ORDINANCE NO. 14-10742
AN ORDINANCE AMENDING AND RESTATING ORDINANCE NUMBER 13-10712 TO AMEND IDEATEK TELCOM, LLC F/K/A WILDFLOWER TELECOMMUNICATIONS, LLC’S EXISTING TELECOMMUNICATIONS FRANCHISE.
WHEREAS, IdeaTek Telcom, LLC f/k/a Wildflower Telecommunications, LLC (“IdeaTek”), a wholly-owned subsidiary of IdeaTek Systems, Inc., a Kansas corporation, owns, maintains, operates and/or controls, in accordance with regulations promulgated by the Federal Communications Commission and the Kansas Corporation Commission (hereinafter “KCC”), telecommunications networks serving IdeaTek’s wireline customers through a fiber network and other wireless carrier customers through fiber-fed distributed antenna system facilities. Such facilities are in public rights-of-way (“ROW”), among other locations, in the state of Kansas.
WHEREAS, pursuant to Ordinance Number 13-10712, which was passed and approved by the Governing Body on August 12, 2013, IdeaTek was granted a non-exclusive contract franchise to provide local exchange service within the City of Salina, Kansas (“Existing Franchise”); pursuant to the authority granted under the Existing Franchise, IdeaTek has installed and constructed, and is currently operating, certain telecommunications facilities, including a fiber network, in the City’s ROW.
WHEREAS, IdeaTek desires to continue to operate and maintain its existing facilities in the City’s ROW, including the existing fiber network and future additions or modifications thereto, for the purpose of providing “telecommunications services” in the capacity of a “provider,” as such terms are defined under K.S.A. 17-1902, which services shall include “local exchange service,” as defined in K.S.A. 12-2001 (collectively, the “IdeaTek Services”).
WHEREAS, IdeaTek now requests an amendment to the Existing Franchise to grant IdeaTek permission to install additional facilities and components of the fiber network, including distributed antenna system facilities, for purposes of leasing, licensing, selling, or otherwise conveying the facilities, or the capacity or bandwidth of such facilities, to one or more third-party customers (“Customers”), who are presently under contract with IdeaTek and will use the facilities to provide wireless telecommunications services directly to end users within the corporate limits of the City of Salina, Kansas (“Infrastructure Services”).
WHEREAS, some features of the expanded fiber network, including the distributed antenna system facilities (collectively, the “Network”) include, without limitation, antenna nodes, poles, equipment cabinets, underground and above ground fiber optic cable, fiber handholes and enclosures, fiber repeaters and related equipment, and will include other equipment as technology evolves, in a configuration and at locations to be filed, identified and approved through the City permit process (“Facility” or “Facilities”).
WHEREAS, portions of a specific component of the Facilities, a distributed antenna system (“DAS Facility” or “DAS Facilities”), may be located on streetlights, stand-alone poles, third party utility poles, and other structures located on or within the ROW, to the extent permitted under this ordinance, and will be connected to underground and above ground fiber optic cable, fiber handholes and enclosures, fiber repeaters, and related equipment.
WHEREAS, the Governing Body finds that IdeaTek meets all the lawful requirements to obtain the requested amendment to the Existing Franchise, and therefore approves IdeaTek’s request to amend and restate the Existing Franchise to establish the terms and conditions under which IdeaTek may access the City’s ROW to locate, place, attach, install, operate, use, control, repair, replace, upgrade, enhance and maintain the Facilities, including the DAS Facilities, for the purposes of providing the IdeaTek Services and the Infrastructure Services, SO NOW THEREFORE,
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF SALINA, KANSAS:
GRANT OF FRANCHISE
1.1 Grant of Non-Exclusive Franchise. IdeaTek is hereby granted a non-exclusive contract franchise to locate, construct, place, attach, install, operate, use, control, repair, replace, upgrade, enhance and maintain the Facilities in the ROW, at IdeaTek’s sole cost and expense and subject to the terms and conditions of this ordinance (the “Agreement”), for the purposes of: (a) providing the IdeaTek Services within the City of Salina, Kansas, in the capacity of a “provider” under K.S.A. 17-1902(a)(2); and (b) providing the Infrastructure Services to IdeaTek’s Customers, in the capacity of a “competitive infrastructure provider” under K.S.A. 17-1902(a)(4). For purposes of this Agreement, the term “ROW” 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 the area on, below or above the present and future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated or acquired as right-of-way. The term does not include the airwaves above a right-of-way with regard to wireless telecommunications or other nonwire telecommunications or broadcast service, easements obtained by utilities or private easements in platted subdivisions or tracts.
