MEMORANDUM OF UNDERSTANDING
"Fiber Optic Network Agreement"
THIS MEMORANDUM OF UNDERSTANDING is made this ____ day of March, 2013, by and between the City of Lawrence, Kansas, a municipal corporation, and the University of Kansas, a State institution of higher education.
RECITALS
A. The City of Lawrence, Douglas County, Kansas (“the City”), owns a fiber optic network in Lawrence, Kansas, and seeks to enhance that network;
B. The University of Kansas ("KU") owns a fiber optic network in Lawrence, Kansas, and seeks to enhance that network;
C. The City and KU agree that by working together and by sharing certain aspects of their fiber optic networks that they can enhance their respective networks, improve telecommunications, and save costs by avoiding the unnecessary duplication of efforts;
D. To achieve those goals, the City and KU have reached a general understanding, memorialized herein, that, where possible, they will agree to join forces, work together, and share certain aspects of their fiber optic networks;
E. The parties agree that this Memorandum of Understanding will govern and control the relationship between the City and KU relative to their respective fiber optic networks and that separate agreements related to specific project and interconnection may be necessary and appended hereto as addenda;
F. Accordingly, the parties enter into this Memorandum of Understanding governing joint projects, interconnectivity, and the sharing of certain aspects of their fiber optic networks, all in accordance with the terms of this agreement.
AGREEMENT
NOW, THEREFORE, in light of the mutual promises and obligations contained herein, and in exchange for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, the parties agree as follows:
1. Interconnection. The parties agree that this Memorandum of Understanding only authorizes the parties to work together to enhance their respective fiber optic networks. The fiber networks of the parties will interconnect only at mutually agreed upon points and in accordance with specific terms established under separate agreements. Each party shall be responsible for the maintenance of its respective fiber.
2. Access. The parties agree and understand that portions of the shared fiber optic network will be located on property owned by the City or KU or in easements granted by the City or KU. The City and KU agree to exercise best effort to provide advance notice of one (1) full business day should either party require access to property owned or managed by the other. It is agreed and understood that each party shall strive to provide to the other unrestricted access to any shared handholes, manholes, conduit, fiber optic cables, or fiber termination rooms for the purposes of emergency maintenance. Each party will maintain an emergency contact number that she be available seven (7) days a week, twenty-four (24) hours a day. This Memorandum of Understanding expressly prohibits the City or KU to permit any third party to access any property of the other or to have access to any shared portion of the fiber optic network, including handholes, manholes, conduit, fiber optic cables, or fiber termination rooms, without the prior written consent of the other.
Any access provisions that supplements or contradicts this paragraph shall be recorded in the specific addendum to this Memorandum of Understanding.
Emergency Contact Information-KU
For Emergency Site Access or to report an outage, contact:
KU Network Operations Center: +1(785) 864-0110.
Emergency Contact Information-City
For Emergency Site Access or to report an outage, contact:
Primary: James Wisdom, Information Technology: +1(785) 423-2799
Secondary: James Risner, Public Works/Traffic Division: +1(785) 423-3337
3. Sales Unauthorized. The parties agree that this Memorandum of Understanding only authorizes the parties to work together and is not intended to permit either the City or KU to offer telecommunications for sale to each other or to the public. If either party wishes to offer telecommunications for sale, such may be accomplished, if necessary, through a separate agreement.
4. Term. This Memorandum of Understanding shall be effective from the Effective Date of this Memorandum of Understanding until midnight on December 31, 2023. Thereafter, this Memorandum of Understanding will renew for one additional ten-year term and be effective until midnight on December 31, 2033, unless either party notifies the other party in writing of its intent to terminate or renegotiate this Memorandum of Understanding, not less than one hundred eighty (180) days before the termination of the initial ten-year term. The additional term shall be deemed a continuation of this Memorandum of Understanding and not a new agreement or an amendment hereto.
5. Termination. Either party may, by giving one hundred eighty (180) days' written notice to the other, terminate this Memorandum of Understanding. Upon termination, whether by expiration of this Memorandum of Understanding or by notice given by either party, KU will retain ownership of facilities that belong to KU and the City will retain ownership of facilities that belong to the City. The disposition of a party’s facilities from the property of the other and of any facilities that are jointly held shall be addressed in a specific, separate agreement governing that project or interconnection. If there is no specific, separate agreement on point, then the parties shall negotiate in good faith a fair and equitable disposition of the facility.
