APPENDIX B - FRANCHISES

ORDINANCE NO. 778

AN ORDINANCE, GRANTING TO THE KANSAS POWER AND LIGHT COMPANY, (ALSO KNOWN AS KPL GAS SERVICE), A KANSAS CORPORATION, ITS SUCCESSORS AND ASSIGNS, A NATURAL GAS FRANCHISE, PRESCRIBING THE TERMS THEREOF AND RELATING THERETO, AND REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES INCONSISTENT WITH OR IN CONFLICT WITH THE TERMS THEREOF.

Section 1. That in consideration of the benefits to be derived by the City of Tonganoxie, Kansas, and its inhabitants, there is hereby granted to the Kansas Power and Light Company, a Kansas corporation, hereinafter sometimes designated as company, the company being a corporation operating a system for the transmission of electric current between two or more incorporated cities in the State of Kansas, and also operating a system for the transmission and distribution of natural gas in the State of Kansas, the right, privilege, and authority for a period of 20 years from the effective of this ordinance, to occupy and use the several streets, avenues, alleys, bridges, parks, parkings, and public places of the city, for the placing and maintaining of pipelines and other equipment necessary to carry on the business of selling and distributing natural gas for all purposes to the City of Tonganoxie, Kansas, and its inhabitants, and through the city and beyond the limits thereof; to obtain the natural gas from any source available, and to do all things necessary or proper to carry on the business in the City of Tonganoxie, Kansas.

Section 2. As further consideration for the granting of this franchise, and in lieu of any city occupation, license, or revenue taxes, the company shall pay to the city during the term of this franchise five percent (5%)* of its gross revenue from the sale of natural gas within the corporate limits of the city, such payment to be made monthly for the preceding monthly period.

Section 3. That all mains, services, and pipes which shall be laid or installed under this grant shall be so located and laid as not to obstruct or interfere with any water pipes, drains, sewers, or other structures already installed.

Section 4. Company shall in the doing of the work in connection with its gas mains, pipes, and services, avoid, so far as may be practicable, interfering with the use of any street, alley, avenue, or other public thoroughfare, and where company disturbs the surface of a street, alley, avenue or other public thoroughfare, it shall at its own expense and in a manner satisfactory to the duly authorized representatives of the city replace such paving or surface in substantially as good condition as before the work was commenced.

Section 5. It is recognized that the natural gas to be delivered hereunder is to be supplied from a pipeline system transporting natural gas from distant sources of supply; and the company, by its acceptance of this franchise as hereinafter provided, does obligate itself to furnish natural gas in such quantity and for such length of time, limited by the terms hereof, as the sources and pipelines are reasonably capable of supplying.

Section 6. That company, its successors and assigns, in the construction, maintenance, and operation of its natural gas system, shall use all reasonable and proper precaution to avoid damage or injury to persons and property, and shall hold and save harmless the city from any and all damage, injury, and expense caused by the sole negligence of the company, its successors and assigns, or its or their agents or servants.

Section 7. That within 10 days from and after the passage and approval of this ordinance, company shall file the same with the State Corporation Commission for the commission’s approval.

Section 8. That within 60 days from and after the approval of this ordinance by the State Corporation Commission, company shall file with the city clerk its unconditional written acceptance of this ordinance. The ordinance shall become effective and be in force and shall be and become a binding contract between the parties hereto, their successors and assigns, from and after its passage, approval, and publication as required by law, and acceptance by the company.

Section 9. That this ordinance, when accepted as above provided shall constitute the entire agreement between the city and the company relating to this franchise and the same shall supersede and cancel any prior understandings, agreements, or representations regarding the subject matter hereof, or involved in negotiations pertaining thereto, whether oral or written.

Section 10. This franchise is granted pursuant to the provisions of K.S.A. 12-824.

(9-28-87)

*    Code reviser’s note: This amount was amended by Ord. 1397, § 2, which provides: “That the franchise fee to be collected by the Franchisee from its gross revenues collected within the City and paid to the City as consideration for its franchise agreement shall be increased from four percent (4%) to five percent (5%) from all sales of natural gas services within the corporate limits of said City, such payment to be made monthly for the preceding monthly period.”

ORDINANCE NO. 921

AN ORDINANCE RELATING TO A CABLE TELEVISION SYSTEM AND SERVICES IN THE CITY OF TONGANOXIE, IN THE COUNTY OF LEAVENWORTH, IN THE STATE OF KANSAS, GRANTING A NON-EXCLUSIVE FRANCHISE TO DOUGLAS CABLE COMMUNICATION, L.P., TO CONSTRUCT, OPERATE AND MAINTAIN A CABLE TELEVISION SYSTEM AND SERVICE WITHIN THE AREA OF THE CITY OF TONGANOXIE, KANSAS.

Section 1. Authority. This ordinance is passed and approved by the City of Tonganoxie, Kansas, hereinafter city, and enacted pursuant to the laws of the State of Kansas.

Section 2. Franchise Grant. Pursuant to a law, a non-exclusive franchise is granted to Douglas Cable Communication, L.P., hereinafter grantee, to construct, own, and operate a cable television system in the city. This non-exclusive franchise is granted for a period of 10 years, the period to end December 31, 2005. This franchise shall vest all the rights, privileges, and immunities of a cable system with Douglas Cable Communications, L.P.; however, this franchise shall be subject to and conditional upon all the terms, conditions, duties, and obligations established by the State of Kansas, the Federal Communications Commission and this ordinance.

Section 3. Rights Conferred by Franchise. (a) This ordinance confers upon the grantee the non-exclusive rights, authority, power and franchise to establish, construct, acquire, own, operate, and maintain a cable television system within the city and to render, furnish, and sell such service to the inhabitants of the city and its environs, and to use and occupy the streets and other public places within the designated limits of the city as the same now exists or may hereafter exist for its cable system, including the right to enter and construct, erect, locate, relocate, repair, rebuilding, in, on, under, along, over, and across the streets, alleys, avenues, parkways, lanes, bridges, and to make use of all land dedicated or acquired for public use and locations approved by the city engineer, and other public places in the city, for all towers, poles, cables, amplifiers, conduits, and other facilities owned, leased, or otherwise used by grantee for the furnishing of cable service within the city during the continuance of the franchise hereby granted, and in accordance with the laws, statutes, ordinances, rules and regulations of the United States, the Federal Communications Commission (FCC), the State of Kansas, the County of Leavenworth, and the City of Tonganoxie, Kansas.

(b)    The poles for the grantee’s distribution system shall be those erected and maintained by anyone authorized to maintain poles in the streets or public ways when and where practicable. It is contemplated that reasonable standard pole attachment agreements will be entered into with non-municipal utilities as required by Douglas Cable Communications, L.P. Grantee is specifically granted the right to set its own poles in the event reasonable joint use is not possible or feasible. In any areas where electric or telephone utilities are underground and in any new subdivisions or new additions where the utilities are underground, the grantee will lay its cable underground.

(c)    The city reserves the right to 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.

Section 4. Installation of Cable System. (a) The installation of the cable system shall be in accordance with the requirements of the National Electric Safety Code, and all applicable rules and regulations of the Federal Communications Commission.

(b)    The grantee, at its expense, shall have the authority to trim trees upon and overhanging streets, alley, sidewalks, and public places of the city so as to prevent the branches of such trees from coming in contact with the wires and cables of grantee.

(c)    The grantee shall at its expense, protect, support, temporarily disconnect, relocated or remove any property of the grantee located upon streets, rights of way and easements of the city, when required by the city because of traffic conditions, public safety, street vacation, street construction, change or establishment of street grade, installation of sewers, drains, water pipes, municipal power lines, and tracks or any other type of structure or improvement by the city on city facilities.

(d)    Any pavements, sidewalks, or curbing taken upon by grantee, and any and all excavation made by grantee shall be done only after notice to city, and shall be done in such a manner so as to cause the lease reasonable inconvenience to the inhabitants to the city and to the general public. All repairs and replacements shall be made at the expense of the grantee, with all reasonable speed, leaving such disturbed areas in as good condition as existed prior to any such taking up or excavation.

(e)    The grantee shall make available cable service to all residents of the city on an equitable basis. The inability of grantee to provide service to a resident of the city shall be a material violation of this contract, unless grantee shall present to the city evidence that a cost benefit analysis has been performed and the extension of service is more costly by a factor of 1.25 times than the economic return on the extension.

Section 5. Relocation of Property. The grantee, at the request of any person holding a permit issued by the city, shall temporarily remove, raise, or lower its wires or cables to permit the moving of buildings or equipment. The expense of such temporary removal, raising, or lowering shall be paid by the person requesting the same, and the grantee may require such payment in advance. The grantee shall be given not less than 72 hours advance notice for such temporary wire or cable change. The charge by the grantee for such relocation shall not exceed grantee’s cost, and in any event shall be more than a reasonable sum for such services.

Section 6. Rates and Charges. The grantee shall have the authority to promulgate such rules, regulations, terms and conditions of its business as shall be reasonable necessary to enable the grantee to exercise its rights and perform its services under this franchise and to assure an uninterrupted service to each and all of its customers. Grantee shall abide by the rules and regulations promulgated by the FCC or other applicable federal authority. Grantee shall inform the city via certified mail of all rate and charge options made available by current or future federal legislation, regulations, or rulings.

Section 7. Indemnification. The grantee agrees to hold and save the city harmless from any and all liability that may arise out of the construction, maintenance, operations, or use of grantee’s system and works and the provision cable television services. The grantee agrees to provide and keep in force adequate liability insurance therefore, to the extent of bodily injury limits of $500,000/$500,000 and of property damage limit of $300,000/$300,000 naming the city as an additional insured, as its interest may appear. Grantee shall also provide and maintain insurance under a Broad Form Automobile Policy, with $100,000/$500,000 coverage limits and workmen’s compensation insurance with Kansas statutory limits. All insurance shall be issued by a company authorized to do business in the State of Kansas, and shall be provided before the grantee, its successors and assigns thereof, shall commence the construction or other operations mentioned in this section. The city shall notify the grantee’s representative or employee in the city, if any, within 10 days after presentation of any demand or claim that may arise, whether by suit or otherwise, against the city. Grantee shall maintain on file with the city clerk at all times a current certificate of insurance. All insurance policies shall, if possible, provide for not less than 30 days notice of cancellation. The policies mentioned herein shall name the city, its officers, boards, commissions, agents, and employees as additional insureds.

Section 8. Payment to the City. In consideration of 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 to properly regulate the activities of grantee, the grantee shall, on or before the last day of January and the last day of July of each year to which this franchise is effective, pay to the city a sum equal to three percent of gross revenues, less uncollectible, for cable television service within the then existing corporate limits of the city for the preceding six months period ending on the last day of December and the last day of June respectively. The books of grantee shall be open to inspection by the city at all reasonable times to verify the accuracy of the computation and correctness of the report which shall accompany payment. Grantee shall keep books and records pursuant to established practices using generally accepted auditing procedures. This portion of the franchise may be renegotiated every two years. This fee shall be considered rent for the use of city owned right-of-ways, alleys, streets, easements, and property of any nature.

