AN ORDINANCE GRANTING A CITY FRANCHISE TO LAHARPE COMMUNICATIONS, INC., DBA. NEWWAVE BROADBAND OF LAHARPE, KANSAS, FOR THE RIGHT TO INSTALL, MAINTAIN AND OPERATE IN, UNDER, ALONG, ACROSS AND UPON THE STREETS, AVENUES, SIDEWALKS, ALLEYS, BRIDGES AND HIGHWAYS, PUBLIC RIGHTS OF WAY AND OTHER PUBLIC PLACES IN THE CITY OF GAS, KANSAS, AND SUBSEQUENT ADDITIONS THERETO, A FIBER OPTIC INFRASTRUCTURE NETWORK TO ENABLE SALE OF ITS SERVICE TO THE INHABITANTS OF SAID CITY, AND ENVIRONS THEREOF AND OTHER PURPOSES, FOR A TERM OF TWENTY YEARS, AND REGULATING THE SAME; AND PROVIDING WHEN THIS ORDINANCE SHALL BE IN FULL FORCE AND EFFECT.
BE IT ORDAINED by the Governing Body of the City of Gas, Kansas:
Section 1. In consideration of the faithful performance and observance of the conditions and reservations herein specified, LaHarpe Communications, Inc., dba. Newwave Broadband, (hereinafter referred to as Grantee), a company doing business under the laws of the State of Kansas, its successors and assigns is hereby granted the nonexclusive right to construct and/or install and cause to be constructed and/or installed, and to maintain and cause to be maintained, and to operate a fiber optic infrastructure network for the provision of broadband internet services and other electronic signal transmission and distribution facilities and additions thereto (and related electronic facilities) in, under, over, along across and upon the streets, avenues, sidewalks, alleys, public rights of way and other public places in the City of Gas, Kansas, (hereinafter referred to as the City) and subsequent additions thereto, for the purpose of providing such services, in accordance with the laws and regulations of the United States of America, and the State of Kansas, and this Ordinance for a period of twenty (20) years from and after the effective date of this Ordinance, unless sooner terminated as herein provided.
This ordinance is granted pursuant to K.S.A. 12-2001 and upon careful consideration of the Grantee’s qualifications including its legal charter, financial and technical qualifications and the adequacy and feasibility of its construction, maintenance and operation arrangements.
Section 2. In the exercise of the rights herein granted:
(a) The Grantee shall have the right to construct and/or install and maintain, or to cause to be constructed and/or installed and maintained, equipment and facilities as necessary for the operation and maintenance of the subject systems, provided, however, that all equipment and facilities so constructed and/or installed in any public place shall be at locations approved by the Governing Body of the City. Grantee shall provide an updated map upon the request of City showing the location of all equipment, cables, and facilities located in the public right-of-way.
(b) It is the stated intention of the City that all holders of public licenses and franchises within the corporate limits of the City shall cooperate in the construction, maintenance and operation of its system.
(c) The Grantee shall be entitled to determine the nature, extent and pricing of services to be provided to subscribers over its equipment and facilities, subject to all applicable regulations and laws of the United States and of the State of Kansas.
(d) The City designates the City Clerk of Gas, Kansas, as the official of the franchising authority that has primary responsibility for the continuing administration of the franchise and implementation of the complaint procedures provided for herein.
Section 3. (a) All structures, lines and equipment constructed and/or installed or caused to be constructed and/or installed by the Grantee within the City shall be so located as to cause minimum interference with the use of streets, avenues, sidewalks, alleys, bridges and highways, easements and other public ways and places and with consideration for the convenience of property owners, and the Grantee shall comply with all reasonable, proper and lawful ordinances of the City now or hereafter in force.
(b) In case the Grantee requires disturbance of pavement, sidewalk, driveway or other surface, it shall, at its own expense and in a manner approved by the City, replace and restore the same in as good condition as before said work was commenced. If the grantee fails to do so within a reasonable time, the City may do so and charge the expense thereof to the Grantee
(c) In the event the City shall lawfully elect to alter or change any street, avenue, sidewalk, alley, bridge, highway, easement, or other public way requiring the relocation of the facilities utilized by the Grantee, then the Grantee, upon reasonable notice by the City, shall remove and relocate such facilities at its own expense and as directed by the City.
(d) Grantee agrees to follow the facility separation distances set forth below if circumstances permit. If the Grantee is unable to maintain the stated separation it will notify the City prior to beginning its installation in that area and proceed in a manner that reduces the risk of damaging the facilities encountered.
Crossing electric and Gas lines 2 ft separation
Crossing 4 in. or larger water line 2 ft separation
Crossing a smaller than 4 in water line 1 ft separation
Paralleling electric, gas, sewer, and water lines 3 ft separation
Section 4. (a) The Grantee shall at all times during the term hereof be subject to all lawful exercise of the police power by the City, and to such reasonable regulations as the City shall hereafter provide by ordinance or resolution; provided, however, that the Grantee’s provision of service shall be subject to the laws of the State of Kansas and of the United States of America and to regulation lawfully imposed pursuant thereto.
