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City Code APPENDIX B - FRANCHISES

APPENDIX B - FRANCHISES

APPENDIX B - FRANCHISES

June 06, 2010

 

ORDINANCE NO. 3252

 

AN ORDINANCE GRANTING TO THE GREELEY GAS COMPANY, A COLORADO CORPORATION, DULY AUTHORIZED TO ENGAGE IN BUSINESS IN THE STATE OF KANSAS, ITS TRUSTEES, 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 CONFLICTING WITH THE TERMS THEREOF.

 

Section 1. That the right and privilege is hereby granted to the Greeley Gas Company, a Colorado Corporation, duly authorized to engage in business in the State of Kansas, its trustees, successors, and assigns,

(hereinafter referred to as the grantee), to use and occupy the streets, avenues, roads, alleys and other public places and grounds in the City of Eureka, Kansas, (hereinafter referred to as the city), and all additions thereto,

for the purpose of constructing, erecting, repairing, restoring, renewing, operating, and maintaining gas pipe lines, mains, conduits, regulating stations, laterals, and all necessary equipment and appurtenances for use in

the transmission, distribution, and sale of natural gas for light, heat, power, and all other purposes for which natural gas may be used, subject to the conditions hereinafter stated, the lawful rules and regulations of the

State Corporation Commission of the State of Kansas, and any other regulatory agency having jurisdiction over the grantee, and the laws of the State of Kansas.

 

Section 2. That all mains, high pressure and service mains, may be laid in the streets and alleys and other public places and grounds of the city wherever practicable and when so laid the service pipes shall be laid to the property lines. That all mains and service pipes of the grantee, its trustees, successors, and assigns, shall

be laid as near as possible in conformity with the uniform grade of the streets and at a depth of not less than 15

inches below the surface thereof, and shall be laid in such manner as not to interfere with any public or private drains, sewers, water pipes or other public improvements; provided that the city reserves the right to construct, change or repair any water mains, sewers, pipes, drains or other public improvements where the grantee, its trustees, successors and assigns, shall use the streets, alleys or public grounds for use of its mains or other pipes. The streets, alleys or other public grounds shall be excavated, refilled ore replaced under the direction of the city engineer or such other person as designed by the city, and any gutter, curb, pavement, sidewalk, crossing, or other public improvements, disturbed by any operations of the grantee, its trustees, successors

and assigns, shall immediately be restored and replaced by the grantee or its trustees, successors and

assigns, at its or their own expense, to the condition which the same was in before being disturbed, all under the direction of the city engineer or such other person as the city shall designate. And in case the grantee, its

trustees, successors and assigns, shall fail, after reasonable notice, to repair and restore the

 

same to their original condition, the city reserves the right to make such repairs and to restore such curbs, gutters, pavements or sidewalks to their former condition, and to pay therefor and charge the same to the grantee, its trustees, successors and assigns.

 

Section 3. During the continuance of this franchise, the grantee shall furnish a good and sufficient supply of natural gas to the city and its inhabitants in accordance with the terms of this franchise, and the rates, charges, rules and regulations, now on file with the State Corporation Commission of the State of Kansas, or such revisions of rates, charges, rules and regulations as may be lawfully established from time to time in accordance with the laws of the State of Kansas.

 

Section 4. It is recognized that natural gas to be delivered hereunder is to be supplied from grantee's pipeline system transporting natural gas from various sources of supply and the grantee, by its acceptance of this franchise as hereinafter provided, does obligate itself to furnish natural gas for such length of time, limited by the terms hereof, as the sources of supply and the pipelines are reasonably capable of supplying.

 

Section 5. That nothing in this ordinance contained shall be construed as waiving the rights of either the city or the grantee to review in the courts and before the appropriate commission, in such manner as is not provided or may hereafter be provided, any finding or order of any regulatory authority at present existing or which may hereafter be established by law establishing rates for gas furnished under the provisions of this ordinance.

 

Section 6. That, in consideration of the premises, the grantee agrees to pay to the city and the city agrees to accept as adequate compensation and consideration for the franchise hereby granted and in lieu of occupation, license, privilege and all other taxes and fee, three percent of the total of the gross sales of gas sold by the grantee within the corporate limits of the city during the term of this franchise, payable no less frequently than semi-annually.

 

Section 7. The grantee shall have the right to make reasonable rules and regulations for the protection of its property, for the prevention of loss and waste in the conduct and management of its business, and for the sale and distribution of gas, including rules and regulations with reference to extensions or additions to its gas distribution system, as from time to time is deemed necessary. The city shall pass suitable ordinances as may be necessary to protect the grantee and its property against waste and unlawful use of gas, and the grantee is hereby authorized to enter the premises of its customers at all proper times for the purpose of reading meters, disconnecting consumers, for inspecting pipes and all other gas appliances, and for determining the use of such gas by such consumer.

 

Section 8. That in the event the supply of natural gas fails in part, then in that event, the grantee shall have the right to give service priority to domestic consumers.

 

 

Section 9. That the grantee, its trustees, successors and assigns, shall at all times save the city harmless from any and all damages which the city shall be liable to pay that might arise form the construction, repair, operation or maintenance of the plant, and shall at all times protect by proper lighting signals, or railings, all

excavations, and, without expense to the city, fill and protect all excavations and changes which the grantee, its

trustees, successors and assigns, may make or cause to be made, and will leave the place entered in as good a condition as the same was found; and in case the grantee, its trustees, successors and assigns, shall fail after reasonable notice to comply with the provisions hereof, the city shall have the right to repair, the same at the expense of the grantee, its trustees, successors and assigns, and the city may recover the damage sustained thereby, together with the expense of making the correction or repair by suitable action in any court of competent jurisdiction. Should the grade of any of the streets, alleys or public grounds be changed by the grantor, the grantee, its successors and assigns, if requested by the city, shall raise or lower, at its or their own expense, all gas mains or pipes or other parts of the plant in the streets, alleys, or public grounds, so that the same will be at the same distance below the surface of the streets, alleys or public grounds, after such change in the grade as before.

 

Section 10. The grantee shall have the right to assign this franchise, and the rights and privileges herein granted, to any person, firm, or corporation, subject to the approval of the State Corporation Commission of the State of Kansas, or any other body having jurisdiction over such assignment, and any such assignee, by accepting such assignment, shall be bound by the terms and provision thereof. All such assignments shall be in writing and true copies thereof filed with the clerk of the city.

 

Section 11. Any and all ordinances in conflict with the terms hereof are hereby repealed, including franchise

Ordinance No. 3253, passed by the City of Eureka, Kansas on the 26th day of August, 1985.