Section 9. Customer Service. Grantee shall maintain a "1-800" toll free telephone number whereby residents of the city may leave requests for service, repairs or adjustments, and leave other messages or complaints, with the grantee at any time during normal business hours, all without any toll charges to any resident or customer.

Any interruption of service based on facility or technical difficulties that last 24 hours or more must be reported to the city. A fact sheet containing the nature of the interruption, the estimated repair time, and plans for mitigating the interruption shall be faxed to the city at the close of business (4:00 p.m.) on the day of the interruption, if the interruption is anticipated to last 24 hours or longer.

Section 10. Service to Public Buildings, Provision of Facilities. Grantee shall provide cable services on the request of and at no cost to the city, when requested site includes any one of the following: a fire or police department, public school or administrative building, city hall or public facility, or educational institution.

Grantee shall at the request of the city provide adequate public, educational, and governmental access channel capacity, facilities, and financial support. These costs shall not be calculated as a portion of the franchise fee. Grantee shall negotiate a reasonable provision of the access channel capacity, facilities, and financial support upon a request, but in all cases the request shall be reasonably honored within four months of the making. Grantor or grantor’s designate shall provide all personnel costs associated with establishing local channel access for governmental, educational or public use.

Section 11. Franchise Termination. If the grantee should violate any of the terms, conditions, or provisions of this franchise, or if the grantee should fail to comply with any reasonable provision of any ordinance of the city regulation the use by the grantee of the streets, alleys, easements, or public ways of the city, or if the grantee shall become insolvent, unable, or unwilling to pay its debts, or grantee abandons the cable system, or after having constructed and placed all or any portion thereof in operation, for any reason fails to operate it for a period of 30 days, any such violation continues for 30 days after the grantee shall have been notified in writing by the city to desist from such violation so specified, or if the grantee is adjudged a bankrupt, or there is notice of a prospective foreclosure or other judicial sale of all or a substantial part of the system, or grantee is found to have practiced any fraud upon the city, then the city may terminate and cancel this franchise, and thereupon all of the rights and privileges granted by this franchise, shall be deemed to have been forfeited and annulled. In the event such forfeiture is imposed, the grantee shall be afforded a period of six months after a final order of forfeiture, and including any appeal thereof, within which to sell, transfer, convey or otherwise deemed to have been forfeited and annulled. In the event such forfeiture is imposed, the grantee shall be afforded a period of six months to sell, transfer, convey or otherwise dispose of the above described cable television system to a qualified purchaser at fair market value. During the six month period, the grantee shall operate the cable television system pursuant to the terms and provisions of this franchise.

Section 12. Severability. If any section, subsection, sentence, clause or phrase of this ordinance is for any reason held illegal, invalid, or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions hereof. The city declares that it would have passed this ordinance and each section, subsection, sentence, clause or phrase hereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, or phrases be declared illegal, invalid, or unconstitutional. The invalidity of any portions of this ordinance shall not abate, reduced or otherwise affect any consideration or other obligation required by grantee by the franchise granted hereunder.

Section 13. Plat of System. Grantee shall file with the city and obtain approval thereof, a proper map showing and describing the exact location or proposal location of all its facilities within the city streets, alleys, and public ways.

Section 14. Complete Agreement. All ordinances and parts of ordinances in conflict herewith are hereby repealed as of the effective date of this ordinance, excluding however, all public utility franchises heretofore granted to public utilities, including utilities regulated by the Kansas Corporation Commission.

Section 15. Sale or Transfer of the Franchise. This franchise shall not be sold, transferred, leased, assigned or otherwise disposed of by the grantee without the written permission of the city, who shall not unreasonably withhold such permission.

(8-28-95)

ORDINANCE NO. 922

AN ORDINANCE PROVIDING FOR AND APPROVING THE TRANSFER OF THE CABLE TELEVISION FRANCHISE IN THE CITY OF TONGANOXIE, KANSAS, (THE CITY) GRANTED PURSUANT TO ORDINANCE 921, DATED AUGUST 28, 1995, (THE FRANCHISE ORDINANCE); AMENDING THE FRANCHISE ORDINANCE IN CERTAIN RESPECTS; PROVIDING FOR PUBLICATION OF THE CAPTION; AND PROVIDING THE EFFECTIVE DATE OF THE TRANSFER.

Section 1. Transfer of Franchise Ordinance. Pursuant to the franchise ordinance, consent and approval is hereby granted by the city for the transfer and assignment of the franchise ordinance by Douglas to Galaxy. The mayor, council president, or presiding officer of the city, or any person designated by the mayor, council president, or presiding officer are hereby authorized to execute the Consent to Assignment attached hereto as Annex 1.

Section 2. Emergency Preparedness Interruption Agreement. Upon transfer of this franchise to Galaxy, Galaxy agrees to provide appropriate equipment to enable Leavenworth County Emergency Preparedness to interrupt regular programming in the event of an emergency. Such interruption shall be controlled by Leavenworth County EOC from the Leavenworth County Courthouse. All costs related to this equipment and remove activation shall be borne by Galaxy. Leavenworth County EOC shall be permitted to test such equipment as deemed necessary.

Section 3. Effective Date. The transfer of the franchise ordinance shall be effective upon the closing of the sale by Douglas to Galaxy of the cable television facilities serving the City of Tonganoxie. Galaxy shall notify the city of the transfer to the franchise ordinance within 30 days of such closing, and provide therewith a copy of the Assignment and Assumption of Franchise by which the franchise ordinance was transferred and assigned by Douglas to Galaxy.

Section 4. Inconsistency. In the event any of the terms and provisions of any other ordinance or regulation of the city are inconsistent with the terms and provisions of this ordinance, the terms and provisions of this ordinance shall govern and control.

(8-28-95)

ORDINANCE NO. 1018

AN ORDINANCE PROVIDING FOR AND APPROVING THE TRANSFER OF THE CABLE TELEVISION FRANCHISE IN THE CITY OF TONGANOXIE, (THE CITY) GRANTED PURSUANT TO ORDINANCE NO. 921, DATED AUGUST 28, 1955, (THE FRANCHISE ORDINANCE); AMENDING THE FRANCHISE ORDINANCE IN CERTAIN RESPECTS; PROVIDING FOR PUBLICATION OF THE CAPTION; AND PROVIDING THE EFFECTIVE DATE OF THE TRANSFER.

Section 1. Transfer of Franchise Ordinance. Pursuant to the franchise ordinance, consent and approval is hereby granted by the city for the transfer and assignment of the franchise ordinance by Galaxy to WorldNet. The mayor, council president, or presiding officer of the city, or any person designated by the mayor, council president, or presiding officer are hereby authorized to execute the Consent to Assignment attached hereto as Annex 1.

Section 2. Ordinance Affirmed. All terms and provisions of the franchise ordinance shall continue in full force and effect. As set forth in the Consent to Assignment, the city consents to the grant by World Net of a security interest in the franchise ordinance to its lenders to secure indebtedness or other obligations incurred by World Net with respect to the cable television system to be operated by WorldNet pursuant to the franchise ordinance.

Section 3. Effective Date. The transfer of the franchise ordinance shall be effective upon the closing of the sale by Galaxy to WorldNet of the cable television facilities serving the City of Tonganoxie. WorldNet shall notify the city of the transfer of the franchise ordinance within 30 days of such closing, and provide therewith a copy of the Assignment and Assumption of Franchise by which the franchise ordinance was transferred and assigned by Galaxy to WorldNet.

Section 4. Inconsistency. In the event any of the terms and provisions of any other ordinance or regulation of the city are inconsistent with the terms and provisions of this ordinance, the terms and provisions of this ordinance shall govern and control.

(2-28-00)

ORDINANCE NO. 1019

AN ORDINANCE GRANTING TO SOUTHWESTERN BELL TELEPHONE COMPANY, ITS SUCCESSORS AND ASSIGNS, A FRANCHISE AND THE RIGHT TO CONSTRUCT, OPERATE, MAINTAIN AND EXTEND A TELECOMMUNICATIONS SYSTEM IN THE CITY OF TONGANOXIE, KANSAS, PRESCRIBING THE TERMS OF SAID GRANT AND RELATING THERETO; AND REPEALING ORDINANCE 909 AND ALL OTHER ORDINANCES AND RESOLUTIONS AND PARTS THEREOF INCONSISTENT OR IN CONFLICT WITH THE TERMS HEREOF.

Section 1. Definitions. For purposes of this ordinance, the following words and phrases shall have the meanings given herein:

(a)    Access Lines shall mean the following billed main lines and trunks, whether provided on a retail or wholesale basis: residential lines; business lines; ISDN lines (channels); PBX trunks; Centrex or Centrex-like stations; 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; where stations are served by simulated exchange access lines provided by a central office based switching arrangement and the stations served are not used by a single customer of the provider of such arrangement, each station shall constitute an access line; and pay phones lines. Access Lines shall include wireless telecommunication services subject to 47 C.F.R. Part 24. Access Lines shall not include the following: wireless telecommunication services subject to 47 C.F.R. Part 22; unbundled loop facilities; and special access services.

(b)    City shall mean the City of Tonganoxie, Kansas.

(c)    Cable Service means the one way transmission to subscribers of video programming, or other programming service, and subscriber interaction, if any, which is required for selection and use of such video programming or other programming service. Cable service does not include point to point, point to multi-point, and switched video services that telephone company has historically offered or other similar services that telephone company may in the future offer.

(d)    Facilities shall mean telephone and telecommunication lines, conduits, fiber optic cables, wires, cables, pipes, poles, towers, vaults, and appliances, either under or above ground.

(e)    Public Improvement shall mean any existing or contemplated public facility, building, or capital improvement project, including without limitation streets, alleys, sidewalks, sewer, water drainage, rights-of-way improvement, and public projects.

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

(g)    Rights-of-Way shall mean present and future streets, alleys, rights-of-way, and public easements, including easements dedicated in plats of the City of Tonganoxie, Kansas.

(h)    Street Rights-of-Way shall mean the entire width between property lines of land, property or an interest therein of every way publicly maintained where any part thereof is open to the use of the public for purposes of vehicular traffic, including street, avenue, boulevard, highway, expressway, alley or any other public way for vehicular travel by whatever name.

(i)    Telecommunications — The 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.

(j)    Telecommunications Service — 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 used.

(k)    Telephone Company shall mean Southwestern Bell Telephone Company, its successors and assigns.

Section 2. Grant. (a) There is hereby granted to telephone company the right, privilege and franchise to construct, maintain, extend and operate its facilities, in, through, and along the rights-of-way for the purpose of supplying telecommunications services to the city and the inhabitants thereof for the full term of this franchise; subject, however, to the terms and conditions herein set forth.

