AN ORDINANCE GRANTING THE FRANCHISE, PRIVILEGES, AND RIGHTS TO HAVILAND TELEPHONE COMPANY, INC., TO CONSTRUCT, ACQUIRE, OPERATE AND MAINTAIN A TELECOMMUNICATIONS SYSTEM INTHE CITY OF CONWAY SPRINGS, PRESCRIBING THE TERMS AND CONDITION OF SAID GRANT.

Section 1. Definitions. For the purposes of this Ordinance, the following terms, phrases, words, and their derivatives shall have the meanings set forth in this Section, unless the context clearly indicates that another is intended. Words used in the present tense include the future tense, words in the singular number include the plural number, and words in the plural number include the singular. The words “shall” and “will” are mandatory and “may” is permissive. Words not defined shall be given their common and ordinary meaning.

(a)   “City”-means the City of Conway Springs, Kansas.

(b)   “Facilities”-means any portion of a System located in, along, over, upon, under, or through the Right-of-Way.

(c)   “Franchise” or “Agreement”-means the Franchise that is governed by this Ordinance and agreed to by Franchisee.

(d)   “Franchisee”-means the Haviland Telephone Company, Inc. Who currently has a franchise granted by the City of Conway Springs, Sumner County, or who is granted a Franchise pursuant to this Ordinance and that entity’s agents, and employees.

(e)   “Franchise Fee”-means the fee imposed by the City on a Franchisee pursuant to this Ordinance.

(f)   “Public Project”-means any project planned or undertaken by the City or any governmental entity for construction, reconstruction, maintenance, or repair of public facilities or improvements, or any other purpose of a public nature.

(g)   “Public Project for Private Development”-means a Public Project, or that portion thereof, arising solely from a request or requirement of a third party (non-City or governmental) primarily for the benefit and use of a third party.

(h)   “Right-of-Way”-means the surface and space on, above and below every municipal street, alley, road, highway, lane or City right-of-way dedicated or commonly used now or hereafter for utility purposes, including but not limited to overhead lighting facilities, and including utility easements wherein the City now or hereafter acquires the right and authority to locate or permit the location of utilities consistent with communications facilities. This term shall not include any county, state, or federal right-of-way or any property owned or controlled by any person or agency other than the City, except as provided by applicable Laws or pursuant to an agreement between the City and any such Person or Agency. Right-of-Way shall not include property owned or held by City and not typically considered Right-of­ Way such as City Parks and City Buildings.

(i)    “Telecommunications System” or “System”-means the cables, wires, lines, optic fiber, and any associated converters, equipment, or other facilities designed, constructed or occupied by a Franchisee or others for the purpose of producing, receiving, amplifying or distributing communications service to or from locations within the City.

Section 2. Nonexclusive. Nothing herein contained shall be construed as giving to the Telephone Company any exclusive privileges, nor shall it affect any prior or existing rights of the Telephone Company to maintain a telecommunications system or related business within the City.

Section 3. Grant. The City hereby grants to Haviland Telephone Company, Inc., (hereinafter referred to as “the Telephone Company”) a franchise which conveys the right, privilege, and authority to construct, operate, and maintain Facilities in, through and along the City’s Right-of-Way for the purposes of supplying Telecommunications Services on a nonexclusive basis within the City. The Telephone Company shall continue to operate its telecommunications system and all business incidental to or connected with the conducting of its business and system in the City. The plant, construction and appurtenances used in or incidental to the offering of telecommunications and other services and to the maintenance of such system and business by the Telephone Company in the City shall remain as now planned and constructed, subject to such changes as may be considered 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 shalt continue to exercise its right to place, remove, construct and reconstruct, extend and maintain its plant and appurtenances along, across, on, over, though, above and under all the public streets, avenues, alleys, bridges, utility easements and all public grounds and places within the limits of the City.

Section 4. Excavations; Underground Facility Locating Service. Prior to any underground excavations by Franchisee in the public streets, roads, alleys, sidewalks or other public places, Franchisee must submit written plans for approval by the City. In addition to the submission and approval of written plans, the Franchisee must cooperate with and participate fully in a reputable underground facility locating service and participate in Kansas One Call to ensure that damage and/or interference with other underground facilities occupants is minimized.

Section 5. Tree Protection. In the attachment, installation, removal, re­ attachment, reinstallation, relocation or replacement or otherwise of the Facilities, the Franchisee shall comply with the tree pruning ordinance of City.

Section 6.  Relocation of Facilities.

(a)   The Telephone Company on the request of any person shall remove or raise or lower its wires, cables or other facilities temporarily to permit the moving of houses or other structures. The expense of such temporary removal, raising or lowering, shall be paid by the party or parties requesting the same, and the Telephone Company may require a deposit, or the estimated amount of the charges to be paid in advance. The Telephone Company shall be given not less than forty­ eight (48) hours advance notice to arrange for such temporary changes.