 

Section 12. That this ordinance shall take effect and be in force and shall be and become a binding contract between the parties hereto, their trustees, successors, and assigns, 60 days from and after the date of its final passage, approval, publication as required by law and upon the filing of the grantee's unconditioned written acceptance. This ordinance and the franchise herein granted shall remain in full force and effect for a period of

20 years after final passage.

 

Section 13. This franchise is granted pursuant to the provisions of Section 12 2001, Kans. G.S. 1961 Supp. (08-26-85)

 

ORDINANCE NO. 3632

 

AN ORDINANCE, GRANTING TO WESTERN RESOURCES, 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 ORDINANCE INCONSISTENT WITH OR IN CONFLICT WITH THE TERMS HEREOF.

 

Section 1. In consideration of the benefits to be derived by the City of Eureka, Kansas, and its inhabitants, there is hereby granted to Western Resources, 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 10 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 property 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 three percent of its gross revenue from the sale of electric energy within the corporate limits of the city, such payment to be made monthly for the preceding monthly period.

 

Section 3. 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. That within 20 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 5. After the approval of this ordinance by the State Corporation Commission, 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 6. That 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 mater hereof, or involved in negotiations pertaining thereto, whether oral or written.

 

Section 7. This franchise is granted pursuant to the provisions of K.S.A. 12 2001. (10-12-92)

 

ORDINANCE NO. 4007

 

AN ORDINANCE GRANTING TO FRANCHISEE, THE NON-EXCLUSIVE RIGHT TO ERECT, MAINTAIN AN]) OPERATE IN, UNDER, OVER, ALONG, ACROSS THE STREETS, LANES, AVENUES, SIDEWALKS, ALLEYS, BRIDGES, HIGHWAYS, EASEMENTS DEDICATED FOR COMPATIBLE USES AND OTHER PUBLIC PLACES IN THE CITY OF EUREKA, KANSAS AND THE SUBSEQUENT ADDITIONS THERETO, TOWERS, CABLES AND ANCILLARY FAC1TJTIES FOR THE PURPOSE OF CONSTRUCTING, OPERATING, MAINTAINING AND REPAIRING CABLE SERVICE FOR A PERIOD OF FIVE (5) YEARS REGULATING THE SAME AND PROVIDING FOR COMPENSATION OF TUE. CITY OF EUREKA, KANSAS.

 

Section 1. Definitions. - For the purposes of this Ordinance, the following terms, phrases, words and their derivations shall have the meaning given herein. When not inconsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, and words in the singular number include the plural number. The word “shall” is always mandatory and not merely directory. (a) “Basic Cable Television Service” - means the service tier which includes the retransmission of local broadcast signals as required by FCC Must-Carry Rules (Sec. 76.55 and Sec. 76.56).

(b) “Grantor” - is the City of Eureka, Kansas.

(c) “Council” - is the governing body of the City of Eureka, Kansas.

(d) “System” - means a facility, consisting of a set of closed transmission paths and associated signal

generation, reception, and control equipment that is designed to provide cable service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (1) a facility that serves only to retransmit the television signals of one or more television broadcast stations; (2) a facility that serves subscribers without using any public right of way; (3) a facility of a common carrier as described in § 602 (7) of the Communications Act; (4) an open video system that complies with § 653 of the Communications. Act; or (5) any facilities of any electric utility used solely for operating its electric utility systems.

(e) “Cable Service” - means the provision of Cable Television Service.

(f) “Television Service” - the one-way transmission of video programming or other programming services and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service.

 

(g) “FCC” - shall mean the Federal Communications Commission.

(h) “Franchisee” - is Mediacom Southeast, L.L.C., or its successors or assigns as approved by the Grantor pursuant to Sec. XV.

(i) “Person” - is any person, firm, partnership, association, corporation or organization of any kind and any other legally recognized entity.

(j) “Subscribers” - are those persons contracting to receive cable television reception services furnished under this Ordinance by Franchisee.

(k) The “Term” of this Ordinance shall have the meaning as defined in Section XVII of this Ordinance.

(l) Gross Revenues - shall mean revenues from the operation of the System to provide Cable Service within the

Service Area received by Franchisee from Subscribers for any basic, optional, premium, pay-per-channel, or pay-per-program service; customer equipment and installation charges, disconnection and re-connection charges; revenues from advertising sales less agency fees, home shopping receipts and leased access fees. Gross Revenues shall not include deposits, refunds and credits, bad debt, revenue from Subscribers paid to Grantor which are designated by Franchisee as payment of its franchise fee obligation, the FCC user fee or taxes imposed directly upon a subscriber or user by a city, county, state or federal governmental unit and collected by Franchisee on behalf of such governmental unit.

(m) “Open Video System” - is a facility consisting of a set of transmission paths and associated signal

generation, reception, and control equipment that is designed to provide Cable Television Service which include video programming and which is provided to multiple subscribers within a community, provided that the FCC has certified that such system complies with FCC requirements.

(n) “Service Area” - means the area of the Grantor currently served by Franchisee and shall include any additions thereto by annexation or other legal means, subject to the exceptions in Section IV.

 

Section 2. Grant of Non-exclusive Authority. (a) For the Term of this Ordinance, there is hereby granted by Grantor to Franchisee and its successors, assigns or designees, the non-exclusive right to erect, maintain and operate in, under, over, along, across and upon the present and future streets, lanes, avenues, sidewalks, alleys, bridges, highways, rights-of-ways, easements dedicated for compatible uses and other public places located within the boundaries of the City of Eureka, Kansas including subsequent additions thereto, towers, poles, lines, cable, wires, manholes and all other fixtures and equipment necessary for the maintenance and operation of a System for the purpose of transmission and distribution of cable services, information services, data services and broadband telecommunications services.

(b) Grantor shall not permit any person to provide services similar to those provided by Franchisee without first

having secured a non-exclusive franchise from Grantor that shall impose the same costs, obligations and restrictions imposed by this Ordinance.

(c) The Grantor agrees that any grant of additional franchises or other authorizations by the Grantor to provide services similar to those provided by the Franchisee pursuant to this Ordinance to any other entity will not

impose Material Obligations, which are more favorable or less burdensome than those which are set

 

forth herein. For the purposes of this Section, “Material Obligations” will include but not be limited to the Franchisee’s obligations under this Ordinance to pay. franchise fees; to fulfill customer service standards; and to meet installation standards.

 

Section 3. Compliance with Applicable Laws and Ordinances. Franchisee shall during the Term, be subject to all lawful exercise of the police powers of Grantor except as those powers are limited by federal law, including the Communications Act of 1934 as amended and the regulations of the FCC.

