ORDINANCE NO. 1408
AN ORDINANCE OF THE CITY OF RICH HILL, MISSOURI, GRANTING A FRANCHISE TO THE KLM TELEPHONE COMPANY, A CORPORATION ORGANIZED AND EXISTING UNDER AND BY VIRTUE OF THE LAWS OF THE STATE OF MISSOURI, ITS SUCCESSORS AND ASSIGNEE, TO CONSTRUCT, MAINTAIN, AND OPERATE A TELEPHONE SYSTEM AND ALL BUSINESS INCIDENTAL TO OR CONNECTED WITH THE SAID CITY, AND TO ERECT AND MAINTAIN ITS PLANT AND APPURTENANCES ALONG, ACROSS, ON, OVER, THROUGH, ABOVE, AND UNDER ALL PUBLIC GROUNDS AND PLACES IN SAID CITY AND REPEALING ALL ORDINANCES AND AGREEMENTS IN CONFLICT HEREWITH.
WHEREAS, KLM Telephone Company, hereinafter referred to as “Telephone Company” a corporation duly organized and existing under the laws of the State of Missouri, is now and has been engaged in the telephone and communications business in said State, and in furtherance thereof has erected and maintained certain items of its plant construction in the City of Rich Hill, State of Missouri, hereinafter referred to as “City” for many years pursuant to such rights as have been granted it by and under laws of the State of Missouri, and subject to the exercise of such reasonable rights and regulations as are inherent under the laws to said City, and
WHEREAS, the City has heretofore consented that said Telephone Company shall operate in said City, and it being to the mutual advantage of both said City and said Telephone Company that said Company shall continue its operations within the said City and that a franchise ordinance shall be enacted establishing the terms and regulations under which said Telephone Company shall continue its operation in said City, and
WHEREAS, Telephone Company has duly complied with all the provisions of the laws of the State of Missouri, and with all ordinances of Municipality with reference to the obtaining of such right, privilege and authority.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF RICH HILL, MISSOURI, AS FOLLOWS:
Section 1. Grant of Franchise
Pursuant to the laws of the State of Missouri and in particular sections 392.08 and 392.090, Rsmo 1978, as amended, the franchise, right, permission, and authority be, and the same are hereby granted to the Telephone Company, its successors and assigns, to construct, maintain, and operate a telephone system and all business incidental to or connected with the conducting of a telephone and communications business and system in the City of Rich Hill, Missouri. The plant, construction, equipment, and appurtenances used in or incident to the rendering of telephone and communications service and to the maintenance of a telephone business and system by the Telephone Company in the City shall remain as now constructed subject to such changes as may be deemed necessary by the City in the exercise of its inherent powers and by the Telephone Company in the conduct of its business, the Telephone Company shall continue to exercise its rights to place, remove, construct and reconstruct, extend and maintain its said plant equipment and appurtenances as the business for which it is incorporated may from time to time require, along, across, on, over, through, above, and under all public streets, avenues, alleys, and public grounds and places within the limits of said City as the same from time to time may be established.
Section 2. Statement of Gross Receipts
Every person who is now or may hereafter become engaged in any of the businesses described in Section 1 hereof to file with the Clerk of the City of Rich Hill, Missouri on the 20th day of January and the 20th day of July of the current year and of each year hereafter a sworn statement of the gross receipts from such business for the six calendar months preceding the filing of such statement. The Clerk of the City of Rich Hill, Missouri or his duly authorized deputy shall be and is hereby authorized to investigate the correctness and accuracy of the statement required and for that purpose shall have access at all reasonable times to the books, documents, papers and records of any person making such statement in order to ascertain the accuracy thereof.