1.2 Compliance with Laws. This Agreement is subject to the terms and conditions of all applicable federal, state and local Laws and the Parties shall comply with any such Laws in the exercise of their rights and performance of their obligations under this Agreement. “Laws” or “Law” as used in this Agreement means any and all statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, permits, approvals or other applicable requirements of the City or other governmental entity or agency having joint or several jurisdiction over any aspect of this Agreement or the Parties’ activities under this Agreement, whether now existing or hereafter adopted, including but not limited to the City’s right-of-way management ordinance (“ROW Ordinance”) and the City’s zoning and land use laws (“Zoning Regulations”) to the extent they are not inconsistent with state and federal law regulating use of the ROW, and any related laws, rules, or regulations and amendments thereto relating to the use and occupancy of the ROW.
1.3 Permits and Approvals. As a condition of this Agreement, IdeaTek is required to obtain and is responsible for any necessary permit, license, certification, grant, registration, and any other authorization or approval required by the City (collectively, the “Permits and Approvals”) relating to the installation, maintenance, and repair of the Facilities or Network and for the use and occupancy of the ROW, including but not limited to all Permits and Approvals required under the City’s ROW Ordinance and Zoning Regulations. The City shall process each valid and administratively complete application for requested Permits and Approvals in accordance with the time requirements of applicable state and federal Laws, and shall not unreasonably or unlawfully withhold or delay any Permits and Approvals. Any conditions or requirements attached to Permits and Approvals shall be in accordance with federal, state, and local Laws.
INSTALLATION OF THE NETWORK
2.1 Installation Specifications. The installation of the Facilities shall be made in accordance with plans and specifications as may be approved by the City and after obtaining all necessary Permits and Approvals. The location, depth of the fiber underground, and any other requirements shall be approved in writing by the City prior to construction of the Facilities at that specific location, approval of which shall not be unreasonably withheld, conditioned or delayed. Approval of plans and specifications and the issuance of any Permits and Approvals by the City shall not release IdeaTek from the responsibility for, or the correction of, any errors, omissions or other mistakes that may be contained in the plans, specifications and/or Permits and Approvals. IdeaTek shall be responsible for notifying the City and all other relevant parties immediately upon discovery of such omissions and/or errors and with obtaining any amendments for corrected City-approved permits, as may be necessary. IdeaTek shall be responsible for all costs associated with the permitting process, including, but not limited to, repairs and replacement of City ROW. IdeaTek shall undertake and perform any work authorized by this Agreement in a skillful and workmanlike manner.
2.2 Compliance with Permits. All work within the City’s ROW shall be performed in compliance with all applicable Permits and Approvals, and all applicable regulatory requirements.
2.3 Traffic Control. The installation of the Facilities shall be performed in accordance with traffic control plans for temporary construction work that are approved by the City, which approval shall not be unreasonably withheld, conditioned or delayed.
2.4 Construction Schedule. If requested by the City, at least ten (10) days prior to the installation of the Facilities, IdeaTek shall deliver to the City a schedule for the proposed work related to the construction of the Facilities, as well as a list of the names of all agents and contractors authorized by IdeaTek to access the ROW on IdeaTek’s behalf.
2.5 Coordination of Work. IdeaTek shall be responsible for coordination of work to avoid any interference with existing utilities, substructures, facilities and/or operations within the City’s ROW. IdeaTek shall be the City’s point of contact and all communications shall be through IdeaTek. IdeaTek shall be solely responsible for communicating with Kansas One-Call.
2.6 Placement of Facilities. IdeaTek shall coordinate the placement of its Facilities in the ROW in a manner that minimizes adverse impact on public improvements, as reasonably determined by the City Engineer.
2.7 Existing Utility Poles. IdeaTek shall obtain a properly executed agreement with the owner of any existing pole or structure, in addition to any required Permits and Approvals, before attaching its Facilities to an existing utility pole or structure in the ROW.
2.8 New Streetlight Poles and other City Facilities. IdeaTek may build new streetlight poles or other such facilities required for the installation of the Facilities in accordance with the City’s ROW Ordinance, Zoning Regulations, and other applicable City, state and federal specifications and Laws (“New Poles”). The City encourages the conservation of the ROW by sharing of space by all utilities and ROW users. Accordingly, the Parties agree that in areas where there are existing poles, IdeaTek will work with the owner of that existing pole to collocate the DAS Facility, and IdeaTek will only pursue the installation of a new pole when the existing pole owner is unwilling to reasonably allow such attachment or where such attachment is unfeasible from a safety, technical, and engineering (structural and radio frequency coverage) perspective.
2.8.1 City Use of New Poles. The Parties understand and agree that the City may use any New Poles for City purposes, including but not limited to streetlights and other lighting so long as such use does not interfere with IdeaTek’s use of its Network or Facilities. IdeaTek shall reasonably cooperate with the City when using the New Poles. Except for the installation of the lights and ancillary equipment on or in the New Poles and/or as set forth in Section 2.8.2 below, IdeaTek shall not be responsible for maintenance, repair, or replacement of City-owned lights, light bulbs and equipment, or equipment owned by third parties authorized by the City, on the New Poles.
