SECTION 2 . - Grant of Franchise.  


Latest version.
  • (a) For and in recognition of the mutual consideration set forth in this Franchise Agreement, the satisfaction of which is hereby acknowledged by both parties, Level 3, as successor in interest pursuant to City of Topeka Contract No. 29704 to do business in the State of Kansas is hereby granted a nonexclusive Franchise to construct, place, replace, repair, maintain, extend, and operate its facilities along, across, upon, under, or in the City's Public Rights of Way, for the purpose of providing a fiber optic network to provide digital data and/or voice transport.

    The City may, in writing, approve amendments to the locations and to the routes of Level 3's fiber optic facilities, which approval shall not be unreasonably withheld, conditioned or delayed.

    (b)

    This Franchise Agreement does not grant Level 3 the authority or right to provide end user "Cable Service." For the purposes of this agreement, "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.

    (c)

    The grant of this Franchise Agreement shall not convey title, equitable or legal, to Level 3 in the Public Rights of Way of the City and shall only give to Level 3 the right to occupy the Public Rights of Way of the City for the purposes and for the time stated in this Franchise Agreement. The Franchise Agreement does not:

    (1)

    Grant Level 3 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 valid written consent of the City or the third party.

    (2)

    Grant Level 3 the authority to construct, to operate, or to maintain any Facilities and any related appurtenances and improvements thereto on any property owned by the City outside a Public Right of Way, including but not limited to public parks, City Hall, public works facilities, or other public property. The parties agree that the City and Level 3 shall—if it becomes necessary—enter into separate agreements for the placement of Facilities and any related appurtenances and improvements thereto on any City-owned property not located in a Public Right of Way.

    (3)

    Excuse Level 3 from obtaining appropriate access or attachment agreements before locating its Facilities and any related appurtenances and improvements thereto on any property or facilities owned or controlled by the City or by any third party.

    (d)

    As noted in subsection (b), Level 3 shall not provide any additional services for which a separate franchise is required by the City without first obtaining a separate franchise or amending this Franchise Agreement. In particular, this Franchise Agreement does not grant Level 3 the right to provide cable service as a cable operator (as defined by 47 U.S.C. § 522(5)) within the City. Level 3 also agrees that this Franchise Agreement 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 FCC regulations promulgated pursuant to 47 U.S.C. § 573. Level 3 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.

    (e)

    Nothing in this Franchise Agreement shall be construed as giving Level 3 any exclusive rights or privileges.

    (f)

    Level 3 or Level 3's contractor shall, prior to commencing any construction of Level 3's Facilities in a Public Right of Way, post a payment bond an amount equal to the estimated construction costs assuring that the construction of Level 3's Facilities in the Public Right of Way will be constructed without the attachment of any construction liens. Such payment bond will be returned by the City and cancelled upon Level 3 providing reasonable proof of payment for the construction.

    (g)

    Notwithstanding anything herein to the contrary, Level 3 reserves all rights it may have under applicable federal, state and local laws affecting this Franchise Agreement, including but not limited to K.S.A. 12-2001.