 

Section 4. Franchise Area. This Ordinance permits the provision of service to the present boundaries of

Grantor and to any area annexed thereto during the Term. Franchisee shall not be required to service residents

of areas within the present boundaries of Grantor and any areas annexed by Grantor after the effective date of this Ordinance that are more than four hundred feet (400’) from a point of connection to existing distribution lines or where there is present a density of less than 20 residences per mile except upon payment by such residents of the capital costs incurred by Franchisee in bringing service to such residents.

 

Section 5. Liability and Indemnification. Franchisee shall indemnify, protect, defend, and save harmless Grantor from and against any and all losses, class, damages, liabilities, injury, cost, expense (including attorneys fees), bodily injury or death to persons, including payments made by or pursuant to any Worker’s Compensation insurance purchased by the Grantor that arises out of, is related to, or is occasioned in any manner, solely or in part by Franchisee’s activities, operations, installations, erections, attachments, or acts of any of Franchisee’s employees, contractors or agents. Franchisee’s obligation to indemnify, protect, defend and save harmless Grantor shall include, but shall not be limited to, damages arising out of copyright infringements, and all other damages arising out of the installation, operation, or maintenance of the System, whether or not any act or omission complained of is authorized, allowed or prohibited by this Ordinance.

Franchisee shall, at all times, keep in effect the following types of coverage with insurance companies authorized to do business in the State of Kansas.

(a) Worker’s Compensation Insurance in such amounts and with such coverage as required by Kansas law.

(b) Property Damage Liability Insurance to the extent of Two Hundred Fifty Thousand Dollars ($250,000.00) as

to each occurrence and Two Hundred Fifty Thousand Dollars ($250,000.00) aggregate, and Personal Injury Liability Insurance to the extent of Five Hundred Thousand Dollars ($500,000.00) as to each occurrence and Five Hundred Thousand Dollars ($500,000.00) aggregate. Excess Bodily Injury and Property Damage of One Million Dollars ($1,000,000.00) each occurrence and One Million Dollars ($1,000,000.00) aggregate. Automobile Bodily Injury and Property Damage Liability combined One Million Dollars ($1,000,000.00) each occurrence.

 

(c) Franchisee shall maintain policies of insurance in. the above described amounts to protect the parties

hereto from and against all actions, judgments, costs, expenses and liabilities which may arise or result, directly or indirectly, from or by reason of such loss, injury or damage. Franchisee shall also maintain policies of insurance in amounts it deems necessary, but not less than, required by Kansas law, to protect it from all

claims under the Worker’s Compensation laws in effect that may be applicable to Franchisee.

(d) Franchisee shall, with regard to the policies required by paragraph B and C above: (1) provide to Grantor certificates evidencing the insurance coverage, and (2) require the insurance company providing said insurance to include a provision that said insurance cannot be cancelled except upon 30 days notice to Grantor.

 

Section 6. General System Specifications. The facilities used by Franchisee shall have a minimum capacity of

450 MHz and have at least 63 activated channels.

Section 7. Technical Standards. Franchisee shall comply with the technical standards established by the FCC. Section 8. Customer Service Standards / Operation and Maintenance System.

(a) Franchisee shall render service and make repairs in a commercially reasonable manner, and interrupt

service only for good cause, including as required by federal law for the shortest time possible, such interruptions, insofar as possible, shall occur during periods of minimum use of the System.

(b) Under normal operating conditions, Franchisee shall respond to service requests within two business days following receipt.

(c) Failure by Franchisee to restore any service to a customer within two business days after receipt of notification of a complete disruption of service will, upon request by the customer, result in the issuance of a

credit to that customer’s account for the portion of a month they were without cable service.

 

Section 9. Local Business Agent. During the term of this franchise, and any renewal thereof, Franchisee agrees to maintain a local or toll free telephone number to be used by customers of the Franchisee to contact Franchisee and to place requests for service or inquiries.

 

Section 10. Service to Schools and City. (a) Franchisee shall, subject to the line extension provisions of Section IV, provide Basic Cable Television Service at no separate charge to public elementary and secondary schools, at one terminal junction per school building for educational purposes upon request of the school system.

(b) Franchisee shall, subject to the line extension provisions of Section IV, also provide without charge, at one

Grantor administration building to be selected by the Council, one junction terminal to said building and shall also furnish to the building, without charge, Basic Cable Television Service to the building’s terminal junction.

 

Section 11. Emergency Alert System. Franchisee shall provide emergency alert facilities as required by federal law. Grantor or its designee shall have the capability of disseminating emergency messages over the cable system in accordance with applicable State and Local plans approved in accordance with FCC standards and provided that Grantor or its designee acquires, at its own cost, all necessary interface and encoding equipment.

 

Section 12. Safety Requirements. Franchisee shall, at all times, employ ordinary and reasonable care and shall use and maintain commonly accepted methods and devices for preventing failures and accidents which are likely to cause damages, injuries, or nuisances to the public.

 

Section 13. Limitations on Rights Granted. (a) All transmission and distribution structures, lines and equipment erected by Franchisee within Grantor shall be located as to cause minimum interference with the proper use of streets, alleys and the public ways and places, and to cause minimum interference with the rights and reasonable convenience of property owners who adjoin any of the said streets, alleys or other public ways and places, and said poles or towers shall be removed by Franchisee whenever Grantor reasonably finds that the same restrict or obstruct the operation or location of any future streets or public places within Grantor and Grantor concurrently requires relocation of similarly situated utilities.

(b) Construction and maintenance of the System shall be in accordance with the provisions of the National

Electrical Safety Code, prepared by the National Bureau of Standards, the National Electrical Code of the National Board of Fire Underwriters, and such applicable ordinances and regulations of Grantor, affecting electrical installation, which are presently in effect at the time of construction.

(c) In case of disturbance of any street, sidewalk, alley, public way or paved area, Franchisee shall, at its own

cost and expense and in a manner approved by Grantor, replace and restore such street, sidewalk, alley, public way or paved areas in at least as good a condition as before the work involving such disturbance was done.

(d) If at any time during the period of this Ordinance Grantor shall elect to alter or change the grade of any

street, sidewalk, alley or other public way, Franchisee, upon reasonable notice by Grantor, shall remove, relay and relocate its poles, wires, cables, underground conduits, manholes and other fixtures at its own expense

provided Grantor concurrently imposes identical requirements on similarly situated utilities.

(e) Franchisee shall or the request of any person holding a building moving permit or any person who wishes to remove trees or structures from their property, temporarily raise or lower its wires to permit the moving of buildings or tree removal. The expense of such temporary removal or raising or lowering of wires shall be paid by the person requesting the same; the Franchisee shall have the authority to require such payment in

advance. Franchisee shall be given not less than fourteen (14) days advance notice to arrange for such temporary wire changes.

