AN ORDINANCE GRANTING A TELECOMMUNICATIONS CONTRACT FRANCHISE BETWEEN UNITED TELEPHONE COMPANY OF KANSAS D/B/A EMBARQ AND THE CITY OF HIAWATHA, COUNTY OF BROWN, STATE OF KAIJSAS AS ALLOWED BY K.S.A. 12-2001 AND REPEALING ORDINANCE NO. 919 AND ANY CONFLICT ORDINANCES.

Section 1. United Telephone Company of Kansas d/b/a Embarq, Grantee, a corporation organized under the laws of the State of Kansas, with a license to do business in the State of Kansas, and its successors and assigns, and the City of Hiawatha hereby enter into a Telecommunications Contract Franchise pursuant to K.S.A. 12-2001 and 17-1902. The Telecommunications Franchise Contract shall be effective as provided in Section 17 herein and shall continue for a term of five (5) years from its effective date, and for successive terms of like duration unless written notice is given by either Embarq or the City to the other 120 days or more prior to the expiration of the initial term or any successive term of its intention to terminate the same at the expiration of the then current term.

Section 2. Compensation for the Telecommunications Contract Franchise shall be established pursuant to K.S.A. 12-2001 (j). Pursuant to K.S A. 12-2001 (j)(1), the City requires Embarq to collect and remit an access line fee of $2.00 per month per access line. Any adjustment to the access line fee shall be accompanied by an ordinance amending this contract franchise, the City shall notify Embarq of the effective date of such ordinance, and Embarq shall have 90 days from the receipt of such notice or from the effective date of such ordinance, whichever is later, to implement the new fee. Embarq shall have 90 days from the effective date of this ordinance to implement the fee.

Section 3. The compensation shall be made on or before the 1st day of March of each year during the term of this ordinance. The City agrees the compensation pursuant to K.S.A. 12-2001 (j) shall be in lieu of an) general, or special license tax, occupation tax, or any other such tax for the term of this ordinance.

Section 4. For purposes of notice provided under this Telecommunications Contract Franchise, notice shall be provided to the following:

To Embarq:

Randy Knox

9200 NW 119th Terrace

Kansas City, MO 64153

To City:

City of Hiawatha

City Administrator

723 Oregon

Hiawatha, KS 66434

785-742-7417

Section 5. Nothing herein shall affect any prior or existing rights of Embarq to maintain a telecommunications company within the City.

Section 6. If this Telecommunications Contract Franchise expires and the City and Embarq are engaged in good faith negotiations intended to result in the passage of such a subsequent ordinance acknowledging a Telecommunications Contract Franchise, the terms of this ordinance shall apply until the effective date of the subsequent ordinance.

Section 7.  This is a non-exclusive franchise contract ordinance in that the City of Hiawatha may grant similar franchise ordinances or contracts to any other communications company within the City of Hiawatha.

Section 8. Grantee, its successors and assigns, shall conduct telephone business in accordance with all applicable laws and administrative rules.

Section 9. All poles and overhead wires or cables erected in accordance with this K.S.A. 17-1902 and any ordinance enacted pursuant to the authority granted therein shall be placed, whether on streets, avenues, boulevards, alleys or other public places, so as not to interfere with ordinary travel on such streets, avenues, boulevards, alleys or other public places. All poles erected pursuant to K.S.A. 17-1902 and any ordinance enacted pursuant to the authority granted therein ordinance shall be located so as not to injure any drains, sewers, catch basins or other like public improvements and, if such be injured, Grantee shall repair any damages caused to the satisfaction of the City Administrator of the City and, in default thereof, the City may repair such damage and charge the cost to Grantee to the extent required by K.S.A. 17-1902.

(a)   To the extent authorized under K.S A. 17-1902 the City shall have the power at an) time to order and require the Grantee, its successors and assigns to remove and abate an) pole, wire, cable or other facility that is imminently dangerous to life or property and in case grantee, after written notice, fails or refuses to comply, the City shall have the power to remove the same at the expense of the Grantee, all without compensation or liability for damages to the Grantee, except as due to the negligence or willful misconduct of the Grantor. The Grantee shall promptly restore all rights of way excavated by Grantee to substantially the same condition as before said excavation to the reasonable satisfaction of the City including repairing an) damage primarily caused by Grantee. Prior to construction, licensee shall submit engineering plans to the City for review and approval when such plans are for projects that involve significant amount of both new buried cable and underground systems or aerial systems, in public rights of way. Approval of such plans shall not be unreasonably delayed, withheld or conditioned by the City.

(b)   Except in an emergency, Grantee shall not excavate any pavement in the right of way or significant amount of any unpaved public right of way without first securing permission of the city, but such permission shall not be unreasonably delayed, withheld or conditioned if the proposed excavation is in accordance with the terms of this agreement. The City shall be notified as soon as practical regarding work performed under emergency conditions.

Section 10. The poles of Grantee, its successors and assigns, shall be placed and erected in such a manner so as not to interfere unreasonably with the orderly conduct of the business and rights of any other public service corporation having a right or franchise to operate its business in the City.

Section 11. Grantee shall remove, raise or adjust its aerial plant, after seventy- two (72) hours’ notice by a properly authorized city official, for the purpose of permitting the moving of houses or other structures along the streets of the City. The person or persons for whose benefit such telephone plant is removed, raised or adjusted, however, shall first secure proper permission from the City for the movement and agree to pay Grantee for its related costs and damages. If desired, an advance deposit from the mover may be required by Grantee.

Section 12. Permission is hereby granted to Grantee to trim trees upon and overhanging streets, alleys, sidewalks and public places of the City so as to prevent the branches of such trees from coming into contact with Grantees wires and cables. All such trimming will be done under the supervision and direction of an) City official to whom such duties have been or may be delegated.

Section 13. The recovery of the charges from Grantees customers is subject to the jurisdiction of the regulatory and state authorities and not the City. The obligation of Grantee to pay compensation under this Ordinance is contractual; the City makes no requirements as to the method Grantee uses to recover the payments.

Section 14. The franchise and all rights hereunder may be assigned by the Grantee, as well as all succeeding Grantees, at their option, and the successors and/or assigns shall succeed to all the rights, duties and liabilities of the Grantee hereunder.

Section 15. Ordinance No. 919 and all other ordinances and agreements or parts of ordinances and agreements in conflict with this ordinance are hereby repealed.

Section 16. If any portion of this ordinance for any reason is held to be invalid, such portion shall be considered severed from the remainder of this ordinance and the remainder shall be unaffected and continue in full force and effect.

(10-04-2006)