2.8.2 Damage to New Poles. If a New Pole falls or is damaged such that there is an imminent threat of harm to persons or property, then the City may cause the New Pole to be removed to the side of the street or a location that City believes reasonably eliminates the risk of such imminent threat of harm to persons or property. IdeaTek shall, after written notice from the City that any New Pole has been damaged or removed, cause the New Pole to be repaired or replaced within thirty (30) days after the City’s written notice. The cost to repair and/or replace any New Pole, including the replacement City streetlight, bulb and ancillary equipment shall be paid by IdeaTek; provided, however, that if the New Pole is damaged or destroyed by the City or a third party user that the City has given the right to use the New Pole, then the City and/or its third party user shall pay the cost to repair and/or replace the New Pole. To the extent that IdeaTek seeks reimbursement from a third party either directly or through applicable insurance, the City shall assign to IdeaTek any rights the City may have against such third party for such claim.
COMPENSATION AND FEES
3.1 Franchise and Permit Fees. IdeaTek is solely responsible for the payment of all lawful franchise and permit fees in connection with IdeaTek’s performance under this Agreement.
3.1.1 5% Franchise Fee for all Gross Revenues. In consideration of this Franchise Agreement, IdeaTek agrees to remit to the City a franchise fee of five percent (5%) of Gross Revenues (“Franchise Fee”). “Gross revenues” means and includes:
(1) All revenues derived from the Infrastructure Services, including but not limited to RF telecommunications service revenue and any other operating revenue derived from leasing, licensing, or otherwise selling or conveying the right to use IdeaTek’s dark fiber or other Facilities, and indefeasible rights of use (“IRU”) fees; and
(2) With respect to the IdeaTek Services, only those revenues derived from services provided within the corporate boundaries of the City which include: (A) Recurring local exchange service for business and residence which includes basic exchange service, touch tone, optional calling features and measured local calls; (B) recurring local exchange access line services for pay phone lines provided by a telecommunications local exchange service provider to all pay phone service providers; (C) local directory assistance revenue; (D) line status verification/busy interrupt revenue; (E) local operator assistance revenue; and (F) nonrecurring local exchange service revenue which shall include customer service for installation of lines, reconnection of service and charge for duplicate bills. All other revenues, including, but not limited to, revenues from extended area service, the sale or lease of unbundled network elements, nonregulated services, carrier and end user access, long distance, wireless telecommunications services, lines providing only data service without voice services processed by a telecommunications local exchange service provider, private line service arrangements, internet, broadband and all other services not wholly local in nature are excluded from gross revenues. Gross revenues shall be reduced by bad debt expenses that are attributable to Sections (A) through (F) as referenced within this Section 3.1.1. Uncollectible and late charges shall not be included within gross revenues.
3.1.2 Timing of Franchise Fee Payment. IdeaTek shall pay its Franchise Fee on the 15th day of the second month following the month in which the Gross Revenue is received.
3.1.3 Fees. IdeaTek shall pay to City all required fees and/or deposits to recover the City’s costs associated with the review and approval of all Permits and Approvals and managing the ROW, and such other fees allowed by Law associated therewith, provided that such fees and/or deposits reimburse the City for its reasonable, actual and verifiable costs of managing the ROW, including but not limited to reviewing and approving the application(s) for Permits and Approvals. These fees must be competitively neutral and may not be unreasonable or discriminatory.
3.2 Accounting Matters. IdeaTek shall keep accurate books of account at its principal office in Buhler, Kansas, or such other location of its choosing for the purpose of determining the amounts due to the City under this Section 3. No more than once per year, the City may inspect IdeaTek’s books of account relative to the application of the franchise fees required under Section 3.1.1 of this Agreement any time during regular business hours on thirty (30) days’ prior written notice and may audit the books from time to time at the City’s sole expense, but in each case only to the extent necessary to confirm the accuracy of payments due under Section 3.1. The City agrees to hold in confidence any non-public information it learns from IdeaTek to the fullest extent permitted by Law.
ACCESS TO FACILITIES
4.1. IdeaTek Access to Facilities for Repair. IdeaTek will be given reasonable access to each of the Facilities in the City ROW for the purposes of routine installation, repair, maintenance or removal of Facilities. If any such activities have the potential to result in an interruption of the City’s use of New Poles, IdeaTek shall provide the City with a minimum of three (3) days prior written notice of such activities. Such activities shall, to the extent feasible, be done with minimal impairment, interruption, or interference to City use of the New Poles.
4.2 City Observation and Inspection. The City shall have commercially reasonable access to observe and inspect the Facilities, and any work conducted by IdeaTek during the installation, maintenance and/or repairs of the Facilities.
