AGREEMENT
THIS AGREEMENT (the “Agreement”), made this _____ day of _____________ , 2006 (the “Effective date”) by the City of Lawrence, Kansas, a municipal corporation (the “City”), and Lawrence Freenet, Inc., (“Lawrence Freenet”) a Kansas, not-for-profit corporation.
1. The City is the owner of property interests located in the City of Lawrence, Douglas County, Kansas, including, but not limited to Street Rights-of-Way (ROW), park property, City of Lawrence Utility Department structures and facilities – including water towers, City of Lawrence buildings, traffic light poles, other traffic control devices, and other property interests.
2. Lawrence Freenet, Inc. is a not-for-profit Kansas corporation formed for the purpose of providing free internet access to Kansas communities. To that end, Lawrence Freenet, Inc. wishes to access various City Properties, to locate, mount, and maintain transmitter units in various locations in the City of Lawrence, to provide free internet access to Lawrence residents.
3. On August 16, 2005, the Lawrence City Commission stated its support for Freenet’s goal of increasing internet access for the Lawrence community. On the City Commission directed and authorized the preparation of an agreement between the City of Lawrence and Lawrence Freenet to use certain City Property as authorized by this Agreement and approved by City staff, for the installation of equipment, transmitters and antennas to provide free internet access to Lawrence residents.
4. Accordingly, Lawrence Freenet has requested permission from the City to place equipment, transmitters and antennas, on portions of City Property described below, and the City has agreed to provide a license to Lawrence Freenet, Inc., for such purpose, all in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein, the parties hereby agree as follows:
1. PROPERTY. The City hereby grants to Lawrence Freenet, the privilege to use the following:
[ ] Space on the of the roof City Hall located at 6 East 6th Street, Lawrence, Kansas and legally described as:
RHODE ISLAND STREET LTS 7,9 & 11; ALSO LEVEE LTS 19 & 20 & VAC PORTION OF PINCKNEY ST (6TH ST) DESC AS: BEG AT NW COR LEVEE LT 16 TH SELY ALONG S LINE PINCKNEY ST (6TH ST) TO NE COR LEVEE LT 23 TH N01DEG45'E ON ELINE LT 23 EXTENDED 39.1 FT THN 32 DEG 31'E 23 FT TO N R/W LINE PINCKNEY ST TH NWLY ALONG N LINE PINCKNEY ST TO PT OF INTERSEC WITH E LINE NEW HAMPSHIRE ST EXTENDED N & TH S TO PT BEG, ORDER OF VACATION 11/01/1988 BK 425/1959, LESS THAT PORTION VAC PINCKNEY ST (6TH ST) ADJ TO LEVEE LTS 21,22, & 23 D 641/845;ALSO PART LEVEE LT 24 DESC AS:BEG AT NW COR SD LT TH N ON W LINE SD LT 24 EXTENDED N 31.83 FT TO CL PINCKNEY ST (6TH ST) VAC TH SELY ON SD CL 10.63 FT TH SWLY 30 FT NORMAL TO SD CL TO PT BEG; ALSO THAT PART OF FOLLOWING DESC TR S OF AT&SF RR:LEVEE SHOWN ON ORIGINAL PLATOF THE CITY OF LAWRENCE AS AREA BOUNDED ON N BY KS RIV ON S BY PINCKNEY (6TH ST) ON W BY RE #7 & ON E BY RE #8,LESS PARTKNOWN AS ROBINSON PARK (DIV 1999 U02396-06B)
sufficient for the installation and maintenance of equipment, transmitters and antennas to provide free internet access to the Lawrence community.
This Agreement is subject to the specifications as shown and described in Exhibit A, attached hereto and incorporated herein by reference.
Nothing this Agreement shall be interpreted to give Lawrence Freenet authority to install equipment on any other city property not specifically described herein without prior approval of City staff.
2. TERM. The term of this Agreement shall be five (5) years commencing on the first day of the month following the date this Agreement is executed by the parties. By mutual consent of the City and Lawrence Freenet, this Agreement may be extended. Lawrence Freenet shall notify the City in writing at least 180 days in advance of the date the agreement expires of its desire to extend the Agreement.
3. CONSIDERATION. Lawrence Freenet shall pay the City rent annually in the amount of ten dollars ($10.00), commencing in 2006 and shall provide internet service at a free or reduced rate to the community of Lawrence, Kansas, generally in accordance with the schedule attached hereto as Exhibit B and incorporated herein by reference.
4. USE. Lawrence Freenet may use the City’s property for the installation, maintenance, and operation of equipment as described in Exhibit A for a Freenet Access Point. Modifications to the equipment or the operation shall require prior City approval. Lawrence Freenet shall be solely responsible for installing, maintaining, operating and repairing its equipment on the City property. Lawrence Freenet shall comply with all applicable federal, state, and local laws, rules, statutes, and regulations relating to its use of the Property. It is understood and agreed that Lawrence Freenet’s use shall in all matters be subordinate to the City’s and/or any governmental entity’s use of the Property for any public purpose. Lawrence Freenet shall relocate or adjust its equipment or adjust its operations to accommodate the City’s use within a reasonable time when such relocation or adjustment is requested by the City to accommodate the City’s use, or any governmental entity’s use of the Property for public purposes.
5. ACCESS TO PROPERTY. The City shall provide authorized Lawrence Freenet representatives with access to the Property in accordance with the procedures outlined in this Paragraph, for the purpose of installing and maintaining Lawrence Freenet’s equipment. For the purposes of this Agreement, “authorized Lawrence Freenet representatives” shall mean persons covered by Lawrence Freenet’s general liability insurance policy in effect during the term of the Agreement. It is agreed that only authorized Lawrence Freenet representatives who are covered by Lawrence Freenet’s general liability insurance policy shall be permitted to enter said premises. To obtain access to the Property during regular City of Lawrence business hours (Monday through Friday, 8:00 a.m. to 5:00 p.m.), Lawrence Freenet’s authorized representatives shall check in with the Public Works Department, located on the ground floor of City Hall. An employee of the City shall provide Lawrence Freenet's authorized representative(s) access to the roof of City Hall. After regular City of Lawrence business hours, on weekends, and on City of Lawrence holidays, authorized Freenet representative(s) may obtain access to City Hall only in the event of an emergency by calling the Buildings and Structures Manager’s (hereinafter the “Manager”) mobile telephone number. The Manager, or his or her designee, shall provide Lawrence Freenet’s representative(s) with access to the roof of City Hall. For the purposes of this paragraph, an “emergency” shall be defined as an unforeseen circumstance resulting in the failure of, or substantial interference with, the Internet Access Point.
6. INSURANCE REQUIREMENTS. Lawrence Freenet shall procure and maintain at all times this Agreement is in effect, general liability insurance for Freenet Access Point sites and equipment, with the City of Lawrence named as an additional insured party, in the amount of $1,000,000 for each occurrence, $1,000,000 of coverage for personal injury and $2,000,000 general aggregate coverage and $300,000 coverage for damage to City property at Freenet Access Points.
7. PRESERVATION OF CITY PROPERTY AND FACILITIES. Lawrence Freenet shall refrain from causing any waste, damage, or injury to City property. Lawrence Freenet shall further refrain from using in the installation, maintenance, or repair of its equipment any materials that may cause corrosion, rust or deterioration of City Hall and appurtenances thereto.
8. INDEMNIFICATION OF THE CITY. During the time this Agreement is in effect, Lawrence Freenet agrees to indemnify, defend, and save the City, and the City’s officers, commissioners, agents, employees, grantees, and assigns, harmless from and against all claims, actions, liabilities, damages, costs, expenses, and judgments, including attorneys’ fees, which relate to, arise from, or are in connection with Lawrence Freenet’s use or occupancy of City Property described herein, on account of any injury to persons or damage to property, excluding therefrom such injury or damage caused by the negligence of the City.
9. TERMINATION. The City and Lawrence Freenet each reserve the right to terminate the permission granted by this Agreement at any time and for any reason by giving the other party at least one year written notice of such termination.
If in the judgment of the City Commission, the service provided by Lawrence Freenet is not a significant value to the community of Lawrence, the City reserves the right to terminate the permission granted by this Agreement at any time. Upon termination of the agreement, Lawrence Freenet and the City shall have thirty (30) days from the date Lawrence Freenet received notice of the termination to enter into a leasing agreement under reasonable commercial terms. Should the City and Lawrence Freenet fail to reach a reasonable agreement within thirty (30) days of Lawrence Freenet receiving notice of the termination, Lawrence Freenet shall remove all personal property and trade fixtures within a reasonable period of time not to exceed sixty (60) days from receipt of the notice of termination.
If Lawrence Freenet fails to timely remove its personal property and trade fixtures upon termination of the Agreement, the City shall cause the same to be removed.
10. QUARTERLY REPORTS DETAILING FREE AND OR REDUCED PRICED SERVICES. Lawrence Freenet agrees to submit to the City Manager on a quarterly basis so long as this Agreement is in effect, a document showing the total number of users served by Lawrence Freenet the previous quarter, the total number of users receiving Lawrence Freenet services at a free or reduced rate during the previous quarter, and the amount of the discount these users received or are receiving.
Within fourteen (14) days of receipt of a written request by the City, the City shall have access to, and the right to inspect the names and addresses of the Lawrence Freenet users receiving service at a free or reduced rate.
11. ANNUAL REPORTING REQUIREMENTS. Lawrence Freenet agrees to provide copies of the following to the City Manager on or before March 31st of each year:
a. IRS Form 990 (copy of Federal Tax Return);
b. Corporate annual report filed with the Kansas Secretary of State;
c. Lawrence Freenet’s financial statement for the previous year; and
d. The Agency’s annual report.
12. DEFAULT. Upon Lawrence Freenet’s failure to perform any of the terms or conditions of this Agreement, the City shall be entitled to give notice of default. Lawrence Freenet shall have ten (10) days from the date of receipt of the notice to cure the default. The City may, if such default continues, terminate this Agreement without further notice. If Lawrence Freenet causes a health or safety hazard on the property governed by this Agreement, the City may immediately, without notice, suspend all access to the property governed by this Agreement, and the City Commission, with appropriate notice to Lawrence Freenet, shall have the unilateral authority to terminate this Agreement upon a finding that the health or safety hazard is continuing or is likely to continue.
13. NOTICE. Notice under this Agreement, including denials or revocation or alteration of site specific approvals, Notice to remove equipment and any other Notice shall be provided in writing to the parties hereto as follows:
Notice to the City: Notice to the Freenet:
City Manager’s Office Lawrence Freenet, Inc.
4th floor, City Hall P.O. Box 3532
P.O. Box 708 3401 W. 28th St.
Lawrence, KS 66044 Lawrence, KS 66046
(785) 832-3400
(785) 832-3405 fax
14. UTILITIES. The City, at its discretion, may require Lawrence Freenet to pay for electric, telephone and other utility services used or consumed by Lawrence Freenet on the City’s Property.
15. ASSIGNMENT. Lawrence Freenet shall not transfer, assign, sublet, or pledge this Agreement without the prior written consent of the City.
16. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of Kansas.
17. If any term of this Agreement is found to be void or invalid, such validity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect.
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the Effective Date.
_______________________________
Lawrence Freenet, Inc.
_________________________________
Mike Wildgen, City Manager