Section 3. Payment of Gross Receipts Tax
Every person who is now or may hereafter become engaged in any of the businesses described in Section 1 hereof shall pay to the City Clerk of The City of Rich Hill, Missouri on the 20th day of January and the 20th day of July of the current year and of each year hereafter an amount equal to three per cent of the gross receipts from said business for the preceding six calendar months. For the purpose of this agreement, and acknowledging that a telephone utility has gross receipts that are not the same as a retail business, it is agreed that gross receipts shall include only those received from subscribers within the city limits of Rich Hill, and shall be based only on those receipts collected under the company’s general tariff on file with the Missouri Public Service Commission, but shall not include any revenue or receipts from sales taxes, federal excise taxes or franchise taxes collected from subscribers of the telephone system.
Section 4. Police Powers
The Telephone Company shall, at all times during the life of this franchise, be subject to all lawful exercise of the police power by the City, and to such reasonable regulation as the City shall hereafter by resolution or ordinance provide.
Section 5. Restoration of Streets
All poles, conduits, wires, fixtures, guys, services, appurtenances, and accessory equipment, installed or erected pursuant to this ordinance shall be so located on streets, alleys, avenues, bridges and other public places under such supervision as said City may from time to time provide so as not to unnecessarily damage any pavements, sidewalks, drains, sewers or other like improvements. If damage occurs the Telephone Company shall restore the damaged pavements sidewalks, drains, sewers, water pipes, and other public places to the same condition prior to the disruption. All necessary work shall be done with due and reasonable dispatch and with the least practicable interference with the rights of the public. The City may refill, repave, and restore said streets, alleys and public ways in case of neglect of the Telephone Company. The cost thereof, including the costs of inspection and supervision, shall be borne by the Telephone Company.
Section 6. Company Shall Bear Costs Upon Grade Change; May Apply for Permanent Grade
When any street, avenue, alley, bridge, or public place, upon which and in which any poles, services, or other equipment of said Telephone Company have been placed, shall be graded, curbed, paved, or otherwise changed so as to make the resetting or reconstruction of such poles or the relocation of such services necessary, the Telephone Company, its successors, and assigns shall make such necessary change in construction at the Telephone Company’s cost; provided, that before said Telephone Company installs any plant or other equipment hereunder, it shall first apply to the City Council for the establishment of permanent grades, curb lines, and sidewalk lines unless permanent grades, curb lines, and sidewalk lines have already been established, and then shall install poles, services, and other equipment in accordance with such permanent grades and lines. The City agrees to promptly establish such permanent changed except upon reasonable and substantial need. The Telephone Company shall not be required to install permanent fixtures, poles and other equipment until such grades and lines shall have been established.
Section 7. Movement of Buildings
In case any person desires to move a building along streets, avenues, alleys, or public places crossed by the wires of said Telephone Company, and in case it becomes necessary to have said wires temporarily raised or removed for the purpose of the passage of such buildings, Telephone Company shall be entitled to forty-eight (48) hours notice in writing to that effect. When such notice has been received by said Telephone Company, and upon payment of a reasonable cost resulting from the removing, changing, and replacing of such wires by the person desiring such move, it shall be the duty of Telephone Company to remove or raise such wires so as to permit the passage of such building. Telephone Company shall not be required to make such change or removal except at a reasonable time.
Section 8. Company to Indemnify City
Said Telephone Company shall indemnify and hold said City, its officers, boards, commissions, committees, agents, and employees harmless from any and all claims and damages due to negligence, alleged or otherwise, on the part of said Telephone Company operation of such poles, lines, equipment, and other related services.
Section 9. Fire, Patrol, and Traffic Systems Use of Poles
The City of Rich Hill shall at any and all times have free privilege and use of the poles erected by said Telephone Company for the construction and maintenance of a fire alarm system, patrol system, and/or electric traffic signal system. Said systems or any part thereof shall not interfere with the efficiency of the said telephone system, and shall be constructed by said City in conformity with the National Electric Code. The Telephone Company shall not be liable for any damage on account of insufficient construction of said fire alarm system, patrol system, and/or electric traffic signal system. If the Telephone Company replaces any of its poles in order to provide proper standard electrical clearances for the various circuits, the City shall pay the Telephone Company the undepreciated portion of the life of the pole or poles replaced.