TERM AND TERMINATION
5.1 Term. The initial term of this Agreement shall be for period beginning on the effective date established by Section 15.3 below, and ending on December 31, 2016. Thereafter, this Agreement shall automatically renew for additional consecutive one (1) year terms, unless: (a) IdeaTek has terminated its use of all of the Network within the ROW pursuant to Section 5.2 below; or (b) the City notifies IdeaTek, on or before the July 1st preceding the expiration of the current term, of its intent to renegotiate terms of the renewal as allowed by then applicable law to be effective as of the January 1st commencement of the next renewal term. In relation to any renegotiation of terms of renewal under (b) above, the City agrees that it will not terminate IdeaTek’s right under this Agreement to place Facilities in the ROW unless terms of this Agreement are breached and/or local, state, or federal law permit. If a controversy arises regarding any action or decision of the City under this Section 5.1, IdeaTek shall be entitled to request non-binding mediation, and the City agrees to participate, in good faith, in the mediation. The mediation shall be located in Salina, Kansas. Any request for mediation shall be made in writing and delivered to the City within thirty (30) days of the City’s action or decision giving rise to the controversy. In recognition of the potential that a change in law may, by its terms, not affect an existing franchise, the Parties agree and stipulate that any change in law shall be deemed to be in effect as of its general effective date for purposes of any potential renegotiation of terms of renewal under (b) above. Any such additional term under this Section 5.1 shall be deemed a continuation of this Agreement and not as a new contract franchise ordinance or amendment. Under no circumstances shall this Agreement exceed twenty (20) years from the effective date hereof.
5.2 Termination of Use. Notwithstanding Section 5.1 above, IdeaTek may terminate its use of any or all of the Network by providing the City with ninety (90) days prior written notice. In the event of any such termination, IdeaTek’s payment obligations to the City shall terminate simultaneously with the termination of use, provided IdeaTek removes its Facilities and restores the ROW, as set forth in Section 6 and in accordance with applicable Laws, prior to the termination date.
REMOVAL AND RELOCATION
6.1 Removal Due to Public Project and Other Causes. Upon receipt of a written demand from the City pursuant to this Section 6, IdeaTek, at its sole cost and expense, shall remove and relocate any part of the Network constructed, installed, used and/or maintained by IdeaTek under this Agreement, whenever the City reasonably determines that the removal and/or relocation of any part of the Network is needed for any of the following purposes: (a) due to any work proposed to be done by or on behalf of the City or any other governmental agency, including but not limited to, any change of grade, alignment or width of any street, sidewalk or other public facility, installation of curbs, gutters or landscaping and installation, construction, maintenance or operation of any underground or aboveground facilities such as sewers, water mains, drains, storm drains, pipes, gas mains, poles, power lines, telephone lines, cable television lines and tracks; (b) because any part of the Network is interfering with or adversely affecting the proper operation of City-owned light poles, traffic signals, or other City facilities; (c) the City is mandated by law, a court order or decision, or the federal or state government to take certain actions that will cause or require the removal of the Facilities from the public right of way; or (d) to protect or preserve the public health, safety and welfare. The City shall cooperate with IdeaTek in relocating any portion of the Network removed pursuant to this Section 6.1 in a manner that allows IdeaTek to continue providing service to its customers, including, but not limited to, expediting approval of any necessary Permits and Approvals required for the relocation of that portion of the Network relocated under this Section 6.1. No permitting or other fees may be charged by the City for a removal occurring under this Section.
6.2 Removal Due to Termination. No later than ninety (90) days after expiration or termination of this Agreement pursuant to the provisions of this Agreement, IdeaTek shall, at its sole cost and expense, remove the Network or the terminated portion thereof and, if such removal disturbs the locations or adjacent property (including City ROW or City real property), restore the ROW, each Facility, and any adjacent property to its original condition, reasonable wear and tear excepted, and further excepting landscaping and related irrigation equipment or other aesthetic improvements made by IdeaTek to the Facility or adjacent property. For New Poles, IdeaTek shall install a new streetlight or facility as directed by City’s Public Works Director, or his or her designee. Alternatively, the City may allow IdeaTek, in the City’s sole and absolute discretion, to abandon the Network, or any part thereof, in place and convey it to the City.
6.3 Abandonment. In the event IdeaTek ceases to operate and abandons the Network, or any part thereof, for a period of ninety (90) days or more, IdeaTek shall, at its sole cost and expense and within the time period specified in Section 6.2, vacate and remove the Network or the abandoned part thereof. If such removal disturbs the Facility or adjacent property (including City ROW or City real property), IdeaTek shall also, at its sole cost and expense, restore the ROW, each Facility, and any adjacent property to its original condition, reasonable wear and tear excepted, and further excepting landscaping and related irrigation equipment or other aesthetic improvements made by IdeaTek to the Facility or adjacent property. Alternatively, the City may allow IdeaTek, in the City’s sole and absolute discretion, to abandon the Network, or any part thereof, in place and convey it to the City.
6.4 No Relocation Compensation. The parties understand and agree that neither the City nor IdeaTek are entitled to compensation for any relocation of its Network that may be required under Section 6.1. IdeaTek acknowledges that it is not entitled to relocation assistance or any other compensation or benefits under the Uniform Relocation Assistance Act or any other applicable provision of law upon termination of this Agreement.
MAINTENANCE AND REPAIR
7.1 Electricity Use. IdeaTek shall pay for the electricity and other utilities services it consumes in its operations at the rates charged by the servicing utility companies.
7.2 Maintenance and Repair. IdeaTek shall, at IdeaTek’s sole cost and expense, perform all maintenance and repairs reasonably needed to maintain the Network in good condition and neat and orderly appearance, and in compliance with all applicable Laws. In the event any part of the Network requires replacement because such part cannot be repaired, IdeaTek shall, at IdeaTek’s sole cost and expense, replace the irreparable part of the Network. IdeaTek shall not cause rubbish, garbage or debris on or around its Network or the Facilities and shall not permit any rubbish, garbage or debris to accumulate on or around any enclosed areas around the Facilities. If the City gives IdeaTek written notice of a failure by IdeaTek to maintain the Facilities, IdeaTek shall use its best efforts to remedy such failure within forty-eight (48) hours after receipt of such written notice.
7.3 Appearance. IdeaTek shall cooperate with the City and follow all legally binding City policies and state and local ordinances with respect to aesthetics. The appearance and placement of DAS Facilities must be aesthetically approved by the City, in a manner consistent with other Permits and Approvals required under this Agreement.
7.4 Repair of ROW. IdeaTek shall be responsible for any damage, ordinary wear and tear excepted, to street pavement, existing facilities and utilities, curbs, gutters, sidewalks, landscaping, and all other public or private facilities, to the extent caused by IdeaTek’s construction, installation, maintenance, access, use, repair, replacement, relocation, or removal of the Network in the City’s ROW. IdeaTek shall promptly repair such damage and restore the City’s ROW and any affected adjacent property to a safe and satisfactory condition to the City in accordance with the City’s applicable street or ROW restoration standards, or to the property owner if not the City. IdeaTek’s obligations under this Section 7.4 shall survive for one (1) year past the completion of such reparation and restoration work and return of the affected part of the City’s ROW by IdeaTek to the City, or such longer period as may be established by the City’s ROW Ordinance or other applicable Laws.
7.5 Bond. IdeaTek shall provide a bond in an amount determined by the City to represent the estimated cost of IdeaTek’s obligations under Articles 3 and 4 of this Agreement, which the City may require IdeaTek to increase from time to time to reflect the reasonable estimated cost of performing such obligations, to secure performance of IdeaTek’s obligations under Sections 6 and 7, not to exceed $100,000.
8.1 Taxes. IdeaTek agrees that it will be solely responsible for the payment of any and all applicable taxes, fees and assessments levied on its ownership, use and maintenance of the Network and this Agreement. Pursuant to the Kansas Revenue and Taxation Code, the City hereby advises, and IdeaTek recognizes and understands, that IdeaTek’s use of the City’s ROW and/or the New Poles may create a possessory interest subject to real property taxation and that IdeaTek may be subject to, and responsible for, the payment of real property taxes levied on such interest. IdeaTek will cooperate with the Saline County Appraiser in providing any information necessary for the Appraiser to make a property tax determination. IdeaTek reserves the right to challenge any such assessment, and the City agrees to cooperate with IdeaTek in connection with any such challenge.
9.1 Indemnity. IdeaTek shall indemnify, defend, and hold harmless the City, its agents, representatives, officers, officials, employees and contractors, from and against liability, claims, demands, losses, damages, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, and the costs and expenses incurred in connection therewith, including reasonable attorneys’ fees and costs of defense to the extent resulting from activities undertaken by IdeaTek pursuant to this Agreement, except to the extent arising from or caused by the gross negligence or willful misconduct of the City, its agents, representatives, officers, officials, employees or contractors. The City shall promptly notify IdeaTek of any claim, action or proceeding covered by this Section 9.1.
9.2 Waiver of Claims. IdeaTek waives all claims, demands, causes of action, and rights it may assert against the City on account of any loss, damage, or injury to any portion of the Network, or any loss or degradation of the services provided by the Network resulting from any event or occurrence except for any loss, damage, or injury to any portion of the Network, or any loss or degradation of the services provided by the Network, resulting from the gross negligence or willful misconduct of the City.
9.3 Limitation of City’s Liability. The City will be liable, if at all, only for the cost of repair to damaged portions of the Facilities arising from the gross negligence or willful misconduct of the City, its employees, agents, or contractors. The City, its agents, officers, employees, or contractors, shall not be liable for any damage from any cause whatsoever to the Facilities, specifically including, without limitation, damage, if any, resulting from the City’s maintenance operations adjacent to the Facilities or from vandalism or unauthorized use of the Facilities, except to the extent such damage is caused by the gross negligence or willful misconduct of City, its agents, officers, employees or contractors. The City will in no event be liable for indirect or consequential damages.
9.4 Limitation of IdeaTek’s Liability. In no event shall IdeaTek be liable for indirect or consequential damages in connection with or arising from this Agreement, or its use of the Network, New Poles, and ROW.
10.1 Minimum Insurance Requirements. IdeaTek shall obtain and maintain, and keep in full force and effect at its sole cost and expense for the duration of this Agreement, insurance pursuant to the terms and conditions described in this Section.
10.1.1 General Liability. A policy or policies of Comprehensive General Liability Insurance, with minimum limits of $2,000,000 combined single-limit per-occurrence for bodily injury, personal injury, death, loss and property damage resulting from wrongful or negligent acts by IdeaTek. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
10.1.2 Automobile Liability. A policy or policies of Comprehensive Vehicle Liability Insurance covering personal injury and property damage, with minimum limits of $1,000,000 combined single-limit per-accident for bodily injury and property damage covering any vehicle utilized by IdeaTek in performing the work covered by this Agreement
10.1.3 Workers’ Compensation and Employer’s Liability. Workers’ compensation limits as required by the Labor Code, and Employer’s Liability limits of $1,000,000 per accident.
10.2 Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions shall not exceed $25,000; provided, however, if IdeaTek’s insurance policy expressly provides (i) that the insurer is required to pay covered claims with no deduction for all or any part of IdeaTek’s deductible, and (ii) insurer’s obligation to pay covered claims is triggered irrespective of whether or not the insured pays the deductible, then IdeaTek’s deductible shall not exceed $100,000 for Comprehensive General Liability Insurance, $100,000 for Comprehensive Vehicle Liability Insurance and $250,000 for Workers’ Compensation and Employer’s Liability coverage.
10.3 Other Insurance Provisions. The policies shall contain, or be endorsed to contain, the following provisions:
10.3.1 General Liability and Automobile Liability Coverage.
(1) The City, and its agents, representatives, officers, officials, and employees (the “Insureds’’) shall be named as additional insureds on all required insurance policies, except for Workers’ Compensation and Employer’s Liability policies.
(2) IdeaTek’s insurance coverage shall be primary insurance as respects the Insureds with respect to the matters covered by this Agreement. Any insurance or self-insurance maintained by the Insureds shall be in excess of IdeaTek’s insurance and shall not contribute with it.
(3) Any failure of IdeaTek to comply with reporting provisions of the policies shall not affect coverage provided to the Insureds.
(4) IdeaTek’s insurance shall apply separately to each of the Insureds against whom a claim is made or suit is brought, except with respect to the limits of the insurer’s liability. Each of the Insureds is subject to all policy terms and conditions and has an obligation, as an Insured, to report claims made against them to the insurance carrier.
10.3.2 Worker’s Compensation and Employers Liability Coverage. The insurer shall agree to waive all rights of subrogation against the Insureds for losses arising from work performed by IdeaTek in the City’s ROW.
10.3.3 All Coverages. Except for non-payment of premium, each insurance policy required by this clause shall be endorsed to state that coverage shall not be cancelled or reduced in coverage or limits by the insurer except after thirty (30) days’ prior written notice has been given to the City. If for any reason insurance coverage is canceled or reduced in coverage or in limits, IdeaTek shall within two (2) business days of notice from the insurer, notify the City by phone or fax of the changes to or cancellation of the policy and shall confirm such notice via certified mail, return receipt requested.
10.4 Acceptability of Insurers. Insurance shall be placed with insurers with an A.M. Best rating of no less than A-:VII.
10.5 Verification of Coverage. IdeaTek shall furnish the City with certificates of insurance required by this Section 10. The certificates for each insurance policy are to be signed by a person, either manually or electronically, authorized by that insurer to bind coverage on its behalf. All certificates are to be received and approved by the City before work commences.
10.6 Secondary Parties. In the event IdeaTek hires any subcontractors, independent contractors or agents (“Secondary Parties”) to locate, place, attach, install, operate, use, control, replace, repair or maintain the Network, IdeaTek shall require the Secondary Parties to obtain and maintain insurance commensurate to the work such Secondary Parties perform.
11.1.1. Defined. A “Default’’ shall be deemed to have occurred under this Agreement if a party fails to cure the breach of any term, condition, or covenant of this Agreement within thirty (30) days after written notice from the other party specifying such breach, provided that if the breach is of a nature that it cannot be cured within thirty (30) days, a Default shall not have occurred so long as the breaching party has commenced to cure within said time period and thereafter diligently pursues such cure to completion.