(f) Subject to Grantor approval, Franchisee shall have the authority to trim trees that overhang the streets, alleys, sidewalks and public ways and places so as to prevent the branches of such trees from coming in

contact with the wires and cables of Franchisee.

 

(g) Franchisee, shall, at its expense, protect, support, temporarily disconnect, relocate on the same street, alley or public place, or remove from the street, alley or public place, any property of Franchisee when required by Grantor by reason of traffic conditions, change of establishments of street grade, installation of sewers, drains, water pipes, power lines, signal lines, and tracks or any other type of structures or improvements by governmental agencies when acting in a governmental or proprietary capacity, or other structure of public improvement; provided, however, that Franchisee shall in all cases have the privileges and be subject to the obligations to abandon any property of Franchisee in place as hereinafter provided.

(h) In all sections of Grantor where Grantor designates an area where all presently above ground services are

to be placed underground, Franchisee shall place its wires underground on the same time schedule and on the same conditions that are applicable to the providers of other above ground services in the designated areas.

(i) In the event that the use of any part of the System is discontinued for any reason for a continuous period of twelve (12) months, or in the event such System or property has been installed in any street or public place

without complying with the requirements of this Ordinance, Franchisee shall promptly remove from the streets, or public places, all such property and poles of such System other than any which the City may permit to be

abandoned in place. In the event, of such removal, Franchisee shall promptly restore the street or other areas from which such removal is made to a condition satisfactory to Grantor.

(j) Any property of Franchisee to be abandoned in place shall be abandoned in such a manner as Grantor may prescribe. Upon permanent abandonment of the property of Franchisee in place, it shall submit to Grantor an

instrument to be approved by Grantor, transferring to Grantor the ownership of such property.

 

Section 14. Ownership and Removal of Cities. (a) All cable and equipment for Cable Service including cable television reception service installed by Franchisee at a subscriber’s location shall remain the property of Franchisee and Franchisee shall have the right to remove said cable and equipment. Upon termination of all service to any subscriber, Franchisee shall promptly remove all its above ground facilities and equipment from the premises upon the request of such subscriber.

(b) At the end of the Term of this franchise, the disposition of equipment owned by Franchisee will be in

accordance with applicable FCC regulations. Or at Grantor’s election, Franchisee, at its sole cost and expense and upon direction of the Grantor, shall remove the above ground cables and appurtenant devices constructed or maintained in connection with the services authorized herein.

 

Section 15. Transfer of Ordinance. All right; tide and interest of Franchisee in this Ordinance and the Non- exclusive Franchise granted herein shall be assignable with written consent of Grantor, which consent will not be unreasonably withheld; provided that a transfer to a subsidiary or parent company of Franchisee is not a transfer within the meaning of this Ordinance.

 

Section 16. The Franchisee shall pay Grantor three percent (3%) of Gross Revenues. Such payment shall be made annually within sixty (60) days after the end of each calendar year. If not timely paid, the amount due shall bear interest at the rate of 60% per annum.

 

Section 17. Revocation of Franchise. (a) Grantor’s Right to Revoke

(1) In addition to all other rights which Grantor has pursuant to law of equity, Grantor reserves the right to

revoke, terminate or cancel this Franchise, and all rights and privileges pertaining thereto, if alter the hearing required by Section 18(b), it is determined that:

 

(a) Franchisee has violated any material provision, of this Franchise; or

(b) Franchisee has practiced fraud or deceit upon Grantor or Subscriber, or

(c) Franchisee has evaded any of the material provisions of the Franchise.

(b) Procedures for Revocation, Termination or Cancellation.

(1) To the address set forth in Section 17 herein, Grantor shall until to Franchisee written notice of the grounds for revocation, termination or cancellation and the intent to revoke, terminate or cancel this Franchise.

(2) Franchisee shall have not more than thirty (30) business days after notice of violation to either (a) cure such violation, or (b) in the event that, by the nature of such default; it cannot be cured within the thirty (30) day

period, initiate reasonable steps to remedy such default, diligently proceed to take said steps, and notify the

Grantor of the steps being taken and the projected date that they will be completed, provided, however, that

Franchisee shall not have more than ninety (90) days to cure any violation or violations after notice from Grantor as provided herein, if the Franchisee cures the violation or violations which are the subject of the Grantor’s notice within the time period specified herein and if the Franchisee has not previously been cited by the Grantor with a similar violation of the agreement in the past twelve months, Grantor shall rescind its notice to revoke.

(3) If the Franchisee wishes to dispute the grounds for revocation, termination or cancellation it shall provide

written notice of that dispute, setting forth, with specificity, the reasons why it disputes the grounds for revocation, termination or cancellation set forth by the Grantor. To the address set forth in Section 17 herein, Franchisee shall mail this written notice of dispute. Such written notice must be postmarked not more than twenty (20) days after Grantor’s notice of intent to revoke, terminate or cancel this Franchise.

(4) If the Franchisee timely disputes the grounds for revocation, Grantor shall thereafter schedule a pubic hearing before the Council. Notice of this public hearing will be sent to Franchisee at the address set forth in Section 16 Unless Franchisee agrees to an earlier date, the date for the public hearing will be scheduled for a date not earlier than ten (10) days after the date the notice of hearing was mailed. At this public hearing, the Council shall act as a fact-finding tribunal. Grantor shall be represented by its City Attorney, and Franchisee may appear through counsel. Each side will be permitted to present competent evidence relevant to the issues raised in the Grantor’s grounds for revocation and the Franchisee’s dispute. After the public hearing, Grantor shall provide Franchisee with written notice of its decision together with written findings of fact supplementing said decision.

(5) After the public hearing and upon written determination by Grantor to revoke the Franchise, Franchisee may

appeal said decision with an appropriate state or federal court or agency. During the appeal period, the Franchise shall remain in full force and effect unless the term thereof sooner expires. If, as a result of the appeal process (including reversals and remands), the final result is that Grantor was entitled to revoke, terminate or cancel this Agreement, then Franchisee shall, in addition to payment of all sums due Grantor pursuant to the terms of this Ordinance, pay to Grantor all reasonable costs, fees, and expenses, including but not limited to attorneys fees and court costs, incurred by Grantor in connection with or arising out of the public hearing and the related appeals and proceedings.

(6) The Grantor may, at its sole discretion, take any lawful action which it deems appropriate to enforce the

Grantor’s rights under the Franchise in lieu of revocation of the Franchise.

 

(7) Upon satisfactory correction by Franchisee of the violation or violations upon which said notice was given as determined, the initial notice shall become void.

 

Section 18. Erection, Removal and Common Use of Poles. (a) No poles or other wire-holding structures shall be erected by Franchisee without prior approval of the designated representative of the Council with regard to locations, height; type or any other pertinent aspect, which approval shall not be unreasonably withheld. However, no location of any pole or wire-holding structure of Franchisee shall create a vested interest.