(b)    This franchise does not provide the telephone company the right to provide cable service to city and inhabitants thereof. For 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; but cable service does not include point to point, point to multi-point, and switched video services that telephone company has historically offered or other similar services that telephone company may in the future offer. Nothing in this franchise is intended to preclude the city from seeking, or authorize the city to seek, a franchise from any subsidiary, affiliate, or third party providing cable services. Telephone company and city agree that nothing in this franchise is intended to authorize the city to seek from telephone company nor to require telephone company to obtain a franchise to offer open video systems as that term is used in section 653 of the Telecommunications Act of 1996 (codified at 47 U.S.C. 573). Telephone company and city further agree, however, that this ordinance does not authorize telephone company to offer open video systems without paying the fee on the gross revenues of the system operator for the provision of cable service in lieu of a franchise fee, pursuant to and in the manner described in 47 U.S.C. 573(c)(2)(b) and without complying with FCC regulations promulgated pursuant to 47 U.S.C. 573.

(c)    Upon written request from telephone company, the city agrees to begin negotiations in good faith with telephone company within 30 days to provide telephone company a franchise to provide cable service to the city and inhabitants thereof on terms no more burdensome than the franchise(s) granted to other providers of cable service with the city.

Section 3. Use of Rights-of-Way. In the use of rights-of-way under this franchise, the telephone company shall be subject to all rules, regulations, policies, resolutions, and ordinances now or thereafter adopted or promulgated by the city in the reasonable exercise of its police power. In addition, the telephone company shall be subject to all rules, regulations, policies, resolutions, and ordinances now or thereafter adopted or promulgated by the city relating to permits and fees, sidewalk and pavement cuts, utility location, construction coordination, beautification, and other requirements on the use of rights-of-way and shall comply with the following:

(a)    The telephone company’s use of rights-of-way shall in all matters be subordinate to the city’s use of rights-of-way for any public purpose. The telephone company shall coordinate placement of its facilities in a manner which minimizes adverse impact on public improvements, as reasonably determined by the city. Where placement is not otherwise regulated, facilities shall be placed with adequate clearance from such public improvements so as not to impact or be impacted by such public improvement.

(b)    All earth, materials, sidewalks, paving, crossings, utilities, public improvements, or improvements of any kind, injured or removed by the telephone company in its activities under this franchise, shall be fully repaired or restored promptly by the telephone company at its sole expense and to the reasonable satisfaction of the city or owner thereof.

(c)    All facilities constructed, replaced, or relocated in the right-of-way after the date hereof shall be placed underground unless otherwise agreed to by the city. Where there are obstructions in the right-of-way such as trees, shrubs, other utilities, commercial signs, man-made structures, or other like obstructions which make the cost of such underground burial unreasonable, the telephone company may request waiver of this requirement, in which event the city will not unreasonably withhold consent. Any vaults, boxes, pedestals, and similar facilities placed above ground in street right-of-way shall be located behind the sidewalk where feasible.

(d)    The telephone company shall keep and maintain accurate records and as-built drawings depicting accurate horizontal and vertical location of all facilities constructed, reconstructed, or relocated in the street right-of-way after the date hereof and provide location information regarding specific future project locations to the city upon request. Where such information is available electronically, upon request from the city, telephone company agrees to provide such information in an electronic format. (City agrees to use information only to locate utility facilities in connection with municipal projects and further agrees not to disclose such information to anyone other than city employees requiring such information to locate utility facilities in connection with municipal projects except as required by law. Telephone company and city agree that such information is confidential and proprietary and agree that such information shall remain the sole property of the telephone company and agree that pursuant to K.S.A. 45-221(12), (18), as amended, such information does not constitute public records subject to K.S.A. 45218, as amended. In the event that city is required by law to disclose such information, city shall provide the telephone company seven days advance notice of its intended disclosure of such information and shall take such action as may be reasonably required to cooperate with the telephone company to safeguard such information. The telephone company agrees to indemnify and hold the city harmless from any and all penalties or costs, including attorney’s fees, arising from the actions of the telephone company, or of the city at the written request of the telephone company, in seeking to safeguard the confidentiality of information provided by telephone company to city under this section. In the event such information is required by force of law to be publicly disclosed, the telephone company shall have no further obligation under this section to provide the city with such information.) Such facilities shall be horizontally and vertically located at least every 100 feet and at any other alignment change. All points of facilities shall be horizontally located from street centerline, or section or quarter section lines or corners. Vertical locations or all points of facilities shall consist of elevations in either city datum or United States Geological Survey datum.

(e)    All work performed in the traveled way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected. Such signing shall be in conformance with the latest edition of the Federal Highway Administration’s Standards and Guideline for Work Zone Traffic Control, unless otherwise agreed to by the city.

(f)    The telephone company shall notify the city not less than three working days in advance (such notice to be adequate for timely notice on the governing body agenda under city procedures) of any construction, reconstruction, repair, or relocation of facilities which would require any street closure which reduces traffic flow to less than two lanes of moving traffic. Except in the event of an emergency, as reasonably determined by the telephone company, no such closure shall take place without prior authorization from the city.

(g)    The telephone company 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 rights-of-way when requested by the city or its authorized agents for a public project. Such location and identification shall be at the sole expense of the telephone company without expense to the city, its employees, agents, or authorized contractors. The telephone company shall designate and maintain a local agent, familiar with the facilities, who is responsible for satisfying information needs of the city and other users of the rights-of-way.

(h)    The telephone company shall promptly remove, relocate, or adjust any facilities located in rights-of-way if reasonably necessary and directed by the city for any publicly-funded improvement or project. Such removal, relocation, or adjustment for a particular public project shall be performed by the telephone company once at its sole expense without expense to the city, its employees, agents, or authorized contractors and shall be specifically subject to rules and regulations of the city pertaining to such. If additional removal, relocation, or adjustment is the result of the inaccurate or mistaken information of the telephone company, the telephone company shall be responsible for such at its sole expense.

(i)    It shall be the responsibility of the telephone company to take adequate measures to protect and defend its facilities in the rights-of-way from harm or damage. If the telephone company fails to accurately or timely locate facilities when requested, it has no claim for costs or damages against the city and its authorized contractors unless such party is solely responsible for the harm or damage by its negligence or intentional conduct. Telephone company shall be responsible to the city and its agents, representatives, and authorized contractors for all damages including, but not limited to, delay damages, repair costs, down time, construction delays penalties or other expenses of any kind arising out of the failure of the telephone company to perform any of its obligations under this agreement unless the damaged party is solely responsible for the harm or damage by its negligence or intentionally caused harm. However, 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 telephone company facilities.

(j)    The telephone company, on the request of any applicant, shall remove or raise or lower its wires temporarily to permit the moving of houses or other structures. The expense of such temporary removal, raising or lower of wires shall be paid by the party or parties requesting the same, and the telephone company may require such payment in advance. The telephone company shall be given not less than 15 days’ written notice from the applicant detailing the time and location of the moving operations, and not less than 24 hours’ advance notice from the applicant advising of the actual operation. The city shall not be liable for any such expense or notice requirement for the moving of houses or structures by the city or its contractors.

(k)    Permission is hereby granted to the telephone company 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 in contact with the wires and cables of the telephone company, all of the trimming to be done under the supervision and direction of any city officials to whom the duties have been or may be designated in accordance with the Tonganoxie City Code.

(l)    All technical standards governing construction, reconstruction, installation, operation, testing, use, maintenance, and dismantling of the facilities in the rights- of-way shall be in accordance with applicable present and future federal, state, and city laws and regulations, including but not limited to the most recent editions of the National Electrical Code, the National Electrical Safety Code, and the Fiber Optic Cable Installation Standard of the Telecommunications Industry Committee, or such substantive equivalents as may hereafter be adopted or promulgated. It is understood that the standards established in this paragraph are minimum standards and the requirements established or referenced in this ordinance may be additional to or stricter than such minimum standards.

(m)    The city encourages the conservation of right-of-way by the sharing of space by all utilities. To the extent required by federal or state law, the telephone company shall permit any other franchised entity by appropriate contract or agreement negotiated by the parties to use any and all facilities constructed or erected by the telephone company. All agreements and installations shall be subject to all existing and future ordinances and regulations of the city. Telephone company agrees that it will not grant any entity rights to occupy the rights-of-way without providing notice to the city. Nothing in this section shall be construed as requiring telephone company to provide city notice when it provides telecommunications services to any entity.

(n)    Telephone company agrees to attend regularly scheduled meetings with city staff to coordinate future development plans, annexations, planned subdivision, future infrastructure needs, etc.

(o)    Upon notification, telephone company agrees to meet with developers of new subdivision is or subdivision expansions and city staff one time during the platting process to help facilitate a smooth construction process and to develop time tables and infrastructure needs assessments in advance of the start of construction.

Section 4. Indemnity and Hold Harmless. The telephone company shall hold and save the city, its officers, employees, agents, and authorized contractors, harmless from and against all claims, damages, expense, liability and costs including attorney fees, to the extent occasioned in any manner by the telephone company’s occupancy of rights-of-way, except to the extent otherwise specified in section 3(i). In the event a claim shall be made or an action shall be instituted against the city growing out of such occupancy of the right-of-way by facilities of the telephone company, then upon notice by the city to the telephone company, the telephone company will assume liability for the defense of such actions at the cost of the telephone company, subject to the option of the city to appear and defend, at its own cost, any such case.

Section 5. Payments and Charges. The payments herein provided shall be in lieu of all other license, taxes, charges, fees or impositions, except that the usual general property taxes and special ad valorem property taxes, and any charges for pavement cuts or other charges based on restoring premises to their same condition, or charges made for privileges which are not in any way connected with telephone business, as such, will be imposed on the telephone company, and are not covered by the payments therein. The telephone company shall have the privilege of crediting such sums payable hereunder with any unpaid balance due the telephone company for telephone service rendered or facilities furnished to the city; provided, that the balance due is liquidated and uncontested.

Section 6. Compensation to City. (a) In consideration of the franchise granted to telephone company by city, telephone company agrees to pay to city, a sum of $.81 per month for each access line served by telephone company for local service within the city limits of city. Compensation required by this franchise shall be paid on an annual basis and shall become due and payable 60 days after the end of the year with the first payment due August 30, 2001. The number of access lines as of June 30 shall be used to calculate payments to city.

(a)    If during the term of this ordinance any entity provides local service in city and provides compensation to city at an amount less than the telephone company is required to pay under section 6(a) per month for each access line within the city or provides no compensation to city for each such access line, this ordinance shall require compensation no greater than such amounts, if any, during such time remaining of the term of this ordinance that the lesser compensation, if any, is paid by such other entity.

(b)    The parties agree that if federal law or state law is enacted setting forth a maximum allowable level of compensation for franchise rights and if such maximum allowable level is less than the level of compensation required by this ordinance, this ordinance shall require telephone company to pay the reduced level required by law for the remainder of the term of this ordinance.

(c)    If during the term of this ordinance, telephone company believes that it is entitled to reduction in compensation pursuant to subsections (b) and (c) above, telephone company agrees to notify city in writing and agrees that it will continue to pay city the monthly rate set forth in section 6(a) for each access line served by telephone company for local service within the City of Tonganoxie until final agreement is reached with the city 60 days following such notice to city.

(d)    The telephone company shall correctly code all customers that are located within the corporate limits of the city, provided that the city shall give telephone company notice of boundary changes as provided below. Coding shall be updated to reflect annexation and other changes in city boundaries, and the associated changes in customers and access lines, within 30 days of the date city provides telephone company written notice of the annexation or other changes in boundaries and a listing of addresses affected by such changes. Such notice shall be sent to Southwestern Bell Telephone Company, 823 Quincy, Room 801, Topeka, KS 66612. In the event of annexations, telephone company may request additional time in writing to re-code customers, which request will not be unreasonably denied.

Section 7. Collection of Compensation. This franchise may be terminated by the telephone company if authority to collect the amounts of such payments, or part of such payments, from its customers within the city shall be removed, canceled or withdrawn by legislative, judicial or regulatory act. City and telephone company acknowledge and agree that telephone company has collected and paid city all amounts due and owing for telephone company’s use and occupancy of city rights-of-way at all times prior to July 1, 2000.

Section 8. Attachment to Poles. Nothing in this ordinance shall be construed to require or permit any telephone, electric light or power wire attachments by either the city or the telephone company on the poles of the other. If such attachments are desired by the city or the telephone company, then a separate non-contingent agreement shall be prerequisite to such attachments.

Section 9. Termination of Franchise. In case of failure on the part of Southwestern Bell Telephone, its successors and assigns, to comply with any of the provisions of this ordinance, or if Southwestern Bell Telephone, its successors and assigns, should do or cause to be done any act or thing prohibited by or in violation of the terms of this ordinance, Southwestern Bell Telephone, its successors and assigns, shall forfeit all rights and privileges and granted by this ordinance and all rights hereunder shall cease, terminate and become null and void, provided that the forfeiture shall not take effect until the City of Tonganoxie shall carry out the following proceedings. Before the City of Tonganoxie proceeds to forfeit the franchise, as in this section prescribed, it shall first serve a written notice upon the manager of Southwestern Bell Telephone Company at its principal office in the City of Tonganoxie, and upon the trustee or trustees in any deed of trust securing bonds of Southwestern Bell Telephone of record in Leavenworth County, Kansas, by mailing notice to such trustee or trustees to the address designated in such trust deed, setting forth in detail in such notice the neglect or failure complained of, and Southwestern Bell Telephone shall have 90 days thereafter in which to comply with the conditions of this franchise. If at the end of such 90 day period, the City of Tonganoxie deems that the conditions of such franchise have not been complied with by Southwestern Bell Telephone and that such franchise is subject to cancellation by reason thereof, the City of Tonganoxie, in order to terminate such franchise, shall enact an ordinance setting out the grounds upon which the franchise or agreement is to be canceled or terminated. If within 30 days after the effective date of the ordinance, Southwestern Bell Telephone shall not have instituted an action, either in the District Court of Leavenworth County, Kansas, or some other court of competent jurisdiction to determine whether or not Southwestern Bell Telephone has violated the terms of this franchise and that the franchise is subject to cancellation by reason thereof, such franchise shall be canceled and terminated at the end of such 30 day period. If within such 30 day period Southwestern Bell Telephone does institute action, as above provided, to determine whether or not Southwestern Bell Telephone has violated the terms of this franchise and that the franchise is subject to cancellation by reason thereof and prosecutes such action to final judgment with due diligence, then, in that event, in case the court finds that the franchise is subject to cancellation by reason of the violation of its terms, this franchise shall terminate 30 days after such final judgment is rendered.

Provided, however, that the failure of Southwestern Bell Telephone to comply with any of the provisions of this ordinance or the doing or causing to be done by Southwestern Bell Telephone of anything prohibited by or in violation of the terms of this ordinance shall not be a ground for the forfeiture thereof when such act or omission on the part of Southwestern Bell Telephone is due to any cause or delay beyond the control of Southwestern Bell Telephone, its successors and assigns, or to bona fide legal proceedings.

Section 10. Rights and Duties of Grantee Upon Expiration of Franchise. Upon expiration of this franchise, whether by lapse of time, by agreement between the telephone company and the City of Tonganoxie, or by forfeiture thereof, the telephone company shall have the right to remove from public property any and all of its lines, poles, towers and other appurtenances and equipment used in its business within a reasonable time after such expiration, but in such event, it shall be the duty of the telephone company, immediately upon such removal, to restore the streets, avenues, alleys, parks and other public ways and grounds from which the lines, poles, towers, other appurtenances and other equipment are removed to as good condition as the same were before the removal was effected.

Section 11. Term and Termination Date. This franchise ordinance shall be effective for a term of one year from the effective date. Thereafter, this franchise ordinance will renew for 10 renewable one year terms, unless either party notifies the other party of its intent to negotiate a new franchise ordinance, prior to 180 days before the termination of the then current term.

Section 12. Acceptance of Terms by the Telephone Company. The telephone company shall have 60 days after the final passage and approval of this ordinance to file with the city clerk of the City of Tonganoxie its acceptance in writing of the provisions, terms and conditions of this ordinance, which acceptance shall be duly acknowledged before some officer authorized by law to administer oaths; and when so accepted the ordinance and acceptance shall constitute a contract between the City of Tonganoxie and the telephone company subject to the provisions of the laws of the State of Kansas.

Section 13. Right to Assign. This franchise shall be assignable only in accordance with the laws of the State of Kansas, as the same may exist at the time when any assignment is made.

Section 14. Conditions of Franchise. This contract, franchise, grant and privilege is granted and accepted under and subject to all applicable laws and under and subject to all of the orders, rules and regulations now or hereafter adopted by governmental bodies now or hereafter having jurisdiction, each and every provision hereof shall be subject to Acts of God, fires, strikes, riots, floods, war and other causes beyond the telephone company’s control. This franchise shall not be exclusive.

Section 15. Invalidity of Ordinance. If any clause, sentence, or section of this ordinance shall be held to be invalid, it shall not affect the remaining provisions of this ordinance.

Section 16. Venue. This agreement shall be construed under and in accordance with the laws of the State of Kansas, and all obligations of the parties hereunder are performable in Leavenworth County, Kansas. In the event that any legal proceeding is brought to enforce the terms of this agreement, the same shall be brought in Leavenworth County, Kansas, limited to state court action. Nothing in Section 16 shall be construed to limit or restrict telephone company’s right to initiate action in federal court (Kansas District) or to remove a state court action to federal court (Kansas District).

Section 17. Notice. For the purpose of this agreement, notice to the city will be to: City Administrator, City of Tonganoxie, P.O. Box 326, Tonganoxie, KS 66086.

Notice to the telephone company will be to: Southwestern Bell Telephone, Area Manager-Municipal Affairs, 220 E. 6th, Room 505, Topeka, KS 66603.

Notice will be effective upon delivery by hand delivery or by first class mail to the above address until the city or telephone company notifies the other, in writing, of a change in address.

(3-27-00)

ORDINANCE NO. 1086

AN ORDINANCE PROVIDING FOR AND APPROVING THE TRANSFER OF THE CABLE TELEVISION FRANCHISE IN THE CITY OF TONGANOXIE (THE CITY) GRANTED PURSUANT TO ORDINANCE 921 DATED AUGUST 28, 1995, (THE FRANCHISE ORDINANCE); AMENDING THE FRANCHISE ORDINANCE IN CERTAIN RESPECTS; PROVIDING FOR PUBLICATION OF THE CAPTION; AND PROVIDING THE EFFECTIVE DATE OF THE TRANSFER.

Section 1. Transfer of Franchise Ordinance. Pursuant to the franchise ordinance, consent and approval is hereby granted by the city for the transfer and assignment of the franchise ordinance by World Net to World Co. The mayor, or any person designated by the mayor, is hereby authorized to execute Consent to Assignment.

Section 2. Ordinance Affirmed. All terms and provisions of the franchise ordinance shall continue in full force and effect. As set forth in the Consent to Assignment, the city consents to the grant by World Co. of a security interest in the franchise ordinance to its lenders to secure indebtedness or other obligations incurred by World Co. with respect to the cable television system to be operated by World Co. pursuant to the franchise ordinance.

Section 3. Effective Date. The transfer of the franchise ordinance shall be effective upon the closing of the sale by WorldNet to World Co. of the cable television facilities serving the City of Tonganoxie. World Co. shall notify the city of the transfer to the franchise ordinance within 30 days of such closing, and provide therewith a copy of the Assignment and Assumption of Franchise by which the franchise ordinance was transferred and assigned by WorldNet to World Co.

Section 4. Inconsistency. In the event any of the terms and provisions of any other ordinance or regulations to the city are inconsistent with the terms and the provisions of this ordinance, the terms and provisions of this ordinance shall govern and control.

(6-25-01)

ORDINANCE NO. 1153

AN ORDINANCE, GRANTING TO WESTAR ENERGY, INC., A KANSAS CORPORATION, ITS SUCCESSORS AND ASSIGNS, AN ELECTRIC FRANCHISE, PRESCRIBING THE TERMS THEREOF AND RELATING THERETO, AND REPEALING ALL ORDINANCES OR PARTS OF ORDINANCES INCONSISTENT WITH OR IN CONFLICT WITH THE TERMS HEREOF.

Section 1. That in consideration of the benefits to be derived by the City of Tonganoxie, Kansas, and its inhabitants, there is hereby granted to Westar Energy, Inc., a Kansas corporation, hereinafter sometimes designated as "company," the company being a corporation operating a system for the transmission of electric current between two or more incorporated cities in the State of Kansas, into and through which it has built transmission lines, the right, privilege, and authority for a period of 20 years from the effective date of this ordinance, to occupy and use the several streets, avenues, alleys, bridges, parks, parkings, and public places of the city, for the placing and maintaining of equipment and property necessary to carry on the business of selling and distributing electricity for all purposes to the city and its inhabitants, and through the city and beyond the limits thereof; to obtain the electricity from any source available; and to do all things necessary or proper to carry on the business in the city.

Section 2. As further consideration for the granting of this franchise, and in lieu of any city occupation, license, or revenue taxes, the company shall pay to the city during the term of this franchise four percent of its gross cash receipts from the sale of electric energy within the corporate limits of the city, such payment to be made monthly for the preceding monthly period. Any change in the rate of compensation agreed upon by the parties shall be effective for the remainder of the term. Gross cash receipts shall not include other operating revenues received by the company, which are not related to the "sale of electric energy." Other operating revenues include, but are not limited to, delayed payment charges, connection fees, disconnection and reconnection fees, collection fees and return check charges. At the option of either the city or the company and upon written notice given by one to the other sent at least 90 days before the fifth, tenth, or fifteenth anniversary of this franchise, the rate of compensation hereunder may be renegotiated. Any new rate of compensation that results from such renegotiation shall be effective on and after the fifth, tenth, or fifteenth anniversary of this franchise.

Section 3. That company, its successors and assigns, in the construction, maintenance, and operation of its electric transmission, distribution and street lighting system, shall use all reasonable and proper precaution to avoid damage or injury to persons and property, and shall hold and save harmless the city from any and all damage, injury and expense caused by the negligence of the company, its successors and assigns, or its or their agents or servants.

Section 4. After the approval of this ordinance by the city, company shall file with the city clerk of the city, its unconditional written acceptance of this ordinance. The ordinance shall become effective and be in force and shall be and become a binding contract between the parties hereto, their successors and assigns, from and after the expiration of 60 days from its final passage, approval and publication as required by law, and acceptance by the company.

Section 5. This ordinance, when accepted as above provided, shall constitute the entire agreement between the city and company relating to this franchise and the same shall supersede and cancel any prior understandings, agreements, or representations regarding the subject matter hereof, or involved in negotiations pertaining thereto, whether oral or written.

Section 6. This franchise is granted pursuant to the provisions of K.S.A. 12-2001.

Section 7. That any and all ordinances or parts of ordinances in conflict with the terms hereof are hereby repealed.

Section 8. The company will file this ordinance with the State Corporation Commission of Kansas. Should the State Corporation Commission take any action with respect to this franchise ordinance, which would or may preclude Westar Energy, Inc., a Kansas corporation, from recovering from its customers any cost provided for hereunder, the parties hereto shall renegotiate this ordinance in accordance with the State Corporation Commission’s ruling.

Section 9. A franchise shall be assignable only in accordance with the laws of the State of Kansas, as the same may exist at the time when any assignment is made, provided, however, that the franchise may be assigned by company without action by the city to any creditworthy entity which succeeds to all or substantially all of the electric utility business of the company. In the event of such assignment to a successor, company shall be released from all obligations which are assumed in writing by such successor and the assignee shall have executed an assumption of the franchise being assigned.

(9-8-03)

ORDINANCE NO. 1169

AN ORDINANCE GRANTING A NONEXCLUVISE FRANCHISE RENEWAL TO THE WORLD COMPANY dba SUNFLOWER BROADBAND, ITS SUCCESSORS AND ASSIGNS, TO CONSTRUCT, OPERATE, AND MAINTAIN A CABLE SYSTEM IN THE CITY OF TONGANOXIE, KANSAS; AND SETTING FORTH CONDITIONS ACCOMPANYING THE GRANT OF THE FRANCHISE; AND PROVIDING FOR REGULATION AND USE OF THE CABLE SYSTEM.

FINDINGS

Following the review of Grantee’s renewal proposal and past performance, and after receiving the comments of interested parties at a public hearing, the City Council makes the following findings:

(a)    Grantee has the technical, legal and financial ability to fulfill the obligations of this Ordinance;

(b)    Grantee’s plans for constructing, upgrading, and operating the Cable System meet or exceed the community’s cable-related needs and interests, taking into account the costs; and

(c)    Renewing Grantee’s franchise under the terms and conditions of this Ordinance will serve the public interest.

Section 1. Definitions. When used in this Ordinance, the following terms, phrases, words, and their derivations shall have the meaning given in this Section. When not inconsistent with the context, words in the singular number include the plural number. The word "shall" is always mandatory. The word "may" is discretionary.

(a)    "Cable Service" means:

(1)    The one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and

(2)    Subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

(b)    "Cable System" means a facility located within the City, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service to multiple subscribers within the City.

(c)    "City" means the City of Tonganoxie.

(d)    "Council" means the governing body of City.

(e)    "Facilities" shall mean any reception, processing, distribution or transmission component of a Cable System, including cables, conduits, converters, splice boxes, cabinets, manholes, vaults, poles, equipment, drains, surface location markers, appurtenances, and related facilities maintained by Grantee in the Streets.

(f)    "FCC" means the Federal Communications Commission.

(g)    "Franchise" shall mean the rights granted to Grantee under this Ordinance to construct and operate the Cable System and to provide Cable Services and other services as permitted by applicable law.

(h)    "Grantee" means The World Company, dba Sunflower Broadband, and its permitted successors.

(i)    "Gross Revenues" means all revenue received by Grantee from Subscribers for the provision of basic Cable Service in the City. The term Gross Revenues shall not include franchise fees, advertising revenues, late fees, any fees itemized and passed through as a result of franchise imposed requirements or any taxes or fees on services furnished by Grantee imposed directly on any Subscriber or user by any municipality, state, or other governmental unit and collected by Grantee for such governmental unit.

(j)    "Person" is any person, firm, partnership, association, corporation, company, or other legal entity.

(k)    "Street" means the surface of, and the space above and below, any public street, road, highway, freeway, lane, alley, path, court, sidewalk, parkway, or drive, or any easement or right-of-way now or later existing within the City.

(l)    "Subscriber" means any Person who lawfully receives Cable Service.

Section 2. Grant of authority.

(a)    Grant of nonexclusive authority. City grants to Grantee the right and privilege to construct, erect, operate, and maintain, in, upon, along, across, above, over and under the Streets, all Facilities necessary or desirable for the construction, maintenance, and operation of the Cable System. This Franchise shall be nonexclusive, and City may grant franchises to other Persons. Any additional franchises shall contain the same substantive terms and conditions as this Franchise.

(b)    Rules of Grantee. The Grantee shall have the authority to promulgate rules, regulations, terms and conditions governing its business and services as reasonably necessary to enable Grantee to exercise its rights and perform its obligation under this Ordinance.

Section 3. Franchise term. The Franchise granted under this Ordinance commences upon approval by the City Council and acceptance by Grantee and shall continue for 10 years, unless renewed, revoked or terminated sooner. So long as Grantee remains in material compliance with the provisions of this Ordinance, Grantee, at its option, may extend the term for an additional five years by providing notice to City during the last 24 months of the initial term.

Section 4. Conditions of street occupancy.

(a)    Location of Facilities. Grantee shall locate all Facilities so as to minimize interference with the use of the Streets and with the rights and reasonable convenience of adjacent property owners.

(b)    Construction codes and permits. Grantee shall obtain all necessary permits from City and shall comply with all City Ordinances of general applicability before commencing any construction, upgrade or extension of the Cable System, including the opening or disturbance of any Street.

(c)    Repair of streets and property. Grantee, at its expense, shall promptly restore any Street, public property, or private property damaged by Grantee during the construction, repair, maintenance or reconstruction of the Cable System.

(d)    Public projects. After reasonable prior notice, Grantee, at its expense, shall relocate its Facilities as required by the City due to traffic conditions, public safety, street construction, or other public improvements by City.

(e)    Building movement. Upon request of any Person holding a moving permit issued by City and after reasonable prior notice, Grantee shall temporarily move its Facilities to permit the moving of buildings. Grantee may require the requesting Person to pay all costs related to the temporary relocation of Facilities, and may require payment in advance.

(f)    Tree trimming. Grantee may trim any trees in or overhanging the Streets, alleys, sidewalks, or public easements of City as necessary to protect Grantee’s Facilities.

(g)    Location of poles and undergrounding of cable. The poles for the Grantee’s distribution system shall be those erected and maintained by anyone authorized to maintain poles in the streets or public ways when and where practicable. It is contemplated that reasonable standard pole attachment agreements will be entered into with non-municipal utilities as required by Grantee. Grantee is specifically granted the right to set its own poles if reasonable joint use is not possible or feasible. In any areas where electric or telephone utilities are underground and in any new subdivisions or new additions where utilities are underground, the Grantee will install Facilities underground. 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 Streets.

(h)    Compliance with construction codes. Grantee shall install and maintain its Facilities in compliance with all applicable local, state, and federal laws, statutes, and/or ordinances, subject to the grantee’s right to challenge in good faith such laws, statutes, and/or ordinances.

Section 5. Cable System operations and safety.

(a)    Technical standards. Grantee shall operate the Cable System in compliance with all applicable technical standards promulgated by the FCC.

(b)    Test reports and regulatory filings. Upon request by City, Grantee shall provide City with copies of: (i) reports of any FCC required test of the Cable System; and (ii) any filings with regulatory authorities related to the operation of the Cable System within the City.

(c)    Safety requirements. Grantee shall employ ordinary care and shall maintain in use commonly accepted methods and devices to reduce failures and accidents.

(d)    System maps. Grantee shall periodically file with the City up-to-date as-built maps showing locations of all Facilities in the Streets.

Section 6. System upgrade. Grantee shall maintain the current Cable System capacity of 750 MHz and a minimum of 75 analog or digital channels. The Cable System shall utilize a hybrid fiber-coaxial architecture designed with the capability to transmit return signals upstream. Grantee may develop, construct and operate the upgraded Cable System to provide Cable Services and non-cable services such as cable modem services, telecommunications services, and other competitive services as permissible under applicable law. Grantee may activate and offer such other services in response to consumer and business demand.

Section 7. Service obligations and Cable System extension. Grantee shall provide Cable Services without discrimination to all Persons who request such services and who comply with Grantee’s terms and conditions of service. Grantee shall extend the Cable System to all areas of the City not currently served by the Cable System when any such area reaches a household density equal to or greater than 20 households per cable mile. Grantee is not obligated to extend service to residences beyond 300 feet from Grantee’s Facilities.

Section 8. Educational and Governmental Access.

(a)    Service to public buildings and schools. Grantee shall provide a service drop and basic Cable Service to each City building, police station, fire station, and public and private school passed by the Cable System, with additional service drops to be provided at the cost of labor and material.

(b)    Channel Access for the City of Tonganoxie. During the term of the Franchise granted under this Ordinance, Grantee shall make available to local government and local educational institutions one (1) channel for non-commercial local governmental and educational programming. The City, at its discretion, is responsible for the creation and production of any programming and any hardware required for production and to provide Grantee with a signal that meets generally accepted minimum quality standards. The Grantee is responsible for the purchase and installation of hardware required to provide said signal to its subscribers within the Franchise area. This City must give the Grantee a minimum of 90-days notice of its intent to utilize said channel.

Section 9. Customer service and rates.

(a)    Subscriber Inquiries. Grantee shall have a publicly listed toll-free telephone number and be operated so as to receive Subscriber complaints and requests on a 24 hour-a-day, seven days-a-week basis. Grantee shall investigate and promptly resolve customer complaints regarding quality of service or service outages.

(b)    Rates. Grantee shall maintain with the City Clerk a currently schedule of rates and services. Grantee shall provide the City and Subscribers with 30 days written notice of changes to Cable Services or rates.

(c)    Service outages. Grantee shall promptly notify City of any interruption based on Facility or technical difficulties that last 24 hours or more and affect more than 5% of the Cable System. Grantee’s notice shall provide a reasonable description of the reason for the service outage and Grantee’s plans to remedy the service outage.

Section 10. Franchise fee.

(a)    Grantee shall pay to City an annual franchisee fee in an amount equal to five percent (5%)* of Gross Revenues payable every six (6) months. These payments will be due in January and July each year on the last day of the month for the previous six (6) month period. Following reasonable prior notice, City may inspect Grantee’s books, records, and reports to verify franchise fee calculations and payments.

(b)    Franchise fee increases by City. At any time during the term of this Franchise, City may increase the Franchise fee up to the maximum amount permitted by law, subject to the following procedures:

(i)    City shall provide Grantee at least 90 days written notice of City’s intent to schedule a public hearing concerning a proposed increase in the Franchise fee.

(ii)    City shall consider a proposed increase Franchise fee at a duly noticed public hearing, and shall provide all interested parties, including Grantee, an opportunity to be heard.

(iii)    If, after one or more public hearings, the City decides to increase the Franchise Fee, the increase shall not become effective until the first day of the month that begins at least 90 days from the date of the City’s decision.

*    Code reviser’s note: This amount was amended by Ord. 1386, § 2, which provides: “That the franchise fee to be collected by the Franchisee from its gross revenues collected within the City and paid to the City as consideration for its franchise agreement shall be increased from three percent (3%) to five percent (5%) from all sales of cable services within the corporate limits of said City, such payment to be made monthly for the preceding monthly period.”

Section 11. Insurance and Indemnification

(a)    Insurance. During the term of the Franchise granted under this Ordinance, Grantee shall maintain a comprehensive general liability insurance policy with the following minimum coverage limits:

(i)    One Million Dollars ($1,000,000) for personal injury or death of any one Person;

(ii)    Three Million Dollars ($3,000,000) for personal injury or death of two or more Persons in any one occurrence;

(iii)    One Million Dollars ($1,000,000) for property damage to any one person; and

(iv)    Three Million Dollars ($3,000,000) for property damage resulting from any one act or occurrence.

Each policy of insurance shall contain a statement that the insurer will not cancel the policy or fail to renew the policy for any reason without first giving 30 days’ advance written notice to City.

(b)    Indemnification. During the term of the Franchise granted under this Ordinance, Grantee shall indemnify and hold harmless City, its officers, agents and employees ("Indemnitees") from and against any claims, liabilities, damages, losses, and expenses (including, without limitation, reasonable attorney fees) ("Losses"), which may arise out of or be in any way connected with Grantee’s construction, installation, operation, maintenance of the Cable System, unless such Losses arise from the negligence or intentional misconduct of the City, its officers, agents or employees.

Section 12. Transfer of Franchise. Grantee shall not transfer or assign its rights granted under this Ordinance without obtaining the prior consent of City. City shall not unreasonably withhold or delay such consent. Consent of City shall not be required for the following: (i) the assignment of, or the granting of a security interest in, the Franchise or the Cable System for the purpose of securing indebtedness; or (ii) the assignment or transfer of the Franchise or the Cable System to an affiliate under common ownership or control with Grantee.

Section 13. Franchise extension and renewal.

(a)    Extension. Beyond the term provided in Section 3, City and Grantee may extend by mutual agreement the term of the Franchise granted under this Ordinance, and the existing terms and conditions of this Ordinance shall govern the extended term.

(b)    Renewal. Any renewal of the Grantee’s Franchise shall be done in accordance with Section 546 of the federal Cable Act, 47 USC § 546, and applicable FCC regulations.

Section 14. Franchise termination City may terminate the Franchise granted under this Ordinance in case of material noncompliance by Grantee. Material noncompliance shall include:

(a)    A material violation by Grantee of any term, condition, or provision of this Ordinance that remains uncured within the applicable cure period;

(b)    Failure of Grantee to comply with any reasonable provision of any applicable City Ordinance;

(c)    Grantee becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt, or there is a notice of prospective foreclosure or other judicial sale of all or a substantial part of the Cable System;

(d)    Grantee abandons the Cable System;

(e)    Grantee fails to operate the Cable System for a period of 30 days; or

(f)    Grantee is found to practiced any fraud upon City.

Section 15. Termination procedures. If City seeks to terminate the Franchise under Section 14, City shall follow the procedures in this section.

(a)    Notice of complaint. City shall provide Grantee with written notice describing with reasonable specificity the alleged noncompliance.

(b)    Opportunity to cure. Grantee shall have 60 days from receipt of written notice to cure the alleged noncompliance. If Grantee cures the alleged noncompliance within the 60-day period, the City shall provide Grantee with written notice withdrawing the complaint.

(c)    Public hearing. If Grantee fails to cure the alleged noncompliance within the 60-day cure period, or if Grantee provides City with written notice disputing the complaint, and the parties fail to otherwise resolve the matter, the City shall schedule a public hearing on the alleged noncompliance. At the public hearing, Grantee may present testimony, cross-examine witnesses and deliver to City Council all evidence relevant to Grantee’s defense. At the conclusion of the public hearing, the City Council may dismiss the complaint, defer action, order appropriate sanctions, or terminate the Franchise in accordance with this section.

(d)    Termination. The City Council may, after a duly noticed public hearing, terminate the Franchise for material and willful continuing noncompliance by Grantee. If Grantee contests the termination in a court of competent jurisdiction, Grantee may operate the Cable System in accordance with this Ordinance while the case is pending.

(e)    Force Majuere. Grantee’s failure to comply with any provision of this Ordinance shall not constitute noncompliance when such failure is due to circumstances beyond Grantee’s control, including, without limitation, acts of God, adverse weather, natural or man-made disaster, civil disturbance, war or insurrection, or shortage of supplies, material, or labor.

(f)    Removal of Facilities. Upon expiration or termination of the Franchise, Grantee shall be afforded a six-month period to sell or otherwise dispose of the Cable System. During the six-month period, Grantee shall operate the Cable System in accordance with this Ordinance. At the expiration of the six-month period, Grantee has the right to remove its Facilities within a reasonable time.

Section 16. Notices. Notices under this Ordinance shall be in writing and shall be deemed given delivery by hand delivery, certified mail return receipt requested, or overnight courier to the following addresses:

To City:

City of Tonganoxie

 

321 S. Delaware Street

 

P.O. Box 326

 

Tonganoxie, KS 66086

 

Attn: City Clerk

 

 

To Grantee:

Sunflower Broadband

 

1 Riverfront Plaza

 

Suite 301

 

Lawrence, Kansas 66044

 

Attn: General Manager

A party may designate other addresses for providing notice by providing notice in writing of such addresses.

Section 17. Miscellaneous.

(a)    Severability. If any provision of this Ordinance is for any reason held illegal, invalid, or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this Ordinance. The invalidity of any portions of this Ordinance shall not abate, reduce, or otherwise affect any consideration or other obligation required by Grantee under the remaining provisions of this Ordinance.

(b)    Complete Agreement. All ordinances and parts of ordinances in conflict with this Ordinance are repealed as of the effective date of this Ordinance, excluding all public utility franchises granted to public utilities, including utilities regulated by the Kansas Corporation Commission.

Section 18. Effective date and acceptance. This Ordinance shall become effective upon publication of any required notice in the official City paper and after Grantee files a letter of acceptance with the City Clerk.

(9-27-04)

ORDINANCE NO. 1308

AN ORDINANCE APPROVING THE TRANSFER OF THE CABLE TELEVISION FRANCHISE GRANTED BY THE CITY OF TONGANOXIE, KANSAS IN ORDINANCE NO. 1169.

FINDINGS

A.    The City of Tonganoxie, Kansas (“City”), has received a request from The World Company, d/b/a Sunflower Broadband (“Sunflower”), to assign to Knology of Kansas, Inc. (“Knology”) the cable television franchise granted Sunflower under City Ordinance No. 1169 (“Franchise”).

B.    The Franchise requires that Sunflower obtain the City’s prior consent for the assignment of the Franchise by Sunflower to Knology.

C.    Sunflower and Knology have properly requested the City’s consent to the assignment and transfer of the Franchise and related assets to Knology.

D.    To the City’s knowledge, Sunflower has fulfilled its obligations under the Franchise.

E.    Knology has the financial, technical, and legal ability to fulfill the obligations of the Franchise, and the assignment of the Franchise to Knology will serve the public interest.

ORDINANCE

Based on the above findings, the City Commission ordains as follows:

1.    Sunflower is in material compliance with its obligations under the Franchise, and the City has no knowledge of any breach or default by Sunflower under the Franchise.

2.    The City consents to the transfer of the Franchise to Knology and all of Sunflower’s rights, title, powers, and privileges in and under the Franchise and related assets.

3.    Upon the closing of the sale of Sunflower’s cable system to Knology (“Closing”), Knology shall become bound by the Franchise and shall perform and discharge all obligations and duties under the Franchise that arise on and after the Closing.

4.    Upon Closing, the City releases Sunflower from all obligations and liabilities under the Franchise that relate to periods from and after the Closing.

5.    The City consents to the granting by Knology of a security interest in the Franchise for the purposes of securing financing.

(9-13-10)

ORDINANCE NO. 1444

AN ORDINANCE, granting to Kansas Gas Service, a Division of ONE Gas, Inc., and its successors and assigns, a natural gas franchise, prescribing the terms thereof and relating thereto, providing definitions of terms, prescribing a franchise fee, providing terms and conditions for the use of public rights-of-way, requiring advance notice of work and duty to repair, providing for indemnification and a hold harmless agreement, providing for rules and regulations, prescribing insurance requirements, reserving certain rights, providing for revocation and termination, providing for an acceptance of the terms of the franchise, providing for a reopener, providing for notice of annexations, prescribing relevant governing law, providing for transfer and assignment of the franchise, providing for points of contact and notifications, providing for an agreement to renegotiate, and repealing all ordinances or parts of ordinances inconsistent with or in conflict with the terms hereof.

BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF TONGANOXIE, KANSAS:

SECTION 1. DEFINITIONS.

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

“City” shall mean the City of Tonganoxie, Kansas, and, where appropriate by the context, each of its departments, divisions and component units, including public trusts or authorities of which the City is a beneficiary.

“Company” shall mean Kansas Gas Service, a Division of ONE Gas, Inc.

“Consumer” shall mean any person or Entity located within the municipal corporate limits of the City and serviced by the Company through any use of the Public Ways.

“Distribution” or “Distributed” shall mean all sales, distribution, or transportation of natural gas to any Sales or Transportation Consumer for use within the City by the Company or by others through the Distribution Facilities of Company in a Right of Way.

