AN ORDINANCE OF THE CITY OF ELLIS, ELLIS COUNTY, KANSAS. GRANTING TO THE EAGLE COMMUNICATIONS, INC., A KANSAS CORPORATION, ITS SUCCESSORS AND ASSIGNS, FOR A TERM OF FIVE (5) YEARS, THE RIGHT, AUTHORITY, POWER AND FRANCHISE TO USE THE STREETS, AVENUES, BOULEVARDS, ALLEYS AND OTHER PUBLIC PLACES IN THE CITY OF ELIS, KANSAS, TO CONDUCT THE BUSINESS OF CONSTRUCTING, INSTALLING, MAINTAINING, MANAGING AND OPERATING A TELECOMMUNICATIONS SYSTEM IN THE CITY OF ELLIS, KANSAS.
Section 1. The Eagle Communications, Inc., a Kansas corporation duly authorized to do business in the State of Kansas and its successors, lessees and assigns (hereinafter called the “Grantee”), is hereby granted, pursuant to K.S.A. 12- 2001 et. seq. as amended from time to time hereafter, in the operation of Grantee’s telecommunications system and its business and service incidental to or connected therewith, including, but not limited to, all telecommunications services now or hereafter authorized by the Kansas Corporation Commission or the Federal Communications Commission (hereinafter called the “System”), within the City of Ellis, Kansas (hereinafter called the “City”), the franchise and right to use and occupy the streets and other public places within the corporate limits of the City, as the same now or may hereafter exist, for the Grantee’s System, including, but not limited to, the right to enter and construct, erect, locate, relocate, repair and rebuild in, on, under, along, over and across the streets, sidewalks, alleys, avenues, parkways, lanes, bridges, utility and other easements, rights-of-way and other public places of the City, all towers, poles, cables, amplifiers, conduits, pole and wire fixtures, telecommunications plant and apparatus of whatsoever kind and nature and any and all other associated and related facilities owned, leased or otherwise used by the Grantee for the ownership and operation of the System within the City and environs thereof during the continuance of the franchise hereby granted (hereinafter called the “Franchise”), but expressly subject to the restrictions and conditions hereinafter set forth.
Section 2. This Franchise is non-exclusive and shall take effect and be in force from and after the expiration of sixty (60) days from the date of its final passage by the Governing Body of the City and shall be for a term of five (5) years from the effective date hereto. Upon written request of either the City or the Grantee, this Franchise may be reviewed after five (5) years from said effective date of this ordinance, and every five (5) years thereafter. Said request must be served upon the other party at least one hundred twenty (120) days prior to the end of every five (5) years of the term of this Ordinance, and shall state specifically, the amendments desired. The City and Grantee shall negotiate in good faith in an effort to agree upon mutually satisfactory amendments.
Section 3. The Grantee shall operate the System in such a manner as shall be to the benefit of the City and its inhabitants, providing good telecommunications service therefrom: that the Grantee shall have the authority to promulgate such rules, regulations, terms and conditions of its business as shall be reasonably necessary to enable the Grantee to exercise its rights and operate the System under this Franchise; and that the Grantee shall have the right and power to fix, charge, collect and receive reasonable rates for the telecommunications services provided for hereunder as authorized by the Kansas Corporation Commission and any other governmental agency charged by law with the power to regulate telecommunications public utilities.
Section 4. All newly constructed, permanent wires, cable and fiber used in connections with the System in the City shall follow the electric utilities route. In the event the electric utility buries its cable, wires and appurtenances, the grantees shall be required to construct its facilities underground. In the event the electric utility constructs its facilities overhead, grantee shall be permitted to construct its facilities overhead to be placed on utility poles. Any and all such construction shall be located so as not to injure unnecessarily any drains, sewers, catch basins or other public improvements and, if such be injured, the Grantee shall repair any damage so caused to the satisfaction of the City. The City reserves the right of reasonable regulation of the erection, construction or installation of any facilities by the Grantee and to reasonably designate where such facilities are to be placed within the public ways and places of the City.
Section 5. The Grantee shall, on the request of any person holding a building moving permit issued by the City or any other agency empowered to issue the same, temporarily move, raise or lower its cables, wires another plant to permit the moving of any such building or buildings. The expense of such moving of wires, cables and plant shall be paid by the person requesting the same, and the Grantee shall have the authority to require such payment in advance. The Grantee shall be given not less than fort-eight (48) hours advance notice of any such anticipated moving of a building or buildings.
Section 6. The Grantee shall have the authority to trim trees, shrubs and other vegetation located on any streets, alleys, sidewalks and public places of the City so as to prevent the branches of such trees, shrubs, and vegetation from coming in contact with the wires, cables and plant of the Grantee, all trimming to be done under the supervision and direction of the City and at the expense of the Grantee.
Section 7. In consideration for the rights, privileges and franchise hereby granted, and as compensation to the city for the use of its public ways and places by the Grantee and further as compensation to the City for administration of this Franchise, and in lieu of all city occupation and license fees and taxes, the Grantee shall pay to the City, in arrears, an amount equal to three percent (3%) of the annual gross receipts derived from monthly telecommunications services (installation and one time charges are not included) rendered wholly within the corporate limits of the City. Payments shall be made semi-annually as follows (i) for the period of January 1 through June 30 of each year, or part thereof, during the term of the Franchise, they payment shall be made not later than October 1 of the same year; and (ii) for the period of July 1 through December 31 of each year, or part thereof, during the term of the Franchise, the payment shall be made not later than April 1 of the following year. In the event of the termination of the Franchise, payment of franchise fees for the final reporting period shall be made on the applicable payment date above even though the Franchise is no longer in effect. All franchise and copyright fees shall be itemized as separate charges and shall be charged back to grantee’s customers.
Section 8. It shall be the policy of the city to amend this Franchise, upon application for the Grantee, when deemed advisable or necessary by the City, to enable the Grantee to take advantage of any developments in the field of telecommunications systems and services which will afford the Grantee an opportunity to more effectively, efficiently or economically serve its customers, and to enable the Grantee to confirm to the rules and regulations of any and all governmental agencies charged by law with regulation of telecommunications public utilities.
Section 9. Grantee shall maintain service personnel on call on a 24-hour, seven days a week basis to respond to customer service request calls. In addition, Grantee shall provide an active cable outlet in the City Hall office for emergency and monitoring purposes at no cost to the city as well as a payment drop box located within the City of Ellis.
Section 10. Nothing herein contained shall be construed as giving to the Grantee any exclusive privileges, nor shall this Franchise affect any prior or existing rights of the Grantee to maintain telecommunications service with the City.
Section 11. This Franchise, and all rights hereunder, may be assigned by the Grantee, as well as any succeeding grantee, at its option, and such successors and assigns shall succeed to all the rights, duties and obligations of the Grantee hereunder.
Section 12. If any portion of this Ordinance, for any reason whatsoever, is held to be invalid, such portion shall be considered severed from the remainder of this Ordinance and the remainder shall be unaffected and continue in full force and effect.
Section 13. All ordinances and parts of ordinances in conflict herewith are hereby repealed as of the effective date of this Ordinance.
Section 14. All provisions of this Ordinance shall be binding upon the Grantee and all successors, lessees and assigns of the Grantee, whether expressly stated herein or not, and all the rights, authorities, powers, grants and privileges secured by this Ordinance to the Grantee shall be held to inure to the benefit of the Grantee and all successors, lessees and assigns of the Grantee.
(05-15-06)