AN ORDINANCE GRANTING TO NEX-TECH, INC., A SUBSIDIARY OF RURAL TELEPHONE SERVICE CO., INC., A KANSAS CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIEGH TO CONSTRUCT AND OPERATE A TELEPHONE SYSTEM WITHIN THE CITY OF PLAINVILLE, KANSAS, PRESCRIBING THE TERMS AND CONDITIONS THEREOF AND PROVIDING FOR PAYMENTS TO BE MADE TO THE CITY OF PLAINVILLE, KANSAS.

Section 1.  Nex-Tech, Inc., a subsidiary of Rural Telephone Service Co., Inc., a Kansas Corporation, its successors and assigns, (hereinafter referred to as “Telecommunications Company”) shall operate a telephone system and all business incidental to or connected with conducting of a telephone business and system in the City of Plainville, State of Kansas (hereinafter referred to as “City”). The plant construction and appurtenances used in or incident to the giving of telephone services and to maintenance of a telephone business and system by the Telecommunications Company in the City shall be constructed subject to such changes as may be considered necessary by the City in the exercise of its inherent powers and by the Telecommunications Company in the conduct of its business. The Telecommunications Company shall exercise its right to place, remove, construct, and reconstruct, extend and maintain its plant and appurtenances as the business and purposes for which it is or may be incorporated may from time to time require along, across on, over through, above and under all public streets, avenues, alleys, bridges and the public grounds and places within the limits of the city as the same from time to time may be established.

Section 2.  The initial term of this ordinance shall be for a period of five (5) years. Compensation made pursuant to this franchise ordinance shall be paid on a quarterly basis without invoice or reminder from the City and paid no later than forty-five (45) days after the end of the remittal period. For the first year of this franchise ordinance, said compensation shall be a sum equal to $1.00 per access line per month. Thereafter, compensation for each calendar year of remaining term of the franchise ordinance shall continue to be based on a sum equal to $1.00 per access line per month; unless the City notifies Telecommunications Company prior to ninety days (90) before the end of the calendar year that it intends to increase or decrease the per access line for the following calendar year or that it intends to switch to a percentage of gross receipts for the following calendar year. In the event City elects compensation based on an access line fee, nothing herein precludes City from switching to a gross receipts fee provided City notifies Telecommunications Company prior to ninety (90) days before the end of the calendar year that it intends to elect a gross receipts fee for the following calendar year. Any increased access line fee or gross receipt fee shall be in compliance with the public notification procedures set forth in subsections (1) and (m) K.S.A. 2002 Supp. 12-2001.

Section 3.  The Telecommunication Company on the request of any applicant shall remove, raise or lower its wires temporarily to permit the moving of houses or other structures. The expense of such temporary removal, raising or lowering of wires shall be paid by the party or parties requesting the same, and Telecommunications Company may require such payment in advance. The Telecommunications Company shall be given not less than fifteen (15) days written notice from the applicant detailing the time and location of the moving operations, and not less than twenty-four (24) hours advance notice from the applicant advising of the actual operation.

That notwithstanding any other provisions of this ordinance, the Telecommunications Company agrees that at its own expense it will move or adjust, or cause to be moved or adjusted, and will be responsible for such removal or adjustment of all structures, poles, pole lines, manholes, or other appurtenances used in or incident to conducting a telephone business which may be necessary to the construction, maintenance or use by the City or agents of the City in the exercise of its governmental powers of the public streets, avenues, alleys, bridges, and the public grounds covered by this ordinance as soon as reasonably possible.

Section 4.  The poles wires, cables, conduits, pipes, and appliances erected or to be erected by the Telecommunications Company, either under or above ground, shall be erected, laid, placed or constructed in conformity with the rules, regulations and ordinances of the City of Plainville, Kansas, adopted by said City in the reasonable exercise of its police power. However, excavations by the Telecommunications Company in any of the streets, alleys, avenues, roads or public grounds within the corporate limits of said City shall be done in accordance with such rules, resolutions and ordinances now existing or to enacted by the governing body and shall be under the direction and supervision of the City Street Foreman and/or City Sewer/Water Foreman or such other officials as may, from time to time, be designated by the governing body of the City. Said sites, which may be excavated by the Telecommunications Company shall be returned to their original condition and appearance after said excavation. Any necessary repairs to return the sites to their original condition and appearance shall be at the expense of the Telecommunications Company. The Telecommunications Company will locate its facilities so as not to unnecessarily interfere with other facilities existing at the time of the construction, and during construction shall provide adequate traffic control.

Section 5.  Permission is hereby granted to the Telecommunications Company to trim trees upon and overhanging streets, alleys, sidewalks and public places of said City so as to prevent the branches of such trees from coming into contact with the wires and cables of the Telecommunications Company, all of said trimming to be done under the supervision and direction of any City official to whom said duties have been or may be delegated. All said trimming shall comply with all applicable laws, statutes and/or ordinances.

Section 6.  Nothing in this ordinance shall be construed to require or permit any telephone, electric light, or power wire attachments by either the City or the Telecommunications Company on the poles of the other. If such attachments are desired by the City or the Telecommunications Company, then separate non-contingent agreement shall be a pre-requisite to such attachments.

Section 7.  Nothing herein contained shall be construed as giving the Telecommunications Company any exclusive privileges, nor shall it affect any prior existing rights of any communications company or telephone company to maintain a telephone system within the City.

Section 8.  The said Telecommunications Company, its successors and assigns, agree to hold the City harmless from all costs and damage, expense or liability which may be occasioned solely by the Telecommunications Company occupancy in the public streets, avenues, alleys, bridges and the public grounds and places within the limits of said City, and in the event any action shall be instituted against the City and the Telecommunications Company jointly or against the City separately arising out of injury or damage or both, occasioned solely by the Telecommunication Company’s occupancy in the public streets, avenues, alleys, bridges and the public grounds and places within the limits of said City, then upon notice by the City to the Telecommunications Company, the Telecommunications Company will assume liability for the defense of such action at the cost of the Telecommunications Company subject to the option of City to appear and defend at its own costs, any such case.

Section 9.  The Telecommunications Company, its successors and assigns, in the construction, maintenance and operation of its telecommunications system shall use all reasonable and proper precaution to avoid damage or injury to person or property and shall hold and save harmless the City of Plainville, Kansas from any and all damages, injury, claims, causes of action or expenses caused by the Telecommunications Company, its successors and assigns or its or their agents or servants.

Section 10. This ordinance shall be governed by the franchise laws of the State of Kansas as are in effect at the time this ordinance is initially adopted, and as amended during the time the Telecommunications Company conducts its telephone business in the City.

Section 11. This franchise and all rights hereunder may not be assigned by Telecommunications Company, without written consent of the governing body of the City, and the successors and/or assigns shall succeed to all rights, duties, and liabilities of the City hereunder.

Section 12. This franchise ordinance shall be read by title only at three (3) regular meetings of the governing body. Immediately after the final passage, it shall be published in the official city newspaper, once a week for two (2) consecutive weeks. It shall not take effect and be in force until after the expiration of sixty (60) days from the date of final passage.

Section 13. Telecommunications Company shall assume the cost of publication of this Ordinance. Telecommunications Company shall reimburse the City for those costs upon presentation of the publication costs.

(02-15-2005)