6. Kansas Cash-Basis Law. The parties mutually understand and agree that it is their intent that the terms of this Memorandum of Understanding and any addenda are lawful under the provisions of the Kansas Cash-Basis Law of 1933, codified as amended at K.S.A. 10-1101 et seq. Specifically, the parties understand and agree that the City is obligated only to make payments as may lawfully be made from (a) funds budgeted and appropriated for that purpose during the City's currently budget year or (b) funds made available from any lawfully operated revenue producing source.
7. Indemnity and Damages. Subject to the limitations set forth in the Kansas Tort Claims Act of 1979, K.S.A. 75-6101 et seq., as amended, the City and KU agree to be responsible for their own negligent actions and those of their own governing bodies, officers, agents, and employees. The City and KU agree to use reasonable care to avoid causing damage to the property and facilities of the other and to be responsible for and to reimburse the other for all damages caused to property and facilities of the other by their agents, officers, employees, and contractors during the installation, repair, replacement, or other work done on any interconnection project.
8. Assignment. This Memorandum of Understanding or other agreement reached under this Memorandum may not be assigned without the written consent of the other party.
9. Notice. All notices, requests, demands, or 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 Street
P.O. Box 708
Lawrence, Kansas 66044
With a copy to:
City of Lawrence, Kansas
Attn: City Attorney
6 East 6th Street
P.O. Box 708
Lawrence, Kansas 66044
If to KU, to:
The University of Kansas
Attn: Chief Information Officer (CIO)
345c Strong Hall
1450 Jayhawk Blvd
Lawrence, Kansas 66045
With a copy to:
The University of Kansas
Attn: Office of General Counsel
245 Strong Hall
1450 Jayhawk Blvd
Lawrence, Kansas 66045
Any such Notice shall be deemed effective upon actual receipt or refusal of receipt as shown on any return receipt obtained under this Section.
10. Entire Agreement. This Memorandum of Understanding constitutes the entire agreement between the parties. This Memorandum of Understanding may only be modified by a writing signed by both parties.
11. Effective Date. This Memorandum of Understanding shall become effective and shall be in full force and shall be binding on the City and KU, their successors and assigns, from and after the execution of this Memorandum of Understanding as shown in the introductory paragraph to this Memorandum.
12. Severability. If any section, sentence, clause, or phrase of this Memorandum of Understanding is found to be invalid by any court of competent jurisdiction, it shall not affect the validity of any remaining provision of this Memorandum.
13. Governing Law. This Memorandum of Understanding shall be construed and enforced in accordance with and shall be governed by the laws of the State of Kansas.
14. Recitals. The above-stated recitals are by reference incorporated herein and shall be as effective as if set forth herein verbatim.
[SIGNATURE PAGES TO FOLLOW]
IN WITNESS WHEREOF, the undersigned have caused this License Agreement to be executed as of the date noted above.
CITY: CITY OF LAWRENCE, KANSAS, a municipal corporation
________________________________
DAVID L. CORLISS
City Manager
ACKNOWLEDGMENT
THE STATE OF KANSAS )
) ss:
THE COUNTY OF DOUGLAS )
BE IT REMEMBERED, that on this ____ day of __________, 2013, before me the undersigned, a notary public in and for the County and State aforesaid, came David L. Corliss, as City Manager of the City of Lawrence, Kansas, who is personally known to me to be the same person who executed this instrument in writing, and said person fully acknowledged this instrument to be the act and deed of the aforementioned entity.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal, the day and year last written above.
________________________________
Notary Public
My Appointment Expires:
KU: The University of Kansas, a State institution of higher education
________________________________
JEFFREY VITTER
Provost and Executive Vice-Chancellor
ACKNOWLEDGMENT
THE STATE OF KANSAS )
) ss:
THE COUNTY OF DOUGLAS )
BE IT REMEMBERED, that on this ____ day of __________, 2013, before me the undersigned, a notary public in and for the County and State aforesaid, came Jeffrey Vitter, as Provost and Executive Vice-Chancellor of the University of Kansas, who is personally known to me to be the same person who executed this instrument in writing, and said person fully acknowledged this instrument to be the act and deed of the aforementioned entity.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my notarial seal, the day and year last written above.
________________________________
Notary Public
My Appointment Expires: