ORDINANCE 8621
AN ORDINANCE GRANTING TO NEXTG NETWORKS OF ILLINOIS, INC. A NON EXCLUSIVE CONTRACT FRANCHISE AND THE RIGHT AND PRIVILEGE TO CONSTRUCT, OPERATE AND MAINTAIN A TELECOMMUNICATIONS SYSTEM IN THE PUBLIC RIGHT-OF-WAY OF THE CITY OF LAWRENCE, KANSAS PURSUANT TO K.S.A 12-2001 ET SEQ.
BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF LAWRENCE, KANSAS:
Section 1. Definitions. For purposes of this Ordinance, the following words and phrases shall have the meanings given herein:
a) "City" shall mean the City of Lawrence, Kansas;
b) “Contract Franchise” shall mean this ordiince granting the right privilege and franchise to Grantee to provide interexchange telecommunication services within the City.
c) “Grantee” shall mean NextG Networks of Illinois, Inc., an Interexchange Telecommunications carrier within the City holding a Certificate of Convenience and Authority from the State Corporation Commission of the State of Kansas under Docket #10-NXTC-769-COC to provide Telecommunications Services in the State of Kansas. References to grantee shall also include as appropriate any and all successors and assigns.
d) “Facilities" shall mean telephone and telecommunication lines, conduits, antenna, ducts, wires, cables, pipes, poles – including traffic signal and lighting, towers, vaults and appliances, and all equipment and appurtenances and improvements thereto, either under or above ground used to provide Telecommunications services.
e) "Public improvement" shall mean any existing or contemplated public facility, building or capital improvement project, including, without limitations, streets, alleys, sidewalks, sewer, water, drainage, right-of-way improvement and public projects.
f) "Public project" shall mean any project planned or undertaken by the City or any governmental entity for construction, reconstruction, maintenance or repair of public facilities or public improvements, or any other purpose of a public nature.
g) "Public right-of-way" shall mean 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, boulevards or bridges 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 non-wire telecommunications or broadcast service, easements obtained by utilities or private easements in platted subdivisions or tracts.
h) “Telecommunications carrier" means a corporation, company, individual, association of persons, their trustees, lessees or receivers that provides a telecommunications service, including, but not limited to, interexchange carriers and competitive access providers, but not including local exchange carriers certified before January 1, 1996.
i) "Telecommunications services" means providing the means of transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received, and including RF Transport Services as defined in Grantee’s Telecommunications Tariff on file with the Kansas Corporation Commission.
Section 2. Grant of Contract Franchise.
a) There is hereby granted to the Grantee the nonexclusive right, privilege and Contract franchise to construct, maintain, extend and operate its facilities, in through and along the rights-of-way for the purpose of supplying Telecommunications Services to the City and its inhabitants thereof for the full term of this Contract franchise; subject, however, to the terms and conditions herein set forth.
b) The grant of this Contract franchise by the City shall not convey title, equitable or legal, in the Public right-of-way, and shall give only the right to occupy the Public right-of-way, for the purposes and for the period stated in this Contract franchise. This Contract franchise does not:
(1) Grant the right to use Facilities or any other property, telecommunications related or otherwise, owned or controlled by the City or a third-party, without the consent of such party;
(2) Grant the authority to construct, maintain or operate any Facilities or related appurtenance on property owned by the City outside of the Public right-of-way, specifically including, but not limited to, parkland property, City Hall property or public works facility property. The parties agree that the City and the Grantee shall enter into a separate lease agreement for equipment or facilities on City owned property not in the Public right-of-way; or
(3) Excuse Grantee from obtaining appropriate access or attachment agreements before locating its Facilities on the Facilities owned or controlled by the City or a third-party.
c) As a condition of this grant, Grantee is required to obtain and is responsible for any necessary permit, license, certification, grant, registration or any other authorization required by any appropriate governmental entity, including, but not limited to, the City, the FCC or the Kansas Corporation Commission (KCC). Grantee shall also comply with all applicable laws, statutes and/or City regulations (including, but not limited to those relating to the construction and use of the Public right-of-way or other public property).
d) Grantee shall not provide any additional services for which a franchise is required by the City without first obtaining a separate franchise from the City or amending this Contract franchise, and Grantee shall not knowingly allow the use of its Facilities by any third party in violation of any federal, state or local law. In particular, this Contract franchise does not provide Grantee the right to provide cable service as a cable operator (as defined by 47 U.S.C. § 522 (5)) within the City. Grantee agrees that this Contract franchise does not permit it to operate an open video system without payment of fees permitted by 47 U.S.C. § 573(c)(2)(B) and without complying with FCC regulations promulgated pursuant to 47 U.S.C. § 573.
e) This authority to occupy the Public right-of-way shall be granted in a competitively neutral and nondiscriminatory basis and not in conflict with state or federal law.
f) Nothing herein contained shall be construed as giving Grantee any exclusive privileges.
g) Grantee or Grantee’s contractor shall, prior to commencing any construction on City owned municipal facilities in the Public right-of-way, post a payment bond assuring that the attachments of Grantee’s Facilities to City owned facilities in the Public right-of-way will be constructed without the attachment of any construction liens.
Section 3. Use of Right-of-Way. In the use of the right-of-way under this Contract franchise, the Grantee shall be subject to all rules, regulations, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City in the reasonable exercise of its police power and is subject to all applicable laws, statutes, ordinances, orders, rules and regulations adopted by the governmental bodies now or hereafter having jurisdiction. As a condition of this Contract franchise, Grantee is required to obtain and is responsible for any necessary permit, license, certification, grant, registration or any other authorization required by any appropriate governmental entity, including, but not limited to, the City, the Federal Communications Commission (FCC) or the Kansas Corporation Commission (KCC), subject to Grantee’s right to challenge in good faith such requirements as established by the FCC, KCC or other City Ordinance. In addition, the Grantee shall be subject to all rules, regulations, policies, resolutions and ordinances now or hereafter adopted or promulgated by the City relating to the use of the right-of-way, including but not limited to, permits, sidewalk and pavement cuts, utility location, construction coordination, beautification, tree care, and other requirements on the use of the right-of-way and shall comply with the following:
a) The Grantee’s use of the right-of-way shall in all matters be subject and subordinate to the City's use of the right-of-way for any public purposes and the public health, safety and welfare requirements and regulations of the City. The Grantee shall coordinate the placement of its facilities in a manner that minimizes adverse impact on public improvements, as reasonably determined by the City. Where placement is not otherwise regulated, the facilities shall be placed with adequate clearance from such public improvements so as not to impact or be impacted by such public improvement.
b) All earth, materials, sidewalks, paving, crossings, utilities, public improvements or improvements of any kind injured, damaged or removed by the Grantee in its activities under this Contract franchise shall be fully repaired or replaced within a reasonable time by the Grantee at its sole expense and to the reasonable satisfaction of the City and the Grantee.
c) The Grantee shall keep and maintain accurate records and as-built drawings depicting the accurate location of all facilities constructed, reconstructed, or relocated in the right-of-way after the date hereof and provide the above information to the City upon request. Where such information is available electronically, upon request from the City, Grantee agrees to provide such information in an electronic format. Such location and identification shall be at the sole expense of the Grantee, without expense to the City, its employees, agents, or authorized contractors.
City agrees to use information obtained pursuant to this subsection only to locate utility facilities in connection with municipal projects and further agrees not to disclose such information to anyone other than City employees requiring such information to locate utility facilities in connection with municipal projects, except as required by law. Grantee and the City agree that such information is confidential and proprietary and agree that such information shall remain the sole property of the Investor owned utility and agree that pursuant to the Kansas Open Records Act, K.S.A. 45-215 et seq., as amended, such information does not constitute public records subject to K.S.A. 45-218, as amended. In the event that the City is required by law to disclose such information, the City shall provide the Grantee advance notice of its intended disclosure of such information and shall take such action as may be reasonably required to cooperate with the Grantee to safeguard such information.