11.1.2. Remedies. Upon the occurrence of a Default, the non-defaulting party may, subject to the terms of Section 9 (Limitation of Liability), terminate this Agreement and pursue all remedies provided for in this Agreement and/or any remedies it may have under applicable law or principles of equity relating to such breach.
11.2 No Waiver. A waiver by either party at any time of any of its rights as to anything herein contained shall not be deemed to be a waiver of any breach of covenant or other matter subsequently occurring.
11.3 Interest. If IdeaTek fails to make any payment under this Agreement when due, such amounts shall accrue interest from the date such payment is due until paid, including accrued interest, at an annual rate of ten percent (10%) or, if lower, the highest percentage allowed by law.
12.1 Non-Interference with Non-Public Safety Communications Systems. IdeaTek shall operate the Network in a manner that will not cause interference with City non-public safety communications systems and to the services and facilities of other licensees or lessees of City property located at or near the Facilities that were in operation prior to the installation of the Network or that are in operation prior to any modifications IdeaTek may make to the Network.
12.2 Non-Interference with Public Safety Communications Systems. IdeaTek’s Network and Facilities shall not cause interference with public safety communications systems operated by City or any other public agency, regardless of the date such systems or any components thereof have been placed in service. Nor shall IdeaTek’s Network and Facilities cause interference with the City’s use of the New Poles for their intended purpose as streetlights, traffic lights, and/or stand-alone light poles, as applicable.
12.3 Correction of Interference. If such interference with the Facilities described in Sections 12.1 or 12.2 occurs, IdeaTek shall, upon receipt of written notice thereof from City, immediately commence commercially reasonable, diligent efforts to correct or eliminate such interference. If such interference cannot be corrected by IdeaTek to the reasonable satisfaction of City within the cure period set forth in the City’s notice, which notice shall not be less than thirty (30) days absent an emergency or danger to public health and safety requiring shorter notice, such interference shall be deemed a material breach under this Agreement and City may terminate this Agreement. Interference caused by actions of IdeaTek’s Customer(s) remains the responsibility of IdeaTek.
13.1 Nonexclusive Use. IdeaTek acknowledges that this Agreement does not provide IdeaTek with exclusive use of the City’s ROW and that City retains the right to permit other providers, persons, or entities to install equipment or devices in the City’s ROW.
13.2 Notices. All notices which shall or may be given pursuant to this Agreement shall be in writing and personally served or transmitted through first class United States mail, or by express mail providing for overnight delivery, postage prepaid, to the following address or such other address of which a party may give written notice:
City: City of Salina, Kansas
Attn: City Clerk
P.O. Box 736
Salina, Kansas 67402-0736
IdeaTek: IdeaTek Telcom, LLC
102 N. Main Street
Buhler, KS 67522
Attention: Daniel Friesen
With copies to:
C. Edward Watson
1551 N. Waterfront Pkwy, Suite 100
Wichita, KS 67228
Such notice shall be deemed made when personally delivered; if mailed via first class U.S. Mail, such notice shall be deemed made three (3) calendar days after the date of deposit in the U.S. Mail; if mailed via express/overnight mail, such notice shall be deemed made two (2) calendar days after the date of deposit in a designated overnight delivery mailbox or other like facility. Actual notice shall be deemed adequate notice on the date actual notice occurred, regardless of the method of service.
13.3 Reservation of Rights. In entering into this Agreement, neither the City’s nor IdeaTek’s present or future legal rights, positions, claims, assertions or arguments before any administrative agency or court of law are in any way prejudiced or waived. By entering into the Agreement, neither the City nor IdeaTek waive any rights, but instead expressly reserve any and all rights, remedies, and arguments the City or IdeaTek may have at law or equity, without limitation, to argue, assert, and/or take any position as to the legality or appropriateness of this Agreement or any present or future laws, ordinances, and/or rulings which may be the basis for the City and IdeaTek entering into this Agreement.
13.4 Confidentiality. Information provided to the City under K.S.A. 12-2001 et seq. shall be governed by confidentiality procedures in compliance with K.S.A. 45-215 and 66-1220a, et seq., and amendments thereto.
13.5 Transfer/Assignment. If IdeaTek assigns, leases, enters into a franchise license or concession agreement, changes ownership of the Network or voting control of IdeaTek, or mortgages, encumbers, pledges, hypothecates or otherwise transfers any interest in the Network or Facilities (including any transfer by operation of law of this Agreement or any interest therein), IdeaTek will provide notice of the transfer within a reasonable time.
13.6 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, legal representatives, successors, assigns and transferees.
13.7 Entire Agreement; Modification; Waiver. This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof. All prior and contemporaneous agreements, representations, negotiations, and understandings of the parties, oral or written, relating to the subject matter hereof are merged into and superseded by this Agreement. Any modification or amendment to this Agreement shall be of no force and effect unless it is in writing and signed by the parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar. No waiver or consent shall constitute a continuing waiver or consent or commit either party to provide a waiver in the future except to the extent specifically set forth in writing. No waiver shall be binding unless executed in writing by the party making the waiver.
