AN ORDINANCE GRANTING THE FRANCHISE, PRIVILEGES, AND RIGHTS TO HAVILAND TELEPHONE COMPANY INC., TO OPERATE AND MAINTAIN A TELECOMMUNICATIONS SYSTEM IN THE PUBLIC RIGHTS.OF...WAY OF THE 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 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 only the area of real property in which the city has a dedicated or acquired right-of-way interest in the real property. It shall include area on, above and below present and future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated or acquired as right-of-way. 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. The term does not include easements obtained by private easements in platted subdivisions or tracts.

(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.

(a)   The City hereby grants to Haviland Telephone Company, Inc., (hereinafter referred to as “the Telephone Company” or “the 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.

(b)   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.

(c)   The Telephone Company shall 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.

(a)   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.

(b)   The City shall promptly, and in no event more than 30 days, with respect to facilities in the public right-of way process each valid and administratively complete application of a provider for any permit, license or consent to excavate, locate lines, construct facilities, make repairs, effect traffic flow, or for other similar approvals, and shall make reasonable effort not to unreasonably delay or burden the Company in the timely conduct of its business.

(c)   If there is an emergency necessitating response work or repair, the Company may begin that repair or take any action required under the circumstances, provided that the Company notifies the City Promptly after beginning the work and timely thereafter meets any permit or other requirements had there not been such an emergency.

(d)   The Franchisee must continue to participate fully in Kansas One Call to ensure that damage and/or interference with other underground facilities’ occupants is minimized The City will notify the Telephone Company either directly or through voluntary Participation in Kansas One Call of its excavation plans in public Right­ of way to avoid damage to Company facilities Pre-existing in public Right-of-way.

Section 5.  Relocation of Facilities.

(a)   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.

(b)   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 6. Franchise Fees.

(a)   The City requires the Telephone Company as a telecommunications local exchange service provider to collect and remit to the City an access line fee of the maximum permitted $2.25 per month per access line in 2006; the maximum of $2.50 in 2009; the maximum of $2.75 in 2012 and thereafter, except as the Statutorily permitted maximum increases [K.S.A. 12-2001U)]. 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 monthly. To determine an access line remittance fee, the telecommunications local exchange service provider shall calculate and remit an amount equal to the access line fee established by the City multiplied by the access line count. The amount assessed shall be pro-rated for each day the access line customer is a customer the assessment shall occur on the normal billing date of the Telephone Company and shall be assessed on those customers who are customers on that date. The assessment shall be pre-billed as is local regulated service.

(c)   The first report and payment to the City shall be based on the October 1 billing and shall be due on the 31st day of October, 2006, or as soon as is practicable after October 1.

(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 written notice, all documents, records or other information that pertains to this Franchise no more than once per calendar year.

(f)   If the City and the telecommunications local exchange service provider cannot agree on the access line count or are in dispute concerning the amounts due under this section for the payment of access line fees, either party may seek appropriate relief in a court of competent jurisdiction and that court may impose all appropriate remedies, including monetary and injunctive relief and reasonable costs and attorney fees. All claims authorized in this section must be brought within three years of the date: on which the disputed payment was due.

(g)   The access line fee imposed under this section must be assessed in a competitively neutral manner, may not unduly impair competition, must be nondiscriminatory and must comply with state and federal law.

(h)   Customer receipts shall be reduced by bad debt expenses, and Uncollectible and late charges shall not be included within receipts. Accordingly, the Company will remit 98% of customer billed amounts, with the hold-back covering bad debt expense and uncollectible debt.

(i)    Should the Company bad debt expense and uncollectible revenues exceed this 2% by at least 2% for 3 months consecutively, it may petition the City to increase the hold-back Percentage.

Section 7. Term. The Franchise shall remain in effect for 15 years from the anniversary of its adoption, or until December 31, 2021, whichever date is the earlier, unless either party shall notify the other in writing 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 8. 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 9. 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 10. Indemnification.

(a)   The Company shall indemnify and hold the City and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses fees (including reasonable attorney fees and costs of defense), Proceedings, actions, demands, causes of action, liability and suits of any kinds and nature, including personal or bodily injury (including death), property damage or other harm for which recovery of damages is sought, to the extent that it is found by a court of competent jurisdiction to be caused by the negligence of the provider, any agent, officer, director, representative employee, affiliate or subcontractor of the provider, or their respective officers, agents, employees, directors or representatives, while installing, repairing or maintaining facilities in a public right-of-way. The indemnity provided by this subsection does not apply to any liability resulting from the negligence of the City, its officers, employees, contractors or subcontractors.

(b)   If a provider and the City are found Jointly liable by a court of competent jurisdiction liability shall be apportioned comparatively in accordance with the laws of this state without, however waiving any governmental immunity available to the City under state law and without waiving any defenses of the parties under state or federal law.

(10-01-06)