract franchise and acceptance shall constitute a contract between the City and Grantee subject to the provisions of the laws of the State of Kansas.

SECTION 18. PUBLICATION COSTS.

In accordance with statute, Grantee shall be responsible for payment of all costs and expense of publishing this Franchise Contract, and any amendments thereof.

SECTION 19. NON-WAIVER.

The failure of either the City or the Grantee to insist in any one or more instances upon the strict performance of one or more of the terms or provisions of this Franchise Contract shall not be construed as a waiver or relinquishment of any right in the future to enforce such term or provision, and the same shall continue in full force and effect. No waiver or relinquishment of any term or provision of this Franchise Contract shall be deemed to have been made by the City or the Grantee, unless said waiver or relinquishment is in writing and signed by both the City and the Grantee.

SECTION 20. SEVERABILITY.

If any clause, sentence, or section of this Franchise Contract, 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 Grantee may elect to declare the entire Franchise Contract is invalidated if the portion declared invalid is, in the judgment of the City or Grantee, an essential part of the Franchise Contract.

SECTION 21. FORCE MAJEURE.

Every provision hereof shall be reasonably subject to acts of God, fire, strikes, riots, floods, war, and other disasters or events beyond the reasonable control of the City or the Grantee.

SECTION 22. GOVERNING LAW.

The terms of this Franchise Contract shall be governed by the laws of the State of Kansas.

(10-23-2023)