The Grantee agrees to indemnify and hold the City harmless from any and all penalties or costs, including attorney’s fees, arising from the actions of the Grantee, or of the City at the written request of the Grantee, in seeking to safeguard the confidentiality of information provided by the Grantee to the City under this section.
In the event such information is required by force of law to be publicly disclosed, the Grantee shall have no further obligation under this section to provide the City with such information. Such facilities shall be horizontally and vertically located at least every 100 feet and at any other alignment change.
All points of facilities shall be horizontally located from street centerline or section or quarter section lines or corners. Vertical locations or all points of facilities shall consist of elevations in either City datum or United States Geological Survey datum.
d) Except in cases of an emergency, a minimum of fourteen (14) days prior to construction, reconstruction or relocation of any facilities in the right-of-way, the Grantee shall submit to the City Engineer, or her or his designee, for approval, plans and specifications of the proposed installation. Such approval shall not be unreasonably withheld, delayed or conditioned. City review shall only concern matters related to the interest of the City as set forth in City ordinances.
e) The Grantee shall cooperate promptly and fully with the City and take all measures necessary to provide accurate and complete information regarding the nature and locations, both horizontal and vertical, of its facilities located within right-of-way when requested by the City or its authorized agents for a public project. Such location and identification shall be at the sole expense of the Grantee, without expense to the City, its employees, agents, or authorized contractors. The Grantee shall designate an agent to provide the City with timely information when required by City ordinance.
f) As reasonably necessary, the Grantee shall relocate or adjust any Facilities located in the Right-of-way for a Public project upon 45-days written notice. Such relocation or adjustment shall be performed by the Grantee at its sole expense, without expense to the City, its employees, agents, or authorized contractors and shall be specifically subject to the rules and regulations of the City not inconsistent with this Contract franchise pertaining to such.
g) It shall be the sole responsibility of the Grantee to take adequate measures to protect and defend its facilities in the right-of-way from harm and damage. If the Grantee fails to accurately or timely locate facilities when requested, the Grantee has no claim for costs or damages against the City and its authorized contractors or any other party authorized to be in the right-of-way, except to the extent such harm or damage is caused by such party's negligent or intentional conduct. City and its authorized contractors agree to take reasonable precautionary measures, including, but not limited to, calling for utility locations and observing marker posts, when working near Grantee facilities.
h) Except in the event of an emergency, the Grantee shall notify the City not less than ten (10) days in advance of any construction, reconstruction, repair or relocation of facilities which would require any street closure which reduces traffic flow to less than two lanes of moving traffic. The City shall follow its policies in the grant or denial of such authority, which shall not be unreasonably delayed. Except in the event of an emergency, no such closure shall take place without such notice and prior authorization from the City.
In addition, all work performed in the traveled way or which in any way impacts vehicular or pedestrian traffic shall be properly signed, barricaded, and otherwise protected. For all work within the right-of-way, the Grantee shall erect and maintain signs and other devices as required by City ordinances, regulations and rules.
i) All technical standards governing construction, reconstruction, installation, operation, testing use, maintenance, and dismantling of the facilities in the right-of-way shall be in accordance with applicable present and future federal, state and City law and regulations.
j) The city shall have the authority to prohibit the Grantee’s use or occupation of a specific portion of Public right-of-way that is environmentally sensitive as defined by state or federal law or lies within a previously designated historic district as defined by local, state or federal law.
k) Signs/Graffiti. Grantee shall not place signs or advertising signs, except safety-related signage, on their Facilities or appurtenances thereto or in the Public right-of-way. Grantee shall remove graffiti, if any, every 90 days. City may, upon 30 days prior written notice to Grantee, undertake any activities necessary to abate or remove graffiti located therein which has not been removed within said 90 day period. Grantee shall reimburse City all costs incurred by City in connection with such abatement or removal within 30 days of the City presenting Grantee with a statement of such costs.
Section 4. Street Tree Ordinance. The Grantee shall comply with the provisions of the Street Tree Ordinance (Chapter 18, Article 1, of the Code of the City of Lawrence, Kansas) and amendments thereto, in the care, pruning, trimming, and removing of trees located in or on the City right-of-way.
Section 5. Location of Underground Equipment and Facilities. The Grantee’s equipment shall be placed underground as required by City ordinances, including Chapter 5, Article 19 of the Code of the City of Lawrence, and amendments thereto. Consistent with Section 5-1904 (B)(iii) of the Code of the City of Lawrence, Kansas 2011 Edition, and amendments thereto, Grantee’s antennas and support structures shall be exempt from this requirement. Where underground construction is made, the equipment and any necessary trenching shall be installed and maintained or provided by the Grantee in accordance with the ordinances of the City without expense to the City. Nothing in this Contract franchise prevents the Grantee from co-locating on existing above-ground facilities with the owner’s permission.
Section 6. Compensation to the City. In consideration for the grant of this Contract franchise, the Grantee agrees to pay and the City agrees to accept as adequate compensation and consideration for the Contract franchise hereby granted the following fees as defined herein:
a) Quarterly Franchise Fee. The Grantee shall on a quarterly basis, pay the City an amount equal to 5.0 percent (5%) of its gross receipts as defined herein. For the purpose of this Ordinance, “Gross receipts” means only those receipts collected from within the corporate boundaries of the City of Lawrence, Kansas and which are derived by Grantee from or in connection with the provision of interexchange services either directly by Grantee or indirectly through a reseller or others which use Grantee’s Facilities, if any.
Gross receipts shall be reduced by bad debt expenses. Uncollectible and late charges shall not be included within gross receipts. If Grantee offers additional services of a wholly local nature which if in existence on or before July 1, 2002, would have been included with the definition of gross receipts, such services shall be included from the date of the offering of such services in the City.
b) Attachment Fee for Street Light or Traffic Signal Poles or Lighting fixtures in the Public Right-of-Way. In addition to the quarterly fee described in Section 6(a), the Grantee shall pay the City an additional fee (the “Municipal Facilities Fee”) for the right to attach Grantee Facilities to City owned street light or traffic signal poles and lighting fixtures in the Public right-of-way. The amount of the Municipal Facilities Fee shall be $500.00 per year for each attachment to a street light pole, traffic signal pole or lighting fixture in the Public right-of-way.On or before December 31st of each year, Grantee shall submit payment along with a list identified by location of each City-owned street light or traffic signal poles and light fixtures in the public right of way to which Grantee has attached Grantee’s facilities.
c) Grantee shall pay City for the actual cost of the City’s inspection of the attachment to the City municipal facility and the cost to repair or replace the municipal facility as required by the City. Subject to the provisions of Section 7 below, the Grantee shall not be required to pay any Municipal Facilities Fee for equipment attached to (i.e. “co-located” upon) third-party facilities that are owned by or other parties or entities and are legally allowed in the Public right-of-way.
d) If during the term of this ordinance Grantee offers additional services which if in existence at the effective date of this ordinance would have been included with the definition of “Gross Revenues” such services shall be included within “Gross Revenues” from the date of the offering of such services in City for the remaining term of the ordinance.
e) The franchise fee shall be paid quarterly, by electronic transfer to the City of Lawrence, Kansas, or other method approved by the City and Grantee, for the preceding quarterly period. Concurrent with submission of the quarterly payment, the Grantee shall also submit a report in substantially the same form as Attachment A to this ordinance which shall detail revenues from specific sources. The Grantee shall pay the applicable fee to the City within forty-five (45) days of the last day of the applicable quarter for which a fee payment is due and owing. Payments received after the due date shall be subject to a late payment charge of one and one-half percent (1 ½ %) per month. Payments due and owing as the result of an audit of franchise fee payments shall be subject to a late payment charge of one and one-half percent (1 ½ %) per month; provided such late payment charges shall 1) begin to accrue forty-five (45) days after notice is mailed to the Grantee; and 2) the late payment charge shall only apply to audit generated payments agreed to by the City and the Grantee.