“Distribution System” or “Distribution Facilities” shall mean a pipeline or system of pipelines, including without limitation, mains, pipes, boxes, reducing and regulating stations, laterals, conduits and services extensions, together with all necessary appurtenances thereto, or any part thereof located within any Public Way, for the purpose of Distribution or supplying natural gas for light, heat, power and all other purposes.

“Effective Date” shall mean the date the Company files its written acceptance with the City following the final passage and approval of said Ordinance by the City.

“Entity” shall mean any individual person(s), governmental entity, business, corporation, partnership, firm, limited liability corporation, limited liability partnership, unincorporated association, joint venture or trust and shall include all forms of business enterprise not specifically listed herein.

“Facility” or “Facilities” refers to the Company’s Distribution System or Distribution Facilities.

“Franchise” shall mean the grant of authority by the City to transport, distribute or sell natural gas to the inhabitants of the City and to operate a Distribution System or Distribution Facilities.

“Franchise Fee” shall refer to the charges as prescribed in Section 3 of this Franchise Ordinance.

“Franchise Ordinance” shall mean this Ordinance granting a natural gas franchise to the Company.

“Gross Receipts” shall mean any and all compensation and other consideration derived directly by the Company from any Distribution of natural gas to Consumers within the City. Such term shall not include revenue from certain miscellaneous charges and accounts including but not limited to: connection fees, disconnection and reconnection fees, temporary service charges, delayed or late payment charges, collection fees, bad debts, customer project contributions, meter test fees, revenues received by Company from Consumers as franchise fee reimbursement, and returned check charges. Additionally, Gross receipts shall not include credit extended pursuant to the Cold Weather Rule (or substitute rule) of the Kansas Corporation Commission for natural gas sold within the corporate limits of the City, nor Volumetric Rate Fees collected by Company and remitted to City in accordance with Section 3 of this ordinance.

“MCF” shall mean a measurement of natural gas equal to one thousand cubic feet. It is assumed for purposes of this Franchise Ordinance that one MCF equals one million British Thermal Units.

“Public Improvements” means any public facilities, buildings, or capital improvements, including, without limitation, streets, alleys, sidewalks, sewer, water, drainage, right-of-way improvements, and other Public Projects.

“Public Project” means any project planned or undertaken and financed by the City or any governmental entity for construction, reconstruction, maintenance, or repair of public facilities or improvements, or any other purpose of a public nature paid for with public funds.

“Public Way” or “Public Ways” shall mean the area on, below or above the present and future public streets, avenues, alleys, bridges, boulevards, roads, highways, parks, parking places and other public areas, and general utility easements, dedicated to or acquired by the City. The term does not include easements obtained by private entities providing utilities services or private easements in platted subdivisions or tracts.

“Sales Consumer” shall mean, without limitation, any Entity that purchases natural gas within the Corporate City limits from Company for delivery to such consumer within the City through the Company’s Distribution System or Distribution Facilities.

SECTION 2. GRANT OF FRANCHISE.

A.    In consideration of the benefits to be derived by the City and its inhabitants, there is hereby granted to the Company, said Company operating a system for the sale, transmission and distribution of natural gas in the State of Kansas, a non-exclusive franchise for a period of twenty (20) years from the Effective Date to construct, maintain, extend and operate its Distribution Facilities along, across, upon or under any Public Way for the purpose of selling and distributing natural gas for all purposes to the City, and its inhabitants, and through said City and beyond the limits thereof; to obtain said natural gas from any source available; and to do all things necessary or proper to carry on said business.

B.    The grant of this franchise by the City shall not convey title, equitable or legal, in a Public Way and shall give only the right to occupy the Public Way for the purposes and for the period stated in this Ordinance. This Ordinance does not:

(1)    Grant the right to use facilities or any other property, natural gas-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 a Public Way;

(3)    Excuse the Company from obtaining appropriate access or attachment agreements before locating its Facilities on property owned or controlled by the City (other than a Public Way) or a third party; or

(4)    Excuse the Company from obtaining and being 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.

SECTION 3. FRANCHISE FEE.

A.    As further consideration for the granting of this franchise, and in lieu of city occupation, license or permit fees, or revenue taxes, except as expressly provided herein, the Company shall pay to the City during the term of this franchise, a Franchise Fee of (i) five percent (5%) of the actual Gross Cash Receipts collected by the Company from the sale, and distribution all Sales Consumers within the corporate limits of the City all such payments to be made monthly for the preceding monthly period.

B.    The Company’s obligation for payments of the Franchise Fee shall commence with the first cycle of the monthly billing cycle beginning after the passage, adoption, acceptance and publication of this Ordinance, as provided in Section 11 below. Prior to that date, payments shall continue to be calculated and be paid in the manner previously provided in Ordinance No. 1254 and amendments thereto.

C.    In the event a Consumer of Company does not pay a monthly bill from Company in full, Company shall prorate its payments of remissions to the City for sums due on that particular bill so that the amount actually paid by the Consumer to Company on the bill is distributed to Company for the natural gas commodity and transportation or distribution service and to the City for sums due on the bill in proportion to the percentage of the total bill actually paid by the Consumer. In the event Company actually collects any outstanding amounts due on a past due, unpaid or partially paid monthly bill to a customer, then Company shall pay City its proportionate share of sums due to the City on such bill.

D.    Upon written request by the City, but no more than once per quarter, the Company shall submit to the City a certified statement showing the manner in which the Franchise Fee was calculated. The City shall have the right to examine within the corporate limits of the City and during regular business hours, upon reasonable advance written notice to the Company (but no more often than once per calendar year), all books, papers and records kept by the Company in the ordinary course of business and pertaining to its business carried on by it in or through the City, necessary to verify the correctness of the Franchise Fees paid by Company.

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.

F.    The Franchise Fee required herein shall be 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 17-1902 and amendments thereto. From and after the date hereof, the permit fees required of the Company by any ordinance presently in effect or hereafter adopted for a permit to excavate in or adjacent to any Public Way shall be deemed a part of the compensation paid pursuant to this Ordinance and shall not be separately assessed or collected by the City; in no event, however, shall this provision be interpreted to waive the requirement of notice to the City and the procedural requirements of such ordinance. The Franchise Fee is compensation for use of the Public Way.

SECTION 4. USE OF PUBLIC RIGHT-OF-WAY.

A.    Except as provided herein or as regulated by state or federal law, the use of any Public Way under this franchise by the Company shall be subject to all laws, statutes, regulations and/or city policies (including, but not limited to those relating to the construction and use of the Public Way or other public property) now or hereafter adopted or promulgated. In addition, except as provided herein the Company shall be subject to all rules, regulations and policies now or hereafter adopted or promulgated by the City relating to permits, sidewalk and pavement cuts, utility location, construction coordination, and other requirements on the use of a Public Way; provided however, that nothing contained herein shall constitute a waiver of or be construed as waiving the right of the Company to oppose, challenge, or seek judicial review of, in such manner as is now or may hereafter be provided by law, any such rules, regulation or policy proposed, adopted, or promulgated by the City and, further provided other than the items enumerated in this Section 4 herein, that such rules, regulations or policies shall not require the payment of additional fees or additional costs for the use of a Public Way.

B.    All mains, services, and pipe which shall be laid or installed under this grant shall be so located and laid as not to obstruct or interfere with any water pipes, drains, sewers, or other structures already installed. The Company shall provide, prior to commencing work, information to the City concerning work to be performed in the streets, avenues, bridges, parking areas, and public places of the City, as the City may from time to time require for purposes of record keeping. The City may require that the information be provided on its standard permit form, but without requiring approval, consent, or fees. In the event of an emergency, the Company shall have the right to commence work without having first providing such information or form(s).

C.    The Company’s use of any Public Way shall always be subject and subordinate to the City’s use of the Public Way for any public purpose. The City may exercise its home rule powers in its administration and regulation related to the management of the Public Way; provided that any such exercise must be competitively neutral and may not be unreasonable or discriminatory, nor in conflict with state or federal law.

D.    The City reserves the right to lay or permit to be laid cables, electric conduits, water, sewer, gas or other pipelines and to do or permit to be done any underground work deemed necessary and proper by the City, along, across, over or under any Public Way. In permitting such work to be done, the City shall not be liable to the Company for any damage to the Company’s Facilities unless the City or its agents or contractors are negligent in causing said damage.

E.    Whenever by reason of establishing a grade or changes in the grade of any street or in the location or manner of construction of any Public Way, cables, electric conduits, water, sewer, gas or other underground structures, it shall be deemed necessary by the City to alter, change, adapt or conform any portion of the Company’s Facilities located in the Public Way, such alterations or changes shall be made within a reasonable time by the Company, as ordered in writing by the City, without claim for reimbursement or compensation for damages against the City; provided, however, that this provision is not intended to require the Company to alter, change, adapt or conform any portion of its Facilities without reimbursement or compensation where the right to locate the same, whether by private right-of-way grant, utility easement or otherwise, was acquired prior to its location in the Public Way.

F.    If the City shall require the Company to adapt or conform its Facilities or in any way to alter, relocate or change its property to enable any other person, firm, corporation or entity (whether public or private), other than the City, to use the Public Way, the Company shall be reimbursed by the person, firm corporation or entity desiring or occasioning such change for any and all loss, cost or expense occasioned thereby. “Person,” “firm,” “corporation,” and “entity” as used in this paragraph shall not include regular departments of the City, or any trust or authority formed by or for the benefit of City for public utility purposes, but shall include any other agency or authority of the City, whether acting in a governmental or non-governmental capacity, including, but not limited to, any urban renewal authority, or any other agency or authority, which as a part of its program clears whole tracts of land within the municipal corporate limits and relocates citizens for the purpose of urban development or similar aims.

G.    The Company shall participate in the Kansas One-Call utility location program. The Company shall cooperate promptly and fully with the City and take all reasonable measures necessary to provide accurate and complete information regarding the location of its Facilities located within a Public Way when requested by the City. Such location and identification shall be promptly communicated in writing to the City without cost to the City, its employees, agents or authorized contractors. The Company shall designate and maintain an agent familiar with the Facilities, who is responsible for providing timely information needed by the City for the design and replacement of Facilities in a Public Way during and for the design of Public Improvements.

H.    The Company shall be subject to the following fees and costs in connection with its use and occupancy of any Public Way: (i) in the event that the repairs or replacements set forth under Section 5 below, have not been timely completed by Company, the City may charge an excavation fee for each street or pavement cut to recover the costs associated with construction and repair activity; (ii) inspection fees to recover all reasonable costs associated with City inspection of the work of the Company in the Public Way when the Facilities are of such a scope and magnitude so as to require the City to incur such inspection costs by an outside party; and (iii) the repair and restoration costs associated with repairing and restoring the Public Way because of damage caused by the Company, its assigns, contractors, and/or subcontractors in the Public Way. Such repair and restoration costs shall be paid in advance to the City.