13.8 Severability. If any one or more of the provisions of this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision or provisions shall be deemed separable from the remaining provisions of this Agreement and shall in no way affect the validity of the remaining portions of this Agreement.
13.9 Governing Law. This Agreement shall be interpreted and enforced according to, and the parties’ rights and obligations governed by, the domestic law of the State of Kansas or applicable federal law, without regard to laws regarding choice of applicable law. Any proceeding or action to enforce this Agreement, or otherwise directly related to this Agreement shall occur in the federal court with jurisdiction over Saline County or the state courts located in Saline County, Kansas.
13.10 Survival of Terms. All of the terms and conditions in this Agreement related to payment, removal due to termination or abandonment, indemnification, limits of City’s liability, attorneys’ fees and waiver shall survive termination of this Agreement.
13.11 Captions and Paragraph Headings. Captions and paragraph headings used herein are for convenience only. They are not a part of this Agreement and shall not be used in construing this Agreement.
13.12 Drafting. The parties agree that this Agreement is the project of joint draftsmanship and that should any of the terms be determined by a court, or in any type of quasi-judicial or other proceeding, to be vague, ambiguous and/or unintelligible, that the same sentences, phrases, clauses or other wording or language of any kind shall not be construed against the drafting party.
13.13 Execution in Counterparts. This Agreement may be executed in one or more identical counterparts and all such counterparts together shall constitute a single instrument for the purpose of the effectiveness of this Agreement.
13.14 Authority to Execute This Agreement. Each person or persons executing this Agreement on behalf of a party, warrants and represents that he or she has the full right, power, legal capacity and authority to execute this Agreement on behalf of such party and has the authority to bind such party to the performance of its obligations under this Agreement without the approval or consent of any other person or entity.
13.15 No Warranty by the City. The City makes no representations or warranties regarding the suitability, condition or fitness of the locations for the installation, maintenance or use of the New Poles or the Facilities.
13.16 Force Majeure. Each and every provision hereof shall be subject to acts of God, fires, strikes, riots, floods, war and other disasters beyond IdeaTek’s or the City’s control.
13.17 Agreement Applicable Only to the Facilities and Network. This Agreement shall not be construed to permit construction, installation, maintenance or use of any facilities in the ROW or on any property other than the Facilities and Network as defined and authorized herein.
13.18 No Abrogation of Legal Responsibilities. The Parties’ execution of this Agreement shall not abrogate, in any way, their respective responsibilities to comply with all permitting requirements or to comply with all Laws with respect to their performance of the activities permitted or obligations required under this Agreement.
13.19 Contractual Interpretation. In the interpretation and application of its rights under this Agreement, the City will act in a reasonable, non-discriminatory, and competitively neutral manner in compliance with all applicable federal, state, and local laws and regulations.
14.1 Repeal of Existing Franchise. Existing Ordinance No. 13-10712 is hereby repealed.
IDEATEK’S ACCEPTANCE; EFFECTIVE DATE
15.1 Acceptance of Terms. IdeaTek shall have thirty (30) days after the final passage and approval of this ordinance to file with the City Clerk its acceptance, in writing, of the provisions, terms and conditions of this ordinance, which acceptance shall be duly acknowledged before an officer authorized by law to administer oaths; and when so accepted, this ordinance and acceptance shall constitute a contract between the City and IdeaTek subject to the provisions of the laws of the state of Kansas, and such contract shall be deemed effective on the date of publication pursuant to Section 15.3 below.
15.2 Summary of Ordinance for Publication. Upon receipt of IdeaTek’s written acceptance of this ordinance, the City Clerk is directed to publish a summary of this ordinance in the Salina Journal in the following format:
Ordinance No. 14-10742 Summary
On August 18, 2014, the City of Salina, Kansas, passed Ordinance No. 14-10742. The ordinance amends and restates Ordinance No. 13-10712 to amend IdeaTek Telcom, LLC f/k/a Wildflower Telecommunications, LLC’s existing telecommunications franchise for purposes of additionally authorizing IdeaTek Telcom, LLC to construct, operate, and maintain a distributed antenna system and related facilities in the public right-of-way and prescribing the terms and conditions of such authorization. A complete copy of the ordinance is available at www.salina-ks.gov or in the office of the city clerk, 300 W. Ash Street, free of charge. This summary is certified by the city attorney.
15.3 Effective Date of Ordinance. This ordinance shall take effect and be in full force from and after its passage by the governing body, receipt of IdeaTek’s written acceptance of terms, and publication of a summary thereof in the official newspaper of the City.
Introduced: August 11, 2014
Adopted: August 18, 2014
Aaron K. Householter, Mayor
Shandi Wicks, CMC, City Clerk
Certification of Publication Summary:
Greg A. Bengtson, City Attorney