(b) Whenever it is necessary to shut off or interrupt service for the purpose of making planned repairs, installations or adjustments, the Grantee shall make all reasonable effort to do so at such times as will cause the least amount of inconvenience to its customers and the City. In the event of any interruption of service, whether planned or unforeseen, the Grantee shall proceed with due diligence and restore service as quickly as possible under the circumstances.
Section 5. The Grantee shall save the City harmless from any and all loss sustained by the City by reason of any suit, judgment, execution, claim or demand whatsoever, resulting from negligence on the part of the Grantee in the construction, operation or maintenance of its system within the City; for this purpose the Grantee shall carry property damage and public liability insurance with a responsible insurance company authorized to do business within the State of Kansas. The amounts of such insurance to be carried against liability owing to damage to property and for public liability shall be reasonable, adequate and in keeping with accepted standards in the industry, but shall not be less than $250,000.00 per person, $250,000.00 per occurrence, $500,000.00 property damage, and the same shall be subject to review by the City at any time during the life of this ordinance. The Grantee shall also carry such insurance necessary to protect it from claims made under applicable Workers Compensation laws. As a condition hereof, the City shall notify the Grantee within ten (10) days after the presentation of any claim or demand, either by suit or otherwise, made against the City on account of any allegation of negligence as aforesaid on the part of the Grantee.
Section 6. The Grantee shall have the right to charge and collect compensation from all subscribers to whom it shall furnish service in amounts as it may determine.
Section 7. 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 in lieu of all occupation and license taxes and other fees of any nature whatsoever, the Grantee shall annually pay to the City, during the life of this ordinance, a sum equal to ONE DOLLAR ($1.00) per month per household within the City (including any additions to the City during the term hereof) which subscribes to Grantee’s service, such amounts to be due and payable quarterly on the first day of January, April, July and October of each year and payable in full within thirty (30) days thereof. As of the due date of each such payment the Grantee shall certify to the City the number of households subscribing to its service, and the Grantee’s obligation shall be based on such certification until the Grantee’s next quarterly certification. After thirty days, any unpaid balance shall accrue interest at the rate of one and one-half percent per month. If any sum remains unpaid more than 60 days after due, the City may declare the Grantee to be in default hereof. To the extent allowed by either federal or state law, Franchisee may identify and collect, as a separate item on the regular bill of any Customer whose Broadband Internet Services are provided by Network Facilities located at least in part in Public ROW, that Customer’s pro rata amount of the Franchise Fee.
Section 8. This agreement shall expire and terminate twenty years from the date of approval by the City, provided however that at least six months prior to the expiration of the contract Grantee may elect to renew the contract for a period of twenty years upon the same terms contained herein and any additional terms as the parties may agree. The Grantee may surrender its rights under this ordinance at any time upon filing with the City Clerk of the City a written notice of its intention to do so at least six (6) months before the surrender date. On the surrender date specified in the notice, all of the rights and privileges and all of the obligations, duties and liabilities of the Grantee shall terminate and it may dispose of its property located within the City in any manner it chooses. If after expiration and a new agreement is not in place or Grantee surrenders its rights, Grantee, at its expense, shall have six months to remove all equipment, cables, and facilities constructed by Grantee or said equipment, cables, and facilities shall be deemed abandoned and the Grantee or it's successors and assigns shall not hold the City liable for any damages, removal or destruction to said equipment, cables, or facilities caused by City after the expiration of the six month removal period.
Section 9. The obligations of the Grantee as specified in this Ordinance may be discharged on the Grantee’s behalf by one or more other entities PROVIDED, that in the discharge thereof, such other entity or entities shall enjoy the same rights and privileges and shall be subject to the same duties and requirements as are applicable to the Grantee.
Section 10. The rights granted under this ordinance shall be freely assignable and transferable by the Grantee during the term hereof, provided, that no assignment or transfer of the right granted hereunder shall become effective until the assignee or transferee has filed with the City Clerk of the City an instrument accepting the terms of this ordinance and agreeing to perform all of the conditions hereof.
Section 11. The City hereby expressly reserves the right, power and authority to terminate this ordinance and rescind all rights, privileges and authority herein granted to the Grantee at any time for any material and substantial default in the performance of any of the obligations and duties imposed upon the Grantee herein. The City shall provide written notice to the Grantee of any such default. If the Grantee fails within one-hundred (120) days of receipt of such notice to remedy such default, or submit reasonable justification therefore, then the City shall have the right, after a full and complete public hearing, to revoke any or all rights and privileges granted herein, provided however that said default did not result from factors beyond the reasonable control of the Grantee.
Section 12. If any section, subsection, sentence, clause, phrase or portion of this ordinance is for any reason held invalid or unconstitutional, such portion shall be deemed a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof.
Section 13. It shall be the policy of the City to amend this Ordinance liberally upon application of the Grantee, to take advantage of any advancements in technology which will afford the Grantee an opportunity more effectively or economically to serve its subscribers or in order to comply with any change in laws or regulations which impact the provision of the services hereunder.
Section 14. The Grantee shall have the right at all times to take such legal action as it deems necessary to preserve the security of its system, equipment and facilities and to assure only authorized use thereof by its subscribers or others.
Section 15. All ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed.
(12-10-2024)