AN ORDINANCE GRANTING UNITED TELEPHONE COMPANY OF KANSAS, INC., ITS SUCCESSORS AND ASSIGNS, A TELEPHONE FRANCHISE; PRESCRIBING THE TERMS AND CONDITIONS THEREOF, AND REPEALLNG ORDINANCES OR PARTS OF ORDINANCES CONFLICTING WITH THE TERMS THEREOF.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF GARNETT, KANSAS:
SECTION 1: In consideration of the benefits to be derived by the City of Garnett, Kansas (hereinafter, “City”) for and on behalf of its inhabitants there is hereby granted to United Telephone Company of Kansas, Inc., its successors and assigns (hereinafter, “Franchisee”) the right, privilege, and authority for a period of ten (10) years from the effective date of this ordinance the privilege of continuing to operate its telephone system and all business incidental to or connected with conducting of a telephone business and system within the City, and to that end Franchisee is hereby granted the right, in operating a telephone system, to construct, install, maintain, and repair all the necessary poles, wires, cables, pole and wire fixtures, telephone plant, and telephone apparatus of whatsoever nature for the purpose of conducting such business; to erect, maintain, and repair such telephone poles and string the same with wire and cable along, upon, across or below the streets, avenues, boulevards, alleys, and other public place of the City, and to construct, lay, maintain, and repair such cable as may be required under those streets, avenues, boulevards, alleys, and other public places for the purpose of such business.
SECTION 2: (a) Franchisee shall pay to the City in arrears five percent (5%) of the annual gross receipts from billings for basic local telephone exchange service rendered wholly within the corporate limits of the City. Such payment shall be made on or before the 1st day of March of each year during the year during the term of this franchise.
(b) In addition to the cash sum determined to be due and owing in subparagraph (a) of this ordinance. Franchisee at its own expense shall install and continuously maintain in good working order two (2) public telephones, including the related booths or enclosure facilities; one such telephone shall be located at the as yet unnamed downtown park location at Fourth & Oak Streets within the City; and the second such telephone at or in the immediate vicinity of the old A.T. & S. F. depot presently being refurbished by the City of Garnett as an adjunct facility to the Prairie Spirit Rail Trail Park being developed and to be administered by the Kansas Department of Parks and Wildlife. The exact location of the said two public telephone stations shall be determined by the City and communicated to the Franchisee. The Franchisee is here by designated as an agent of the City to specify from time to time the long distance carrier for both such public telephones. The City reserves the right to have one such telephone redesignated as semi- public and after having done so may then specify yet an additional location within the corporate limits of the City for the second public telephone required by this ordinance; provided, however, Franchisee may not be required to locate such additional public telephone if the location as specified by the City is an unreasonable distance from an available cable pair; provided, further, that reasonableness of a determination of the availability of such a cable pair shall be based upon the conditions existing at the time of City’s making such designation and with the understanding that a distance of 300 feet or less to an available cable pair shall be conclusively presumed to be a reasonable distance to an available cable pair.
(c) The City agrees to accept the franchise fee due under the terms of sub- paragraph (a) and (b) of this ordinance in lieu of any other license fee or occupation tax which might otherwise be imposed on the Franchisee by the City during the term of this franchise; provided, however, nothing in this section or elsewhere in this ordinance shall be construed:
i. To abrogate any term, provision, or covenant of that certain General Agreement for Joint Use of Wood Poles between the City and the Franchisee dated the 13th day of September, 1972, which said agreement shall continue in full force and effect; all fees due under the terms of such agreement shall be considered separate and apart from any fees imposed or due under the terms of this ordinance, or
ii. To prohibit the imposition of any general ad valorem taxes or any special assessments levied against Franchisee’s real property in accordance with either the taxation laws or the general improvement laws of the State of Kansas.
SECTION 3: Franchisee shall conduct its telephone business in such a manner as shall be to the benefit of the City and its inhabitants, rendering good telephone service at reasonable rates as authorized by the Kansas Corporation Commission or any other state or local governmental agency charged by law with the power to regulate telephone public utilities.
SECTION 4: All poles, overhead wires, cables (aerial or buried) erected in pursuant to this ordinance shall be placed, whether on or under streets, avenues, boulevards, alleys, or other public places, so as not to interfere with ordinary travel on such streets, avenues, boulevards, alleys, or usages of other public places. All apparatus built and installed shall be located and placed so as not to injure any drains, sewers, catch basins, or other like public improvements. If such be injured, Franchisee s hall repair any damages caused to the satisfaction of the City and, in default thereof, the City may repair or cause to be repaired such damage and charge the cost to Franchisee.
SECTION 5: All of Franchisee’s apparatus shall be built, installed and operated in such a manner so as not to interfere unreasonably with the orderly conduct of the business and rights of any other public service corporation having a right or franchise to operate its business in the City. The City reserves the right of reasonable regulation of the erection, construction, or installation of any facilities by the Franchisee and to reasonably designate where such facilities are to be placed within the public ways and places. In the event that anytime during the period of this franchise the City shall lawfully elect to alter or change the grade of any street, alley, or other public way, the Franchisee upon reasonable notice by the City shall remove, relax and relocate its poles, wires, cables, underground conduits, manholes and other telephone fixtures at its own expense.
SECTION 6: Franchisee shall remove, raise, or adjust its aerial plant, after forty-eight (48) hours’ notice by the City for the purpose of permitting the moving of houses or other structures along the streets, of the City. The person or persons for whose benefit such telephone plant is removed, raised, or adjusted, however, shall first secure proper permission from the City for the movement and agree to pay Franchisee for its related costs and damages. An advance deposit from the mover may be required by Franchisee.
SECTION 7: Permission is hereby granted to Franchisee to trim trees upon and overhanging streets, alleys, sidewalks, and public places of the City so as to prevent the branches of such trees from coming into contact with Franchisee’s wires and cables. All such trimming will be done under the supervision and direction of the City Manager or his delegate.
SECTION 8: The recovery of the charges from Franchisee’s customers is subject to the jurisdiction of the regulatory and state authorities and not the City. The obligation of Franchisee to pay compensation under this ordinance is contractual; the City makes no requirements as to the method Franchisee uses to recover the payments.
SECTION 9: This franchise grant shall be for a term of ten (10) years from its effective date, and for successive terms of like duration unless written notice is given by either the City or the Franchisee to the other at least 120 days prior to the expiration of the initial term or any successive term of its intention to terminate the same at the expiration of the then current term.
SECTION 10: This franchise and all rights hereunder may be assigned by the Franchisee, as well as all succeeding Franchisees, at their option, and the successors and assigns shall succeed to all the rights, duties, and liabilities of the Franchisee hereunder.
SECTION 11: Nothing herein contained shall be construed as giving to the Franchisee any exclusive privilege or right.
SECTION 12: This ordinance shall take effect and be in force from and after 60 days from the date of its final passage, and upon publication in an official newspaper of the City of Garnett.
SECTION 13: If any portion of this ordinance for any reason is held to be invalid, such portion shall be considered severed from the remainder of this ordinance. The remainder shall be unaffected and shall continue in full force and effect.
(12-28-1995)