(b) Where poles or other wire-holding structures already existing in use in serving Grantor are available for use

by Franchisee, but it does not make arrangements for such use, the Council may require Franchisee to use such poles and structures if it determines that the public convenience would be enhanced thereby and the terms of the use available to Franchisee are just and commercially reasonable.

 

Section 19. Rates and Charges. The Grantor reserves the right to regulate such rates and charges assessed to

Subscribers to the extent permitted by and using methodologies prescribed by Federal law.

 

Section 20. Books and Records. The Grantor will have the right to conduct an independent audit of Franchisee’s books and records directly related to the franchise fee to verify Gross Revenues. Such audit will be performed during normal business hours with no less than thirty (30) days prior written notice to Franchisee. The books and records shall be made available for review by Grantor in the state of Kansas or, at the option of Franchisee and provided Franchisee pays all reasonable travel expenses, the books and records will be reviewed at a place designated by Franchisee in the United States. Auditing of books and records by the Grantor pursuant to the terms of this Franchise shall be performed by a representative of the Grantor whose

 

profession binds him/her to an ethical code.

If such audit indicates a franchise fee underpayment of 3% or more, on an annual basis beginning with January

1 of each year, Franchisee will pay all costs of the audit plus the amount underpaid together with 6% interest

on such sums until paid in full.

If the Grantor conducts its audit, and the results of such an audit have become final under the provisions of this

Franchise, there shall be an accord and satisfaction with respect to any sums paid by Franchisee arising with respect to the period subject to audit. Moreover, there shall be an accord and satisfaction with respect to any payment not subject to audit within thirty-six (36) months following the close of the calendar year to which such payment relates, unless there is subsequent evidence that Franchisee has engaged in fraud or has improperly withheld relevant records which relate to such payments.

 

The Franchisee shall not be required to maintain any books and records for Franchise compliance purposes longer than three (3) years. Notwithstanding anything to the contrary set forth herein, the Franchisee shall not be required to disclose information, which it reasonably deems to be proprietary or confidential in nature, nor disclose books and records of any affiliate, which is not providing Cable Service in the Service Area. The Grantor agrees to treat any information disclosed by the Franchisee as confidential and only to disclose it to employees, representatives, and agents thereof that have a need to know, or in order to enforce the provisions hereof The Franchisee shall not be required to provide Subscriber information in violation of Section 631 of the Communications Act.

To the extent Grantor obtains any personally identifiable information or other information protected under federal, state or local privacy laws, Grantor shall assume all of the obligations of a cable operator with respect to protecting the confidentiality of that information. Grantor shall indemnify and hold Franchisee harmless from any costs, losses or damages arising from the disclosure of any protected information to or by Grantor.

 

Section 21. Force Majeure. The Franchisee shall not be held in default under, or in noncompliance with the provisions of the Franchise, nor suffer any enforcement or penalty relating to noncompliance or default (including termination, cancellation or revocation of the Franchise), where such noncompliance or alleged defaults occurred or were caused by strike, riot, war, earthquake, flood, tidal wave, unusually severe rain or snow storm, hurricane, tornado or other catastrophic act of nature, labor disputes, governmental, administrative or judicial order or regulation or other event that is reasonably beyond the Franchisee’s ability to anticipate and control. This provision also covers work delays caused by waiting for utility providers to service or monitor their own utility poles on which the Franchisee’s cable and/or equipment is attached, as well as unavailability of materials and/or qualified labor to perform the work necessary.

 

Section 22. Reservation of Rights. The Grantor and the Franchisee acknowledge that each hereby reserves all of its rights pursuant to applicable Federal and State Constitutions and laws. Acceptance of the terms and conditions of this Agreement will not constitute a waiver, either expressly or impliedly, by either party of any constitutional or legal right which it may have or may be determined to have either by subsequent legislation or court decisions.

 

Section 23. Modification of Obligations. In addition to any other remedies provided by law or regulation, Franchisee’s obligations under this Ordinance may be modified, at its request, in accordance with Section 625 of Cable Communications Act of 1934 as it now exists, or as hereafter amended.

 

Section 24. Severability. If any Section, subsection, sentence, clause, phrase or portion of this Ordinance is, for any reason, held invalid or unconstitutional by any court of competent jurisdiction, or amended by the United States Congress or is superseded or preempted by Federal Communications Commission regulation, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions thereof.

 

Section 25. Publication. Franchisee shall assume and pay the reasonable costs of any required publication of this Ordinance.

 

 

Section 26. Notices. All notices and other communications pursuant to this Ordinance shall be in writing and shall be deemed to have been given on the business day it is mailed, first class, registered or certified mail, return receipt requested, postage paid to the following respective addresses:

 

To Grantor:

The City of Eureka, Kansas

309 N. Oak Street

Eureka, Kansas 67045

 

To the Franchisee: Mediacom Southeast, L.L.C.

Legal Department: Bruce Gluckman

100 Crystal Run Road

Middletown, NY 10941

 

With a copy to: General Manager

Mediacom Southeast, L.L.C.

1533 South Enterprise Avenue

Springfield, Missouri 65804

 

Either of the foregoing parties to this Ordinance may change the address to which all communications and notices may be sent to it by addressing notices of such change in the manner provided hereunder.

 

Section 27. Access Channel. Upon request by Grantor, Franchisee will provide to the City throughout the term of this franchise one (1) Public, Educational. Governmental (“PEG”) Access channel. In accordance with federal law, Franchisee will be entitled to use any PEG access channel capacity for the provision of other services at any time such channel capacity is not being used for the designated PEG access purposes.

 

Section 28. Contract Rights. Acceptance of this Ordinance by Franchisee shall create enforceable contract rights between Franchisee and Grantor with respect to the terms of this Ordinance.

 

Section 29. Prior Ordinances. All ordinances and parts of ordinances related to this Franchise and operations of the Cable Television System in conflict herewith are hereby repealed as of the Effective Date of this Ordinance. This Franchise constitutes the entire agreement between the Franchisee and the Grantor and supersedes all other prior understandings and agreements oral or written My amendments to this Franchise will be mutually agreed to in writing by the parties.

(03-08-04)

 

ORDINANCE NO. 4033

 

 

A CONTRACT FRANCHISE ORDINANCE GRANTED TO SOUTHWESTERN BELL TELEPHONE, L.P., A TELECOMMUNICATIONS LOCAL EXCHANGE SERVICE PROVIDER PROVIDING LOCAL EXCHANGE SERVICE WITHIN THE CITY OF EUREKA, KANSAS, AND REPEALING ORDINANCE NO. 4030.