(b)   The Franchisee shall not be responsible for the expenses of relocation to accommodate any new Public Project for Private Development. The expenses attributable to such a project shall be the responsibility of the third party upon the request and appropriate documentation of the Franchisee. Before such expense may be billed to the third party, the Franchisee shall be required to coordinate with the third party and the City on the design and construction to ensure that the work required is necessary and done in a cost-effective manner. Upon the request of the Franchisee or the third party, the allocation of expense attributable to the project shall be made in the reasonable determination of the City. Eligible third parties may request to have the City specially assess those expenses billed by the Franchisee under this section. The City will use its best efforts, but is not required, to continue to provide a location in the Right-of-Way for the Franchisee’s Facilities as part of a Public Project, provided that the Franchisee has cooperated promptly and fully with the City in the design of its Facilities as part of the Public Project.

Section 7.  Franchise Fees.

(a)   Telephone Company shall pay to the City as compensation for the use of the Right-of-Way pursuant to the Franchise granted under this Ordinance the following Franchise Fee to the City: a sum equal to five percent (5%) of the basic access charge of Telephone Company subscribers located within the City. Said basic charges being an amount equal to the total monies collected for furnishing basic telephone access line service, extension telephones, dial up and dsl internet services, and long distance service charges but shall not be construed to include amounts for accessory or other telephone equipment, directory advertising and listing charges, telephone equipment installation, change or move charges, or other charges except those for basic access line service. No sales, excise, use or other tax levied upon telephone service shall be included in the calculation of franchise taxes.

(b)   The Telephone Company shall calculate, report and pay to the City the amount due under this Ordinance semi-annually.

(c)   The first report and payment to the City shall be due on the __ day of December 2006.

(d)   No acceptance by the City of any Franchise Fee shall be construed as an accord that the amount paid is in fact the correct amount, nor shall acceptance of any Franchise Fee payment be construed as a release of any claim of the City.

(e)   The City or its designated representatives shall have the right to inspect, examine or audit, during normal business hours and upon reasonable notice, all documents, records or other information that pertains to this Franchise.

Section 8.  Term. The Telephone Company shall have sixty (60) days from and after the passage and approval of this Ordinance to file written acceptance of this Ordinance with the City Clerk, and upon such acceptance being filed this Ordinance shall be considered as taking effect and being in force upon the first day of publication as required by law. The Franchise shall remain in effect until December 31, 2010, unless either party shall notify the other of its intention to terminate this agreement. The notice of intention to terminate shall be served by either party on the other at least six (6) months prior to the date of such termination.

Section 9. Non-assignable. No Franchisee shall sell, transfer, lease, assign, sublet, or dispose of in whole or in part, either by forced or involuntary sale, or by ordinary sale, consolidation, or otherwise, a Franchise granted hereunder or any of the rights and privileges granted by such Franchise.

Section 10. Enforcement; Attorney Fees. The City shall be entitled to enforce this Ordinance, and, any Franchise granted pursuant to it, though all remedies lawfully available, and Telephone Company shall pay City reasonable attorneys’ fees in the event that the Telephone Company is determined judicially to have violated the terms of this Ordinance or Franchise.

Section 11. Co-location. Nothing in this Ordinance shall be construed to require or permit any telephone, electric light, power wire, or other attachments by either the City or the Telephone Company, on the poles or other Facilities of the other. If such attachments are desired by the City or the Telephone Company, then a separate non-contingent agreement shall be prerequisite to such attachments.

Section 12. Liability and Indemnification. All poles, wires, cables, service wires, anchors, anchor rods, guy wires or other appurtenances, which are located in the Right-of-Way shall be so placed by the Telephone Company as not to interfere with traffic on the traveled portions of such thoroughfares. The Telephone Company, after construction or reconstruction of the telecommunications facilities, will restore to their original condition the streets, roads, alleys or other public thoroughfares on which such facilities have been constructed, insofar as is practical; said Telephone Company shall at all times hold the City harmless and free from liability for any damages which may be done to real or personal property by the exercise of this Franchise, or injuries to persons cause by the Telephone Company in the exercise of this Franchise, and the Telephone Company in accepting this Franchise assumes any and all liability as far as the City is concerned.

Section 13. Compliance with Laws. The Telephone Company shall comply with all applicable Federal, State, and local laws, ordinances, regulations and policies, including, but not limited to, all laws, ordinances, regulations and policies relating to the construction and use of public property.

Section 14. Removal of Facilities. When for any reason Facilities of the Telephone Company are abandoned, become obsolete, or are replaced by other Facilities, the Telephone Company will under the terms of this Ordinance have the right and obligation to remove the facilities, including, but not limited to, poles, cables, wires, service wires, anchors, anchor rods, guy wires and all other appurtenances from all the City streets, roads, alleys, utility easements or other public thoroughfares of the City and shall complete the removal in a period of not more than ninety (90) days after said abandonment. In the event it is impossible to complete the removal within 90 days the Telephone Company shall have the right to a reasonable extension of time in which to complete the removal.

Section 15. Rates. The rates to be charged to the inhabitants of the City for service furnished by the Company shall be the rates as approved by the Kansas Corporation Commission, or other regulatory body having jurisdiction over the Company’s rates and services.

Section 16. This ordinance shall become effective upon publication and publication costs shall be paid by the Telephone Company.

(04-27-06)