Section 10. Tree Trimming
Permission is hereby granted to the Telephone Company to trim trees upon and over-hanging the streets, alleys, sidewalks, and public places in said City so as to prevent branches of said trees from coming into contact with wire and cable of the Company, all of the trimming to be done under the supervision and direction of any City Official to whom said duties may be delegated, and at the expense of the Telephone Company.
Section 11. Term
All rights and privileges granted by this ordinance are granted for a term of twenty (20) years from and after the acceptance of this ordinance as hereinafter provided.
Section 12. Written Acceptance By Company
After the passage, approval, and ratification of this ordinance, and within thirty (30) days after such ratification, this ordinance shall be accepted by said Telephone Company by filing an unconditional written acceptance with the City Clerk of said City. Unless the proper acceptance has been filed within thirty (30) days, this ordinance shall be null and void.
Section 13. Abridgement or Termination of Franchise
- Should said Telephone Company fail, neglect or refuse to perform or to comply with any of the conditions or terms of this ordinance, then this ordinance shall become null and voided, and the privileges granted hereby shall terminate. Provided, however, that in the event of such failure, neglect, or refusal, said Telephone Company remedies such failure, neglect, or refusal within a reasonable time, this ordinance and the privileges granted hereby shall continue in full force and effect.
- Should the Council find a violation of this franchise, but not of sufficient gravity to require termination, or if the Council determines that termination would not serve the public health, safety, and welfare, the Council shall notify the Telephone Company in writing of the alleged violation, and the Telephone Company upon receipt of such notice, shall have the opportunity to remedy such violation within a reasonable time. Should the Telephone Company fail to remedy the alleged violation, the City Council may abridge the term of the franchise for a period of time not less that thirty (30) days but not more than 180 days. Each day’s violation of this section may be considered a separate offense. Abridgement of the franchise term:
- Shall be made by resolution; which resolution shall state the findings and conclusions of the Council.
- Shall be cumulative and irrevocable.
- Upon passage of a resolution, the abridgement term shall be subtracted from the term of the franchise and a new termination date established.
- Disposition of the Facilities.
In the event a franchise expires, is revoked, or otherwise terminated, the City may order the removal of the system facilities from the City within a reasonable period of time as determined by the City. The City may authorize the Telephone Company to maintain and operate its network until a subsequent telephone company is selected. In removing its plant, structures, and equipment, all City streets, easements, and other rights of way shall be returned to their original condition with costs to be assumed by the Telephone Company.
Section 14. Non-Franchised User, Violation.
Should the Telephone Company be notified in writing by the City that an entity is utilizing streets, easements, and rights of way of the City and the poles, conduits, or facilities of the Telephone Company without being properly franchised or licensed by the City, then the Telephone Company shall take all legal steps necessary to deny the said non-franchise entity from utilizing or having access to streets, easements, and other public rights of way of the City and poles, conduits, and plant of the Telephone Company.
Section 15. Successors and Assigns.
All provisions of this ordinance which are obligatory upon, or which inure to the benefit of said K.L.M. Telephone Company, shall be obligatory upon and shall inure to the benefit of all successors and assigns of said K.L.M. Telephone Company, and the words include and be taken to mean not only the KLM Telephone Company, but all successors and assigns of said KLM Telephone Company.
Section 16. Repealer.
All ordinances or parts of ordinances in conflict with this ordinance are hereby repealed.
Section 17. 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, and such portions shall be deemed a separate, distinct, and independent provision, and such holding shall not effect the validity of the remaining portions hereof.
Section 18. This ordinance shall be in full force and effect from and after its passage and approval.
First Reading September 10th , 2013
Second Reading September 23rd , 2013
Passed and approved this 23rd day of September 2013
_________________________ Richard Miller-Mayor
_________________________ Tonya Perryman-City Clerk
________________________ (Joe Jetensky)-KLM Telephone Company
________________________ (authorized representative)-, Attest
Ayes: Moreland, Pilcher, Perkey-Ewing, Becker. 1st Reading
Ayes: Pilcher, Perkey-Ewing, Becker. 2nd Reading Moreland Absent