Section 7. Sharing of Space. The City encourages the conservation of Public right-of-way by the sharing of space by all utilities. To the extent required by federal or state law, the Grantee shall permit any franchised entity by appropriate contract or agreement negotiated by the parties to use any and all Facilities constructed or erected by the Grantee. All agreements and installations shall be subject to all existing and future Ordinances and regulations of the City. Grantee agrees that it will not grant any entity rights to occupy the right-of-way without providing notice to the City.
Section 8. Technical Requirements. The interexchange telecommunications services provided hereunder shall at all times be operated and updated, as needed, so that at a minimum, it is conformance with all applicable and current federal, state and local technical specifications and standards, including but not limited to, technical specifications contained in FCC rules and regulations, or any other applicable law which may supersede such rules. As a supplement to the technical standards, the Grantee shall operate the system in a manner to provide to all subscribers signals of consistently good quality.
Section 9. Service Standards. The Grantee shall provide service standards which comply, at a minimum, with interexchange service standards required by the State and the FCC.
Section 10. Access to Information and City Audit regarding Grantee Equipment, Facilities and Revenues. At the request of a municipality, no more than once per year, the municipality may perform a reasonable audit of the Grantee's calculation of the Grantee fee.
Section 11. Attachment to Poles. Nothing in this Contract franchise shall be construed to require or permit any telephone, telecommunications, antenna, equipment, electric light, power wire attachments or other related appurtenances by either the City or the Grantee on the poles of the other. If such attachments are desired by the City or the Grantee, a separate agreement shall be prerequisite to such attachments. Grantee shall not install, construct or erect poles or other above-ground facilities without the City’s prior approval. Such approval shall not be unreasonably withheld.
Section 12. Indemnification and Hold-Harmless. The Grantee, its successors and assigns, shall indemnify and hold the City and its officers and employees harmless against any and all claims, lawsuits, judgments, costs, liens, losses, expenses, fees (including reasonable attorney fees and costs of defense), proceedings, actions, demands, causes of action, liability and suits of any kind and nature, including personal or bodily injury (including death), property damage or other harm for which recovery of damages is sought, to the extent that it is found by a court of competent jurisdiction to be caused by the negligence of Grantee, any agent, officer, director, representative, employee, affiliate or subcontractor of Grantee, or its respective officers, agents, employees, directors or representatives, while installing, repairing or maintaining Facilities in the Public right-of-way but excluding such claims or liabilities arising from the negligence or willful misconduct of the City, its officers, agents, contractors or employees, who are directly responsible to the City. This indemnity provision shall extend beyond the termination or expiration of this Contract franchise.
Grantee shall promptly advise the other in writing of any known claim or demand against Grantee or the City related to or arising out of Grantee’s activities in the Public right-of-way.
Section 13. Transfer and Assignment. Pursuant to the written permission of the City, which shall not be unreasonably withheld, Grantee shall have the right to assign this franchise, and the rights and privileges herein granted, to any person, firm or corporation, and any such assignee, by accepting such assignment, shall be bound by the terms and provisions hereof. If the Grantee should seek approval to assign this Contract franchise, the Grantee shall notify the City in writing. All such assignments shall be in writing and authenticated copies thereof shall be filed with the City Clerk. This Contract franchise shall be assignable only in accordance with the laws of the State of Kansas, as the same may exist at the time when any assignment is made.
This prohibition shall not apply in the case of sale, assignment, transfer or lease by the Grantee to an affiliated interest, nor shall it apply to assignments made or security interests granted in order to secure financing. The grantee shall, however, provide at least thirty days advance notice of such affiliate transfer, assignment or sale. The City shall have discretion to review the financial, technical and operational qualifications of any entity acquiring this Contract franchise or any of the Grantee’s facilities or equipment in the Public right-of-way.
Section 14. Conditions of Contract franchise. This contract, franchise, grant and privilege is granted and accepted under and subject to all applicable laws and under and subject to all of the orders, rules and regulations now or hereafter adopted by governmental bodies now or hereafter having jurisdiction, each and every provision hereof shall be subject to Acts of God, fires, strikes, riots, floods, war and other causes beyond the Grantee’s control. This Contract franchise shall not be exclusive.
Section 15. Other Franchises or Agreements. Grantee agrees that the City may grant to other Grantees one or more franchises or agreements to provide telecommunications interexchange services.
Section 16. Notice to Parties and Point of Contact. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed given if personally delivered or mailed, certified mail, return receipt requested or by a recognized overnight delivery service, to the following addresses:
If to City, to:
City of Lawrence, Kansas
Attn: City Clerk
6 East 6th / P.O. Box 708
Lawrence, KS 66044
With a copy to:
Attn: Director of the Legal Department
Toni R. Wheeler
6 East 6th
P.O. Box 708
Lawrence, KS 66044
If to Grantee, to:
NextG Networks of Illinois, Inc.
Contracts Manager
890 Tasman Drive
Milpitas, CA 95035
contracts@nextgnetworks.net
Any such notice shall be deemed effective upon actual receipt or refusal as shown on the receipt obtained pursuant to the foregoing.
Section 17. Term and Termination Date.
a) This Contract franchise shall be effective for a term of five (5) years from the effective date of this Contract franchise ordinance. Thereafter, this Contract franchise will renew for one (1) additional five (5) year term, unless either party notifies the other party of its intent to terminate or renegotiate the Contract franchise at least one hundred and eighty (180) days before the termination of the then current term. The additional term shall be deemed a continuation of this Contract franchise and not as a new Contract franchise or amendment.
b) Upon written request of either the City or Grantee, this Contract franchise shall be renegotiated at any time in accordance with the requirements of state law upon any of the following events: changes in federal, state, or local laws, regulations, or orders that materially affect any rights or obligations of either the City or Grantee, including but not limited to the scope of the Contract franchise granted to Grantee or the compensation to be received by the City hereunder.
c) If any clause, sentence, section, or provision of K.S.A. 12-2001 et seq., and amendments thereto, shall be held to be invalid by a court or administrative agency of competent jurisdiction, provided such order is not stayed, either the City or Grantee may elect to terminate the entire Contract franchise. In the event of such invalidity, if Grantee is required by law to enter into a Contract franchise with the City, the parties agree to act in good faith in promptly negotiating a new Contract franchise.
d) Amendments under this Section, if any, shall be made by Contract franchise ordinance as prescribed by statute. This Contract franchise shall remain in effect according to its terms, pending completion of any review or renegotiation provided by this section.
e) In the event the parties are actively negotiating in good faith a new Contract franchise ordinance or an amendment to this Contract franchise upon the termination date of this Contract franchise, the parties by written mutual agreement may extend the termination date of this Contract franchise to allow for further negotiations. Such extension period shall be deemed a continuation of this Contract franchise and not as a new Contract franchise ordinance or amendment.
Section 18. Insurance Requirement and Performance Bond.
a) During the term of this Contract franchise, Grantee shall obtain and maintain insurance coverage at its sole expense, with financially reputable insurers that are licensed to do business in the State of Kansas. Should Grantee elect to use the services of an affiliated captive insurance company for this purpose, Grantee shall possess a certificate of authority from the Kansas Insurance Commissioner. Grantee shall provide not less than the following insurance:
(1) Workers’ compensation as provided for under any worker’s compensation or similar law in the jurisdiction where any work is performed with an employers’ liability limit equal to the amount required by law.
(2) Commercial general liability, including coverage for contractual liability and products completed operations liability on an occurrence basis and not a claims made basis, with a limit of not less than One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury, and property damage liability. The City shall be included as an additional insured with respect to liability arising from Grantee’s operations under this Contract franchise.
b) As an alternative to the requirements of subsection (a), Grantee may demonstrate to the satisfaction of the City that it is self-insured and as such Grantee has the ability to provide coverage in an amount not less than One Million Dollars ($1,000,000) per occurrence and Two Million Dollars ($2,000,000) in aggregate, to protect the City from and against all claims by any person whatsoever for loss or damage from personal injury, bodily injury, death or property damage occasioned by Grantee, or alleged to so have been caused or occurred.
c) Grantee shall, as a material condition of this Contract franchise, prior to the commencement of any work, deliver to the City a certificate of insurance or evidence of self-insurance evidencing that the above insurance is in force and will not be cancelled or materially changed with respect to areas and entities covered without first giving the City thirty (30) days prior written notice. Grantee shall make available to the City on request the policy declarations page and a certified copy of the policy in effect, so that limitations and exclusions can be evaluated for appropriateness of overall coverage.
d) Grantee shall as a material condition of this Contract franchise, prior to the commencement of any work, deliver to the City satisfactory evidence of a performance bond in the amount of $20,000 payable to the City. The bond shall be used to ensure the appropriate and timely performance in the construction and maintenance of Facilities located in the Public right-of-way and must be issued by a surety company authorized to transact business in the State of Kansas and satisfactory to the City Attorney in form and substance. Bond shall remain in effect the entire term of this contract to ensure the ongoing performance of the terms and obligations of the franchise as well as any future phases of construction and/or repair work. Notwithstanding the foregoing sentence, the City reserves the right to require Grantee to provide additional financial assurance for future phases of construction and/or repair work, as reasonably determined by the City.
Section 19. Hazardous Substances. Grantee represents and warrants that its use of the Public right-of-way will not generate any hazardous substance, and it will not store or dispose on the Public right-of-way nor transport to or over the Public right-of-way any hazardous substance in violation of applicable laws. Grantee further agrees to hold City harmless from and indemnify City and its agents, officers and employees against Grantee’s release of any such hazardous substance and any damage, loss, or expense or liability directly resulting from such release including all reasonable attorneys’ fees, costs and penalties incurred as a result thereof except any release caused by the negligence of City, it employees or agents. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time; and it shall be interpreted to include, but not limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease.
Section 20. Attachment of Antennas, Construction Ground Equipment Improvements and Interference.
a) Grantee warrants that its use of the Public right-of-way will not interfere with any existing radio frequency users on the Public right-of-way as long as the existing radio frequency users operate and continue to operate within the frequencies existing as of the date of this Contract franchise and in accordance with all applicable laws and regulations. If at any time during the term of this Contract franchise, Grantee's use of the Public right-of-way interferes with any existing radio frequency user's operations, and after City has notified Grantee of such interference, Grantee shall take all necessary actions to discontinue the interference. Grantee's use of the Public right-of-way shall in all matters be subordinate to the City's and/or any governmental entity's use of the Public right-of-way for any public purposes. Grantee shall relocate or adjust its facilities, equipment, antenna 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 Public right-of-way for public purposes; provided, however, in the event City requires such relocation or adjustment more than one (1) time during the term of this Contract franchise or if such relocation or adjustment impairs Grantee’s ability to use the Public right-of-way Grantee shall have the option to instead terminate this Contract franchise effective as of the date such relocation or adjustment was to have taken effect. Any relocation or adjustment shall be at the sole cost and expense of the Grantee.
b) If any interference with City's or any other governmental entity's use cannot be eliminated within three (3) days of written notice thereof, Grantee agrees to suspend operations (transmissions) at the site while the interference problems are studied and a means is found to mitigate them. If said interference cannot be eliminated, then this Contract franchise will be terminated, and Grantee shall remove its building and equipment from City's Public right-of-way.
c) City shall cause all subsequent users of the Public right-of-way to first coordinate with Grantee to ensure that their frequencies and antenna locations will be compatible with Grantee's.
Section 21. Rights and Duties of Grantee upon Expiration of Ordinance. Upon expiration of this Ordinance, whether by lapse of time, by agreement between the Grantee and the City, or by forfeiture thereof, the Grantee shall have the right to remove from public property and all of its facilities used in its business within reasonable time after such expiration or forfeiture, but in such event, it shall be the duty of the Grantee immediately upon such removal, to restore the right-of-way from which said facilities are removed to as good condition as the same were before said removal was effected without cost to the City.