 

Section 1. Pursuant to K.S.A. 2002 Supp. 12-2001, a contract franchise ordinance is hereby granted to Southwestern Bell Telephone L.P. d/b/a SBC Kansas (“SBC Kansas), a telecommunications local exchange service provider providing local exchange service within the City of Eureka, Kansas (“City”), Subject to the provisions contained hereafter. The initial term of this ordinance shall be for a period beginning July 1, 2005, and ending June 30, 2008. Compensation for said contract franchise ordinance shall be established pursuant to Section 3 of this ordinance.

 

Section 2. For the purpose of this contract franchise ordinance, the following words and phrases and their derivations shall have the following meaning:

(a) “Access line” - shall mean and be limited to retail billed and collected residential lines; business lines; ISDN

lines; PBX trunks and simulated exchange access lines provided by a central office based switching arrangement where all stations serviced by such simulated exchange access lines are used by a single customer of the provider of such arrangement. Access line may not be construed to include interoffice transport or other transmission media that do not terminate at an end user customer’s premises, or to permit duplicate or multiple assessment of access line rates on the provision of a single service or on the multiple communications paths derived from a billed and collected access line. Access line shall not include the following: Wireless

 

telecommunications services, the sale or lease of unbundled loop facilities, special access services, lines providing only data services without voice services process by a telecommunications local exchange service provider or private line service arrangements.

(b) “Access line count” - means the number of access lines serving consumers within the corporate boundaries of the city on the last day of each month.

(c) “Access line fee” - means a fee determined by a city, up to a maximum as set out in K.S.A. 2002 Supp. 12-

2001 and amendments thereto, to be used by a telecommunications local exchange service provider in

calculating the amount of access line remittance.

(d) “Access line remittance” - means the amount to be paid by a telecommunications local exchange service

provider to a city, the total of which is calculated by multiplying the access line fee, as determined in the city, by the number of access lines served by that telecommunications local exchange service provider within that city for each month in that calendar quarter.

(e) “Gross receipts” - means only those receipts collected from within the corporate boundaries of the city

enacting the franchise and which are derived from the following:

(1) Recurring local exchange service for business and residence which includes basic exchange service, touch

tone, optional calling features and measured local calls;

(2) recurring local exchange access line services for pay phone lines provided by a telecommunications local

exchange service provider to all pay phone service providers; (3) local directory assistance revenue;

(4) line status verification / busy interrupt revenue;

 

(5) local operator assistance revenue; and

(6) nonrecurring local exchange service revenue which shall include customer service for installation of lines,

re-connection of service and charge for duplicate bills.

All other revenues, including, but not limited to, revenues from extended area service, the sale of lease of

unbundled network elements, non-regulated services, carrier and end user access, long distance, wireless telecommunications services, lines providing only data service without voice services processed by a telecommunications local exchange service provider, private line service arrangements, internet, broadband and all other services not wholly local in nature are excluded from gross receipts. Gross receipts shall be reduced by bad debt expenses. Uncollectible and late charges shall not be included within gross receipts, If a telecommunications local exchange service provider offers additional services of a wholly local nature which if in existence on or before July 1, 2002, would have been included with the definition of gross, receipts, such services shall be included from the date of the offering of such services in the city.

(f) “Local exchange service” - means local switched telecommunications service within any local exchange

service area approved by the state corporation commission, regardless of the medium by which the local telecommunications service is provided. The term local exchange service shall not include wireless communication services.

(g) “Provider” - shall mean a local exchange carrier as defined in subsection (h) of K.S.A. 66-1,187, and

amendments thereto, or a telecommunications carrier as defined in subsection (m) of K.S.A. 66-1,187, and amendments thereto.

(h) “Telecommunications local exchange service provider” - means a local exchange carrier as defined in subsection (h) of K.S.A. 66-1,187, and amendments thereto, and a telecommunications carrier as defined in

subsection (m) of K.S.A. 66-1,187, and amendments thereto, which does, or in good faith intends to, provide local exchange service. The term telecommunications local exchange service provider ‘does not include an

interexchange carrier that does not ‘provide local exchange service, competitive access provider that does not provide local exchange service or any wireless telecommunications local exchange service provider.

(i) “Telecommunications services” - means providing the means of 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.

 

 

Section 3. Compensation made pursuant to this contract franchise ordinance shall be paid on a quarterly basis without invoice or reminder from the City and paid not later than forty-five (45) days after the end of the remittal period. Until December 31, 2005, said compensation shall be a sum equal to $2.00 per access line per month. Thereafter, compensation for each calendar year of the remaining term of the contract franchise ordinance

shall continue to be based on a sum equal to $2.00 per access line per month; unless the City notifies SBC Kansas prior to ninety days (90) before the end of the calendar year that it intends to switch to a five percent (5%) of gross receipts arrangement for the following calendar year. In the event City thereafter elects to switch compensation based on an access line fee, nothing herein precludes City from switching provided City notifies

 

SBC Kansas prior to ninety days (90) before the end of the calendar year that it intends to elect an access line fee for the following calendar year. Any increased access line fee or gross receipt fee shall be in compliance with the public notification procedures set forth in subsections (I) and (m) K.S.A. 2002 Supp. 12-2001. All costs of publication of this ordinance shall be paid by SBC Kansas.

 

Section 4. The City shall have the right to examine, upon written notice to the telecommunications local exchange service provider, no more than once per calendar year, those records necessary to verify the correctness of the compensation paid pursuant to this contract franchise ordinance.

 

Section 5. As a condition of this contract franchise ordinance, SBC Kansas is required to obtain and is responsible for any necessary permit, license, certification, grant, registration or any other authorization required by any appropriate governmental entity, including, but not limited to, the City, the Federal Communications Commission (FCC) or the Kansas Corporation Commission (KCC), subject to SBC Kansas’ right to challenge in good faith such requirements as established by the FCC, KCC or other City Ordinance. SBC Kansas shall also comply with all applicable laws, statutes and/or ordinances, subject to SBC Kansas’ right to challenge in good faith such laws, statutes and/or ordinances.

 

Section 6. This contract franchise ordinance does not provide SBC Kansas the right to provide cable service as a cable operator (as defined by 47 U.S.C. § 522 (5)) within the City. Upon SBC Kansas’ request for a franchise to provide cable service as a cable operator (as defined by 47 U.S.C. 522 (5)) within the City, the City agrees to timely negotiate such franchise in good faith with SBC Kansas. SBC Kansas agrees that this contract franchise ordinance does not permit it to operate an open video system.

 

Section 7. Nothing herein contained shall be construed as giving SBC Kansas any exclusive privileges, nor shall it affect any prior or existing rights of SBC Kansas to maintain a telecommunications system within the City.

