AGREEMENT
THIS AGREEMENT (the “Agreement”), made this _____ day of _____________ , 2007 (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. 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.
2. 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:
[ ] A portion of the space on Owner’s water tower located at 2100 Harper Street and designated by Owner as the area reserved for telecommunications and internet access point equipment (on the existing pod);
[ ] Space under or along Owner’s property sufficient for the installation and maintenance of utility lines and cables from the nearest public right of way to the Property, only as approved in writing by the Owner;
[ ] Non-exclusive access across Owner’s Property, for access, only as approved in writing by the Owner; and
[ ] Real property comprised of approximately 180 square feet and located in the fenced area reserved for telecommunications and internet access point equipment at the base of the tower.
Lawrence Freenet’s use of the property shall be subject to the specifications and location as generally shown and described on Exhibit A.
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 and the parties may negotiate the terms and conditions of an extension of the term.
3. CONSIDERATION. Lawrence Freenet shall pay the City rent annually in the amount of ten dollars ($10.00), commencing in 2007 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. As additional consideration, Lawrence Freenet agrees to provide its services during the term of this Agreement to the City of Lawrence, including its departments, at a free or reduced rate, if the City or any of its departments elects to sign up for Lawrence Freenet services.
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. INTERFERENCE. Lawrence Freenet warrants that its use of the Property will not interfere with any existing radio frequency users on the Property as long as the existing radio frequency users operate and continue to operate with the frequencies existing as of the date of this Agreement and in accordance with all applicable laws and regulations. If at any time during the term of this Agreement’s Lawrence Freenet’s use of the Property interferes with any existing radio frequency user’s operations, and after the City has notified Lawrence Freenet of such interference, Lawrence Freenet shall take all necessary actions to discontinue the interference. If the interference cannot be eliminated within three (3) days of notice thereof, Lawrence Freenet agrees to suspend operations (transmissions) at the site while the interference problems are studied and a means found to mitigate them. If said interference cannot be eliminated, then this Agreement will be terminated and Lawrence Freenet shall remove its building and equipment from the City’s property.
6. 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 interior of the water tank for the purpose of installing and maintaining its equipment, the authorized Lawrence Freenet representative shall call the Utilities Depart at 832. 7800 twenty-four (24) hours in advance of the installation or maintenance work. An employee of the City shall meet Lawrence Freenet’s authorized representatives at the site and provide them access to the interior of the water tank. Advance notice of less than 24 hours shall be permitted in the event of an emergency. For the purposes of this paragraph, an “emergency” shall mean an unforeseen circumstance or occurrence resulting in the failure of, or a substantial interference, with the internet access point. Access to the exterior of the tank and equipment building at the base of the tower shall be coordinated with the City Utilities Department. Access to the Sprint pod shall be in accordance with the terms of the Sprint/Nextel – Lawrence Freenet lease agreement.
7. 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.
8. 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.
9. 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.
10. 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 written notice of such termination. Further, 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 and provided Lawrence Freenet secures or retains consent from Sprint / Nextel or its successors and assigns to remain on the Sprint / Nextel pod, Lawrence Freenet and the City shall have thirty (30) days 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 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, the City shall cause the same to be removed and returned to Lawrence Freenet. Alternatively, if Lawrence Freenet fails to timely remove its personal property and trade fixtures, the City may pay the original purchase price of the personal property and trade fixtures and retain the property and trade fixtures.
11. QUARTERLY REPORTS DETAILING FREE AND OR REDUCED PRICED SERVICES. Lawrence Freenet agrees to submit to the City Manager not later than the 15th day of every quarter 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 these services at a free or reduced rate during the previous quarter and the amount of the discount these users are receiving.
Within fourteen (14) days of receipt of a written request by the City and upon execution of a non-disclosure agreement between the City and Lawrence Freenet, the City shall, at the City’s discretion, have the right to inspect the names and addresses of the users receiving service at a free or reduced rate.
12. 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.
13. 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.
14. 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 708
Lawrence, KS 66044 Lawrence, KS 6604
(785) 832-3400
(785) 832-3405 fax
15. LEASE AGREEMENT WITH SPRINT NEXTEL. At all times during the term of this Agreement, Lawrence Freenet shall secure and maintain authorization and/or consent from Sprint Spectrum and/or its successors and assigns to locate, install, and maintain its equipment on the Sprint Spectrum pod, including executing and operating under a Lease Agreement required by Sprint Spectrum. Upon the City’s request, Lawrence Freenet shall provide to the City documentation of its executed lease agreement(s) with Sprint Spectrum, including any amendments thereto.
16. 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.
17. ASSIGNMENT. Lawrence Freenet shall not transfer, assign, sublet, or pledge this Agreement without the prior written consent of the City.
18. GOVERNING LAW. This Agreement shall be construed and enforced in accordance with, and governed by, the laws of the State of Kansas.
19. SEVERABILITY. 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.
_________________________________
David L. Corliss, City Manager