Section 22. Termination or Forfeiture of Contract franchise.
a) In case of failure on the part of the Grantee, its successors and assigns, to comply with any of the provisions of this ordinance, or if the Grantee, its successors and assigns, should do or cause to be done any act or thing prohibited by or in violation of the terms of this ordinance, the Grantee, its successors and assigns, shall forfeit all rights and privileges granted by this ordinance and all rights hereunder shall cease, terminate and become null and void, provided that said forfeiture shall not take effect until the City of Lawrence shall carry out the following proceedings.
b) Before the City of Lawrence proceeds to forfeit said Contract franchise, as in this section prescribed, it shall first serve a written notice as provided by the Notice provisions of this ordinance, setting forth in detail the conditions of neglect, default or failure complained of, and the Grantee shall have ninety (90) days after the mailing of such notice in which to comply with the conditions of this Contract franchise. If at the end of such ninety (90) day period the City of Lawrence deems that the conditions of such Contract franchise have not been complied with by the Grantee and that such Contract franchise is subject to cancellation by reason thereof, the City of Lawrence, in order to terminate such Contract franchise shall enact an ordinance setting out the grounds upon which said Contract franchise is to be canceled and terminated. If within thirty (30) days after the effective date of said ordinance the Grantee shall not have instituted an action in the District Court of Douglas County, Kansas to determine whether or not the Grantee has violated the terms of this Contract franchise and that the Contract franchise is subject to cancellation by reason thereof, such Contract franchise shall be canceled and terminated at the end of such thirty-day period.
c) If within such thirty (30) day period the Grantee does institute an action, as above provided, to determine whether or not the Grantee has violated the terms of this Contract franchise and that the Contract franchise is subject to cancellation by reason thereof and prosecutes such action to final judgment with due diligence, then, in that event in case the court finds that the Contract franchise is subject to cancellation by reason of the violation of its terms, this Contract franchise shall terminate thirty (30) days after such final judgment is rendered and available appeals exhausted.
Section 23. Failure to Enforce. The failure of either the City or the Grantee to insist in any one or more instances upon the strict performance of any one or more of the terms or provisions of this Contract franchise shall not be construed as a waiver or relinquishment for the future of any such term or provision, and the same shall continue in full force and effect. No waiver or relinquishment shall be deemed to have been made by the City or the Grantee unless said waiver or relinquishment is in writing and signed by both the City and the Grantee.
Section 24. Utilities. Payment for electric service and for telephone or other utility services used or consumed by the Grantee shall be Grantee’s responsibility. Grantee shall install a separate meter to record Grantee’s electrical and other utility charges associated with the use of the Public right-of-way and shall timely pay all costs associated therewith.
Section 25. Effectiveness. This ordinance shall become effective and be in force and shall be a binding contract between the Grantee and the City of Lawrence, Kansas, their successors and assigns, from and after the following: 1) the ordinance has been approved by the Grantee in writing pursuant to Section 26 and 2) the passage and publication of this ordinance as required by law.
Section 26. Grantee Acceptance. The Grantee shall, within sixty (60) days, after the publication of this ordinance, file with the City Clerk its written acceptance of all the terms, conditions, and provisions of this ordinance, and in case its failure so to do, this Ordinance shall be null and void. The acceptance of this Ordinance, shall be in writing, and shall be duly acknowledged before some officer authorized by law to administer oaths; and when so accepted the ordinance and acceptance shall constitute a contract between the City and the Grantee subject to the provisions of the laws of the State of Kansas.
Section 27. Severability. If any provision, section or subsection of this Contract franchise or the application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions, sections, or subsections or applications of this Contract franchise which can be given effect without the invalid provision, section or subsection or application, and to this end the provisions, sections, and subsections of this Contract franchise are declared to be severable.
Passed by the Governing Body of the City of Lawrence, Kansas this _____ day of_______________, 2011.
APPROVED:
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Aron E. Cromwell, Mayor
ATTEST:
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Jonathan M. Douglass, City Clerk
APPROVED AS TO FORM AND LEGALITY:
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Toni R. Wheeler, Director of the Legal Department
Publish one time and return one Proof of Publication to the City Clerk and one to the Director of Legal Services.
ACCEPTED:
Robert L. Delsman, General Counsel and Senior VP