SECTION 5. NOTICE OF WORK & DUTY TO REPAIR.

A.    Prior to commencing any activities related to the construction, maintenance, or extension of its Facilities along, across, upon or under the Public Way, the Company shall submit to the City written plans detailing all such activities together with an application for permit. In the event of an emergency, Company shall have the right to commence work without having first providing such plans, provided such plans are submitted within three business days of commencement of the work. The Company shall coordinate the installation, construction, maintenance, and operation of its Facilities in a manner which minimizes adverse impact on existing or contemplated Public Improvements as reasonably determined by the City. The Company’s Facilities shall be so constructed and maintained as not to obstruct or hinder the usual travel or public safety on such public ways or unreasonably obstruct the legal use by other utilities.

B.    Prior to beginning work, the Company will inspect existing pavement within and/or adjacent to the work area and will report any existing damage or concerns. All earth, materials, sidewalks, paving, crossings, utilities, Public Improvements, or improvements of any kind located within the Public Way that are damaged, displaced, or removed by the Company shall be fully repaired or replaced to their prior condition or to existing municipal standards as are then in existence, and in a manner satisfactory to the duly authorized representatives of the City, after completing such activity as is permitted under this Ordinance and without cost to the City.

SECTION 6. INDEMNITY AND HOLD HARMLESS.

The Company, its successors and assigns, in the construction, maintenance, and operation of its natural gas system, shall use all reasonable and proper precaution to avoid damage or injury to persons and property, and shall indemnify, defend, and hold and save the City harmless from any and all claims, damage, judgements, and reasonable expense, including attorney fees, caused by the negligence of the Company, its successors and assigns, or its or their agents or servants. The Company or the City shall promptly advise the other in writing of any known claim or demand against the Company or the City related to or arising out of the Company’s activities in any Public Way.

SECTION 7. RULES AND REGULATIONS.

The Company shall have the right to make and enforce such reasonable rules and regulations as it may deem necessary for the extension of its Facilities, the sale of its gas, and the prudent conduct of its business, provided that such rules and regulations shall neither be in conflict with the laws of the State of Kansas, with the orders, rules or regulations of the Kansas Corporation Commission or other regulatory authority having jurisdiction, nor with the ordinances and regulations of the City insofar as they are consistent with the jurisdiction of the Kansas Corporation Commission or such other regulatory authority.

SECTION 8. INSURANCE REQUIREMENTS.

During the term of this Ordinance, the Company shall obtain and maintain insurance coverage at its sole expense with financially reputable insurers that are licensed to do business in the State of Kansas. Should the Company elect to use the services of an affiliated captive insurance company for this purpose, that insurer shall possess a certificate of authority from the Oklahoma Insurance Commissioner. The Company shall provide not less than 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, 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 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 the Company’s operations under this Ordinance.

As an alternative to the above insurance requirements, the Company may demonstrate to the satisfaction of the City that it is self-insured and as such Company has the ability to provide coverage in an amount not less than One Million Dollars per occurrence and Two Million Dollars in the 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 the Company, or alleged to so have been caused or occurred.

SECTION 9. REVOCATION AND TERMINATION.

In case of failure on the part of the Company to comply with any of the provisions of this Ordinance, or if the Company should do or cause to be done any act or thing prohibited by or in violation of the terms of this Ordinance, the Company 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 Ordinance shall be deemed revoked or terminated, provided that said revocation or termination shall not take effect until the City has completed the following procedures: Before the City proceeds to revoke and terminate this Ordinance, it shall first serve a written notice upon Company, setting forth in detail the neglect or failure complained of, and the Company shall have sixty days thereafter in which to comply with the conditions and requirements of this Ordinance. If at the end of such sixty-day period the City determines that the neglect or failure complained of has not been cured, the City shall take action to revoke and terminate this Ordinance by an affirmative vote of the governing body present at a public meeting and voting, setting out the grounds upon which this Ordinance is to be revoked and terminated; provided, to afford the Company due process, the Company shall first 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; and further provided, if the nature of the default is such that it cannot be reasonably cured within the above said sixty-day period, and the governing body believes the Company has in good faith timely commenced its cure and is diligently pursuing the completion of the same, the Company may, in the City’s sole discretion, be given a reasonable additional period of time to complete its cure. Nothing herein shall prevent either party from invoking any other remedy that may otherwise exist at law. Upon any determination by the governing body to revoke and terminate this Ordinance, the Company shall have thirty days to appeal such decision to the District Court where the City is located or in the District Court of Johnson County, Kansas. This Ordinance shall be deemed revoked and terminated at the end of this thirty-day period, unless the Company has instituted such an appeal. If the Company 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 the Company to comply with any of the provisions of this Ordinance or the doing or causing to be done by the Company of anything prohibited by or in violation of the terms of this Ordinance shall not be a ground for the revocation or termination thereof when such act or omission on the part of the Company is due to any cause or delay beyond the control of the Company or to bona fide legal proceedings.

SECTION 10. RESERVATION OF RIGHTS.

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, applicable Federal laws or regulations 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.

In adopting and passing this Ordinance, neither the City’s nor the Company’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 the City’s adopting and passing this Ordinance and the Company’s acceptance hereof as provided in Section 11, neither the City nor the Company waive any rights, but instead expressly reserve any and all rights, remedies, and arguments the City or the Company 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 11. ACCEPTANCE OF TERMS.

This franchise Ordinance shall take effect and be in force from and after its passage, approval by the City, acceptance by the Company, and publication in the official City newspaper. The Company shall have sixty days after the final passage and approval of this franchise Ordinance to file with the City Clerk its written acceptance of the provisions, terms and conditions of this franchise Ordinance and when so accepted, this franchise Ordinance and acceptance shall constitute a contract between the City and the Company and such contract shall be deemed effective on the date Company files its acceptance with the City.

This franchise Ordinance, when accepted as provided above, (i) shall constitute the entire agreement between the City and the Company relating to this franchise, and the same shall supersede and cancel any prior understandings, agreements, or representations regarding the subject matter hereof, or involved in negotiations pertaining thereto, whether oral or written, (ii) shall be binding upon the parties, including their successors and assigns, and (iii) shall not be amended or further obligations imposed without mutual consent of the parties hereto.

SECTION 12. REOPENER PROVISION.

Upon written request of either the City or the Company, this Franchise may be reopened and renegotiated after five (5) years from the effective date of this ordinance, and every (5) five years thereafter for the review of the rate set forth in Section 3 above. Said request must be served upon the other party at least 120 days prior to the end of each period set forth above and shall state specifically the amendments desired. The City and the Company shall negotiate in good faith in an effort to agree upon mutually satisfactory amendments.

Upon written request of the Company, the franchise shall be reopened and renegotiated at any time upon a change in federal, state, or local law, regulation, or order which materially affects any rights or obligations of Company, including, but not limited to, the scope of the grant to the Company or the compensation to be paid to the City.

The franchise fee percentage rate set forth in Section 3 shall in no event exceed the percentage rate hereafter approved to calculate any fee paid to the City by any Entity for use of the Public Ways, if such fee is based in any way on the amount of revenues or gross receipts from the sale, transportation and/or distribution of natural gas or electric energy (excluding any municipally-owned electric utility) by such other Entity to customers within the City. If at any time after the effective date of this Ordinance the fee or rate required to be paid by another utility distribution company is less than the percentage rate set forth in Section 3, then the percentage rate set forth in Section 3 shall be automatically reduced to equal such lesser percentage rate on the date such lesser percentage rate becomes effective and without any further action by the City.

SECTION 13. NOTICE OF ANNEXATION.

The City shall promptly notify the Company in writing (to include a map) of areas newly annexed into or de-annexed from the corporate limits of the City, and the Company shall update its records for the purpose of payment of franchise fees as soon as reasonably practicable after receiving such notice. Notwithstanding anything to the contrary in this Ordinance, the fees provided for in Section 3 above shall not become effective within any area annexed by the City until the beginning of the monthly billing cycle which begins no more than sixty days after the date that the City provides the Company with a certified copy of the annexation ordinance, proof of publication as required by law and a map of the City detailing the annexed area.

SECTION 14. RELEVANT LAW.

The franchise is granted pursuant to the provisions of K.S.A. 12-2001 and amendments thereto. Any and all ordinances or parts of ordinances in conflict with the terms hereof are hereby repealed or considered as having no effect as of the first cycle of the monthly billing cycle as referenced in Section 3 of this ordinance.

SECTION 15. TRANSFER AND ASSIGNMENT.

Company shall not have the right to assign, sell, lease, or otherwise transfer in any manner whatsoever to any third party not affiliated with Company the rights and privileges granted under this Ordinance except as hereinafter provided. Any assignment, sale, lease, or other transfer by the Company of the franchise granted herein to any third party not affiliated with Company shall be ineffective and void unless:

(1)    The proposed assignment, sale, lease or transfer shall be in writing:

(2)    The prospective assignee, buyer, lessee or other transferee shall agree in writing to accept and become responsible for full performance of all conditions, covenants, obligations, and liabilities contained in this Ordinance; and

(3)    Such writing shall be submitted to the City Clerk of the City.

SECTION 16. POINT OF CONTACT AND NOTICES.

Company 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 Company in the event of an emergency. Company shall provide the City with said local contact’s name, address, telephone number, fax number and e-mail address. Emergency notice by either party to the other may be made by telephone to the City’s designee as listed below. 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), or via the email addresses provided below. Any notice served by U.S. Mail or Certified Mail (return receipt requested) shall be deemed delivered upon actual receipt unless otherwise provided. Other than emergencies, notices to the parties shall be to the following:

The City:

Company:

 

 

The City of Tonganoxie

Kansas Gas Service, a Div. of ONE Gas, Inc.

Attn:

City Clerk

Attn:

Legal Department

 

526 E. 4th Street

 

7421 W. 129th Street

 

Tonganoxie, KS 66086

 

Overland Park, KS 66213-2713

Phone: 913-845-2620

Phone: 913.319.8618

Email: info@tonganoxie.org

Email: kgsfranchises@onegas.com

Emergency Designee: Dan Porter

Emergency Designee: Jason Baker

Address: PO Box 326, Tonganoxie, KS 66086

Address: 11401 W 89th Street, OP, KS 66214

 

 

 

 

Phone: 913.845.2620

Phone: 913.599.8932

Fax: 913.845.9760

Fax:

Email: dporter@tonganoxie.org

Email: Jason.Baker@onegas.com

 

 

 

 

(or to replacement addresses that may be later designated in writing).

SECTION 17. AGREEMENT TO RENEGOTIATE.

Should the Kansas Corporation Commission take any action with respect to this franchise Ordinance and any amendment thereto which precludes Company from recovering from its customers any costs or fees provided for hereunder, the parties hereto shall renegotiate this franchise Ordinance in accordance with or to conform to the Commission’s ruling.

(7-16-18)