 

Section 8. SBC Kansas shall collect and remit compensation as described in Section 3 on those access lines that have been resold to another telecommunications local exchange service provider.

 

Section 9. Any required or permitted notice under this contract franchise ordinance shall be in writing. Notice upon the City shall be delivered to the city clerk by first class United States mail or by personal delivery. Notice upon SBC Kansas shall be delivered by first class United States mail or by personal delivery to:

 

Southwestern Bell Telephone L.P. Cindy Zapletal

Director-External Affairs

1640 Fairchild Avenue, First Floor

Manhattan, Kansas 66502

 

 

Section 10. Failure to Enforce. - The failure of either party to enforce and remedy any noncompliance of the terms and conditions of this contract franchise ordinance shall not constitute a waiver of rights nor a waiver of the other party’s obligations as provided herein.

 

Section 11. Force Majeure. - Each and every provision hereof shall be subject to acts of God, fires, strikes, riots, floods, war and other disasters beyond SBC Kansas’ or the City’s control.

 

Section 12. SBC Kansas has entered into this contract franchise ordinance as required by the City and K.S.A.

2002 Supp. 12-2001. If any clause, sentence, section, or provision of K.S.A. 2002 Supp. 12-2001, and

amendments thereto, shall be held to be invalid by a court of competent jurisdiction, either the City or SBC Kansas may elecf to terminate the entire contract franchise ordinance. In the event a court of competent jurisdiction invalidates K.S.A. 2002 Supp. 12-2001, and amendments thereto, if SBC Kansas is required by law to enter into a contract franchise ordinance with the City, the parties agree to act in good faith in promptly negotiating a new contract franchise ordinance.

 

Section 13. In entering into this contract franchise ordinance, neither the City’s nor SBC Kansas present or future legal rights, positions, claims, assertions or arguments before any administrative agency or court of law

 

are in any way prejudiced or waived. By entering into the contract franchise ordinance, neither the City nor SBC Kansas waive any rights, but instead expressly reserve any and all rights, remedies, and arguments the City or SBC Kansas may have at law or equity, without limitation, to argue, assert, and/or take any position as to the legality or appropriateness of this contract franchise ordinance or any present or future laws, ordinances,

and/or rulings which may be the basis for the City and SBC Kansas entering into this contract franchise

ordinance.

 

Section 14. This contract franchise ordinance is made under and in conformity with the laws of the State of Kansas, No such contract franchise ordinance shall be effective until the ordinance granting the same has been adopted as provided by law.

(06-13-05)

 

ORDINANCE NO. 4034

 

AN ORDINANCE GRANTING A FRANCHISE BY THE CITY OF EUREKA, COUNTY OF GREENWOOD, KANSAS TO ATMOS ENERGY CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT TO FURNISH, SELL AND DISTRIBUTE GAS TO THE CITY AND TO ALL PERSONS, BUSINESSES AND INDUSTRIES WITHIN THE CITY AND THE RIGHT TO ACQUIRE, CONSTRUCT, INSTALL, LOCATE, MAINTAIN, OPERATE AND EXTEND INTO, WITHIN AND THROUGH SAID CITY ALL FACILITIES REASONABLY NECESSARY TO FURNISH, SELL AND DISTRIBUTE GAS TO THE CITY AND TO ALL PERSONS, BUSINESSES AND INDUSTRIES WITHIN THE CITY AND IN THE TERRITORY ADJACENT THERETO AND THE RIGHT TO MAKE REASONABLE USE OF ALL STREETS AND OTHER PUBLIC PLACES AS MAY BE NECESSARY, AND FIXING THE TERMS AND CONDITIONS THEREOF.

 

Section 1. Definitions. For the purpose of this franchise, the following words and phrases shall have the meaning given in this Article. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number and words in the singular number include the plural number. The word “shall” is mandatory and “may” is permissive. Words not defined in this Article shall be given their common and ordinary meaning.

(a) “Governing Body” - refers to and is the governing body of the City of Eureka.

(b) “Company” - refers to and is Atmos Energy Corporation and its successors and assigns.

(c) “Distribution Facilities” - refer to and are only those facilities reasonably necessary to provide gas within the

City.

(d) “Facilities” - refer to and are all facilities reasonably necessary to provide gas into, within and through the City and include plants, works, systems, lines, equipment, pipes, mains, underground links, gas compressors and meters.

(e) “Gas” or “Natural Gas” - refers to and is such gaseous fuels as natural, artificial, synthetic, liquefied natural, liquefied petroleum, manufactured or any mixture thereof.

(f) “Kansas Corporation Commission” and/or “KCC” - refers to and is the State Corporation Commission of the

State of Kansas or other authority succeeding to the regulatory powers of the KCC.

(g) “Revenues” - refer to and are those amounts of money which the Company receives from its customers within the City for the sale of gas under rates, temporary or permanent, authorized by the KCC and represents amounts billed under such rates as adjusted for refunds, the net write-off of uncollectible accounts, corrections or other regulatory adjustments.

(h) “Streets and Other Public Places” - refer to and are streets, alleys, viaducts, bridges, roads, lanes, easements, public ways and other public places in said City.

(i) “City” - refers to and is the City of Eureka, Greenwood County, Kansas, and includes the territory as currently is or may in the future be included within the boundaries of the City of Eureka.

 

Section 2. Grant of Franchise

(a) Grant of Franchise. - The City hereby grants to the Company, for the period specified and subject to the

conditions, terms and provisions contained in this Ordinance, the right to furnish, sell and distribute gas to the City and to all persons, businesses and industries within the City, the right to acquire, construct, install, locate, maintain, operate and extend into, within and through the City all facilities reasonably necessary to provide gas to the City and to all persons, businesses and industries within the City and in the territory adjacent thereto; and the right to make reasonable use of all streets and other public places as may be necessary to carry out the terms of the Ordinance.

 

(b) Term of Franchise - The term of this franchise shall be for a period of five (5) years, beginning sixty (60) days from the date of its final passage; provided, this franchise and all rights and privileges herein provided shall automatically be extended for three (3) successive periods of five (5) years, for a total term of not more than twenty (20) years, unless the City, by notice given to the Company and by ordinance duly enacted and approved at least ninety (90) days before the end of each such term of five (5) years, shall declare such termination effective.

 

Section 3. Franchise Fee

(a) Franchise Fee. - In consideration for the grant of this franchise, the Company shall collect and’ remit to the Cfty a sum equal to five percent (5%) of the revenues derived annually from the sale of gas within the City. The Franchisee fee prescribed herein shall be paid to the City quarterly on or before the 30th day after the end of each calendar quarter after the effective date of the franchise. Payments at the beginning and end of the franchise shall be prorated.

(b) Franchise Fee Payment in Lieu of Other Fees. - The payments and compensation herein provided shall be

in lieu of all other licenses, taxes, charges, and fees, except that the usual general property taxes and special ad valorem property assessments, sales, and excise taxes or charges made for privileges, which are not connected with the natural gas business, will be imposed on the Company and are not covered by the payments herein. From and after the date hereof, however, 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 street, alley, or other public place shall be deemed a part of the compensation paid in Section 2 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.

 

Section 4. Conduct of Business

(a) Conduct of Business. - The Company may establish, from time to time, such rules, regulations, terms and

conditions governing the conduct of its business as shall be reasonably necessary to enable the Company to exercise its rights and perform its obligations under this franchise; provided, however, that such rules, regulations, terms and conditions shall not be in conflict with the laws of the state of Kansas.

(b) Tariffs on File. - The Company shall keep on file in its nearest office copies of all its tariffs currently in effect

and on file with the KCC. Said tariffs shall be available for inspection by the public.

(c) Compliance with KCC Regulations. - The Company shall comply with all rules and regulations adopted by

the KCC.

(d) Compliance with Company Tariffs. - The Company shall furnish gas within the City to the City and to all persons, businesses and industries within the City at the rates and under the terms and conditions set forth in its tariffs on file with the KCC.

(e) Applicability of Company Tariffs. - The City and the Company recognize that the lawful provisions of the

Company’s tariffs on file and in effect with the KCC are controlling over any inconsistent provision in this franchise dealing with the same subject matter.

 

Section 5. Construction, Installation & Operation of Company Facilities

 

(a) Location of Facilities. - Company facilities shall not interfere with the City’s water mains, sewer mains or other municipal use of streets and other public places. Company facilities shall be located so as to cause minimum interference with public use of streets and other public places and shall be maintained in good repair and condition. The Governing Body acknowledges that as of the date of this Ordinance, the Company and its facilities are in compliance with the provisions of this section.

(b) Excavation and Construction. - All construction, excavation, maintenance and repair work done by the

Company shall be done in a timely and expeditious manner that minimizes the inconvenience to the public and individuals. All such construction, excavation, maintenance and repair work done by the Company shall comply with all applicable state and federal codes. All public and private property whose use conforms to restrictions in easements disturbed by Company construction or excavation activities shall be restored as soon as practicable by the Company at its expense to substantially its former condition. The Company shall comply with the City’s requests for reasonable and prompt action to remedy all damage to private property adjacent to streets or dedicated easements where the company is performing construction, excavation, maintenance or repair work. The City reserves the right to restore property and remedy damages caused by Company activities at the expense of the Company in the event the Company fails to perform such work within a reasonable time after notice from the City.

(c) Relocation of Company Facilities. - If at any time the City requests the Company to relocate any distribution gas main or service connection installed or maintained in streets or other public places in order to permit the

 

City to change street grades, pavements, sewers, water mains or other City works, such relocation shall be made by the Company at its expense. The Company is not obligated hereunder to relocate any facilities at its expense that were installed in private easements obtained by the Company, the underlying fee of which was, at-some point subsequent to installation, transferred to the City. Following relocation; the Company, at its expense, shall restore all property to substantially its former condition.

(d) Service to New Areas. - If during the term of this franchise the boundaries of the City are expanded, the Company may, subject to the terms of Company’s applicable tariff provisions for main extensions, extend service to the newly incorporated areas. Service to annexed areas shall be in accordance with the terms of this franchise agreement. The City will promptly notify Company in writing of any geographic areas annexed by the City during the term hereof (“Annexation Notice”). Any such Annexation Notice shall be sent to Company by certified mail, return receipt requested, and shall contain the effective date of the annexation, maps showing

the annexed area and such other information as Company may reasonably require in order to ascertain whether there exist any customers of Company receiving natural gas service in said annexed area. To the extent there are such Company customers therein, then the gross revenues of Company derived from the sale and distribution of natural gas to such customers shall become subject to the franchise fee provisions hereof effective on the first day of Company’s billing cycle immediately following Company’s receipt of the Annexation Notice. The failure by the City to advise Company in writing through proper Annexation Notice of any geographic areas which are annexed by the City shall relieve Company from any obligation to remit any franchise fees to City based upon gross revenues derived by Company from the sale and distribution of natural gas to customers within the annexed area until City delivers an Annexation Notice to Corn jdany in accordance with the terms hereof.

 

(e) Restoration of Service. - In the event the Company’s gas system, or any part thereof, is partially or wholly destroyed or incapacitated, the Company shall use due diligence to restore its system to satisfactory service within the shortest practicable time.

(f) Supply and Quality of Service. - The Company shall make available an adequate supply of gas to provide service in the City. The Company’s facilities shall be of sufficient quality, durability and redundancy to provide adequate and efficient gas service to the City.

(g) Safety Regulations by the City. - The City reserves the right to adopt, from time to time, reasonable

regulations in the exercise of its police power which are necessary to ensure the health, safety and welfare of the public, provided that such regulations are not destructive of the rights granted herein. The Company agrees to comply with all such regulations, in the construction, maintenance and operation of its facilities and in the provision of gas within the City.

(h) Inspection. Audit and Quality Control. - The City shall have the right to inspect, at all reasonable times, any

portion of the Company’s system used to serve the City and its residents. The City also shall have the right to inspect and conduct an audit of Company records relevant to compliance with any terms of this Ordinance at all reasonable times at Company’s principal offices where said records are kept and maintained. The Company agrees to cooperate with the City in conducting the inspection and/or audit and to correct any discrepancies affecting the City’s interest in a prompt and efficient manner.

 

Section 6. Assignment; Saving Clause

(a) Assignment. - Nothing in this Ordinance shall prevent the Company from assigning its rights under this franchise.

(b) Saving Clause. - If any portion of this franchise Ordinance is declared illegal or void by a court of competent jurisdiction, the remainder of the Ordinance shall survive and not be affected thereby.

 

Section 7. Force Majeure

Company shall not be required to perform any covenant or obligation in this Ordinance, or to be liable in

damages to City, so long as the performance or non-performance of the covenant or obligation is delayed, caused or prevented by an act of God, force majeure or by the other party. An “act of God” or “force majeure” is defined for purposes of this Ordinance as strikes, lockouts, sitdowns, material or labor restrictions by any governmental authority, unusual transportation delays, riots, floods, washouts, explosions, earthquakes, fire, storms, weather (including wet grounds or inclement weather which prevents construction), acts of the public enemy, wars, insurrections, and/or any other cause not reasonably within the control of Company or which by the exercise of due diligence Company is unable wholly or in part, to prevent or overcome.

(06-13-05)

 

 
 

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